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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by O. W. Smith to recover a tract of land in Lyon county from O. S. Cross. After the action was begun Cross died, and the case was revived and prosecuted in the name of his heirs and the administrator of his estate. About 1881 E. W. Cunningham obtained a tax-sale certificate on the land, and the interest thus acquired was sold and transferred to F. E. Smith, who subsequently transferred it the plaintiff, C. W. Smith. The owner of the land redeemed it from the tax sale, and Smith surrendered his certificate to the county treasurer and received the redemption money. A wire fence was built by the Smiths enclosing the land and making it a part of a pasture controlled by them. C. S. Cross rented the land from the Smiths in 1893, and paid them rent thereon until the end of the year 1895. No taxes were paid on the land by the Smiths, and it was sold in 1892 for the taxes of the preceding year, and in 1895 a tax deed was executed to F. O. Lakin, who conveyed the same to C. S. Cross, on December 28, 1895. In February, 1897, a tax deed, based on other taxes which were in default on the land, was issued to C. S. Cross. After Cross obtained a tax title to the land he refused to pay further rent to the Smiths, and he held possession of the land for the years 1896, 1897, and 1898, and until the commencement of this action, holding it adversely to the Smiths and every one else under the tax deeds referred to. At the trial Smith claimed title alone through the possession which he formerly held, while Cross based his right upon the tax titles the validity of which was attacked, and the court found in favor of the defendant. While the tax deeds under which Cross claims are valid upon their faces, it is conceded that the proceedings upon which they are based are irregular and defective.
In behalf of the plaintiff, it is contended that Cross, being a tenant of Smith, could not deny the latter’s title, and that before doing so he must surrender the possession derived from the landlord. The fact that Cross was holding under Smith does not deprive him of the right to acquire a tax deed to the property. The taxes upon which the Lakin deed was based accrued before the Cross tenancy began. Neither at that time nor during the tenancy was Cross under any obligation to pay taxes. That obligation rested upon the owner or those claiming to own the land. In Weichselbaum v. Curlett, 20 Kan. 709, it was held’ that "a tenant under no obligation or duty to pay taxes may purchase the property at a tax sale made during his term and resist recovery by his former landlord for rent accruing after the tax sale by virtue of an adverse title so acquired.” See, also, Shoup v. C. B. U. P. Rld. Co., 24 Kan. 547, 558. Cross had a right to and did acquire a tax title to the land, and after that time he claimed and held possession under that title, and not under Smith.
Even if the tax deed was void on its face, and the action had been brought by the owner of the fee-simple title, Cross, who had paid taxes, penalties, and costs, would have been entitled to hold possession until the tax charges had been fully paid. (Smith v. Smith, 15 Kan. 290; Redden v. Tefft, 48 Kan. 302, 29 Pac. 157.) He certainly was entitled to hold as against Smith, whose only claim was a bare possession, and which had been lost a considerable time before this action was begun. It is fundamental that a person attacking a tax deed must show title in himself to the land in question. (Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862.) In his petition Smith admits that he is out of possession, and not having that he had nothing. He, therefore, had no standing to attack the validity of the tax proceedings or the tax deed under which Cross held.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action brought against the Atchison, Topeka & Santa Fe Railway Company by Caroline Beal, widow of Daniel Beal, to recover damages for negligently causing her husband’s death. The deceased was a workman employed with others to clean the defendant’s stock-cars. The place where the death occurred was in the company’s yards at Argentine, this state. At that place there are many contiguous and parallel tracks running east and west. The track farthest north was called the “alley track.” Upon that track the cars to be cleaned were switched. The method of placing the cars upon this track was to run them from the Kansas City stock-yards, a few miles distant, upon the track next to and immediately south of the alley track, to a switch connection a quarter of a mile or more west of the point at which they were to be cleaned, and then to back them east upon the alley track. The cleaning was done by shoveling the refuse matter out of the north sides of the cars. In order to get into the cars to do this work, it frequently became necessary to cross from the south to the north sides of the cars as they stood upon the track. Beal undertook to make this crossing by crawling under one of the cars. At that moment another train of stock-cars, sent out for the purpose of being cleaned, was backed in from the west on the alley track. It bumped into the standing cars and ran one of them over Beal, causing his death. The jury made findings, of which the following is a full summary:
Beal, at the time he was hurt, was crossing the alley track from south to north under the cars. He did not know before undertaking to cross that the moving train of cars was about to bump into the standing train of ears, nor had any warning been given to him and his fellow workmen of the approach of the train backing in from the west. It was his habit and that of his fellow workmen to cross from one side of the alley track to the other by crawling under the cars and over and under their connecting bumpers. The stock-cars to be cleaned were brought from the stock-yards and placed upon the alley" track daily and several times a day. It was the custom to •bring trains of empty stock-cars from the stock-yards every morning and at other times during the day on the tracks parallel to the alley track and, after passing the point where the deceased met his death, to back them in from the west upon the alley track ; and it was a daily occurrence for the moving trains backing in from the west to bump against the standing cars in which the men were working, and it was also a daily occurrence, while the workmen were cleaning the cars, for switch-engines to move and handle the cars in and about which the men were working. Beal knew that the standing cars upon the alley track were liable at any time to be bumped into and moved by the incoming cars or switch-engines running against them, and before his injury he had been cautioned about the danger of crawling under the standing cars. None of the duties of the men engaged in cleaning the cars required them to go under such cars in the performance of their work. The deceased could have gotten into his car from the south side without crossing over to the north side. The cars he was engaged in cleaning were provided with step-ladders by which men could climb over them from one side to the other. By stepping a few feet to the south, between the alley track and the one next to it, just before Beal started to crawl under the car, he could have seen the train backing in on the alley track, and he could also have heard the engine and cars composing the moving train. It was the custom of the defendant to move the cars in which the men were working without giving any warning signal other than ringing the bell, and it was also the custom of the defendant not to give signals to the men working about the alley track of the approach of its trains upon such track or of its intention to move the cars standing upon it. Such custom not to give warning signals had existed for several years, and Beal knew of it. There was a safer way to cross from the south side to the north side of the train of cars on the alley track than the one undertaken by Beal. . The jury, however, did not specifically state what such safer way was. Infer-ably, however, it was to climb the step-ladders and go over the tops of the cars, or go around the end of the train. None of the employees of the defendant in charge of the train backing in on the alley track knew that Beal was crawling under one of the standing cars. No signal or warning was given by any one of the approach of the train backing in on the alley track. The deceased was sixty-eight years old.
In addition to these findings the jury returned a verdict for the plaintiff. Upon motion of the defendant, this verdict was set aside and judgment rendered on the findings for it and against the plaintiff. The plaintiff has prbsecuted error to this court. It would appear from the findings that the defendant was negligent in backing its moving cars against the standing ones around which the men were at work without the giving of any warning signals of approach. Counsel, upon oral argument, endeavored to exculpate the company by claiming that, on account of the number of trains all the time moving to and fro in the yards at Argentine, the giving of sounding signals was impracticable, because signals given by one train were liable to be mistaken by other trains for which they were not intended. No reference was made to any portion of the record justifying such exculpatory plea and therefore we cannot take it into account. Besides, the ringing of bells and sounding of whistles are not the only ways of giving warning of the approach of trains. We can conceive of no reason why the sending of a man in advance of the backing train to give warning of its approach might not have been practicable. We conclude, therefore, that the defendant was negligent,- and, for the purpose of considering the claim of liability made against it by the plaintiff, will assume, as contended by her, that it was grossly and wilfully negligent.
On the other hand, it must also be held that Beal ^was negligent — negligent to as great an extent as the defendant. He knew that moving cars were liable to back in upon the standing cars at any time. He knew that it was not customary to give signals or other warnings of their approach. He knew that it was therefore dangerous to crawl under the standing cars. He knew that there was a safer way. to cross over from one side of the track to the other. Had he stepped a few feet to the south he could have both seen and heard the approaching train backing in on the alley track. It is impossible in reason, therefore, to say that he was not guilty of negligence directly contributing to his own death. This, in fact, is admitted by counsel for plaintiff. It is contended, however, that .a plea of contributory negligence upon the part of the injured person will not lie as against a charge of gross, wanton and wilful negligence on the part of the one who inflicts the injury, and in support of this contention the following quotation is made from Judge Cooley’s work on Torts, 2d ed., 810:
“ Where the conduct of the.defendant is wanton and wilful, or where it indicates that degree of indifference to the rights of others which may be justly characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury.”
This is a trenchant and radical statement of law, and would seem to be comprehensive of the- facts of the present case and to justify the plaintiff’s claim of defendant’s liability. However, an examination of the authorities cited in support of the proposition and a reading of the remainder of Judge Cooley’s text on the subject materially qualify the broad terms in which the rule is stated. In immediate connection with the above, it is further stated by Judge Cooley :
‘ ‘ The fact that one has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. Even the criminal is not out of the protection of the law, and is not to be struck down with impunity by other persons. If, therefore, the defendant discovered the negligence of the plaintiff in time, by the use of ordinary care, to prevent the injury, and did not make use of such care for the purpose, he is justly chargeable with reckless injury, and cannot rely upon the negligence of the plaintiff as a protection. Or it may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.”
It will thus be seen, and especially when examined in the light of the authorities cited, that the rule of| non-liability for contributory negligence in case of in-? juries wantonly, wilfully or recklessly inflicted, does not apply where the injured person had, or should have had, knowledge of the grossly negligent habit or the impending reckless act of the injurer, and could have avoided their consequences by prudence and caution on his own part. Only when an act of con tribu-} tory negligence is performed without knowledge or apprehension that the reckless and wanton conduct of another will or may conjoin to produce an evil effect will the injured person be relieved from liability for the result of his own negligence. To say that one alive to the known or probable misconduct of another may, nevertheless, expose himself to the dangers known or liable to result from such misconduct, and yet exculpate himself from the consequences upon the ground of the other’s fault, would go to the complete subversion of the whole doctrine of liability for contributory negligence. One who thus tempts fate cannot be heard to complain of the harshness of its decrees.
However, when one, although negligent himself, has no knowledge or can have no apprehension of the liability of another’s negligence conjoining with his own to produce an injurious effect, but the latter has such knowledge or can have such apprehension, but wantonly and recklessly proceeds to the fatal consequence when, by diligence and caution, he might have avoided it, the former will be held guiltless and the latter liable, because in such case the proximate cause of the injury is not the former’s negligence, but it is the negligence of the latter in failing to see that the former one had negligently placed himself in a position of peril. It is in respect to cases comprehensive of such a state of facts that the rule of Judge Cooley and of all the cases cited by counsel for plaintiff in error was declared. The precise subject is discussed at length in Beach on Contributory Negligence, 3d ed., section 54, et seq., and in 2 Thompson on Negligence, 1155, et seq., and the distinction we have drawn is pointed out and the- view we have expressed illustrated and enforced.
The contention of the plaintiff that persons have a right to work at dangerous employments, and that it cannot be said as matter of law that they, are negligent in doing so, and that Beal assumed no risks of the dangerous employment of cleaning out stock-cars, is apart from any question which the facts of the case raise. Admitted that the business of cleaning the cars was dangerous ; admitted, notwithstanding this fact, that Beal had the right to work at it; admitted that he assumed none of the risks of that employment except such as were necessarily incidental to it, nevertheless the risk of getting killed by crawling under the cars, as a result of the company’s negligence, of which he had knowledge and against which he could have guarded, was not a risk which he did not voluntarily and unnecessarily assume. Furthermore, the claim of plaintiff that Beal had the right to practice the dangerous habit of crawling under the cars because that was the usual and ordinary habit among his fellow workmen is untenable. One cannot recklessly expose himself to known or probable dangers because others are in the habit of doing likewise.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a motion for a writ of error coram nobis in a prosecution in Greenwood county of George H. Dobbs and Emelia New, who were convicted of murder on January 24, 1898. The motion, which was accompanied by an affidavit setting forth the reasons for the issuance of the writ, which is designated as an assignment of errors, was filed in the district court on February 25, 1899. At the same time notice of the motion was served on the county attorney of Greenwood county, who subsequently appeared and moved the court to dismiss the motion and proceeding on jurisdictional grounds, namely : (1) That the state is a sovereign power which cannot be sued without its consent, and that no consent has been given; (2) that no service of a sufficient summons has been made upon the state; and (3) that no bond or security for costs has been given or any sufficient excuse stated for the failure to give.the same.
The court sustained that motion and dismissed the proceeding, and the defendants in the prosecution prosecuted proceedings in the court of appeals, and that court certified the case to the supreme court.
It is not denied that the writ of error coram nobis is available in cases like the present one, nor is there any attack made on the sufficiency of the averments upon which the application for the writ is based. In fact, the sufficiency of the averments or the merits of the controversy appear not to have been considered or decided by the trial court, but the decision rests alone upon the view that this is an independent proceeding, which cannot be brought against the state without its consent. Treating the writ as an available remedy, as we must, the only question open for review at this time is whether the state was in court and required to answer the motion of which notice was served on the county attorney. If the proceeding is to be regarded as a new suit brought against the state, to obtain a new trial upon one of the statutory grounds, as was done in Asbell v. The State, 60 Kan. 51, 55 Pac. 338, the ruling of the trial court was right and should be affirmed. On the other hand, if it is not a new action against the state, but a proceeding instituted by the defendants in the criminal prosecution, as was done in The State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838, the state must be regarded as still in court and subject to challenge by the common-law writ of error coram nobis. Manifestly the defendants undertook to follow the procedure employed in the Calhoun case, for, instead of causing a summons to be issued and served, the attention of the state and the court was again called to the case by a mere motion and the notice of the same.
In entitling the motion the defendants were first named — that is, there was a transposition of the names of the parties to the prosecution. It seems to us that the correct practice in moving for a writ of error coram nobis is to retain the title of the principal case, but this practice is not universally followed, as some courts hold that the paper ought not to be entitled in any suit. (5 Encyc. Pl. & Pr. 32.) The important consideration is that the nature of the relief sought by the proceeding shall be clearly stated, and that it shall be institute in the very same case in which the error is alleged to have been committed. Whatever may be the correct practice, the fact that the names of the parties were transposed in the title employed on the motion and other papers hardly justifies the court in treating the application for the writ as a new proceeding wholly apart and distinct from the prosecution in which the moving parties were convicted. The record of the prosecution was still open ; the state was still in court in that case, and was subject to challenge by the defendants’ motion for the purpose of obtaining any relief that may be obtained by the writ of error coram nobis. The steps taken were substantially those which were employed in The State v. Calhoun, supra, and we think that error was committed in holding that the state was not in court and in dismissing the proceeding.
The judgment of the court will be reversed. | [
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Error from Wyandotte court of common pleas.
Reversed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This is another phase of the homestead question. A wife owned the homestead. She, with her husband, resided thereon. Their three adult children were married and had homes of their own. i A judgment was rendered against the wife, the husband, and son, in the district court of the county in which the land was, situated. The wife died. The husband conveyed the land, and abandoned the homestead. Did the purchaser take the title entirely freed from the judgment lien? We think not.
Martha A. Delap was the owner of 110 acres of land in Allen county, Kansas. It was the homestead of herself, her husband, Sidney Delap, and their children, one son and two daughters. The entire tract was mortgaged. Afterward the west fifty-five acres were conveyed to the son, John, who occupied the same as a homestead. Thereafter, and on November 17, 1891, L. L. Northrup obtained a judgment against Martha A. Delap, Sidney Delap, her husband, and the son, John Delap, in the district court of Allen county, for $1082. This judgment was revived in the name of the plaintiff in error, Mary E. Northrup, administratrix, the said L. L. Northrup having died.
On November 12, 1894, Martha A. Delap died, the owner of the east fifty-five acres, it being at the time the homestead of herself and husband, leaving, also, her son John and married daughters, Nettie Teift and Alice K. Brightly, all past twenty-one years of age. On December 16, 1895, Sidney Delap, still occupying the east fifty-five acres as a homestead, conveyed it to Clara Delap, the wife of his son John, who took possession under such conveyance. On June 29, 1896, Clara and her husband, John, conveyed the same to Daniel Horville, who then took possession. On July 14, 1896, the daughters, Nettie Tefft and Alice K. Brightly, with their husbands, conveyed the same to Daniel Horville.
On March 21, 1897, the mortgage given prior to the Northrup judgment having been foreclosed, this land was sold under such foreclosure judgment and brought a sum sufficient to pay the mortgage in full and to leave remaining the sum of $1113.24. Horville claims it all because he took the title to the land by these various conveyances freed from the lien of the Northrup judgment. The administratrix claims one-half of it, because, by the deed of Sidney Delap, Horville took but one-half of the land freed from the lien of said judgment. The district court sustained the contention of Horville and gave him the entire fund. This judgment was affirmed by the court of appeals: In this we think both courts erred.
When Martha A. Delap died the land passed by our law of descents and distributions one-half to her husband and one-half to her children, subject to whatever homestead rights there might be in the husband. We do not now determine whether there was any such interest in him, but certain it is that the homestead character could be impressed only upon so much as he owned, so as to free it from the lien of the judgment after its conveyance and abandonment by him as 'a homestead. Admitting that he, as the husband of the owner and as her family, would have a homestead right in the entire tract while he occupied the same, that could not give him the right to convey what he did not own, and free it from the judgment lien.
The adult children of Mrs. Delap took, eo instanti, upon her death, the title to one-half of this land, and they then had a right to its partition and consequently to its possession. (Vandiver v. Vandiver, 20 Kan. 501.) By what statutory construction, or logic, can it be said that the possible homestead interest of the husband in his half would permit him to convey the half belonging to the adult children, and thus protect it from a judgment against the wife — the owner — even after its abandonment by him as a homestead? We do not think such a conclusion can be reached from a construction of the provisions of our constitution and statutes, or is justified by the decisions of this court. We call attention to the case of Battey v. Barker, ante, p. 517,64 Pac. 79, decided by this court at this term.
The judgments of the court of appeals and of the district court of Allen county will be reversed, and the court directed to enter judgment in favor of the plaintiff in error on the agreed statement of facts for one-half of the fund named. | [
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The opinion of the court was delivered by
Cunningham, J.:
Some time about 1886, the defendant the Leavenworth, Northern & Southern Railway Company constructed a -line of railroad across a section of land belonging to the defendant in error, running in a general direction from north to south. It crossed a natural watercourse known as Wolf creek. In crossing this creek a Howe truss bridge was built some sixty or seventy feet in length, which was placed on pile piers and had pile or trestle approaches for some distance at either end. Faulty proceedings in condemnation having been had, the defendant in error brought suit for damages occasioned by the building of such road, in which he was allowed for the land taken and for the damages to the land not taken. The Atchison, Topeka & Santa Fe Railway Company is now operating said line of road.
In 1897 the plaintiff in error, for the purpose of permanently improving this road-bed at the crossing of the creek, constructed two stone abutments of solid masonry and replaced the wooden bridge with an iron-girder bridge. The waterway between the stone abutments was considerably smaller than that between the pile supports and approaches of the old bridge, but was much greater than that required for the discharge of the ordinary flow of water, and indeed, except in the highest stages of water, it would not obstruct the flow. The railway company was proceeding to fill up the space at the south end of the new bridge with a solid bank of earth, for the purpose of making the road-bed more permanent and safe. Up to this time the defendant in error had had an under-grade passageway for his stock through the space occupied by the south pile approach. This under-grade passage would be destroyed by the fill proposed by the railway company.
Wolf creek entered the land of defendant in error across its north line and pursued a southeasterly direction to the bridge in question. On the southwest side of the creek the bank was a bluff over which the water would-never flow. On the northeast side of the creek, the banks were from three to seven feet high, and the land had been cultivated well down to the edge of these banks. In very high stages of water, both before and after the building of the railroad bridge, the water would rise above these banks and overflow, to a greater or less extent, the land to the northeast. There are about four acres in the angle between the railroad, the north line of plaintiff’s land, and Wolf creek. A portion of this, about one and one-half acres, was liable to be overflowed by the increased high water caused by making the proposed fill of earth south of the south abutment. These waters would, however, soon run down, being rapidly discharged through the waterway under the bridge, remaining upon the land of the defendant in error comparatively a short time.
This action was brought by the defendant in error for the purpose of obtaining a permanent injunction against the plaintiffs in error, prohibiting them from making this earth fill south of the south abutment, alleging as reasons therefor that he would be deprived of the subway as a passage for his stock from one portion of his land to the other, and that, in times of extraordinary high water, the four-acre tract of land hereinbefore spoken of would be flooded to a greater extent than theretofore.
The railway companies answered that they had acquired a right to construct, operate and maintain their line of railroad in such manner as properly to perform their duties to the public and to the state of Kansas, and that, for the proper maintenance and operation of the railroad, it was necessary to replace the temporary structure, built of piling at the time said road was constructed upon the premises described in plaintiff’s petition, with a permanent bridge of stone abutments, in order to make such road safe, and that the construction of the bridge and stone abutments would in no manner interfere with the rights or privileges of the plaintiff.
It appeared upon the trial that the defendant in error had two over-grade crossings, and that, except for a few hours when the water was high, his cattle could pass under the new bridge between the stone abutments. But he contended that the space occupied by the trestlework south of the south abutment was open at the time he obtained his verdict in his action for damages caused by the construction of the railroad, and that he was awarded damages only for such injuries as he had suffered up to that time, and, hence, never having been paid for the injuries which would come to him by reason of being deprived of this subway, he was entitled to have it kept open. On the other hand, the plaintiffs in error contend that the issues, evidence and instructions of the court in the action for damages were such that it must now be presumed that he was awarded damages compensating him for being deprived of said subway. The court is of the opinion that this view is correct and if for no other reason than this, the defendant in error cannot maintain his action on this branch of the case.
We think that the entire contention of the defendant in error is without equity. This trestlework with its wooden bridge was but a temporary structure, and, as is well known, not so permanent, safe and desirable as a road-bed as the permanent improvement which plaintiffs in error were erecting. Such temporary structure would be kept up with greater expense to the railway company, and would expose the traveling public to greater danger. To shut up this open space by earth filling would discommode the defendant in error but little, for, as has been stated, except for a few hours at rare intervals, he has his subway a few feet to the north, and at the time of these few hours he has two over-grade crossings near by. Not to shut it up by such earth filling means constant danger to the traveling public and expense to the railway company ; and, to some extent at least, it would prevent the railway company from fulfilling its duty to the traveling public. The advantage to Meyer in having this space left open in no sense corresponds to the inconvenience and injury to the traveling public and the railway company resultant therefrom.
Now, as to the extent of his right to the injunction because of the increased overflow of his land. As has already been seen, the entire piece of land is about four acres, and of this only about one and one-half acres would be affected at all by the water made higher by the proposed fill, and this only at rare intervals and for a short period of time. It is impossible in the nature of things that much, if any, damage could result to the defendant in error, and, if damages should so result, they are easily measured by a money consideration, and in no sense can be great or irreparable.
"In our judgment such occasional overflow of a few acres of land, part of a farm of more than 100 acres, does not work a destruction of the inheritance, or justify the granting of an injunction in order to prevent irreparable mischief.” (Blaine v. Brady, 64 Md. 377, 1 Atl. 609.)
We do not think that the defendant in error has shown himself entitled to the interference of a court of equity to prevent the small damage, if any, he might sustain. We do not understand that injunction may be used as an instrument to annoy or harass any one in the prosecution of a legitimate enterprise, and, especially so, if any damage which might result therefrom can be easily measured and be compensated for in dollars and cents, and the defendant is able to respond in damages.
Our conclusion is that the contention of the defendant in error is without merit, and, therefore, the judgment of the court below will be reversed, with instructions to deny the injunction, | [
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The opinion of the court was delivered by
Smith, J.:
Plaintiff in error based its action in the court below against the defendant Williams on certain facts, which, stated briefly, are : Defendant, for the purpose of wronging, cheating and defrauding the First National Bank, made and delivered to it a check drawn on the Citizens’ Bank of Hutchinson in the amount of $2800, and bought of and received from plaintiff in error a draft on New York for said sum, payable to his own order. To carry out his fraudulent purpose, defendant represented that he had on deposit in the Citizens’ Bank a sum equal to the amount of his check. The check was worthless. Discovering this fact, plaintiff below, by telegraph, stopped payment of the New York draft. The defendant Williams immediately left the state, and thereafter procured said draft to be cashed at Cayuga, Ind., by Malone & Sons, bankers at that place. The latter were innocent purchasers of the draft. The following extract from the petition shows the nature of the damages sustained by the plaintiff below :
“That Malone & Sons, bankers, were innocent purchasers of said draft, and that this plaintiff was liable thereon to said Malone & Sons for the amount of said draft; that in order to protect itself against loss it became necessary for plaintiff to counsel and advise with attorneys and employ a lawyer to go to Cayuga and procure a settlement of said draft by said Williams with said Malone & Sons, by returning to them (said Malone & Sons) said money paid to him, said Williams, by said Malone & Sons on said draft, which was finally done ; that in procuring the settlement of said draft to the extent aforesaid, and repayment of the money to said Malone & Sons, plaintiff was put to large expenses, to wit, for telegraphing, attorneys’ fees, and other expenses, the sum of $325.92; that all of said costs and expenses were caused by and through the wrongful, fraudulent and felonious acts of the defendant in giving said worthless check and representing the same to be valid and good, and said amount is the fair and reasonable value thereof; that said defendant has now in his possession said original draft drawn on the National Bank of North America, and refuses to deliver the same to plaintiff.”
There is a prayer asking for judgment in the sum of $2500 damages, and that the draft be canceled and surrendered to the plaintiff in error. A general demurrer was sustained by the court below to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action.
The demurrer seems to have been considered and held good on the theory that the claim for $325.92. for telegraphing, attorneys’ fees and other expenses is to be treated as a demand for punitive damages. We differ with the trial court in its view of the nature of the damages. The bank, through the fraud of the defendant, was induced to deliver to him a draft for $2800, payable to his order, which he wrongfully caused to be cashed. The natural and probable result of his false representations must have been foreseen by Williams, which was that the defrauded bank would use all reasonable means to prevent loss to itself and, if necessary, employ counsel and incur other expenses in its efforts to recover the draft or its proceeds. The demurring party admits that the expenses mentioned were necessary. Exemplary or vindictive damages are inflicted as a punishment to the wrongdoer, and not as compensatory to the plaintiff. Here, an actual pecuniary loss was sustained by one partj through the fraudulent conduct of another, and the former merely seeks to be made whole. The amount claimed is not embraced within the term “smart money.” The following authorities uphold the right to recover in such cases : Philpot et al. v. Taylor, 75 Ill. 309; Boston & Albany Railroad v. Richardson, 135 Mass. 473; Smith v. Bolles, 132 U. S. 125, 10 Sup. Ct. 39, 33 L. Ed. 279; Bennett v. Lockwood, 20 Wend. 223; Osborne & Co. v. Ehrhard, 37 Kan. 413, 15 Pac. 590. In Sutherland on Damages, 2d ed., section 58, it is said:
“If one’s property is taken, injured or put in jeopardy by another’s neglect of duty imposed by contract, or by his wrongful act, any necessary expense incurred for its recovery, repair or protection is an element of the injury. It is often the legal duty of the injured party to incur such expense to prevent or limit the damages ; and if it is judicious and made in good faith, it is recoverable, though abortive.”
Before the bank can be denied a right to recover, it must be decided that the petition shows no actual damages sustained by it, but that exemplary damages only are sued for. (Schippel v. Norton, 38 Kan. 567, 16 Pac. 804.) Counsel for defendant in error rely on the case of Winstead, Sheriff, v. Hulme, 32 Kan. 568, 4 Pac. 994. It will be noted that the attorneys’ fees and expenses, for which it was sought to charge the wrongdoer in that case, were incident to and incurred in and about the trial of the action to recover damages for a previous conversion of the plaintiff’s goods. Ordinarily a party can recover, beyond the amount of his actual damages, only the costs of the action allowed by statute. Counsel fees and expenses of the particular suit to recover actual damages from a wrong-doer are allowed where the defendant has been guilty of fraud, malice, or oppression. They are purely exemplary, and are to be considered only in cases where substantial actual damages may be recovered.
The attorneys’ fees and expenses in the present ac tion o.f tbe bank against Williams are not sued for or claimed. The expenses paid by. the bank were incurred before this action was commenced. They were necessary and arose solely as a result of the fraud of defendant below. To hold that the petition sets out a claim for damages not compensatory, and of a nature which can be allowed only as a punishment to the defendant, would be to remove from the category of actual and exact damages a loss resulting directly from the fraudulent conduct of a party, and place it in a class where it might or might not be recovered by one who sustained it, according to the uncertain notion of a jury whether the wrong-doer ought or ought not to be punished for his acts.
In an action for damages sustained for malicious arrest and prosecution, the counsel fees and expenses of the party arrested, incident to his preliminary examination and necessary to secure his release, if charged with a felony, may be recovered, on the principle that they are compensatory; but expenses and counsel fees attendant upon the particular action brought to recover for the injuries growing out of such arrest can be awarded only as a punishment to the defendant, and are not compensatory in character. Their allowance rests in the discretion of the jury.
The damages sought to be recovered in the case at bar may be likened to the expenses in the supposed case incurred by the party maliciously prosecuted in obtaining his discharge from arrest at the preliminary examination. They are compensatory, and, a right to recover being established, the jury cannot, in their discretion, refuse to include the amount in their verdict in favor of the party wronged.
The judgment of the court below is reversed, with directions to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted of grand larceny; the offense consisting of cattle stealing. He introduced testimony showing his good reputation for honesty, and the state, in rebuttal, attempted to prove his bad reputation in that respect. One John Dacy, on behalf of the prosecution, testified, over the objection of the defendant, as follows :
“Ques. Do you know the reputation of the Dunns and Beatys in that community for honesty and fair dealing, in connection with their cattle business ? Now do you know their reputation, including John Dunn, George Dunn, Will Beaty, and the defendant, E. E. Beaty, for honesty and fair dealing in connection with the cattle business, in the community where they were carrying on their business ? Do you know what people say about it? Ans. Yes, sir.
“Q. Judging from what they generally say, is that reputation good or bad ? A. It is bad.”
Frank Hutchinson testified:
“Ques. Are you acquainted with the general reputation of the Beatys and Dunns, including the defendant, E. E. Beaty, William Beaty, John Dunn, and George Dunn, in the community where they carried on their business, as to honesty and fair dealing ; that is, do you know what people ' generally say of them ? Ans. I know what the people say of them in general.
“Q. What is that reputation, -good or bad? A. They are spoken of generally as a pretty tough outfit.
“Q. Was that reputation good or bad ? A. Bad.”
Another witness, in response to like questions, testified that the persons named had the reputation in the community where their stock ranged of not doing the right thing in the cattle business.
We think that the admission of this testimony was prejudicial to the rights of the accused, and violative of the rules of evidence applicable to the introduction of impeaching testimony. The defendant had produced witnesses who testified to his own good reputation. He did not attempt to show what reputation was borne by the Dunns or William Beaty. Such evidence would have been inadmissible. They were not on trial, nor were they accused in the information. To permit an inquiry into their reputations was to import into the case a collateral issue. Every man is supposed to be able always to support his own general reputation, but ought not to be expected to be ready to defend the character of those with whom he associates. It can be seen how this trial might have been prolonged by an investigation into the general reputation for honesty of the Dunns and William Beaty. Such inquiry is too remote.
In the case of State v. Staton, 114 N. C. 813, 818, 19 S. E. 96, 98, the accused was tried for arson and it was proved that he sold cotton taken out of the barn that was burned to one Warren, and the defendant proposed to prove that Warren was a man of good reputation. The latter was not examined as a witness in the case.
The testimony was rejected. The court said:
“While the character of a witness may be shown for the purpose of sustaining or impairing the force of his testimony, it does not tend to enlighten the jury upon the question of guilt or innocence to know whether a person, who is neither party nor witness, but is only mentioned in the confession of one accused of crime as the receiver of stolen goods, is of good or bad reputation.” (See, also, Redus v. Burnett, 59 Tex. 576.)
The case of Walls v. The State, 125 Ind. 400, 403, 25 N. E. 457, 458, was a prosecution for highway robbery. The defendant offered to prove that one Belcher, his alleged accomplice, was at the time of the robbery a person of good character for honesty, but the court refused to submit such evidence. It was said:
“In this we do not think the court erred. Belcher was not on trial, and the question then under investigation related to the guilt or innocence of the appellant, and did not necessarily involve the guilt or innocence of Belcher. For the purposes of the trial of this cause Belcher was a stranger to the record, and his character for honesty was of no more importance than the character of any other third pex’son.”
In the case of Omer v. Commonwealth, 95 Ky. 353, 362, 25 S. W. 594, 596, it was said :
“The appellant contends that he should have been permitted not only to establish his own good character among the people of the coinmunity — as he did do— but also the good character of each of the parties indicted with him. At first blush it might seem plausible that, as it was sought to make the accused responsible for the acts of these parties, he should be permitted to show their good character, as rebutting the idea of conspiring with such men; but the accused alone was on trial, and his own conduct and character were involved. The rule would have to work both ways, and a good man caught, ever so innocently, in bad company might be made to suffer from the establishment of such a rule, or if presumption of guilt or innocence might be indulged in according as the party charged was in good or bad J company.”
In the first count of the information defendant is charged with stealing property belonging to and in the possession of Don Otto; in the second count it is alleged that the property belonged to E. M. Otto, in the possession of Don Otto, holding the same for said E. M. Otto ; and in the third count the property is charged to belong to E. M. Otto, held and possessed by Don Otto for E. M. Otto and the Ben. Holmes Commission Co. At the close of the testimony the county attorney elected to rely for conviction upon the first count. We have examined the testimony and do not think it was satisfactorily shown that Don Otto was more than a servant of E. M. Otto, the owner, or had anything beyond a mere temporary custody and use of the property. Under the evidence before us Don Otto could not have-maintained an action for trespass as bailee for an injury to the cattle. (12 Encyc. Pl. & Pr. 963.) The testimony as to ownership tended more nearly to sustain the allegations of the third count of the information.
We have considered the other assignments of error. Appellant cannot complain of the amendment of the original information. The claim that the court was without jurisdiction is not well founded. (The State v. Suppe, 60 Kan. 566, 57 Pac. 106.)
The judgment of the court below will be reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by Henry S. Ire-ton against Bridget Ireton and other heirs of John Ireton-, deceased, to recover a tract of land in Cowley county, and also damages for withholding the possession of the same. The land was purchased by John Ireton and occupied by him and his family until his death, in 1893. Henry S. Ireton, a son of John Ireton by a former wife, claimed title to the property through a conveyance alleged to have been executed by his father and mother on September 4, 1874. He contended that the continued possession of his father was by virtue of a lease executed by him in 1890, giving his father the right of occupancy during his natural life. The contention of the widow and heirs of John Ireton was that the deed had never been delivered, and therefore never became effectual; and, further, that the occupancy of the premises by John Ireton and his family was not under the lease, but by virtue of ownership.
The first trial resulted in a verdict in favor of the defendants, but for errors committed the judgment was reversed and the cause remanded for further trial. (Ireton v. Ireton, 59 Kan. 92, 52 Pac. 74.) At the last trial the verdict of the jury was in favor of the plain tiff for the recovery of the real estate, and the defendants filed a motion for a new trial, alleging seven different grounds, for setting aside the verdict, among which were these : (1) That the verdict was not sustained by sufficient evidence and was contrary to law; (2) irregularities in the proceedings of the jury ; (3) misconduct on the part of the jury ; (4) errors of law occurring on the trial of the case ; (5) the fact that the guardians of certain defendants who were minors were not made parties; (6) newly-discovered evidence which could not be produced at the trial. The court sustained the motion, setting aside the verdict and granting a new trial, and of these rulings the plaintiff complains.
The plaintiff in error contends that the motion for a new trial was granted by the court upon the theory that it had erred in refusing to admit in testimony statements made by John Ireton in his lifetime as to the execution and delivery of the deed to his son; that the statements sought to be introduced did not accompany the execution of the conveyance or any act of possession; and, therefore, under Crawford v. Crawford, 60 Kan. 126, 55 Pac. 842, it is contended that the court’s original ruling in excluding the evidence was right, and that error was committed in granting the new trial. The weakness of this contention is that the record does not show that a trial was awarded upon this ground, nor does it disclose which of the seven different grounds alleged was the basis of the ruling. If it clearly appeared that the ruling rested upon, or rather raised, a pure, unmixed question of law, and that it was erroneously made, we would be warranted in reversing the order, and in directing an entry of judgment on the verdict, but the record does not show, and the opposing parties do not concede, that the question comes to us in that form. It may have been granted because the court concluded that the evidence did not sustain the verdict. The granting or refusing of a new trial for that reason is so much in the discretion of the trial court that a reviewing court will be slow to interfere with an order which grants a new trial, and especially where the evidence is conflicting. Here the evidence on the main question is voluminous and to some extent contradictory, and there is room for the inference that the verdict of the jury did not meet with the approval of the court.
This court will not disturb a verdict if there is substantial testimony to sustain it, but a different rule applies to a trial court which has equal opportunity with the jury to observe the manner of the witnesses and to decide upon their credibility. Where a motion for a new trial is made for the reason that it is contrary to the evidence, it is the duty of the trial court to consider and weigh the evidence on which the verdict rests, and if the verdict is contrary to the evidence it should be set aside. It is true the jurors are the judges of the credibility of witnesses and the triers of- the facts, and that the trial court will not in doubtful cases set up his own judgment against theirs, nor interfere with a verdict merely because his judgment inclines against theirs. But these considerations do not warrant him in abdicating the important function of supervising verdicts. If he is not satisfied with the verdict and is convinced that it is clearly against the weight of the evidence, no duty is clearer than the granting of a new trial. In McCreary, Sheriff, v. Hart, 39 Kan. 216, 17 Pac. 839, it was said that “where a verdict by the jury is founded on the testimony of a witness directly contradicted by another witness, and the trial court sets the verdict aside, the supreme court will not reverse the decision or order of the trial court granting a new trial.” In Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518, it was decided that “a new trial ought always to be granted whenever in the opinion of the trial court the party asking for a new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received subtantial justice.”
A much stronger case for reversal is required where a new trial has been granted by the district court than where one has been refused, and since the motion contains so many grounds, and the court did not state for what particular reason the motion was granted, it cannot be said that the court erred with reference to some pure, simple, unmixed question of law. (Field v. Kinnear, 5 Kan. 233; Atyeo v. Kelsey, 13 id. 212 ; Day v. Harris, 23 id. 216; Condell v. Savings Bank, 23 id. 596; City of Sedan v. Church, 29 id. 190; Brown, Adm’r, v. A. T. & S. F. Rld. Co., 29 id. 186; Goal & Mining Co. v. Stoop, 56 id. 426, 43 Pac. 766.)
If the order of the court granting a new trial can be sustained upon any of the grounds alleged in the motion, this court is bound to sustain it. It follows that the order and judgment of the court must be affirmed. | [
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The opinion of the court was delivered by
Ellis, J. :
The defendant was prosecuted in the court below under chapter 68 of the Laws of 1870 (Gen. Stat. 1897, ch. 100, §§ 892, 393; Gen. Stat. 1899, §§2302, 2303), entitled “An act to protect the people from empiricism, and to elevate the standing of the medical profession.” Section 1 of that act contains a proviso in the following words :
“Provided, that in all cases when any person has been continuously engaged in the practice of medicine for a period of ten years or more, he shall be considered to have complied with the provisions of this act.”
In this case it was the contention of the defendant that he had been practicing medicine in Nebraska for more than ten years last past, but he did , , . , not pretend that m this state or another -1-he had ever practiced medicine prior to seventeen years ago. Upon the trial, he offered to read in evidence the depositions of two witnesses to prove that he had practiced medicine in Nebraska for ten years prior to 1894. An objection on the part of the state to the evidence thus offered was sustained by the court. The defendant excepted, and the ruling of the court in that behalf is assigned as error.
“A person of good moral character, who had practiced medicine continuously for ten years or more before the taking effect of the act, is deemed to be qualified and to have complied with the provisions, but continuous practice for ten years in violation of law, after the act was passed, confers no right or authority on the practitioner.” (The State v. Wilson, supra.)
Counsel for the defendant insists that the above quotation from the syllabus of the case, while correct as an abstract statement of the law, is not applicable to the defendant, under the facts sought to be proved in his behalf as above set forth, because his client, having practiced without the state of Kansas during the period of ten years, cannot be said to be one who has been engaged “for ten years in violation of law.” In the absence of proof to the contrary, it will be presumed that the laws of Nebraska are the same as our own. Besides, it is known of all men that throughout the civilized world schools, colleges, dispensaries, hospitals and institutions for clinical instruction are maintained at public and private expense for the education of those men and women to whom is committed the responsible duty of ministering to the health and endeavoring to prolong the life of human beings. All, or nearly all of these institutions, issue certificates or diplomas reciting the term and course of study which has been pursued by the student therein. Those colleges whose curriculum includes a complete course of those studies which are regarded as requisite for a physician and surgeon to pursue do uniformly issue to one who has completed such course, and exhibited proficiency therein, a diploma reciting such facts, and evidencing that by reason thereof the graduate has been made a doctor of medicine.
In the case at bar the defendant does not claim to have attended any of these schools of special learning, nor does lie claim that he had devoted any time to the study of any of the branches of this learned profession, nor does he avow that in Kansas, or elsewhere, he .ever submitted to an examination before a board of competent members of the profession which he seeks to follow. Coming to Kansas for the first time, he, in effect, announces that it does not matter that he has not availed himself of the means of special education which were afforded him; it is enough that he has practiced medicine in Nebraska for more than ten years, and during that time has successfully evaded the .laws of that state or eluded its officers, and now he asks that a preference be given him over men in this state who have been heretofore subject to our laws. We can see no reason for holding that the statute under which this prosecution is conducted is not applicable to this defendant. We think that, by the terms of the statute, the defendant’s case does not fall within the proviso above quoted, and certainly the purpose of the statute would not be carried out and the evident intent of the legislature would not be given effect by such a decision. It follows that there was no error committed by the court below in striking out the parts of the depositions to which reference has been made.
Complaint is made that the court below erroneously placed the burden of proof upon the defendant. The statute provides:
"It shall be unlawful for any person . . . who has not attended two full courses of instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, . , . to practice medicine in any of its departments for reward or compensation.”
Upon the trial, the prosecution offered evidence tending to prove that, agreeably to the rules adopted by the state board of health pursuant to section 5 of chapter 75, General Statutes of 1897 (Gen. Stat. 1899, §6377), the qualified practicing physicians and surgeons of each county in the state were required to. register, and that the defendant was not, at the time the information in this case was filed against him, nor at the time of the trial, registered in accordance with such regulations, although he was shown to have had actual knowledge of their existence. The state then offered testimony tending to prove that the defendant, while not so registered, had practiced medicine for pay in said Ellis county, and rested. Thereupon, the defendant requested the court to instruct the jury to bring in a verdict for the defendant, which request was refused, and thereafter the court instructed the jury as follows:
“The statutes of Kansas require that, before any person can legally practice medicine for compensation in this state, he must have attended two full courses pf instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or be able to produce a certificate of his qualification from some state or county medical society. The burden of introducing some evidence tending to prove such qualification is on the defendant.”
Exceptions were taken to the refusal of the court to instruct the jury to return a verdict of acquittal, and to the foregoing instruction given by the court to the jury. As to the refusal of the court to instruct the jury to return a verdict of not guilty, it may be assumed that such an instruction is justifiable where there is an entire failure of evidence on the part of the state to prove the guilt of the defendant; still we do not think the court erred in refusing such instruction. The state had offered evidence tending to prove that the defendant was engaged in following for a livelihood the profession of physician and surgeon. Presumably he would be anxious to have it appear to the people of the community in which he resided that he was well qualified to perform the duties and fulfil the requirements of that profession. Without such belief on the part of the people his practice would be greatly restricted. Pie and they were bound to know that the laws of this state prescribed certain conditions upon compliance with which he could engage in that business, and he, at least, is shown to have known that registration as physician and surgeon was required by the regulations of the state board of health. Under these circumstances, the state having offered the evidence above cited, the defendant owed it to himself to produce, if he had it, evidence tending to show his qualification to practice. We think that the foregoing evidence offered by the state, coupled with the presumption that the defendant would speak and offer evidence, if any he had, in his own behalf, when his interests so strongly required him so to do, constituted a case sufficient for the consideration of the jury, and evidence sufficient to sustain a verdict, if one had been returned against the defendant. (State v. McDuffie, 107 N. C. 885, 12 S. E. 83.)
A more important question is presented by the instruction of the court, which substantially changes the burden of proof in this class of cases. It is scarcely necessary to announce that ordinarily the burden of proving the guilt of the defendant and every essential ingredient thereof, beyond a reasonable doubt, is upon the state, and the accused stands on the presumption of his innocence until a complete case is made against him ; and if the testimony is insufficient on any material point he must be acquitted. “These rules are merely stated. Neither the public nor the profession is interested in the discussion of questions long settled, well understood, and. generally acquiesced in.” The court undoubtedly regarded this case as exceptional in its nature. The authorities are not free from conflict, but the weight thereof appears to preponderate in favor of the position taken by the trial court in this case. The reason for the rule sought to be laid down by those courts which hold that the state need not as-' sume the burden of proving such negatives as must be averred under the statute above quoted is found in its necessity. We have not been able to find a definition which seems altogether satisfactory and may not be able to give one. The following rule is quoted with approval by many courts in criminal as well as in civil cases:
‘ ‘ Where the means of proving the negative are not within the power of the party alleging it, but all the proof on the subject is within the control of the Opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment from the fact that such opposite party withholds or does not produce the proof that is within his hands, if it exists, that the negative is not true.” (5 A. & E. Encycl. of L., 2d ed., 42, n. 1.)
Without giving unqualified assent to that rule, we remark that a failure of justice would usually result if the state were required to prove, in a case like the present, that the defendant had not attended two full courses of instruction and graduated at some respectable medical college in this or some foreign country, or that he could not produce a certificate from some state or county medical society; for where a person had determined to engage in the unlawful practice of medi cine he would naturally seek a location among strangers, and would refrain from imparting facts in relation to his past history, which the prosecution would be unable to trace, although he might be an empiric and ignoramus as well. Where the state denies the right to its citizens generally to engage in a particular trade or profession, and grants such right to those of its citizens only who have acquired a certain degree of proficiency therein, and' prescribes certain documentary proof as requisite to show that a particular citizen has such right, but does not require such proof to become a matter of record in any public office in the county where such person engages in such trade or profession, upon the trial of a case wherein it is alleged by the state, in substance, that a person against whom the information is filed has not complied with the laws.of the state, and is following such trade or profession in violation thereof, is unqualified therefor, and has not and cannot produce such evidence as he is required to possess of his qualifications before he can engage therein, we think that, because of the impracticability, if not the utter impossibility, of the state’s being able to prove such negative averment, and because, also, the defendant •can readily produce the required evidence, as well as because his interests would prompt him to do so, and in order that justice may be done, the defendant should be required to produce such evidence. Doctor Bishop lays down this rule :
“One of the leading presumptions in our law is, that what is common in general belongs also to the particular ; this is a prima facie presumption, and the party who would resist its force must show that, in the particular instance, the fact is otherwise.” (Bish. Stat. Cr. § 1051.)
Commenting on this rule, the learned author says :
“From this it follows, that if the law forbids the ’mass of the community to sell intoxicating liquor, ibut grants license to some particular individuals to 'sell it, then, if some one person is indicted for making -an unlicensed sale, the presumption that what is com- - mon in general belongs likewise to the particular stands as prima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further consideration that, since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the orderly and convenient administration of justice is promoted, while no harm is done to the individual by casting the burden on him.” (Bish. Stat. Cr. §1051.)
Cases for the sale of liquor and drugs and medicines and the operation of ferries and the like, without license, present features which are analogous to the case under consideration, and in most of the states the courts have held that it is not necessary for the prosecution to prove that the defendant had no license. Different reasons are assigned for the establishment of this exceptional rule. In several states a labored effort is made to prove that the rule is not exceptional in its nature, but that it accords with the ordinary procedure in criminal cases. An attempt to reconcile the reasons thus given would be fruitless. Indeed, most of these cases extend the rule much beyond the point we regard as justifiable. For instance, in this state liquor is not allowed to be sold except upon a druggist’s permit, which is granted in the county where the business is to be transacted, and the fact of issuing the permit is made a matter of public record in the office of the probate judge, which is held at the county-seat where the court meets and generally in the same building where it convenes. Now, the rea son for making an exception in this class of cases, it being that to require the state to prove that the defendant did not have a license, or certificate, or permit, would often be in effect to require the state to perform an impossibility, can have no application to a case where competent evidence in regard to the fact is as accessible to the state as it is to the defendant. In the absence of a statutory regulation relieving the state from the duty of proving that one charged with the unlawful sale of intoxicating liquor did not have a permit therefor, because the reason for the rule fails in such a case, the rule itself ought to fail and the state, having access to admissible evidence, ought to be required to produce it. This is in accord with earlier decisions of this court. (The State v. Schweiter, 27 Kan. 499; The State v. Nye, 32 id. 201, 4 Pac. 134.)
In other words, where evidence to prove the negative averment is not peculiarly within the knowledge of the defendant, but is also within the knowledge and control of, or, upon reasonable effort and by the exercise of proper diligence, may be secured by, the state, then the prosecution is bound to produce such evidence, and, failing to do so, the defendant ought to be acquitted. Applying this distinction to the case at bar, it will be readily seen that it might well be beyond the power of the state to prove any of the negatives alleged in the information in this case. The facts and the evidence in relation thereto are, and of necessity must be, peculiarly within the knowledge and under the control of the defendant, while, as above remarked, his desire to stand well with his patrons and with the community generally would naturally prompt him to submit evidence to remove the cloud cast upon his professional reputation by such an inquiry; and, therefore, to require him to produce such, evidence would result in no injury, but in a positive benefit to him.
For these reasons there was no error in the charge of the trial court that the defendant was required to produce some evidence tending to show his qualifications. (Bish. Stat. Cr. §§ 1051, 1052, 1053, and cases cited; Wheat v. The State, 6 Mo. 455; People v. Nyce, 34 Hun [N. Y.] 298; 5 A. & E. Encycl. of L., 2d ed., 42, supra, and cases cited; Under. Crim. Ev. §24, and cases cited; Black, Intox. Liq. § 507, and cases cited ; The State v. Crow, 53 Kan. 663, 37 Pac. 170.)
As this case must be reversed for reasons hereinafter appearing, and a new trial ordered, it may not be improper to remark that if the defendant should show that he had attended two full courses of instruction and graduated in some medical college of this or some foreign country, then, in the absence of some evidence raising a question about it, the presumption would be that such college was respectable. To avoid misunderstanding, however, with reference to the facts of this particular case, we think the court would have been justified, for reasons appearing on the face of the documents themselves, in excluding from the jury the paper which counsel for the defense calls a diploma, issued by the so-called Independent Medical College of Chicago, and the other paper purporting to have been issued by a physio-medical society in Illinois (which latter was excluded), because neither of these papers proves, nor tends to prove, that the defendant had attended any course of instruction in either institution, or had graduated at either, and because neither of them can be regarded as a diploma, nor as such certificate as is contemplated by our statute.
After the jury had been out of court for several hours in considering their verdict, they returned and re quested further instructions, and thereupon, the court, in response to that request, gave the following:
“I say to you that under the law and the evidence, for the purposes of this case, the defendant was not at the time charged in the information legally qualified to practice medicine for compensation in this state, and, if he did so practice medicine at the times and places and for the persons alleged in the information, it is your duty to convict him, and to consume no time speculating on the question of whether he might have been qualified to practice medicine under the st¡atute, because, I again say to you, that, so far as the evidence in this case discloses, he was not so qualified, and it is your duty to find that any practicing that he may have done for sick persons for compensation as alleged in the information was done illegally, and you should convict him therefor by your verdict.”
This was tantamount to an instruction to find the defendant guilty, and, if not in words, certainly in effect, nullified the original instructions of the court relating to reasonable doubt. The general rule that all the instructions given by the court to the jury in a particular case are to be considered together can have no application here, for by this instruction the court directly settled for the jury the only question about which any doubt could have remained in their minds, and pointedly directed them that, if they believed the evidence, as to which there was no controversy, upon the question as to whether the defendant had practiced medicine for compensation, they must find the defendant guilty, and that-speedily. Thus the court disposed of every presumption in the defendant’s favor and indirectly withdrew from the jury’s consideration certain evidence which had been previously admitted. We do not believe that an instruction to find the defendant guilty is justifiable in any criminal case. As said by this court in the case of The State v. Smith, 13 Kan. 298:
“Ordinarily, a jury might well draw such an inference from such facts ; but the court below says that, in effect, they are compelled to draw such an inference, and this, in our opinion, is an unauthorized assumption by the court of a duty that belonged exclusively to the jury. From the proven facts, the jury, not the court, must find that the accused converted the money to his own use. In this case they might well have found him guilty from the facts proven, if they had been left at liberty to weigh the value of these facts, as well as any others necessary to prove the guilt of the accused."
It may not be absolutely certain that this instruction did mislead the jury, but we cannot be positive that it did not do' so, and, as a majority of this court regard it as clearly erroneous, a reversal of the judgment must be ordered and -the case remanded for a -new trial. | [
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The opinion of the court was delivered by
Doster, C. J.:
The city of Enterprise owns all of its water-works system or plant except the well from which the water-supply is drawn ; that is owned by one Guilford Smith. The city, acting under chapter 82, Laws of 1897 (Gen. Stat. 1899, §§ 653-665; Gen. Stat. 1897, ch. 39,. §§ 9-27), instituted an action to condemn the land of Smith, upon which the well was situated. A demurrer to its petition for insufficiency of facts stated was filed. The demurrer was sustained, and from the order sustaining it error has been prosecuted to this court.
The question raised relates to the constitutionality of section 12 of the act of 1897, under which the petition was filed. That section provides for the condemnation by cities of water-works property belonging to Private corporations. The principal objection is that the title of the act does not express the subject of condemnation as a means to a city’s acquisition of title to water-works property. The title reads as follows :
“An act authorizing and empowering cities of the first, second and third classes to obtain gas lights, electric lights, electric power, water or heat by contracting with private corporations to furnish any such city and its citizens with such light, power, water or heat under the conditions in this act imposed, or to obtain such gas lights, electric lights, electric power, water or heat by purchasing or constructing, owning and operating gas plants, electric-light plants, electric-power plants, water-works, or heating plants, by such cities; and for the purpose of owning and operating any such plants, to purchase or lease gas or other lands, and to repeal paragraphs 1401 and 1402 of the statutes of Kansas, 1889, and all other acts and parts of acts in conflict with this act.”
Eliminating all of this title which does not pertain to the acquisition of water-works property, it reads as follows;
“An act authorizing and empowering cities .... to obtain . . . water ... by purchasing or constructing, owning and operating water-works.”
It is seen, therefore, that the title of the act does not express the subject of condemnation as a means of acquiring water-works property, but expresses only the subject of its acquisition by purchase. Is the word “purchase,” or its participle, “purchasing,” used in the title, comprehensive enough to include condemnation? We think not. The word “purchase” has two significations — a popular but restricted one, and a legal but enlarged one. The definition of the word in its legal and general sense is given as follows: “A term including every mode of acquisition of estate known to the law, except, that by which an heir on the death of his ancestor becomes substituted in his place as owner by operation of law.” (Bouvier.) Blackstone defines the word in its legal and enlarged sense in the same way, but, after doing so, says : ‘ ‘ Purchase, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land as are obtained by way of bargain and sale for money, or some other valuable consideration.” (2 Bla. Com. 241.) “A purchase, in the ordinary and popular acceptation of the term, is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration. But, in judgment of law, it is the acquisition of land by any lawful act of the party, in contradistinction to acquisition by operation of law; and it includes title by deed, title by matter of record, and title by devise.” (4 Kent, Com., 14th ed., 441.) “The word ‘purchase/ in common sense, means no more than when a man gives money for anything, but in a legal sense every man is a purchaser of an estate who does not take it by descent.'” (Martin v. Strachan et al., 1 Wils. 72.)
The word “purchase,” therefore, has a defined meaning at common law. That meaning is the enlarged but technical one given to it by Blackstone, Bouvier, and Kent. However, the word in its popular sense has the narrower signification of acquisition by voluntary act or agreement for a valuable consideration. Words are sometimes used in a statute in a technical sense, and sometimes in a common and popular sense. Such words, used in a statute, as have a defined sense at common law, will be understood as used in their common-law sense, unless it appears that such sense was not intended. (Suth. Stat. Const. §253.) How, then, can the sense in which a word of technical common-law meaning used in a statute be ascertained ? We think the rule is well stated by Sutherland (section 254) :
“Words in common use, and also having a technical sense, will, in acts intended for general operation and not dealing specially with the subject to which such words in their technical sense apply, be understood primarily in their popular sense, unless they are defined in the act or a contrary intention is otherwise manifest. Such words, however, will be understood in a technical sense when the act treats of the subject in relation to which such words are technically employed. Thus, they are deemed technically used in legislation relating to courts and legal process. Thus, for example, the word ‘party’ has a technical significance. So have the words ‘action,’ ‘suit,’ and ‘final judgment.’ But by the cardinal rule that the intention of the lawmakers is the essence of the law, when a technical word is obviously intended to have a broader than its strict technical sense, it will receive that interpretation. In McBride’s Appeal, 72 Pa. St. 480, the word ‘actions,’ in the provision in question, was held to embrace ‘all civil proceedings of whatever kind,’ as well as actions technically so called. Technical words are sometimes used in statutes in a popular sense.”
Another author says:
“Where technical words are used in reference to technical subjects, they are primarily interpreted in the sense in which they are understood in the science, art or business in which they have acquired it. . . . But, in general, statutes are presumed to Use words in their popular sense. . . . Hence, the technical meaning is rejected as soon as the judicial mind is satisfied that another is more agreeable to the object and intention.” (Endl. Interp. Stat. §§74, 76.)
It is evident, therefore, that the word “purchasing,” in the title to the act in question, was not used in its technical legal sense, because such title is not inclusive of or cognate with the technical subject of titles to> real estate by purchase, but is inclusive of and cognate with the general subject of acquisition of title to real estate for water-works purposes.
The authorities, though few in number, upon the particular question, support the ruling we make. In Kohl et al. v. United States, 91 U. S. 367, 374, 23 L. Ed. 449, the meaning of the word “purchase,” as used in a statute providing for the condemnation of property, was considered. The court said :
“It is true the words ‘to purchase’ might be construed as including the power to acquire by condemnation ; for, technically, purchase includes all modes of acquisition other than that of descent. But, generally, in statutes as in common use, the word is employed in a sense not technical, only meaning acquisition by contract between the parties, without governmental interference.”
In Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509, 62 Am. Dec. 402, the word “purchaser,” used in a statute making parol gifts void as to creditors, purchasers, etc., was considered as used in its popular' and not in its technical sense.
It must be borne in mind that section 12 of the statute under consideration attempts to exert the sovereign power of dispossessing the citizen of his property. All the authorities hold that such statutes are to be strictly construed. No effect by implication or intendment other than that which is reasonable and necessary is allowed to them. For like reasons the same must be said of the titles to such enactments. Nothing should be regarded as comprehended within their titles except that which can with reasonably clear distinctness of view be seen. We are therefore constrained to hold that the title to the act in question d.oes not embrace the subject of condemnation of property for water-works purposes. We regretfully come to this conclusion, because the statute is of much interest and is beneficial in its object; but it is better that its defects be pointed out at this early date after its enactment, so that the legislature may have like early opportunity to correct them. We assume, of course, that section 12 is separable from the remainder of the act, and that the enactment is not, therefore, subject to criticism as a whole.
The plaintiff in error contends that, assuming section 12 of the act of 1897 to be unconstitutional, its petition can be viewed, nevertheless, as one filed under chapter 208 of the Laws of 1872 (Gen. Stat.. 1899, §§ 7546-7551), being an act entitled “An act authorizing-cities to construct water-works,” which, R R claimed, authorizes the condemna^on proceedings instituted. Without inquiring whether the act of 1872 is efficacious to accomplish the purpose of the plaintiff in error, it is sufficient to say that it did not bring-its proceeding under that statute, but limited it to the statute of 1897. It averred in its petition :
“Said city has directed that a petition be prepared and filed in the office of the clerk of the district court of Dickinson county, state of Kansas, for the purpose of acquiring a title to said real estate, and all the title or right of said defendants, or either of them, in or to said system of water-works, as provided by chapter 82 of the Laws of Kansas of 1897.”
It will be seen, therefore, that the plaintiff in error elected to pursue the special remedy supposed to be afforded by the act of 1897. That remedy, in forms of procedure, at least, differs in several particulars from those of the act of 1872. The city cannot now be allowed to convert its action into one brought upon the latter-named statute.
Independently of the question of the validity of section 12 of the act of 1897, and for the time being assuming it to be valid, it is indeed questionable whether, under its provisions, property other than that belonging to a private corporation can be condemned. It makes no provision in terms for the . condemnation of the property of individ ual owners, but provides only for the condemnation of the property of private corporations. However, not being able to uphold the statute in its constitutional aspect, we have not deemed it necessary to determine" the question presented.
For like reasons, we have not deemed it necessary to determine whether, under the statute, a part only of water-works property may be condemned: It will be remembered that the condemnation undertaken in this case was not of a whole water-works plant or system, but only of a portion of it, to wit, the well or source of water-supply. These two questions which, as we say, we have not deemed it necessary to determine, may nevertheless be sufficiently serious to challenge the attention of the legislature, should it undertake the revision of the act.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
The principal question presented for decision is whether the Eureka Bank is entitled to a lien on the capital stock of the bank owned by William Martindale for an indebtedness owing by him to the bank. The Eureka Bank is a corporation organized under the laws of the state, with a capital stock of $50,000, divided into 500 shares. William Martin-dale, who was the owner of 298 of these shares, was a member of its board of directors, and its president. Edwin Tucker was cashier of the bank and in the active management of its affairs.
On July 30, 1898, Martindale applied to Tucker for a loan of $10,000 from the bank, which was given to him on his unsecured individual note. On August 8, 1898, Martindale obtained a second loan from the bank on his individual note for $9848. At the same time Martindale was a stockholder and managing officer of the First National Bank of Emporia, Kan., where he resided, and besides he held large in vestments in lands and other property, and was generally regarded a man of wealth. On November 16, 1898, the First National Bank of Emporia failed, and its property and business affairs passed into the hands of a receiver. By an agreement between the creditors and Martindale, his property was turned over to a trustee to be appointed by the judge of the federal court; but in the agreement it was stipulated that collateral securities or liens on the bank stock or other property held by any creditor on November 16, 1898, were not to be disturbed, waived or in any way affected by the agreement. In pursuance of the agreement, R. T. Battey was appointed trustee, and to him Martin-dale and his wife joined in a deed of trust, which, among other things, conveyed 298 shares of Eureka Bank stock, “subject to lien of Eureka Bank thereon for a stockholder’s indebtedness to the bank.” The trustee obtained possession of the certificates of stock for the 298 shares in the Eureka Bank,- and demanded of the officers of the bank that they transfer the same to him as such trustee, but the bank, claiming a lien on the stock for the indebtedness of Martindale, refused to make the transfer until the indebtedness was paid. The bank brought an action against Martin-dale on the notes heretofore described, as well as other obligations of smaller amounts, and asked to have his indebtedness enforced as a lien against the bank stock in question. The receiver of the First National Bank of Emporia and R. T. Battey, as trustee, were made defendants, and an order was asked requiring them to surrender to the Eureka Bank the shares of stock in the bank which they had obtained from Martindale. Upon the testimony the bank recovered a judgment against Martindale for the amount of his indebtedness to it, and such indebtedness was held to be a lien on the bank stock which stood on the books in the name of Martindale.
The trustee challenges so much of the judgment as gives the bank a lien on the Martindale stock. It is to be noted that the agreement under which the trustee was appointed provided that liens on bank stock should not be deemed to be waived or affected by the agreement, and, also, in the deed conveying his property to Battey, Martindale specially excepted liens of the Eureka Bank on the stock in question. Battey took no more than the deed of trust conveyed to him. He was not an assignee in bankruptcy or under the general assignment laws, but was a trustee of an express trust, and his right in the Martindale property was measured by the terms of the instrument by which Martindale conveved the property to him. He was to take that property, convert it into money, and apply it among the creditors of Martindale as the federal court might direct. By .the preliminary agreement and the deed of trust he had notice that liens on the stock were claimed, and also that Martindale recognized the existence of a lien in favor of the Eureka Bank on the stock in question, and of necessity the stock passed into his hands subject to the rights and equities of the bank.
Without settling the question of estoppel asserted against Battey, we pass to the question of the validity of the lien asserted by the bank. This question is determined by the provisions of the banking act. By one section it is provided :
“The shares of stock of an incorporated bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the bylaws thereof may direct; but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety or otherwise to the bank for any debt which shall be due and unpaid, nor in such case shall any dividend, interest or profit be paid on such stock so long as such liabilities continue, but all such dividends, interests or profit shall be retained by the bank and applied to the discharge of such liabilities ; and no stock shall be transferred on the books of any bank without the consent of the board of directors, where the registered holder thereof is in debt to the bank for any matured and unpaid obligation; and no transfer of stock shall be made when the bank is in a failing condition, or when its capital is impaired. All transfers of stock shall be certified to the bank commissioner immediately." (Gen. Stat. 1899, § 458 ; Gen. Stat. 1897, ch. 18, §21.)
There was a by-law of the bank which expressly provided that the bank should have a first and prior lien on the stock for debts due to the bank by the owners of such stock. The statute already quoted, independent of the by-laws, clearly gives uhe bank a lien on the stock when the stockholder is liable as principal debtor, surety or otherwise to the bank for any debt due and unpaid. If an indebted stockholder were to transfer his stock free from any lien or claim of the bank, it might result in an impairment of the capital, and so, to protect the capital and customers of the bank, the legislature created a lien and placed a limitation in the statute which prevents the stockholder from transferring his stock even to a bona fide purchaser while his liability to the bank continues.
The statute goes further than the giving of a lien to the bank, as it prohibits payment to the stockholder of any dividend, interest or profit on the stock while he is liable to the bank for indebtedness of any kind.
The legislature of Michigan passed a statute containing a provision almost identical with the one under consideration, and the supreme court of that state held that it created a lien in favor of the bank against’ (which a bona fide purchaser of the stock was not protected. (Michigan Trust Co. v. State Bank, 111 Mich. 306, 69 N. W. 645; Citizens’ Bank v. Kalamazoo Co. Bank, 111 id. 313, 69 N. W. 663; Oakland Co. Savings Bank v. State Bank, 113 id. 284, 71 N. W. 453.)
If the section quoted stood alone, all would concede the existence of the lien, but the contention is that another section of the act necessarily denies a lien to the bank. It provides :
“No bank shall employ its moneys, directly or indirectly, in trade or commerce, by buying and selling goods, chattels, wares, and merchandise, and shall not invest any of its funds in the stock of any other bank or corporation, nor make any loans or discounts on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless •such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith ; and stock so purchased or acquired shall, within six months of the time of its purchase, be sold or disposed of at public or private sale. After the expiration of six months any such stock shall not be considered as a part of the assets of any bank: Provided, That it may hold and sell all kinds of property which may come into its possession as collateral security for loans or any ordinary collection of debts, in the manner prescribed by law: Provided further, That any goods or chattels coming into the possession of any bank as aforesaid shall be disposed of as soon as possible, and shall not be considered as a part of the bank’s assets after the expiration of six months from the date of acquiring same.” (Gen. Stat. 1899, § 417 ¿ Gen. Stat. 1897, ch. 18, §29.)
This section standing by itself might, perhaps, be interpreted as prohibiting a bank from acquiring a lien upon the stock of its debtors. A somewhat simi lar provision in the national-banking act of 1864 was so viewed by the supreme court of the United States. (Bank v. Lanier, 11 Wall. 369, 20 L. Ed. 172; Bullard v. Bank, 18 Wall. 589, 21 L. Ed. 923.) These decisions were made under an act which did not expressly give a lien, as is done in our statute. On the other hand, the national-banking act of 1863, which gave a bank a lien on the stock of its debtors, was modified by the act of 1864, and in place of the lien provided in the former act there was substituted the prohibition against a bank making a loan on the shares, of its own capital stock. As was • remarked in Bank v. Lanier, supra, “congress evidently intended, by leaving out of the law of 1864 the thirty-sixth section of the act of 1863, to relieve the holders of bank shares from the restrictions imposed by that section. The policy on the subject was changed, and the directors of banking associations were in effect notified that thereafter they must deal with their shareholders as they dealt with other people.” The striking out of the section giving a lien and the substitution of the prohibitory provision clearly evidenced the intention of congress, and hence by-laws of banks attempting to create liens on stock were held to be in conflict with the act and therefore void. Our statute presents a very different aspect. As has been seen, it expressly gives a lien on the stock of an indebted stockholder, and in another section of the act passed at the same time it declares that a bank cannot “make any loans or discounts on the security of the shares of its own capital stock, . . . unless such security . . shall be necessary to prevent loss upon a debt previously contracted in good faith.”
What, then, was the legislative purpose in regard to creating liens on the capital stock of banks ? These provisions, being included in the same act, should be reconciled, and, if possible, both given force and effect. In our view, an absolute prohibition of liens on bank stock was not within the legislative intention; and, further, there is room for the operation of both sections. Considered together, they mean that a bank is prohibited from making a loan or discount in the first instance on the security of its own stock, and that it shall not thereafter become the purchaser or the holder of loans on stock unless it shall become necessary to prevent loss upon a debt previously contracted in good faith. It would result in this, that while the officers of the bank cannot accept stock as a specific security for a loan or discount when the debt was first contracted, they may afterward accept the stock as security, if the debt has been previously contracted' in good faith. This provision, as will be observed, is mainly an admonition to the officers, and the leading purpose was to prevent a bank from using its money in trade or commerce, buying or selling merchandise, or in the purchase of stock of other banks or corporations, or dealing in its own stock ; and the only penalty provided in the section is that such stock, when secured by it, shall not be considered as a part of the assets of the bank after the expiration of six months.
It will be noted that there is nothing in the statute itself which renders a security taken by the officers of a bank in violation of the provision unenforceable. And when the section is considered in connection with the other one which absolutely gives the lien, it furnishes strong reasons for the application of the doctrine that a contract made contrary to such a statute is not unenforceable, in the absence of a declaration in the statute itself prohibiting its enforcement. The national bank ing act forbids the loaning of money by national banks upon mortgages on real estate ; but it has been held that where such a loan was made the mortgage was good and enforceable, notwithstanding the violation of this provision; that the disregard of the prohibitory clause did not vitiate the security taken for the loan, but only laid the bank taking it open to proceedings at the instance of the government. (National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443; Logan County Bank v. Townsend, 139 U. S. 67, 35 L. Ed. 107.)
In Gold Mining Co. v. National Bank, 96 U. S. 640, 24 L. Ed. 648, the company was sued by the bank for money which was loaned to it, and they set up as a bar that the loan was made in violation of the banking law, because it exceeded one-tenth of the bank’s paid-up capital stock ; but the court held that the violation of the prohibition did not affect the validity of the loan, and that the violation could be questioned only by the government.
In Thompson v. Saint Nicholas National Bank, 146 U. S. 240, 13 Sup. Ct. 66, 36 L. Ed. 956, the bank certified a check for a customer who did not have a deposit to meet the check and received therefor bonds as collateral security. This was in violation of the banking law, and the right of the bank to hold its lien on the bonds was contested because of the violation. The court held that the bank could hold the bonds notwithstanding the certification was made in contravention of the act of congress, and in its decision said:
“Moreover it has been held repeatedly by this court that where the provisions of the national banking act prohibit certain acts by banks or their officers without imposing any penalty or forfeiture applicable to particular transactions which have been executed, their validity can be questioned only by the United States, and not by private parties.”
If, however, we should disregard the absence of a prohibition in the statute itself prohibiting the enforcement of a security taken in violation of the act, and should accept the view of the plaintiff in error, we would be unable to grant him the relief which he asks. If the section expressly authorizing a lien is to be regarded as modified by the prohibition, it would result in the view that a bank could never have a lien where a loan was contracted on the specific security of its own capital stock, and could never afterward claim a valid lien on stock except to prevent loss on a debt previously contracted in good faith.
In the first place, it must be held that the loans were not made by the Eureka Bank to Martindale on the security of the stock which he owned. The certificate was not given to Tucker, the cashier, nor was any reference made to the stock at the time the loans were negotiated. It is true that Tucker admitted that he had in mind at the time that Martindale was a stockholder, and that he might not have loaned him so large an amount if it had not been for his connection with the bank. He claimed, however, that the reason that the money was loaned upon his individual note was the fact that Martindale was a large owner of real estate and other banking interests, and was regarded by him to be a man of great wealth. The district court concluded from the testimony that the loan was not made upon the faith of the stock as a specific security, but was based, rather, upon the personal credit of Martindale, and we think the. testimony sustains this conclusion.
Was the debt contracted in good faith? A greater amount was loaned to Martindale than is permitted to be loaned to a single individual under the by-laws and banking rules, and besides no security was taken, which is not in accord with the usages and requirements of banking. The non-observance of these usages, rules and requirements does not necessarily imply dishonesty and bad faith on the part of the cashier. Good faith in this connection means that the loans were honestly made by Tucker, in the belief that they were safe investments for the bank, and that there was an absence of fraud, pretense, or. any purpose to wrong the bank. (Docter and another v. Furch and others, 91 Wis. 464, 65 N. W. 161; Winters v. Haines, 84 Ill. 585, 14 A. & E. Encycl. of L., 2d ed., 1078.) If the loans were fraudulently and collusively made, and the claim that Martindale was financially sound and abundantly able to meet the loans was not in fact believed, but was a mere pretense, there was a lack of good faith which would condemn the transaction. Under the testimony and the finding of the trial court, however, it must be held that the loans were honestly made by the cashier, in the belief that Martindale was not only solvent but that he was financially strong, and that the loans made to him were safe investments ; and, further, that they were made without any intent to wrong the bank or any one else, and, therefore, under the rules heretofore stated, were made in good faith.
None of the errors assigned can be sustained, and therefore the judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
On the morning of' December 21, 1899, Thomas C. Kirby shot and killed G. A. Foley, at Perry, Kan. Kirby owned a hotel at Perry, which he managed and operated with the assistance of his wife and children. Foley was station agent for the Union Pacific Railway Company at that place, and lived at Kirby’s hotel for some time before the homicide, and it is claimed that while there he seduced Clara Kirby, a daughter of the defendant. The seduction and condition of their daughter came to the knowledge of Kirby and his wife, it is claimed, on December 14, 1899, when they had an interview with Foley and endeavored to have him marry Clara and, so far as possible, make reparation for the wrong done her and her family. This he declined to do, and, when further pressed to marry the girl, stated that it was impossible to do so, as he had been married and had a wife living. Clara was taken to Topeka by the defendant, where' an examination was made by a physician, and his report confirmed the fears of the Kirbys as to the condition of their daughter.
In behalf of the defendant, it is claimed that the dis closure and disgrace first stupefied him ; then, as lie came to realize the real nature and effect of the wrong done to his daughter, and that there was no disposition on the part of Foley to make amends or to protect the reputation of the girl, he became more and more excited, and ultimately gave way to uncontrollable passion and to the insane impulse to take the life of Foley, who had so greatly wronged his daughter and humiliated and degraded the family. His claim and testimony is that on the morning of the tragedy, one week after the disclosure, he went to the room of Foley and demanded again to know what Foley was going to do as to his daughter, and was informed by Foley that he did not intend to do anything, when the defendant told Foley that he would prosecute him and put him behind the bars for his wrong and crime ; that Foley thereupon rushed upon the defendant, declaring with an oath that he would kill him; whereupon the defendant drew his revolver to defend himself, but Foley grabbed the weapon, and in the scuffle which followed the revolver was discharged and the bullet struck the defendant’s ankle and foot. The defendant finally gained control of the weapon and fired, striking Foley on the shoulder, and then he laid down the revolver and took up a shotgun that was near by and shot Foley, who was still aggressively attacking him, the loads from .both barrels taking effect in the latter’s breast. Foley ran down-stairs and out of the house, pursued by the defendant, who was wild with excitement and passion, and who with the revolver, which he had picked up again, fired another bullet into Foley’s body. Foley fell on the sidewalk and in a few minutes afterward died.
On the part of the state, it is claimed that Kirby was not greatly disturbed when he learned of his daugh ter’s condition ; that he allowed Foley to continue as a guest of the hotel for a week following the disclosure ; that, even if he had been excited and stirred to desperation when first told of his daughter’s misfortune, there was a week of time for the cooling of his passions and in which to regain control of his reason ; that his conduct in borrowing weapons, purchasing ammunition and otherwise making preparations betrayed deliberation and a malicious purpose to kill, and this, with certain threats alleged to have been made by the defendant, and other testimony, tended to show that the killing was not done under any insane impulse or in self-defense.
Kirby was prosecuted for murder, and the charging part of the information was as follows :
“That on the 21st day of December, a. d. 1899, in said county of Jefferson and state of Kansas, one Thomas C. Kirby, then and there being, did then and there unlawfully, feloniously, wilfully, deliberately and premeditatedly, and with malice aforethought, kill and murder one G. A. Foley, then and there being, by shooting him, the said G. A. Foley, with a certain gun commonly called a shot-gun, then and there loaded wh' powder and leaden shot and leaden bullets, and by then and there shooting him, the said G. A. Foley, with a certain pistol, commonly called a revolver, then and there loaded with powder and leaden bullets, which said shot-gun and said pistol, both so as aforesaid loaded with powder and leaden shot and leaden bullets, he, the said Thomas C. Kirby, then and there in his hand and hands had and held — a more definite description of said shot-gun and said pistol is to this informant unknown — contrary to the form of the statute in such case made and. provided, and against the peace and dignity of the state of Kansas.”
Upon this charge a trial was had, which resulted in a verdict finding the defendant guilty of murder in the second degree.
In his appeal the defendant questions the sufficiency of the information, arguing that it is bad for duplicity, in that it charges two acts of killing, each with a distinct weapon, and that in fact two independent offenses are charged in a single count. , This contention is not sound. Only one offense is charged, and that is the wilful, premeditated and felonious killing of Foley by the defendant, at a stated time and place, by shooting him with a shotgun and with a revolver. Death may be produced or murder committed by several means, and since both the shooting with the pistol and the shot-gun may have contributed to produce the death of Foley, both means may properly be alleged in a single count, and proof that death was caused by either of the means will sustain the charge. (The State v. O’Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555; The State v. Hewes, 60 Kan. 765, 57 Pac. 959; The State v. Kornstett, ante, p. 221, 61 Pac. 805.)
While the information does not in so many words allege that the wounds were inflicted by the shooting, or that they were mortal and resulted in death, it does allege distinctly that Foley was killed and murdered by the defendant at a fixed place and upon a certain time, by means that are described, and in language that can leave no doubt as to the character of the wounds inflicted or the cause of the death. We think the information contains the essential averments of a charge of murder. (The State v. McGaffin, 36 Kan. 315, 13 Pac. 560.)
Many exceptions were taken to rulings upon testimony, only a few of which require consideration and comment. The defendant sought to prove the provocation for the intense feeling and passion which possessed . him when the killing was done, and was permitted to show the betrayal of the daughter and a part of what was said at the conference which occurred between Foley and the defendant and wife soon after the relations between Foley and the daughter had come to the attention of the defendant. What was said between Foley and the defendant that would stir the feelings and rouse the passions of defendant was received without objection, but when the conversation on the same subject between Foley and defendant’s wife, in presence of defendant, was offered, a general objection was made, which the court sustained. This ruling was erroneous. All three participated in the interview, and what was said pertinent to the subject between Mrs. Kirby and Foley was just as competent as the conversation between Foley and the defendant. Whether this error alone is so prejudicial as to require a reversal it is not necessary to determine.
Testimony was given of vague statements said to have been made by defendant before the homicide, in-bleating a purpose to kill or get rid of Foley. In his testimony the defendant stated' that he did say to a witness that one boarder had gone, and “that there would be some more in the same fix in a few days, or by to-morrow, or something like that.” .He was then asked, “What did you mean by that ?” but the court, on general objections, excluded the answer, or any explanation of what was in his mind, or to whom he referred in his statement. It was important testimony, and probably made an impression upon the minds of the jurors. The statements were offered by the state, and were interpreted as hints at violence and threats against Foley, who was killed the next day. The defendant admitted a part of the statements claimed to have been made by Mm, and desired to explain Ms intention or the sense in which the words were used. He claimed the explanation he would have made was that one- of the boarders had failed to pay his board and had been turned away, and that he referred to another boarder who was also in default and would also be turned away. The statements used were open to more than one interpretation, and the defendant, who was on trial for his life, was certainly entitled to tell the jury what his intention was.
In Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199, a case involving the good faith of the transfer of property, it was held that the party might testify directly as to his intention and the state of' his mind with respect to the transfer. In deciding the case it was said:
“If the condition of a man’s mind with reference to what he thinks, feels, believes, intends and his motives is always a fact, and it is a fact which is often required to be ascertained both in civil and criminal cases, and only one person in the world has any actual knowledge concerning that fact, and that person is the one whose condition of mind is in question, and where he is a competent witness to prove such condition, he may testify to the same directly.” (See, also, Bice v. Rogers, 52 Kan. 209, 34 Pac. 796.)
The testimony against the defendant of the implied threats was admitted to show a criminal intent, and, since intent may be thus proved indirectly, no reason is seen why it may not be proved directly; and his testimony of the meaning and intent of the language used, instead of being a mere inference, is based on consciousness and actual knowledge. See, also, Commonwealth v. Woodward, 102 Mass. 155; Seymour against Wilson, 14 N. Y. 567; Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N. E. 1039, 28 L. R. A. 753; Abbott, Trial Ev. 780; Whart. Ev. § 508; 14 Alb. L. J. 387.
The defendant’s wife was called as a witness in his behalf, and on cross-examination the court, oyer objection and protest, permitted the state to ask a number of questions as to other and distinct offenses committed bv the defendant, which would tend to blacken and degrade him in the eyes of the jury. She was interrogated as to whether he had not maintained a “joint” in the hotel, harbored lewd women there, and whether he had not used and permitted the use of rooms in his hotel for gambling purposes. To most of the inquiries she gaye a negative answer, but the state was thereby allowed to insinuate charges and offenses other than the one alleged in the information, and the questions implied an assertion of belief on the part of the attorneys for the state that the defendant was guilty of the other offenses. In respect to keeping gambling-rooms, the witness said that she did not know that the defendant did carry on or allow gambling in the hotel, but, on persistent questioning, she was compelled to admit that she had seen men playing cards in the rooms of the hotel, but did not know that they were gambling. The charge of gambling imputed by this question is a felony, and it has no connection whatever with the offense of murder, which was in issue, and there is no justification or excuse for the allowance of these questions. To a series of questions the witness was required to answer whether the defendant had not permitted lewd women to come and stay at the hotel for days at a time, and whether at times within two years prior to the homicide the defendant had not required her to carry refreshments to rooms occupied by lewd women. To these ques tions her answers, were substantially in the negative form, but they were qualified by stating that it was not within her knowledge and not within her memory. Another question admitted over objection was whether her husband had not for a long time prior to December 1,1899, run a “joint” in room No. 6 of that building. She answered the question by saying that people said that he did ; that she did not see anything sold; and when inquiry was made as to whether she did not know it, her answer was : “I do not suppose I knew it.” The court struck out her answer that people said he ran a “joint,” and allowed the remainder to stand.
These offenses and misconduct, which were made the subject of inquiry, were not linked in any way with -the offense charged in the information. The general rule is that the charge upon which a person is being tried cannot be supported by proof that he committted other offenses, even of a similar nature. Evidence which legitimately tends to support the charge or show the intent with which it is committed is not to be excluded on the ground that it will prove other offenses, but the other offenses inquired about in this case do not fall within any of the exceptions to the general rule. Presumably the defendant came to the trial prepared to answer the charge of murder ; but since no other charge was made against him, it is not to be expected that he was prepared to answer the offenses of the unlawful sale of liquor, the keeping of a gambling establishment or a house of prostitution. The allowance of the questions, which were persistently put with the sanction of the court, together with the halting and qualified answers of the witness, was a manifest injustice to the defendant, and must have created a prejudice in the minds of the jury against his general character.
A number of witnesses were called by the state to testify to the character of Clara Kirby for chastity and virtue. The form of the question put was whether the witnesses “knew her reputation for chastity and" virtue prior to December 21, 1899,” and in this way evidence of an impeaching character was elicited. The questions, if relevant and competent for any purpose, were objectionable in form. When character is in issue, the law limits the inquiry to general character, and not to specific acts ; not the estimate of a few, nor the opinion of a part of the community; but it can be shown only by common report, general reputation and opinion generally entertained of the party in the community where he lives. The questions asked did not call for general reputation ; but is the character or reputation of a person other than the defendant a proper subject of inquiry?
Prosecutions are very rare where evidence of the general character of any one besides the accused is admissible. Of course the character of a witness in the case is open to attack, but there the inquiry is limited to the general character of the witness for truth and veracity. (The State v. Eberline, 47 Kan. 155, 27 Pac. 839.) While Clara Kirby was a witness in the case, the challenged testimony was not admitted to impeach her credibility, and the jury were instructed that it was not competent for that purpose. In trials for seduction and rape, the character of the prosecutrix: for chastity is involved, and proof like that in question may be received. So, also, is character directly in issue in libel cases; and the character of the deceased may be the subject of inquiry in some cases of homicide, where the claim is that the defendant acted in self-defense. It is easy to understand why the law permits an examination into character in these as well as in a few other cases that might be mentioned ; but in none of them is the issue of character so remote or a showing by testimony of reputation so questionable as in the case before us. The moral character of the defendant could not be attacked by the state, unless he offered evidence of his good character; and yet here the state was allowed to produce evidence of the moral character of an outside party against the defendant, when the issue was his guilt or innocence of a charge of murder. The state contends that it was competent to trace knowledge of his daughter’s unchastity to him because of his claim that the knowledge of the seduction excited his passions and drove him to desperation and to kill the seducer; and that if such knowledge were traced to him months before the homicide, the claim that his mind was unhinged by the story of the seduction would be contradicted and overthrown. If it be assumed that he had heard reports derogatory of his daughter’s character, who can say that information from herself of her seduction by a guest of the house, and of her pregnancy, would not arouse his passions or affect his mind? Again, who can say that reports of the unchastity of a daughter would probably come to a father, and that, if any one was so bold as to repeat to him rumors impeaching her virtue, he would believe them? Our attention is called to the general rule that where knowledge of an ultimate fact is an issue and provable, evidence that it is a matter of general reputation is competent as tending to trace notice to the party sought to be charged with notice, but such proof is never admissible unless the person sought to be charged with notice stands in such rela tion or is so. situated, as to render it probable that he would be informed of what was generally known.
7. Improbability ofgossip’s reaching Counsel for defendant well say that the father would be the last one to hear reports of the lewdness of á daughter. All know that any ordinary person would not only hesitate to believe such rumors, but would also shrink from relating them to the father or speaking of them in his presence. The cases in which people would carry gossip as to the unchastity of wife, daughter or sister to the male members of a family would certainly be exceptional, and would never occur except under extraordinary circumstances. Instead, then, of its being probable that the father would be informed of these reports, we think it Contrary to all reasonable expectation, and that they might be heard by almost every one in the community and yet the father be in complete ignorance of them. Again, if a bad general reputation of the daughter was shown to exist, and that notice of the same had been brought to the father, his belief in the reports must still be assumed in order to say that his mind was not affected when he heard from his daughter’s lips the story of her seduction by Foley. How can any matter of fact be assumed against a defendant charged with murder where the law requires that every just presumption of fact as well as every reasonable doubt must be resolved in his favor. As we have seen, it was unlikely that he would hear the reports, and, without other and better testimony, it is contrary to reason to hold that he would believe them; and if he did not give them credence he was necessarily in the same situation and would be affected by the story of the seduction the same as though he had not heard the reports. It should be said that, aside from the opinions of the witnesses as to reputation, there is no testimony showing that the defendant ever heard a whisper or entertained a suspicion against his daughter’s character until he heard the story of her seduction by Foley, Our conclusion is that the testimony, even if it had been in proper form, was inadmissible as against the defendant. (Tucker v. Constable, 16 Ore. 407, 19 Pac. 13; Carter v. Carter, 62 Ill. 439; 5 A. & E. Encycl. of L., 2d ed., 871; Gillett, Ind. & Col. Ev. § 296.)
Other objections to the exclusion of testimony are taken, but they are rendered immaterial by the fact that subsequently the court admitted the testimony in answer to other questions.
Some other exceptions are taken, but they do not appear to us to be sufficiently material to require particular attention or comment; but, for the errors pointed out, the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Shawnee county on January 28,1888, by George Fisher against the Chicago, Kansas & Western Railroad Company to recover damages for an injury received while he was attempting to cross one of the railroad tracks of the Atchison, Topeka & Santa Fé Railroad Company in the city of Kinsley. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, assessing the plaintiff’s damages at $3,000; and also, in response to a large number of special interrogatories submitted to them, made numerous special findiugs. The court rendered judgment in accordance with the general verdict; and the defendant, as plaintiff in error, afterward brought the case to this court for review. After the case was brought to this court, the plaintiff died, and the action was revived in the name of his administrator, A. C. Fisher.
It appears that the injury of which the plaintiff below complained occurred about 1 or 2 o’clock in the afternoon of August 19, 1886. At that time the city of Kinsley had a population of about 1,500, and the Atchison, Topeka & Santa Fé railroad was located and operated through the city, run ning in a northeasterly and southwesterly direction. We shall hereafter speak of it, however, as though it ran east and west. Among the streets of the city was Colony avenue, running north and south. Near this avenue, and on the west side thereof, was located the depot or station of the Atchison, Topeka & Santa Fé Railroad Company. The east end of this depot or station was close to the avenue. Three of the railroad tracks supplying this depot or station crossed this avenue, and for two years prior to the injury from 10 to 20 trains had passed over these tracks and .across this avenue daily. About 300 feet west of this avenue, and on one or more of these tracks, was a coal chute and also a water tank, where the railroad trains procured coal and water.
For 9 or 10 years prior to the injury, the plaintiff had resided in Kinsley, and for two years prior thereto he had crossed these railroad tracks on Colony avenue, and where the injury occurred, about- four times a day. He was well acquainted with all the streets, sidewalks, railroad tracks, the station with its platform, the coal chute, the water tank, and all other things at or near where the injury occurred; and was well acquainted with the manner in which the railroad trains in that vicinity were operated. He resided on the west side of Colony avenue and north of the railroad tracks, but did business on the east side of the avenue and south of the railroad tracks, and he crossed the avenue and the railroad tracks, where the injury occurred, whenever he passed from one place to the other. The day on which the injury occurred was a very windy day — the wind blowing from the south — and at times the atmosphere in some places would be filled with dust. These times of dust, however, were only of short duration, never exceeding four or five minutes. Generally, the atmosphere was comparatively clear. The plaintiff himself testified that some of these gusts of dust would continue for four or five minutes, and some of them not so long. On the day of the injury, and about 1:30 o’clock in the afternoon, the plaintiff was traveling on foot southward, on the west side of Colony avenue, and, some time before reaching the place where the accident occurred, he saw a train of cars belonging to the defendant railroad company about 300 feet away, and at the coal chute or water tank. The hind end of the train was toward him and toward the east. He looked in the other direction, that is, eastwardly, along the railroad tracks (and he could see in that direction at least two or three miles), and no train was in sight; so he had. nothing to fear from that direction; but he had fears that the train at the coal chute or water tank might back up to the crossing where he expected to cross, and he testified that he continued to look until he got within 10 or 12 feet of the railroad tracks where the injury occurred, and to listen all the time. At that time there were a large number of people on the depot platform, variously estimated at from 10 to 30, and there were a number of other people at the time in that vicinity who witnessed the various occurrences connected with the accident. While the plaintiff was moving toward the crossing, the railroad train was also moving backward toward the-same place. He was moving at the rate of from three to four miles an hour, while the railroad train was moving at the rate of from five to six miles an hour.
There were no gates, nor was there any flagman or watchman at the crossing, and it does not appear that anything of the kind was ever required by the city or adopted or put in practice by the railroad companies. Whether there was a brakeman on the rear platform of the car nearest the crossing is not absolutely clear. He was probably there, but we shall have more to say with respect to this matter hereafter. The jury made no special finding upon the subject. The engine whistle was not at any time sounded, and it does not appear that anything of the kind was ever required or put in practice at that place, but the reverse. The engine bell, however, was rung; but whether it was rung all the way from the coal chute or water tank to the place where the injury occurred does not appear. From the testimony of some of the witnesses it would seem that it was, and from the testimony of others it would seem that it was not. The jury found specially, that the bell was rung as the train commenced to move back from the coal chute, but they did not find whether it was rung all the way or not. The engine and train in moving made considerable noise, sufficient to be heard much further away from the train than was the plaintiff, as several witnesses testified; but the plaintiff, as he testified, did not see the train moving, nor hear it, nor hear the bell ring. He could not have been looking or listening. When plaintiff arrived within a few feet from the crossing a gust of wind filled the air with dust, which to some extent obscured his vision. He did not attempt to look after he arrived within 10 or 12 feet from the crossing, as he testified, but which was in fact about 17J- feet from the‘crossing, as was clearly shown by the testimony of other witnesses, to see whether any train was coming or not. In fact, he pulled his hat down “some,” as he admitted, over his eyes, and, probably, in that condition he could not have seen it. If he had looked, however, he could have seen through the dust, as he admitted, from 30 to 40 feet. When he was 17-J feet from the place where the injury occurred, the train was from 25 to 30 feet from the same place, and when he was 10 or 12 feet from that place the train was within 15 or 20 feet of such place, and he could have seen the train at any of these distances if he had looked. He testified that he listened all the time. He did not stop and wait for the dust to pass away, or even slacken his movement, but continued to move forward in a fast walk, and, just as he made the first step to cross the railroad tracks, the hind car of the aforesaid train, as it was moving backward, struck him and Ije was thrown down, and was so injured that it became necessary to amputate his left leg below the knee, and his leg was so amputated; and this is the injury complained of.
Many persons saw the train and the plaintiff moving toward the same point, and saw the collision. One man on the platform hallooed to him, but he did not pay any attention to it; also the brakeman on the rear platform of the car that struck him hallooed to him, but he paid no attention to it. There is some dispute as to whether there was a brakeman on the rear platform or hind end of this car or not. Several witnesses testified that they did not see him; but the brakeman testified that he was there, and the conductor testified that he was there, and some of the witnesses who were on the platform of the depot or station also testified that he was there. The jury did not make any special finding as to whether he was there or not.
The following are the special findings of the jury:
“1. Is it not a fact that prior to the plaintiff’s injury, and while he was on the way to the crossing where he was injured, he saw the train which injured him, with the engine, standing at the coal chute or water tank? Ans. Yes.
“ 2. Is it not a fact that the train referred to in the last question, when it was seen by the plaintiff, was about 300 feet distant from the plaintiff? A. Yes, about that distance.
“ 3. Did plaintiff, at the time of seeing the train referred to in the first question, have any difficulty in seeing it and cars and each of them composing it, at a distance of 300 feet, when he looked at the same? A. No.
“4. Is it not a fact that, when plaintiff looked at the train at the time and place referred to in the last question, the train was almost directly south from him? A. Yes.
“5. Is it not a fact that, at the time the plaintiff looked at the train referred to in the preceding questions, the wind was blowing almost in a direct line from that direction to plaintiff? A. Yes.
“6. Did the dust in the air at the time plaintiff looked at the train interfere with or prevent plaintiff from distinctly seeing such train ? A. It did not.
“ 7. Is it not a fact that, immediately prior to the plaintiff’s crossing the north side-track, on his way to the point where'he was struck, he was able to see, and saw, the main line of the A. T. & S. F. Rid. Co. east from the station-house for a distance of about two to three miles? A. Yes.
“8. If the jury answer the last question in the negative, they may state about how far to the east he could see on the main track of the A. T. & S. F. Rid. Co. A. -
“ 9. Is in not a fact that, immediately prior to plaintiff’s crossing the north side-track, he knew and discovered that there was no engine or train upon the main line east of him for a distance of at least two or three miles, and that he knew there was no danger to be apprehended from that direction? A. Yes.
“10. Did the condition of the atmosphere as to sand or dust prevent the plaintiff from seeing to the east of the station-house from two to three miles along the main line of the A. T. & S. F. Rid; Co. immediately prior to his crossing the north side-track? A. No.
“11. Is it not a fact that the plaintiff was perfectly familiar with the crossing at which he was hurt? A. Yes.
“12. Is it not a fact that, for two years prior to his injury, during the business days, he had crossed that crossing at least four times a day? A. Yes.
“13. Is it not a fact that, for two years prior to plaintiff’s injury, the station and the track in front of it could be seen from the front end of the room in which plaintiff was engaged in working as a clerk at the time of his injury? A. Yes.
“ 14. Is it not a fact that, at the time of plaintiff’s injury, and for two years prior thereto, this station had been a station at which most of the trains took water and coal that passed through Kinsley on the A. T. & S. F. Rid.? A. Yes. '
“15. Is it not a fact that from 10 to 20 trains passed through Kinsley every day for two years prior to the accident? A. Yes..
“ 16. Is it not a fact that, for two years prior to plaintiff’s injury, he was perfectly familiar with this crossing, and had knowledge of the number of trains passing over it every day, and the fact that Kinsley was a coaling and watering station? A. Yes.
“17. Is it not a fact that plaintiff, immediately prior to his injury, knew that this crossing was a dangerous crossing to make from the direction in which he was coming, as to trains moving from the west? A. Yes.
“18. Is it not a fact that, from the time plaintiff saw the train which injured him, with its engine, standing at the coal chute or water tank, that he had that train in his mind and the possible danger to be apprehended from it in making the ■crossing? A. Yes.
“ 19. Is it not a fact that the1 plaintiff, from the time he •saw the train which injured him standing by the coal chute or water tank, apprehended in his own mind that there might be danger from that train backing up, and determined in his own mind to guard against danger from it to the best of his ability? A. Yes.
“ 20. Is it not a fact that the plaintiff, from the time he saw the train standing at the coal chute or water tank, determined to use every precaution to prevent injury to himself from such train by reason of its backing over the crossing which he was intending to make ? A. Yes.
“21. Was- the plaintiff’s mind, from the time he saw the train standing at the coal chute or water tank, occupied or concerned with anything else than the idea of avoiding injury or danger from such train backing over the crossing at the time he was about to attempt to make the same? A. Yes; wind, and blowing sand and dust.
“22. Is it not a fact that, from the time plaintiff saw the train in question, he knew and realized that such train would move in one direction or the other as soon as it had finished taking coal or water, or both? A. Yes.
“23. Is it not a fact that, at the time plaintiff saw the train standing at the coal chute or water tank, he knew and realized that when it did move it might move back over the crossing which he was attempting to make? A. Yes.
“24. From the time plaintiff saw the train in question at the water tank or coal chute, what, if anything, distracted his attention and mind from the thought of that train, and its possible danger to him in backing over that crossing? A. Wind and sand blowing, as stated in answer to No. 21.
“ 25. How far from the north rail of the main line of the Santa Fé R. R. Co. was it, at the time of the plaintiff’s injury, to the junction of the sidewalk which left the sidewalk on the west side of Colony avenue between the north side-track and the main track and crossed the main track at right angles? A. 17-|- feet,'measuring in center of short walk.
“26. Is it not a fact that, just prior to plaintiff’s injury, after he crossed the north side-track, that he proceeded along the main sidewalk on the west side of Colony avenue, between the north side-track and the main track, to a point where another sidewalk branches from such sidewalk, and that he took the sidewalk so branching from this west sidewalk and followed it to the railroad track and to a point where he was struck by the train? A. Yes.
“ 27. Is it not a fact that the last time the plaintiff looked to the west, for the purpose of seeing whether the train which he previously saw standing at the water tank or coal chute was going or not, was at the point where the sidewalk crossing the main track at right angles left the sidewalk on the west side of Colony avenue? A. Yes, about that point.
“28. If the jury answer the last question in the negative, they may state how far the plaintiff was from the north rail of the main track of the A. T. & S. F. Eld. Co. at the time he looked the last time to the west to see if the train which he formerly had seen was approaching or not. A. -.
“ 29. When the plaintiff last looked to the west to see if the train which he had formerly seen was approaching, how far to the west along the main track of the A. T. & S. F. Eld. Co. could he see so as to distinguish ears? A. 30 to 40 feet.
“30. Is it not a fact that, in the absence of any dust or sand in the atmosphere, plaintiff could, in the day-time, from the point where he last looked to the west, have seen along the main track of the A. T. & S. F. Eld. Co. to a point beyond the coal chute or water tank where he had previously seen this train standing? A. Yes.
“31. What, if anything, prevented the plaintiff from seeing from the point where he last looked to the west along the main line of the A. T. & S. F. Eld. Co. as far as the coal •chute or water tank? A. People on the platform and the dust.
“32. If, in answer to the last question, the jury state that the people on the platform obscured plaintiff’s view, they may state what, if anything, would have prevented plaintiff’ from stepping up onto the platform, and there obtained a clear look to the west so far as such people on the platform were concerned; stating fully. A. Nothing excepting the distance being about 20 feet, and out of a direct line to his place of business.
“33. Would the station building, or any other building, or the people on the platform, have prevented the plaintiff from seeing the train which injured him, if he had looked when he was six feet from the track, in its direction? A. No.
“ 34. When was plaintiff first enveloped in any cloud of dust or sand, or both, after he crossed the north side-track, with reference to the time he last looked to the west; stating whether it was before or after he so looked? A. After.
“ 35. Was any cloud of dust or sand which enveloped plaintiff just prior to his reaching the point where he was struck caused by a sudden gust of wind which struck the plaintiff after he had crossed the north side-track? A. Yes.
“36. If the jury answer the last question in the affirmative, is it not a fact that plaintiff knew that if he stopped and waited that such dust and sand would pass away in a short time? A. Yes.
“37. How far west was the plaintiff able to see along the main line of the A. T. & S. F. Rid. Co., when he last looked in that direction? A. 30 to 40 feet.
“38. State fully what, if anything, prevented him from seeing up as far as the point where he had previously seen the train standing. A. The people on platform, and dust.
“39. Is it not a fact that, after plaintiff' looked the last time, he pulled his hat down over his eyes and started forward in a hurry to reach his place of business and get out of the storm? A. No.
“40. At the point where the plaintiff looked the last time towards the west, what, if anything, would have prevented him from seeing the train which injured him, if he had stopped and waited until the gust of wind which bore the dust and sand which enveloped him had passed away? A» People on the platform.
“41. When the plaintiff looked to the west the last time, did he know or realize, if such be the fact, that he could not see to exceed 40 feet on account of the condition of the atmosphere produced by the sudden gust of wind? A. Yes.
“ 42. Is it not a fact that, from the point referred to in the last question, plaintiff went on attempting to cross the track, regardless of whether the train which injured him was moving in his direction or not? A. Went on, but not wholly regardless of the train.
“43. If the jury answer the last question in the negative, they may state fully what precaution the plaintiff took against the train which injured him, as he proceeded toward the track from the point where he last looked to the west. A. His sense of hearing.
“ 44. At the time the plaintiff was passing the end of the station building, was the wind blowing very hard or not? State fully. A. It was.
“45. If the jury answer the preceding question in the affirmative, they may state if it did not make a considerable noise blowing by the station building and the cars. A. We think it would.
“46. If the jury answer the last question in the affirmative, they may state if the wind did not make sufficient noi-e to prevent any person at the east end of the station from hearing the noise made by the running of an ordinary train at the rate of from 8 to 15 miles per hour, when such train would be coming from the west to the east end of the station- house. A. A direct answer would only be a mere conjecture. Still, in our opinion, a person,could hear it.
“47. What was the approximate length of the train which injured plaintiff? A. About 180 feet.
“48. About how far was the engine on this train from the plaintiff at the time it started backward? A. To the pilot of engine, about 340 feet.”
“50. Is it not a fact that the wind was blowing hard enough at and prior to the time when the plaintiff was struck to carry the sound of the ringing of the belj on the engine north from the railroad track at such a distance to the west of plaintiff as to materially, if not quite, prevent his hearing the same if it was rung? A. Would have a tendency to do so, and possibly did.
“51. Was plaintiff enveloped with dust or dirt by a sudden gust of wind at the point at which he last looked toward the west? A. No.
“ 52. Did any sudden gust of wind envelop the plaintiff with dust at any time prior to the time when he was within a step of the railroad track? A. Yes.
“ 53. Is it not a fact that, at the last time he looked to the west, his view was obstructed to some extent by the people standing on the platform of the station? A. Yes.
“ 55. If a watchman had been, or was, stationed on the rear end of the train in question, what was the greatest distance that such watchman could have seen the plaintiff, if he had kept a vigilant lookout prior to the train striking plaintiff’? A. 35 to 40 feet.
“56. What would have prevented plaintiff, if he had looked, from seeing the train at as great a distance as a watchman stationed on the rear end of the train could have seen plaintiff'? A. The disadvantage of wind and sand blowing in his face.
“ 57. When the plaintiff looked to the west the last time, is it not a fact that he saw as far along the track to the west as he could in a clear day? A. No.
“58. What, if any, obstruction did the dust make to plaintiff’s view to the west the last time he looked? A. Prevented him from seeing but 30 to 40 feet.
“59. Is it not a fact that the gust of wind which, it is alleged in plaintiff’s petition, suddenly enveloped plaintiff with dust, enveloped him with such dust just as he was about to step on the track, if at all? A. No.
“ 60. If the jury answer the last question in the negative, they may state if such gust enveloped the plaintiff prior to the time when he was within three feet of the track? A. Yes.
“61. Is it not a fact that persons from 10 to 40 or 50 feet from the approaching train heard the bell ringing, or the noise of the train as it approached the crossing? A. Yes.
“62. If you answer the last question in the negative, state how far such persons were who heard the bell ringing, or the noise made by the approaching train as it neared the crossing, and before it struck the plaintiff, and give as near as you can the positions of such persons. A. -.
“ 63. How far is it from the point where the short sidewalk branches off from the main sidewalk on the west side of Colony avenue, between the north side-track and the main track, to the north rail of said main track where the same is intersected by said short sidewalk? A. 17J feet.
“ 64. Was not the engine bell rung as the train commenced to move back from the coal chute? A. Yes.
“65. At what rate of speed was plaintiff traveling when he was struck? A. From three to four miles per hour.
“ 66. At what rate of speed was the train which struck the plaintiff traveling when it struck plaintiff? A. Five to six miles per hour.
“67. How far to the west was plaintiff able to see, the last time he looked to the west prior to being struck? A. 30 to 40 feet.”
It is difficult to understand upon what theory the plaintiff should recover in this case. From the evidence and the special findings of the jury, it does not appear that the railroad company, by any act or omission on its part, did or omitted anything in contravention of law or the city ordinances, or good morals or common prudence; or that it acted in any manner different from what had been the general custom of the railroad companies at that place for all the years previous to that time; while the plaintiff voluntarily encountered a known danger, admittedly without exercising his eye-sight for a period of time sufficient to enable him to walk 10 or 12 feet, in fact 17J feet, and brought himself into collision with a moving railroad car, which he admitted he could have seen for 30 or 40 feet through the dust, and which others saw and heard at a much greater distance. If the plaintiff had stopped when he arrived within five or six feet of the railroad tracks anc^ waited until the dust had blown away, he could have seen westwardly in the direction from ^jg tra¡a was coming for many hundred feet along the railroad tracks; but he did not stop nor look, but chose rather to encounter the danger blindly. The general verdict of the jury must have been founded upon some mistake. It is possible, and indeed probable, that the jury were misled by the instructions of the court. The court below instructed the jury, among other things, that the law requires a person, in traveling over a street intersected by a railroad, “to use such care as an ordinary person would use at such a place,” and that “in the exercise of care and prudence he has the right to decide for himself, the means of which judgment is found by the best exercise of his judgment, and though his judgment in the premises may be wrong, yet if he used the care that men under like circumstances exercise, negligence cannot be imputed to him for such mistake of judgment.” The court also instructed the jury as follows:
“A railroad company, in the operation of its trains over a public traveled street in a city, is required to exercise a high degree of diligence and care. It is required to give sufficient and timely warning, and take such precautions as shall be efficient at the time and place, under the circumstances. The law does not require any precise warning or precaution to be used by the railroad company. The railroad company has the liberty of choice, but the law does require whatever warnings or precautions are taken shall he sufficient or effective; and what these warnings or precautions should be it is for the jury in the light of the evidence to say. You may take into consideration whether the train is backed upon the crossing with increased daugerousness of propulsion; the distance the train had to go to reach the street or crossing; whether or not timely and efficient warning was given, considering the elements, the wind, the flying sand or dust; whether there were safer or surer signals of its approach to the crossing within its command and failed to be used; the speed of the train; the obscurity of the track from buildings or clouds; the failure to have a flagman at the crossing to warn travelers; and if you find from the evidence that there was no brakeman on the rear platform or end of the passenger coach, then you may consider this fact, and all the facts and circumstances proved, to determine whether or not. proper care and diligence were used in moving the train over the crossings of the street. ... I further instruct you that negligence is want of diligence; common or ordinary negligence is the want of that degree of care which an ordinarily prudent man would ordinarily exercise under like circumstances; slight negligence is merely the failure to exercise great or extraordinary care; gross negligence is the want of slight diligence. The degree of care and diligence necessary and proper in each case varies according to the surrounding circumstances in each particular case, and the jury from, all the circumstances must decide what degree of diligence and care is necessary and proper under the circumstances of the case proved: . . . The plaintiff could not push ou through a temporary sand or wind storm and take the risk of misfortune, unless you find from all the facts and circumstances proven that a man of ordinary care and caution under like circumstances would be justified in doing as the plaintiff did in this case. . . . What might be ordinary care for a traveler or employé. of a railroad under favorable conditions, might not be ordinary care for either traveler or employé of a railroad under different conditions; and where a railroad [train] backs down across an avenue where people are and have the right to travel, a higher degree of care should be exercised by the railroad employés.”
The italics in the foregoing instructions are ours. Before proceeding further, we might say that each party in cases like this, the plaintiff or the defendant, is required to exercise that degree of care and diligence which an ordinarily prudent person would exercise under like circumstances, and is not required to exercise any greater or higher degree of care or diligence. This degree of care and diligence is usually denominated “ordinary care or diligence;” while a want of this degree of care and diligence is usually denominated “ordinary negligence.” The foregoing instructions start out with saying that the care to be exercised by the plaintiff in a case like this is that of an “ordinary person,” and not that of an ordinarily prudent person under like circumstances, and that in the exercise ofj such care such person “has the right to decide for himself” as to the means; and if he exercises “tlie care that men under like circumstances exercise, negligence cannot be imputed to him, although he might be mistaken.” As opposed to this, see Lierman v. C. M. & St. P. Rly. Co. (Wis.), 52 N. W. Rep. 91. It will also be noticed that the court says “ordinary persons” and “men,” and not “ordinarily prudent persons” or “ordinarily prudent men.” In Texas, it has been held that the use of the words “ordinary man,” instead of the words “ordinarily prudent person,” is prejudicially erroneous. (A. & N. W. Rld. Co. v. Beatty, 73 Tex. 592, 596; same case, 11 S. W. Rep. 858, 859, 860.)
As to the railroad company, the court below instructed the jury that it must exercise “a high degree of diligence and care,” and “give sufficient and timely warning, and take such precautions as shall be efficient;” that “the law does require, whatever warnings or precautions are taken [by the railroad company] shall be sufficient or effective,” and that the jury may take into consideration “whether or not timely and efficient warning was given,” and “whether there were safer and surer signals of its approach to the crossing within its command” or not. These instructions make the railroad company an insurer against collision, whatever the plaintiff might do. The degree of diligence , . . , , . . , exercised by it must, under the instructions, be “ high,” “ sufficient,” “ efficient,” and “ effective.” Timely and “efficient” warning must have been given, and it is a matter for the jury to consider whether there might not have been “safer” and “surer” signals. .This is also á virtual instruction to the jury to find for the plaintiff, for the reason that in fact “sufficient,” “efficient” or “effective” signals or warnings were not given to prevent the injury to the plaintiff, for the plaintiff was in fact injured. The defendant did not in fact prevent it. And there might have been “safer” and “surer” signals or warnings. An employé of the railroad company, for instance, might have walked ahead of the moving train and have given notice to all persons who were likely to attempt to pass in front of it, and have prevented such persons by force, if necessary, from encountering the danger. The court also instructs the jury with respect to the degrees of care and diligence on the one side, and the want of care or diligence on the other side, and then states that “the jury from all the circumstances must decide what degree of diligence and care is necessary and proper,” leaving it to the jury to say that the plaintiff might recover, although he was guilty of ordinary negligence, but not guilty of the highest possible degree of negligence, and that the defendant would be liable although it might not be guilty of ordinary negligence, but only of the slightest possible degree of negligence. (This is all wrong and against all authority.
Both parties must, in all cases like the present, exercise ordinary care and diligence, and neither is required to exercise any greater or higher degree of care or diligence. Of course, whether the performance or omission of any particular act or acts constitutes ordinary care and diligence, or not, depends upon all the numerous and varied surrounding circumstances, including the relations existing between the parties, and the duty or duties that one may owe to the other; but the degree of care or diligence that each must exercise as toward the other never varies. It is always ordinary care and diligence, and neither the court nor the jury can vary it. The court also says that the plaintiff would not be justified in passing through “ a temporary sand or wind storm ” and taking the risk of misfortune “unless” “a man of ordinary care and caution under like circumstances would be justified in doing as the plaintiff did; ” and while the court seems to recognize the general principle that ordinary care is the care which a railroad employé should generally exercise, yet the court says that, under the circumstances of this case, “a higher degree of care should be exercised by the railroad employés.” As we have before stated, neither the railroad company, including its employés, nor the plaintiff, is required in cases like this to exercise any degree of care higher or greater than ordinary care. Among the various cases which might be cited tend ing to support the view that the plaintiff, under the facts and circumstances of this case, should not recover, see the following: U. P. Rly. Co. v. Adams, 33 Kas. 427; A. T. & S. F. Rld. Co. v. Townsend, 39 id. 115; McCrory v. C. M. & St. P. Rly. Co., 31 Fed. Rep. 531; Heaney v. L. I. Rld. Co. (N. Y.), 19 N. E. Rep. 422; Scott v. Penn. Rld. Co. (N. Y.), 29 N. E. Rep. 289; Debbins v. O. C. Rld. Co (Mass.), 47 Am. & Eng. Rld. Cases, 531; Fletcher v. Fitchburg Rld. Co. (Mass.), 21 N. E. Rep. 302; Butterfield v. Western Rld. Co. (92 Mass.), 10 Allen, 532; Allerton v. B. & M. Rld. Co., 34 Am. & Eng. Rld. Cases, 563; Hauser v. Central Rld. Co. (Pa.), 23 Atl. Rep. 766; Blight v. C. & A. Rld. Co. (Pa.), 21 Atl. Rep. 995; Flemming v. W. P. Rld. Co., 49 Cal. 253; Marty v. C. St. P. M. & O. Rly. Co. (Minn.), 35 N. W. Rep. 670.
We think the judgment of the court below must be reversed-In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and if dust should temporarily obscure his view, to wait until the dust shall pass away before he attempts to cross.
The judgment of the court below will be reversed, and the cause remanded, with the order that judgment be rendered upon the special findings of the jury in favor of the defendant and against*the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Wyandotte county on May 11, 1889, by Robert Garrett and D. J. Griest against Thomas B. Bowling, sheriff, and the Badger Lumber Company, to perpetually enjoin the defendants from selling certain real estate upon execution. The defendants demurred to the plaintiffs’ petition, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and the defendants electing to stand upon their demurrer, judgment was rendered in favor of the plaintiffs and against the defendants, in.accordance with the prayer of the plaintiffs’ petition; and the defendants, as plaintiffs in error, bring the .case to this court for review.
It appears that on June 5, 1888, the June term of the district court of Wyandotte county commenced. On that day, and prior thereto, Ered. M. Cox was the owner of the real estate now in controversy, which real estate was, however, subject to a mechanic’s lien held by the plaintiffs amounting to $2,380, and subject to three mortgage liens aggregating $4,346.52. At that time, and prior thereto, the plaintiffs were partners, doing business under the firm-name of the Wyandotte Lumber Company; and the defendant, the Badger’ Lumber Company, was and is a Missouri corporation. On that day, and prior thereto, the plaintiffs had an action pending in the district court of Wyandotte county against Cox to foreclose the aforesaid mechanic’s lien; and the Badger Lumber Company also had an action pending in said court against Cox for about $2,344. But there is no pretense that the Badger Lumber Company had any lien upon the property at that time. On June 7, 1888, the plaintiffs and Cox settled their affairs, and as a result of such settlement Cox, in consideration of the aforesaid mechanic’s lien and of the aforesaid mortgages which the plaintiffs agreed to pay, conveyed to them the property in controversy, which, as before stated, was subject to said mechanic’s lien and to the aforesaid mortgages. The deed of conveyance from Cox to the plaintiffs was recorded on the same day, and on the same day the plaintiffs dismissed their action against Cox to foreclose their mechanic’s lien and discharged the lien. Immediately afterward the plaintiffs took the possession of the property, and have had the possession ever since. Afterward the plaintiffs paid on said mortgages the amount of $2,127.50. Afterward, and on September 8, 1888, the defendant the Badger Lumber Company obtained a judgment in the district court in its aforesaid action against Cox for the sum of :$2,344; and this judgment, under the provisions of §419 of the civil code, would relate back to June 5, 1888, when that term of the court commenced, and be a lien upon all the real estate owned by Cox at that time and in the meantime aud subject to execution. On April 5, 1889, an execution was 'issued upon the judgment in favor of the Badger Lumber •Company and against Cox, and was placed in the hands of the defendant Thomas B. Bowling, who was then the sheriff of Wyandotte county; and afterward, under the authority of such execution, he levied upon the property now in controversy, and advertised the same to be sold on May 20, 1889; but prior to May 20, 1889, and on May 11, 1889, the plaintiffs, Garrett and Griest, commenced this present action against Bowling and the Badger Lumber Company to perpetually •enjoin and restrain them from making such sale; and the only question now to be determined is, whether such an action can be maintained or not.
Before proceeding further, we might state that the plaintiffs’ petition does not state that the action of the Badger Lumber Company against Cox was pending in the district court of Wyandotte county on June 5,1888, nor does it state that the June term of such court continued until September 8, 1888, when the Badger Lumber Company’s judgment against Cox was rendered; and if such action was not pending on June 5, 1888, or if the said judgment was not rendered at the June term of said court, then the Badger Lumber Company’s judgment could not be a lien upon any of Cox’s real estate which he conveyed on June 7,1888. (Civil Code, §419.) The district court may have been holding a special term and not the June term of said court on September 8, 1888; but as the parties seem by their briefs to agree that the Badger Lumber Company’s action against Cox was pending on June 5, 1888, and that its judgment was rendered at the June term of such court, on September 8, 1888, we have stated these matters as facts. Neither does the plaintiffs’ petition state in express terms that the Badger Lumber Company’s execution was levied upon the property in controversy, or that the same was appraised and advertised for sale without reference to the mechanic’s lien and the mortgage liens; but we think it does so state by fair implication and inference, and in all probability such were the facts, and the petition was evidently so construed by the court below and the parties, and we shall so construe it. If the land had been levied upon and then appraised and advertised for sale subject to the aforesaid mechanic’s lien and mortgage liens, the plaintiffs we think would not have had or now have any cause of action. (Civil Code, §448, as amended in 1887.) Eor, under the facts of the case and the aforesaid statutes, the Badger Lumber Company’s judgment was a lien upon the entire property, subject, however, to the aforesaid mechanic’s lien and mortgage liens.
We would also state, before proceeding further, that the plaintiffs’ mechanic’s-lien statement was filed on December 29, 1887, and if the lien had not been discharged except by lapse of time, it would have continued to be a valid and subsisting lien for at least one year after the statement was filed, and might have continued to be a valid and subsisting lien for any greater period of time, providing a promissory note, not to become due for such greater period of time, had been given for the amount. (Mechanic’s Lien Law of 1872, § 4; Mechanic’s Lien Law of 1889, § 5.) The Badger Lumber Company’s judgment was rendered before the expiration of the year, and the June term of the district court in 1888 must also have expired before the expiration of the year; for the September term of such court must necessarily have commenced, under the law, on the third Monday in September of that year. (Laws of 1887, ch. 147, § 12.)
Also, before proceeding further, we would state “ that the judgment lien cannot attach to a mere naked legal estate, when the entire equitable estate is vested in some third person. And in no case will the judgment lien attach to any interest greater than the judgment debtor himself possesses in the land.” (Harrison v. Andrews, 18 Kas. 535, 541, 542, and cases there cited. “The judgment lien attaches merely to the interest of the judgment debtor in the land, and to nothing more. (Civil Code, §419.) Every equity belonging to other persons will be protected by the courts. A judgment creditor is never considered as a bona fide purchaser, or even a purchaser at all.” (Harrison v. Andrews, supra. See, also, Holden v. Garrett, 23 Kas. 98.)
We would also state that the Badger Lumber Company was not a party to the action brought by the plaintiffs against Cox to foreclose their mechanic’s lien, and it had no right to be a party to such action; for it did not have, nor even claim to have, any lien upon the property in controversy until more than three months had elapsed after the plaintiff’s action had been dismissed, and until September 8, 1888. At the time when the plaintiffs’ foreclosure action was dismissed, they could not have foreclosed their mechanic’s lien as against the Badger Lumber Company, nor even have made such company a party to the foreclosure action. Hence, if the plaintiffs’ foreclosure action had been prosecuted to final judgment, and the judgment obtained before September 8, 1888, and the property sold thereunder to satisfy the mechanic’s lien, the purchaser would undoubtedly have obtained a good and valid title, free and clear from all claim of the Badger Lumber Company. Then why might not the plaintiffs, instead of prosecuting their action to final judgment at great cost and expense, settle their affairs with the defendant Cox, and take the property in payment of their mechanic’s lien, free and clear frbm the claim of the Badger Lumber Company? Such would seem to be equity. Or does the law favor litigation? Would the law be so inequitable as to require the holder of a lien of any kind upon real estate to prosecute his claim in the courts to final judgment at great inconvenience and cost, when he could compromise and settle his claim with his debtor to the satisfaction of both parties, and without inconvenience or costs? And would the law require this or require him to lose everything?
The only distinction between the two cases is this: If the plaintiffs’ action had been prosecuted to final judgment, only so much of the property would have been sold as would satisfy the liens upon it, and any surplus arising from the sale after satisfying the liens would have gone to Cox or to any of his creditors who might be entitled to it, while the compromise and settlement between the plaintiffs and Cox, and the conveyance by Cox to the plaintiffs, left the property subject to any judgment lien which might be procured against it at a term of the court then being held, and in an action pending at the commencement of the term. But the Badger Lumber Company’s judgment lien attached only to the rights and interests of Cox in and to the property, and to nothing more. It lefc the property subject to all the prior liens, the mechanic’s lien and the mortgage liens, and they have certainly not been extinguished for the benefit of the Badger Lumber Company. Certainly, by their extinguishment, so far as they have been extinguished, neither Cox nor the Badger Lumber Company has procured any enlargement of his or its rights or interests in or to the property in controversy. But these liens have not been extinguished so far as the rights of the plaiutiffs are concerned. Cox parted with all his rights and interests in and to the property before they were extinguished, and the Badger Lumber Company’s lien is upon no greater interest than Cox possessed. The Badger Lumber Company, however, makes a claim upon the following statement, found in the plaintiffs’ petition, to wit: “All of the real estate in said lien described, including that conveyed to plaintiffs, was released and discharged from the operation thereof.” This, of course, did not mean that the lien was discharged as to any one except as between the plaintiffs and Cox. Certainly, the plaintiffs did not intend to release the lien for the benefit of the Badger Lumber Company, but only for the benefit of Cox, and they procured a conveyance of the land from Cox to themselves in return. Their agreement to release the lien, amounting to $2,380, and their agreement to pay the mortgage debts, amounting to $4,346.52, and their actual payment of $2,127.50 thereof, were not intended for the benefit of, or as gifts to, the Badger Lumber Company, but were intended only for the benefit of Cox; and when they accepted the conveyance from Cox, which was a general warrantyjdeed for the real estate in controversy, they did not intend that this conveyance should inure to the benefit of the Badger Lumber Company, so that such company might obtain a judgment lien upon all the property conveyed, free and clear from the prior incumbrances of the mechanic’s lien and the mortgage liens, but they evidently intended only to protect and preserve their own interests. The whole tenor and effect of the petition shows that the plaintiffs did not intend to allege that their mechanic’s lien was released and discharged as between themselves and the Badger Lumber Company, but only as between themselves and Cox; and that they intended that all their rights and interests under the mechanic’s lien, and their settlement and compromise with Cox, their agreement to pay the mortgage debts, and the conveyance by Cox of the real estate in controversy to themselves, should preserve to them and to Cox all the rights and interests which such mechanic’s lien, settlement, compromise, agreement to pay the mortgage debts and conveyance would give or preserve to them. When t hey agreed to pay the mortgage debts, they became, according to all the authorities, as between themselves and.Cox, the principal d ebtors as to such mortgage debt, and Cox, who up to that time was the principal debtor, then became only a surety. (Stove Works v. Caswell, 48 Kas. 689; same case, 29 Pac. Rep. 1072.)
The Badger Lumber Company’s judgment was not rendered against Cox until more than three months after Cox had conveyed by a general warranty deed to the plaintiffs all his possible interests in the property in controversy; yet, under the statutes, (Civil Code, §419,) and by relation, the company by such judgment obtained a lien upon and a right to have sold upon execution whatever interest Cox may have had in such real estate at the time when he conveyed the same to the plaintiffs, but the company did not obtain a right to have any greater interest levied upon or appraised or advertised for sale or sold. The statute upon this subject reads as follows:
“If any of the lands and tenements of the debtor which may be liable shall be encumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold subject to such lien or liens, which shall be stated in the appraisement.” (Civil Code, §448, as amended in 1887.)
The sheriff, however, in this present case, at the instance of the Badger Lumber Company, has levied upon, has had appraised, has advertised for sale, and will sell if not prevented, a greater interest in the property than Cox had when he conveyed the property to the plaintiffs. Have the plaintiffs no remedy, or will injunction lie? As to subrogation, see the cases of Crippen v. Chappel, 35 Kas. 495, 499; Yaple v. Stephens, 36 id. 680. In the first of the above cases it is said:
“ Generally where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in place of the creditor, such person will be so substituted.”
See, also, with regard to mechanics’ liens and preventing a merger, the case of Construction Co. v. D. & St. P. Rld. Co., 46 Iowa, 406. In that case it is decided as follows:
“ When the holder of a lien acquires the legal title to the property upon which it rests with the intention that the lien should not be merged therein, the intention of the lien holder will prevail, as against junior incumbrancers.” (Syllabus.)
In the case of Richardson v. Hockenhull, 85 Ill. 124, it is decided as follows:
“A court of equity will keep an incumbrance alive or consider it extinguished, as will best serve the purposes of justice and the actual and just intention of the parties. The intention is the controlling consideration, and to arrive at this the court will look into all the circumstances of the case.
“If a mortgage is the eldest lien, and is for an amount equal to or exceeding the value of the mortgaged premises, aud the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity will not permit the mortgaged premises to be swept away from him by a junior judgment creditor, without payment of the mortgage, under the pretense that its lien has been lost by merger, but will enjoin the sale at law, or restrict the judgment creditor’s lien to the equity of redemption.” (Syllabus.)
In the case of Brooks v. Rice, 56 Cal. 428, it is decided as follows:
“A conveyance of mortgaged premises by a mortgagor to a mortgagee, made in satisfaction of the mortgage, and for the purpose of avoiding the expense of a foreclosure, held, where there was an intervening mortgage, not to operate a merger.” ( Syllabus.)
In the case of Hanlon v. Doherty, 109 Ind. 37, it is decided as follows:
“Even when the fee in the mortgaged property has been vested in the mortgagee by a conveyance from the mortgagor, and the mortgage has been released, it will still be upheld, whenever it is for the interest of the mortgagee, by reason of some intervening title or other cause, that it should not be regarded as merged.” (Syllabus.)
See, also, the following cases: Bruse v. Nelson, 35 Iowa, 157; Lowman v. Lowman, 118 Ill. 582; Watson v. Gardner, 119 id. 312; Rumpp v. Gerkens, 59 Cal. 496; Besser v. Hawthorne, 3 Ore. 130; Young v. Hill, 31 N. J. Eq. 429; Van Duyne v. Shann, 41 id. 311; Stantons v. Thompson, 49 N. H. 272.) It is our opinion that whenever the holder of a mechanic’s lien acquires the title to the property upon which the mechanic’s lien exists by a conveyance thereof from the owner, and not by a foreclosure in the _ _ . . courts, though that would be equally good, the mechanic’s lien will not be so merged in the legal title or be so extinguished or destroyed that a judgment subsequently rendered in favor of a third person against such owner, but rendered at a term of the court commenced before the conveyance was made, and in an action pending at the beginning of the term, would create a judgment lien prior or superior to the mechanic’s lien, or would authorize the property to be sold on an execution issued on such judgment, free and clear from such mechanic’s lien; and we would also think that, in such a case, where a part of the consideration for the conveyance by the owner to the holder of the mechanic’s lien was that the holder of the mechanic’s lien should pay r J and satisfy certain mortgages then existing upon the real estate, a portion of the amount of which mortgages he did pay, the property could not properly be sold on such execution free and clear from such mortgages. And we would also think that injunction would be the proper remedy by the holder of the mechanic’s lien against the judgment creditor to protect his interests as against such sale, and this upon the authority of the case of Plumb v. Bay, 18 Kas. 415. (See, also, Richardson v. Hockenhull, 85 Ill. 124; Young v. Hill, 31 N. J. Eq. 429.) And we also think that injunction is the proper remedy in the present case. For instance, if the plaintiffs had not commenced any action, but had permitted the property to be sold on the execution to an innocent purchaser, such innocent purchaser would undoubtedly have obtained the title to the entire property, freed from the mechanic’s lien and from all that the plaintiffs had paid on the mortgages; for no record could at that time have been found showing conclusively that the mechanic’s lien had any legal or valid existence for any amount, and no record could then have been found showing the amount paid on the mortgages by the plaintiffs. All these matters rested in evidence out side of records, and when the plaintiffs alleged them in their petition, the defendants could have controverted them by answer, if they had so chosen. If the defendants had desired to contest the validity or the amount of the mechanic’s lien, or of the mortgage liens, or any part thereof, or any supposed rights of the plaintiffs founded thereon, they could have done so and perhaps can still do so in this present action, by filing a proper answer and going to trial upon the merits of the action. As before stated, the Badger Lumber Company had the right, and still has the right, to have the property in controversy sold upon execution to satisfy its judgment, provided, however, that it is sold subject to all the rights of the plaintiffs founded upon their mechanic’s lien and the mortgage liens.
It follows from the foregoing views, that the decision of the court below in overruling the defendants’ demurrer to the plaintiffs’ petition was and is correct,and it will be affirmed; but we would think that the final judgment of the court below, after overruling the demurrer, was broader than it should have been, and it will be modified in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John Moseli was arrested and tried for a violation of the prohibitory liquor law. The information upon which he was tried contained four counts, but he was only convicted upon the first count, which charged him with an unlawful sale made July 1, 1891, without first taking out and having a permit to sell intoxicating liquors. The information was verified by the county attorney, who swore positively that the allegations contained therein were true. The county attorney elected to rely upon a sale made to one An derson, about which testimony was given. It appeared in the testimony that the county attorney had not actually witnessed the sale on which the conviction was had, and it is contended that the information is to be regarded as if it was verified on information and belief. The appellant therefore insists that there was no authority for the issuance of the warrant, nor for the arrest of the defendant. If we treat the information as one verified on information and belief, the objection of the defendant is not available. No motion was made to set aside the warrant nor to discharge the defendant from arrest. He voluntarily submitted himself to the jurisdiction of the court, and waived any irregularity there may have been in the verification. When arrested, he entered into a recognizance binding himself to appear at the next term of the court and answer the charge which had been preferred against him, and subsequently he pleaded to the charge without questioning the sufficiency of the verification or of the information as a basis for a warrant. A charge verified upon information and belief.is good for all purposes except for the issuance of a warrant to bring the defendant into court; but when he is arrested and voluntarily enters into a recognizance to appear at the following term, and pleads to the charge made against him, he waives all objections to the warrant and arrest. (The State v. Blackman, 32 Kas. 615; The State v. Clark, 34 id. 289; The State v. Bjorkland, 34 id. 377; The State v. Longton, 35 id. 375; City v. Keeffe, 40 id. 275; The State v. Ladenberger, 44 id. 261; The State v. Tuchman, 47 id. 726.) The verification, however, was in positive terms, and while the county attorney may not have had such knowledge as warranted him in making a positive declaration, yet the defendant suffered no prejudice on that account. He was Notified of the nature of the offense charged against him — that is, the information contained a definite charge that at a stated time and place he unlawfully sold intoxicating liquors; and this charge was verified as has been stated. It is true the names of the parties to whom the liquor was sold were not mentioned in the information; but this is not required. (The State v. Schweiter, 27 Kas. 500; City v. Webb, 44 id. 71.) The specific sale upon which a conviction was asked was particularly designated by the county attorney at the instance of the defendant, and hence he knows the transaction upon which the conviction rests, and there is no room to doubt that he was convicted of the offense charged against him, and that the evidence in the record is sufficient to sustain the conviction.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The motion in this caséis allowed to correct the mandate so as to conform to the opinion handed down in Insurance Co. v. Amick, 45 Kas. 738, to show that the judgment of the district court of Franklin county is affirmed, but that the receiver will not be permitted to take possession, disturb or control any of the property expressly exempted by the statute, if any such property is expressly exempted. Upon the hearing to correct the mandate, an attempt was made by the counsel of defendant in error to reopen the original case and to present additional matters tending to show that Mrs. Amick took a first-class policy, not a second-class one. It is too late now to contest this matter.. (Insurance Co. v. Amick, 45 Kas. 738.) Therefore it is unnecessary to comment upon the dissenting opinion, because all stated therein is sufficiently replied to in Insurance Co. v. Amieh, supra. If the matters concerning the property described in the policy had been fully presented at the original hearing, they would have been considered before the final opinion was handed down. .
Horton, C. J., and Johnston J., concurring.
Valentine, J.:
This case in different aspects has been before this court on several occasions prior to this time. (Insurance Co. v. Amick, 37 Kas. 73; same case, 14 Pac. Rep. 454; Insurance Co. v. Amick, 45 Kas. 74; same case, 25 Pac. Rep. 211; Insurance Co. v. Amick, and Naill v. Insurance Co., 45 Kas. 738; same case, 26 Pac. Rep. 944; Naill v. Insurance Co., 47 Kas. 223, 230; same case, 27 Pac. Rep. 854, 857.) The original judgment involved in this controversy was rendered by the district court of Franklin county on October 7, 1885, upon a regular full-paid policy issued by the insurance company to Lydia A. Amick. The judgment was a general judgment for money, absolute and unqualified in its terms, and the insurance policy was issued in and belonged to both the first-class and second-class business of the company, as prescribed by the laws of Kansas existing at that time with regard to mutual fire-insurance companies. (Laws of 1875? ch. 111, §1.) Seven-twentieths of the property insured belonged to the company’s first-class business, and thirteen-twentieths thereof belonged to its second-class business. The description of the property, as contained in the insurance policy, reads as follows:
“Thirteen hundred dollars — $1,300 — on her merchandise of every description, consisting of dry goods, notions, hats, caps, groceries, and other goods not more hazardous, while contained in the one-story frame building, with shingle roof, located Nos. 33 and 35, in block 9, Ottawa, Kas. $1,300 total insurance permitted. Attached to policy No. 320 of Kansas Farmers’ Insurance Co., at their Ottawa, Kas., agency. — Oria I. Cheyney, Agent.
“Seven hundred dollars — $700 — on household furniture, useful and ornamental, family wearing apparel, printed books and music, silver plate and plated ware, paintings, engravings and their frames, organ, sewing machine, fuel and family stores, while contained in the .one-story frame dwelling and additions, situated at Ottawa, Kas., on lots 33 and 35, in block 9, city of Ottawa, Kas. Total insurance, $700. Attached to policy No. 320 of Kansas Farmers’ Insurance Company. —Oria I. Cheyney, Agt.”
Property which may be insured as belonging to an insurance company’s first-class business is described in the foregoing statutes as follows:
“First, To include all dwelling-houses, barns, sheds, outbuildings and cribs, and their contents, farm implements, hay, grain, wool and other products, live stock, wagons, carriages, harness, household goods, wearing apparel, provisions, musical instruments and libraries, being upon farms as farm property, or in dwellings, or in accompanying outbuildings that constitute detached risks in villages, and belonging to the members.”
And property which may be insured as belonging to an insurance company’s second-class business is described in the foregoing statutes as follows:
“Second, To conclude all risks on buildings used for merchandizing and manufacturing, and the goods, wares, machinery and implements contained therein, and all other property not included in the first class.”
Now, it will be seen from the description of the property in the policy that $700 worth of the same was household furniture, etc., belonging to the company’s first-class business according to the statutes, while $1,300 thereof belonged to the company’s second-class business. As before stated, the original judgment rendered in this case was general, and of course included both kinds of business; and it was absolute and unqualified; and it was affirmed by the supreme court, at its July term in 1887. (37 Kas. 73; 14 Pac. Rep. 454.) Afterward other proceedings were had in both the district court of Franklin county and the district court of Dickinson county; and the action of the district court of Franklin county was affirmed absolutely, and the judgment of the district court of Dickinson county was reversed. (45 Kas. 74; 25 Pac. Rep. 211.) Afterward, on a motion for a rehearing, it was said in the opinion of the court, among other things, as follows:
“In case No. 5491, (The Kansas Farmers’ Mutual Fire Insurance Company v. Lydia A. Amick,) the judgment of the district court of Franklin county will be affirmed, but the receiver will not be permitted to take possession of, disturb or control any of the property expressly exempted by the statute.” (Insurance Co. v. Amick, 45 Kas. 741.)
The receiver above mentioned was the sheriff of Dickinson county; and I know of no property belonging to an insurance company “expressly exempted by the statutes” from the payment of a general judgment rendered against the insurance company. In every mandate, however, issued to the district court of Franklin county, its judgment and orders have been affirmed, and no order or judgment of that court has ever in fact and by mandate been reversed, vacated, or modified. All its judgments and orders still remain absolute and unqualified. It is now proposed, however, upon a motion, that the last mandate of affirmance issued by this court to the district court of Franklin county shall be so modified as to require a modification of the judgment and orders of such court, so that they can be enforced only against the company’s second-class business and its property belonging to its second-class business, although the company has done no second-cláss business nor owned any property belonging to a second-class business for nearly nine years. To make such an order as is asked is virtually to say that Mrs. Amick shall never enforce her judgment at all against the insurance company; and all this although it is now well known that the original judgment rendered in this case was a general judgment for money against the company in its entirety, and absolute and unqualified in its terms, and rendered upon an insurance policy which was issued in the company’s first-class business as well as in its second-class business. If Mrs. Amick cannot recover all her claim upon her general judgment, then why may she not recover for the $700 worth of first-class property insured and destroyed by fire and also covered by her judgment? And should the Franklin county judgment now and for the first time be so modified that she cannot? | [
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Opinion by
Simpson, C.:
This was an appeal from the award of damages for the location of a road. The amount claimed by the plaintiffs was $1,250. The amount' awarded by the county commissioners was $25. Upon appeal, the verdict of the jury was for the plaintiffs in the sum of $20. No pleadings were filed or required in the district court. Upon the return of the verdict, the plaintiffs moved for a new trial. This motion was overruled, and judgment entered by the court for the plaintiffs, for $20 damages and $107.50 costs. This judgment was entered at the fall term, November 21, 1888. The June term of the district court for Linn county for 1889 began on the first Tuesday of June. (Laws of 1889, ch. 118, § 2.) The first Tuesday of June, 1889, was the 4th day of the month. A motion to retax costs was filed on the 12th day of June, 1889. This was one week and a day after the June term began. This was the seventh day of the June term. On the ninth day of the June term, being the 14th day of the month of June, 1889, the court heard the motion to retax costs, and sustained it, and adjudged all the costs against the appellants, the plaintiffs in error here. This motion was as follows:
“Now comes the defendant, and moves the court to retax the costs in this case and tax them against the plaintiffs, instead of the defendant, and render judgment therefor against said plaintiffs, for the reason that this action is an appeal from the decision and award of the county commissioners of said county granting to the plaintiffs $25 damages for the location and establishment of a public highway over and across the lands of said plaintiffs; that a warrant of said county, duly and legally made and executed by said county, was tendered to said plaintiffs, in the sum of $25, in payment of said damages, before this case was appealed to the district court, and said warrant remained in the office of the county clerk of said county, subject to the order of said plaintiffs; that the said plaintiffs refused to accept the same and prosecuted their appeal to a final judgment in this court; that said warrant was at all times subject to the order and disposition of said plaintiffs, from the time of its execution and tender to the plaintiffs up to the verdict and judgment upon appeal to this court; that the plaintiffs, upon the trial of this case upon appeal to this court, recovered a judgment for $20 and no more.”
The journal entry sustaining the motion for a retaxation of costs recites that the plaintiffs’ attorney duly excepted and excepts to the ruling. Counsel for the plaintiffs in error alleges in his brief that he had no notice of the motion, and that the exceptions were put in the record by the generosity of the court or opposing counsel.
In the present condition of the record, we can only recommend an affirmance of the judgment. If the record does not state the truth about the presence of the plaintiffs in error at the time the motion to retax the costs was sustained, it ought to have been corrected before this proceeding in error was instituted in this court. The object of a notice being to acquaint the adverse party of the time at which the motion will be heard, and of the causes of the motion, and the record reciting the objection of the plaintiffs taken at the time of the ruling, it sufficiently appears that all the purposes of a notice were subserved.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action for the specific performance of ah agreement to sell and convey real estate. In the plaintiff’s petition it was shown that on November 23, 1898, Mary Condley executed a writing in which, for a consideration of $100, paid by M. J. Callahan and A. N. Chadsey, she agreed to sell and convey to them, at any time within sixty days, upon their demand, and upon payment by them of the sum of $5500, an undivided one-half interest in a quarter-section of land in Cherokee county. On November 30, 1898, Callahan and Chadsey, by C. D. Ashley, their attorney, tendered to Mary Condley $5500 in gold coin, but she refused to take the money, and said that she would not accept the same and would not execute a deed to the premises. At the time the money was tendered and the deed demanded, a form of deed was tendered in behalf of Callahan and Chadsey, ready for execution, but Mary Condley declined to execute it or any deed to the real estate, and declared that she would not observe or perform her part of the written agreement and contract. Soon afterward Callahan, for a good and sufficient consideration, assigned and transferred his rights and interests under the contract to A. N. Chadsey, who, on December 2, 1898, brought this action. Mary Condley filed a general demurrer to the petition, which the court sustained, and this ruling is assigned for error here.
On behalf of Mary Condley, it is contended that she is not bound by her agreement, because of a lack of mutuality of obligation; that while she promised to sell and convey, Callahan and Chadsey did not absolutely bind themselves to buy and take the land ; and that, as they were not bound, the agreement is not enforceable against her. The general rule is that unless all parties to an agreement are bound, it will be enforceable against none of them. An optional contract for the sale of land, fairly made and based on a-sufficient consideration, constitutes an exception to this rule. While it is unilateral in form and optional with the proposed vendee at the inception, it becomes absolute when the option is accepted, and thereafter the obligations of vendor and vendee are mutual and may be specifically enforced. Here there was an adequate consideration for the agreement; no fraud or unfairness appears ; the option was accepted within the time and on the terms stipulated, and before it had been withdrawn, and, under the modern authorities, it may be specifically enforced against the vendor as a valid contract to convey. (Guyer v. Warren, 175 Ill. 328, 51 N. E. 580; Watts v. Kellar, 56 Fed. 1, 5 C. C. A. 395; Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501; Brown v. Slee, 103 U. S. 828, 26 L. Ed. 618 ; Warren v. Castello, 109 Mo. 338, 19 S. W. 29; Reynolds v. O’Neil, 26 N. J. Eq. 223; Hawralty v. Warren, 18 id. 126; Ross v. Parks, 93 Ala. 153, 8 South. 368, 11 L. R. A. 148 ; Pom. Spec. Perf. §§ 167-169; Beach, Mod. Law Cont. §§ 887-890; 22 A. & E. Encycl. of L., 971.)
It is contended, however, that the acceptance of the option was not strictly within the terms of the agreement ; that .the consideration named in the deed tendered Mary Condley for execution was not the true consideration; and that, therefore, she was justified in refusing to execute the same. The consideration named was $5600, and, according to the language employed, the receipt of that amount was acknowledged by the execution of the deed; and it is argued that she cannot be required to acknowledge the receipt of a sum larger than the actual consideration, and for which she would be bound by the covenants of warranty if the title should fail. We think there is nothing substantial in this contention. The consideration for the preliminary agreement to convey the land was $100, and the amount to be paid, if the option was accepted, was $5500. These sums together amount to the express consideration of the deed, and when the option is accepted both payments would be regarded as the consideration for the sale and conveyance of the land.
Aside from this view, it may be said that no objection to the performance of the agreement was made by Mary Condley because of the form of the deed. It is alleged that she was tendered the stipulated amount of $5500, in lawful money, and that she refused to take the same, and stated that she would neither accept the money nor execute a deed of the premises. When -the vendees had accepted the conditions of the option and tendered the stipulated amount of money within the proper time, they had performed their part of the agreement, and the duty devolved on her to execute and deliver a good and sufficient deed, as was provided for in the agreement. If we assume, however, that it was the duty of the vendees to have tendered a deed along with the money, the action of the vendor in refusing absolutely to accept the purchase-price and execute any deed or any conveyance made, a tender unnecessary. (Bell v. Wright, 31 Kan. 244, 1 Pac. 595.)
We think the petition states a cause of action against Mary Condley, and therefore the judgment of the district court will be reversed, and the cause remanded with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Pollock, J.:
The undisputed evidence adduced upon the trial below clearly shows that defendant A. L. Burditt furnished the money with which entry of this property was made by John C. Adams from the government, and in addition thereto paid said Ad ams fifty dollars for a conveyance of the property ; and, further, that he made the improvements, paid the taxes and furnished the money set forth in his answer to his brother, A. K. Burditt, and that no part of the same has at any time been paid to the defendant: It further appears from the evidence that the deed from John O. Adams to defendant A. L. Burditt was intended to be, and between the parties thereto is what it imports, an absolute conveyance ; that all these years A. K. Burditt, an old and infirm soldier, and his family, lived upon the property, using the same as a home, cultivating the land, free of charge ; that it was understood and agreed between defendant and his less fortunate brother, A. K. Burditt, that at any time the latter would pay the amount of money which defendant had expended in the purchase, preservation and improvement of this property and advancements made to him, the defendant would make conveyance to him. Not only do these facts clearly appear from the record, but it further appears that all the parties thereto fully knew and understood the condition of affairs with respect to this property.
What, then, are the rights of the respective parties to this property ? The court and counsel for plaintiffs below have proceeded upon the assumption that the deed from John C. Adams to defendant below is, in law, a mortgage held by defendant to secure the repayment of the money expended in the purchase and improvement of this property; that, because of the facts as alleged, the collection of this debt by defendant A. L. Burditt is barred by lapse of time, and the plaintiffs below are entitled to a judgment quieting the title in themselves. To this view of this case we do not yield our assent. It is not warranted by the record, and the position assumed is unsound in law. The statute of limitations has no place in this case. It is a statute of defense, not a weapon of attack, and cannot be invoked to uphold or maintain a claim for affirmative relief. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844.)
Again, the title to this property rests in the defendant below. It was placed there by John C. Adams, who had the right to convey, not by A. K. Burditt. Whatever rights A. K. Burditt or his heirs possess in this property arise not from the nature of the deed from John C. Adams to defendant, but from the agreement of defendant to convey to A. K. Burditt upon a performance of the conditions imposed. It is clear that if this deed in fact is, as between defendant and A. K. Burditt or his heirs, a mortgage, it must, by force of necessity, constitute a mortgage as between John C. Adams and defendant, and, being in fact but a mortgage, the legal title to the property rests in Adams, not in defendant below. Hence, its cancelation by payment of the debt would leave the title to the property not in A. K. Burditt or his heirs but in Adams — a proposition controverted positively by both the defendant below and Adams, and a consummation not desired and which would not benefit plaintiffs below. It has been frequently ruled that where the deed is to one party and the defeasance is to a third person, the transaction cannot be a mortgage, and that a deed without a defeasance, either oral or written, cannot be a mortgage. (Treat v. Strickland, 23 Me. 234; Low v. Henry, 9 Cal. 538; Lance’s Appeal, 112 Pa. St. 436, 4 Atl. 375; Tiede. Real Prop. § 303.)
The title to the property in controversy being in defendant below and being held by him subject only to the condition that he would convey to his brother, A. K. Burditt, upon payment of the money he had paid in the purchase, preservation and improvement of the property and the money advanced to his brother, it 'was not incumbent upon defendant to resort to an ' action in the courts to protect his interests in the property. The conveyance of the property to him is his protection. Therefore, having no right of action to recover that which he already has, the statute of limitations can have no application in such case. Plaintiffs below, if so advised, can pay the defendant and take from him a conveyance of the property. ' If a controvery shall arise as to the amount to be paid, the same can be ascertained by an accounting had and a decree for conveyance upon payment. This view of the case seems more in harmony with equity and justice between the parties than the view taken by the trial court. Indeed, it would seem to be a reproach upon our laws if plaintiffs below, after receiving the timely assistance of the defendant during their many years of adversity, should now be permitted successfully to maintain that their benefactor is entitled to receive back neither the money paid nor the. property purchased. Such, in our view, are not the equities of this case.
The judgment of the district court is therefore reversed. | [
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The opinion of the court was delivered by
Ellis, J.:
It is contended on behalf of the plaintiff in error that the affidavit of the defendant’s attorney verifying the amended answer to the third count of the petition is not sufficient, and, therefore, that the plaintiff should have had a judgment on said count. We agree with counsel that the affidavit was not sufficient. The statute (Gen. Stat. 1889, ¶ 4197; Gen. Stat. 1897, ch. 95, §114; Gen. Stat. 1899, §43.64) provides : “When the affidavit is made by the agent or attorney, it must set forth the reason why it is not made by the party himself.” It does not follow, however, that this objection, raised for the first time in this court, can avail the plaintiff. To the original answer a sufficient affidavit was appended, and in such answer was stated a sufficient defense to have sustained a judgment to this cause of action, if one had'been rendered. The parties in the court below elected to treat the case as though the answer of the defendant was properly verified. No motion was made for judgment on the pleadings, and the plaintiff assumed the burden of the issues, and offered its proof with reference to this note as well as to others. The original answer as to the third count of the petition had been supplanted by the amended answer; still the parties, had they chosen so to do, might have treated the original answer as still in force.
The ground upon which the defendant below based his right to have the depositions taken by the plaintiff suppressed was that the notice had not been served on an attorney of record in the case, but had been served on one who had acted for the defendant in taking depositions, and in his behalf had previously acknowledged service of notice to take depositions which were used in the case. Whether the defendant could thus recognize and ratify the acts of such attorney so far as the same might be regarded as serving his interests, and then repudiate and refuse to be bound by other acts of the same nature, performed by the same attorney in the same case, and under the same em ployment, on the ground that he was not an attorney of record therein, we need not decide, for it appears that other depositions of the same witnesses were taken in the case, and it is not here contended that the plaintiff was deprived of any important testimony of either of such witnesses by reason of the suppression of said depositions.
As to the refusal of the court below to suppress the depositions of defendant, it is enough to say that, although the package arrived in bad order, all legal requisites had been complied with, and the depositions themselves were neither separated nor mutilated. The court did not err in refusing to suppress them.
The judgment rendered against plaintiff on the first, second and fourth counts of the petition was fully sustained by the findings of the jury, which in turn were sustained by the evidence.' Such judgment must, therefore, be affirmed.
As to the assignment of error founded upon the action of the trial court in sustaining defendant’s demurrer to the evidence as to the third count of the petition, a more difficult question is presented. The record does not show upon what particular ground the court sustained the demurrer. We presume, however, that it did so for the reason that the signature of the defendant was below the indorsement of the payee upon the back of the note, and the court probably inferred, as a matter of law, that the defendant was an accommodation indorser, and as such entitled to notice of non-payment. In ordinary cases such a ruling would be correct, for in the case of Bradford v. Pauly, 18 Kan. 216, this court held:
“Whenever a negotiable promissory note is drawn up and is signed by the maker thereof, and is then indorsed in blank, first by the payee thereof and then by a third person, and the note is then delivered by the maker thereof, for a sufficient consideration, to still another person, who thereby becomes the holder «thereof, the presumption in such a case should be, and is, that the payee and said third person intended to .assume, and did assume, all the rights and privileges, as well as all the obligations and liabilities, usually assumed by indorsers of negotiable instruments.”
Again, in the case of Cornett v. Hafer, 43 Kan. 60, 22 Pac. 1015, it was held:
“Where a negotiable promissory note, after its execution and delivery, is indorsed by the payee, and then indorsed by a third person, and is then sold by the payee to still another person, all before the maturity of the note, both the indorsers will be held to be ordinary indorsers.”
The weight of authority, however, is in favor of the proposition that “parol evidence is admissible to show the extent of the contract entered into by one who is a stranger to a note and indorses it in blank after it is made.” (2 Rand. Comm. Pap. §868.) This is undoubtedly the rule where a stranger to a promissory note writes his name across the back thereof before its delivery to the payee.
In this case the evidence tended to show that the clerk of T. J. Garlick prepared the note and executed it as maker in behalf of T. J. Garlick & Co., by authority of T. J. Garlick, who was the sole member of the so-called firm of T. J. Garlick & Co. The Silver Cliff Tow Boat Company, to which the note was made payable, was a corporation, but was managed and controlled, so far as the evidence shows, .'ntirely by T. J. Garlick. The business of such corporation was done in the same office as that of T. J. Garlick & Co., and the clerk who executed the note for the makers also indorsed it for the payee. It also appears by the evidence that Garlick, on behalf of Atkinson & Garlick, T. J. Garlick & Co., and the Silver Cliff Tow Boat Company, was, for a considerable period, engaged in “kiting” paper between his said three firms, and also between said firms and the Shetter Foundry and Machine Company. It would appear from the evidence that the credit of these several firms was maintained for some time by the method pursued, which was to pay off one note by giving a new one against another firm, without any consideration passing between the firms engaged in such transaction. It is in evidence that Atkinson signed the note in question after said clerk had indorsed the name of the payee upon it, but there may not have been at any time an actual delivery by the maker to the payee, and it is questionable whether, from all the circumstances, a jury might not have inferred that Atkinson was cognizant of the method of doing business to which we have referred-.
Therefore, we hold that parol evidence was admissible to show the exact nature and extent of the contract of Atkinson, assuming the rule to be that in the absence of any contract at all his liability would have been that of an accommodation indorser. Under the circumstances, we think the court below could not say, as a matter of law, that there was no evidence from which a jury might have determined that the defendant had, in fact, assumed a different liability. While it is true that the third count of the petition, like the answer thereto, was inartistically drawn, it was sufficient, after the court had admitted the evidence under it, to sustain a judgment.
It follows that the court erred in sustaining the demurrer to the evidence as to the third count of the petition, and as to such count its judgment will be reversed, and a new trial granted. | [
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The opinion of the court was delivered by
Smith, J. :
Section 1 of the non-resident-agency law, set out in the statement, prohibits the superintendent of insurance from issuing a license to a nonresident agent, and provides that when a resident agent removes from the state the authority theretofore given shall be revoked. An order made by the superintendent under this section operates directly against the agent himself. Section 2 of the act prohibits any fire insurance company from authorizing or allowing any person, agent, firm or corporation, being a non-resident of this state, from issuing or causing to be issued any policy of insurance on property located in Kansas. The prohibition of this section applies to the offending insurance companies, and not their agents. The same may be said of section 3. The authority of the superintendent under said section is" confined to a revocation of the license of the insurance company in case it has permitted any person of agent, a non-resident of this state, to procure or issue policies of insurance on property in Kansas. It will be seen that, except in the first section of the law, no power over the licenses of agents is given to the superintendent of insurance. It is clear that the acts of the superintendent of insurance were not justified under chapter 161 of the Laws of 1889.
In the return the defendant avers also that plaintiffs have violated sections 18 and 23 of chapter 93, Laws of 1871. This act is entitled “An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein.” Section 18 (Gen. Stat. 1899, § 3260 ; Gen. Stat. 1897, ch. 74, § 123) reads :
“Sec. 18. It shall be unlawful for any person, company or corporation in this state, either to procure, receive or forward applications for insurance in any company or companies not organized under the laws of this state, or in any manner to aid in the transaction of the business of insurance with any such company, unless duly authorized by such company and licensed by the superintendent of insurance, in conformity to the provisions of this act; and any person violating the provisions of this section shall be liable to a penalty of five hundred dollars for each offense, to be collected as other penalties under this act.”
This section could be better understood if it followed the succeeding section 19. We think it should be read as a part of or as supplemental to section 19, and in that connection its penalties are visited on agents of foreign insurance companies doing business in Kansas without due authority from the companies they claim to represent, and unless licensed as agents by the superintendent of insurance. Section 28 (Gen. Stat. 1899, §3265; Gen. Stat. 1897, ch. 74, §122) of the same act provides :
“Sec. 23. The provisions of this act shall apply to individuals and partners, and to all companies and associations, whether incorporated or not, now or hereafter engaged in the business of insurance. It shall be unlawful for any company, corporation or association, whether organized in this state or elsewhere, either directly or indirectly, to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner -to aid therein, in this state, without first having complied with all the provisions of this act. And any corporation, company or association violating the provisions of this section, and any individual, company, association or corporation aiding in any manner, either as agent or otherwise, in such violation, shall be liable to a penalty of five hundred dollars, to be collected as other penalties under this act.”
It is apparent that the purpose of section 23 is to prohibit the business of insurance being carried on by any company without having first received a license so to do from the superintendent of insurance. It has no application to companies that are licensed and have complied with all the provisions of the statute.
We find no provision of law which justifies the defendant in revoking the licenses of plaintiffs for the reasons given in the return of the superintendent of insurance to the alternative writ.
A peremptory writ of mandamus will be allowed. | [
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Appeal from court of appeals, northern department.
Dismissed. | [
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Error from Brown district court.
Dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
The following question is presented in this case : When a person is imprisoned under a sentence for life, does his property, by that fact, descend to his heirs in all respects as if he were naturally dead? Those sections of the statute necessary to be considered read:
“A sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts,, authority and poweí; and a person sentenced to such confinement for life shall thereafter be deemed civilly dead.” (Gen. Stat. 1899, §2254; Gen. Stat. 1897, ch. 100, §376.)
“Whenever any person shall be imprisoned under a sentence of imprisonment for life, his estate, prop erty and effects shall be administered and disposed of in all respects as if he were naturally dead.” (Gen. Stat. 1899, §5583; Gen. Stat. 1897, ch. 102, §311.)
But for section 5583 of the statute, supra, we are all agreed that the mere fact of a sentence and imprisonment for life would not cast the descent of the convict’s estate. The declaration that a person in such condition shall be deemed civilly dead is to be interpreted as to its effect by a reference to the common law. In Avery v. Everett, 110 N. Y. 317, 18 N. E. 148, after an exhaustive review of all the authorities, the court said:
“It seems to be a necessary conclusion, from the rules of the common law governing rights of property as affected by forfeiture for crime, that civil death, one of the consequences of conviction for treason or felony, did not of itself, as a general rule, at least, operate to divest the offender of his title to his lands.” (See, also, Frazer v. Fulcher, 17 Ohio, 260; Baltimore v. Chester, 53 Vt. 315.)
In Maine and Missouri statutory provisions similar to section 5583 exist, but they have received no judicial interpretation. The turning-point is the construction to be placed on the words “administered and disposed of.” Administration' has relation to personal property, and it is only where the personalty is insufficient in value to pay the debts of the decedent that the administrator exercises any control over the real estate. It descends to the heirs eo instanti upon the death of the ancestor. We think that by the use of the word “administered,” in this provision relating to the estate of convicts, it was the intention of the lawmakers to restrict the administrator to the control and disposition of personal property for the benefit of creditors, to the end that all debts of the convict might be speedily paid. The words “disposed of” are not in our judgment broad and comprehensive enough to reach to and embrace that act of the law which vests the ownership of property in an heir by inheritance. They can be more sensibly applied to affirmative action taken by a person either natural or artificial. It is an inapt expression to say that when an estate is cast by descent on the heir by the death of the owner it has been disposed of.
It will be noticed also that the two sections of the law under consideration are not a part of the statutes relating to descents and distributions. One section is found under the title of crimes and punishments, and the other under criminal procedure. In the present case the property in controversy is real estate, and there are no debts owing by the convict. If such estate has already devolved upon the heirs, an administrator can do nothing which will affect the lands. As applied to this case, the use of the word “administered” can have no force, for the estate in controversy can never come to the hands of an administrator.
In Rachel Beard, Respondent, v. William J. Knox, Executor of William M. Beard, Appellant, 5 Cal. 252, a statute was before the court forlconstruction which related to the rights of husband and wife. It provided : “All property, acquired by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” It was further provided that the husband should have the entire control, of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death, of either husband or wife, one-half of the common property should go to the survivor. It was held that the words “with absolute power to dispose of” ought not to be extended to a disposition by devise.
If descent be cast, ipso facto, by the sentence and imprisonment of a person for life, then such person may make testamentary disposition of his property before such sentence and imprisonment, which will take effect immediately thereafter. The incongruity of the convict’s position in the -event of a final acquittal or pardon may be noticed. From such sentence he may appeal to this court within two years after the judgment is .rendered. If he be granted a new triaTand finally secure an acquittal, or his discharge from imprisonment be ordered, we may see a person formerly civilly dead living with heirs who have inherited his property. Again, it would be entirely legal for such person, though once pronounced dead in law, to be appointed administrator of his own estate, or to be called on to prove the execution of his own will. In the event of the convicted person making two wills, one before sentence and imprisonment and the other after his pardon or acquittal and immediately prior to his natural death, a confusing question would arise as to which will should be given effect.
In default of heirs, the application of the statute as contended for by counsel for defendants in error would cause the real estate of the convict to escheat to the state, involving a forfeiture of property, which ought not to be declared without express and unambiguous legislative direction.
Such considerations might be immaterial if the law were plain and explicit, for we have no doubt of the power of the legislature, by express language, to cast the descent of a convict’s property, in the event of his civil death, on such persons as would be heirs at law in case of natural death. In cases of doubt, however, the argument ab inconvenienti is of much force. In an exhaustive note to Avery v. Everett, supra, found in 6 American State Reports, 366, 383, the author says :
“We deduce, therefore, that in those states where there is a statutory provision that one imprisoned for life shall be deemed civilly dead, the legislature could not have intended that such convict should labor under greater disabilities than those entailed by the common-law decisions; and if the strict rule of the common law is not to be followed, it must be assumed — and especially so in view of our institutions and tenures here, and also in view of the fact that such convict may be pardoned — that one civiliter mortuus under the statutes ought not to be deemed naturally dead so far as retaining his title to property and protecting it is concerned, and that it ought not certainly to devolve upon his successors or heirs simply because of the disability of imprisonment. This construction of those statutes would, it seems to us, be founded in greater justice and more in consonance with the reason of the law, and more in keeping with the spirit of our institutions, than a conclusion to the contra
The convicted person whose property is involved in the case at bar is, in fact, no longer civilly dead. Her sentence was, within a year after it took effect, commuted by the governor to a term of forty years. Her life has been restored. It ought not to be held that she has been divested of her property by operation of law unless the statute, in clear and explicit terms, has so declared.
The question raised by plaintiff in error, that the two sections of the statute under discussion are unconstitutional, has been decided against his contention in Woodruff v. Baldwin, 23 Kan. 491.
The judgment of the court below will be reversed and a new trial granted.
Doster, C. J., and Pollock, J., dissenting. | [
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Per Curiam:
The defendant in error sued the plaintiff in error upon a benefit certificate issued on the life of F. S. Bauersfeld, and recovered judgment in the court below. A clause in the benefit certificate read : “No action can or shall be maintained on this certificate unless brought within one year from the date of the death of said neighbor.” The holders of certificates in the society are called “neighbors.” On March 11, 1898, F. S. Bauersfeld died. On March 7, 1899, the defendant in error filed her petition on the contract of insurance. Summons, however, was not issued in the action until March 14, nor served until March 17. Was the action commenced in time? Clearly not. By the clause of the benefit certificate above quoted, the insured and his beneficiary were bound to the commencement of an action in manner and form specified in the statute. The parties speci fied a shorter period than the statutory limitation for the commencement of an action, but as to what the j statute deems the commencement of an action they-¡'made no change.
The civil code, section 20 (Gen. Stat. 1897, ch. 95, §14; Gen. Stat. 1899, §4264), reads: “An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him.” The civil code, section 57 (Gen. Stat. 1897, ch. 95, §52; Gen. Stat. 1899, §4303), reads : “A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” There is no conflict between these sections. The one last quoted provides how an action may be commenced and relates to the manner of commencement. The one first quoted declares when it shall be deemed commenced and x’elates to the time of commencement. It shall be deemed commenced at the date of the summons which is served upon the defendant. As above stated the parties contracted to adopt this statute, except as to the time of commencement. Instead of allowing five years or other period they agreed on one year.
The defendant in error contends that the contractual period of limitation for the commencement of the action was changed subsequently to the issuance of the benefit certificate by the adoption of a by-law providing a new form of certificate. A clause in the new form of.certificate reads : “No action can or shall be maintained on this certificate until after the proof of death and claimant’s right to benefits, as provided for in the by-laws of this society, have been filed with the head clerk and passed upon by the board of trustees, nor unless brought within one year from the date of such action by said board. ’ ’ The benefit certificate was issued in 1896. The above-mentioned by-law was - adopted in 1897. The death occurred in 1898. The action was brought within one year of the time the. board of trustees passed on and rejected the claim, so that if the by-law could be given a retroactive effect the action was brought within time. It cannot, however, be given such effect. The by-law prescribed only a new form of certificate, and it related only to future contracts of insurance. We are unable to regard the action as commenced within^ time. The judgment of the court below is therefore reversed, with directions to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Poster, C. J.:
The controversy in this case is over the right to certain funds, the rent of real estate, collected by a receiver. Both the district court and the court of appeals held against the claim of right to the rent made by the plaintiff in error. The last-named court based its judgment upon propositions of law which, for the sake of convenience to us in our consideration of the case, will be stated in their inverse order. The court ruled :
“Section 476, chapter 95, General Statutes of 1897, does not apply to mortgage liens after foreclosure, so as to give other judgment creditors prior liens upon the mortgaged property, if order of sale be not issued under said foreclosure proceedings within one year after the rendition of the judgment therein.”
The law as thus declared by the court of appeals is well sustained by its opinion in the case. So far as its judgment is based upon the proposition announced, its meets with our approval and is affirmed. Upon another point it ruled:
“A party upon whose application a receiver is appointed has no greater interest in the proceeds of such receivership than he would have had if the receiver had been appointed upon the application of any one of the other litigants in the action.
“A receiver is the hand of the court of which he is an officer ; his appointment determines no rights, does not affect the title of the property in any way, and his holding is the holding of the court.”
These last-quoted rulings of the court are doubtless correct as abstract propositions of law, but they were inapplicable to the facts of the case. A material fact, seemingly overlooked, was that the person to whom the fund in the receiver’s hands had been awarded was not a litigant in the case — was not a party to the action in a sense which entitled him to a claim on the fund in the receiver’s hands.
The facts were that Charles R. King, one of the defendants in error, was a mortgagee of real estate. He recovered a money judgment upon the mortgage debt and an order of sale of the mortgaged premises. IN M. Jackson, the plaintiff in error, was a judgment creditor of the mortgage debtor. His judgment was a lien upon the mortgaged premises second after the mortgage judgment. King, the mortgage creditor, delayed the issuance of an order of sale upon his mortgage judgment for four years. During this period of delay, Jackson, the second lien-holder, procured the appointment of a receiver to take possession of the real estate upon which the several liens rested and collect and disburse the rents arising from it, and he also purchased the property at an execution sale made upon his judgment. King finally caused the issuance of process upon his mortgage judgment and a sale of the mortgaged property. At the sale the Merchants’ Savings Bankbecame the purchaser. After this sale a controversy arose as to the distribution of the rent money in the hands of the receiver which had been collected by him prior to the mortgage sale. King, the mortgage creditor, disclaimed all right to th.8 rent money. The Merchants’ Savings Bank claimed it by virtue of its purchase at the mortgage sale of the real estate from which the rent was collected. The district court and the court of appeals sustained its claim and error has been accordingly prosecuted.
The record contains nothing upon which the claim of the Merchants’ Savings Bank can be based other than its mere purchase at the mortgage sale. There was no assignment of the rent money made to it by any one. There is nothing in the record to show that the rents and profits of the real estate inured in any way or under any conditions to the mortgagee so as to pass from him to the purchaser at the mortgage sale. The general rule is fairly stated as follows :
“A mortgagee has no specific lien upon the rents and profits of the mortgaged land unless he has in the mortgage stipulated for a specific pledge of them as part of his security. He has no claim upon them until he has the right to take possession of the premises under his mortgage.” (Jones, Mort. §772.)
“The rents accruing between the day of sale and the delivery of the deed belong to the owner of the equity of redemption, and not to the purchaser, as they go with the possession or right of possession.” -.(Id. §1659.)
If, as Jones says, rents accruing between sale and deed do not pass to the purchaser, a fortiori those accruing before sale do not pass.
The Merchants’ Savings Bank was a stranger to the real estate and to all the litigation concerning it until its purchase, and it acquired by its purchase nothing but the property sold. It could get nothing from the mortgagee except what passed from him to it either by assignment in fact or by operation of law, and, as stated, the record fails to show that anything passed to it from the mortgagee either in fact or law. It could get nothing from the owner of the property except the legal title to it and the right of possession. Accrued rents do not pass, as stated by Jones, at mortgage foreclosure sale as appurtenant to the land.
The judgments of the court of appeals and of the district court are reversed, for further proceedings in the last-named court in accordance with this opinion. | [
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Error from Leavenworth district court.
Reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
John W. Allen, James P. McGuire, John H. Barry, and T. J. Emlen, who owned sis acres of land near Atchison upon which there were machinery and appliances for the manufacture of vitrified brick, leased the same to John Gaffney for a term of one year at a stipulated rental, payable monthly. The instrument also provided that the lessors should have and retain a lien on the clay and material taken from the premises and upon the brick manufactured there to secure the payment of accrued and unpaid rent. Gaffney at once entered into possession of the premises and manufactured large quantities of vitrified paving brick. On November 10, 1894, the T. B. Townsend Brick and Contracting Company purchased a large quantity of brick from Gaffney, including those in controversy, and immediately after the purchase took possession of the same. The rent due to the lessors had been paid down to and including the 14th day of October, 1894, and when the controversy arose between the lessors and the purchasers of the brick there was due from Gaffney to the lessors for rent the sum of $250. The lessors, claiming the brick so purchased and taken possession of by the T. B. Townsend Brick and Contracting Company by virtue of the conditions and lien stated and given in the lease, brought this action to recover the value of the brick, and the trial court sustained the lien claimed by the plaintiffs and rendered judgment in their favor. The judgment was affirmed by the court of appeals, and the validity of the mortgage lien is again presented for consideration.
It may be assumed that the lease created a lien on any brick that had been made and were in existence when the lease was executed and filed in the office of the register of deeds; but can it be held to create a lien on brick made long afterward ? None of the brick in controversy had been made when the lease was executed, and even the clay and shale from which brick were subsequently made were then .in the bank and in a natural state. The face of the bank had. been properly stripped, but before the clay used to produce the bricks in controversy had been reached, clay sufficient to make a million of bricks had been taken from the bank. The clay and shale in the bank have peculiar qualities necessary for the manufacture of vitrified brick, qualities which ordinary clay does not contain, but no portion of the same which ultimately became an element in the brick in controversy was in any manner set apart by severance nor by the marking of the place from which it should be taken. There was no agreement nor was it in contemplation of the parties that any particular clay on the premises should be used, but the lessee, Gaffney, had the right to take clay and shale for the purpose of making brick from any portion of the six-acre tract leased to him. Certainly the brick in controversy were not in actual existence when the chattel mortgage was made, and the clay and shale which entered into the manufacture of the same could not be identified in any manner.
The general rule is that no one can mortgage property which does not exist or which does not belong to him. It is true parties may make contracts with reference to after-acquired property which will be upheld as between themselves, but such contracts are not to be treated as chattel mortgages. The contention here is that the clay and shale used in producing the brick in controversy were in existence; that these constituted the principal elements which entered into the making of the brick in controversy; and therefore they had a potential existence to which the mortgage lien might attach.' It' is specifically agreed that the material out of which a thousand brick were made was only worth from twenty to thirty cents, while that amount of brick when completed was worth eight dollars. . It is also agreed that the nature of the clay was so completely changed by the process of converting it into vitrified brick that it naturally would never return to its original condition. The attempt to give a chattel mortgage upon the clay in the bank was ineffectual, because there was no severance, no setting apart by marking or otherwise, and being in its natural state it must be regarded as real estate, and we are of opinion that, under the authority of Long v. Hines, 40 Kan., 216, 16 Pac. 339, the brick had no such actual or potential existence when the mortgage was made as to subject them to the lien of the same. In that case, it was held that a chattel mortgage on a corn crop to be grown in the future, but which had not been planted at the time of the execution of the mortgage, was void as against subsequent purchasers or attaching creditors, although the mortgagor was in possession of the land when the mortgage was executed.
While it is held that a valid mortgage may be given on a growing crop, the crop itself has a potential existence and will in due course of time and nature develop and mature; but a crop cannot be said to have an actual or potential existence merely because a person may have soil upon which to grow a crop or seed for that purpose. While the soil and the seed are essential, a crop cannot come into existence except by a new intervening act, and except with the assistance of other elements and forces. (Cole v. Kerr, 19 Neb. 553, 26 N. W. 598.) So here, while the clay is an essential element in the manufacture of brick, the process of manufacture completely changes its form and character. The brick were not in existence when the mortgage was executed, and besides, they would never again become clay or return to the original condition. Other elements and forces were employed in the manufacture, so that the identity of the clay was entirely lost, and the product, as we have seen, is worth about forty times more than the clay which entered into it.
It is argued that because clay was the principal material from which the brick were made, and was in existence, that the rule of Long v. Hines, supra, cannot apply. The mortgagor had the soil and seed in the case mentioned, which were the principal elements for the production of the crop, but the product was held not to have a potential existence; and for like reasons it must be held that the product, made largely from clay, had no such existence when the mortgage was made as to make it subject to the lien thereof. It having been held that the instrument was insufficient to constitute a lien on the brick in controversy, it is unnecessary to consider the points made with reference to the filing of the same in the office of the register of deeds.
The judgments of the district court and of the court of appeals will be reversed, and the cause remanded with directions to enter judgment in favor of the T. B. Townsend Brick and Contracting Company. | [
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The opinion of the court was delivered by
Johnston, J. :
This was ejectment, brought by L. T. Williams and F. L. Martin to recover from the Hutchinson & Southern Railway Company a strip of land 100 feet wide through a farm in Reno county and which has been occupied by the railway company as a right of way for its railroad since 1889. While Ben. Blanchard owned the land, and in April, 1888, a judgment was obtained against him which became a lien thereon. An execution sale of the land to satisfy the judgment was made on March 6, 1894, to W. H. Crawford, who conveyed the land to P. L. Martin in August, 1894, and Martin in turn conveyed an undivided one-half interest in the same to L. T. Williams on July 26, 1898. On these proceedings and transfers Williams and Martin base their claim to the land in controversy. The railway company founds its right to the strip of land, which ifc has occupied as a right of way for the past eleven years, upon condemnation proceedings and the payment of the award to the owner of the land. The plaintiffs challenge the validity of the condemnation proceedings and of the easement acquired by the railway company. The proceedings to condemn the land were instituted May 16, 1889, and the commissioners awarded for the value of the land taken and damages the sum of $379.80, but the money so awarded was not paid to the county treasurer within ninety days after the filing of the report of the commissioners, nor until April 8, 1893. The delay in the payment of the award was occasioned by an agreement between the railway company and the owner of the land that payment need not be made until the owner demanded it.
The trial court, upon the facts presented, rightly held that ejectment could not be maintained, and gave judgment for the defendant. The judgment creditor had no title to or estate in the land when the condemnation proceedings were had, and,' within the meaning of the statute regulating such proceedings, he was not an owner. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239; Goodrich v. Gomm’rs of Atchison Co., 47 id. 355, 27 Pac. 1006, 18 L. R. A. 113; Rand v. Ft. S. W. & W. Rly. Co. 50 id. 114, 31 Pac. 683; C. K. & W. Rld. Co. v. Sheldon, 53 id. 169, 35 Pac. 1105; W. & W. Rld. Co. v. Thayer, 54 id. 259, 38 Pac. 266.) Under the decisions cited, it was held that a mortgagee who had a specific lien upon the land condemned ;was not an owner of the land nor of an estate therein, and that railroad companies, by condemnation proceedings, obtained an easement free from the lien of the mortgage. A judgment is a statutory lien only, and it is within the power of the legislature to abolish the lien before rights become vested under it. It was held in Watson v. N.Y. Central R. R. Co., 47 N. Y. 167, that a provision causing a judgment lien which had not ripened into a title to be superseded by taking land under condemnation proceedings, on payment of compensation to the owner of the land, is valid, and that, when the proceedings are concluded and compensation paid to the owner, the company acquires the easement free from all judgment liens. (Gimbel v. Stolte, Adm’x, 59 Ind. 446; Lewis, Em. Dom. § 325; Mills, Em. Dom. § 74.) The payment of just compensation to the owner is a condition precedent to obtaining any easement in the land, and, as against the owner, the proceedings prescribed by statute must be valid.
The proceedings in the present case appear to have been regular and sufficient, except that payment of the award was not made within the time prescribed by the statute. The condition of the prepayment of compensation, however, being for the benefit of the owner, he may waive it; and if he does expressly or by clear implication waive prepayment or allow the damages to remain a debt, and the railroad company, relying on the waiver, proceeds to build its road and expend large sums of money on the land, the owner is estopped to reclaim the land or to maintain ejectment for its recovery. In Knapp et al. v. McAuley et al., 39 Vt. 225, it was held :
"Where the owner of land across which a railroad has been surveyed and located consents that the contractors of the road may proceed on the land before his damages are paid, and under an agreement that they shall be subsequently ascertained and paid, and the land is thereupon taken possession of by the railroad company, and the road constructed over it, the title to the land passes, and the owner retains no lien upon it for his damages, but must look for payment -to the party to whom he gave credit.” (Railroad Co. v. Jones, 68 Ala. 48; 10 A. & E. Encycl. of L., 2d ed., 1144.)
Under the authorities cited, it was competent for the owner to enter into an agreement waiving and postponing the payment of the award, and certainly when the money was paid to and received by the owner the condemnation proceedings were complete, and all question of title under the proceedings was set at rest. Payment had been made and accepted by the owner before the sale of the land upon execution, and the title of the railroad company was complete long before the purchaser at the execution sale obtained a title to the land. When the sale was made the railway company had been in possession of the land for about five years, and had expended thousands of dollars in the construction of its road on the strip in controversy. The owner of the land would be estopped to claim that the proceedings were void because the money was not paid within the time provided by statute, and those who had no title or interest in the land in controversy when the payment was made and title completed were certainly in no condition to maintain ejectment for a recovery of the land. Whatever rights the plaintiffs might have had as against the fund paid, they have no right to recover the land at this late day. For more than nine years before this proceeding was begun the railway company had entered upon the land, constructed its road at great expense, and had continuously operated the same; and under such circumstances even an owner of the land, if no damages had been paid, would be regarded as having acquiesced therein, and would be restricted to a suit for damages.
In our view, the condemnation proceedings were sufficient to give an easement to the railway company, and therefore the judgment in favor of the defendant must be affirmed. | [
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Original proceeding in mandamus.
Writ denied. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action brought by J. H. Hucklebridge against the Atchison, Topeka & Santa Fe Railway Company to recover damages for causing the former’s cattle to become infected with Texas fever while under shipment in the latter’s cars on its line of railway. A verdict and judgment were rendered for the plaintiff, to reverse which error has been prosecuted' to this court. It is earnestly contended by counsel for the railway company that the evidence was insufficient to justify the verdict and judgment; that, inasmuch as there was no direct evidence of the cattle’s becoming infested with fever ticks producing the fever disease while confined in the railway-cars, plaintiff’s case, therefore, rested wholly upon a presumption — a presumption founded upon the fact that soon after they were unloaded and put on pasture the disease began to manifest itself. Counsel say that this presumption, if it existed at all, was insufficient; and furthermore, that, if it existed at all, it was negatived and overcome by a contrary presumption arising out of the fact, as testified to by witnesses, that the cars in which the cattle were shipped had not been recently in quarantined or tick-infested portions of the country, and that such cars had been recently cleansed of possible fever ticks by approved and effective processes of disinfection and tick extermination. We have carefully examined all of the evidence in the case and are unanimously of the opinion that it was sufficient to entitle the jury to consider the disputed question of fact and to support the verdict rendered. The evidence was prolix in its details and the case anomalous in character, and no benefit to the litigating parties or to the litigating public would be subserved by setting out the claimed facts or discussing the various legal propositions arising thereon.
The cattle were purchased for the defendant in error, the plaintiff below, by one E. H. Nichols, under an agreement between the two that the plaintiff should furnish the money and Nichols should giYe his time and attention to the purchasing and shipping of the cattle, and that upon their sale the profit and loss of the venture should be divided equally between them, including the loss, if any, that might be sustained by Texas fever. Mr. Nichols testified as follows :
"Ques. You bought the cattle? Ans. Yes, sir.
"Q,. You have an interest in this suit, haven’t you? A. No, sir.
"Q. That is, you are a part owner in these cattle? A. No, sir; except as to the sale óf the cattle.
"Q. How do you explain that? What do you mean by it? A. That is, I was to be governed in buying those cattle as to the sale of the cattle whether I had any commission in the cattle or not. I bought them for Mr. Hucklebridge.
"Q,. You are to have a certain per cent, in the profit of the cattle? A. Yes, sir, and the losses.
"Q. Mr. Nichols, I understand you bought these cattle for Mr. Hucklebridge? A. Yes, sir.
"Q,. And they belonged to him? A. Yes, sir.
"Q,. You had a contract with Mr. Hucklebridge about your pay? A. Yes, sir.
"Q. Your commission or whatever you call it ? A. Yes, sir.
"Q. And that was to be based on the profits of the cattle? A. Yes, sir, or losses.”
Mr. Hucklebridge testified as follows :
“Ques. Who bought these cattle? Ans. Mr. Nichols.
"Q. State what arrangement there was between you and Mr. Nichols about the purchase of these cattle. A. Mr. Nichols was to go out in the country and buy a bunch of cattle. I was to pay for them, ship them in here, and sell them. If there was a profit we would divide ; if there was a loss we would each stand his part.
"Q,. Were a part of these cattle put into his pasture ? Mr. Nichols has a pasture here. Was he to furnish a pasture, or you, or how was that done? A. I was to pay all expenses until the cattle were sold.
“Q,. And did he contribute any pasturage? A. No, sir ; only by his charging me with it.
“Q,. The cattle were put in his pasture and he charged you with a certain amount for pasturage? A. Yes, sir.”
Upon the facts disclosed by this testimony, the question arises whether Hucklebridge and Nichols were partners in the cattle in such way as to make the latter a necessary party to a suit for the recovery of injuries committed to them. In the case of Shepard v. Pratt, 16 Kan. 209, it was held:
"Where a party without any interest in the property is, by agreement, to receive as compensation for his services, and only as compensation therefor, a certain proportion of the profits, and is neither held out to the world as a partner, nor through the negligence of the owner permitted to hold himself out as a partner, he is not a partner, either as to the owner or third parties.”
However, it'will be observed in that case that the partnership extended no further than to the profits of the venture. There was no agreement to share the losses, if any should be sustained. In this case the determination of the question of partnership involves the consideration of an additional factor — an agreement to bear losses. This, in our judgment, carries to a different conclusion than the one reached in the case of Shepard v. Pratt, supra. The text of Lindley on Partnerships, pages 10, 11, is quite emphatic to the point that a relationship such as the one before us is a partnership.
"Whether an agreement creates a partnership or not depends on the real intention of the parties to it. If the agreement is not in writing the intention of the parties must be ascertained from their words and conduct. If the agreement is in writing its true construction must be determined; but, as.will be more fully shown in a subsequent chapter, even a written contract may be departed from and modified by a new verbal agreement between all the partners proved by conduct inconsistent with the written document. But an agreement to share profits and losses may be said to be the type of a partnership contract. Whatever difference of opinion there may be as to other matters, persons engaged in any trade, business or adventure upon the terms of sharing the profits and losses arising therefrom are 'necessarily to some extent partners in that trade, business, or adventure; nor is the writer aware of any case in which persons who have agreed to share profits and losses have been held not to be partners. But it does not follow that each of several persons who share profits and losses has all the rights which partners usually have. For example, a person may share profits and losses and-yet have no right actively to interfere with the management of the business; or he may have no such right to dissolve as an ordinary partner has; or he may have no right to share the good-will of the business on a dissolution; and other instances of restricted rights may be suggested. What in any given case the rights of a particular partner are depends ott the agreement into which he has entered ; but unless the word ‘partner’ is to be deprived of all definite meaning its proper application to persons who share profits and losses can hardly be questioned.”
In 17 American and English Encyclopedia of Law, 1st ed., p. 888, it is said :
‘‘So, labor, as viewed from a partnership standpoint, being capital, where one person contributes money or property and another his personal services to the capital stock, there being a community of interest in the profits and losses, it is likewise a partnership, though in such case the party contributing services acquires no interest in any of the partnership capital that is not converted into profits, and in order to constitute the partnership in such case community of losses as well as profits is essential.”
It would thus seem that Hucklebridge and Nichols were partners in the cattle venture. The thing for which suit was brought was the very thing for which Nichols was liable to Hucklebridge — losses on the cattle. He was therefore a partner in that sense which required his joinder in the suit. It is no answer to say that Nichols, knowing that Hucklebridge was prosecuting a suit in his own name for the recovery of their losses, permitted him to do so and aided him in doing so by testifying as a witness in his behalf. Such considerations might furnish grounds for an equitable estoppel should Nichols thereafter bring suit against the railway company to recover for the same injuries, but the railway company is entitled to more than an estoppel in pais against Nichols. It is entitled to an estoppel of record. It is entitled to that estoppel which would result from his joinder in the suit, and the recovery of a judgment in his name or his defeat in attempting to recover it. Our conclusion, therefore, is that Nichols, being jointly interested with Hucklebridge in the very subject-matter of the suit, to wit, the losses incurred in the cattle venture, was a partner with him, and therefore a necessary party to the recovery of the partnership res.
I am unable to concur in the above. I do not believe the relationship between Nichols and Hucklebridge constituted them partners. I think their relations were those of employer and employee. Nichols’s share in the residuum of the proceeds of the sale of the cattle after payment of losses would go to him as compensation for services and not as partnership profits. In the event of no profits there would be no compensation. It is true that in the event of losses in excess of profits there would be a liability to Hueklebridge on the part of Nichols, but that liability would grow out of .an express contract, not out of a mutual relation. I think that when a right to the profits or a liability for the losses of a venture between two or more persons exists by virtue of an express contract to that effect, and does not exist in the relations of the parties, the right and liability both exist qua debt and not by virtue of a partnership. To that effect is the opinion of the high court of justice of Ontario, in what seems to me a well-considered case — Merchants’ Bank v. Thompson, 3 Ont. 541-565. To the same effect, although not expressed in the same terms, is another case quite similar to the one under consideration — Marsh v. Northwestern National Ins. Co. 3 Biss. 351, Fed. Cas. No. 9118.
It would appear from the record that the fact of Nichols’s partnership relation was not known to the plaintiff in error, the defendant below, until it was disclosed at the trial on his cross-examination. No objection on the ground of a defect of parties plaintiff was then made. It was first made upon demurrer to plaintiff’s evidence. It was afterward raised upon requests for instructions. A majority of the court are of the opinion that it was properly raised by the defendant, and that the adverse rulings of the court upon the demurrer to the evidence and the proffered instruction are sufficient grounds upon which to predicate the claim of error. It is true that the civil code, section 91 (Gen. Stat. 1897, ch. 95, § 91; Gen. Stat. 1899, § 4341), declares that if the objections to a petition do not appear upon its face they must be made by answer, and if not made in that way will be deemed waived, excepting,objections to the jurisdiction of the court and the sufficiency of the facts stated to constitute a cause of action, but that provision applies to defects in the petition known to the defendant in time to plead them before the making up of the issues in the case, and not' to defects concealed by the plaintiff and discovered on the trial by the defendant. In the latter instance there is no opportunity to plead the discovered defect except by way of amendment, to be allowed on the trial, in the discretion of the court. The plaintiff, having concealed the real fact and thus misled his adversary, cannot object that the defendant’s answer lacks a disclosure of the facts which he himself should have been the first to plead. He will be deemed to have waived the formal pleading of that by the defendant which he himself should have been the first to disclose, and he cannot object that the defendant takes the only available means to protect himself against the false petition.
I do not concur in the above and I am authorized by Mr. Justice Ellis to say that he does not concur in it. The decision of the majority interpolates into the section of the code quoted an exception or proviso which has no existence either in its language or its implications. The code says that defects not appearing on the face of petitions must be taken advantage of by answer ; otherwise, they will be deemed waived ; and it elsewhere makes provision for taking advantage of such defects as do not appear upon the face of the petition and were not known to exist until disclosed upon the trial. The civil code, section 339 (Gen. Stat. 3897, ch. 95, §139; Gen. Stat. 1899, § 4389) , authorizes the making of amendments to conform pleadings to the facts proved upon the trial, and it is not the law in all cases that the allowance of such amendment is in the discretion of the court. The refusal of an amendment to a defendant’s answer, by way of objection to a plaintiff’s petition, for a defect in such petition unknown to the defendant, and concealed by the plaintiff, and discovered only upon the trial of the case, is not within the discretion of the court. At any rate, to refuse such amendment would be an abuse of the court’s discretion. However, the question has been several times heretofore decided. (Kansas Pacific Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 235-242; Seip, Sheriff, etc., v. Tilghman, 23 id. 290; Coulson v. Wing, 42 id. 507, 22 Pac. 570.) In all these cases there was a defect of parties plaintiff, such as in the case before us, remaining undiscovered until the trial, and in all of them it was ruled that the objection could be raised only by answer.
The cattle in question were brought to the shipping point from Oklahoma, which is south of the thirty-seventh parallel of latitude. The regulations of the state live-stock sanitary commission require an inspection of cattle coming from points below that parallel. This inspection was not had in this instance. The fact that it was not had was not discovered by defendant until upon the trial. It then asked leave to amend its answer by setting up plaintiff’s dereliction in failing to submit his cattle to inspection. The court refused the leave asked. There was no error in this. That plaintiff violated the regulations of the live-stock commission in bringing his cattle into the state without submitting them to inspection constituted no excuse to the defendant for communicating disease to them after they got here.
Claims of error other than those above discussed have been raised, but we do not think it necessary to give them consideration. For the error of the court in overruling the defendant’s objection to the prosecution of the action in the name of one partner only, the judgment of the court below is reversed, for such proceedings in accordance with this opinion as may be hereafter necessary.
Doster, C. J., dissenting from first and second paragraphs of the syllabus and corresponding portions of the opinion. ’ | [
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Error from Shawnee district court.
Affirmed. | [
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Appeal from Smith district court.
Affirmed. | [
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Per Curiam:
J. W. Burns filed a petition under chapter 267, Laws of 1897 (Gen. Stat. 1897, ch. 41, §§1-8; Gen. Stat. 1899, §§7538-7545), praying for the vacation of the streets and alleys of Robinson’s First addition to the city of Hutchinson, and for the exclusion of the addition from the corporate boundaries of the city. The tract in question embraced an entire quarter-section. The questions of fact involved were submitted to a jury. Such of these questions as are necessary to quote, with answers thereto, were as follows:
“Ques. Is the bonded indebtedness of the city of Hutchinson at the present time the sum of $257,500 ? Ans. About $200,000.
“Q. How much of said bonded debt was issued by said city while said addition was a part thereof? A. $196,500.
“ Q. Will the assessed value of the taxable property of the city be reduced by exclusion of said addition from the city ? A. Yes.
“Q. Is not the object of the owner of this addition in asking its exclusion from the city to escape city taxation? A. Yes.
“Q,. Has any party but the plaintiff any private rights in the land in controversy that would be affected by the vacation of said plat in controversy and • excluding the same from the boundaries of the city of Hutchinson? • A. No.
“Q. Does the public use any part of the property sought to be vacated for any purpose ? A. No.
“Q. Is the land in controversy sought to be vacated of any value except for farming purposes ? A. No.
“Q. Is the land sought to be vacated used other than for farming purposes ? A. No.
“Q. Is not the land sought to be vacated on the outside of and away from any of the resident or business portion of the city of Plutchinson ? A. Yes.
“Q. Will the public suffer any loss or inconvenience other than the loss to the city of taxes ? A. No.
‘ ‘ Q,. Has the city ever worked or used any of the streets and alleys sought to be vacated ? A. No.
“Q. Has the city ever taken and asserted any possession over the streets and alleys in Robinson’s First addition ? A. No.
“Q. Is the public now using any of the streets and alleys of Robinson’s First addition ? A. No.
“Q,. Is not the prospect of the public ever using any of the streets and alleys of Robinson’s First addition for travel remote and uncertain? A. Yes.
“Q. Will there be any public right as defined by the court injured or endangered by the vacation of Robinson’s First addition? A. No.
“Q,. Will there be any public right injured or endangered except the one of taxes which may be levied by the excluding said land from the corporate limits of the city of Hutchinson? A. No.
“Q. Has any person other than the petitioner any special interest that would be directly injured by the vacation of Robinson’s addition and its streets and alleys? A. No'.
“Q. Is there a single resident or business house in said city outside and beyond said addition? A. No.
‘ ‘ Q. Does any person in said city live outside and beyond said addition? A. No.”
At the close of the trial, the court concluded from the findings of the jury that “the rights of the bondholders of the city would be injured if the premises were excluded from the city, and also that the ability of the city to pay and sell its bonds would be injured” ; wherefore it refused to exclude the land from the limits of the city, but ordered that the streets, alleys, etc., be vacated. Error has been prosecuted to this court.
We have a right to complain of counsel on both sides for their meager presentation of the law. The statute (Gen. Stat. 1897, ch. 41, § 4; Gen. Stat. 1899, §7541) provides that “if the court be satisfied that no public or private right will be injured or endangered, it shall order such corporate boundaries to be changed by the exclusion of such lands therefrom” ; and also it declares (Gen. Stat. 1897, ch. 41, § 7; Gen. Stat. 1899, §7544) that “The terms ‘public loss or inconvenience/ or ‘public right/ shall not be construed to extend to the taxes which may be levied upon the land vacated or excluded.” So far, then, as concerns the loss of taxation to the city by the exclusion of the tract from its boundaries, the statute decrees it to be remediless ; but the court below rested its judgment upon the ground that the private rights of the holders of the city’s bonds would be injured. However, the question whether the rights of the bondholders would be injured, and, if they would, whether they are of that class denominated in the statute “private rights,” and which the statute seeks to guard, has been discussed by counsel only in the briefest and most general way and without citation to authorities. In the multiplicity of our labors we cannot find time to brief cases for litigants. We require counsel to do that. Nevertheless, in the best thought we have been able to give to the question our judgment is that the court below was in error. Section 6 of the statute (Gen. Stat. 1897, ch. 4T, § 6; Gen. Stat. 1899, § 7543) declares :
“Any party to any proceedings herein shall have the right to have any matters of fact in controversy in said proceedings submitted to the determination of a jury in the district court of the county where the property is situate.”
We construe this statute to mean that the findings of the jury are controlling upon the court, and we think that the implication from the findings made is that no private right would be injured or endangered by the exclusion of the tract. Whether that be so or not, it is difficult to perceive how the exclusion of a quarter-section of farming land from the boundaries of a city like Hutchinson would injure or endanger the bondholders’ security.
The judgment of the court below is reversed, with direction to grant the prayer of the petitioner. | [
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The opinion of the court was delivered by
Doster, C. J. :
On motion for rehearing, it was strenuously urged that the decision of this case conflicts with the former cases of Reed, Ex’r, v. Hazleton, 37 Kan. 321, 15 Pac. 177, and Hazleton v. Reed, 46 id. 73, 26 Pac. 450. These cases were not called to our attention upon the former hearing, and were overlooked by us ; hence we have deemed it well to renew the consideration of the present case, to discover the applicability to it, if any there be, of the former decisions.
The case of Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, was a reappearing phase of Reed, Ex’r, v. Hazleton, 37 id. 321, 15 Pac. 177. The two may be, therefore, considered together. The facts of those cases were that John Hazleton, at the solicitation of his father-in-law, Henry Rickett, removed from his home, in Morris county, to the latter’s home, in Ottawa county. The two made an oral agreement, which about a year thereafter was reduced to writing, and which provided in substance : (1) That Hazleton was to feed and care for Rickett’s cattle for a share of their increase ; (2) Hazleton was to make his home with Rickett; (3) Rickett was to retain possession of his home and make such improvements on it as he felt able to make ; (4) Hazleton was to take care of Rickett in health and sickness; (5) the paper read: “After the death of said Henry Rickett, the right and title to the north half of the northwest quarter of section 13, township 11, range 1 west, of Ottawa county, Kansas, shall vest in the said John Hazleton.” The question in the case arose upon the instrument of writing executed by the parties, and it was viewed as a question of construction of contract, apart from any extraneous facts. In the first case it was remarked : “We shall not discuss the alleged error that the findings of fact are not within the issues of this case; if they are, they would not alter the construction which we believe ought to be placed upon this instrument.” In the latter case it was said: “Upon the part of the plaintiffs, it is claimed that, within the terms of the contract, Rickett was under obligation to make such provision by deed or will as would vest the title to the land in Hazleton.” Viewing the question in the case as one of interpretation of words merely, the court ruled, as expressed in the latter case :
“It may be laid down as a general rule, that a written instrument which discloses the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is testamentary in its character, and not a deed or contract, and may be revoked.”
It is, however, admitted in both cases and expressed in the first one that, “if an instrument in writing concerning real estate passes a present interest therein, although the right to its possession and enjoyment may not accrue until some future time, it is a contract.”
It is plain, therefore, that there is no conflict between the abstract principle of law heretofore declared in this case and the former decisions to which we have adverted. A contention, therefore, can' only exist as to the similarity of facts of the two cases. The facts are dissimilar, and the law, in consequence, is dissimilar. We think that, by the allegations of the petition in this case, the truthfulness of which allegations was admitted by the demurrer, a present interest in the land, the subject of negotiation between Elam S. Hitchcock and the Newtons, his daughter and son-in-law, passed to the latter.
The petition averred, among other things, that plaintiffs, at the request of Hitchcock, built a dwelling-house upon the latter’s town lots, at a cost of $500, under a promise that if they would do so he would convey the property to them ; that they resided in the dwelling upon the lots for about a year, and then gave possession to Hitchcock, the latter continuing his promise to make the conveyance. The petition, which was in the form of a bill in chancery, then averred as follows:
“Your orator further represents that in 1882 the matter of the deed to the lots or some provision in lieu of it again arose, and the said Elam offered in writing to make testamentary provision for your oratrix of either the farm or the lots aforesaid, and expressed a desire that your oratrix accept the farm in lieu of the lots, and also stated to your orator that he would in the future need help to improve and carry on the farm, and that he must hold on to the farm for its income during the lifetime of him and his said wife, Susan. Whereupon your orator promptly responded, in substance, that a testamentary devise of the farm land to your oratrix would be satisfactory to them, and your orator would endeavor in all cases to assist him, the said Elam, with such money and otherwise as his necessities might require in paying taxes, making and keeping up improvements on said farm, and thus insure the said Elam and Susan a sufficient income to provide for all their bodily wants and physical comfort during their declining years. And it was thus arranged as aforesaid that your oratrix should receive such farm in lieu of said town lots, or said debt growing out of the improvement of said, lots by your orator as aforesaid; and that the said house and lots, as your orator understood, together with certain insurance money expected to be derived from certain insurance policies which your orators understood were carried by said Elam, should become the property of them, the said Cornelia Lyon and George Hitchcock, as the said Elam might devise or bequeath. Your orators further represent that, soon after said agreement was concluded as aforesaid, the said Elam, in writing, gave your orators to understand that he had made the provision for your oratrix by deed of conveyance or testamentary devise, to take effect after the demise of himself and said Susan B. Hitchcock, and that he would never change it; and your orators aver that they never knew that said’Elam ever made any other provision than as aforesaid until after his decease; and your orators, relying upon the agreement aforesaid, and the good faith of said Elam in the premises, and the provision for your orator alleged to have been made as aforesaid, thereafter at divers times during many years, and at the request of said Elam S. Hitchcock, furnished him with large sums of money to be used in paying taxes, building new buildings, and repairing and constructing old buildings and new fences, setting out fruit-trees, subduing or breaking the prairie sod, and making pastures on the said farm; and in consideration of said promise your orators relinquished their claim upon the house and lots hereinbefore described.”
By reference to the statement of facts made in the former opinion, it will be observed that in September, 1882, the father wrote a letter to 'the son-in-law in which he gave the latter an option to take the farm or take other property. A paragraph of the petition not noted in the former statement of facts seems important to quote now in connection with the letter of September, just mentioned. Changing from the style of a bill in chancery, the petition continued as follows ;
“Plaintiffs allege that,in answer to the proposition contained in the September letter of 1882 of said E. S. Hitchcock, the said E. B. Newton, to further affirm his desire to take the farm, as expressed in his letter of August 23, 1882, wrote a letter to said Hitchcock, an exact copy of which cannot be given because the same is not now in their possession, substantially expressing as before a willingness to be satisfied with the division as stated in said Hitchcock’s letter of August 18, 1882; also reaffirming a willingness to contribute to the care and support of said Hitchcock and wife and to make advances of money for taxes, improvements, etc., and to consider the $500 by the said Hitchcock acknowledged to have been furnished by the said Newto'n in building a house on said Hitchcock’s lots as satisfied and paid by the greater value of said farm, as shown by said Hitchcock in his letter of August, 18, 1882.”
In view of the above-quoted allegations of the petition, and in view of the correspondence between the parties quoted or referred to in the former statement of facts, it is impossible to escape the conclusion that the parties intended that a present interest in the farm should vest in the Newtons, The correspondence itself may not sufficiently disclose such intention, but the allegations of fact in the petition, taken in connection with the correspondence, do disclose it. If the evidence furnished by the letters can be supplemented by further competent evidence, as the allegations of the petition supplement the correspondence, the passing of a present equitable interest in the land will be proved. An important element of such proof will be the consideration which passed from the Newtons to Hitchcock. Such element was lacking in Reed v. Hazleton, supra, or, at least, was not so clearly discernible in that case as to be taken into account in its determination. Hitchcock put the Newtons in the possession of the town lots, with a promise of conveyance. Upon the faith of that promise and in pursuance of their right of possession, the Newtons made valuable and lasting improvements upon the lots. They could have maintained an action for specific performance and compelled the execution of the conveyance. (Galbraith, v. Galbraith, 5 Kan. 402.) That right to a conveyance remained in the Newtons. It was surrendered in consideration of a promise to devise other real property, subject only to a life-estate in the devisor and his wife. This was an arrangement taking effect in preesenti for the adjustment of property interests in futuro. It was followed by the making by the Newtons of valuable and lasting improvements upon the farm, or, what is the same thing, furnishing money to Hitchcoek to make such improvements, and this money was furnished, according to the allegations of the petition, upon the faith of a valid contract and an unrevoked intention to devise the land upon which the improvements were made.
The case is one where the owner of land surrenders it to another upon the written agreement of that other that he shall have an equivalent tract of land to be secured to him by devise. This was a contract for the interchange of present interests in real property, and, although the time when one of the parties was to come into the enjoyment of his interest was deferred to the future, yet that did not make it any the less a present interest. If one conveys a valuable present interest in property, in consideration of an agreement to make a future grant of a specifically described equivalent, the conclusion is strong that the parties intended a present passing of property interests. If, however, the agreement consists of mutual promises, unexecuted on either side, and to be executed by acts of service on the one side, but with no binding obligation on that side to perform the service, and to be executed on the other side only when the service should be performed, it cannot be said that any present property interest passes. Now, that was the Reed-Hazelton contract. What Hazelton was to do for Rickett was to perform services. There was, however, no binding obligation upon him to perform the service. Specific performance to compel the service would not have lain, nor damages for its non-performance. Assuming that which was not expressed in the contract, but which perhaps was inferable from its terms, t.o wit, the agreement to perform services for the agreement to devise, yet the interest in the land could not pass until the services were performed ; therefore the promised interest in the land could not take effect in the lifetime of the promisor.
We adhere to our former view, that the demurrer to the petition should have been overruled. As before ordered, the judgment of the court below will be reversed. | [
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The opinion of the court was delivered by
Smith, J.:
Under the statutes of this state, where the real estate in controversy is situated, Lucina M. Ives, the widow of the testator, inherited the whole of it. (Gen. Stat. 1899, § 2459; Gen. Stat. 1897, ch. 109, § 19.) The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. (Woern. Am. Law Adm. § 168.) The decree of the supreme court in Jefferson county, New York, in the suit brought by the widow against the legatees and others, in which there is a recital that the defendants below were heirs of Willard Ives, deceased, and entitled to participate in the distribution of his estate, can have no force here.
The deceased left surviving him no children, brother, sister, or descendants of any, or father or mother, and the decree rendered in the New York court could in no manner affect the descent of the property to the widow, as fixed by our statute; nor could the New York court pass on the title to real estate in Kansas. In the case of Carpenter v. Strange, 141 U. S. 87, 105, 11 Sup. Ct. 960, 966, 35 L. Ed. 640, 647, it was held that the supreme court of New York was without power to adjudge the conveyance by a testator to the defendant of lands in Tennessee to be fraudulent and void, and to annul the same. The court said :
“The real estate was situated in Tennessee and governed by the law of its situs, and while by means of its power over the person of a party a court of equity may in a proper case compel him to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property nor affect the title, but is made effectual through the coercion of the defendant; as, for instance, by directing a deed to be executed or canceled by or on behalf of the party. The court has no inherent power, by the mere force of its' decree, to annul a deed or to establish a title.”
See, also, McCartney v. Osburn et al., 118 Ill. 403, 9 N. E. 210; Watkins v. Holman et al., 16 Pet. 25, 10 L. Ed. 873.
It is stated by counsel for defendants in error that the ground on which the court below rendered judgment in favor of the parties represented by him was that after the dismissal of the action against the executrix the plaintiff below was in the position of seeking to recover on a stockholder’s liability, with no stockholder in court against whom a judgment could be obtained. This brings us to a consideration of the necessity of the presence of the executrix of the will of Willard Ives, deceased, before the court in an action to enforce such a liability. It will be observed that Lucina M. Ives, the widow, was a party in her individual capacity only, and was in default for answer.
In McLean v. Webster, 45 Kan. 644, 26 Pac. 10, a creditor of a decedent, without taking out letters of administration, was allowed to subject real estate in the possession of the heir to the satisfaction of the creditor’s claim, there being no other debts against the estate. The petition in the McLean case described the land which descended to the heir, and prayed that the same be held subject to the payment of the debt sued on. There was an attachment in that case as in this, ancillary to the main action. In both cases the allegations in the petitions and the relief demanded were intended to operate as an equitable attachment of the real estate sought to be appropriated. The decision in the McLean case proceeds on the principle that the heir at law or devisee is personally liable for the debts of the ancestor to the value of the property received by him. See, also, Rohrbaugh v. Hamblin, 57 Kan. 393, 46 Pac. 705.
Counsel for defendants in error lays stress on the statutory provision that permits stockholders to be charged by motion, or that permits the plaintiff in the execution to proceed by action to charge the stockholders with the amount of his judgment. (Gen. Stat. 1899, §1192 ; Gen. Stat. 1897, ch. 66, §50.) The relation between a stockholder and the corporation is contractual. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.) If, in the present case, the creditor had held the note of Ives, the stockholder, for the amount of his statutory liability, and had brought an action thereon to subject this land to its payment, his right to recover would have been sustained, under the authority of McLean v. Webster, supra. The obligation is as much contractual in its nature in this as in the supposed case. There was no person interested in the estate of Willard Ives, deceased, except Lucina M. Ives, his widow, to whom this land descended. There was nothing more to be done by her as executrix in the way of administering the trust. All the debts and legacies were paid and she retained the bare title of executrix, with nothing further to administer on. Had this corporation been a going concern, dividends earned on its stock could safely have been paid to her as an individual, free from all liability of the corporation to a subsequently-appointed executor. (Vail v. Anderson, 61 Minn. 552, 64 N. W. 47.) At the time this action was tried below, Mrs. Ives, in her representative capacity, was á mere trustee, nominally for creditors and legatees, but in fact for herself alone. She was the sole beneficiary.
In the case of Railway Co. v. Mills, 57 Kan. 687, 47 Pac. 834, a widow, appointed administratrix of the estate of her dead husband in Missouri, in such capacity brought suit in our courts against a railway company for wrongfully causing her husband’s death, which occurred in this state. Under the statutes of Missouri, recovery in such actions is limited to the wife of the deceased, where such relation exists. There being an allegation in the petition that she was the widow, it was held that the right of action was not limited to her in her representative capacity, but that she could recover in her character as widow.
As before stated, the heir at law inheriting property is chargeable with the debts of the ancestor to the valúe of the property received. Under this rule, Mrs. Ives, being the sole heir under our law, can be held liable as an individual up to the value of the property. It is not necessary that the liability be fixed by a judgment against the representative of the dead stockholder in such case. The present action assimilates itself to that of a proceeding in rem. In no event can the inheritor be compelled to pay more than the value of the property. We can see no good reason for requiring the executrix of the deceased stockholder to be made a party, inasmuch as the relief sought is against the heir alone, by reason of her heirship, for an amount measured by the worth of what she inherited from the stockholder. We think judgment should have been entered against Mrs. Ives in the court below. It follows from what has been said that the land, having been attached at the commencement of the action as the property of Lucina M. Ives, and she being liable to the extent stated for the debt of the decedent, the court did not err in overruling the motion to dissolve the attachment.
Counsel for defendants in error urges that the plaintiff below ought not to be allowed to proceed against real estate in Kansas because there was personal property in the hands of the executrix in New York which should have been first exhausted. We cannot concur with him in this contention. In Woerner on American Law of Administration, 2d ed., section 158, it is said:
“But the administration in each state is wholly independent, whether in the hands of the same or of different executors or administrators, in no wise impaired, abridged or affected by a previous and, a fortiori, by a subsequent, grant of administration in another state.”
In the case of Rosenthal, Adm’r, etc., v. Renick et al., 44 Ill. 203, it was held that a citizen of another state, where the administration had been granted, might come to the state of Illinois and cause administration to be taken out there, a claim to be allowed, and real estate sold for its payment, and that it was not necessary to show that the personal estate in the other state had been exhausted. So in Lawrence’s Appeal from Probate, 49 Conn. 411, a part of the syllabus reads:
“Held, to be no objection to an order for the sale of real estate here to pay debts, that there was personal property in the state of principal administration sufficient for their payment. And that a court of probate had no right, as a matter of discretion, to refuse to order a sale of real estate here, in view of the personal property there.”
The claim that the liability must be enforced by a receiver of the insolvent corporation, as provided by sections 14 and 15 of chapter 10 of the Laws of 1898 (Gen. Stat. 1899, §§1260, 1274), has been decided against the contention of defendants in error in the case of Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.
The judgment of the court below will be reversed, with directions to the district court to proceed further in accordance with this opinion.
Dosteb, O. J., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In an action brought by the First National Bank of Fort Scott against Charles H. Elliott, to recover on certain promissory notes, the plaintiff bank filed an affidavit in garnishment, stating that it was indebted to Elliott. A summons in garnishment was thereupon issued requiring the bank to answer as garnishee, which it did, stating that it was indebted to Elliott in an amount exceeding |2500. A motion filed by Elliott to set aside and quash the garnishment proceedings was sustained by the district court.
The question before us is whether a plaintiff in an action upon contract for the recovery of money can make himself a garnishee, and by garnishment proceedings thus appropriate money due and owing by him to the defendant. Many cases have been cited by counsel on both sides of the question. We think, however, that the matter is one of statutory interpretation. The nature of such proceedings under our code is thus stated :
“The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto; but when the garnishment is not in aid of an execution, no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment, the garnishee action shall be dismissed with costs,” etc. (Gen. Stat. 1897, ch. 95, § 238 ; Gen. Stat. 1899, §4460.)
And further, by section 234 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §4456), if any garnishee, duly summoned, fail to file his affidavit byway of answer, the court may render judgment against him for the amount of the judgment which the plaintiff shall recover against the defendant.
It is a general rule that the same person cannot be both a plaintiff and a defendant at the same time, in the same suit, either solely or with others. (15 Encyc. Pl. & Pr.481.) Under our statute, the plaintiff would be entitled to execution if he failed to pay, after judgment rendered against him, thus giving rise to the-anomalous proceeding of a party issuing an execution against himself. In 14 American and English Encyclopedia of Law (2d ed.), at page 809, under the title-“Plaintiff as garnishee,” the authorities on the question under consideration are collected, and it is said in the text that the best-considered cases hold that the-plaintiff cannot summon himself as garnishee. We cannot take time to review, or even cite, the numerous-decisions in which this question has been discussed, but will refer to the encyclopedias as sources of information on the subject. We find no valid objection to the method adopted by the defendant in error in moving to quash the garnishment proceedings. He was entitled to the order which he obtained under some sort of a demand therefor, and we think that the form of his application was appropriate to the relief sought. (Manufacturing Co. v. August, 51 Kan. 59, 32 Pac. 636.)
The judgment of the court below will be affirmed.
Pollock, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action on the covenant of warranty contained in a deed executed by L. M. Bedell to Cyrus L. Christy. At a judicial sale Bedell purchased a tract of land in Elk county. After the confirmation of the sale and the execution of a sheriff’s deed he transferred the. land to Christy by a conveyance containing the usual covenants of warranty. At that time Jackson C. and Jemima Cunningham, who were the mortgagors and judgment debtors, were in possession of the land, but soon afterward they surrendered possession to Christy and rented the land from him for the following year. About the time of the termination of the lease the Cunninghams brought an action to set aside the mortgage sale and all óf the subsequent proceedings and conveyances, alleging that-the plaintiff in the foreclosure proceedings had died after the judgment and before the judicial sale, and that certain revivor proceedings had were without their consent or notice to them, and were, therefore, without validity. The district court adopted that view and set aside the sale as well as all proceedings subsequent to the foreclosure judgment. That case was brought to this court for review, where the judgment was reversed, the court holding the revivor proceedings to be valid. (Smith v. Cunningham, 59 Kan. 552, 53 Pac. 760.)
After the rendition of that judgment in the district court and before the reversal of the same in this court, the present action was brought by Christy, on the theory that there had been a breach of the covenant of warranty. The trial court ruled that there had been no breach, and that, therefore, there was no right of recovery, but its judgment was reversed by the court of appeals. (Christy v. Bedell, 10 Kan. App. -, 61 Pac. 1095.) That court held that as the title had not failed there was no breach of the covenant of seizin, but because Christy had in some way lost possession to the Cunninghams there was a breach of the covenant of quiet enjoyment. It is to be observed that Christy did not in his petition ask for a recovery on the covenant of quiet enjoyment, but sought to recover only on the covenant of warranty; and the court of appeals must have proceeded upon the theory that the two covenants were identical, or that the covenant of warranty included that of quiet enjoyment.
The district court ruled correctly, we think, in holding that there was no breach of the covenant of warranty, and also that Christy was not entitled to recover on any of the covenants of the deed. The record shows that the title acquired by him from Bedell was complete and indefeasible. He not only had the para-amount title, but he obtained possession of the land under that title. The Cunninghams, who were upon the land when it was conveyed, surrendered possession to Christy and for a year or more acknowledged him as their landlord. It is true that afterward they asserted a hostile claim to the land ; but there was no excuse or reason for Christy’s yielding possession to them, because they, being his tenants, could not dispute his title or right of possession. None of the covenants of the deed assured Christy against the action of trespassers or intruders without title or interest in the land, nor against difficulties which he might ex perience in getting rid of tenants when their terms had expired. The controlling consideration is that there was no adverse right or outstanding paramount title when the covenant was made.
Assuming, as we may, that the covenants of warranty and quiet enjoyment are mainly identical, and if we further assume that the petition of Christy alleged a right of recovery on the covenant of quiet enjoyment, he must fail, as the facts show that the covenant was not broken. Both of the covenants relate to the possession and assure quiet enjoyment of the estate conveyed. To constitute a breach, it is generally held that there must be not only a disturbance of possession, but the eviction must be under an adverse and paramount title which existed when the covenant was made. An entry by an intruder, or by any one else, without lawful right and superior title is not a breach of the covenants, and in such case the remedy of the grantee is against the wrong-doers and not the covenantor.
In Kelly v. The Dutch Church of Schenectady, 2 Hill, 105, it was held that a covenant of warranty is not broken by the entry of a wrong-doer, and it was said :
“It is now settled that, in an action upon a general covenant for quiet enjoyment, the plaintiff must aver and prove that the person by whom he was evicted had a lawful title to the property, and that he had such title before or at the time of the conveyance by the defendant. It must be both a lawful and a superior title.”
See, also, Webb v. Alexander, 7 Wend. 281; Knapp v. Marlboro, 34 Vt. 235; Hoppes v. Cheek et al., 21 Ark. 585; Mills v. Rice, 3 Neb. 76; Beddoe’s Ex’r v. Wadsworth, 21 Wend. 120; Wilder v. Ireland, 8 Jones L. 88; Paries v. Smith, 11 Rich. L. 80; Ellis & al. v. Welch, 6 Mass. 247; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; 8 A. & E. Encycl. of L., 2d ed., 97-101.
It is true that a claim was hostilely asserted, and chat a judgment was given which for a time appeared to uphold the claim and to invalidate Christy's title, but proceedings in error were at once instituted and that judgment was set aside. The decision not only vacated the judgment, but it determined that the foreclosure proceedings were regular, that Bedell acquired a good title at the judicial sale, and that he conveyed to Christy a title that was indefeasible. He was not evicted by anyone having a lawful*and superior title, and he was not justified in yielding possession to the Cunninghams, or in assuming that they had a right to possession' under the claim made by them. A claim not based on any title or interest, or which rests on something arising after the covenant was made, gives the covenantee no right of action against the covenantor.
The judgment of the court of appeals will be reversed and the judgment of the district court will be affirmed. | [
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Error from Sedgwick district court.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Walter Denning and Mahlon E. Johnson brought suit against George W. Yount before a justice of the peace, alleging that they were partners engaged in business as real-estate agents, and that the defendant was indebted to them in the sum of $265 for commission on a sale of land negotiated by them. Defendant denied liability, and among other defenses set up an ordinance of the city of Winfield, by the provisions of which it was made unlawful for any person, firm or company to carry on in that city the business of real-estate and loan agents or brokers without paying a semiannual license tax of ten dollars. It was conceded that the plaintiffs had not complied with such ordinance. They obtained judgment in that court, which was reversed here. (Yount v. Denning, 52 Kan. 629, 35 Pac. 207.)
This court decided that the failure of Denning & Johnson to pay the license tax imposed by the munici pality where they conducted the real-estate business rendered the prosecution of that calling by them unlawful, and that no recovery could be had for the commission claimed by them on the sale of said property. This decision was made at the January term, 1894, and the cause remanded to the district court for a new trial. After the case was docketed for another trial in the court below, the city ordinance above referred to was repealed, without any saving clause. Upon a second trial, it was contended that such repeal gave the plaintiffs below the right to recover to the same extent as if the ordinance had never existed. The trial court, however, did not take this view of the law, and plaintiffs were not permitted to recover, which judgment was affirmed by the court of appeals; and the judgment of that court has been certified here for review.
While the judgment of the district court must be affirmed, we cannot agree that the affirmance should be based upon the reasons given by the court of appeals. The syllabus of the case by that court was as follows:
“1. The repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred nor any proceeding commenced under or by virtue of the statute repealed.
“2. The rule for the construction of ordinances is the same as for the construction of statutes.”
The section of the statute cited is applicable to legislative acts and not to ordinances, which are mere by-laws of a municipal corporation. In City of Humboldt v. McCoy, 23 Kan. 249, it was held that the constitutional provision that “no bill shall contain more than one subject, which shall be clearly expressed in its title,” has no application to city ordinances. Again, in City of New Kiowa v. Craven, 46 Kan. 114, 26 Pac. 426, it was decided that a section of the statute concerning county jails had no application to city prisons or jails. While the rules of construction of statutes and ordinances may be the same, yet it does not follow that a statutory provision concerning the effect of the repeal of a law can be extended to include city ordinances.
The real-estate agents were engaged in an unlawful vocation at the time they made the sale of the real estate for which they claim a commission. There was no right of recovery of this commission at the time the sale of the land was made, and the authorities are almost unanimous to the effect that a subsequent repeal making the act lawful will not act retrospectively so as to render that lawful which was done in violation of the law. (Suth. Stat. Const. §§ 336, 480.) In Lawson on Contracts, section 279, it is said that “where a contract made in violation of a statute is void, the subsequent repeal of the statute does not make it valid.”
In 2 Parsons on Contracts, section 674, the proposition is stated thus: “But if one agrees to do what is at the time unlawful, a subsequent act making the act lawful cannot give validity to the agreement, because it was void at its beginning.” See, also, Endlich on the Interpretation of Statutes, section 488; Clark on Contracts, 507; Bishop on Contracts, section 479; Roby v. West, 4 N. H. 285; s. c. 17 Am. Dec. 423. The case of Bailey v. Mogg, 4 Denio (N. Y.) 60, 62, is in point. It is there said :
“But while the revised statutes were in force, he could not compel payment for his services as an unlicensed physician, whatever remedies might have been prescribed and administered. Such was the law in 1840, when the services were rendered; and as to his case it was the same in 1845, when the cause was tried. The repeal of the previous prohibitory laws by the act of 1844 had no effect upon cases which arose before that act was passed.” (Woods & Co. v. Armstrong, 54 Ala. 150; Handy v. St. Paul Globe Publishing Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43.)
Cases cited by counsel for plaintiffs in error, holding that no sentence can be pronounced for violation of a criminal statute which has been repealed without a saving clause, are not in point, nor decisions to the effect that procedure in pending actions must be governed by the law as it stands at the time of trial, not when the action is brought. In 15 A. & E. Encycl. of L. (2d ed.) 942 and note, a large number of authorities are collected upon the principal question.
The judgment of the court of appeals will be affirmed. | [
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Error from Franklin district court.
Dismissed. | [
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Opinion by
Green, C.:
An application was made for the location of a highway over the right-of-way of the Chicago, Kansas & Western railroad, in Chautauqua county. The railroad company claimed $300 damages. The viewers awarded $100, and the board of county commissioners affirmed the award. The railroad company took an appeal to the district court. The county attorney filed a motion to dismiss the appeal, for the reason that the railroad company was not entitled to compensation for the laying out of a highway over its right-of-way. This motion was sustained, and the district court dismissed the appeal. The railroad company brings the case here for review.
It has been held by this court that a railroad company may recover damages in a case like the present for all expenditures it is required to make by reason of the location of a highway across its right-of-way. (K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 Kas. 716; Comm’rs of Greenwood Co. v. K. C. E. & S. K. Rly. Co., 46 id. 104.) Upon the authority of these cases, the railroad company had the right to have the question of the amount of damages submitted to a jury. It is recommended that the judgment of the district court be reversed, and that the cause be remanded for trial.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The forty-acre tract of land owned by the plaintiff in error at the commencement of this action did not border on the river at the time of the government survey, in 1855, but was distant therefrom the width of lot 1, now owned by Canter, on the west.' Lot' 2, now owned by defendants in error, then bounded the Peuker tract on the south and extended westward to the river bank. These facts having been found by the jury, we must presume that when the land was patented by the government the boundaries were the same as described in the survey. (1 Greenl. Ev. §41.) This state of facts presents for consideration the question whether the plaintiff in error, having originally no riparian rights, after the water had washed away a part of the land which separated him from the river, and also a part of his own, and then by accretion restored his original boundary lines, together with those of the defendants in error, can claim title to any part of the alluvion so formed within Canter’s original lines, and beyond.
Lots 1 and 2, as described in the original survey, were at that time fractional forty-acre tracts bordering on the river. Their shore-line was meandered. The river, not the meander line, was the western boundary. Meander lines are not boundary lines. (Gould, Wat., 3d ed., § 76; Kraut v. Crawford, 18 Iowa, 549; Railroad Company v. Schurmeir, 7 Wall. 272, 287, 19 L. Ed. 74.) In the last case it was said:
“In preparing the official plat from the field-notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the watercourse, and not the meander line, as actually run on the land, is the boundary.”
According to this established rule, when the western limits of lots 1 and 2 moved eastward as the river encroached upon them, ownership followed the shoreline. Finally, by continued erosion, the forty-acre tract of plaintiff in error was reached. The latter then had a river front of nearly 700 feet on a navigable stream and acquired riparian rights.
In Gifford v. Lord Yarborough, in the house of lords, 5 Bing. 163 (a decision cited by the supreme court of the United States in Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 87), it was decided in effect, that in cases of alternate accretion and decretion the riparian proprietors had movable freeholds ; that is, moving into the river with the soil as it was imperceptibly formed, and then again receding when by attrition it was worn away.
In the case of Steele v. Sanchez, 72 Iowa, 65, 33 N. W. 366 (s. c., 2 Am. St. Rep. 233), it appeared that the defendant was the owner of one acre of land lying on the Des Moines river. He became such owner in 1875. After this the water washed away some 20 feet of the bank of the river so that the bed of the stream was changed to that extent, and that part of the land originally purchased was covered with the current of the stream. In front of this land, and in the bed of the'river below ordinary high-water mark, but within the meander line of the original survey of the lot of which the land was a part, there was a ledge of stone which could be quarried by the building of dams to change the current of the stream and keep the water out. The plaintiff quarried stone in the river at the place above described under contract with the defendant for which he was to pay a certain price per perch, and payment was to be made by delivering stone to the defendant at one dollar per perch. He delivered the stone for which the action was brought and demanded payment therefor on the ground that the defendant was not the owner of the quarry because it was in the bed of the river below original high-water mark. The trial court instructed the jury that if the stone-quarry was within the original survey line it was the property of the defendant,, although the channel of the stream had changed so that the quarry was below the ordinary high-water line; in other words, that the original meandered line of the stream re mained as the boundary of defendant’s land. This instruction was held to be erroneous. It was said :
“When the original government surveys were made, the Des Moines river was ‘meandered’ ; that is, the banks of the river were surveyed and the lines thereof indicated by corners and distances. The river being then a navigable stream, the then owner of the lot now owned by the plaintiff had no title beyond ordinary high-water mark. The title to the whole bed of the river was in the public. . . . When, by the action of the water, the river-bed was changed, the line of ordinary high-water mark was changed, and the defendant’s ownership, or the line of his land, changed with it. The bank of a stream is what retains the water in its channel; and, if changed either by natural or artificial means, the river-bank becomes the line.”
The riparian owner in this state owns only to the bank and not to the center of a navigable stream. (Wood v. Fowler, 26 Kan. 682; Perkins v. Adams, 132 Mo. 131, 33 S. W. 778.) In Welles v. Bailey, 55 Conn. 292, 10 Atl. 567, a well-considered case, in which elaborate briefs were presented, the court, at page 316, said:
“If a particular tract was entirely cut off from a river by an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation and is not affected in any manner by the relations of the river and the land at any former period. If, after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movement in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now proximate lot. Having become riparian it has all riparian rights. This general principle is recognized by all the text-writers and by numerous decisions of tho English and American courts. The river boundary is treated in all cases as a natural boundary and the rights of the parties as changing with the change of its bed.”
This doctrine was approved in the case of Naylor v. Cox, 114 Mo. 232, 21 S. W. 589; Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317; Cox v. Arnold, 129 Mo. 337, 31 S. W. 592. In the last-cited case the third paragraph of the syllabus reads:
“A part of a fractional quarter-section belonging to plaintiff and bordering on the Missouri river was washed away by the current and a ‘towhead’ formed in the river between plaintiff’s land and an island opposite thereto, and land gradually accrued to the “towhead” and extended toward plaintiff’s quarter-section and within the limits of the original government survey thereof. Held, that as the land sued for was not an accretion to plaintiff’s land, he had no title to it, notwithstanding it was within the boundaries of the original government survey of said quarter-section.”
In Ocean City Ass’n v. Shriver, 46 Atl. (N. J.) 690, the doctrine laid down in Welles v. Bailey, supra, is held, by a divided court, to be unsound. The Minnesota decision (Gilbert v. Eldridge, 47 Minn. 210, 49 N. W. 679, 13 L. R. A. 411) commented on to sustain the law of the case was, however, controlled by the conditions under which the respective parties took title to the land.
The right to alluvion is founded on the principle of compensation ; that the owner of land subject to ero sion is entitled to indemnity for the loss of that taken away by gaining the benefit of soil added to his boundary by the process of accretion. Blackstone says (2 Com. 262):
“And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual water-mark : in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. Por de ■minimis non cwrat lex; and, besides, .these owners, being often losers by the breaking .in of the sea, or at ■charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss.”
In the present case Peuker, whose land at the time of the survey was remote from the river, suffered loss by erosion equally with Canter, the owner of the adjoining lots. The application of the rule stated would not deny to such originally remote proprietor the ownership of such accreted land in front of his shore line, although it may be found within the original boundaries of lots 1 and 2.
When the waters washed the land of plaintiff in error, after bating away portions of lots 1 and 2, Canter, the owner of said lots, had the right of navigation and fishery, in common with the public, in the stream which displaced the land within his original boundaries, but he had no ownership in the bed of the river. (Railway v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559.) He could not prevent others from enjoying the same rights therein which the law accorded to him. It is held in England that if the sea, by gradual and imperceptible progress, encroach upon’ the land of a subject, the land thereby covered with water belongs to the crown. (In re Hull and Selby Railway, 5 M. & W. 327.) By the American revolution ,the people of each state acquired the absolute right to ;all their navigable waters and the soil under them. (Martin et al. v. Waddell, 16 Pet. 367, 10 L. Ed. 997.) In Wood v. Fowler, supra, Mr. Justice Brewer, in speaking of the Kansas river, which was held to be a navigable stream, at page 690, said:
“The title to the soil being in the state, and the stream being a public highway, obviously the ownership of the ice would rest in the general public, or in the state as the representative of that public. The riparian proprietor would have no more title to the ice than he would to the fish.”
When the river encroached on the Peuker land, carrying away parts of Canter’s fractional tracts, the title of the latter to the submerged lands was gone. So was the title of Peuker to that part of his forty acres which the current had eaten away and which was submerged by the waters. When the alluvion began to form it had a line of contact of about 700 feet on the-land of plaintiff in error, and also attached itself to the irregular shore line of what was left of lots 1 and 2. The plaintiff in error is not entitled to all the made land, but only to an equitable proportion of it. There are not facts sufficient presented by the record for the establishing of a rule which will determine to just what proportion of the alluvion the parties are entitled. This should be settled by the court below on equitable grounds. (Gould, Wat., 3d ed., §§ 162-165; Johnston v. Jones et al., 1 Black [U. S.] 209, 17 L. Ed. 117.)
The judgment of the court below will be reversed and a new trial granted. | [
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Per Curiam:
The petitioner, Allie Hewes, a boy, pleaded guilty to a charge of manslaughter and was sentenced to the state reformatory. The proceedings were had in Kingman county, in. the twenty-fourth judicial district, .before Hon. Francis C. Price, judge of the thirty-first judicial district, sitting as judge pro tern. Hon. P. B. Gillett, judge of the twenty-fourth district, was disqualified to sit in a number of cases pending in Kingman county, among them being the one against Hewes. He therefore proceeded, under chapter 108 of the Laws of 1897 (Gen. Stat. 1897, ch. 95, §51; Gen. Stat. 1899, §4302), to procure the attendance of Judge Price to preside in his court in King-man county for the trial of the cases in which he was disqualified to sit. Judge Price attended. In addition to the authority supposed to be conferred upon him under the provisions of the law of 1897, he was duly elected judge pro tern, by the members of the bar of Kingman county. The proceedings showing his election by the bar and his qualification as judge pro tern, in pursuance of the election are all shown in the record before us, except that such record fails to show that he took and subscribed to the oath of office as judge pro tem.
The petitioner’s claim for discharge is based upon objections to the jurisdictional authority of Judge Price, under the provisions of the law of 1897, before mentioned. He argues that Judge Price held the King-man county district court under said law as judge of the thirty-first judicial district, and that he could not lawfully do so, because, under the constitution, his authority was confined to the district in which he was elected and in which he must reside ; hence, as the petitioner claims, the law of 1897 assuming to confer authority upon the judge of one district to hold court in another is unconstitutional.
The attorney-general admits that the law of 1897 is unconstitutional, but for a wholly different reason than the one assigned by the petitioner. He argues that it is unconstitutional because the subject of the act is not expressed in its title. Its title is : “An act to amend section 4 of chapter 28, General Statutes of 1868, by providing for the interchange of judges in the several j’udicial districts of the state.” The act, however, purports to be amendatory of section 2, chapter 87, Laws of 1870, which law of 1870 was amendatory of section 56 of chapter 80 of the General Statutes of 1868.
As we view the case, it is not of necessity determinable upon either of the alleged grounds of unconstitutionality. Judge Price’s authority to hold the Kingman county court was derivable from his election as judge pro tem. by the members of the bar. His failure to subscribe to an oath of office as judge pro tem., if he did fail, did not render his judgments void. They were at the most voidable, and not subject to collateral attack. He was at least a judge de facto; and besides, if his acts were voidable it devolved upon the petitioner to show as a reason for the discharge that the judge failed to take the oath. The record does not show that he failed to take it. It is merely silent.
The petitioner, as a further reason for discharge, claims that he was- under sixteen years of age, and, therefore not amenable to sentence to the state reformatory. The record does not show that he was under that age.
It is ordered that the respondent have judgment and that the petitioner be remanded. | [
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Error from Sumner district court.
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The opinion of the court was 'delivered by
Johnston, J.:
Near the Riverview station, and between the Grandview and Park branches of the elevated street-railway in Kansas City, Kan., is a lot owned by the Ferd. Heim Brewing Company. On the east end of the lot was a house occupied by the Hicks family, and on the west end was a small business house occupied by a cobbler. The lot being immediately south of the Riverview station, persons who were transferred from the Grandview to the Park line, as well as those living west and south of the station, generally passed over the lot when intending to take passage on the Park line of the street-railway, and those going west or south from the Park line station, or to take passage on the Grandview line, did the same. A path had thus been made between the houses mentioned and cinders had been placed thereon. A water-closet was erected on the lot, near the cobbler’s house, which was used by the Hicks family. About July 1,1897, the owner of the lot, intending to erect a new building thereon, tried to gain possession of the same, and to induce the tenant, Hicks,- to remove therefrom. It was claimed that consent was given, and a contractor removed the water-closet and other structures and began grading the lot. After some plowing and grading had been done, Hicks objected to the continuance of the work, and on July 2 instituted an action and caused a restraining order to be jserved on the owner and the contractor. The vault of the water-closet had been partially filled when the restraining order was served, and the contractor nailed boards over it and left the premises. The public continued to pass along the path which it had made, and near the covered vault. The restraining order was set aside and vacated by the court granting it on August 27, 1897, and though some proceedings for review were taken, it is not shown by the record that the injunction was continued in force. There was litigation between the owner and Hicks as to the possession of the lot, but Hicks remained in possession until March, 1898, when he was removed under a writ of restitution issued in an action of forcible detainer.
On the night of December 25, 1897, and before the removal of Hicks, Mazie A. DeTarr, while walking across the lot with a view of taking a Park line car, fell into the vault and was injured. She and her family had passed over the lot in the morning, but she did not observe that a board had been removed from over the vault, or that there was an opening there. On returning at night she noticed a car coming and increased her speed so as to reach the station in time, and, while walking rapidly, she diverted her course from the path, and fell into the hole. She brought this action, claiming that, there being a path across the lot which was habitually used by the public, the owner was guilty of negligence in not filling up the vault and in leaving it without a secure cover. The defendant denied that it was guilty of negligence, claiming that it was not in possession of the property when the injury was sustained, and, not being in legal control of the lot, was nowise responsible for the repairs on the premises or for the removal of the cover, which was originally secure. The verdict of the jury was in favor of the defendant, and in answer to special questions the jury found that when the injunction order was served the hole was covered with boards; that the brewing company did not get possession of the premises occupied by Hicks until March, 1898, and that it was then placed in possession by the sheriff; that Hicks lived on the premises at the time of the accident ; and that the brewing company had no notice that the hole was open on the night of and before the accident.
Apart from the special findings, it must be assumed that all other controverted facts which had support in the testimony were determined in favor of the defendant. It must be taken as established that the hole was securely covered with boards when the defendant and its employees were compelled to quit the premises by the injunction proceeding, and that before the accident the defendant had no notice that any part of the cover had been removed or that the hole was open. It likewise must be assumed that the defendant was not in possession or control of the premises when the accident happened, nor for more than two months afterward. The path across the lots had been used by the public for a long time — so long that permission by the occupant and owner must be presumed. The plaintiff, .therefore, was not to be regarded as a trespasser or as a mere licensee, as she used the way with the implied permission of those in control of the premises. If the defendant had the possession and control of the lot, it owed a duty to the public to cover or fill up the hole near the path, or to exercise care accordingly, proportioned to the probable danger to persons using the path ; and the jury were properly instructed that if the defendant was in control and possession of the premises, and knew, or by the exercise of diligence could have known, that the vault was open, in time to have filled or covered it, and the plaintiff fell therein without her fault, the defendant was liable to respond in damages to her for the injury sustained. Under the instructions, we think the jury were warranted in finding that the defendant bad not the possession or control of the lot at the time of the injury, and not being in control, and having no notice of the existence of the dangerous opening, it cannot be held liable for the negligence of. the tenant, nor for the injury sustained by plaintiff.
It is a rule of the common law, applicable here, that “the occupier and not the landlord is bound as between himself and the public so far to keep the premises in repair that they may be safe for the public, and such occupier is prima facie liable to third persons for damages arising from any defect.” (1 Thomp. Neg. 317. See, also, Fisher v. Thirkell, 21 Mich. 1.)
The objection to the admission in evidence of the injunction proceedings is not well founded. It tended to show who was in possession and control of the premises, and to some extent who was responsible for the casualty. It was some explanation why the defendant did not completely fill up the vault and why a cover was nailed over it. The papers in the proceeding in error attempted to be taken from, the order dissolving the injunction, although first received in evidence, were subsequently withdrawn from the jury, and no error can be predicated on that. The testimony as to the notices to quit possession and the pro ceedings in the forcible entry and detainer suit went to the question of control of the property, and was properly received, and there is nothing substantial in the objections to the testimony of the officers and other persons as to the efforts which were made to procure the removal of the Hicks family from the property. Some of the language of the instructions given to the jury is criticized, but we fail to see any just ground for complaint in them, or any error in the refusal of those which were requested. The case seems to have been fairly presented to the jury by the charge that was given, and there appears to be sufficent testimony to sustain the findings and verdict that were returned. The judgment will, therefore, be affirmed. | [
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The opinion of the court was delivered by
Doster,, C. J.:
This was an action brought by Anna Hari against Ohio township, Saline county, to recover damages for injuries sustained on account of a defective highway. The action was brought under section 579 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 42, § 48), which allows a recovery against a township on account of defective highways, when the' trustee of such township shall have had at least five days’ notice of the existence of the defects prior to the time when the injury occurred. A demurrer to the petition was sustained, and from the order sustaining it error has been prosecuted to this court.
The claim of error relates entirely to the construction of the statute concerning notice to the township trustee. Does the statute require actual notice to him, or is that notice which may be implied from the visible character and long-continued existence of the defect sufficient ? The plaintiff’s petition disavowed all claim of actual notice to the trustee and only charged against him that notice which may be presumed from the open character and continued existence of the defect. In our judgment, such last-mentioned kind of notice is insufficient. The statute requires “at least five days’ notice,” and that, we think, means actual notice. It is notice the statute requires, and not the inference of notice. Notice of a fact is knowledge of that fact. Constructive notice does not mean knowledge, but is entirely a presumption of law. The requirement of notice for “at least five days” implies that actual notice is meant. If it did not the statute would have to be interpreted as though it read : “The existence of defects for such length of time, not' less than five days, sufficient in character and in gen eral notoriety as to raise a presumption of knowledge.” The statute cannot be so construed. The road overseers of a township are primarily and specially charged with the repair of the public highways. The township trustee is not charged with that duty, except under the provisions of section 7430 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 42, §29). That section reads:
“The township trustee may remove obstructions from the highways in cases where the road overseers shall refuse or fail to do so ; and the trustee shall in such cases have all the power of road overseers in calling out the inhabitants to perform the work necessary to remove such obstructions.”
This section necessarily implies actual knowledge on the part of the trustee. Only under it are any specific duties in relation to the repair of highways imposed on the trustees. There are other statutory provisions, quite general in terms, and some of them vague in meaning, which charge a township trustee with the oversight and supervision of the road overseers in the performance of their duty; but, in general, and as just stated, it may be said that the trustee is nowhere, except in the instance mentioned, specially charged with the observation of the condition of the highways, or the repair of defects existing in them ; hence, we do not see how we can read into the statute words which will give it the interpretation contended for by the plaintiff in error.
We do not regard any of the remarks of the courts in this state, quoted in the briefs of counsel, as bearing upon the precise question. We have searched elsewhere than among our own decisions to find authority. The case of Freeholders v. Hough, 55 N. J. Law, 628, 28 Atl. 86, is more nearly in support of the plaintiff's contention than any others. In that case the court construed an act which required reasonable notice to an officer of defects in a highway to mean ’ notice inferable from their notoriety and long continujance. It may be that “reasonable notice" of a defect in a highway means notice presumable from its open 'exposure and its long existence, but whether that be true or not we cannot regard the case mentioned as one to influence our judgment. Cases of constructive notice to the governing authorities of cities of defects in streets and sidewalks shed no light on the question. Municipal corporations are under a common-law obligation to respond in damages for injuries occasioned by such defects, and. they are therefore chargeable with what the common law esteems as notice. Quasi corporations, such as townships, are liable only as made so by statute, and therefore the statutory kind of notice must be given.
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Error from Johnson district court.
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The opinion of the court was delivered by
Smith, J.:
In answer to the petition, which stated a cause of action upon an account for services, the defendants below alleged, among other things, that George W. Cook was indebted to them in the sum of $5860.40 upon an account, a copy of which was attached to the answer, and was further indebted to them in the sum of $1000, evidenced by a note executed to William H. Stacy, which was indorsed by the latter to the firm of Stacy, Adams & Co., and prayed judgment against him for said amounts. In said account Cook is credited with “salary account for 1894 up to taking stock in August, 1894, $1770.”
In his reply, the plaintiff below denied generally the allegations of the cross-petition and answer, except the admission that on August 31, 1894, defendants owed the plaintiff $1770 for salary. He further averred that Stacy, Adams & Co. agreed and promised that if he and his partner, constituting the firm of Cook & Son, would give defendants below a mortgage on their stock of goods and fixtures, Stacy, Adams & Co. wóuld pay in cash to said Cook all of the salary then due him, and would under no circumstances claim the right to apply said sum due for salary upon the amount owing by Cook & Son to the defendants below ; that, acting on said promise and in consideration of the same, a mortgage was given.
In opening the case, counsel for plaintiff below, George W. Cook, briefly stated to the jury his claim against Stacy, Adams & Co. Counsel for the latter then made a long and detailed presentation to the jury of the facts which the defense would show, in which he referred to the indebtedness of Cook & Son to Stacy, Adams & Co. as an offset against the claim for salary, and said :
“Instead of being indebted to him (Cook), he is indebted to them (Stacy, Adams & Co.) in the sum of over $6000, and that at the time he says there was salary due him. There would be salary due him but for the fact that he owed this large sum; that part is not in dispute.”
At the close of this statement the plaintiff below submitted the case to the jury on the pleadings and admissions of counsel and rested. • Defendants below then moved for judgment on the pleadings and the admissions of counsel, which motion was overruled. The court then decided that the burden of proof was upon the defendants below. There was no error in this ruling. The amount of salary due to Cook up to August 14, 1894, was clearly admitted in the state-, ment of counsel, and the inquiry thereafter was rightly confined to the question whether, by an agreement between the parties, upon sufficient consideration, Stacy, Adams & Co. had contracted to waive their right to use $1770 of the amount of' their claim against Cook as an offset to the amount for which Cook was indebted to them. The testimony of George W. Cook, and Plerbert Y. Cook tended to establish an express agreement upon the part of Stacy, Adams & Co. that the amount of this salary would be paid at all events, in consideration of their executing a chattel mortgage on the goods in their store to the defendants.
It is contended that a promise to pay this salary is without consideration, for that it is an agreement to pay to Cook what was already due him, and being already bound to make payment of the amount, any additional agreement to do the same thing lacked con sideration., within the rule of Schuler v. Myton, 48 Kan. 282, 29 Pac. 168. The facts, however, do not bring this case within the rule of that decision. Cook & Son were bound in law and morals to pay their indebtedness to plaintiffs in error, but were not bound to secure its payment by chattel mortgage or otherwise, and the giving of such security was sufficient consideration for an agreement upon the part of Stacy, Adams & Co. to waive their right of offset and to pay Cook the amount of salary then due. (Jaffray et al. v. Davis et al., 124 N. Y. 164, 26 N. E. 351, 11 L. R. A. 710 and note; Gutchess v. Daniels et al., 49 N. Y. 605; Tagg v. Bowman, 108 Pa. St. 273; Gross v. Weary, 90 Ill. 256.)
For the same reason special interrogatories 1 and 2, submitted by defendants below, were properly refused by the court. And the first and second instructions upon the subject of consideration requested by them were also rightly refused.
There is but one serious question in the case. It relates to the refusal of the court to permit counsel for plaintiffs in error to read to the jury the particular questions of fact, and to argue how, in his opinion, they should be answered. The court held that it was proper to argue generally all the evidence bearing upon the facts covered by the special interrogatories, but would not permit counsel specifically to- call the attention of the jury to each question, and suggest to or advise them what answer they should make thereto from the evidence heard. The particular questions were settled before the argument, and were known to both parties. Under our practice such answers control the general verdict. (Gen. Stat. 1897, ch. 95, § 297; Gen. Stat. 1899, § 4550.) The jury are required to answer each of the questions propounded truthfully, in accordance with the preponderance of evidence bearing upon the interrogatory submitted, and we think counsel ought not to be restricted to a general discussion of the evidence when particular questions of fact applicable to the case have been settled and allowed for submission to the jury. It is often of great assistance to the jury for counsel to array the facts and point out their force as applied to a particular question which they are called upon to answer. The supreme court of Iowa has passed upon this question, saying:
“That it is competent for an attorney to read special interrogatories to the jury, and discuss the evidence applicable thereto, must be conceded, and it seems to us that the court,ought not, without good reasons, to interfere with such right. It is difficult to see how an attorney can properly discuss the evidence bearing upon any question the jury is required to answer without indicating quite plainly how, in his judgment, the question should be answered.” (Timins v. The Chicago, Rock Island & Pacific R’y. Co., 72 Iowa, 94-99, 33 N. W. 381.)
As bearing upon the general right of argument, see Douglass, Sheriff, v. Hill, 29 Kan. 527; Railroad Co. v. Cattle Co. 59 Idaho, 111, 52 Pac. 71. The court below erred in restricting the scope of argument in the-manner stated.
There is no merit in the contention that plaintiff below was seeking to contradict the terms of the chattel mortgage by his proof of & contract on the part of Stacy, Adams & Co. to pay the amount of his salary. There was no attempt to invalidate the mortgage, and the agreement went merely in explanation of the consideration. (McKinster v. Babcock, 26 N. Y. 378; Bainbridge v. Richmond, 17 Hun, 391.) The judgment of the court below will be reversed and a new trial granted. | [
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The opinion of the court was delivered by
Johnston, J.:
Irvin Smith brought an action against the supreme lodge of the Order of Select Friends, a fraternal insurance organization, to recover $3000 on an insurance contract. The order had issued to him a certificate which entitled him to a benefit from the relief fund, not exceeding $3000, in case of disability or death, in such manner as the constitution and general laws of the order governing the relief fund provided. The constitution and general laws provide for the payment of a benefit for disability whenever a member, by reason of disease, accident, or otherwise, while engaged in the performance of any reputable or legitimate business or recreation, becomes totally and permanently disabled from following his usual'or regular business, occupation, or profession. One section of the general law provides:
“The following, among other things, are hereby declared to be total and permanent disabilities within the meaning of the laws of this order: The loss of both eyes, the loss of one hand and permanent crippling of the other ; the loss of one foot’ and permanent crippling of the other leg or foot.”
The plaintiff was a pharmacist engaged in running a drug-store in the city of Parsons, and on December 4, 1897, he suffered an accidental gunshot wound in the left arm, and it became necessary to amputate Unarm at the shoulder-joint. The right hand was not injured, nor was any other injury sustained, but the plaintiff alleged and claimed that the loss of the lefl hand constituted a permanent and total disability within the terms of the contract, and claimed a recovery for |3000. Upon a demurrer to the petition, the court held that the loss of the left arm alone did not constitute a permanent and total disability, within the terms and meaning of the contract between the order and the member, and of this ruling complaint is made.
The ruling and judgment of the court must be sustained. The petition set forth the nature and extent of the plaintiff’s injury in detail, and then averred that it constituted a total and permanent disability, but the last averment is no more than a conclusion. The sufficiency of the petition is to be determined from the facts stated therein and those of which the court must take notice. The occupation of the plaintiff, namely, pharmacist, or druggist, is well understood, and of the requirements of the business the court must take notice. While the loss of an arm and hand is a serious one, it cannot be held to be a total disability. It is a matter of common knowledge that much, if not all, of the work and business of a druggist can be fairly well done by one who has lost a hand. He will not be able to compound medicines so conveniently and expeditiously as a person who has both hands, but a large proportion of the medicines sold in a drugstore to-day are compounded and ready for sale before they reach the hands of the retail dealer. It is equally well known that a large proportion of the business of the ordinary drug-store consists in the sale of medical stores and instruments, toilet articles, holiday goods, cigars, soda and mineral waters, etc., and hence all know that this, if not all the work of a druggist, may be done and the business conducted with reasonable efficiency by a person who has lost a hand. To sustain his claim the plaintiff must show more than a partial disability. He cannot recover under the contract of insurance which fixed the right of one party and the liability of the other unless he has sustained a total disability — that is, a complete disability to carry on the business of a druggist.
This view is strengthened by that provision of the law of the order declaring what shall constitute a total and permanent disability. It specifically refers to such loss as was sustained in this case, and provides that the loss of one hand and the permanent crippling of the other shall be deemed a total and permanent disability within the meaning of the law. This definition and declaration as to what shall constitute a total disability is a part of the contract and binding on both parties. Whether an injury constitutes a total disability is ordinarily a question for the jury, but from the facts alleged here, and the well-known requirements of the plaintiff’s occupation, it is clear that the plaintiff is not totally and permanently disabled from carrying it on. So to hold would be to alter the contract which has been made between the parties and to enlarge the liability of one of them beyond that which had been stipulated on. (Lyon v. The Railway Passenger Assurance Co., 46 Iowa, 631; Rhodes v. The Railway Passenger Ins. Co., 5 Lans. [N. Y.] 71; Albert v. Order of Chosen Friends, 34 Fed. 721; Hutchinson v. Supreme Tent, etc., 68 Hun, 355, 22 N. Y. Supp. 801; Saveland v. The Fidelity & Casualty Co. of New York, 67 Wis. 174, 30 N. W. 237.)
The judgment of the district- court will be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted of assault with intent to kill. The information has the following caption : “The State of Kansas, plaintiff, v. Eiden .Everett, defendant. State of Kansas, county of Geary. Information.” It recites that “the county attorney gives the court to understand and be informed that in the county of Geary, state of Kansas, on or about the 19th day of January, 1900, the defendant, Elden Everett, did then and there unlawfully, wilfully, feloniously, on purpose, and of malice aforethought, with a deadly weapon, to wit: a pocket-knife, which he then held in his hand, stab one Ed. Boone, with intent him, the said Boone, to kill.”
Defendant’s counsel filed a motion to quash the information for the reason that the same did not state facts sufficient to charge a public offense, and stated that he did not care to make an argument on the same. The county attorney then asked “that the record show that he (the county attorney) asked that counsel for defendant state his particular objection to the information,” to which defendant’s counsel answered: “The motion attacks the information generally. The motion speaks for itself.” The court called on counsel for the accused to state the specific grounds upon which he thought the information to be bad. In reply he said: “The attack is upon the ground that it is insufficient and does not state facts sufficient to constitute a public offense. I desire to read the motion and allow it to speak for itself. [Counsel then read the motion.] If the information is good against this motion, then the motion should be overruled, but if the information is bad against this motion, then the motion should be sustained.” The court said : “If you have nothing to say I will overrule the motion.”
It is indicated here for the first time that the information does not contain the name of the court in which it was filed, for which reason it is insisted that the motion to quash should have been sustained. Counsel for the defendant persistently refused to inform the trial court of the existence of this defect, and studiously avoided pointing it out when asked so to do by the county attorney, and the court at the trial. The objection made is highly technical, and the defect could have been remedied at once by an amendment, had counsel made it known. If it be claimed that the omission of a necessary allegation was apparent on the face of the information, so much so that the court ;ought to have noticed the same without particular attention being directed thereto, we can answer in the words of Mr. Justice Valentine, in Ambrose v. Parrott, 28 Kan. 693, 700 :
“If, however, the various causes of action set forth in the plaintiff’s petition were so manifestly obvious that the court must have readily taken notice of them by a bare inspection of the petition and without any specific designation of them in the defendants’ motion, then they were necessarily so manifestly obvious that the defendants themselves should also have taken notice of them, and would not have experienced any considerable inconvenience in pointing them out in their motion.”
See, also, Beaubien v. Hindman, 37 Kan. 227, 15 Pac. 184; Byington v. Comm’rs of Saline Co., 37 id. 654, 16 Pac. 105; Elliott on Appellate Procedure, § 770.
Counsel ought not to lay traps for the court, nor can they profit by concealment after a disclosure has been required. It is unfair to insist here that the court below erred in overruling an objection to a pleading when the point relied on was carefully concealed from it — not only not argued, but nowise indicated, although the court pressed counsel to make it known. The motion in arrest of judgment was in effect a renewal of the motion to quash, and employed the same language.
Three of the jurors, when examined touching their qualifications to serve, stated that they had opinions that Ed. Boone, the prosecuting witness, was stabbed, and one of the jurors further stated that he had read an account of the affair in the newspapers, and if the person mentioned in such account did the stabbing, then he had an opinion that the defendant did it. The defendant offered no testimony in his own behalf, except to show that he had a good reputation as a peaceable man, and had been a soldier in the Spanish war. James Kennedy, a witness for the defendant, was absent, and it was agreed between counsel that if he was present he would testify that the defendant Everett went to his place, where he was employed, related the whole circumstance to him, remained there and made no effort or suggestion that he would secrete himself or get away; that his character and conduct in the neighborhood, save and except that one occurrence at Kennedy's place, was good for the time the witness knew him, which was about two months. It seems from this that the defendant made no denial of the fact that he stabbed the complaining witness. It appears that the questions about which the jurors expressed opinions were not in dispute.
We have examined the instructions. They appear to cover the case and state the law fairly. The judgment of the court below will be affirmed. | [
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Appeal from Sedgwick district court.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
By this proceeding the plaintiff challenges the constitutionality of chapter 162 of the Laws of 1891 (Gen. Stat. 1899, §§7319-7321; Gen. Stat. 1897, ch. 158, §§173-175), “An act regulating the sale of real estate for delinquent taxes in such counties as shall adopt the provisions of this act.” The provisions of that act were duly adopted by the county commissioners of Reno county, after which the taxes charged upon some of the lands in the county of Reno became delinquent. The county treasurer advertised that these lands would be sold for taxes on September 4, 1900, at the court-house, and on that day plaintiff was present and proposed to buy the lands so advertised, but the county treasurer informed him that all the delinquent real estate would be bid off in the name of the county, under the authority of the statute and resolution above mentioned. The plaintiff proposed and made bids upon each and every of the tracts and parcels of land, and offered to purchase the north half of each of said tracts and parcels and to pay'therefor the full amount of all taxes, penalties, costs and charges, etc., against the entire tracts and parcels of land. At the same time he tendered a sufficient sum of money to make good his offer, but the offer, as well as the tender of money, was refused by the county treasurer, and the property mentioned was all bid off in the name of the county, in the manner provided for in the statute referred to. To compel an acceptance of his bid and tender, the plaintiff has brought this proceeding in mandamus.
He attacks the validity of the statute because'it excludes all bidders other than the county, and thereby prevents competition; and also because it provides for a sale to the county of the entire property taxed, when a smaller portion of it might sell for enough at a competitive sale to realize all taxes, penalties and costs due thereon. These objections appear to be more of an attack upon the policy of the act than upon the validity of the powers to be exercised under it. The sovereign power of taxation belongs exclusively to the legislature. It has discretion and power to determine what property shall be subject to taxation, the rules upon which taxes shall be levied, and the means which shall be taken to secure an enforcement of the payment of the same. Its discretion is uncontrolled and its power is omnipotent, except as they may be limited by constitutional provisions. The principle of uniformity of taxation is required by our constitution, but no claim is made that the act in question trenches upon that principle or violates any express constitutional provision.
The plaintiff insists that, while there is no specific inhibition in the constitution, the means provided in the act for enforcing the collection of taxes are contrary. to the universal practice and to the general principles of equity and justice; and, further, that they are not due process of law. At the argument it seemed to some of us that the taking of the whole of a tract of land for the taxes and charges against it, when a smaller portion might be sufficient to pay them, was a harsh and objectionable method, but reflection convinces us that whether a part or the whole shall be appropriated in satisfaction of the tax lien is a matter of legislative discretion, and one which is not the subject of review by the courts. To insure the prompt payment of taxes, penalties are imposed by the legislature, and if they are equal and uniform in their application, their validity is unquestioned, and very heavy penalties have been sustained. The harsher method of forfeiture for the non-payment of taxes and non-compliance with the tax- laws is frequently employed, and such statutes are generally held to be valid. If a forfeiture may be constitutionally enforced, no reason is seen why the provisions authorizing the treasurer to bid off the tract taxed for the county should not be sustained. The fact that we have had competitive bidding and a sale of the smallest quantity which any purchaser will take and pay the taxes and charges against the land, makes the means complained of seem unnecessarily severe to some, but mere harshness and severity of methods do not violate any right secured by the constitution.
It is probably true, as stated, that the usual methods of enforcing the collection of delinquent taxes on lands in this country are by a public competitive sale for a quantity of land requisite to pay the amount due, but, as heretofore stated, this is a matter of policy to be settled by the legislature, and a mere departure from usual methods does not necessarily conflict with the constitution. It may be that experience has shown that a sale of a portion of the land did not always injure the promptest and fullest payment of taxes ; and it may be that new methods were necessary to insure the collection of the public revenues and the discharge of expenses incurred in carrying on the public business. There is no cause for the landowner to complain of the method, as he is permitted to redeem the land at any time within three years from the date of the sale for an amount equal to the cost of redemption at the time of redemption. After that time the county commissioners dispose of the land in accordance with the general provisions of the law. The proposed purchaser who has invested nothing and who is informed by the statute itself that the county treasurer shall not accept bids or offers from any persons except the owner, his heirs, executors, administrators, and assigns, or a mortgagee of the real estate, has little cause to complain. A statute requiring a sale for the smallest quantity of the land that will discharge the tax lien is mandatory upon an officer, and must be strictly pursued, but the legislature having provided for a sale of the whole of.it, the officer cannot disregard its provisions. Our attention has been called to Martin v. Snowden, 18 Grat. 145, as an authority against the validity of such a statute, and language is employed in the decision which gives countenance to the contention of the plaintiff, but the judge writing the majority opinion expressly states that he did not think it necessary to decide the question.
The claim that it is not due process of law cannot be sustained. Summary proceedings for the collection of delinquent taxes do not conflict with the principle that no man’s property can be taken from him without his consent except by due process of law. Here the landowner has had notice of the assessment and an opportunity to secure the correction of any errors made in levying the taxes against the land, and there are abundant remedies if a sale is not made in. accordance with the statutory provisions. The constitution does not prescribe how land shall be sold, and a statutory provision providing a means of sale is within the power of the legislature and not in conflict with the principle named or with other constitutional restrictions. (Pritchard v. Madren, 24 Kan. 486; McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335; Desty, Tax. 749.)
The plaintiff also attacks the validity of other statutes which make provision for the disposition of lands purchased by the county under the provisions of chapter 162 of the Laws of 1891. This, however, is not a matter of concern to the plaintiff. Assuming that he had a right to purchase, he sought to compel the county treasurer to accept his bid and tender, but the statute authorizing a purchase by the county alone having been held valid, his bid and tender were properly refused, and he has no standing to institute a judicial inquiry as to what shall be done by the county three years hence as to the sale or disposition of the lands purchased or as to the disposition of the proceeds of such sale. Whether they shall be disposed of under existing statutes or one to be enacted in the future is a matter of legislative discretion, and not of any concern to the plaintiff.
The motion to quash the alternative writ will be sustained, and judgment will go in favor of the' defendants. | [
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The opinion of the court was delivered by
Johnston, J.:
This is another controversy which has grown out of the contest of the Grimes will and of the settlement of the Grimes estate. The history of the litigation has been stated in the reports of prior adjudications. (Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Hudson v. Barratt, ante, p. 137, 61 Pac. 737.) When the will was adjudged to be invalid by the district court and the case brought to this court for review, an order staying execution of the judgment and all proceedings in the trial court was asked for and allowed, upon the giving of a bond in the sum of $2000, conditioned that the plaintiff would pay all damages sustained by the defendants by reason of the order, if the judgment should be affirmed. That bond was given, but soon afterward, upon application, the order of stay was amended and modified so
“as to forbid the executor or any of the plaintiffs in error making any allowance or distribution of the es-state, and to forbid any further administration of the’ estate by such executor during the pendency of this cause in this court, it being the intention of the court that nothing further be done by the executor or the plaintiffs in error concerning this estate except to preserve and protect the property and to do what may be necessary for such preservation and protection until the decision of this cause on its merits.”
The order was also further modified so as to require the giving of a bond in the sum of $10,000, conditioned
‘ ‘ that the plaintiffs in error will pay to the defendants in error all damages which they may sustain by reason of this restraining order, if the judgment appealed from shall be affirmed.”
The bond provided for in this order was given on January 15, 1892, and it is upon this obligation that the present action is brought. The proceeding in. which the bond was given remained pending in this court until January 15, 1896, when the judgment of the district court setting aside the will was affirmed. It is alleged that between the giving of the bond and the affirmance of the judgment the contesting parties were kept out of the possession and control of the es tate, during which the real property thereof shrunk greatly in actual value from decay and damage from the elements. It was also alleged that during the same time it depreciated in value from other causes, and for two-sevenths of the depreciation they asked judgment. A claim of damages was set up for attorneys’ fees in procuring the dissolution of the stay order, and another, for the failure to account for the personal estate which had been placed in the hands of the executor. For all these claims, judgment against the parties executing the bonds was asked in the sum of $20,000.
The case was tried before the court without a jury and findings of fact were made, in which it was found that while the stay was in force a part of the real estate depreciated in value from neglect and decay to the extent of $415, two-sevenths of which was awarded to the plaintiffs. It was also found that during the same time some of the real estate shrunk in value from other causes to the extent of $2280, but this shrinkage was not regarded as a liability against the defendants on the bond. There was a further finding that the reasonable value of the services of attorneys in defense of the case in the supreme court, wherein the stay was granted, in securing an affirmance of the judgment avoiding the will, was $1200, but these fees were not held to be an element of damages recoverable on the bond. The plaintiffs were awarded judgment for two-sevenths of the $415, amounting to $118.57, and they are here insisting that they were entitled to a much larger amount, under the findings of the court, while the defendants also complain of the award that was made against them.
The defendants were liable for all damages which were the direct and immediate result of the stay order. By reason of that order the plaintiffs’ rights to enforce the judgment setting aside the will and to proceed to , acquire possession of their respective shares of the [’estate of Susan Grimes were suspended. The natural and proximate result of such suspension — that is, the loss actually sustained by being prevented from exercising acts of ownership over the real property then held by the executor, and being kept out of possession of the same — may be recovered. The bond was prospective only, and did not cover any past delinquencies or defaults. When it was executed and approved the personal estate had been disposed of by the executor, and therefore no liability could be asserted against the sureties on account of the disposition that may have been made of the personal estate. In measuring the damages to the remaining estate, we think the waste by reason of neglect and decay was properly included. The stay order in terms required the executor, Hudson, to preserve and protect the estate until the decision of the cause on its merits, and the bond was given in pursuance of the order. ■ The failure to preserve and protect the real estate was clearly a breach of the conditions of the bond, and the waste directly resulting from the stay is a liability against the obligors of the bond.
The defendants contend, in a cross-petition in error, that this and other items of damages were included in and determined by a partition suit between the same parties, which was begun after the affirmance of the judgment avoiding the will. Some of the circumstances disclosed strongly indicate that the judgment in partition was intended as a complete settlement of all claims and controversies between the parties, but the trial court did not in terms find that such was the fact, nor that the plaintiffs understood that the damages resulting from the stay were included. The testimony upon which the findings are based is not in the record, and therefore the absence of a finding that the matter of damages was actually submitted' and determined in that action, together with the fact that damages for waste were awarded the plaintiffs, leaves no basis for defendants’ contention. They do argue that the plaintiffs should have set up the claim in the partition suit and are as much concluded by the j udgment as though it had been specifically alleged in the pleadings and expressly determined in the judgment. The damages, however, were not a lien upon the land, but arose from a step taken in another litigation. They had accrued, and constituted a distinct liability against defendants before the partition suit had commenced, and, in the absence of an intentional submission of this separate liability, they were not necessarily determined in that action.
Plaintiffs next contend that the shrinkage in value of the real estate other than physical depreciation is an element of damages recoverable on the bond. The fluctuations in the value of the real estate were immaterial to the plaintiffs unless it was or would have been placed on the market while the stay was in force. It does not appear that a sale was contemplated, nor that the plaintiffs did not intend to hold their shares of the property indefinitely. Instead of taking steps to facilitate the sale, the plaintiffs were instrumental in procuring a modification of the stay order so as to prevent a disposition of the property during the pend-ency of the proceeding in which the stay was given; At their instance the executor was required to hold, protect and preserve the property while the stay was in force, and it would seem that they were not in a position to complain that the property was not sold nor to claim anything by reason of changing values. If the order had directly enjoined an attempted sale, the depreciation in value might be treated as recoverable damage, but the order in question did not arrest a pending or contemplated sale, and hence the change of values cannot form a basis of recovery on the bond.
The plaintiffs were deprived of the value of the U3e of their property, and in one count of their petition they claim damages to the amount of $4000 for the loss of such use. No allowance was made by the court for the value of the use, if it had any value, and counsel for plaintiffs in error in their briefs state that they claim nothing on that score, and that no error is insisted on for the failure to allow damages for such use.
No error was committed in refusing to include the value, of the services of attorneys in the damages awarded. Counsel fees are allowed in procuring the dissolution of an injunction, but in such cases allowance'is only made for the services necessarily incurred in getting rid of the injunction itself. No liability is incurred on the bond in defending the action generally, where the dissolution of the injunction is only incidental to the result. (Mulvane v. Tullock, 58 Kan. 622, 50 Pac. 897; High, Inj., 3d ed., §1688.) The services for which fees are claimed were rendered by counsel in the main case and in securing an affirmance of the judgment of the trial court. It do^s not appear that any motion was ever made or argued to set aside the stay, and so far as can be seen the stay order stood without attack until dissolved by virtue of the judgment of affirmance in the will case. Again, the stay is not to be treated as an injunction. (Rhodes v. Craig, 21 Cal. 419; Avery v. Superior Court, 57 Cal. 247.) And, indeed, this court, which granted the stay, has no original jurisdiction to grant an injunction. Not being regarded as an order of injunction, counsel fees are not allowable.
Another ground of recovery which was alleged was that there had been a failure to account for the personal estate, and that plaintiffs had been kept out of their shares of such estate. No final accounting has yet been had with the executor, and, as held in Hudson v. Barratt, ante, p. 187, 61 Pac. 737, an accounting must be had in the probate court, and for any loss that may have been suffered the plaintiffs must look to the executor’s bond. In no event can there be any recovery on the bond in suit for the personal estate, as that appears to have been disposed of before the bond in question was given.
The claim for interest on the $118.57 awarded to the plaintiffs cannot be allowed. These damages were unliquidated and uncertain until the determination of the same by the trial court, and the general rule is that interest is not allowed on unliquidated damages or demands.
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Error from Dickinson district court.
Dismissed. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an application for a writ of error coram nobis. The applicant, Marion Asbell, was charged with the felonious killing of his wife and convicted of murder in the first degree. He appealed to this court, where, after a full examination of numerous assignments of error, the judgment of conviction was affirmed. (The State v. Asbell, 57 Kan. 898, 46 Pac. 770.) Afterward he attempted to bring a proceeding in the district court against the state to obtain a new trial, but it was held that the state, being a sovereign power, could not be subjected to suits by its citizens without an express statutory waiver of its right of exemption, and, there being no waiver, the proceeding was therefore dismissed. That ruling was brought to this court for review, and affirmed. (Asbell v. The State, 60 Kan. 51, 55 Pac. 338.) Still later the present proceeding was begun, and the grounds alleged for the writ of error coram nobis, briefly stated, are:
1. That from the filing of the information against Asbell until he was convicted the belief existed among the people of the county that he was guilty of the charge; that such intense feeling existed againt him, and so much prejudice, as to render it impossible to have a fair and impartial trial in the county.
2. That during the trial mob violence against him was threatened, and combinations of persons made to take him from the officers of the law and kill him, causing a suppression of feeling which might have existed in his behalf; and the petitioner states that he is informed and believes that these things affected the jury and caused them to render a verdict against him.
3. That by reason of the intense feeling and of threats, a witness gave false testimony against the defendant, upon which'- he was convicted, and without which he might been have acquitted.
4. That the bailiff in charge of the jury, during the time of their deliberations, was guilty of misconduct, by entering the jury-room and conversing with the jurors, and a belief is expressed that he conveyed to the jury information of the intense feeling existing against the defendant, and that nothing but a verdict of guilty would be received.
5. That during the progress of the trial, and without the knowledge of the defendant, the body of his deceased wife was exhumed and a post mortem examination made by a number of physicians and surgeons residing in the county, some of whom testified in reference to the wound found on the body, and gave opinions as to the manner in which the wound was inflicted and death caused — that is, whether it could have been done by the defendant or resulted from suicide ; that a witness who assisted in the post mortem examination had since made a careful microscopic examination of the scalp, where the wound was inflicted, and of the brain, through which the bullet passed, and developed facts inconsistent with the theory of the state; that such firing could not have been done by the defendant, but that death must have resulted from suicide ; that such evidence could not have been produced at the trial of the cause, and was not known until long after the judgment of conviction; and the petitioner avers that he is informed and believes that this evidence is material and sufficient to justify a verdict of acquittal.
There is a further averment that the new evidence and matters referred to in the fourth and fifth grounds were without his knowledge and beyond his reach until after his conviction and confinement in the penitentiary.
On a motion to dismiss, the district court held, in a written opinion, that the facts stated in the application did not warrant the granting of the relief sought, and the proceeding was thereúpon dismissed. The petitioner alleges error, and brings the case here upon-a transcript of the record.
If the common-law remedy invoked can be obtained on the grounds alleged here, there is little certainty in judicial proceedings and little finality in the judgments of courts. The petitioner asks for a consideration of matters which were, or should have been, known to him — matters involved in the issues that were adjudicated in the district and supreme courts. It has been held that our courts have power to issue writs in the nature of coram nobis. (The State v. Calhoun, 50 Kan. 523, 32 Pac. 38, 18 L. R. A. 838.) But to give this remedy the scope claimed in behalf of the petitioner would be to substitute a somewhat obsolete writ'for a simple and summary-procedure specifically provided by statute. Our code provides how errors may be corrected in the courts in which they occur, and to the extent that provision is so made it is nec essarily exclusive of common-law writs and procedure. This writ, instead of superseding the statutory provisions, is only employed in aid of them, or where the 'statute fails to afford a remedy. (The State v. Calhoun, supra.)
In Sanders v. The State, 85 Ind. 318, after holding that there was power in the courts to issue such writs, it was said:
"The writ cannot be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law — the- motion for a new trial and the right of appeal — and these very materially abridge the office and functions of the old writ. These afford the accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, as well as questions of law; while at common law the writ of error allowed him to present to. the appellate court only questions of law. Under our statute all matters of fact reviewable by appeal, or upon motion, must be presented by motion for a new trial, and cannot be made the grounds of an application for the writ of coram nobis. Within this rule must fall the defense of insanity, as well as all other defenses existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly-discovered evidence, and all like matters.”
The function of the common-law writ is to bring to the attention of the court for correction an error of fact — one not appearing on the face of the record, unknown to the court or party affected, and which, if known in season, would have prevented the judgment which is challenged. The death of a party pending the suit and before judgment; infancy, where the party was not properly represented by guardian; coverture, where the common-law disability still exists ; insanity at the time of the trial; and a plea of guilty, where a person claiming innocence is compelled, by fear of a mob, to enter it, are instances where the writ has been employed. (5 Encyc. Pl. & Pr. 27, and cases cited.) As stated in the written opinion of the learned trial judge, “it cannot reach any matter of fact known to the court, for such would be error of law, and might be remedied by writ of error. Nor can the writ reach matters of fact known, or which by the exercise of reasonable diligence could have been known, to or by the party making the application at the time of the court’s error. Nor can the writ give a new trial on the grounds of evidence going to the merits, but undiscovered in time for use on the original trial, or newly-discovered evidence.”
The first ground upon which it is sought is, in brief, that such intense excitement and popular prejudice existed at the time as to prevent a fair trial. It is not alleged in the application for the writ that this was an unknown fact at the time of the trial, nor that it was not known in time to have been taken advantage of by an application for a change of venue or a continuance of the cause. Waiving the insufficiency of averment in the application for the writ, it appears from the record that the defendant was aware of' the condition of the public mind toward him before the trial was had, and the claim that there was such popular passion and prejudice against him as to prevent a fair trial was brought to the attention of the court before the trial was begun. In an application for a continuance, it was alleged that there was great indignation in the community toward the defendant, and that there were such excitement and passion as to prevent a fair trial. On the showing made, the trial court refused the continuance and reviéwed the matter again on the motion for a new trial; and this re fusal was assigned for error in this court, where the subject was again examined and a decision made against the claim of error. Thus we see that the matter was not only brought to the attention of the court, but that it was considered and adjudicated by the trial court as well as by the supreme court. As we have seen, the remedy is not available where the facts complained of were known before the trial, and where advantage could have been taken of the alleged error at the trial. Nor does it lie to correct an adjudicated issue of fact. (Howard v. State, 58 Ark. 229, 24 S. W. 8; Marble v. Van Horn, 53 Mo. App. 361; Milam Co. v. Robertson, 47 Tex. 222; The Second Ward Bank v. Upham and another, 14 Wis. 596; Hillman v. Chester, 12 Heisk. [Tenn.] 34; Holford v. Alexander, 46 Am. Dec. 253, and note; Jackson v. Milson & Coe, 6 Lea [Tenn.], 514; 3 Bacon’s Abridg., Error, 375; 5 Encyc. Pl. & Pr. 29.)
The second ground alleged in the application for the writ differs but little from the first, and that it is insufficient is apparent from the rules already stated and the authorities that have been cited.
The third ground is that under duress an important witness for the state gave false testimony, without which it is alleged the verdict of guilty could not have been had or upheld. The credibility of this witness and the truth or falsity of her testimony were issues of fact in the original trial, and, having been once passed upon, the remedy of a writ of error coram nobis cannot be used. (Howard v. State, supra; State, ex rel. Davis, v. Superior Court, 15 Wash. 339, 46 Pac. 399; John M. Bigham v. David Brewer, 4 Sneed [Tenn.] 432.)
The fourth ground relates to the state of, public feeling against the defendant and the effect of the. same on the verdict of the jury. In effect, it is only a statement of how the public feeling was communicated to the jury, and the matter of popular prejudice was an issue involved in the original action. Presumably, the bailiff, being a sworn officer of the court, did his duty, and if he was guilty of misconduct it is not alleged, nor does it appear that it could not have been taken advantage of either at the trial or on the motion for a new trial.
The basis of- the fifth and final ground is no more than newly-discovered evidence of a cumulative character on the most prominent issue involved in the original trial. The theory of the defense was that Mrs. Asbell, in a fit of despondency, committed suicide, and testimony as to the position of the body and the character and condition of the wound was given. It is now claimed that a microscopic examination of the scalp, where the wound was inflicted, and of the brain, through which the bullet passed, was inconsistent with the testimony offered in behalf of the state, and indicated that her death must have resulted from suicide. As will be observed from the opinion in The State v. Asbell, 57 Kan. 408, 46 Pac. 770, medical experts examined the wound and testified as to its appearance and character. Other expert testimony as to the effect of a gunshot when the weapon is held near the head or flesh was offered, and opinions were given as to whether the pistol which made the wound was fired close to the head or from a considerable distance. It therefore appears that the newly-discovered evidence relates to one of the adjudicated questions of fact in the case, and that it is merely cumulative in character. It is well settled by the authorities that an error of fact, which may be used as a basis for a writ of error corato nobis, does not consist of new evidence going to the merits of the case and which was undiscovered in time for use at the original trial. In Howard v. State, supra, it was expressly held that the writ “does not lie on behalf of one convicted of murder, after the time for obtaining a new trial has expired, on the ground of newly-discovered evidence proving that another person committed the crime.” See, also, Marble v. Vanhorn, supra; Bigham v. Brewer, supra; Thompson’s Cases (Tenn.) 264; 5 Encyc. Pl. & Pr. 29. If judgments rendered, and reconsidered on a motion for a new trial in the district court, and affirmed by the appellate courts, might be set aside because of new evidence alleged to have been discovered since trial was had, it would indefinitely protract litigation, destroy the stability and certainty of judicial proceedings, and open wide the door to perjury and fraud. If the new testimony and recent developments show that the petitioner was wrongly convicted, it furnishes a basis for an application to the pardoning power, but does not warrant the granting of a writ of error coram, nobis.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action to recover on four interest coupon notes, each for the sum of $42, executed by Leroy Law and Dora Law. On April 1, 1887, the Laws borrowed $1200 from the Farmers’ Loan and Trust Company, and executed a promissory note for that amount, with ten interest coupon notes, each for $42, maturing semi-annually. They also executed a mortgage on a tract of land to secure the payment of these notes. At the same time they executed three, additional notes, each for $40, secured by a second mortgage on the same land, payable to an officer of the company. The $1200 note and coupons, as well as the mortgage, were sold and assigned to Henry Waitt. Soon afterward the Laws conveyed the mortgaged land to John G. Kensley, who assumed the payment of the indebtedness. When the first four interest coupon notes became due they were not paid by the Laws or by Kensley, and the Farmers’ Loan and Trust Company, which, had guaranteed the payment, paid the same, and they were delivered to it by the holder uncanceled. Afterward, and in 1889, the second mortgage on the land was foreclosed, and a sale of the same ordered, subject to the first mortgage. Default was made in the payment of the taxes, and the land sold for taxes, and it was subsequently conveyed to Emma L. Waitt by tax deed. In 1890 the Farmers’ Loan and Trust Company made a general assignment for the benefit of creditors, and the assignees took possession of the assets of the company.
In May, 1892, Henry Waitt commenced an action against the Laws, the Farmers’ Loan and Trust Company, its assignees, and other parties, to recover on the $1200 note and to foreclose the mortgage given to secure its payment. The assignees of the Farmers’ Loan and Trust Company set up and asked judgment on the four interest coupon notes for $42 each which they had been required to pay. The action brought by Henry Waitt was dismissed by him on January 5, 1894, and the action of the assignees on their answer and cross-petition against the Laws was also dismissed without prejudice. While that action was pending, the assignees, by authority of the district court, sold the assets of the Farmers’ Loan and Trust Company, including the four interest coupon notes in controversy, to the Anthony Investment Company. On September 13,1895,' the company last named commenced an action against Leroy and Dora Law, before a justice of the peace, to recover on the four interest coupons heretofore mentioned, and a judgment was obtained by the company for $131.88. An appeal to the district court was taken by the defendants, and the case was there tried on an agreed statement of facts, which resulted in a judgment in favor of the defendants. That judgment was affirmed by the court of appeals, and the case was certified to this court for review.
The grounds for the decision of the district court .are not stated, and no reason for the affirmance of the judgment was given by the court of appeals. The •execution of the notes was not denied, and no claim was made that they had been paid by the defendants, who were the makers of the same. One contention is that the makers having sold the land subject to the mortgage debt no action could be maintained against them for a personal judgment before the foreclosure of the mortgage securing the notes. The debt represented by the notes is the primary obligation, and the mortgage a mere security for its payment. The holder of a note may at his option ignore the security and bring his action on the note alone, and the fact that the mortgagor has sold the mortgaged property to another, subject to the mortgage debt, does not affect the right of the holder to pursue the personal remedy. (Lichty v. McMartin, 11 Kan. 565; Jones, Mort., § 1220.) The fact that the purchasér of the property assumed the mortgage debt does not affect the personal liability of the makers of the notes, unless there has been an agreement to release them; and no release is claimed.
Another contention was that the action was barred by the statute of limitations because it was commenced more than five years after the maturity of the notes. In the action, which was brought in 1892, to recover upon the $1200 note and to foreclose the first mortgage, the notes in controversy were set up and judgment claimed thereon by the assignees of the loan company. They were not barred when judgment was asked on them in that action, and, it being dismissed without prejudice, the notes were brought within the saving clause of section 23 of the civil code (Gen. Stat. jl897, ch. 95, § 17; Gen. Stat. 1899, §4267), wherein it is provided that if any action be commenced within due time, and the plaintiff fail in such action otherwise than upon its merits, and the time limited for thé same shall have expired, the plaintiff may commence a new action within one year after such failure. The present action was begun within one year after the dismissal without prejudice, and is therefore in good time.
The fact that there was an assignment of the notes, and that they were transferred during the pendency of the action, did not take them out of the saving clause referred to, and the right of action is preserved to the assignee for a year after the failure of the action, the same as it would have been to the payee of the notes. (McWhirt v. McKee, 6 Kan. 412; Shively v. Beeson, 24 id. 352; Thornburgh v. Cole, 27 id. 490.) Nor was their right affected by the fact that other parties were also defendants in the first action. The two actions, although not identical in form, were substantially alike, and in each case a personal judgment was sought on the notes, and on similar grounds of liability, so far as the defendants' are concerned. (Hiatt v. Auld, 11 Kan. 176.)
The final contention is that the payment of the coupon notes by the Farmers’ Loan and Trust Company to Waitt, the holder of the same, was an extinguishment of the debt and released the defendants from liability. When the coupon notes became due and were not paid by the defendants, the company, as guarantor, was liable for their payment, and to meet this requirement and to protect its second mortgage, money for the payment of the same was ad vanced by it, in accordance with its custom. It was not a mere intermeddling stranger, but, being a surety who had paid the debt of its principal, it was entitled to recover the amount paid from the principal. Having advanced the money and taken up the paper, the company was entitled to all the. rights and remedies of the assignor against the defendants.
Although there is a contention to the contrary, we think the petition in error sufficiently points out the errors complained of, and for these errors the judgments of the district court and of the court of appeals will be reversed, and the cause remanded with directions to enter judgment in favor of the plaintiff for the amount claimed. | [
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The opinion of the court was delivered by
Doster C. J.:
In this case proceedings in error have been instituted to reverse an order of the court below overruling the motion of certain stockholders in a banking corporation to intervene in a suit brought against their company and to defend the action against it. The grounds of the motion to intervene were that the company was not liable to the action brought against it and that its directors and managing officers wrongfully and fraudulently refused to defend. The facts were that the State Bank of Seneca, a banking institution organized under the laws of this state, undertook to reorganize as a national bank in accordance with the provisions of the national-bank act. That act provides that banking institutions or ganized under state laws may reorganize as national banks upon a vote of two-thirds of the stockholders, upon the taking of which vote the board of directors are required to certify the action taken to the comptroller of the currency, who thereupon issues a certificate of authority to do business as a national bank. The decisions of the courts are that upon effecting the reorganization in the prescribed way the old corporation becomes merged in the new, or, more accurately speaking, the new corporation is held and treated to be a^mere continuation of the old one. The change effected, therefore, merely consists in passing from one form of organization to another and in amenability to national regulation and control instead of that of the state.
The requisite number of the stockholders of the State Bank of Seneca voted to make- the change. Whether the board of directors certified the resolution of reorganization to the comptroller of the currency does not appear from the record before us. However, it does appear that in due'time the comptroller issued a certificate of authority to a bank entitled “The National Bank of Seneca,” which institution commenced, and since then has continued to do, business by such title. In the main its stockholders were the stockholders of the old State Bank of Seneca, its directors were the same, with one or two additional persons, and its executive officers were the same. It commenced and has continued to do business at the place where the State Bank of Seneca was located. The officers of the old state bank, who, as just remarked, were also officers of the new national bank, continued to do business for the old bank and in its name. This business, however, consisted in liquidating and winding up its affairs. It pursued the work of collecting its securities and paying its obligations, and, among other things, made reports to the bank /commissioner of the state.
It was unable to discharge all of its indebtedness, and to enable it to do so it borrowed $20,000 or more from the new national bank. It did not pay the money so borrowed, and suit was thereupon brought against it. It made default in the suit, whereupon certain of its stockholders who had not gone into the new or supposedly reorganized bank filed a motion to be allowed to defend in place of the corporation, alleging the lack of power of the old corporation officers to incur the obligations for which the suit was brought, that such obligations were given without consideration and in fraud of the old corporation and its stockholders, and that the officers of the old corporation, being the same as those of the new one and being the ones guilty of the wrongful acts charged, had neglected to defend as they should have done. In connection with the motion of intervention, the stockholders tendered a verified answer1 ¡'setting up all the matters herein briefly mentioned, and asked that they be allowed to •file it and, under it, to be allowed to defend for their company.
The case was heard on the motion for leave to intervene and to file the answer. Considerable evidence was taken, much of which tended quite strongly to support the contention of the stockholders, especially to support their claim that the old state bank had, by process of reorganization, become changed into the new one. This claim was denied, it being asserted that, notwithstanding the resolution of the stockholders to reorganize, a reorganization was not in fact accomplished, but, instead thereof, the new bank was an original institution organized without reference to the exist ence of the old bank. If such was the case, the old bank did not become merged into the new one, or changed to a new one, but retained its existence under the laws of this state and was competent to con-' tract the obligations sued on. Seemingly, the only missing link in the chain of evidence necesssary to show . that the new bank was a reorganized, and not an original, institution was a showing that the board of directors of the old bank had forwarded the resolution of reorganization to the comptroller, and that the comptroller’s certificate of authority had been issued in pursuance to such resolution, and not in pursuance of a scheme of original incorporation. The inference, however, is strong, from all the evidence in the case, that the national bank was a reorganized, and not a newly organized, institution. However, if the record before us were the record of a final trial of the case, we would be compelled, under the well-settled rule, to allow the judgment of the court below to remain undisturbed ; but the trial that was had was not a final trial, but only a trial of the motion for leave to intervene and have a trial. In other words, the trial that was had was not the trial proper, but was a trial of the preliminary question as to whether a trial should be had.
There can be no question but that stockholders are entitled to defend legal proceedings in behalf of their corporation in case its directors or managing agents are wilfully or fraudulently neglectful of its interests. (Mining Co. v. McKibben, 60 Kan. 387, 56 Pac. 756.) In that case it was said :
“If the directors be derelict in their duties, and through wilful neglect or for a fraudulent purpose fail to protect the corporate interests, the stockholders may do so in their stead, but to entitle them to do so it must be made to appear that the corporate officers who are primarily charged with the duty are wilfully or fraudulently neglectful of it.”
A proper practice in such cases is for the stockholders to move the court for leave to intervene in the suit they wish to defend, and to allege and show that the authorized and managing agents of the company are derelict in their duties. Before allowing this privilege to the stockholder's, the court should require of them a prima facie showing, at least, but that showing need not be more than prima facie enough to enable the court to conclude that there are reasonable grounds to believe that the corporation defendant has a meritorious defense to the action against it and that its officers are fraudulently or improvidently neglectful of its interests. This showing was made in the case we are considering. Irrespective of the matters of fraud charged in the motion and answer, and to support which there was some showing of testimony, it would seem that if the National Bank of Seneca was the State Bank of Seneca reorganized, such 1 ast-named bank had no authority to contract the obligations sued on; rather, it had no existence, and, having no existence, the contracting of a debt cannot be predicated of it. (Smith, Dig. Nat. Bank Dec. 215.) However, we do not wish to be understood as making such decision at this time. We only remark, as we did before, that such seems to be the rule of the cases on the subject. If such be the law, there can be no question, unless some exceptional facts exist, that the old corporation had no power to contract the obligations sued on, and the stockholders, therefore, would be justified in asking leave to defend. Hence, we are of the opinion, upon the showing made, that the court should have sustained the motion of intervention, should have al lowed the filing of the anwer, and the making of an issue thereon, and should have allowed a full trial of the case.
To enable such to be done, the judgment of the court below is reversed. | [
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Error from Jewell district court.
Affirmed. | [
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The opinion of the court was delivered by
Ellis, J.:
Although several assignments of error were made herein and argued at great length by the learned counsel for the plaintiff in error, the one question necessary for us to consider, in the present status of this case, is, Was the judgment of December 13, 1897, absolutely void? If it was null and void, it could properly be attacked by the motions, the overruling of which constitutes the grievance now complained of, and, if not, it stands as a final determination of all the matters in controversy in the action in which it was rendered, and as to those matters it is res judicata. The mere announcement that the defendant voluntarily appeared and pleaded to the action will suffice to dispose of and determine in the affirmative the question as to whether the court below had jurisdiction of the person of the non-resident defendant. There remains, then, for our consideration, the question as to whether such judgment was void for want of jurisdiction of the subject-matter, or because it was not within the powers granted to the court by the laws of its organization.
Section 6 of article 3 of the constitution of this state provides that “the district courts shall have such jurisdiction in their respective districts as may be provided by law” ; and by statute it is enacted that “there shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law).” (Gen. Stat. 1897, ch. 85, § 1; Gen. Stat. 1899, §1879.) Surely this grant of power is broad enough to confer jurisdiction, except as to those matters only which by statute áre withheld or ceded to another tribunal.
It will be noted that the present case was an action for the recovery of money upon a contractual liability against a foreign executor, and specific authority for the bringing of such an action may be found in section 147, chapter 107, General Statutes of 1897 (Gen. Stat. 1899, § 2892), which reads :
“An executor or administrator duly appointed in any o.ther state or country may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued.”
In the case of Cady v. Bard, 21 Kan. 667, the statute just quoted was construed by this court, and in the opinion Mr. Justice Brewer said :
“Now, a non-resident may be sued in an action on a contract for the recovery of money, and service may be obtained by attachment and publication. In ‘like manner’ may a foreign executor or administrator be sued. That a state has jurisdiction over all property within its territorial limits, and may subject it to the process of its courts, will not be doubted. Whether a judgment rendered upon a service by attachment and -publication has any extraterritorial force, or binds any thing other than the specific property attached, we need not inquire. It is enough for the purposes of this case to hold that jurisdiction may be acquired, so far as may be necessary, to cut off all interest of the non-resident defendant in the property attached.”
In the syllabus in that case it was laid down as the law of this state that, under the statutory provision just quoted, a foreign executor or administrator may be sued in an action on a contract for the recovery of money, and service obtained by attachment and publication. See, also, Denny v. Faulkner, 22 Kan. 96; Dunlap v. McFarland, 25 id. 490; Donifelser v. Heyl, 7 Kan. App. 606, 52 Pac. 268, affirmed, 59 Kan. 779, 54 Pac. 1059.
The statutes conferring jurisdiction on the probate courts of this state do not nullify the provisions of the statute permitting actions to be brought by and against foreign executors and administrators in the same manner as they may be brought by and against non-residents of the state. It would be idle to cite the various provisions of our constitution and laws relating to the jurisdiction of probate courts in the care of the estates of deceased persons, minors, and persons of unsound mind, for, in the view we have taken of this case, it is necessary for us only to determine the question as to whether, under the constitution and laws of this state, the district court of Atchison county had jurisdiction to entertain a suit like the present, commenced against a non-resident executor by attach-' ment and service by publication. If a court should assume to act in a case over which the law did not give it authority, the judgment would be altogether void. This would be true whether objection be made to the exercise of unwarranted power on the part of said court or not. But the court “has jurisdiction of any subject-matter, if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description.” (Cooley, Const. Lim., 6th ed., 491.)
In Morrow v. Weed, 4 Iowa, 77, 89, the court said that the source of jurisdiction is: “(1) The law; (2) a petition (or whatever stands in its place) ; (3) notice (when such is required).”
“It is the character of the suit on the part of a plaintiff which gives the right of jurisdiction to a court, so far as the subject-matter is concerned, and not of the defense thereto. Where a statute grants a right, jurisdiction attaches, even if another statute may make a certain circumstance a bar to that right, if pleaded by the defendant.” (Wells, Jurisd. §4.)
Another author on the same subject says:
“Jurisdiction over the subject-matter is the right of the court to exercise judicial power over that class of cases ; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.” (Brown, Jurisd. §la.)
“By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.” (Cooper v. Reynolds, 77 U. S. 308, 316, 19 L. Ed. 931.)
“Jurisdiction of the subject-matter is the court’s jurisdiction of the cases of a general class to which any particular case and the relief sought therein may belong.” (12 Encyc. Pl. & Pr. 121, n. 1. and cases cited. See, also, United States v. Arredondo and others, 6 Pet. 691, 8 L. Ed. 547; Fithian v. Monies et al., 43 Mo. 502; Hunt v. Hunt, 72 N. Y. 229; Cook v. Bangs, 31 Fed. 640; Florentine v. Barton, 69 U. S. 210; Hallock v. Doming et al., 69 N. Y. 240.)
In Donifelser v. Heyl, 7 Kan. App. 606, 52 Pac. 268, which was an action brought by a foreign executor by attachment against a foreign executrix, on which judgment was rendered for the plaintiff and the real property attached ordered to be sold to satisfy such judgment, the court, on application of the defendant, opened the judgment and permitted the foreign executrix to come in and defend, and after a trial the court entered an ordinary judgment in favor of the plaintiff and against the defendant as executrix, but refused to order the property sold which had been attached. In commenting on the statute quoted above (Gen. Stat. 1897, ch. 107, § 147; Gen. Stat. 1899, § 2892), the court said :
‘ ‘ To hold the statute not broad enough to cover the present case is to hold it to be so narrow that it covers nothing. What was the gain to the plaintiff below in obtaining the judgment finally awarded him? He could not collect it by the ordinary post-judgment process of the court which rendered it. He would be obliged to wait, hoping that something might come to him through the proceedings of the probate court of Cook county, Illinois.”
To hold in the present case that the foreign executor might be sued, that an attachment might issue under which the land might be seized, that service by publication as in ordinary cases might be made with like effect, and then to say that after judgment had been rendered the particular property seized could not be sold by the order of the court, would be to decide that the statute itself was meaningless and afforded to the plaintiff no redress or benefit.
A court acquires jurisdiction of the res where there is a substantial compliance with the provisions of law for the bringing of a suit in attachment, where the writ is issued and the property actually seized thereunder, and where the requisite notice is given the defendant.
“Whenever specific property is subject to seizure and sale for the satisfaction of particular demands, courts of the state where the property is situated have undoubted jurisdiction without reference to the residence of the parties.” (12 Encyc. Pl. & Pr. 145.)
“The rule is that when a party out of the jurisdiction has property within the jurisdiction of the court, the jurisdiction of the cause may be acquired by issuance of process against and seizure of such property, even though the defendant cannot be served with personal process, but the jurisdiction thus acquired will merely authorize the ascertainment of the obligation and subjection of the property to the extent thereof if so much is seized, and will not support a personal judgment in the absence of personal service.” (Id. 143.)
“In proceedings in rem, as well as in those which are in the nature of proceedings in rem, actual notice to parties is not necessary, but constructive notice, either generally to the whole world, where the proceeding is purely in rem, or specially to the parties interested where the proceeding is quasi in rem,- is sufficient.” (Id. 146.)
“That a state has jurisdiction over all property within its territorial limits and may subject it to the process of its courts will not be doubted.” (Cady v. Bard, supra. See, also, Miller v. United States, 78 U. S. 268, 294, 20 L. Ed. 135 ; The Rio Grande v. Otis, 90 id. 458, 23 L. Ed. 158; Arndt v. Griggs, 134 id. 316, 10 Sup. Ct. 557, 33 L. Ed. 918.)
It is proper for a court, in determining the validity of a statute, to consider whether it has long been followed and acquiesced in without a question as to its constitutionality being raised. For more than thirty years our statute providing that foreign executors may sue and be sued in any court in this state in like manmer as suits may be brought by and against non.-residents generally has been in force, has been acted on and construed by our courts, and never before, so far as we are able to ascertain, have its provisions been challenged as repugnant to our own constitution or to the constitution of the United States. Indeed, the validity of this section was expressly recognized in Eells v. Holder, 2 McCrary, 622, 12 Fed. 668. As to all of the objections raised in this case which we have not discussed, it may be said that they must be treated as having been passed upon by the court below. If the court had jurisdiction to render judgrnent at all, its judgment rendered December 18, 1897, must be regarded as final, and whether right or wrong it must be upheld. The power to determine and decide a case includes' the power to decide it wrong as well as to decide it right. In this case it must be held that the court below passed on and upheld the several statutes not cited in this opinion which are assailed by counsel .for the plaintiff in error as unconstitutional. We do not discuss them, because they do not relate to the jurisdiction of the district court over the parties or the subject-matter herein.
In Florentine v. Barton, supra, the validity of an Illinois statute and judgment therein was involved, and the court held that, “whether the decision be correct' or otherwise, its judgment, until reversed, is binding on every other court.” It also held:
“The question raised as to the constitutional power of the legislature of Illinois to pass the private acts modifying the general course of proceedings in similar cases was necessarily decided by the circuit court of the state, under whose order and supervision this sale was made.”
In Board of Children’s Guardians of Marion County, etc., v. Shutter, 139 Ind. 268, 34 N. E. 667, 31 L. R. A. 740, the court said :
“A judgment founded on a statutory bond, depending for its validity wholly on the statute, which is unconstitutional and void, is not void, and cannot be collaterally impeached because the statute is unconstitutional and void.”
Thereupon the court disposed of the case, as it said, “without deciding anything whatever about the constitutionality of the statute so ably and exhaustively discussed.” See, also, Chicago & Alton R. R. Co. v. Wiggins Ferry Co., 108 U. S. 18, 1 Sup. Ct. 614, 27 L. Ed. 636.
In Ex parte Tobias Watkins, 3 Pet. 193, 202, 7 L. Ed. 650, the court said of the judgment rendered by a court having jurisdiction:
“A judgment, in its nature, concludes the subject on which it is rendered and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts.”
“When any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. If the rulings of that tribunal are adverse to one party and wrong, he should seek to correct that judgment by error or appeal. Failing to do that, he is estopped from further inquiry.” (Anthony v. Halderman, 7 Kan. 50, 63.)
“The estoppel is not confined to the judgment, but extends to all facts involved in it- as necessary steps or the groundwork upon which it must have been founded.” (Burlen v. Shannon, 99 Mass. 200, 203, quoted and approved in Harshman v. Knox County, 122 U. S. 306, 7 Sup. Ct. 1171, 30 L. Ed. 1152.)
“If the petition sets forth facts sufficient to challenge the attention of the court with regard to its merits or authorize the court to deliberate with respect thereto, then the judgment subsequently rendered upon it is not void, but at most is only voidable, and it cannot even then be held to be voidable except when it is attacked directly and in a direct proceeding.” (Head v. Daniels, 38 Kan. 1, 6, 15 Pac. 911; John P. Greer v. Daniel M. Adams, 6 id. 203; Rowe v. Palmer, 29 id. 337 ; Entreken v. Howard, Adm’r, 16 id. 551; Bryan v. Bauder, 23 id. 95.)
It follows that if, as to any of the rulings and decisions made by the court below upon matters not directly involving its power and j urisdiction to entertain the suit and render judgment therein, the defendant below was aggrieved, he had but one remedy therefor —that of appeal, within the time and in the manner provided by law. The fact that the appeal in this case was dismissed does not change the result, and the judgment must be regarded as final after the expiration of the time in which an appeal is allowed by law. (Wells, Res. Adj. & St. D. §9.)
We conclude, therefore, that the court below was invested with the power to hear and determine this case, that it had jurisdiction of the parties and the subject-matter, and that its judgment rendered December 13, 1897, is final and conclusive. For that reason the decision and judgment of the court below in overruling the aforesaid motions must be affirmed. | [
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Opinion by
Green, C.:
This action was commenced in the district court of Cowley county by the defendants in error to recover the sum of $295 debt, and $45.40 costs, from the plaintiffs in error, who were alleged to be the directors of the Arkansas City’ Athletic Association. The petition charged that, after making and filing a charter in the office of the secretary of state, the.'defendants never perfected the organization of the corporation by opening books for the purpose of receiving subscriptions; that they did not levy and collect any money from themselves, nor adopt any by-laws or other rules for the government of the corporation; that no meeting had ever been called | for the election of directors or other officers ; that the defendants had failed to comply with any of the requirements of the law for the government of corporations after the articles of incorporation had been filed; that on the 18th day of January, 1889, the plaintiffs recovered a judgment against such corporation for the sum of $295, and $45.40 costs; that an execution was issued upon such judgment and returned “no property found.” It was further alleged—
“That after the filing of the said act of incorporation, the defendants assumed to act as such corporation, and for that purpose leased real estate, and purchased of the plaintiffs material and lumber, with which they erected a grand stand or amphitheater upon said leased ground, to the amount and value of several hundred dollars, and paid to the plaintiffs thereon all but the amount represented by the aforesaid judgment; and in all their dealings with the plaintiffs, dealt in the name of said judgment defendant hereinbefore referred to; and the plaintiffs aver that, knowing of the filing of the aforesaid articles of incorporation, and believing that said defendants were acting in good faith, and that they were complying with the provisions of the laws of Kansas in such cases made and provided in all things, and having no cause to think otherwise, on the faith and credit of these men they sold said lumber and building material to them, and charged it to said corporation of which they were the proprietors and incorporators, by their direction and instruction; that but for all of which the plaintiffs would not have furnished them with said materials and credit; that after said execution had been issued and returned unsatisfied, the plaintiffs applied to these defendants for the names of the officers and stockholders of said corporation, and these defendants declined to furnish either the names or the places of residence, and insolently informed the plaintiffs that there were no officers, no books, no directors, no stockholders, and no subscriptions, and that if the plaintiffs thought they had any remedy looking to the collection of said judgment, interest and costs they were mistaken, etc., and now refuse to give the plaintiffs any information of any kind relative thereto whatsoever; that plaintiffs only learned the foregoing facts after the rendition of the aforesaid judgment.”
The defendants filed a demurrer to this petition, which was overruled by the court, and judgment was rendered for the amount prayed for in the petition. The defendants elected to stand upon the demurrer, and bring the case here for review.
It is first urged by the plaintiffs in error that the petition did not state a cause of action; that the petition did not show that the goods furnished, for which the original judgment was rendered, were furnished at the request of the plaintiffs in error before the Arkansas City Athletic Association became a body corporate; but that the petition showed upon its face that the goods were sold upon the credit of the corporation, and that part of the purchase-price of the goods was paid by the corporation. It is further insisted that the Arkansas City Athletic Association was legally incorporated, and that the organization became complete upon the filing of the charter with the secretary of state. This contention is not sound. The statute only provides that the existence of the corporation shall date from the time of filing the charter, and the certificate of the secretary of state shall be evidence of the time of such filing. (Gen. Stat. of 1889, ¶ 1166.) The statute is silent as to the organization. The rule is well established that a corporation must have a full and complete organization and existence as an entity, and in accordance with the law to which it owes its origin, before it can assume its franchise or enter into any kind of contract or transact any business; and whatever be the mode prescribed by the act of incorporation, a substantial compliance with all the provisions of the law under which it is created is required before the corporation can be said to have such an existence as will entitle it to do business. (4 Am. & Eng. Encyc. of Law, 197, and authorities there cited.) Now it is conceded in this case that nothing was done to perfect the organization after the charter was filed. A corporation cannot act without officers and agents, and it is powerless to do anything until its incorporators or promoters give it the means whereby it can act. The words “organize” or “organization” have a well-understood meaning; and as we construe them they mean the election of officers, providing for the subscription and payment of the capital stock, the adoption of by-laws, and such other steps as are necessary to endow the legal entity with the capacity to transact the legitimate business for which it was created. In this sense the corporation was not fully organized. While it had an existence, the organization was never completed so that the corporation could do business.
In the case of Hurt v. Salisbury, 55 Mo. 310, which was an action brought upon a note purporting to have been executed by the directors of an agricultural association, the suit was brought against the directors, upon the ground that the association was not incorporated at the time the note was given, and that the directors were therefore individually liable. It appeared .that the association was not fully incorporated when the note was executed. The law required the charter to be filed with the recorder of the county where the corporation was located, and also in the office of the secretary of state. The charter was only filed with the recorder. The court held that' the officers of the corporation had no power to issue the note, and that a note issued and signed by them would bind them personally, and not the corporation. The court said, in speaking of the attempted organization of that corporation:
“It had organized under §2, chapter 69, General Statutes •of 1865, page 367, by signing and acknowledging and recording in the recorder’s office of the proper county the articles of association. This step being taken, it was an organized corporation not for the transaction of business but for the purpose •of taking the next and last step to complete its authority to transact business and give date to its legal existence. Until the officers took this final and necessary step by depositing and filing in the office of the secretary of state a copy of the articles of association, as they stood recorded in the county, this corporation had no power to issue the note sued on. As it had no power to issue this note, the defendants' are undoubtedly liable.”
“If a corporation be illegally formed, its members or stockholders are liable as partners for its acts or contracts; and directors, officers and agents acting and contracting in its name render themselves personally liable.” (Beach, Priv. Corp., § 16; Marshall v. Harris, 55 Iowa, 182; Kaiser v. Savings Sank, 56 id. 104; Coleman v. Coleman, 78 Ind. 344.)
While, in this case, the charter was filed with the secretary of state, the corporation had no officers outside of the directors named for the first year. No portion of the capital stock had been subscribed and no books opened, as required by ¶ 1173 of the General Statutes of 1889. In fact, nothing had been done to complete the preliminary business of organizing the corporation. We do not understand that a corporation can proceed to the transaction of business without any portion of its capital stock being subscribed or paid. It may have been the English rule, but in the United States it is otherwise. (Boone, Corp., § 113.) The corporation has no means or capacity to act until some portion of the capital stock named in the charter has been subscribed and paid. Some states have, by a legislative rule, made directors of certain corporations jointly and severally liable for all debts of the corporation, until the whole amount of the capital stock has been paid in. (Rev. Stat. of Wis., 1878, §1901.)
It is unnecessary for us to consider the other assignments of error, as-tbe view that we take of the liability of the plaintiffs in error is not that of stockholders, and hence the rule laid down in the case of Abbey v. Dry Goods Company, 44 Kas. 415, has no application in this case.
The question as to whether or not two of the defendants below were served with summons is not properly raised by the record. The summons is not in the record, and we cannot say whether these two defendants were served or not.
We advise an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was a prosecution against John Woods, under §31 of the crimes act, for carnally and unlawfully knowing one Malvina Martin, a female under the age of 18 years. The defendant was convicted, and sentenced to confinement at hard labor in the penitentiary of the state for the term of five years. He appeals to this court.
I. It is contended that the trial court erred in requiring the defendant to plead to the information filed against him, because he had had no preliminary examination. This question is not properly here for our consideration, because no plea in abatement was filed. (The State v. Barnett, 3 Kas. 244; The State v. Finley, 6 id. 366; The State v. Bailey, 32 id. 83.) It appears, however, from the record that at the time the information was filed the defendant was a fugitive from justice; therefore no preliminary examination was necessary. (Crim. Proc., § 69.)
II. It is next contended that the information did not charge any public offense. The words “with the consent” are included in the information, but they may be treated as surplusage. As Malvina Martin was under the age of 18 year's, it is immaterial whether she consented or not. The offense charged .is as complete if committed with her consent as without her consent. (The State v. White, 44 Kas. 520.)
III. It is further contended, that the trial court erred in allowing oral testimony to be offered as to the age of Malvina Martin. It appears from the record that her father, Elmore Martin, her mother, Minerva Martin, her sister, Elizabeth Martin, and her brother, Louis Martin, testified that Malvina, was under 16 years of age at the time of the alleged offense. This evidence' was competent, notwithstanding the record of the birth of Malvina in the family Bible.
“ While parol proof of a producible written instrument cannot be received, yet where the parol evidence is as near to the thing testified to as the written, then each is primary. Thus, the date of A.’s birth is registered by one of his parents; this is primary evidence. But the testimony of a relative cognizant of Afs birth is also primary evidence of its date. Marriage, as will hereafter be abundantly shown, may be proved by parol, though there be a written contract and a registry.” (Whar. Ev., §77.)
IV. It is again contended that the trial court committed error in withdrawing from the consideration of the jury the annual reports of the clerk of school district No. 11. These reports commenced with the year 1886, and closed with 1891, giving the names of the children, male and female, in the school district where Malvina Martin resided, including her name, and the age of each child. It was claimed that these reports were competent as tending to show that Malvina was over the age of 18 years when the alleged offense was committed. We do not think the court committed any error in instructing the jury not to regard the reports in considering the guilt or innocence of the defendant. The clerk of each school district of the state is required to make each year a written report of the number of children, male and female, residing in his district over the age of five and under the age of 21 years, but he is not required to include in his report the names of the children, or the actual age of any child. (¶ 5599, Gen. Stat. of 1889. See, also, ¶ 5564, Gen. Stat. of 1889.) The annual reports, not being required by the statute to show the age of the children of the district, were not admissible, and, having been improperly admitted, were properly withdrawn.
V. It is finally contended that the motion for a new trial, ought to have been granted, because of the misconduct on the part of the jury. It is shown by one of the witnesses that, after the jury retired to consider of their verdict, the question of the guilt or innocence of the defendant was discussed about 15 minutes, then a ballot was taken, and the jury voted nine for guilty and three for acquittal. After the second ballot, and while the jury were consulting concerning the age of Malvina Martin, one of the jurors, Grant Hanford, ‘feaid, “she might be 25 years old.” Another juror, Mr. Gibbons, said, “he knew she was not that old, because it was only two or three years, or a few years, since she wore short dresses.” Mr. Fletcher, another juror, then said, “If that’s the fact, we will vote for conviction.” Fletcher and Hanford were two of the jurors who voted for acquittal upon the two ballots taken before this statement was made. Another ballot was then taken, and the jury voted unanimously “guilty.” Another witness testified that, after the jury had taken two ballots, the juror Gibbons said, “that about three years ago, Malvina was a little girl in short dresses; that he saw her at a baptism.” Another witness testified that the juror Gibbons said, in the jury-room, concerning Malvina, “that three years ago she was a small girl, wearing short clothes.” Upon the part of the state, an attempt was made to show by the jurors that the statements of Gibbons did not in the least degree influence them in assenting to the verdict; but this was not successful. Crandall, a juror, testified, “I don’t know as it had any material influence — no, only indirectly.” Fletcher, another juror, testified, “that the statement might have had some little influence.” We think, under the authority of Railroad Co. v. Bayes, 42 Kas. 609, that the statement of the juror Gibbons may have improperly influenced the verdict. (See, also, Perry v. Bailey, 42 Kas. 539.) The defendant is charged with a felony. The penalty prescribed is a severer one than has ever before been provided for in any state or country for such an offense. (The State v. White, 44 Kas. 514.) The misconduct, under the circumstances, is sufficient to require the granting of a new trial.
There are some other alleged errors discussed in the briefs, but it is not necessary to refer to them at length, because they are not likely to occur upon another trial.
The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The trial court determined that chapter 98, Haws of 1891, authorizing the board of county commissioners of Shawnee county to construct and maintain a bridge across the Kansas river, on Quincy street, in the city of Topeka, was void, because obnoxious to certain provisions of article 12 of the constitution of ,the state. This was followed by the further determination that the board of county commissioners had no legal power or authority to construct a bridge* under the provisions of said chapter 98, across the Kansas river, on Quincy street; therefore, the perpetual injunction prayed for in the petition filed in this case was granted.
We think that chapter 98 is violative of both §§ 1 and 5 of article 12 of the constitution, and are therefore compelled to sustain the conclusions of the court below as to the unconstitutionality of that act. In view of the lengthy opinion filed by the learned trial judge in rendering the judgment, which we are asked to review, it is unnecessary to extend, at any length, the reasons for our conclusion. In doing so, we would only reiterate the arguments of the trial judge. We refer to his opinion, incorporated in the statement of the case.
Chapter 98 is 3 special act, with all that these words imply. Section 4 expressly confers corporate powers upon the city of Topeka, by making the city liable to property-owners for all damages sustained by them on account of the construction of the bridge, including grading, auchorage, main cables and approaches. Section 3 confers upon the board of county commissioners full control over the bridge and its approaches, and, also, over a part of Quincy street; it therefore deprives the city of Topeka of the corporate rights granted by the general statute organizing or incorporating cities of the first class. (City of Atchison v. Bartholow, 4 Kas. 124; City of Wyandotte v. Wood, 5 id. 603; Gray v. Crockett, 30 id. 138; City of Topeka v. Gillett, 32 id. 431; City of Wyandotte v. Corrigan, 35 id. 21.)
In this court, for the first time, the claim is presented that the board of county commissioners of Shawnee county may construct the proposed bridge over the Kansas river, within the city of Topeka, under the general statutes of the state. Upon the findings of fact, this question is not fairly in the record. The board of county commissioners was proceeding under the provisions of chapter 98 when enjoined. Independent of that chapter, no claim was made in the court below that the board had any authority to construct any bridge within the city of Topeka. No such question was discussed before that court, or passed upon. The evidence is not preserved in the record, and the case comes here upon the findings of fact and the conclusions of law thereon. If, however, the question now raised for the first time in this case were properly here, we do not perceive that it would benefit defendants below, plaintiff’s in error. (See Gen. Stat. of 1889, ¶ 555, subdiv. 31; City of Eudora v. Miller, 30 Kas. 494; Gould v. City of Topeka, 32 id. 485; The State v. Railway Co., 33 id 176; Comm’rs of Shawnee Co. v. City of Topeka, 39 id. 197; City of Ottawa v. Rohrbaugh, 42 id. 253.)
The judgment of the circuit court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution commenced on December 19, 1891, by the county attorney of Kingman county, before a justice of the peace of that county, upon a complaint filed by the county attorney, entitled “information,” containing three counts, two charging the defendant, M. E. Wood, with the offenses of illegally selling intoxicating liquors, and the other charging him with the offense of1 keeping and maintaining a nuisance, where intoxicating liquors were kept for sale and sold; which information was sworn to by the county attorney, and the affidavit of Fred. Barr was also filed with it. The case was tried before the justice of the peace and a jury, and the jury rendered the following verdict, to wit: “ We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant guilty of selling intoxicating liquors.” Upon this verdict, the justice of the peace sentenced the defendant to pay a fine of $100, and to be imprisoned in the county jail for the period of 30 days, and to pay the costs of suit; and the defendant appealed to the district court. In the district court the defendant was again tried before the court and a jury, and in that court the jury rendered the following verdict, to wit: “We, the jury impaneled and - sworn in the above-entitled case, do, upon our oaths, find the defendant guilty of selling intoxicating liquors.” Upon this verdict, the district court sentenced the defendant to pay a fine of $100 upon each count of the complaint — total, $300, and to be imprisoned in the county jail for the period of 90 days upon each count — total, 270 days, and to pay the costs of suit; and from this sentence the defendant now appeals to this court.
Many questions are presented to this court by the defendant’s counsel, the most important of which is the following: It is claimed that the defendant was in effect acquitted before the justice of the peace of all the offenses charged against him except one for “selling intoxicating liquors;” and therefore that he could not be again tried in any court except for that one. Now, it is clear beyond all question that he was in effect acquitted upon the charge of keeping and maintaining a nuisance; and, therefore, he should not be again tried for that offense. It has already been decided by this court as follows:
“1. A verdict of guilty on one count in a criminal complaint, saying nothing as to other counts, is equivalent to a verdict of not guilty as to such other counts.
“ 2. And where such a verdict has been rendered, and the defendant procures a new trial, he can be tried at the new trial only for the offense charged in the count upon which he was found guilty at the former trial.” (The State v. McNaught, 36 Kas. 624.
The case ju.st cited is precisely in point. It was a criminal prosecution commenced before a justice of the peace upon a complaint containing four counts, in each of which the defendant was charged with a violation of the prohibitory liquor law, and he was found guilty by the jury in the justice’s court upon only the second count, and nothing was said as to the other counts; and for that one offense he was sentenced. He then appealed to the district court. In that court he was again tried upon all the counts, and found guilty only upon the fourth count, and a new trial was granted. He was again tried upon all the counts, found guilty upon all, and sentenced upon two of them, and he then appealed to this court; and this court held that the third trial was erroneous; that the defendant had been in effect acquitted upon the first trial in the justice’s court of all the offenses charged against him except the one charged in the second count, and that he was in effect acquitted of that one on the first trial in the district court. An appeal by the defendant in a criminal prosecution is an appeal only from the verdict and sentence rendered against him, and not an appeal from anything decided in his favor; and the appeal does not open up any mat ters to be tried again except those contained in the charge or count upon which he was found guilty and sentenced.
It is not so clear in this case whether the defendant was found guilty in the justice’s court of the commission of only one offense in “selling intoxicating liquors,” or whether he was found guilty of more than one. Probably the natural construction of the verdict of the jury in that court is that he was found guilty of the commission of only one offense. The justice of the peace so construed the verdict of the jury, and sentenced the defendant to the least punishment prescribed by law for the commission of one single offense; and it was the duty of the district court, and is the duty of this court, to give to the proceedings had before the justice the same construction as was given to them by him, if such a construction is reasonably possible. (Nichols v. Weaver, 7 Kas. 373, 379.) And it was also the duty of the district court, and is the duty of this court, to harmonize such proceedings, if such a thing is reasonably possible. It has been the rule of this court from the beginning, and it is probably a rule of all appellate courts, to give to the proceedings of the lower court such a construction, if reasonably possible, as will harmonize them and uphold' them. Among the decisions rendered by this court, see the following: Nichols v. Weaver, 7 Kas. 373, 379; Simpson v. Greeley, 8 id. 586; K. C. L. & S. Rld. Co. v. Phillibert, 25 id. 583, 585, 586; Mo. Pac. Rly. Co. v. Holley, 30 id. 465; St. L. & S. F. Rly. Co. v. Ritz, 33 id. 404; Insurance Co. v. Smelker, 38 id. 285; Bevens v. Smith, 42 id. 250; U. P. Rly. Co. v. Fray, 43 id. 750, 759; Drinkwater v. Sauble, 46 id. 170, 174; Jackson v. Linnington, 47 id. 397.
Now, giving to the proceedings of the justice of the peace such a construction as the justice of the peace himself gave to them, and making them harmonize, it is clear that the jury in that court intended to find the defendant guilty of the commission of only one offense. The defendant, on the trial in the district court) also offered to prove by the introduction of certain blank verdicts submitted by the justice of the peace to the jury for them to select from in rendering their verdict, for the purpose of showing precisely what was the intention of the jury; but the district court refused to permit such evidence to be introduced. Now, as the defendant was found guilty of only one offense before the justice of the peace, and in effect acquitted of the other two, it was error for the district court to place him upon trial and permit him to be found guilty and sentenced for the commission of all the offenses charged in the original complaint. Eor this error the judgment of the court below must be reversed, and the cause remanded for a new trial.
With this view of the case, it is unnecessary that we should discuss any of the other questions presented by counsel; yet we might say that, in the case of The State v. Reno, 41 Kas. 675, which was an intoxicating-liquor case, this court decided, among other things, as follows:
“And in such a case, where the information is verified by both the county attorney and the prosecuting witness, it is not error to permit evidence to be introduced on the trial showing sales of intoxicating liquors other than those of which the prosecuting witness had knowledge.”
We might also say that the prosecution in this case, was upon a complaint filed before a justice of the peace, and it was not necessary, when the complaint was filed, nor even in the district court on appeal, unless the district court so ordered it, that the names of the witnesses for the state should be indorsed on the complaint.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Doster, C. J.:
This was an action on a policy of life insurance. The insurance was taken on the life of Mrs. Clara A. Boyer in favor of her husband Harry E. Boyer. Judgment was rendered in favor of the plaintiff, from which the defendant company has prosecuted error to this court. Before pleading to the merits the insurance company made a motion to set aside the service on it because of lack of jurisdiction in the court to compel it to respond to the summons issued against it. This motion was overruled. It then filed a plea in abatement to the jurisdiction of the court, based on the same reasons as those set out in the motion. A demurrer to this plea was interposed by the plaintiff and sustained. The matters averred in the plea and the evidence adduced in support of the motion were the same and the two will be considered together.
The allegations of fact contained in the plea were of course admitted by the demurrer. These allegations and the evidence submitted under the motion were that the defendant was a foreign life insurance company, and had been at one time authorized to do business in this state, but about two years prior to the taking out of the policy in suit its license had been revoked by the superintendent of insurance, since which time it had not maintained any agency or transacted any business of any character whatever in the state ; that application was made for the policy in Kansas City, Mo., through an agent whose office was in that city ; that the medical examination of the applicant was made in Kansas City, Mo., by a resident physician there ; that the policy was executed at the home office of the company in New York and delivered to the insured in Kansas City, Mo.; that the first premium was paid in that city; that the residence of the insured as stated by her in her application was in Kansas City, Kan. This last-mentioned fact, although proved under the motion, was not set out in the plea in abatement. All the others were. However, for the purpose of a consideration of the question of law involved, it will be treated as though set out in the plea. The summons to the defendant was served on the state superintendent of insurance, in accordance with section 104, chapter 74, General Statutes of 1897. (Gen. Stat. 1899, §3283.) The material portion of this section reads as follows :
“Every such company, on applying for admission and authority to transact business in this state, and as a condition precedent to obtaining any such authority, shall file in the insurance department its written consent, irrevocable, that actions may be commenced against such company in the proper court of any county in this state in which the cause of action shall arise, or in which the plaintiff may reside, by the service of process, on the superintendent of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation. Such consent shall be executed by the president and secretary of the company, authenticated by the seal of the corporation, and shall be accompanied by a duly certified copy of the order or resolution of the board of directors, trustees, or managers, authorizing the said president and secretary to execute the same. Actions against any such insurance company may be brought in any county where the cause of action arose, or in which the plaintiff may reside. The summons shall be directed to the superintendent of insurance, and shall require the defendant to answer by a certain day not less than forty days from its date.”
We think the motion to set aside the service should have been sustained, and that the demurrer to the plea in abatement should have been overruled. By the rules of comity between states, corporations chartered in one of them may be admitted to do business in the others, but unless so admitted they are not subject in personam to the jurisdiction of the courts outside the domicile of their creation. The rules of obligation resting on corporations, under the doctrine of interstate comity, to respond to the demands of suitors in the courts of the states where they may be doing business, and their exemption from the obligation, are quite well stated in St. Clair v. Cox, 106 U. S. 356, 1 Sup. Ct. 359, 27 L. Ed. 224:
“Whilst the theoretical and legal view, that the domicile of a corporation is only in the state where it is created, was admitted, it was perceived that when a foreign corporation sent its officers and agents into other states and opened offices, and carried on its business there, it was, in effect, as much represented by them there as in the state of its creation. As it was protected by the laws of those states, allowed to carry on its business within their borders, and to sue in their courts, it seemed only right that it should be held responsible in those courts to obligations and liabilities there incurred. . . . Without considering whether authorizing service of a copy of a writ of attachment as a summons on some of the persons named in the statute; — a member, for instance, of the foreign corporation ; that is,.a mere stockholder — is not a departure from the principle of natural justice mentioned in The Lafayette Ins. Co. v. French et al., 18 How. 407, 15 L. Ed. 451, which forbids condemnation without citation, it is sufficient to observe that we are of opinion that when service is made within the state upon an agent of a foreign corporation it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record — either in the application for the writ or accompanying its service, or in the pleadings or the finding of the court — that the corporation was engaged in business in the state. The transaction of business by the corporation in the state, general or-special, appearing from a certificate by the proper officer or a person who is its agent, there would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company; that his duties were limited to those of a subordinate employe, or to a particular transaction, or that his agency had ceased when the matter in suit arose.”
In Morawetz on Corporations, section 980, it is said :
“If a corporation is not engaged in trade and makes no contracts in a foreign state, justice seems to demand that it should not be subjected to suits in that jurisdiction ; and it has been held, therefore, that under these circumstances the agents of the company have no authority to represent it in receiving service of writs, or entering a voluntary appearance. Service of process upon the president or other managing agent of a corporation, 'while merely casually present in the jurisdiction of another state, does not constitute personal service upon the corporation itself.”
The cases in which the question has oftenest arisen have been those where service of summons was made on an officer or agent of a foreign company casually outside the jurisdiction of his own state. In such cases the courts have held almost uniformly that the service was bad. In The Camden Rolling Mill Co. v. The Swede Iron Co., 32 N. J. Law, 15, the court said:
"Upon general principles, and in the absence of statutory innovations, it is to be regarded as settled, in this state at least, that if a foreign corporation at the time of the commencement of suit, does not do business, and has not any office or place of business in this state, the contract sued on, not having been entered into in this state, such corporation, except by its own consent, cannot be brought within the jurisdiction of this or any court of this state. Under such circumstances, the officers or agents of such foreign corporation, when they come into this jurisdiction, do not bring with them their official character or functions, and are not to be esteemed, out of the sovereignty by the laws of which the corporate body exists, the representatives for the purpose of responding to suits of law of such corporate body.”
In this and other like cases the ground upon which the claim of jurisdiction was rested was that the statute of the state in which the suit was filed provided that process against foreign corporations might be served upon their officers or agents ; as, for instance, an act of Pennsylvania which provided: “Process may be served upon any officer, agent or engineer of such corporation, either personally or by copy, or by leaving a certified copy thereof at the office, depot or usual place of business of said corporation ; and such service shall be good and valid in law to all intents and purposes.” (Phillips v. Library Co., 141 Pa. St. 462, 21 Atl. 640.) However, as against such contentions, the view of the court has been that the operative sphere of the statute was limited to cases in which the foreign corporation was subject, upon general principles of jurisdiction, to suits in the courts of other states than those of its creation. Thus, in The Camden Rolling Mill Co. v. The Swede Iron Co., supra, it was said:
“We find thus a mode is prescribed of effecting service of process on foreign corporations; but the question still remains, in what cases can they be so served ? Can they be so served when, upon general principles, the courts of this state have no jurisdiction ? The statute does not say so. There is not a word in it indicative of an intention to amplify the capacity of the court with regard to that class of cases in which these creatures of foreign laws are parties— defendants. The statute does not give any new right of suit; nor does it purport to take away any of the privileges of foreign corporations. It simply appoints a method of bringing corporations invested with a foreign character into the courts of this state, when such courts have jurisdiction over them. We think that the act in question has no scope beyond this.
“It maybe further observed that the interpretation contended for in behalf of the plaintiff is one that could be judie ally adopted only by force of the plainest manifestation of legislative intent. It would seem to be an improbable construction, for it is difficult to believe that it was the design to place within the jurisdiction of our courts all the corporations of the world, merely from the fact that a director, clerk or other subordinate officer happened to come upon the territory of the state.”
The precise question, leaving out of view the point next to be noticed concerning the nature of the authority to the superintendent of insurance required by our statute from foreign life insurance companies, was determined in People v. Commercial Alliance Life Ins. Co., 40 N. Y. Supp. 269. In that case it appeared that a judgment had been rendered in the state of Maine against the insurance company. The judgment was sued upon in New York. The statute of Maine provided for service on the agents of foreign life insurance companies, with a proviso that if no such agent could be found service might be made on the insurance commissioner. The company had ceased to do business before the institution of suit against it. In the case cited the supreme court of New York ruled and remarked as follows :
“The judgment must stand, if at all, on the service made on the state insurance commissioner, which was on the 3d day of July ; and the referee found, in substance, that that service was ineffectual to bind the company in New York, because on that date the company was not doing business in the state of Maine, and that the Maine court had no jurisdiction of the company to render a judgment enforceable outside of the state of Maine. When a foreign corporation undertakes to transact business in a state other than that in which it is incorporated, it undoubtedly sub mits itself to the authority of the courts of that other . state and will be bound by the statutory provisions respecting such courts obtaining jurisdiction over it. Gibbs v. Queen Insurance Co., 63 N. Y. 114. While this Commercial Alliance Company was transacting business in the state of Maine it was subject to the provisions of the statute of Maine respecting the service of process in an action against it on the state commissioner of insurance, in the absence of any authorized agent of the company upon whom service might be made. But that subjection does not last forever. As the Commercial Alliance Insurance Company had ceased to do business on the 1st day of July, 1894, had withdrawn from the state, and had no authorized agent upon whom service might be made after that date, the substituted service on the state commissioner would not bind it as equivalent of personal service. The effect of the statute of Maine was to constitute the insurance superintendent the agent of the company to receive process under certain circumstances, viz., while such company was doing business in the state. While so doing business, the superintendent was empowered to receive process if there were no agent of the company upon whom it might be served. But after the 30th of June, 1894, it was not a foreign corporation doing business within the state of Maine, and the Maine courts had no jurisdiction over it to render a judgment in personam against it on substituted service. Whether the judgment may stand as one enforceable against property of the company in Maine it is not necessary to consider.”
The claim of the defendant in error in this case in favor of the validity of the service of summons on the superintendent of insurance, and the consequent jurisdiction of the court, is rested upon that portion of our statute hereinbefore quoted which requires foreign life insurance companies, as a condition precedent to the transaction of business in the state, to “file in the in surance department its written consent, irrevocable, that actions may be commenced against such company ... by the service of process upon the superintendent of insurance of this state,” etc. It must be admitted that this statute introduces an element of difficulty in the question. Were it not for the statute, no reasonable doubt could exist, we think, as to lack of jurisdiction of the courts of this state over the plaintiff in error. The instrument filed with the superintendent of insurance was in the nature of a power of attorney. What meaning must be given to the term ‘ ‘ irrevocable ’ ’ used in this power of attorney? Does it mean, as the word implies, “never to be revoked ; never to be abrogated, annulled or withdrawn” ? We cannot think it bears such signification.
It is a cardinal rule in the interpretation of statutes that the words used in them are not necessarily to be taken in their literal and absolute sense, but in that sense which will subserve the purpose the lawmakers had in using them. The spirit and policy of a statute must be examined rather than the literal definition of the words employed. If the word “irrevocable” was used in its literal and unqualified sense the power conferred will last, therefore, as long as the life of the insurance company, though that be a thousand years, and that, too, though the company rigidly keeps out of the jurisdiction of this state throughout the whole of such period of time. Though all the business it transacted in this state during the time it acted here under the license of the insurance department be entirely closed out; though every policy issued by it while here be fully paid, yet, if a thousand years hence a policy-holder residing in another state should wish to sue in the courts of this state, the company, under the theory contended for by the defendant in • error, must submit to the jurisdiction of our courts. It cannot be that the legislature of this state, in the enactment of the statute quoted, designedly made provision for cases so far in the time to come and in which both the present and future citizens of this state could have no possible interest. The purpose of the statute was to provide our own citizens with a local forum for the trial of controversies with foreign life insurance companies during the time such companies were enjoying the privilege of being allowed to transact business within our j urisdiction under the favor and protection of our laws, with the like privilege to citizens of other states to resort to the same forum during the same period of time, and, perhaps, though it is not necessary for the purposes of this case so to decide, to provide for our citizens a local forum in which, after the withdrawal or expulsion of foreign life insurance companies, to sue on contracts made by them during the period they transacted business here.
As before remarked, the instrument of consen filed with the superintendent of insurance is in the nature of a power of attorney. There is, we think, no difference in respect to revocability between a power of attorney executed between private individuals as a matter of contract and one authorized or required by statute between a private individual and a public officer. All powers of attorney are revocable by the donor of the power except when coupled with an interest in the donee. Though they be by their terms irrevocable, they nevertheless may be revoked by the donor, except in cases where the donee has an interest in their continuance. It may be conceded that the superintendent of insurance has an interest, as a public representative, in the continued exercise of the power conferred upon him to accept service for foreign life insurance companies, but that interest must surely terminate with the termination of the subject-matter in respect to which the authority was conferred. When within the intent of the parties to the instrument there no longer remains anything for the authority to act upon, the power to act must of necessity end. “Where the agency was created for the purpose of performing some specific act or acts, it will be terminated by the accomplishment of the purpose which called it into being. Having fulfilled its mission it is henceforth functus officio.” (Mech. Agency, § 201.) With the withdrawal of the insurance company from this state the subject-matter in respect to which the power was conferred, to wit, the business here transacted by the company, terminated, and, with the probable exception above mentioned, the company ceased to be amenable to our jurisdiction.
In the case under consideration, the motion to set aside the service and also the plea in abatement set forth in positive terms that the insurance company had ceased to do business in this state long before the policy in suit was issued ; that long before that time it had ceased to maintain here any agencies for the transaction of business, and that the contract of insurance sued upon was executed wholly outside this state. Now, as to what should be regarded as doing business or maintaining agencies in this state, or as to when a contract should be regarded as having been made without this state or within it, we do not assume to determine or intimate. It may be that some of the several instruments of which, as the record-showed, the contract in suit was composed, were executed in this state, and therefore that such contract should be in law regarded as made within this state It may be that the insurance company was in fact doing business in this state notwithstanding its claim of abandonment. It may be that the mere collection of premiums in this state from citizens here is such a doing of business as to subject the company to the jurisdiction of our courts. Issues of fact as to all these possible cases were tendered by the insurance company. In our judgment, they should have been tried, instead of ruling their legal sufficiency against the company.
Near the close of the trial that was had upon the merits, after the demurrer to the plea in abatement had been sustained, the agent who solicited Mrs. Boyer’s application for insurance gave some testimony from which it might be inferred that the solicitation of the application was made by him in Kansas and not in Missouri. However, this testimony was by no means direct, nor was it offered for the purpose of establishing such solicitation here as a fact in the case. It seemed to have been casually elicited as prefatory or incidental to other matters. It was not sufficient to justify a claim that so much of the insurance transaction was performed in this state. Besides, it was not given upon the issue tendered either by the motion or the plea in abatement, and therefore, however explicit and positive it might have been, it could not be considered by us.
Our judgment is that the case should be reversed for a trial upon the plea in abatement; and, of course, if the issue as to jurisdiction should be found against the company, then for a new trial upon the merits of the case. It is, therefore, reversed for proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Pollock, J.:
The evidence is not contained in the record. The general verdict of the jury found all the facts essential to a recovery in favor of the plaintiff and entitled the plaintiff to judgment, unless the special findings made are inconsistent with the - general verdict and plaintiff’s right of recovery. The sole question presented in this case is, Did the trial court err in granting defendants judgment on the special findings? All of the parties insist that these special findings are consistent with one another, counsel for plaintiff in error contending that they are not only consistent with one another but are consistent with the general finding; and counsel for defendants in error, that they are consistent with one another but inconsistent with the general verdict and destructive of plaintiff’s right of recovery, and entitle them to the judgment rendered.
Where a general verdict is returned for the plaintiff, in construing special findings of fact returned by the jury and supported by the evidence, the following rules are deducible from the decisions of this court: (1) It is the duty of the trial court to harmonize the same with one another and the general verdict, if possible; (2) if found to be inconsistent with one another, or consistent with one another and inconsistent with the general finding, but not destructive of plaintiff’s right of recovery, the court should order a new trial; (3) if consistent with one another and both inconsistent with the general finding and destructive of plaintiff’s right of recovery, judgment should be entered thereon for defendant. (St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404, 6 Pac. 533; U. P. Rly. Co. v. Fray, 43 id. 750, 33 Pac. 739; Kansas City v. Slangstrom, 53 id. 431, 36 Pac. 706.)
In this case we do not agree with the construction placed on these findings by counsel for the parties or by the trial court. Every presumption is in favor of the general verdict. The special findings must overthrow it or it must stand. In the absence of the evidence from the record, we must assume all of these findings to have support in the evidence and all must be construed together. The particular and, to our minds, irreconcilable conflict arises on findings Nos. 15 and 16. An adroit argument is made in the attempt to harmonize them, but the distinction made is too highly refined for practical purposes. How a reasonably bright, intelligent and experienced boy of fourteen years could have the mental capacity to comprehend and avoid the danger of meddling with this door, apparently in a reasonably secure position, although in fact dangerous, and yet be incapable of seeing and appreciating the danger of meddling with it, is beyond our comprehension.
We are of the opinion that the special findings are inconsistent, and incapable of being harmonized with either the general finding or with one another, and that the same are not conclusive of the plaintiff's right of recovery. If the improvements being made upon the property were by the direction and for the benefit of T. A. Pierce, the fact that his deed to the property was in legal effect but a mortgage, or that he occupied the property only as a mortgagee in possession, would seem immaterial.
Upon the special findings as returned by the jury, the judgment must be reversed, with the direction that a new trial be awarded. It is so ordered. | [
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Error from court of appeals, northern department.
Dismissed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action by the Kansas National Bank against C. M. Bay on a promissory note. Judgment went for the defendant. The plaintiff has prosecuted error to this court. The note sued on read as follows :
“$5577.50. Wichita, Kansas, October 8, 1898.
“One hundred and twenty days after date, I promise to pay to the order of W. W. Graves & Co. five thousand five hundred and seventy-seven and dollars, for value received, negotiable and payable, without defalcation or discount, at the Kansas National Bank of Wichita, Kansas, with interest at the rate of 10% per annum from. November 8, 1898, interest payable annually. No. —. Due Feb. 8, 1898.
H. R. Sloan.
By C. M. Bay, Attorney in faet.”
The petition averred that the defendant, Bay, under ¡the name and style of H. R. Sloan, executed and delivered the note, and that the amount of it was due ifrom the defendant Bay, doing business as H. R. ISloan; wherefore judgment was demanded against said Bay.
The facts were that Bay was doing his own business under the name of Sloan, and that, as a cover for his transactions, he had procured a power of attorney from Sloan. However, that instrument did not confer on him the power to execute promissory notes. He bought cattle from W. W. Graves & Co.', and, to evidence the purchase-price, executed to them two promissory notes, in form similar to the one in suit. To secure these notes, he executed in Sloan’s name a first and a second chattel mortgage on the cattle. These notes and mortgages were negotiated to the Kansas National Bank. At the time they were taken by the bank, Bay explained to its president that he was doing business in the name of Sloan under a power of attorney. The bank accepted the notes and mortgages but required Bay to furnish it with a copy of the power of attorney. The cattle seemingly were taken under the first mortgage to pay one of the notes. This left the other one in the hands of the bank. It was held there as collateral security to an indebtedness due the bank from Graves & Co. The bank desired its renewal and sent Graves, as its agent, to procure the renewal. As a renewal, Graves secured the note in suit and indorsed it to the bank. He tried to induce Bay to assume personal responsibility on the note by signing his own name to it. Bay refused to do this.
There is no question but that the transaction for which the notes were given was Bay’s individual busi ness, but he fully explained to the bank president and to Graves & Oo. that he was not doing business in his own name ; that he could not do so because of indebtedness held against him. There is no claim of deception or fraud practiced by Bay. His admission that he was conducting his own business in the name of another and his reasons for doing so were frank and open. While he seemed to be of the opinion that Sloan’s power of attorney to him authorized the execution of promissory notes, yet it was not claimed that he- fraudulently misstated his authority under that instrument, and, even if he had done so, the bank came into the possession of a copy of the power of attorney before the note in suit was executed, and therefore knew what it contained or did not contain. The question, therefore, is whether Bay is liable on the note executed by him in the name of Sloan.
The plaintiff in error contends that Bay is liable, because, as it says, the name of Sloan was a trade name adopted by Bay for the transaction of his own business, and, inasmuch as the giving of the note was his own business, he is liable on it as though executed in his owA name. There are authorities to the effect that one who, for his own purposes, adopts the name of another, will be held liable in a transaction of his own conducted thereunder. We have no occasion to question the soundness of these authorities. We think, however, that they are limited to cases where it appeared that, under the name of another as a trade name, the party contracted to bind himself and not the other; and, in some of them, the party using the name of another was held liable, not on the contract, but upon the transaction out of which the contract grew. .It may be that Bay is liable in an action charging him upon the original transaction, but he is not liable upon the promissory note. He is not liable because he never made that note his contract. He never agreed to be bound upon it, but, on the contrary, refused to sign it as his contract or bind himself by it as an instrument of writing.
No cases precisely in point have been cited to us, nor in considerable research among the authorities have we been able to find one entirely similar in its facts. We think, however, that the case is covered by the general principles of the law, and that these are' well stated and elucidated in Bartlett v. Tucker, 104 Mass. 336, 6 Am. Rep. 240, the opening paragraph of the opinion in which case reads :
“It is well settled that any person taking a negotiable promissory note contracts with those only whose names are signed to it as parties, and cannot therefore maintain an action upon the note against any •other person. That rule, of course, does not preclude charging a party who, instead of the name by which he is usually known, signs, with intent to bind himself thereby, his initials, or a mark, or any name under which he is proved to have held himself out to the world and carried on business.”
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was an action on a note signed by both defendants and to foreclose a mortgage securing the same. The petition was an ordi nary one in foreclosure. The note, by its terms, was more than five years past due. The petition set up several payments on the note which were relied on to take it out of the statute of limitations. The separate answer of Lizzie H. King set up that she received none of the consideration for which the note and mortgage were given; that the mortgage was on her separate property; that the payments pleaded were not made by her, or with her knowledge or consent, and that, if made at all, they were made by her co-defendant, James L. King. The reply of the plaintiffs contained the allegation that the mortgage was given to take up and pay off other prior mortgages given by defendants, which had been placed on the property for the purpose of procuring money for the erection of buildings upon said premises, giving the names of the mortgagees.
The issue sought to be raised by these pleadings was whether Lizzie H. King, the wife, was principal or surety on the note, the theory being that, if a surety, a payment made by the principal would not toll the statute as to her. The court below evidently tried the case on that theory.
Upon the trial of the case, which was had before the court without the intervention of a jury, plaintiffs introduced as a witness the man who, as agent for the mortgagee, had made the loan, and he was permitted to testify that there was a mortgage of $2000 on the premises at the time the loan was made to the defendants. He was asked, “Who was the mortgagee in that mortgage?” This question was objected to by the defendants as being incompetent, irrelevant, and immaterial, which objection was sustained by the court, to which ruling plaintiffs excepted. Plaintiffs then asked the same witness: “Did you pay off that mort gage out of this loan?” To this question a like objection was made and sustained, with exceptions by plaintiffs. The action of the court in this particular is the first error alleged by the plaintiffs in error.
This action of the court was prejudicial error, for which the case must be reversed. The issues made on the pleadings are quite clear. The defendant Lizzie H. King was defending on the ground that she was a surety. If, however, the facts set up in plaintiffs’ reply were true, and the money obtained on the mortgage was used, in whole or in part, to pay a subsisting lien created for the benefit of Lizzie H. King, there was sufficient consideration to sustain this note and mortgage, and make her a principal therein, and we see no reason why the evidence tendered was not perfectly competent and material to that issue. If the evidence offered had been admitted and had shown that Mrs. King’s real estate had been relieved from subsisting liens created by her for her benefit-, then she was not a mere surety for her husband, but was jointly liable on the note and mortgage with him — at least to the extent to which her property was encumbered. The rule laid down in the encyclopedia (24 A. & E. Encycl. of L., 1st ed., 720) meets with our entire approval. It is this: “Where a wife executes a mortgage, not to secure her husband’s debt but to benefit her separate estate, she will not be regarded as a surety.” See, also, Vogel v. Leichner, 102 Ind. 55, 1 N. E. 554.
This is a material question, and meets us at the outset. The decision of the court is that prejudicial error was committed by the court below in excluding the evidence offered, and we are compelled to reverse the case and remand it for a new trial. In doing so, we do not look into the other alleged errors in the case ; nor do we decide that, if it is finally determined that Mrs. King is only a surety, she or her property will or will not thereby be relieved from the payment of the note and mortgage. The case will be reversed, and remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
This suit involves the application of the doctrine of res judicata. The answer and cross-petition of Kingman & Company in the case of the Chicago Stove Works against it and the First National Bank and others set up the Sharp mortgage and the assign ment, together with the note, and alleged its ownership of the same. There was no allegation, however, •that the note was due and payable. In the prayer for relief, Kingman & Company prayed for a decree of foreclosure of said mortgage, conditional on the event that certain other proceedings theretofore had, not necessary to state, were declared to be void, which contingency did not occur. There was a prayer, also, for general relief.
It is asserted by counsel for plaintiff in error that Kingman & Company are now estopped and precluded, by the record in the Chicago Stove Works suit, from bringing the second action to foreclose the Sharp mortgage. The.contention is that Kingman & Company, in its answer and cross-petition to the suit of the Chicago Stove Works, might have obtained all the relief it is now asking — that is, a foreclosure of its mortgage— and that, having stopped short of this, and being content to rest its rights on the decree adjudging its mortgage lien to be paramount to that of the First National Bank, it cannot now maintain this suit to foreclose.
We do not differ with counsel on the proposition of law stated by them — that matters which might have been passed on and litigated in the former suit are considered, when applying the doctrine of res judicata, as having been adjudged. We think, however, that the rule is not applicable to the facts in this controversy. We must presume that the trial court granted to Kingman & Company, under its answer and cross-petition in the former case, the full measure of relief to which it was entitled under the pleadings. To give force to this presumption, we base it on the ground that the Sharp note was not due at the time the cross-petition was filed. While a copy of the note set up as an exhibit shows its maturity, yet the evidence, which is not before us, may have shown a different state of facts. Again, the special prayer for relief, which called for the action and judgment of the court on the note and mortgage, prayed for a foreclosure upon the happening of an event which did not take place. The condition failing, the demand for relief based on that condition failed also. . As before stated, in the former action we think the court did all that it was called on to do by the holder of the Sharp mortgage ; that is, fix its priority with reference to other liens. The judgment of the bank, based on the Ober mortgage, was held to be inferior and junior to the Kingman &, Company (Sharp) mortgage. The priority of such liens was, by the decree in that case, conclusively fixed and established. Beyond this the judgment of the court did not go, and we must presume that it was authorized to proceed no further under the proof. We cannot assume that it denied relief legally due to a party. Cases are numerous where suits have been filed in equity to give effect to a prior decree. (Adams, Eq., 6th ed., 415; Story, Eq. Pl., 5th ed., §429; Wright v. Bowden, 1 Jones Eq. [N. C.] 15, 59 Am. Dec. 600; Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123.)
The judgment of the court below will be affirmed. | [
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Error from court of appeals, northern department.
Dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This was a suit brought by the state of Kansas, on the relation of the county attorney of Clay county, against the board of trustees of the asylums for the insane, to enjoin the latter from accepting, on behalf of the state of Kansas, deeds conveying to the state certain lands near the city of Parsons, for the purpose of erecting an asylum for the insane thereon, and from certifying to the state auditor any vouchers on which warrants might be issued on the state treasurer to pay the owners of said real estate the price of the same ; and, further, to restrain said trustees from making any contract in the name or on behalf of the state of Kansas for the construction of buildings to be used as an insane asylum at or near the city of Parsons. Judgment was entered on the pleadings in the district court in favor of the state, and a perpetual injunction decreed in accordance with the prayer of the petition.
The facts, briefly stated, are as follows : Chapter 13 of the Laws of 1899, approved March 3 of the same year, is entitled:
“An act making an appropriation for the erection and equipment of an insane asylum at some place in the state of Kansas, providing a manner of locating the same, and for the purpose of securing a site, and providing for the management and maintenance of the same.”
In the first section of the act the sum of $100,000 is appropriated for the purpose of securing a site and for building and equipping an insane asylum of the state. In section 2 it is provided that the asylum shall be located at some convenient, suitable and healthful point within three miles. of the corporate limits of some city in the state of Kansas, the same to be selected by a legislative committee consisting of four members from the senate and five from the house. It is made the duty of this committee to visit various places in the state presenting desirable localities for the institution ; to consider carefully the geographical location with reference to population; to ascertain whether there is an abundant water-supply, whether there are proper railway facilities, whether a suitable site adapted to the needs of such an institution can be procured; and, after considering all the advantages and disadvantages, including cost of maintaining the institution, finally to proceed to determine such location by ballot. The act requires that the ground selected shall contain not less than 640 acres, that the action of said committee shall be final and conclusive, and that the asylum shall be declared to be located by the action of such committee, and the institution built pursuant to said act. It contains other provisions governing the construction of said institution.
The law further commits the matter of plans and specifications for the proposed asylum to the board of trustees of said charitable institutions, and requires that they shall agree upon a plan of erection, employ superintendents, have the exclusive superintendence and control over the erection of the buildings, and that, upon their completion, said board shall appoint a superintendent and such other help as is necessary, and at once open the institution for the receiving of insane patients. It authorizes the board of charities to certify accounts covering the cost of the buildings to the auditor of state, who is required to draw his warrant on the treasurer for the payment thereof.
Pursuant to this act a legislative committee was appointed, and on the 8th day of June, 1899, reported to the governor that it had selected a site for said asylum at a convenient, suitable and healthful point immediately joining the corporate limits of the city of Parsons, upon certain lands (describing them) containing 640 acres, more or less, for which said committee had agreed to pay the aggregate sum of $28,000. The board of trustees, plaintiffs in error, recognized the existence and assumed authority of said legislative committee, and received from the par ties with, whom the committee had contracted for the land upon which to erect said asylum deeds to the same, and were, at the the time this suit was begun, about to certify to the state auditor vouchers in favor of the owners of the property, to the end that they might be paid the agreed consideration therefor.
The important question to be decided is whether this legislative committee was vested with power, under the act above mentioned, to bargain for and fix a price for the site of the proposed asylum which would be obligatory on the said state board of trustees or other state officer. It will be noticed that the appro-, priation of $100,000 is made for the purpose, among others, of securing a site. The legislative committee is authorized to select the site, and further to determine “whether a suitable site, adapted to the needs of such an institution, can be procured,” and to determine such location by ballot. Subdivision 4 of section 2 reads:
“Such action of said committee shall be deemed final and conclusive, and said asylum shall be declared to be located by the action of a majority of such committee, and said asylum shall be built pursuant to the provisions of this act and of law governing the construction of said institutions.”
While the first section, following the language of the title, appropriates money for the purpose of securing a site, there is no manner expressly designated in the law for the obtaining of it. The word “purchase” is nowhere employed. As before stated, the purpose of the committee’s appointment was to select a site, and its duties are expressly pointed out in subdivision 2 of section 2, which requires it to determine whether a suitable site, adapted to the needs of such institution, could be procured.
It is contended by counsel for tbe state that the power of this committee was restricted to the selection of some city in the state of Kansas, within three miles of the corporate limits of which the asylum was to be located. We differ with them in their construction of the law. It reads : “Said asylum shall be located at some convenient, suitable and healthful point within three miles of the corporate limit of some city in the state of Kansas, the same to be selected in the following manner.” The word same used in the last clause of the sentence clearly refers to the ‘ ‘ healthful point within three miles of the corporate limit of some city,” and not to the city itself..
Concerning all the sections of chapter 13 together, we are quite certain that the power and authority of this body was limited to the selection of a site for the institution, and that, having performed such duties, its decision is to be deemed final and conclusive, so far as a choice of sites is concerned; but we can find nothing in the act which justifies the conclusion that such committee was empowered to bargain for or purchase the 640 acres of land thought by the legislature to be necessary upon which to build the institution. This conclusion is fortified by the fact that, five years after the passage of the law creating a board of trustees for the direction and control of the asylum for the blind, the asylum for the deaf and dumb, and the asylum for the insane, authority, theretofore withheld, was conferred upon the several boards of regents, directors, trustees and managers of said institution to exercise the right of eminent domain. This will be found in chapter 46 of the Laws of 1881 (Gen. Stat. 1899, § 6336 ; Gen. Stat. 1897, ch. 68, § 18), which reads :
“That for the purpose of acquiring lands on which to erect buildings or for laying and maintaining water- mains, sewers, roads, or for any other purpose necessary to properly maintain and carry on any state institution or business thereof, the several boards of regents, directors, trustees or managers of said state institutions may proceed in the same manner as provided by law in the case of railroads for rights of way and other purposes, said proceedings to be in the name of the state of Kansas, by the chairman of the board, or some one designated by the board or the chairman thereof.”
The act is entitled "An act to provide for condemning lands for state purposes.”
Power is expressly granted under this statute to the plaintiffs in error, as trustees, to acquire lands on which to erect buildings for such institution as is mentioned in the act of 1899. We can see no force in the argument that the act of 1881, above set out, restricts the power of the trustees for the asylums for the insane to the acquiring of lands to erect additional buildings for the use of a state institution already established. The first clause of the act is explicit, to the effect that lands may be condemned by such trustees for the erection of buildings; and the further grant of power to the trustees, authorizing them to condemn land'for any purpose necessary to maintain properly and carry on,any state institution, is divided from that part of the sentence immediately preceding it by the conjunction or, making it clear that there is no lack of authority in the trustees to proceed to institute such proceedings to secure title to lands desired for the erection of buildings for a new institution.
Further than this, by section 15 of chapter 160 of the Laws of 1891 (Gen. Stat. 1899, § 6421; Gen. Stat. 1897, ch. 5, § 15), the state board of public works (if such a board exists) is also empowered to appropriate and condemn such land as may be necessary for securing grounds for the construction of any state building.
We think that the legislature, when it passed the act of 1899, did so with the intention that the said power conferred on plaintiffs in error as a board of trustees, or on the board of public works, should be brought into exercise for the purpose of obtaining title to the site chosen, and that chapter 13 of the Laws of 1899 is to be coupled with chapter 46 of the Laws of 1881 (Gen. Stat. 1897, ch. 68, §18; Gen. Stat. 1899, § 6336), and with section 6421 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 5, §15) ; and that the latter two should be considered with the former to give effect to the legislative intent.
After a careful consideration of the several sections of the act of 1899, we cannot conclude that this legislative committee was authorized to do more than to select and determine the land suitable for a site upon which the institution should be built, for ample provisions of law were at the time in force directing how such property might be secured for the state by the exercise of the right of eminent domain. There being a mode pointed out by law for the acquisition of the property desired, such method must be strictly pursued. There is nothing in the act of 1899 indicating that the committee was required to consider the price or value of the lands selected, a material matter when a purchase is contemplated. It was authorized to consider the cost of maintaining the institution, but not the cost of the site. Suppose that, after finding a location that fulfilled all the requirements, the owners refused to sell the land at any price, can it be said that the legislative direction that an asylum be built on the site chosen could be thus defeated, with statutes authorizing condemation in force? The contingency mentioned leads strongly to the conclusion that it was-intended by the lawmakers that the site be procured by resort to the sovereign power of eminent domain. The rule is that, in the case of those acting on behalf jof the public, there is no power to agree as to the compensation to be given to the landowner where his property is sought to be taken for public use, unless it is given by statute, either expressly or by implication. (Lewis, Em. Dom. §288.) Our view of the meaning of that part of the act of 1899 relating to the powers of the legislative committee and their limitations makes it unnecessary to apply a doubtful or strained construction to the law, and results in a harmonious adjustment of legislative grants of authority, free from complications, by which the purpose of the legislature may be carried out.
Counsel for plaintiffs in error insist that the selection by the committee of the land mentioned as a site for the asylum was in itself an exercise by the state of its inherent power to appropriate private property for a public purpose, and in such cases payment in advance is not indispensable. The facts before us da not present a case where the state is attempting to take land in invitum. The right of this legislative committee to buy from the landowners, and to obtain title for the state in such manner, is the question at issue. It must be remembered that the state itself in this action complains of a usurpation of power assumed by the committee to purchase land — not of any attempted authority to take land against the will of the owner, for it has done nothing in that direction. In City of Enterprise v. Smith, immediately preceding (62 Pac. 324), it was held that an act of the legislature authorizing cities to purchase water-works conferred no power on the municipality to acquire the same by condemnation, and the well-settled rule of strict construction .of such statutes was followed. Having determined that this legislative committee did not possess the power to purchase, its agreement to buy the lands which it had selected cannot be made effectual by defining such acts as an exercise of the right of eminent domain. Its assumed authority is not validated by giving another name to the method by which it sought to obtain title for the state.
It was within the power of the lawmakers themselves to designate a place where the institution should be built, but they chose to delegate this authority to a committee of their members, making the selection by the latter conclusive. Having chosen a site, the power of the committee was exhausted, and the duty then devolved upon the plaintiffs in error, or upon the state board of public works, under the statutes above cited, to institute condemnation proceedings, as in other cases, to determine the value of the property taken, to the end that title to the same be vested in the state.
The power of a county attorney to institute this action in the court below is denied by plaintiffs in error. The statute defining the duties of that officer is quite comprehensive. (Gen. Stat. 1899, §1714; Gen. Stat. 1897, ch. 89, § 2.) It is his duty to prosecute or defend, on behalf of the state, all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or his county is a party or interested. In this case jurisdiction was obtained over the persons constituting the board of trustees of the asylums for the insane in Olay county, and the cause then being triable in that forum, the county attorney was authorized to prosecute it.
Plaintiffs in error have attached to their petition in error in this court a transcript of the record, certified by the clerk to be such. A motion has been made to dismiss the proceedings here, for the reason that such transcript is not a transcript of the complete record which the court is authorized to have made, as provided by section 4679 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 95, §413). It is not necessary, for the purpose of review in this case, that the record be prepared in the trial court by its order, or signed by the presiding judge.
The judgment of the court below will be affirmed. | [
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Appeal from Sedgwick district court.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
Susan Grimes died testate February 6, 1890. The will was at once probated, and B. F. Hudson, who had been designated in the will as executor, was granted letters testamentary. He gave bond in the sum of $120,000 and entered upon the discharge of his duties. On May 3,1900, some of the heirs instituted an action to contest the will, and it was adjudged invalid by the district court July 2, 1891. Proceedings in error were begun in this court by the executor on July 13, 1891, when an order was made staying the execution of the judgment of the district court and all proceedings in the case in that court, and later the order was modified so that the executor might proceed to preserve and protect the property of the estate, but forbidding any further distribution of the same until the decision of the merits in the supreme court. On December 7, 1895, the supreme court affirmed the judgment of the district court. (Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701.) On January 18, 1896, the probate court made an order appointing Norman Barratt administrator of the estate, and from this order an appeal was taken to the district court, where it remained pending until April 16, 1897, when the order of appointment was confirmed. He at once qualified and entered upon the discharge of his duties as administrator de bonis non of the estate.
The will which was probated and subsequently set aside provided for the disposition of the property by private or public sale, and directed how the proceeds should be distributed. While the executor was in control he collected from the personal estate more than $18,000, and also a considerable sum from the rentals of real estate. On February 11,1891, he filed his first annual report in the probate court, and continued to administer the estate as executor under the direction of the probate cqurt until the will was set aside. Under the order of the supreme court staying the judgment and proceedings in the district court he continued to act as executor of the estate, with no authority except to preserve and protect the property of the estate until the final decision of the cause in the supreme court. In September, 1891, after the judgment had been rendered setting aside the will, the executor divided the moneys in his hands belonging to the estate among the five non-contesting heirs, but gave nothing to those who were attacking the will.
After the appointment of the administrator, Hudson presented to the probate court what was termed a final settlement of his executorship, and asked to have the same considered and approved by the probate court. He tendered in court and to Ms successor any balance of moneys that might be found due or any property in his possession belonging to the estate, and asked that compensation, expenses and attorney’s fees might be allowed. - The non-contesting heirs protested against the acceptance of the report, and the probate court refused to accept the report of Hudson as acting executor of the estate, and decided that it would only recognize and deal with the newly appointed administrator. Barratt as administrator made a demand on Hudson to turn over the property and funds which had come into his hands as executor, and, no accounting having been had, Hudson refused the demand. An action was then brought in the name of the state against Hudson and his sureties on the bond given by Hudson as executor, and judgment was claimed for the sum of $21,089. . After the action was instituted, the court, upon the application of the administrator, allowed an amendment of the petition and the substitution of the administrator as plaintiff. At the trial elaborate findings of fact were made by the court, and the court gave judgment against the defendants for $6758.05, and also directed the delivery to the administrator of a certain promissory note for $1000, which had been in the possession of the executor.
The defendants complain of the judgment, and the first error assigned is the ruling of the court permitting the amendment of the petition and the substitution of a new plaintiff. The amendment did not change substantially the cause of action stated in the original petition. Both petitions counted upon the executor’s bond, and asked for a recovery of the property and moneys of the estate which the executor had failed to account for or turn over to the administrator upon his de mand. The amended petition was more elaborate, and set up some additional items and claims upon which there was an alleged liability. No limitation had run in the meantime upon the new matters or added claims of liability, and the defendants were given abundant time for answer and preparation. No error can be predicated on the substitution of the administrator for the state of Kansas as plaintiff. While the bond ran to the state, it was for the benefit of all parties interested in the estate, and, as the administrator was the real party in interest, it was not improper to substitute him as plaintiff. (City of Atchison v. Twine, 9 Kan. 350; Hanlin v. Baxter, 20 id. 134; Comm’rs of Harvey Co. v. Munger, 24 id. 205; Paola Town Co. v. Krutz, 22 id. 725; Gen. Stat. 1897, ch. 95, § 139; Gen. Stat. 1899, § 4389.)
A more serious objection is the bringing of an action against the executor before the probate court, wherein the settlement of the estate was pending, had an accounting with the executor or had determined that there was a liability on ' ° the bond. The probate court has primary and complete jurisdiction over the estates of deceased persons. Jurisdiction had been acquired by the probate court of Atchison county over the Grimes estate, the settlement of which is still open and undetermined. That court had probated the will, and from it Hudson had received his credentials as executor. To it he had accounted, and his first annual report had been received and filed. Under the supervision " of that court the estate had been partially administered by Hudson, and his continuance in office and the rightfulness of his possession of the estate while the will case was pending were recognized by this court by the orders of stay. No final accounting had been had with Hudson in the probate court, and he had not refused to make such accounting. Why should the probate court surrender or be divested of its jurisdiction over the unsettled estate and of the accounting of the personal representatives which had been appointed? What reasons exist for the interference of the district court or for the arrest of proceedings already commenced in a court of competent jurisdiction? The probate court, as we have seen, has, at least, primary and complete jurisdiction of the unsettled estate, and, even if the district court may be regarded as having concurrent jurisdiction in such matters, the universal rule is that where two courts have equal jurisdiction over a subject-matter of dispute and the parties to it, the one which first obtains jurisdiction is entitled to continue in its exercise to the end. In Stratton v. McCandless, 27 Kan. 296, it was said:
“In cases of this kind, where the administrator is still acting and the estate is not settled, and the probate court has complete and ample jurisdiction over the administrator and over the estate, actions in other jurisdictions against the administrator and his sureties on the administrator’s bond should not be encouraged.”
The present action, like the one in the case cited, ‘ ‘ attempts to take a matter which properly and legitimately belongs to the jurisdiction of the probate court, and a matter which ought to be settled and determined in that court, and to place it within a jurisdiction which has no general control over the affairs of the estate.” It is true that the jurisdiction of the probate court in respect to estates is not absolutely exclusive, but the cases which may be wrested from the jurisdiction of the probate court and tried in the district court are special and limited.
“The jurisdiction of the district court in such matters is an equitable one, and in its exercise the court will be governed by the rules of equity one of which is that as a general rule it will only take jurisdiction where the plaintiff has no other adequate remedy by ordinary legal proceedings in the tribunal especially provided by statute.” (Carter v. Christie, 57 Kan. 492, 46 Pac. 949. See, also, Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86.)
Is there no adequate remedy in the probate court ? So far as an accounting and settlement with an executor or administrator is concerned, there appears to be no inadequacy of remedy, or necessity for appealing to an exceptional jurisdiction. The statute provides for an accounting in the probate court annually, and at other times, and as often as that court may require, until the final settlement is made. (Gen. Stat. 1897, ch. 107, § 149; Gen. Stat. 1899, § 2837.) The obligation of the bond which the executor gave required an accounting in that tribunal, and the statute makes specific provisions as to how an executor or administrator may be compelled to render his account; and it also provides for a final discharge of the executor after the accounting and settlement which shall exonerate him and his sureties from liability. (Gen. Stat. 1897, ch. 107, §§ 151-153 ; Gen. Stat. 1899, §§ 2839-2841; Ex. & Adm. Act., §§ 149-151.)
It is argued that the court had no authority to require an accounting by Hudson because he was no longer an executor, and further, that the statute does not provide for an accounting by a removed executor, or that the probate court may order him to turn over the assets of the estate to his successor. Hudson, we think, is to be treated as a removed executor. He held his position and administered the estate under the sanction and supervision of the probate court, but the final adjudication that the will was invalid necessarily terminated his authority and removed him from the position of executor. The statute provides that in such cases the sales lawfully made in good faith and other lawful acts done by the executor shall remain valid and effectual. (Gen. Stat. 1897, ch. 107, § 26; Gen. Stat. 1899, § 2715.) The court had jurisdiction of the estate notwithstanding the removal, and we think it also had jurisdiction of a present or former executor until a final accounting and settlement of the estate was had with him. We find nothing in the statute, or in the theory of the law, excepting a removed executor from the general requirements of the act as to an accounting. The fact that he has been removed does not close his relations with the estate nor take the estate or the property belonging to it out of the jurisdiction of the court. As indicating that the power of the court is not limited to executors or administrators or persons holding quasi-official relations with the estate, it may be noted that the statute gives the probate court authority to cite even strangers before it who have possession of the assets of the estate, or who are suspected, of having concealed, embezzled or conveyed away any money .or assets of the estate, and to compel a delivery thereof to the executor or administrator entitled to receive the same. (Gen. Stat. 1897, ch. 107, §§ 174-178; Gen. Stat. 1899, §§ 2885-2889.)
The general trend of the authorities is that the revocation of letters or the resignation or removal of an executor does not affect the authority of the probate court to require an accounting'. So it has been held that where an executor or administrator resigns before the settlement of his accounts, and his resignation is accepted, the court does not thereby lose jurisdiction over his person or the settlement of his accounts, and may proceed with the settlement in the same manner as if he had continued in the execution of his trust. (Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. 675. See, also, Casoni et al. v. Jerome, 58 N. Y. 315; Nevitt v. Woodburn, 160 Ill. 203, 43 N. E. 385; Matter of Hood, 104 N. Y. 103, 10 N. E. 35; In re Radowich, 74 Cal. 536, 16 Pac. 321.) In 1 Woerner on Administrators, 589, it is said:
“After revocation, removal or resignation, the former executor or administrator cannot complete a sale which he has been negotiating on behalf of the estate, nor collect assets, but the court has jurisdiction to settle his accounts as though he were still in office.”
In Schouler’s Executors and Administrators, section 520, it is said:
“The American rule of the present day is, therefore, with few exceptions, that the court of chancery, usually, has neither jurisdiction nor occasion to interfere in the settlement of the estate, and to order an accounting by an executor or administrator. And, even as to one who has resigned or been discharged from his trust, our law inclines to treat him as one whose accounts should be closed under probate direction, as in the case of one who has died in office.”
It is true that some of the decisions cited are based on statutes which expressly authorize an accounting with a former .executor or administrator, but the implication of our statute, as well as the power entrusted to our probate court, justifies the view which we have taken. Reference has been made in the argument to the cases of Ingram v. Maynard, 6 Tex. 130, and Francis v. Northcote, id. 185, which seem to hold to a contrary view, based apparently upon the provisions of the constitution and statutes of Texas, constituting the court as an inferior tribunal, with jurisdiction limited to certain enumerated subjects. In matters of probate our court is not an inferior tribunal, and we have no doubt that it is the duty and within the power of the probate court to settle the accounts of a former executor, determine what shall be allowed him as compensation for his services and for expenses, and then to direct the turning over and delivery of the residue of the estate to his successor.
It is not for the successor to decide what allowance shall be made to Hudson for the partial execution of the trust, or for expenses incurred while he acted in that capacity. The orderly and legal course is that a full accounting and settlement shall be made by the former executor in the court having jurisdiction and control,of the estate, and that the transfer of the assets and funds remaining in his possession shall be made to the successor under the direction and supervision of that court. The taking of the matter from the jurisdiction of the probate court cannot be sustained on the ground of circumlocution or a multiplicity of suits.
There is full power in the probate court to determine whether the estate has been faithfully administered, whether moneys have been improperly paid out or an improper distribution made, and , „ , what amount of money and assets should be in Hudson’s bands and for which he is accountable, after allowance has been made for services and expenses. Section 26 of the executors’ and administrators’ act (Gen. Stat. 3897, ch. 107, § 25 ; Gen. Stat. 1899, §2714) provides, it is true, that an administrator appointed in place of a removed executor is entitled to the possession of the estate, and may maintain an action against the former executor and his sureties on the bond, but nothing in the provision indicates that an accounting and settlement with the former executor are unnecessary. No good reason can be seen why the sureties on the executor’s bond should be required to answer in court and harassed with litigation until it has been determined whether default has been made by the executor, or whether there is any liability on the bond, by the tribunal specially provided to make such determination. If an acounting is had in the probate court, and the executor makes a complete and satisfactory settlement, and turns over to his successor all the property and assets of the estate in his hands and for which he is accountable, there will be no necessity for litigation with the sureties on the bond, and hence there would be no ground for invoking the equitable jurisdiction of the district court. (Weihe v. Statham, 67 Cal. 84, 7 Pac. 143.)
We conclude that there was no occasion to interfere in the settlement of the estate in the probate court, and that until the settlement was had by the tribunal appointed for that purpose an action on the executor’s bond could not be maintained.
The judgment of the district court will therefore be reversed and the cause remanded for further proceedings. | [
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Error from Labette district court.
Affirmed. | [
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|
The opinion of the court was delivered by
Doster, C. J.:
This was an action on a bond, required by statute, of a firm of persons engaged in the business of making abstracts of real-estate titles. Verdict and judgment were rendered for the plaintiffs, to reverse which the defendants have prosecuted error to this court.
The first claim of error involves a question of. jurisdiction, under the statute, over the defendants, and the second one involves the construction of the statute and the application of a constitutional provision to it. The act in question is chapter 1, Laws of 1889. (Gen. Stat. 1897, ch. 117, §§ 35-39; Gen. Stat. 1899, §§ 1189-1192.) In order to a consideration of the claims of error mentioned, the title and first section of the act are quoted, and a summary of other sections given.
‘ ‘ An act for the protection of the records of the several counties of the state of Kansas, and regulating the business of abstracting in relation thereto. ”
“Section 1. It shall be unlawful for any person, firm or corporation to engage in the business of abstracting, or make abstracts of title to real estate in any of the counties of the state of Kansas, without first having executed and filed with the clerk of the county in which said person, firm or corporation intends to engage in the business of abstracting, a bond, to be approved by the board of county commissioners of said.county, with three or more good and sufficient sureties, in the penal sum of $5000, conditioned that they will properly demean themselves in the business of abstracting, and will in no way mutilate, deface or destroy any of the records of the several county offices to which they may have access, and that they will not in any way interfere with, hinder or delay the several county officers in the discharge of their duties while using said records in the prosecution of said business of abstracting; provided, however, that the records shall in no case be taken from the county' office to which they belong. The person, firm or corporation who shall execute and file said bond of $5000 for said purpose shall be liable on said bond: First, to the state of Kansas; second, to any person who shall be in any way damaged by any mutilation, injury or destruction of any record or records of the several county offices to which he or they may have access, to the amount of damage actually done said person ; and third, said person, firm or corporation shall be liable on said bond to any person or persons for whom he or they may compile, make or furnish abstracts of title, to the amount of damage done to said person or persons by any incompleteness, imperfection or error made by said person, firm or corporation in compiling said abstract. And the filing of said bond shall be a guaranty of the good faith and responsibility of said person, firm or corporation engaged in said business of abstracting.”
Section 2 provides that, upon the filing of the bond required by section 1, the abstracters shall have access' to the various county records, under the supervision, however, of the county officers having the custody of such records, and that while using the records for their purposes such abstracters shall be under the same obligation as the officers themselves to protect and preserve them, and shall be subject to the same penalties as those to which the officers are subject for a violation of duty in respect to their care. Section 3 provides that no one shall engage in the business of abstracting without first executing and filing the bond required by section 1, and that all persons who engage in the business of abstracting without having first executed and filed the bond shall be deemed guilty of a misdemeanor, and shall be refused the use of the county records. Section 4 provides that county officers who refuse the use of their records to abstracters who have given the required bond shall be deemed guilty of a misdemeanor.
The bond sued on. was given by a firm of abstracters in Butler county, and, as required by statute, was approved by the board of commissioners of that county. The suit, however, was brought in Reno county. Objection was made to the jurisdiction of the court in Reno county on the ground that actions on bonds given under the above-quoted statute are not transitory but are local to the county where the bond is filed and approved. This claim is predicated upon the theory that the statute creates the business of abstracting into a public office, makes the abstracter a public officer, and the bond given by him an official bond. If this claim be correct, the action was local to Butler county, because the civil code, General Statutes of 1897, chapter 95, section 44 (Gen. Stat. 1899, §4294), provides that actions on official bonds and actions against public officers for acts done by them by virtue of or under color of their offices, or for a neglect of their official duties, shall be brought in the county where the cause of action, or some part of it, arose. Neither the cause of action sued on nor any part of it arose in Reno county. The claim of lack of jurisdiction, however, is unfounded. The statute does not create the business of abstracting land titles into a public office nor make the abstracter a public officer. It only confers upon abstracters a right of access to the public records, and this it does for the private benefit and advantage of the abstracter, and it requires of him security to the public against the loss or mutilation of the records, and security to individuals for whom he undertakes to compile abstracts. He performs no public duty. He occupies no position of public trust. He is simply required to abstain from acts of injury to the public while pursuing his private business vocation, and to indemnify private individuals who suffer loss on account of his wrongful or negligent acts.
Under the second claim of error, it is contended that the act in question contains two subjects, or that, if it does not contain two subjects but only one, such single subject is not clearly expressed in its title, and is therefore violative of article 2, section 16, of the constitution. One of these distinct subjects, it is said, is the protection of the public against interference by abstracters with the work of the county officers and against the mutilation or destruction of the county records. The other subject, it is said, is the protection of private individuals against loss caused by errors or incompleteness in compiling abstracts. This contention is not sound. There is but one single subject contained in the act, to wit, the subject of abstracting from the county records, and the liability of those who pursue abstracting as a business. The general subject of the act is the liability of abstracters. The specific topics of this general subject are, first, liability in the use of the records, etc., and, second, liability for errors and imperfections of abstracts when made. Every one in the pursuit of a business vocation takes on relations both to the public and to private individuals, and becomes liable both to the public and to private individuals as he may fail in the discharge of his duty to one or to the other. This duality of relationship, however, does not beget the necessity of separate statutory regulations. In such case there is an integral Avhole, to wit, liability in the conduct of the business, of which liability to the public and liability to individuals are the elements or parts.
There being, therefore, but one subject in the act, the question next occurs, Is that subject clearly expressed in the title ? The title reads: “An act for the protection of the records of the several counties of the state of Kansas, and regulating the business of abstracting in relation thereto.” The final clause in this title, “ in relation thereto,” confuses the question and renders it difficult. What is the meaning of that clause? In relation to what is the business of abstracting to be regulated? Is it to be regulated in relation to “the records,” or in relation to “the protection of the records,” or in relation to both? If the business of abstracting is to be regulated in relation to the records, or in relation to their protection, the liability of the abstracter to private individuals would seem to fall without the purview of the title, because the liability of an abstracter to a private individual for an incomplete or erroneous abstract would seem to bear no relation to the records from which the abstract was made or to the protection of such records. To discuss the possible meaning of the clause in question in relation to all the other clauses, and to the words of the sentence, would involve an undertaking in grammatical, rather than legal, criticism, which, in the end, would be fruitless. It is probable that grammarians would relate the clause, “in relation thereto,” ;to the preceding clause, “for the protection of the records,” so that a reconstruction of such parts of the 'sentence as concern us would make them read, “regulating the business of abstracting in relation to the protection of the records.” The fact is, however, that, whatever meaning grammarians might give to the final clause of the sentence, the law can give no meaning to it. It is but another instance of that inartistic ally phrased legislation with which the statutes abound — legislation ordinarily honest enough in design, but so crude and bungling in forms of expression and so violative of all rules of composition as to be either impossible of comprehension or impossible of execution according to its spirit and intent.
In the case of In re Hendricks, 60 Kan. 796, 57 Pac. 965, we were compelled to declare an entire act of the legislature invalid because of its contradictory and meaningless provisions. In Landrum v. Flannigan, 60 Kan. 486, 56 Pac. 753, we were compelled to interpolate into a statute by construction words not written there, in order to give to it a meaning which the obvious sense of its other provisions showed it possessed. In Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273, we were obliged, in order to give meaning to the title of an act, to eliminate words which had been inadvertently used. We find ourselves compelled in this case to do the same thing. The final clause of the title we are considering has no meaning. None can be given to it. We therefore eliminate it and read the title as follows: “An act for the protection of the records of the several counties of the state of Kansas, and regulating the business of abstracting.”
It is by no means a pleasant duty thus to rearrange the verbal phraseology of an act of the legislature, and it should not be done if the doing of it can be avoided, but there is often no way by which our duty to uphold and cause the execution of acts of the legislature can be performed without transposing, interpolating and eliminating words and phrases, so as to give effect to the obvious legislative intent. The act under consideration is one of most excellent design. The business of abstracting real-estate titles is an important and responsible one, requiring skill, discernment, painstaking research, and conscientious purpose. It is proper to make it a subject of legislative regulation, and yet the statute which seeks to accomplish the object is crude and bungling in effort. For instance, that part of it which specifies the conditions of the bond requires that the obligor properly demean himself in the business of abstracting, and in no way mutilate any of the records, etc., and not in any way interfere with the county officers. If a common-law bond contained no other conditions than those, it would be difficult indeed to bring within its terms a case of damage to a private individual occurring through incompleteness or errors in abstracting. It could not be done unless the making of an erroneous abstract should be regarded as a failure by the abstracter to “properly demean” himself in the business of abstracting. A subsequent provision of the statute, however, attaches to the bond a liability on behalf of private individuals for incompleteness or errors in abstracts made. But that liability ought to be expressed in terms as one of the conditions of the bond. Again, the closing sentence of the first section reads : “The filing of the bond shall be a guaranty of the good faith and responsibility of said person, firm or corporation engaged in said business of abstracting.” This provision is absolutely meaningless. It contains nothing within itself — is not expressive of any obligation enforceable in the courts, nor does it aid to an understanding of any of the other provisions of the act.
A statement of some of the facts of the case will be necessary to an understanding of the third claim of error. Hopkins & Lamer were the owners of mill property in Saline county. One Newcom owned a tract of land in Butler county. See & Wells were real-estate agents at Salina, Saline county. They were agents for both Hopkins & Lamer and Newcom for the sale of their respective properties, and they negotiated an exchange of these properties between the owners. They ordered an abstract of the title to Newcom's land from the defendants, a firm of abstracters at El Dorado, Butler county. This abstract was incomplete and erroneous. It failed to show an outstanding mortgage of $2400. The exchange of properties was made by Hopkins & Lamer upon the supposition of the correctness of the abstract. Being damaged by its incorrectness to the extent of the mortgage, they brought suit against the abstract company. One of the defenses was lack of privity of contract between the plaintiffs and defendants. The contention of the defendants was that they had furnished the abstract to Newcom, the owner of the property the title to which they had abstracted, and not to Hopkins & Lamer, the owners of the mill property. If such were the case, it could not be said that privity of contract existed between the parties, and the defendants below, the abstract company, would not be liable. (Mallory v. Ferguson, 50 Kan. 685, 32 Pac. 410; Savings Bank v. Ward, 100 U. S. 195, 29 L. Ed. 621.) However, the jury trying the case were asked and made answers to interrogatories as follows:
“Ques. Did See & Wells order the abstract as the agents of Plopkins & Lamer as well as the agents of Newcom? Ans. Yes.
“Q. Did See & Wells, as the agents of Hopkins & Lamer and also of Newcom, order the abstract for the purpose of enabling Hopkins & Lamer to investigate the title to the land? A. Yes.
“ Q,. (2) Did Hopkins & Lamer rely upon the abstract in question as delivered to See & Wells? A. Yes.
“Q. Did Hopkins & Lamer notify See & Wells that they expected them to see that the title they got was a good and perfect one? A. Yes.
“Q. If you answer No. 2 in the affirmative, state if See & Wells ordered the abstract in question by direction of both parties in order to comply with the injunction of Hopkins & Lamer that they expected them to see to it that they got a good title? A. Yes.
“Q. Was the abstract in question ordered for the use and benefit of Hopkins & Lamer with the intention that the same should be delivered to See & Wells, and that See & Wells might pronounce judgment upon the title for the benefit of Hopkins & Lamer? A. Yes.”
There was testimony to support these findings. They are therefore conclusive upon us. It is claimed, however, that the jury were influenced to make them by instructions erroneous and misleading in character. We have examined the instructions and believe them to be correct in point of law and not misleading in character. It would consume much time and space to set forth the instructions complained of and show the error of counsel’s views, without, in the end, elucidating any legal principle of consequence.
5 Bond construed - sueties estopped "by recitals. A statement of further facts will be necessary- to an understanding of the fourth claim of error. The bond in suit was executed, filed, and approved by the county commissioners, in 1889. It reads as follows:
“Know all men by these presents, that the Boyden Abstract Company, of Butler county, Kansas, as principals, and Vincent Brown, Robt. H. Hazlett, F. S. Allen, M. H. Taylor, as sureties, are held and firmly bound unto the state of Kansas in the sum of five thousand dollars ($5000). The conditions of this bond are, that
“Whebbas, The Boyden Abstract Company aforesaid is engaged in the business of abstracting or making abstracts of titles to real estate in the county of Butler, state of Kansas :
“Now, therefore, if the Boyden Abstract Company aforesaid shall properly demean itself in the business of abstracting, and shall in no way mutilate, deface or destroy any of the records of any of the county offices to which they may have access, and shall not in any way interfere with, hinder or delay the several county officers in the discharge of their duties, while using said records in the transaction of said business of abstracting, then this obligation to be void; otherwise to remain in full force and effect.
The Boyden Abstbact Company, Principal.
By F. S. Allen, Pres.
“Attest: M. H. Taylob, Secy.
“Vincent Brown, Robt. H. Hazlett, F. S. Allen, M.
H. Taylor.”
The Boyden Abstract Company, for whom the above-quoted bond was given, was, at the time of the execution of the instrument, a partnership between F. S. Allen and M. H. Taylor. Before the liability accrued upon the bond, one Daniel Boyden became a member of the partnership along with Allen and Taylor. In legal theory, this change of membership worked a dissolution of the old partnership and the creation of a new one. Vincent Brown and Robert H. Hazlett, who had signed the bond as sureties for the Boyden Abstract Company, were unaware of the change of membership of the firm, and, as to themselves, they defended the action on the bond upon the ground that the change of membership released them from their obligation as sureties. They say that they became sureties for F. S. Allen and M. H..Taylor only, and cannot be held for a liability incurred by the new firm of Allen, Taylor & Boyden. There might be some force in this contention if the facts were not peculiar and exceptional. It will be observed that the bond in question has all the appearances of a bond executed by and on behalf of an incorporated company. The principal is named as “The Boyden Abstract Company.” The statute requires that names of corporations shall commence with the word ‘ ‘ the ’ ’ and end with the word "corporation,” “company,” etc. (Gen. Stat. 1897, ch. 66, § 8; Gen. Stat. 1899, § 1212.) The beginning and ending of the name of this association comply with the requirements of the statute as to corporations. In the body of the bond the Boyden Abstract Company is designated as principal, and the two partners composing it are designated as its sureties. The bond is signed, “The Boyden Abstract Company, Principal, by F. S. Allen, Pres. Attest: M. H. Taylor, Secy.,” and in addition to such signature and attestation both Allen and Taylor signed as sureties for the very concern of which they were the sole partnership members. It is unusual for a partnership to have a president and secretary. The officers are usual only to incorporated companies, and it is certainly unusual for the members of a partnership firm to sign a contract obligation as sureties for themselves.
No one looking at the above-quoted bond and unac quainted with the facts would suppose that the instrument was other than the obligation of an incorporated company, signed by its executive officers and by its sureties. It purports upon its face to be the bond of a corporation. The decisions are uniformly to the effect thai institutions with names of a character like unto that of the concern in question will be understood to be corporations, in the absence of contrary knowledge. The name, “The Thomas Harrow Company,” fairly imports a corporation. (Seymour & Son v. The Thomas Harrow Co., 81 Ala. 250, 1 South. 45.) The name, “The Muskingum Manufacturing Company,” implies a corporation. (Harris v. The Muskingum Manufacturing Company, 4 Blackf. [Ind.] 267.) The name, “The Cicero Hygiene Draining Company,” denotes a corporation. (Cicero Hygiene Draining Company v. Craighead, 28 Ind. 274.) So, also, does the name, “The Indianapolis Sun Company.” (The Indianapolis Sun Co. v. Horrell, 53 Ind. 527.)
The character of the bond in suit as the bond of a corporation is represented so strongly on the face of the instrument as to amount to a recital of it as a fact. Such being the case, the sureties are estopped to deny that the principal for which they signed possesses the character it represented itself to have and in which representations they joined to an equal extent. Sureties are favored in law, and they will not be held beyond the exact terms of the obligations signed by them ; but, on the other hand they, like other classes of obligors, are estopped to deny the recitals of obligations signed by them. (Brandt, Sur. & Gr. § 42 et seq.)
6. Sureties not released by extension of time.A further claim of error urged on behalf of the sureties is that plaintiffs, Hopkins & Lamer, granted an extension of time, upon consideration, to the abstract company, the eftect ot which was to release them, as sureties from their obligation. The facts were that, upon discovery of the error in the abstract, Hopkins & Lamer induced Newcom, who was liable upon the covenants of the deed to them, to give security against the outstanding mortgage before mentioned. This security was in form of a second mortgage on lands in another part of the state. The security turned out to be worthless. Nothing was realized on it, but, if it had been otherwise, it cannot be said that an extension of time was granted to the abstract company. The extension was for six months, but it was to Newcom, and was of his liability alone. The security accepted was not even collateral to the liability of the abstract company, but was collateral to the liability of Newcom only.
The rulings of the court below were all correct, and its judgment is affirmed. | [
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Error from Reno district court.
Dismissed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by the North American Trust Company to recover from the PhelpsBigelow Windmill Company a tract of land in Marion county. By contract with John Winchester, the owner of the premises, the Phelps-Bigelow Windmill Company, on May 26, 1886, sold a mill, which was placed as an improvement upon the land in controversy, and, as the price of the mill was not paid, a lien was claimed by the windmill company in good time and in due form. Afterward the title to the land passed from Winchester through several parties until it finally vested in the North American Trust Company. An action to foreclose the mechanic’s lien was brought by the windmill company on December 28, 1888, while the title to the land was in R. R. Conklin, and on March 6, 1889, a judgment was rendered against Winchester for the amount of the debt and also foreclosing the lien and all equity of redemption of all of the defendants. The decree provided that the land be sold as upon execution and how the proceeds should be distributed. At that time land sold as upon execution was required to be appraised, unless there was an express waiver of appraisement, and could not be sold for less than two-thirds of the appraised value. On March 9, 1892. an order of sale was issued pursuant to the judgment, under which the land was appraised at $1500, but the order was returned without sale for lack of bidders. On June 28, 1894, an alias order of sale was issued, but because of a lack of bidders no sale was made. On May 25, 1896,- a pluries order of sale was issued, directing a sale of the land without appraisement, and under that order the land was sold to the windmill company for $300. The sale was con firmed by tbe court, and on December 5,1896, a deed was executed to tbe purchaser, under which it took possession, and it was in possession when this action was begun.
At the trial the court admitted in evidence the appraisement under the first order of sale, and, because the sale was made without appraisement and for less than two-thirds of the value as appraised under the former order, it decided the case in favor of the owner and against the purchaser at the execution sale. Of these rulings complaint is made.
When the contract for the windmill was made-, when the judgment was rendered foreclosing the mechanic’s lien, and when the property was appraised and offered for sale under the first order, the statute required appraisement, except where it was expressly waived, and also provided that the property should not be sold for less'than two-thirds of the appraised value. In 1893 the legislature repealed the appraisement law and substituted therefor provisions giving the judgment and execution debtor a long period of time within which redemption might be made. (Laws of 1893, ch. 109 ; Gen. Stat. 1897, ch. 95, §§ 521-544; Gen. Stat. 1899, §§ 4742-4769.) Should the sale have been made as required by the laws in force when the contract; was made, or in accordance with the judgment which was entered before that law was repealed? Under that law, a sale without appraisement, where appraisement was not waived, is void. (Capital Bank v. Huntoon, 35 Kan. 591, 11 Pac. 369.) Evidently the trial court held that existing contracts and judgments were not affected by the repeal of the appraisement laws ; that the act of 1893 was prospective in its operation, and that its application to the lien contract under consideration would impair the obligation of the same and violate the constitutional provision which forbids states from passing any law “impairing the obligation of contracts.” Undoubtedly a creditor could complain of the application of the act of 1893 as against him because it would affect his remedy, so as substantially to impair and diminish the value of his contract.
What did the debtor undertake to do ? The view of the court is that it was nothing more than to pay the debt at the time and place specified in the contract and in accordance with its terms. If this is done, neither creditor nor debtor has cause to complain. If the act shortened the period within which payment was to be made, or increased the rate of interest' beyond that agreed to be paid, the debtor would be materially affected and might invoke the protection of the constitutional principles; but the remedies in force to compel an observance of his broken obligation or to enforce the provisions of his violated contract do not enter into or become a part of the obligation so as to be placed beyond legislative interference. He has no vested right in any particular procedure that merely enables him to resist the performance of the obligation he has assumed. The debtor did not contract that his property should be appraised, nor that it should be sold for a particular price. The questions whether at judicial sale property shall be ap-' praised and sold at or above a minimum price are matters of public policy which belong to the legislature, and which it may change from time to time, as it may deem best. The remedies in force when a contract is made cannot be so modified and circumscribed as materially to delay and embarrass the creditor in enforcing his contract, but the debtor has no vested right in remedies, nor can he claim that the remedies which were in force when the contract was made shall continue in order that he may embarrass the creditor and still further delay the enforcement of the contract. If he breaks his contract, all that he can insist on is that it shall be enforced according to law — not according to the law that was in force when the contract was made, but according to the law in force when the collection was made. It follows that no appraisement was necessary, and the court erred in holding the sale to be void.
The foregoing is intended as an expression of the prevailing opinion of the court, and with which the writer finds himself unable to agree. In his view, there was but a single contract, and its obligation rested equally upon both creditor and debtor. If the statutory provisions in force as to appraisement entered into and became a part of the contract, so as to bring the creditor within the protection of the constitution, no reason is seen why the debtor is not entitled to the same protection, It is a harsh interpretation of the constitutional provision to hold that it was intended for the protection of creditors only, and that a creditor could have his side of an indivisible contract interpreted and enforced by a law in existence when the contract was made, and the'debtor’s side of the same contract should be interpreted by a later and less liberal law. The obligations of the contract were not only that the debt should be paid at a stated time and draw a specified rate of interest, but also that in a contingency named certain real estate should be sold and the proceeds applied in payment of the debt. If the creditor can insist that the contract contemplated a sale of the real estate under laws which were in force when the contract was made, the debtor, with whom the creditor contracted, must have had the same law in contemplation, and has an equal right to insist that the sale be made in accordance with its provisions.
It is easy to understand how the change of the law impaired the rights of the debtor, as the property was appraised at $1500, and under the law should have brought at least $1000, whereas the property was bought in by the creditor in this instance for $300. In National Bank v. Peck, 8 Kan. 660, it was held that a stipulation in a mortgage contract, that upon the failure to pay a part of the money when it became due all should become due and payable, might be taken advantage of by the mortgagor as well as by the mortgagee. In Dorrington v. Myers, 11 Neb. 388, 9 N. W. 555, it was held that appraisement and similar laws in force when a contract is made enter into and become a part of the contract, and that while this principle is often, invoked in behalf of the creditor there is no reason why the debtor may not claim equal protection under it. In Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51, 2 Sup. Ct. 236, 27 L. Ed. 648, a suit between a purchaser at a decretal sale and the party entitled to redemption, and where there had been a change of the law, the court in deciding the case remarked:
“The mortgagor, might, perhaps, have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage. But, as to the mortgagee, the obligation of the contract was fully met when it received what the mortgage and statute in force when the mortgage was executed entitled it to demand.” (See, also, Spangler v. Green, 21 Colo. 505, 42 Pac. 674; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483; Cargill v. Powers, 1 Mich. 369.)
Again, judgment of foreclosure had been rendered, an order of sale had been issued and an appraisement had been made before the redemption law of 1893 took effect. The judgment provided that upon sale and confirmation the defendant should be barred of all equity of redemption, so that the subject of redemption-was there a matter of judicial determination. Being so adjudged and partially carried out before the passage of the redemption law, it could not be affected by that law, but should have been executed in accordance with the law in force when the contract was made and the judgment rendered. (Greenwood v. Butler, 52 Kan. 424, 34 Pac. 967, 22 L. R. A. 465.)
I am authorized to say that Mr. Justice Ellis unites with me in this view and dissents from the judgment of reversal.
A majority of the court holding a contrary view, it follows that the judgment must be reversed and the cause remanded for another trial. | [
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Appeal from Shawnee district court.
Affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The evidence supports the finding of the jury, that the sale of the stock was an entirety. It was not the intention of Stansfield to sell, or Kunz to purchase, a part of this stock of goods. It was their intention that the entire stock should pass by the sale. Under the law of this state, no person has a right to sell or contract for the sale of intoxicating liquors unless he has a druggist’s permit for that purpose, and then only to sell for mechanical, medical and scientific purposes, or to some other druggist who also has a right to sell by reason of having a druggist’s permit. Every contract for the sale of intoxicating liquors by a person who has not a druggist’s permit, and every sale which is made for other than mechanical, medical and scientific purposes, unless it be to a druggist having a permit, is illegal. (See Korman v. Henry, 32 Kan. 49, 3 Pac. 764; Gerlach v. Skinner, 34 id. 86, 8 Pac. 257; National Bank v. Gerson, 50 id. 582, 32 Pac. 905.).
The plaintiff in error in this case had a druggist’s permit. This gave him the privilege of selling intoxicating liquors for mechanical, medical and scientific purposes ; it also gave him the right to sell intoxicating liquors in quantities not less than one gallon to any druggist within the state holding a permit as provided by law. Kunz did not hold a druggist’s permit, and therefore the plaintiff in error could not sell to Kunz. The inhibition of law is not upon the purchaser but upon the seller, and had this agreement to sell been consummated, plaintiff in error would have been guilty of a misdemeanor. Such contracts are illegal. If it had been fully consummated the court would not have relieved either party. Its illegality •consists in plaintiff in error’s contracting to sell to a person to whom the law forbids a sale, and not in the purchaser’s contracting to purchase, because the law does not forbid his doing so. The parties are therefore not in'equal fault. The duty imposed by the law was placed upon the plaintiff in error and not upon the defendant in error. (Mason v. McLeod, 57 Kan. 110, 45 Pac. 76.) A party to an executory illegal con--' tract who is not in pari delicto may not only rescind, but may, if he has advanced money on such executory; contract, recover the same. (Mason v. McLeod, supra; Hooker et al. v. De Palos et al., 28 Ohio St. 262; 2 Pars. Cont. 746; Skinner v. Henderson, 10 Mo. 205; Bernard v. Taylor, 23 Ore. 416, 31 Pac. 968, 18 L. R. A. 859.)
The plaintiff in error, on the trial, offered to prove that he had placed this drug-store in the hands of an agency to sell; . that this agency was instrumental in, bringing about the sale to Kunz; that afterward an action was brought against him for a commission, and that he was put to expense in defending the same. The court excluded this evidence, on the ground that it was too remote. . In this we think there was no error.
Another answer to this contention is that plaintiff in error could prove this fact only through his own illegal contract, and there is no precedent to be found showing that one may recover damages through the establishing of a contract illegal as to himself.
The judgment of the court "below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Counsel for defendant in error contend, first, that the plaintiff below failed to perform a condition precedent necessary to a recovery under the contract between himself and Bowersock, in that under the written agreement between the latter and Cunningham, which was assigned to Johnston, it was provided that the twenty-five horse-power to which he was entitled was “to be taken from some wheel and penstock yet to be put in by said party of the second part, his heirs or assigns, at some one of the openings in said dam flume as now built that may be mutually agreed upon hereafter by the parties.” This condition they assert was not satisfied by an allegation in the petition that Johnston elected to take the said twenty-five horse-power called for by the Cunningham contract out of the penstock placed in said flume by the Lawrence Gas, Coke and Coal Company. The petition, however, contains other averments pertinent to the question raised. It alleges not only that Johnston- so elected to take the water to which he was entitled out of a penstock placed in the flume by the gas company, but it further avers that “Bowersock agreed that the said Johnston should have and enjoy the said twenty-five horse-power to which he (Johnston) was entitled out of the horsepower which he (Bowersock) was to furnish the said Lawrence Gas, Coke and Coal Company by the contract entered into between the said defendant Bower- sock and said Lawrence Gas, Ooke and Coal Company-on or about the 21st day of March, 1888.” It will thus be seen that the contract between Bowersock and the gas company was carried out to the extent of furnishing the amount of water contracted to be delivered to the latter; and the agreement on the part of Bowersock that Johnston was to have his twenty-five' horse-power out of the quantity of water to be furnished the gas company (the latter company being required to provide its own penstocks) constituted an election on the part of Johnston, acquiesced in by defendant in error, which dispensed with the necessity of Johnston’s putting in a penstock, or any mutual agreement concerning the same, as provided in the Cunningham contract. When Bowersock agreed that Johnston should have and enjoy the twenty-five horse-power to which he was entitled out of the power Bowersock was to furnish to the gas company, there could be no necessity for the putting in of a penstock for Johnston’s use when it had already been provided for by the gas company.
The next contention of defendant in error involves a more serious question, concerning which there is much conflict in the authorities and a divergence of opinion among writers on the subject. It involves the application of the fifth paragraph of the statute of frauds, which reads:
“No action shall be brought whereby to charge a party . . . {fifth) upon any agreement that is not to be performed within the space of one year from the making thereof — unless the agreement upon which said action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” (Gen. Stat. 1897, ch. 112, § 6 ; Gen. Stat. 1899, § 3072.)
It is insisted that the oral contract between Bower-sock and Johnston, having provided tha't the latter should let Bowersock have and enjoy the said twenty-five horse-power of water as long as the contract continued between the defendant in error and the gas company (which was for the period of ninety-nine years), was an agreement not to be performed within the space of one year from the making thereof, and hence no action could be maintained thereon. It will be well to refer to the exact language of the petition having reference to the oral contract between the parties. It reads:
“That on or about the 1st day of May, 1888, the said plaintiff entered into an oral agreement with the said Bowersock, by the terms of which the said Johnston agreed with the said defendant Bowersock that he would take said twenty-five horse-power which he was entitled to. by reason of the contract entered into by the defendant Bowersock and the said W. B. Cunningham, by their contract on the 29th day of March, 1879. And the said Bowersock agreed that the said Johnston should have and enjoy the said twenty-five horse-power to which he was entitled out of the horse-power which he was to furnish the said Lawrence Gas, Coke and Coal Company on or about the 21st day of March, 1888 ; which said contract aforesaid between the said plaintiff and the said defendant Bowersock was to exist and be in full force and effect as long as the contract between the said defendant Bowersock and the said Lawrence Gas, Coke and Coal Company continued.”
By reference to the statement, it will be seen that, under the ninety-nine-year contract between Bower-sock and the gas company, the latter reserved the right, if the generation of electricity and the distribution of electric light for use in the city of Lawrence should prove unprofitable, to have the contract cease and determine after giving three months’ notice in writing. It is entirely possible that this contingency might have arisen within one year from the date of that contract. If the agreement might have been performed within the space of one year, its violation would support an action to charge the party guilty of its breach. The above section of the statute of frauds is not applicable to contracts which may be performed within the year. If the agreement might consistently with its terms be carried out within the year, although it may not be probable or expected that its performance will be accomplished within that time, it is not within the contemplation of the statute.
In the case of Sutphen v. Sutphen, 30 Kan. 510, 512, 2 Pac. 101, the plaintiff and defendant were father and son. The father was living on an eighty-acre tract of land. He owed his son $250. By parol contract he sold his son the land for $850. Two hundred dollars was paid in discharge of the debt, and the balance was agreed to be paid by the son as soon as he could earn it off the land above what he needed for the support of his family. The son took possession of the land and then refused to pay the balance of the purchase-money. In an action brought by the father the above section of the statute of frauds was pleaded. Mr. Justice Brewer, in deciding the case, used this language:
“We remark again that a contract will not be adjudged void by reason of the last prohibition in section 6 of the statute of frauds and perjuries, unless it affirmatively appears that, fairly and reasonably interpreted, it does not permit of performance within the year. The fact that very likely performance will require more than a year, or that performance is not completed within the year, does not invalidate it. Unless the court, looking at the contract in view o£ the surroundings, can say that in no reasonable probability can such agreement be performed within the year, it is its duty to uphold the contract. The presumptions are all in favor of validity. . . .
“For we think that it cannot be affirmed that perjformance within the year can be adjudged reasonably impossible. That many a farmer on less than eighty acres makes, over and above all family expenses, $650 and more, is a matter of common knowledge. Of course, many things affect the probable or possible earnings; the number to be supported, the quality of the soil, the conveniences for farming, the proximity of the market, and many other matters.”
To the same effect are A. T. & S. F. Rld. Co. v. English, 38 Kan. 110, 16 Pac. 82, and Aiken v. Nogle, 47 Kan. 96, 27 Pac. 825.
We do not understand that counsel for defendant in error combat the doctrine confirmed in the cases referred to, but they contend that an oral contract, to be valid, must be capable of entire performance within the year, and that a possible discontinuance or abrogation of the contract by the act of the parties would not be a performance but a destruction of the agreement. Their position is in accord with that taken by the supreme court of the United States in the case of Packet Company v. Sickles, 5 Wall. 588, 18 L. Ed. 550. In that case the court had before it an oral contract, in which the plaintiffs agreed with a steam-packet company to attach to its boat, the Columbia, the Sickles “cut-off,” a patented article which was designed to save fuel in the working of steam-engines, and it was agreed that if the “cut-off” should affect a saving in the consumption of fuel the defendant would use the same on its boat “during the continuance of the said patent, if the said boat should last so long,” and that they would, for the use of the “cut-off,” pay the plaintiffs three-fourths of the value of the fuel saved. The patent had twelve years to run from the date of the contract. The experiment was made, and proved successful, and plaintiffs sued to recover, for the value of three-fourths of the fuel saved from November, 1844, to March, 1846. The defendant set up that the contract, being an oral one, was void, for the reason that it could not be performed within one year. It was held that the possibility of the determination of the contract by the loss or destruction of the boat, which might occur within the year, did not make the agreement any less a contract not to be performed within one year.
In a later case, Warner v. Texas & Pacific Railway, 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495, Mr. Justice Gray, speaking for the court, in an exhaustive opinion, reviewed a large number of English and American decisions since the enactment of the statute of frauds, in 1677, and stated that it may be well doubted whether the rule laid down in Packet Company v. Sickles, supra, can be reconciled with the terms of the .contract itself or with the general current of the authorities. In Reed on the Statute of Frauds, section 201, it is said:
“It has been a question whether a contract for a fixed period greater than one year is not within the statute of frauds, notwithstanding the fact that each party may terminate the agreement at any time ; it is also a point of much doubt whether a contract for such a fixed time, but determinable by the death of either party, is or is not within the statute. To take up the former point, it may be said that the weight of American authority is probably in favor of putting contracts for a fixed period in the same category as those in which no time is designated, if determinable upon any contingency infra annum. Thus, a contract for two years, or until $500 profit is made, is not within the statute. So a license to cut brees at any time within ten years. So a contract to serve for five years, or as long as L., a certain person, was agent; that is to say, to serve as long as L. was agent, but not longer than five years. A promise to pay when a certain third person paid promisor, and' this though the latter debt was not due for more than a year, because the third person might pay before the debt was due. These cases show a contingency not under the control of the parties, and are therefore strictly not within the special class under consideration.”
Moreover, the performance of a contract can be nothing more than a carrying out of its terms — an adherence to its provisions — and if a termination of it be authorized by the language employed by the parties, then, said termination being permitted, the exercise of the right so to do is certainly not a breach of the contract on the part of the party asserting the right to abrogate it, and, if not a breach, it must be a performance. If the contract permits its destruction by the parties, that destruction is merely carrying out the terms of the agreement and nothing more. (Blake v. Voight et al., 134 N. Y. 69, 31 N. E. 256; W. M. W. & N. W. Ry. Co. v. Wood, 88 Tex. 191, 30 S. W. 859, 28 L. R. A. 526.)
The contingency that the written contract before us might be terminated within the year was within the expressed contemplation of the parties to it at the time it was made, and hence was as much a part of the contract as any other portion of the same. Counsel for defendant in error state the rule to be that if an event which may happen within the year, whereby the contract will be performed, is beyond the control of the parties, then the statute does not apply; otherwise it bars the action.
In this case it will be noticed that the event which would work a discontinuance of the written contract (which as above stated would, in our judgment, be a performance of its stipulation) is not within the control of either party to the oral agreement now under consideration entered into between Bowersock and Johnston. Under the written contract between Bowersock and the gas company, the latter alone has the right to discontinue the same, upon giving three months’ notice. The termination of the oral agreement sued on is not made dependent upon any act or option of either of the parties to it, but of a stranger, namely, the gas company.
The contention that the contract between the parties is without consideration is untenable. Mutual and concurrent agreements and promises are alleged to have been made between plaintiff and defendant. Johnston was the owner, under the Cunningham agreement, of twenty-five horse-power of water, which he had the right to take from one of the openings in the dam flume built at the time the agreement was entered into. It is true that he agreed so to use such power as not to interfere unnecessarily with the power then in use by Bowersock, or the power which might thereafter be utilized; but we do not interpret the . agreement to mean that Bowersock was under no obligation under the Cunningham contract to furnish the twenty-five horse-power if it interfered with the power then or thereafter to be utilized by the former. The conduct of Bowersock also in making payments to Johnston indicated a different construction placed upon the agreement by him than that now contended for.
The claim that the water conveyed was an estate or interest in lands, and hence must be conveyed by deed, is without merit. In Wood v. Fowler, 26 Kan. 682, it was decided that title to the soil over which the Kan sas river flows is not vested in the riparian owner, and that the stream is a highway and its waters public. It was there held that the title to ice formed on the surface of that river did not belong to a riparian proprietor, and that he would have no more ownership in it than he would have to the fish which swam in the stream. The water in the river not being a part of Bowersoek’s real estate, his possessory right to a part of the same, accumulated by the dam built by him, was in a sense a reducing of personal property to possession, much like the collection of a crop of ice; and the transfer of the water or ice so accumulated is not required to be by deed. The authorities cited to sustain the contention of defendant in error relate to streams not navigable, flowing through and over lands where the title to the soil under the water is in the riparian owner and where the public have no rights. In Wood v. Fowler, supra, the learned justice delivering the opinion said :
“The title to the soil being in the state, and the stream being a public highway, obviously the ownership of the ice would rest in the general public, or in the state as the representative of that public. The riparian proprietor would have no more title to the ice than he would to the fish. It simply is this, that his land joins the land of the state. The fact that it so joins, gives him no title to that land, or to anything formed or grown upon it, any more than it does to anything formed, or grown, or found upon the land of any individual neighbor.’’ (See, also, Washington Ice Co. v. Shortall, 101 Ill. 46, and note, 21 Am. Law Reg. [N. S.] 318; Ang. Water., 5th ed., § 94.)
The judgment of the court below will be reversed, with directions to overrule the demurrer to the petition. | [
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Error from court of appeals, southern department.
Reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by David H. Moore to recover on two promissory notes executed by C. S. Mendenhall and Rebecca R. Mendenhall and to foreclose a mortgage on real estate given by them to secure the payment of the notes. The notes and mortgage were executed on August 1, 1889, in favor of Oliver R. Burnham, who executed a blank assignment of the mortgage on November 29, 1890, and delivered it and the notes to the Husted Investment Company. Soon afterward that company transferred and delivered the notes and mortgage to David H. Moore, at which time Burnham executed a formal assignment of each note and coupon to Moore. On February 11, 1890, the Mendenhalls conveyed their interest in the mortgaged property to Nellie S. Boylan, and on January 13, 1892, she conveyed it to the Kansas Real Estate Company, and that company in turn conveyed the property to L. R. Piper, on May 17, 1892, and Piper conveyed it to O. D. Burt and W. H. Bridgens, on September 20, 1897.
This proceeding was begun on March 1, 1894, and on June 24, 1895, a judgment was obtained against the Mendenhalls for $1761.27, and also for a foreclosure of the mortgage lien. As service had not been obtained on the defendant Piper the case was continued for service on him, and on February 1,1898, after Piper had conveyed the property to Burt and Bridgens, an amended and supplemental petition was filed by Moore, making Burt and Bridgens parties, and asking for a foreclosure as against them. They answered that the mortgage of Moore was not a lien on the property because he had failed and neglected to have the assignment of the mortgage recorded in the manner required by chapter 160 of the Laws of 1897. (Gen. Stat. 1897, ch. 119, §§ 18-24.) The case was submitted upon an agreed statement of facts, which showed, as hereinbefore stated, that the assignment of the mortgage made by Burnham on February 29, 1890, was formal in every respect, except that the name of the assignee was not inserted. It was duly acknowledged, but it.was never filed in the office of the register of deeds or recorded until January 27, 1898. About January 1, 1898, the Husted Investment Company agreed that it would obtain a new assignment of the mortgage to be executed by Burnham, and in pursuance of that agreement the company obtained another assignment by Burnham, which was in proper form and duly acknowledged, and which was duly recorded on January 27, 1898. In his petition Moore set up his ownership, the written assignment of the mortgage, and the written indorsements and transfers of the notes and coupons; and of these averments there was no verified denial. The pleadings and agreed facts fairly show possession and ownership of the notes and mortgage by Moore, but, aside from the conceded facts which have been stated, the parties made the following stipulation :
“It is also further agreed that the only question in issue or dispute in this case is as to the effect upon the plaintiff’s right to maintain his action and foreclosure of the mortgage, set up in his amended and supplemental petition, of his failure to have the assignment of said mortgage, bearing date of the 29th of November, A.n. 1890, filed for record in the office of the register of deeds of Wyandotte county, Kansas, on or before the 12th day of September, 1897, or within six months from March 12, 1897, it being agreed that if the plaintiff’s failure -to have said assignment of said mortgage filed for record in said office on or before said date defeats the plaintiff’s right to foreclose said mortgage as to the defendants Burt and Bridgens, then and in such case the judgment of the court should be for them'; but if the plaintiff’s failure to have said assignment filed for record on or before said date, under the facts and circumstances as set forth in the foregoing agreed statement of the facts, does not defeat the plaintiff’s right to foreclose said mortgage as to the defendants Burt and Bridgens, then the plaintiff should have judgment against the defendants, as prayed for in the amended and supplemental petition.”
In effect, this is a stipulation that Moore is entitled to a judgment of foreclosure unless the failure to have the assignment of the mortgage filed for record within six months after the act requiring the recording of such assignments took effect — that is, on or before September 12, 1897 — defeats his right to maintain the action. It was not recorded until a later time, nor until after Burt and Bridgens had purchased the property; and they now contend that, under the case of Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956, no foreclosure can be had. The present case is distinguishable from the one cited. Here, there is no lack of facts or absence of proof to establish the plaintiff’s right of action, as there was in that case. It is stipulated that there is no dispute between the parties here on any of the issues made by the pleadings, except as to the effect of the failure to record the assignment of the mortgage within the statutory period, and that if that circumstance does not defeat Moore’s right to maintain the action he should have a judgment of foreclosure against Burt and Bridgens, as prayed for in the petition. Every essential fact was therefore conceded, and nothing was left for the determination of the trial court except the question of law as to the consequence of the failure to record the assignment within the allotted time. It was decided in Myers v. Wheelock, supra, that such failure or neglect did not invalidate the mortgage or extinguish the mortgage lien.
The only penalty prescribed in the act is that if an assignment is not acknowledged and recorded as therein provided, it shall not be received in evidence in any court of the state. It was not within the constitutional power of the legislature, nor did it attempt, to annul the mortgage or to destroy the mortgage lien. The mortgage continues in existence and remains enforceable notwithstanding the statute ; and the lien and right to enforce the same may be established by any competent proof; but the transfer to and ownership of an assignee cannot be shown by an unrecorded assignment. While such an assignment is wholly valueless as proof, the ownership of the mortgage may be admitted by the defendants or other parties' interested, or it may be shown by any legal or competent evidence. The failure to have the assignment acknowledged and recorded effectually bars its use as evidence, but when a case can be made out or is established without such evidence a judgment of foreclosure should be given. In the present case the stipulation of the parties entitled the plaintiff below to a foreclosure, and therefore the judgments of the district court and of the court of appeals will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an original action of mandamus brought by the board of commissioners of Harper county to compel the auditor and the treasurer of the state to credit the county with certain amounts of state tax charged against it in the years preceding 1898, and uncollected by it on its delinquent land tax sales. The contention of the plaintiff is that counties which have been compelled to bid in lands at tax sales and which have not been able to secure a redemption of the lands for the full amount of taxes charged, or have not been able to sell or assign their tax-sale certificates for the full amount of taxes charged, are relieved from liability to the state as to the unrealized portion of state taxes. The contention of the state is that chapter 199 of the Laws of 1885, in connection with section 182 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, § 7296), declares the liability of the county for such unpaid taxes and provides for a special levy to make up the delinquency. In Railway Co. v. Clark, 60 Kan, 831, 58 Pac. 561, we held with the state on the same question, but the correctness of our conclusion in that case is now challenged. We did not in the opinion in that case make special mention of all the statutory provisions bearing on the question, and will, therefore, in this one review them.
Chapter 196, Laws of 1872, provided that in case lands were bid in by a county at tax sales and remained unredeemed for five years, the county treas urer should sell them for such sum as could be realized, and, after paying the costs of the proceeding, distribute the proceeds to the various funds entitled thereto in proportion to the amounts due such funds. This act was repealed by section 158 of chapter 34, Laws of 1876.
Chapter 39, Laws of 1877, also provided for a sale of lands bid in by counties at tax sales for such sum as could be realized. The procedure under this statute was by foreclosure of the tax lien, and, like the statute of 1872, it directed the distribution of the proceeds to the various funds entitled to it.
Chapter 43, Laws of 1879, provided that if lands bid in by counties at tax sales should remain unredeemed for three years, the county commissioners might permit the owners to redeem for a less sum than the taxes, or the county clerk might assign the county’s tax-sale certificate for a less sum than the amount due thereon. It also provided in its third section for a distribution of the proceeds of redemption or assignment to the different funds.
While all the above-mentioned acts provided that the net proceeds realized from the above-mentioned sales, redemptions or assignments of certificates should be distributed among and credited to the different funds in proper proportion, none of them provided what should be done as to the unrealized portion of taxes. While it would seem that a proper account of such unrealized taxes should be kept, none of the acts in terms so provided.
Chapter 199, Laws of 1885 (Gen. Stat. 1897, ch. 158, § 221; Gen. Stat. 1899, § 7364), provided in its first section that, as to lands sold under the acts of 1872 and 1877, the county clerk should “ divide and charge the amount of such unrealized tax to the sev eral funds in proper proportion,” etc., while in its second section it amended the third section of chapter 43, Laws of 1879 (Gen. Stat. 1897, ch. 158, § 222; Gen. Stat. 1899, § 7365), by adding a provision that taxes uncollected upon a redemption or assignment of the certificate of sale of lands sold and bid in by the county should be “divided among and charged to the several funds in proper proportion,” etc. Thus the provisions of the law as to the debiting and crediting of realized and unrealized taxes on lands sold under the acts of 1872 and 1877, or redeemed, etc., under the act of 1879, were made uniform and plain.
None of these acts, nor any acts to which our attention has been called, provided a method of securing to the state the unrealized portion of taxes which the counties had been unable to collect on land sales, redemptions, or assignments of certificates. However, during all this time there was a provision declaring that each county should be responsible to the state for the full amount of taxes levied for state purposes, together with a provision which, seemingly, though not as we think in proper construction, would seem to neutralize or modify the one first mentioned, to the effect that the county treasurer should not be required to pay to the state treasurer more state taxes than actually collected by him. (Gen. Stat. 1868, ch. 107, §§ 132, 134; Laws of 1876, §§ 102,104.) These provisions are still on the statute-book. (Gen. Stat. 1897, ch. 158, §§181, 182; Gen. Stat. 1899, §§7295, 7296.) The meaning of these two sections is that while counties are liable to the state for the full amount of the levy for state purposes, the county treasurer shall not be required to take moneys belonging to other funds with which to pay the amount due the state.
The act of 1885, chapter 199 (Gen. Stat. 1897, ch. 158, §§ 221-226; Gen. Stat. 1899, §§ 7364-7371), undertook to provide for the collection of all delinquent state taxes due from counties during all the previous years, and also to provide a method for making up the deficiency occurring in succeeding years. It provided in its third section what had never before been provided for, a certification to the auditor of state of the amount of uncollected state taxes for which the county was entitled to credit, and it directed the auditor and treasurer to credit the counties with the amount. This crediting, as is evident from the provisions of the act, was intended to be provisional — was intended to provide for an accounting between the counties and the state as to uncollected state taxes, and was not intended to declare the non-liability of the counties. This is manifest because, while in its fourth section it gave counties until July 15, 1885, within which to claim credits on levies made previous to 1884, it nevertheless, by section 5, provided that the auditor of state should, on the fourth Monday in July, 1885, report to each county the balance due from it on delinquent taxes, and that the county clerk should then determine the rate per cent, necessary to raise the amount, and place it on the tax-roll in addition to the state tax for that year. It followed this with a proviso that the additional levy should not exceed one-half mill in any year, but that it should be continued until the delinquent taxes due from each county had been paid. These provisions were by their terms limited to the taxes of 1883 and the preceding years. In 1891 the time in which counties were allowed, under the provisions of section 4, chapter 199, Laws of 1885, to claim credit for uncollected state taxes under the levies of 1883 and preceding years, was extended to July 15, 1891. (Laws 1891, ch. 205.) In 1895 a similar extension of time was allowed. (Laws 1895, ch. 262.) It is evident from these various enactments that the legislature had in contemplation an accounting between the state and the several counties as to the delinquent state taxes of 1883 and preceding years, and that it was providing for the correction of such delinquencies by the collection and payment of the amounts due.
As to delinquencies in the payment .of state taxes for the year 1884 and subsequent years, provision was made by the act of 1885, chapter 199. Section 6 declares:
“If after the settlement by the county treasurer of any county in November of each year, as provided in section ninety-nine, chapter thirty-four, of the Session Laws of eighteen hundred and seventy-six, there shall remain due from such county any portion of the state tax levied for the preceding year, the auditor of state, on the second Monday of July in each year succeeding the said November settlement, shall report to the county clerk of such county the amounts of such unpaid tax, and the county clerk shall determine the rate per cent, necessary to raise the said amount, and shall place the same on the tax-roll in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury as are other state taxes.” (Gen. Stat. 1897, ch. 158, §225; Gen. Stat. 1899, §7370.)
This section, therefore, supplements section 102 of chapter 34, Laws of 1876. (Gen. Stat. 1897, ch. 158, §182; Gen. Stat. 1899, §7296.) Together they declare the continuing liability of the counties to the state for the full amount of state taxes and provide a method by which the deficiency shall be collected and paid into the state treasury. These provisions are plain. They leave no room for construction.
As before stated, the demand made by the county upon the auditor and treasurer is for a credit for the amount of the uncollected state taxes. The alternative writ issued in tbe case does not state the years in which the delinquencies occurred. If they occurred in 1884 or preceding years, the claim of credit, even as a mere matter of formal accounting between the county and the state-, could not be allowed, because, by the provisions of the acts of 1891 and 1895, before referred to, the time within which the claim of credit must be made has long since expired, and, as before stated, the credit, when allowed under the provisions of section 4 of chapter 199, Laws of 1885, as amended by the subsequent acts of 1891 and 1895, would be provisional in its nature and would be followed by a certification from the auditor of the delinquency thus temporarily credited, upon receipt of which a special levy to correct it would have to be made. As to the state taxes levied in 1885 and since that time, no credit, even as a matter of mere bookkeeping, is allowed, because the statute above quoted specifically declares that the county clerk, upon the receipt of a report from the auditor of state, on the second Monday of July in each year, of the amount of the delinquency, shall determine the rate per cent, necessary to raise such amount, and shall place it on the tax-roll, in addition to the regular levy for state purposes.
The county is not entitled to a peremptory writ. The motion to quash the alternative writ is, therefore, sustained and the peremptory writ denied. | [
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The opinion of the court was delivered by
Doster, C. J.:
The defendant in error herein sued the plaintiff in error to recover damages for injuries negligently inflicted upon him as a passenger on one of the trains of the latter. Verdict and judgment were rendered for the plaintiff in the court below, from which the defendant in that court has prosecuted error. The errors complained of are the admission of incompetent and irrelevant testimony in proof of the damages sustained, and the giving of an erroneous instruction as to damages. The evidence to which objection was made was that of the plaintiff, and was as follows :
“Ques. I will ask you to state as nearly as you can what the average annual profits of your business were during a period of, say, four or five years preceding the time of your injury? I refer to the firm business. Ans. Our average net profits for the last five years run from about five thousand dollars net profits a year for the last five years.
“Q. I will ask you to state to the jury what amount of business your firm transacted; state in a general way what amount of business your firm transacted annually ? A. Well, our business, our amount of business, would run from buying from six thousand to nine thousand head of cattle a year — buying and selling that many.” .
The instruction complained of was as follows :
‘ ‘ Evidence of the loss sustained by 'the plaintiff in his business in consequence of the injuries sustained by him may be considered by the jury, not as furnishing the measure of damages, but to aid the jury in estimating them, and for this purpose the nature of plaintiff’s business, its extent and the importance of his personal oversight and superintendence in conducting it have been allowed to be shown; but you are instructed that speculative profits on invested capital are not recoverable as damages in this case.”
It was in evidence that the plaintiff in the court below was in partnership with another person ; that they were engaged in the business of buying and selling cattle, and were equal sharers of the profits of such business. Except in the fact that the plaintiff in this case was a member of a partnership, and that the loss sustained by him on account of his injuries was a loss to him as a member of a partnership, the case is identical in point of fact and in legal questions arising thereon with Railway Co. v. Posten, 59 Kan. 449, 53 Pac. 465. Counsel for plaintiff in error vigorously assail the decision made in that case, because, as they say, it allows a jury to award as damages the loss of contingent and possible profits upon invested capital under the superintendence of personal effort. We have given reconsideration to the rulings of law there announced and are entirely satisfied as to their soundness.
Neither in that case nor in the above-quoted instruction of the court below in this one was it ruled that evidence of the speculative and uncertain profits of a business could be considered as a measure of damages. In that case the plaintiff had testified to the amount of profits of his business in the years immediately preceding his injury. Replying to the contention of counsel that evidence of such character was inadmissible, Mr. Justice Allen said:
“It is said that this income, being derived from invested capital as well as the personal attention of the plaintiff, did not furnish a proper measure of damages ; that profits of the kind realized were speculative, and that, while profits might be made in one year, losses might be sustained in another. The contention is sound so far as it relates to the rule by which the plaintiff’s damages are to be measured, but it is not sound as to the proposition that testimony with reference to the plaintiff’s employment and the nature and character of his business, and whether it is profitable or otherwise, may not be admitted in evidence. Certainly evidence as to earnings in cases of this kind is not necessarily confined to wages. It is not alone wage-earners whose time is valuable, and who may recover damages for injuries resulting in the loss of it. In order that the jury may intelligently estimate the loss the plaintiff has sustained, it is necessary that they should be informed'with reference to his business affairs, and while they may not, as compensation for the loss of his time, include speculative profits, or profits on invested capital, it is for them to say what loss has resulted to his business because of his being incapacitated from attending to it, and to award him as damages the value of his time and labor to himself in the transaction of his own business.”
Evidence of speculative and uncertain profits derivable from invested capital and the personal oversight of it is not receivable, of course, as a measure of damages, but it is receivable to show the character and extent of a man’s business and the probable loss sustained by him on account of not being able to give to it his usual and ordinary attention. It may be that the evidence objected to in this case would have been erroneous without an instruction by the court to the jury explaining the purpose for which it was admitted and limiting the use to be made of it by them in their deliberations, but, instructed as they were, it became entirely admissible and proper.
Counsel for plaintiff in error criticize the use in the above-quoted instruction of the words ' ‘ any loss sustained by the plaintiff in his business in consequence of the injuries sustained by him.” They argue that there was no evidence of “loss sustained” by the plaintiff in his business. The evidence of loss sustained was, first, in the fact that the plaintiff had a business, and second, in the fact that the injuries he sustained prevented him from giving attention to it. The loss was not stated by him in dollars, nor perhaps should it have been so stated. When the facts were proved the inference of loss arose, or rather the fact of loss became apparent; and it was for the jury to say, considering all the circumstances — the character and extent of the plaintiff’s business, the profits he had been realizing from it, and the extent to which he had been prevented from attending to it — what his losses were.
Counsel for plaintiff in error also say that the defendant in error’s being a member of a partnership, the business of which could go on without his personal attention to it, prevented the application of the rule laid down in Railway Co. v. Posten, supra. It is inconceivable to us that such should be the case. If it had been proved as a fact that the plaintiff’s business went on as well without him as with him that fact would have been material and relevant to consider. The fact that it might possibly go on as well without him as with him was a fact to be taken into account by the jury. They doubtless did take it into account. Upon this question the case of Walker v. The Erie Railway Company, 63 Barb. 260, is in point.
The above are the only errors complained of in the case. They are unavailing, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, J. :
A. Garnier, jr., brought an action against James M. Squires, setting up three causes of action : (1) For slander, in falsely charging him with the larceny of $500; (2) for false imprisonment, by holding him at the point of a revolver in illegal restraint for a period of about thirty minutes; and (3) for an unlawful search of plaintiff’s premises ; and he placed the damages sustained at $4500.
The facts out of which the controversy arose are substantially as follows : On the night of February 14, 1898, Squires claimed that when he retired he had $500 in his vest pocket; that it was taken therefrom at some time during the night; that Gamier was in the house and knew that defendant had the money; that the doors of the house were securely locked, and there was no one else in the house who could or would have taken the money; and he charged that Gamier stole it from him, On the next morning after missing his money, Squires went to Garnier’s place of business and pointed a loaded revolver at Garnier’s head and demanded $500, which he said Gamier had stolen from him. He admits in his pleading and in his testimony that he followed Gamier to his office, accused him of stealing Ms money, and that he threatened to shoot him if he did not unlock the safe and give him the money.
The plaintiff says that about nine o’clock in the morning, and while he was busy, some one approached him with an oath, saying : “If you do n’t give me that $500 you stole from me I will blow you full of holes,” and that when he looked around he was facing a revolver in the hands of Squires; that the latter held a revolver on him and made him unlock the safe ; that he was scared and thought Squires was going to kill him. The money was not found in the safe or on the premises ; and no direct proof was offered of the stealing of the money by any one. The defendant alleged that he honestly believed, and still believes, that Garnier stole the money from him.
After the testimony was received the court instructed the jury:
“If you believe from the evidence that the defendant lost said sum of $500, and had reasonable grounds for believing that the plaintiff had stolen it from him, and, without malice toward the plaintiff, but in an endeavor to recover said sum of $500, went to the place of business of the plaintiff and there demanded a return of said money, and there accused the plaintiff of having stolen said money, and detained the plaintiff by pointing at him a loaded revolver, then you should render a verdict for the defendant.”
Objection was made to this instruction when it was given, and it constitutes the principal ground assigned for the reversal of the judgment that was rendered against the plaintiff. It was intended to apply to the testimony given in support of the count for false imprisonment, and we think it does not correctly state the law applicable to that phase of the case. The testimony in the case justified a charge as to what were the constituent elements of false imprisonment, chief of which are the detention and restraint, and the unlawfulness of such detention and restraint. The testimony for the plaintiff tended to show actual restraint for a short time, accomplished through fear of violence and bodily harm. It is true there was no judicial proceeding, no warrant of arrest, nor any manual touching or taking into custody. But these are not essential elements.
“False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone or by acts alone, or by both, and by merely operating on the will of the individual or by personal violence, or by both. It is not necessary that the individual be confined within a prison or within 'walls,- or that he be assaulted or even touched. It is not necessary that there should be any injury done to the individual’s person, or to his character, or reputation. Nor is it necessary that the wrongful act be' committed with malice or ill will, or even with the slightest wrongful intention. Nor is it necessary that the act "be -under color of any legal- or judicial proceeding. All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause there.for, and by words or acts which he fears to disregard.” (Comer v. Knowles, 17 Kan. 486.)
As will be seen, malice and wilfulness are not essential elements of .false imprisonment, and the motives of the defendant, whatever they may have been, are not material to the case so far as making out a right of action is concerned, and can never be material except where something more than compensatory damages are sought. If exemplary damages are sought, proof of malice in making an arrest or imposing restraint is competent. In this instruction the court made the good faith of the defendant and' the absence of malice a justification for the restraint.
Another fault jin the instruction is that the mere belief that the defendant had stolen money from him ¡justified the defejndant in holding him up at the point ¡of a revolver ini an endeavor to recover the money. i’An arrest by an j officer of the law without a warrant will not constitute false imprisonment if the officer arresting has rela'sonable grounds to believe that a felony has been /committed; but a private person arrests without a ¡warrant at his peril, and it will be a false imprisonment unless it can be shown that,a felony íias actu.ally been committed. (Wakely v. Hart, 6 Binn. [Penn.] 318; Beckwith v. Philby, 6 Barn. & Cres. 635; Holley v. Mix, 3 Wend. [N. Y.] 351; Allen v. Wright, 8 Car. & P. 522; Burns v. Erben, 40 N. Y. 463; Hawley v. Butler, 54 Barb. [N. Y.] 490; 12 A. & E. Encycl. of L., 2d ed., 740.)
The instruction given does not make the actual commission oh a felony an essential element of a justification of the '¿Imprisonment. ‘ It makes the mere loss of the money by the defendant and a belief by him that the plaintiff had taken it a sufficient' excuse for the demonstration with a revolver and, a compulsory restraint of the plaintiff, while the authorities unite in holding that in f^uch case nothing short of proving the commission of a felony will justify the arrest. The law contemplates that an arrest either by an officer or a private person, with or without warrant, is a step in a public prosecution, and must be made with a view of taking the person before a magistrate or judicial tribunal for examination or trial; and an officer even subjects himself to liability if there is an unreasonable delay after an arrest in presenting the person for examination or trial. The language of the instruction, as will be observed, does not contemplate an arrest for the purpose of examination or trial or any other step toward a public prosecution and punishment. On the other hand, it appears to sustain the theory that a man who has lost; money and believes that another has stolen it may v¡¡ake the law into his own hands, go to the house or place of business of the suspected person, and at the point of a revolver detain him and demand from him a rjeturn of the lost money. Suspicions cannot be tested'nor beliefs verified in this high-handed way, as such, a course would naturally provoke breaches of the pqace and bloodshed. Money cannot be collected nor ‘.property recovered by one person from another by force or threats of force, as the instruction would inrjfiy, and if the purpose of the defendant was forcibly *to compel the payment of the money, and not to accomplish the arrest, prosecution and punishment of the plaintiff by legal methods, the restraint was unjustifiable and illegal.
The ninth instruction was as follows :
“The burden of proof is upon the defendant to establish by a preponderance of the evidence that the words spoken of and concerning the plaintiff were true ; and if the evidence bearing upon such matters, if any there be, is evenly balanced, or if it preponderates in favor of the plaintiff, then the defendant would be justified in speaking such words of and concerning the plaintiff.”
Evidently there was an ihadvertent misuse or omission of words in this instruction. If the burden of proof was upon the defendant to show that the words spoken were true, and the testimony preponderated in favor of the plaintiff, certainly the defendant would not be justified in the speaking of the words.
For the errors pointed out the judgment of the trial court will be reversed, and the cause remanded for a new trial. | [
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Error from Crawford district court.
Affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action in ejectment brought by defendant in error, J. J. Rauer, who claimed under a deed from one Oxford, the latter having claimed under a sheriff’s deed made in an action in attachment against W. H. Brooks, jr., a non-resident, who at one time owned the land in question. The defendant below, Frank J. Thomas, was in possession of the property and claimed under tax deeds. He further contends that the plaintiff ought not to recover because there was a superior title outstanding in Willie C. Brooks, which he had received by deed from his father, W. PI. Brooks, jr., before the commencement of the action in attachment by Oxford. The plaintiff, Rauer, as against this, contends that this deed made to Willie C. Brooks by W. H. Brooks, jr., was made for the purpose of defrauding the creditors of said W. H. Brooks, jr., and hence was void. The defendant claimed that this could not be shown by the plaintiff for the following reasons : (1) That Rauer was not and never had been a creditor of W. H. Brooks, jr., and hence could not urge this fraud, if any there was; (2) that if there was fraud more than two years had elapsed since its discovery, and, hence, it could not be urged, because barred by the statute of limitations. The court overruled both of these contentions, and found that Thomas’s tax deeds were void because of irregularities in their issuance. As to this no fault is found.
The court further found, as a matter of fact, that the deed of W. H. Brooks, jr., to Willie C. Brooks was made for the purpose of defrauding the creditors of W. H. Brooks, jr., and was void, and rendered judgment in favor of the plaintiff, Rauer. The defendant, Thomas, brings this action here, and suggests as error the two matters which he urged below against the admission and consideration of the deed of W. H. Brooks, jr., to Willie C. Brooks.
Under the decisions of this court, we must hold that this outstanding title in Willie C. Brooks cannot be set up to defeat the claim of the plaintiff. In Duffey v. Rafferty, 15 Kan. 9, the court, in. the syllabus, said:
“In an action in the nature of an action of ejectment, in Kansas, the plaintiff may recover, if he has any right to the property, and if that right is paramount to any right to the same possessd by the defendant, although the legal title to the property may be outstanding in some third person, and aRhougii some third person may have a better right to the property than the plaintiff.”
The incidental remark made in the opinion of the court when this case was here before (Rauer v. Thomas, 60 Kan. 71, 55 Pac. 285), that might be construed to hold contrary to the doctrine announced in Duffey v. Rafferty, supra, was not intended to commit the court to the contrary doctrine, although many courts hold that way. We now decide that Thomas could not avail himself of any outstanding title in Willie C. Brooks as a defense to Rauer’s action. However, Rauer, by reason of the fact that he holds under Oxford, is entitled to interpose any objection that Oxford could have interposed. If this deed of W. H. Brooks, jr., to Willie C. Brooks, his son, was made for the purpose of defrauding his creditors, as the court found, it is “utterly void and of no effect” (Gen. Stat. 1889, ¶ 3162 ; Gen. Stat. 1897, ch. 112, § 2 ; Gen. Stat. 1899, § 3068), and may be so held when any one claims rights thereunder.
Nor is the claim of Thomas that the statute of limitations had run upon the fraud practiced by W. H. Brooks, jr., in deeding this land well taken. The statute of limitations in this respect only applies to those who seek “relief on the ground of fraud” (Gen. Stat. 1897, ch. 95, § 12 ; Gen. Stat. 1899, §4262), and does not apply to one who is seeking to defend his rights on the ground of some fraudulent transaction. The doctrine is olearly and satisfactorily stated in Brown v. Cloud County Bank, 2 Kan. App. 352, 42 Pac. 593:
“The statutory limitation of the time within which ‘an action for relief on the ground of fraud ’ must be commenced only applies when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action or to prove fraud to entitle him to relief.”
In that case, as well as in the one at bar, the plaintiff did not base his right to recover upon the ground of fraud. Fraud was not a part of the substantive cause of action in which relief was asked.
The plaintiff in error complains of the finding of the court that the deed from W. H. Brooks, jr., to Willie O. Brooks was made for the purpose of defrauding creditors. It may be said that the evidence on this point is not the most conclusive, but we cannot say that it did not warrant the conclusion at which the court arrived, and, therefore, under the rules of this court, we may not set it aside.
We find no error in the judgment of the court below, and therefore affirm the same. | [
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Original proceeding in mandamus.
Dismissed. | [
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Appeal from Ottawa district court.
Reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action in the nature of a creditor’s bill, brought by R. T. Battey against the heirs of Charles Barker, deceased. Battey held a claim of $6200 against Charles Barker in his lifetime, which had been put in judgment, and it is alleged in the petition that, prior to his death and while Barker was insolvent, he fraudulently transferred and caused to be transferred, through F. W. Tucker, a tract of land of considerable value to his daughter Nancy Anna Barker, and that without this land the claim and judgment of Battey cannot be realized out of the Barker estate. F. F. Healey, who is a brother-in-law of Nancy Anna Barker and whose wife is her guardian, was appointed administrator of the Barker estate, and the petition sets forth that Battey requested the administrator to take judicial steps to have the land so fraudulently transferred declared to be the property of the estate, but that he refused to do so, and hence this action was brought by Battey as judgment creditor. Whether he is entitled to maintain the action is the first question presented for consideration.
Under section 2804, General Statutes of 1899 (Gen. Stat. 1897, ch. 107, §115), it is provided that real estate which the deceased may have conveyed with intent to defraud his creditors is liable to be sold as part of the estate. The statute does not expressly provide who may institute proceedings to set aside fraudulent, conveyances so made. Doubtless it is within the power of the executor or administrator to bring a proceeding in equity for that purpose, but there is nothing in the statute, nor in reason, which would exclude a creditor from availing himself of the equitable remedy for his own protection. The creditor has the right to treat the fraudulent conveyance as void to the extent of his debt, and he alone could maintain such an action at common law. If the executor or administrator, as in this case, occupies a position antagonistic to the interests of creditors, and especially where he refuses, upon request, to institute a proceeding to reach property fraudulently transferred, a creditor beneficially interested may bring an action, making the administrator and other interested parties defendants.
In Crawford’s Adm’r v. Lehr, 20 Kan. 509, it was said that an administrator cannot maintain an action against a fraudulent vendee to recover personal property received from the deceased, and some of the objections to an administrator bringing actions in behalf of creditors to recover property from fraudulent vendees are pointed out. It is there stated that it is better to let the creditors proceed against such fraudulent vendees in their own behalf.
Attention is called to the case of assignees, in which it has been held that application should be made to the court to require the assignee to act, but the assignee is an officer of the court and a trustee for the creditors as well as others interested in the assigned estate. The administrator is subject to the control and direction of the probate court, and there are not in that court such chancery powers and jurisdiction as would enable it to investigate fraudulent transfers or to set aside fraudulent conveyances of real estate.
The fact that the administration of the Barker estate has not been completed in the probate court does not prevent the district court from taking jurisdiction of this case, since the probate court, by reason of its limited powers and jurisdiction, cannot afford an adequate remedy. (Shoemaker v. Brown, 10 Kan. 383; Johnson v. Cain, 15 id. 532; Klemp v. Winter, 23 id. 699; In re Hyde, Petitioner, 47 id. 277, 27 Pac. 1001.) If the probate court should direct a sale of the property, it would probably result in a sacrifice of the same, as the title stands in the name of another, and it appears that the property does not constitute a part of the estate. A more practical and just method was adopted in this case in taking steps to set aside the fraudulent transfer in a court of competent jurisdiction, where it was decreed that the property belongs to the estate. When this is done the property can be sold at a price approximating its actual value, and the rights of all persons involved fully protected. As tending to show that the creditor may properly maintain the action, we cite Bate v. Graham, 11 N. Y. 237; Phelps v. Platt, 50 Barb. 430; Barton v. Hosner, 22 Hun, 463; N. Bank v. Levy et al., 127 N. Y. 549, 28 N. E. 592; Tuck v. Walker, 106 N. C. 285, 11 S. E. 183; Haston v. Castner, 31 N. J. Eq. 697; Marshall v. Blass, 82 Mich. 518, 46 N. W. 947.
It is contended that the creditor had no right to leave the probate court and take this controversy into the district court. As already seen, the remedy obtainable in the probate court is altogether inadequate, and, as equity jurisdiction must necessarily be invoked to set aside fraudulent conveyances, the action was properly brought in the district court.
The objection to the admission of testimony appears to be without merit, and the evidence seems to be sufficient to sustain the findings and judgment of the district court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
A large amount of .taxes levied upon property within the city of Wichita, a city of the first class, for city purposes, became delinquent. This, together with the penalties and interest thereon, was collected by the county treasurer of Sedgwick county. An action was brought against the board of county commissioners of Sedgwick county by the city to compel the payment to it of its proportion of such penalties and interest. The board of education of the city of Wichita intervened in the action and claimed that it had a right to receive the penalties and interest which had accrued on the taxes levied for school purposes. The court below found for the plaintiff and for the board of education. The board of county commissioners brings the case to this court.
The question involved is this : As between the county and a city of the first class within the county, and as between the county and the board of education of such city, which is entitled to the penalties and interest accruing upon delinquent taxes levied on property within such city for city and school purposes ? This question, of course, must be solved by reference to the statutes.
Section 143 of chapter 158, General Statutes of 1897 (Gen. Stat. 1889, ¶6940; Gen. Stat. 1899, §7281), being the section which provides for the addition of penalties to taxes not paid at the time the same become due, closes with these words: “Provided, all penalties shall be credited tó the county fund and all rebates charged to the same fund.” The county commissioners claim the penalties and interest in question under and by virtue of this provision. This section is a part of the general law on the subject of assessment and taxation, and was enacted in 1876, and must be held to determine the question in favor of the county as to penalties at least, unless it has been changed by subsequent legislation. It will be observed, however, that this provision applies only to penalties, and says nothing about interest.
By section 1 of chapter 260, Laws of 1895 (Gen. Stat. 1897, ch. 32, §§75,79; Gen. Stat. 1899, §842), the legislature amended paragraph 666 of the General Statutes of 1889, which paragraph is a part of the act relative to cities of the first class. This amendment, so far as it relates to the question at bar, is as follows :
“The county treasurer shall, on January 15, April 15, July 15 and October 15 of each year (or oftener, if required by the city council), pay over to the city treasurer all moneys and evidence of indebtedness collected for and payable to any city of the first class, its proportion of penalties and interest, and make a full, itemized statement thereof to the mayor and council.”
It is under the provision of the italicized portion of this section that the city claims it is entitled to recover. We agree with this claim. This entire matter is one clearly for the legislature to determine, and the latest expression of the legislative will must control. While repeals by implication are not favored, and while the latest act contains no express repeal of the provision quoted from the general taxation law, it is clear that these two sections of our statute cannot stand together. There is no opportunity for any construction which will give effect to both. Either the county is entitled to these penalties, under section 143, or the city is entitled to them, under the last-quoted section, and we think it is clear that the legislature intended the latter. (Elliott v. Lochnane and others, 1 Kan. 126; Bonifant v. Doniphan and Walker, 3 id. 33; Bartlett, Treas., v. A. T. & S. F. Rld. Co., 32 id. 134, 4 Pac. 178.) This construction is also consonant with the natural rights in the case. These penalties were laid upon the taxpayer to induce prompt payment of taxes when due, and as compensation to the municipality for its delay in receiving the same when due, and there is no reason apparent to us, in the absence of positive statute requiring it, why the penalties which accrue upon taxes levied for city purposes should not go to the city.
As noted, the above provision on which the county relies purports to give only the penalty, and does not pretend to carry interest accruing upon tax-sale certificates. As a general proposition, interest goes to augment the fund and becomes a part of it, and is entitled to be received by the owner. We think the court below was clearly right in adjudging that both penalties and interest on the delinquent taxes assessed for city purposes be paid over to the city treasurer.
The question, however, as to the rights of the board of education is a different one. There is no provision to be found in the statute giving rights to the board of education like the one under which the city claims. We are left, therefore, in the solution of this question, to' the provision of section 143, quoted above, which gives all penalties to the county general fund. We are unable to see why this provision is not decisive as to the disposition of 'penalties on school taxes, for we think that the legislature may direct where such penalties shall be applied. It need not have provided a penalty at all, but having provided one, it had the right to direct where it should go. This direction not applying to interest upon tax-sale certificates, so much of such interest as would be proportional to the school tax therein would become a part of the school tax, and must be distributed with that tax, the legislature having made no other disposition of it.
The board of education urges that, inasmuch as this court has decided that penalties as well as interest become a part of the taxes, the provision of said section 143, under which the commissioners claim, is unconstitutional, because inconsistent with section 4 of article 11 of our constitution, which provides : “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same ; to which object only such tax shall be applied.” We do not think, however, that this position is tenable.
It is true that in the cases of The State, ex rel., v. Bowker, 4 Kan. 115, and Kansas Pacific Rly. Co. v. Amrine, Treas., etc., 10 id. 318, it was held that penalties and interest become a part of the tax and must be treated in the collection thereof as the tax; but the question whether the legislature might not make disposition of such penalties, or even of interest, to other objects than that to which the tax itself was devoted was not involved or passed upon ; and we hold that, in the absence of legislative disposition of penalties and interest, the same would attach to and be disposed of the same as the original tax itself. (Smith v. City of Frankfort, 2 Kan. App. 411, 42 Pac. 1003.) In this case, however, the legislature has otherwise disposed of the penalties accruing on school taxes, and to the extent which the court below awarded such penalties to the board of education it erred.
This case will be disposed of by affirming the judgment of the court below rendered in favor of the city of Wichita, and by modifying the judgment rendered in favor of the board of education by directing that the court enter judgment in favor of the board of education for the interest, and against it for the penalties, on school taxes. The costs of this court will be divided between the board of county commissioners and the board of education. | [
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The opinion of the court was delivered by
Cunningham, J.:
A firm composed of M. E. Richardson and Samuel Haston was engaged in the meat business in the city of Sterling, and in connection therewith had a slaughter-house and stock-yards on a tract of land a short distance from the town. They had in their employ one D. Cleghorn, who was in charge of the slaughter-house and yards. Upon several occasions dogs had been about the place, causing annoyance and trouble, and Cleghorn had been instructed to kill them if they returned. A Colt’s rifle carrying a No. 32 cartridge was in use at the slaughter-house. On the east of the tract of land on ydiich the slaughter-house was located, and about seventy to eighty rods therefrom, was a public highway running north and south, which was traveled generally by people going to and coming from Sterling. To the east and northeast the land rose gradually to the road. From the slaughter-house and pens a portion of this north and south road was visible and a portion was not.
On the morning of the 31st of January, 1898, about nine o’clock, Cleghorn noticed the dogs about the yards. He procured the rifle and discharged it at the dogs, which were then about seventy-five yards to the northeast of where he was standing. The distance to the highway from the same point, and in the direction in which he shot, was between seventy and eighty rods. The land between where the dogs then were and the highway was higher than it was where they were, and so much so that it is spoken of as an embankment. It was of a sandy character. At this time one Joseph Thompson, who was the husband of one of the defendants in error and the father of the others, was passing along the north-and-south road and was then at a point east, or possibly to the southeast, of where Cleghorn stood. Whether or not he was in a position where he might have been seen by Cleghorn does not appear. The ball which was discharged by Cleghorn at the dogs was deflected at quite an angle and passing through the intervening space struck Mr. Thompson and killed him. This action was brought by these defendants in error against Cleghorn, Richardson and Haston to recover damages occasioned by the death of Thompson.
The first trial resulted in a verdict for the plaintiffs. A new trial was awarded, and upon the second and third trials the jury failed to agree. The fourth trial resulted in a judgment for the plaintiffs, and the defendants, as plaintiffs in error, bring the case to this court.
Various errors are alleged, but there confronts us, at the very outset, the question as to whether, under the circumstances of this case, plaintiffs are entitled to recover at all. They are not unless it can be stated that Cleghorn was negligent in shooting as he did. No wantonness or to alus animus is charged. Seeing the dogs running up the slope, Cleghorn procured the gun and discharged it at them, against the elevation or embankment of land. To be sure the bullet was in some manner deflected and, taking another course, did the damage. One of the witnesses spoke of the ground as being frozen. To what extent was not shown, but it is hardly credible that the frozen condition of the ground was responsible for the deflection of the bullet, as it appears that the bullet was marked with a small groove which ran lengthwise. This marking would probably not have so appeared had the deflection been occasioned by contact with frozen earth. From that cause it would have presented more oi a bruised appearance. It is probable that the bullet struck some small or sharp stone and was thus turned out of its course.
What constitutes actionable negligence ?
“Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.” (Poll. Torts, 86.)
“Where a man, proceeding in a lawful business, exercises reasonable care, the law does not make him an insurer of others against those consequences of his actions which reasonable care and foresight could not have prevented. The law justly ascribes such consequences to inevitable misfortune, or to the act of God, and leaves the harm resulting from them to be borne by him upon whom it falls. The contrary rule would obviously be against public policy, because it would impose so great a restraint upon freedom of action as materially to check human enterprise.” (Thomp. Neg. 1234, 1235.)
“Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” (Ray, Neg. Imp. Dut. § 183. p. 663.)
“ It is conceded by all the authorities that the standard by which to determine whether the person has been guilty of negligence is the conduct of the prudent, careful, diligent or skilful man in the particular situation.” (Big. Torts, 289.)
So in the case of City of Allegheny v. Zimmerman, 95 Pa. St. 287, 40 Am. Rep. 649, which was a suit to recover for injuries caused by the falling of a liberty pole which had been erected in the street, it was held, following the general' rule :
“One is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature.”
“Negligence is the want of proper care, caution, and diligence — such care, caution and diligence as, under the circumstances, a man of ordinary and reasonable prudence would exercise.” (McCully v. Clarke & Thaw, 40 Pa. St. 402.)
“Negligence is the failure to exercise that degree of caution which a man of ordinary intelligence would exercise under the circumstances of a particular case.” (Gravelle v. Minneapolis & St. Louis Ry. Co., 10 Fed. 711.)
See, also, Lewis v. Flint & Fere Marquette Ry. Co., 54 Mich. 55, 19 N. W. 744; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; Sjogren v. Hall, 58 Mich. 274, 18 N. W. 812; Mitchell v. Chic. & G. T. Ry., 51 Mich. 236, 16 N. W. 388; Hoag v. Lake Shore & Michigan Southern Railroad Co., 85 Pa. St. 293, 27 Am. Rep. 653; Railroad Co. v. Jones, 95 U. S. 441, 25 L. Ed. 506; C. & A. R. R. Co. v. Adler, 129 Ill. 335, 21 N. E. 846; Heaven v. Pender, 11 Q. B. D. 507; Atkinson and another v. The Goodrich Transportation Co., 60 Wis. 141, 18 N. W. 764; McGowan v. Chicago & Northwestern R. Co., 91 id, 147, 64 N. W. 891. Davis v. Chicago, Milwaukee & St. Paid R. Co., 93 id. 470, 67 N. W. 1132, 33 L. R. A. 654; Bouvier; Poll. Torts, 37. We might extend quotations and multiply authorities to an almost unlimited extent, but we deem the above sufficient.
We may say, then, that negligence, to be actionable, must result in damage to some one, which result, under all the circumstances, might have been reasonably foreseen by a man of ordinary intelligence and prudence and have been the probable result of the initial act. There are very few, if any, of the injurious things that occur in human life, but what may be traced back along the line of causation and located in an act of omission or commission by some one. We cannot be freed from the results of living in communities. There are some of those injurious results which may be directly traced, and for which the law and common consent make the author responsible. There are others which come out of the complex relationships of life, and which the law and common consent denominate accidents, and relieve the author, near or remote, from liability. We deem the injury of which the defendants in error in this case complain to be one of these.
It is suggested, however, that the fact that Cleghorn discharged the gun in the general direction of the highway along which people might be passing at any time was in itself negligence. To be sure, if the gun ^had been held at sufficient elevation, and the bullet, which was of comparatively small size, had gone far enough in the direction in which it was shot, it would finally have come to or crossed the highway, in which case, however, no harm would have come to Mr. Thompson. But the possibility of the bullets ever reaching the highway at all depended upon the almost inconceivable, at least very highly improbable, combination of circumstances which caused its deflection, for otherwise it would have buried itself safely in the sandy elevation of the field toward which it was discharged.
What reasoning would have led to the conclusion that the bullet discharged by Cleghorn against this elevated field of sand would probably have struck a hard substance at exactly the angle it did, and be deflected at an angle so exact that, traversing a distance of fifty-five or sixty rods, it would find in its exact course the body of a man, and enter it in such place and follow such course as to be fatal ? What foresight would have guessed at such result ? What prudence would have avoided it? Certainly none, except such as would have restrained one entirely from discharging the gun. We may not say, however, that this extreme of caution is required by the law. Such a rule would paralyze human effort and action on all lines.
The defendants in error, however, claim that it is the peculiar province of the jury to determine whether Cleghorn was guilty of negligence ; and that, a verdict having been found in their favor, the finding is conclusive on this court, and that we are not at liberty to weigh the evidence. It is well-settled law that it is the province of the jury, under proper instructions, to determine whether or not, upon any given state of facts, negligence ought to be inferred. It is equally well settled that it is first the duty of the court to say whether, upon the undisputed facts, or facts taken most favorably to the plaintiff, negligence can be inferred. The jury cannot arbitrarily and without evidence infer negligence. When the evidence fails to establish the defendant’s duty and its non-performance, there is no evidence which justifies the jury in finding negligence. (The Wabash, Toledo & Western Railway Co. v. Brannagan, Adm’x, 75 Ind. 490; Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; Patt. Rail. Acc. L. § 373, and note 5.)
Before the court can submit the question to the jury, the evidence must affirmatively establish circumstances from which the inference fairly arises that the accident resulted from the want of some precaution which the defendant ought to have taken. (Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410.)
“The judge has a certain duty to discharge, and the jurors have another, and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred ; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice, that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw rhe case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever.” (Metropolitan Railway Co. v. Jackson, L. R. 3 App. Cas. 197; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 20 L. Ed. 1003; Gregory, Administrator, v. The C. C. C. & I. Railroad Company, 112 Ind. 385, 14 N. E. 228; Conner v. The Citizens’ Street Railway Co., 105 id. 62, 4 N. E. 441, s. c. 55 Am. Rep. 177; Woolery, Adm’r, v. Louisville, New Albany & Chicago Railway Co., 107 id. 381, 8 N. E. 226, s. c. 57 Am. Rep. 115; Poll. Torts, 365.)
We are not called upon to weigh evidence. Nor are we proposing to disturb the rule that the finding of a jury upon a disputed question of fact must be held conclusive on this court, when the same has been fairly determined under proper instructions. This is not a question as to the weight or quantity of evidence, but rather as to the nature or quality of the evidence. It is not whether there was enough evidence, but whether the evidence was of the right kind. We are forced to the conclusion that all the evidence taken together does not make out a case of actionable negligence in favor of the defendants in error against Cleghorn, and, of course, if not against him, not against any one. The elements of such negligence are not found in the case, and, therefore, the demurrer of the defendants below to the evidence of plaintiff below should have been sustained, and judgment rendered in favor of the defendants below. The case will be reversed, with the order to the court below to render such judgment. | [
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The opinion of the court was delivered by
Smith, J.:
A. L. Vickers was killed by the falling of a stone-arch bridge which, at the time, was being erected by J. M. Hass, under a contract with Cloud county. The deceased was a common laborer. He assisted in the removal of certain wooden half-circles, over which an arch of the bridge had been built, when the latter collapsed, causing stone and earth to fall upon him. This action was prosecuted by E. J. Vickers, his widow, to recover from the county her pecuniary loss by reason of his death. She alleged that the members of the board of county commissioners entered into a contract with Hass, and adopted plans and specifications for a bridge which were defective and dangerous ; that they were informed that a bridge built in accordance with such plan would not stand; and further, that the board of county commissioners retained to itself supervision of the work, and appointed one William McCall to superintend the same, and that the latter negligently omitted to notify Vickers of the dangers surrounding him. The contract between the county and J. M. Hass was attached as an exhibit to the petition ; also the verdict of a coroner’s jury, returned after an inquest over the body of the deceased, in which it was found that his death was caused by an accidental falling of the bridge under which he was working at the time.
The answer of defendant below alleged contributory negligence on the part of Vickers, in that he carelessly and recklessly dislodged and removed stones compos ing a part of the bridge upon which he was then working under the direction of said Hass. Verdict and judgment were rendered for the plaintiff.
The case has been in this court before. (Vickers v. Cloud County, 59 Kan. 86, 52 Pac. 73.) In the former decision it was held that the statute giving a right of action applies as well to those who are rightly under the bridge as to those who are traveling over it; and further, that the statute, being remedial in its nature, should be liberally construed.
Counsel for plaintiff in error contends that the court below, in passing on a demurrer filed by the county, considered as a part of the petition certain offers of proof made by the plaintiff when the case was first tried, in 1895, as appears from the case-made of that trial incorporated in the record before us. We do not understand, however, that this offer of proof was regarded as a part of the petition at the last trial. In the original suit the members of the board of county commissioners were joined as defendants with the county. The court sustained a demurrer interposed by defendants on the ground that the causes of action were improperly joined, but permitted the plaintiff to allow her original petition in the case to stand against the board of county commissioners. There is nothing in this record which definitely points out that the court, on the hearing of the demurrer, considered anything but the allegations of the petition on which the last action was tried.
It is contended that the demurrer should have been sustained, for the reason that, notwithstanding the specific allegations of negligence on the part of defendant below, the verdict of the coroner’s jury attached to the petition as an exhibit showed, as a result of the inquest, that the jury found that the cause of the death was an “accidental falling of a stone-arch bridge.” It would be a strained meaning to give the word “accidental” to say that its use in such a petition, coupled with the various averments of negligence charged against the county, narrowed down the alleged cause of the death by making it due to something unforeseen and fortuitous. The setting out of this coroner’s verdict was wholly unnecessary and surplusage ; yet, considering it as properly a part of the petition, we do not think the cause of the death stated therein controls the other allegations of the petition; nor can we say that the use of the word “accidental,” so employed, is inconsistent with the accompanying averments that the deceased was killed through the negligent acts of the defendant below.
There was abundant proof that both the chairman and members of the board of county commissioners had express notice at the time the plans and specifications for the bridge were adopted that the same were defective and dangerous. This information was given them by Mr. Hass, who built the bridge. He told them, if constructed on the plan adopted, it would not stand; and several competent civil engineers, in con•firmation of Mr. Hass’s prediction, testified, after examining such plan and specifications, that the same were wholly inadequate, and gave as their opinions that a bridge built in accordance therewith would fall.
This knowledge, brought home to the members of the board before the defective plans were adopted, was sufficient notice to the chairman, within the requirements of the statute. The bridge was contracted to be built according to plans and specifications at variance with the principles of applied mechanics. Requiring it to be so built was notice in advance that the contractor must necessarily erect an unsafe bridge.
Nor can the defense avail that the work was committed to the charge of an independent contractor, over whom the county had no control. Inasmuch as the contractor in this case performed the work in conformity to defective plans, and had no option to deviate therefrom, his course was marked out for him by the county board. He did what he was employed to do. The adoption by the board of such defective plans brings the case within the exception to the general doctrine that the negligent acts of an independent contractor, by which a servant of the latter is injured, exonerates the person who has let the contract. (Water Company v. Ware, 16 Wall. 576, 21 L. Ed. 485; City of Chicago v. Langlass et ux., 66 Ill. 361; Jordan v. The City of Hannibal, 87 Mo. 678; Prideaux and wife v. The City of Mineral Point, 43 Wis. 513; Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822.)
Haas, the contractor, testified on behalf'of plaintiff below. By way of impeachment, testimony given by him before the coroner’s jury was read, tending to contradict his statements made upon the witness-stand. To corroborate him plaintiff introduced testimony tending to show that before the accident Haas had made statements concerning the defective condition of the bridge in harmony with the testimony last given by him in this cause. This testimony was properly admitted. In The State v. Petty, 21 Kan. 54, 59, 60, this court said :
“It is the general and almost universal rule, that evidence of what the witness has said out of court cannot be received to fortify his testimony. Corroborative statements of this character are very easy of manufacture, and, if admitted, might oftentimes be made the means of great imposition. To this general rule, however, there are exceptions. Thus, when a witness is charged with giving his testimony under tiie influence of some motive prompting him to make a false or colored statement, then it may be shown that he made similar declarations at a time when the imputed motive did not exist; and where there is evidence in contradiction, tending to show that the account of the transactions given by th'e witness is a fabrication of a late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (1 Whart. Ev. § 570; Robb v. Hackley, 23 Wend. 49; The People v. Finnegan, 1 Park. Cr. Rep. 147; Dailey v. The State, 28 Ind. 285; Conrad v. Griffey, 11 How. 480, 2 Phill. Ev. H. & E.’s Notes, 979.)” See, also, State v. Dennin, 32 Vt. 158; Coffin v. Anderson, 4 Blackf. (Ind.) 395; Henderson v. Jones, 10 Serg. & R. 322.
We have read the instructions given, and think the law of the case was fully presented to the jury. The first instruction incorporated in full the opinion of this court. We do not commend this practice, and it ought to be discouraged. The jury are apt to be misled by it, especially when facts are stated or commented upon in the opinion. The jury should receive the law from the trial court. The expressions of this court are for the guidance of the trial court, and we consider it bad practice to embody our language in an instruction when it is prefaced with a statement that this court is the authority from which it is derived. Here, however, no prejudice has resulted to plaintiff in error which counsel has pointed out.
The findings of the jury, taken together, are strongly against the defendant below, and they seem to be well supported by the evidence. The verdict was moderate in amount. Several of the assignments of error set out in the brief of plaintiff in error do not refer to the pages of the record. These we cannot consider.
The judgment of the court below will be affirmed. | [
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|
The opinion of the court was delivered by
Doster, C. J.:
This was an action brought by the State Bank of Chatham, New York, against W. E. Hutchinson, and Annie P. Plutchinson, his wife, on two promissory notes and separate mortgages securing them. One of the notes was for $4000, and the mortgage securing it was given on property in the city of Hutchinson, part of which constituted the homestead of the Hutchinsons. The other note was for $6000, and the mortgage securing it was given on a section of farming land. The Valley State Bank and the Bank of Hutchinson, being claimants to a mortgage lien on the section of land, were made defendants to the action.
W. E. Hutchinson was the president of the Valley State Bank, of Hutchinson. He was indebted to the State Bank of Chatham on a personal obligation in the sum of $10,000. As collateral security to his indebtedness, he had transferred certain notes and chattel mortgages on cattle. One George L. Morris, the president of the plaintiff bank, came to Kansas to investigate the chattel-mortgage collaterals and adjust the Hutchinson indebtedness. He could not find the cattle described in the mortgages nor the makers of those instruments. He accused Hutchinson of fraud, and threatened to prosecute him criminally and cause him to be sent to the penitentiary unless the indebtedness'due to his bank was at once paid or secured. These threats were not made to Hutchinson personally but were made to one C. B. Wilfley and one John J. Welch, officers of the bank of which Hutchinson was president. They communicated the threats to Hutchinson, who, in turn, communicated them to his wife. In order to satisfy Morris, as agent of the plaintiff bank, and induce him to forego a criminal prosecution against Hutchinson, the latter, together with Wilfley and Welch, the other officers of the Valley State Bank, agreed with Morris to convey to Mrs. Hutchinson a section of farming land, owned by the bank, in order that the Hutchinsons might give a mortgage on it, along with their homestead and other city property, as security for the debt which Hutchinson owed to the State Bank of Chatham. This conveyance was made. The title to the section of land did not stand in the name of the Valley State Bank, but stood in the name of the before-mentioned John J. Welch, one of its officers. Morris, however, had full knowledge that this land belonged to the bank, and that the title to it was held by Welch merely asa trustee. After the conveyance of the land the Hutchinsons executed the above-mentioned mortgage of $6000 on it, and also at the same time executed the mortgage of $4000 on their homestead and other city property. The indebtedness secured by these mortgages was not paid, and action was therefore commenced as before stated.
It will be most convenient, to state and discuss separately the two causes of action on the notes and mortgages.
The jury found that the note and mortgage of $4000 on the homestead were executed by Mrs. Hutchinson under the duress of her fears excited by Morris’s threat to arrest and criminally prosecute her husband. As before stated, this threat was not made to her, nor was it made to her husband, but it was made to her husband’s business associates and by them communicated to him and by him to her. Counsel for plaintiff in error contend that a plea of duress by threats can only be sustained by proof of J J r threats directly made to the person from whom the unwilling act was required or the involuntary contract extorted; or that, if such threat is not thus directly made, but is conveyed through an intermediary, it must be by an agent of the threatener’s choosing, specifically designed by him to be an organ of communication. The evidence did not show that any agency for the communication of the threat was selected by Morris or that he had any specific design that it should be communicated to Mrs. Hutchinson. Notwithstanding this we feel clear that the threats need not be directly communicated. If one makes threats the natural and reasonable consequence of which is to put another in a state of fear, and if they . do put the other in a state of fear, and induce, through f; the duress of such fear, the performance of an act by I. him, the one who makes the threats should be heldj responsible for his wrong. The effect is one which, in the law of causal connection, proximately results from the unlawful act. Nor need there be, as we think, a specific design in the mind of the wrong-doer to produce the effect which follows. It is sufficient that the effect be one which follows as a natural and reasonable consequence from the unlawful act.
In the case of Taylor v. Jaques, 106 Mass. 291, it appeared that a promissory note was signed under the duress of fears excited by threats not communicated directly by the creditor to the debtor, but communicated by the former to another, and by him to the debtor. The court held that, “on an issue whether a promissory note was made under duress, evidence is admissible that the person to whom the payee made threats against the maker reported them to the maker, in the absence of the payee, just before the making of the note.” In Schultz v. Catlin, 78 Wis. 611, 47 N. W. 946, it was ruled:
“A note signed by a sister because of threats by the payee to prosecute her brother for a crime, and in order to avoid such prosecution, cannot be enforced against her by such payee. It is immaterial that the threats were not made directly to the sister, if they were intended to be communicated to her and were so communicated. ’ ’
The case of Giddings v. Iowa Savings Bank, 104 Iowa, 676, 74 N. W. 21, is quite like the one we have for consideration. In that case a creditor charged his debtor with being a defaulter in respect to a mutual business trust, and threatened him with a criminal prosecution and imprisonment unless he and his wife would execute a mortgage on their homestead to secure the amount of the default. The husband communicated the threat to his wife, and under the duress of her fears excited thereby she executed the mortgage. The evidence of this secondary communication, although that of the husband, was received and held proper. We disagree, however, with that case in one particular. We do not believe that the husband was a competent witness to prove the communication to his wife of the threats which had been made to him. However, the point raised by counsel, and which we have thus far considered only, does not concern the competency of the testimony by which the secondary communication was proved, but it concerns the question whether the communication must be direct, or whether it may be secondary or otherwise more re mote. Upon that question the case cited is an authority.
The case of Schultz v. Catlin, supra, intimates that, in order to the reception of the evidence of threats secondarily communicated, there must be a specific design in the mind of the threatener that the communication should be made. In this we do not agree, but believe that the general rule which holds a wrongdoer liable for the consequences which naturally and reasonably follow his act applies in such case as it does in other and analogous ones. It also appears in that case, and likewise in Giddings v. Iowa Savings Bank, supra, that the reception of the evidence of the secondary communication was rested somewhat upon the theory of an implied agency in the one to whom the threats were made to act as a medium of communication to the third person. Without holding to the contrary of such theory, we are persuaded that the better ground upon which to rest the rule of admissibility of the evidence is the one which we have above stated.
Counsel for plaintiff in error strenuously object to a portion of Mrs. Hutchinson’s testimony, because, as they say, it was given in violation of the statute which prohibits husband or wife from testifying to communications which one of them has made to the other. The testimony to which objection was made was, in substance, that the witness heard that her husband was threatened with a criminal prosecution and sentence to the penitentiary; that in consequence she became alarmed and disturbed in mind and overpowered in will, and executed the mortgage on her homestead to avert the threatened calamity. During the examination in chief of Mrs. Hutchinson, the trial court, upon objection, carefully excluded from the jury all of her testimony tending to show a communication to her by her husband. Nothing but the bare fact that she heard of the threats and the effect they produced upon her mind and will were allowed to go to the jury in the first instance. Counsel for plaintiff in error, upon their cross-examination, developed the fact that the story she heard of the threats was a communication from her husband, and they then moved to exclude that part of her testimony from the jury. This motion the court denied. Did the testimony thus elicited upon cross-examination justify the exclusion from the jury of the bare statement, made on direct examination, that she had heard of the making of threats against her husband?
"We have given much thought to the question, and are entirely convinced that the rulings of the trial court were correct. No case involving the precise point has been called to our attention by counsel for either side, nor have we, with research, been able to find a case in point. The question, therefore, appears to be one of first impression, and, in the lack of precedent, to be determined upon reason. The witness did not, upon her direct examination, testify to any communication from her husband. She testified only to a fact — a fact which' might have been learned (although such was not the case) from others than her husband. "What she stated was not as a communication from her husband, but as a fact, to wit, the story of the threats. The testimony thus far was unobjectionable. Could it be made objectionable by a cross-examination disclosing the sources of the wife’s information? Clearly not. To do so would have withdrawn from the consideration of the jury all testimony as to the cause of the making of the home stead mortgage, and would have left the witness’s testimony as to a motive for that action without any rational explanation. All that would have been left of the witness’s testimony would have been that she made the mortgage and the state of mind in which she made it. A single word beyond that, to show that her state of mind was induced by a story of threats against her husband, would be, in the theory of counsel for plaintiff in error,- incompetent and objectionable, provided the story was heard from the husband. That theory is not sound; it is not supported by any fair interpretation of the statute.
The statute forbids the testimony of husband or wife as to conversations between each other, but the bare statement of a wife that she heard that her husband was to be arrested is not the statement of a conversation. She is entitled to go that far in explanation of the inducement to her action. The substantive litigated question in the case was whether the wife heard an alarming story as to her husband; not the words in which the story was told, nor that it was told to her by her husband. A litigating party cannot deprive his antagonist of the right to prove that substantive fact by showing that the information as to it came from the husband. A statement of the matters testified to by the witness in question, and necessary to be proved, put in the logical order of their development at the trial, shows this :
“Q,ues. Did you make the mortgage in suit? Ans. I did.
“Q,. Why did you make it? A. Pwas overcome by the fear that unless I did my husband would be arrested and imprisoned.
“Q,. Why did you have jsuch fear? A. I heard that lie was accused of a crime and threatened with a prosecution.”
This was as far as the witness went upon her direct examination. According to counsel for plaintiff in error, a single question and answer upon cross-examination, although nowise going to the making of the mortgage or the reasons for the making of it, destroys the pertinency of the witness’s testimony as to those matters:
‘ ‘ Q,ues. Prom whom did you hear that your husband was threatened?
“Ans. I heard it from him.”
If thereupon the testimony of the witness as to the fact that she had heard of the threats were to be withdrawn from the jury, the benefit of the whole probative connection between cause and effect would be lost, and a necessary link in the chain of proof be destroyed. The statute is not to be so strictly construed and enforced as to produce such a result.
A daughter of the Hutchinsons testified that she overheard the conversation between her father and mother, in which the former disclosed to the latter the threats which Morris had made. Counsel for plaintiff in error also contend against the admissibility of this testimony, upon the ground that it was hearsay in character. and also that its reception was an evasion of the above-mentioned statute declaring the inadmissibility of evidence of communications between husband and wife. Neither of these contentions is sound.
There were three substantive litigated questions in. the case: (1) Were threats made? (2) If so, were they communicated to Mrs. Hutchinson? (3) If so, did they produce the claimed effect? As to the second of these, as well as the first, the meritorious question was: Had a verbal act been done — that is, had a communication been made? That act, if done, was not incidental or collateral in nature. It was one of the three principal litigated matters in the case, and, being such, the performance of the act was provable by the testimony of any one, who, if competent, was a witness to it. The question was not whether Hutchinson’s communication to his wife was truthful, but it was whether the communication had been in fact made. The rule is general that where a substantive litigated fact is the speech of a person, one who heard the utterance is admitted to testify to it, and the testimony so received is not hearsay. Mr. Wharton, in his work on Evidence, volume 1, section 254, quite epigrammatically summarizes the rule by saying: “Hearsay is admissible when the issue is hearsay.” He then further says : “It may happen that a question at issue is whether certain things were said at a particular time, independently of the truth of what is thus said. If so, proof that such things were said is admissible, though hearsay.” The same rule is declared in quite similar language in Taylor on Evidence, volume 2, section 578. It is a general rule in the law of evidence that when the inducing cause of the action of a person is the subject of inquiry, the information upon which he acted may be stated, although it consists of the speech of third persons. A familiar illustration of this rule is afforded in cases of defense against assaults. It is always admissible in such cases to show the making of threats by those who overheard them, and their communication to the defendant, upon the strength of which he armed himself and resisted the assault of his antagonist.
As to the second, objection to the reception of the young woman’s testimony, that its admission violated the statutory rule of incompetency, but little need be said. The statute is confined to the class of testimony which it in terms forbids, and it extends to nothing beyond. It forbids husband and wife from testifying to communications made by one to the other, but it does not forbid a third person who overheard the conversation from stating it to the court. In State v. Center et al., 35 Vt. 379, and Robert Allison v. Peter Barrow, 3 Gold. (Tenn.) 414, and Gannon v. The People, 127 Ill. 507, 21 N. E. 525, 11 Am. St. Rep. 147, third persons were permitted to testify to communications overheard by them between husband and wife. In these cases the communications were in the nature of confessions or admissions against interest, but that did not constitute the ground upon which the testimony was received. If the statute prohibits such kind of testimony, it prohibits it upon the ground of the confidential con jugal, character of the communication, irrespective of whether the disclosure of the communication by the one who overheard it would make for or against the party.
The young woman, Miss Hutchinson, was permitted to detail a conversation between herself and her mother concerning the communication of the threats which the husband and father had just made. This was not proper, but, on the other hand, it was not harmful and does not constitute reversible error.
The Valley State Bank and the Bank of Hutchinson joined in a cross-petition in error against the plaintiff in error, Bank of Chatham. The error complained of is the refusal of the court below to adjudge a title in them to the section of land that was conveyed by Welch, the cashier of the Valley State Bank, to Mrs. Hutchinson, and by her and Hutchinson mortgaged to the plaintiff in error to secure $6000 of Hutchinson’s indebtedness to the plaintiff in error. It is claimed that this judgment should have been rendered, and that, as to the Valley State Bank and the Bank of Hutchinson, the mortgage to the plaintiff in error should have been held void. This claim is based upon the fact that George L. Morris, the president of the plaintiff in error, knew at the time of the conveyance by Welch to Mrs. Hutchinson that the land belonged to the bank, and knew that Welch held the title to it as a trustee only, and also the further fact, as claimed, that the Valley State Bank received no consideration for the conveyance which Welch made. The findings of the jury in relation to these matters are material to be stated. They are as follows :
“15. Was the only consideration for-the deed from John J. Welch to Anna P. Hutchinson the transfer to the Valley State Bank of the $10,000 Valley State Bank stock owned by W. E. Hutchinson and held by Morris as collateral and the second mortgage on section 8 and notes herewith? Ans. Yes.
“16. What was the fair market value of section 3, township 26, range 7, on or about the 6th day January, 1896? A. $6544.”
“26. Did not Hutchinson give the Valley State Bank for said section 3, in controversy, a hundred shares of the stock of said bank and notes executed by himself and wife to the amount of ten thousand three hundred and sixty dollars ($10,360), securing same by a second mortgage upon the section 3 in controversy? A. Yes.
“ 27. Was not the securing by Hutchinson of his other indebtedness to the bank a part of the consideration that caused the transfer of said section 3 to Mrs. Hutchinson by Welch? A. Yes.”
“ 29. Did George L. Morris have any knowledge or notice what the consideration was that Mrs. Hutchinson gave the Valley State Bank for this section 3 in controversy? A. No.”
“31. Did George L. Morris have any knowledge or notice of the consideration, if any, that Mr. Hutchinson was to give or did give for the conveyance of this section 3 in controversy? A. No.”
“33. Did the Valley State Bank, in its settlement with Hutchinson, obtain from him security for his indebtedness to the bank? A. Yes.
“ 34. Did Ralph Thompson, as president of the bank, record the mortgage securing the ten thousand three hundred and sixty dollars of notes given by Mr. and Mrs. Hutchinson to the bank as part of the purchase-price of the section 3 in controversy? A. Yes.”
“37. Did not the Valley State Bank subsequently sell and assign for a valuable consideration to the Bank of Hutchinson the notes they had received from Hutchinson and wife as part of the consideration for the conveyance of this section 3 to Mrs. Hutchinson? A. Yes.
“38. Did not the officers and directors of the Valley State Bank, at the time it made this sale and assignment to the Bank of Hutchinson, have full knowledge of the facts and circumstances under which the bank obtained the notes and mortgages thus transferred and sold? A. Yes.
“39. Did not the Bank of Hutchinson or its officers have full knowledge of the facts and circumstances under which the Valley State Bank had obtained the notes and mortgages from Hutchinson, as set out in their answer and cross-petition, at the time and before they purchased them from the Valley State Bank? A. No.”
“42. Did the Valley State Bank or the Bank of Hutchinson or any one else ever return or offer to return to W. E. Hutchinson or wife all the consideration given by them for the purchase of section 3 in controversy? A. No.
“43. Was it not part of the consideration that Hutchinson gave for this conveyance of section 3 to his wife that he would resign as president and secure his other indebtedness to the bank? A. Yes.
“44. Did not Hutchinson resign from the bank as its president and give the bank security for his other indebtedness to it? A. Yes.
“45. Was not the conveyance of this section 3 to Mrs. Hutchinson, and he and his wife giving notes aggregating ten thousand three hundred and sixty dollars ($10,360), and Hutchinson transferring his hundred shares of stock and his resignation as president of the bank, and his giving security for his other indebtedness to the bank all one and the same transaction, considered and completed at one and the same time? A. Yes.”
“51. Did not the Bank of Hutchinson file answer and cross-petition in this suit on the notes given in the Valley State Bank as part of the purchase price of this section 3 in controversy? A. No.”
In addition to the above findings, there are some which establish the correctness of the contention of the cross-petitioners that Morris knew that the land belonged to the bank and not to Welch. It is not necessary to quote them. The last-mentioned findings, however, did not establish the whole of the cross-petitioners’ case. The claimed fact that the Hutchinsons paid no consideration to the Valley State Bank for the conveyance of the land must likewise be established; but as to that the cross-petitioners have failed. The above-quoted findings show, contrary to the contention made, that the Hutchinsons did pay a consideration .for the land; and they furthermore show, what is perhaps of equal importance, that, irrespective of the ignorance of the directors of the Valley State Bank concerning the conveyance at the time it was made, and their consequent ignorance of the claimed ultra vires act of Welch in making it, or his fraud in making it, they ratified the act of making It. Findings Nos. 26 and 27, above quoted, show that the Hutchinsons paid a consideration for the conveyance of the land, and findings Nos. 37 and 38 show that the directors of the Valley State Bank, with full knowledge of all the facts and circumstances under which it obtained the consideration paid by Hutchinson, sold and transferred such consideration to the Bank of Hutchinson. In the face of all this, it is not possible to uphold the contention of the cross-petitioners.
It is claimed that, so far as the transfer by Hutchinson to the Valley State Bank of the stock held by him in that institution was concerned, it was void because of the lack of power in a bank to purchase its own stock, and the case of German Savings Bank v. Wulfekuhler, 19 Kan. 60, is cited as decisive of the proposition. Without undertaking to determine the applicability of the law announced in that case to th¿ facts of this one, but conceding its applicability, the transfer of the stock was not the only consideration paid. It might also be admitted that the resignation of Hutchinson as president of the bank was not a valid consideration for the transfer of the land to him, and it might also be conceded, for argument’s sake, that the giving by him of security for his preexisting indebtedness to the bank was not a sufficient consideration. Conceding all that, there still remains the fact, as found by the jury, that Hutchinson and his wife executed to the bank, as a consideration for the transfer of the land, their notes amounting to $10,360, and secured such notes by a second mortgage on the land. These were the notes and this was the mortgage which the Valley State Bank, instead of returning, as it should have done if it desired to repudiate the transaction, kept, after its directors, its board of governing authorities, became possessed of full knowledge of the transaction, and which, after acquiring such knowledge, it sold and transferred to the Bank of Hutchinson.
It is no sufficient answer to say that the Hutchinsons were insolvent and unable to pay the purchase-price of the land as represented by their notes and mortgage of $10,360. They were not known tobe insolvent so as to justify the charge that the bank officials knew that they were getting nothing for their land. The fact by no means appears that they were insolvent, but on the contrary it appears, by transactions had a short time thereafter between Hutchinson and his wife, that the former was possessed of a considerable amount of personal property, estimated at about $9000 in value, which he transferred to his wife, but which in her hands was liable to the payment of the notes as well as in his, because the notes were signed by both of them. It appears, too, by the finding of the jury, that at the time the second mortgage on the land was given it was worth several hundred dollars more than the first mortgage, notwithstanding the remarkably low estimate of value placed upon it by the jury.
Subsidiary and minor claims of error are made by both the plaintiff in error and the cross-petitioners in error. We have given careful consideration to all of them. None of them is availing. The judgment of the court below will therefore be affirmed as against both the complainants in error. | [
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Opinion by
Strang, C.:
Action on two promissory notes, and to foreclose a lien on real estate. October 17, 1889, the case was tried by the court, a jury being waived, which made the following findings of fact and conclusions of law:
“1. On the 14th day of March, 1887, and prior thereto, the defendant M. H. • Baker was the legal and equitable owner of the following-described lands in Elk county, Kansas, to wit: The northwest quarter of the southwest quarter of section 17, and the north half of the northeast quarter of section 18, and the southeast quarter of section 7, and the southwest quarter of section 8, all being in township 29 south, of range 12 east; that on said 14th day of March, 1887, the' defendant M. H. Baker contracted with the plaintiff to put in and upon said above-described lands certain improvements, a windmill and attachments therefor, and do certain labor in and about putting in said windmill on said lands, and furnishing the material and machinery therefor; that in pursuance of said contract and agreement the plaintiff, the Phelps & Bigelow Windmill Company, a corporation, furnished the 'material, machinery, and fixtures, and performed the labor in and erected a windmill on the lands above described, and fully completed the same on the 18th day of April, 1887. The defendant M. H. Baker executed and delivered to the plaintiff, as part consideration for such improvement made by the plaintiff as aforesaid, the two promissory notes described in plaintiff’s petition, and the said notes are due and unpaid.
“2. Thereafter, on the 1st of June, 1887, the defendant Baker and wife conveyed the lands aforesaid to the defendant A. T. Bush, which deed was duly recorded in the office of the register of deeds in Elk county, Kansas, on the 29th day of June, 1887.
“3. On the 5th day.of July, 1887, the plaintiff filed its lien in the office of the clerk of the district court of Elk county, Kansas, a true copy of which is attached to the plaintiff’s petition; and that said lien was filed within three months from the furnishing of said material, machinery and fixtures and improvements, and performing the necessary labor in erecting the windmill upon the lands above described, by plaintiff, for defendant Baker.
“4. The court further finds, that said material, machinery, and fixtures, and the labor done and performed by the plaintiff in the erection and completion of said windmill, is not such improvements as is contemplated and provided for by the mechanic’s lien laws of the state of Kansas, and, therefore, form no lien on said lands, and that by reason thereof the defendant A. T. Bush took said lands free from all claims; to which last finding the plaintiff at the time excepted and excepts.
“ 5. The court further finds, that the defendants and each of them have been served with summons as provided for by law in the state of Kansas, and that there is due the plaintiff from the defendant M. H. Baker the sum of $356.15 on the notes set out, and that said notes bear interest, at' the rate of 10 per cent., from maturity until paid. The court further finds, that the notary public before whom the plaintiff at tempted to verify his statement for the mechanic’s lien failed to add to his official signature the date of the expiration of his commission as such notary public; that for said reason the aforesaid attempted mechanic’s lien ’is void as to A. T. Bush. [To which finding the plaintiff excepts.]
“It is, therefore, considered, ordered and adjudged by the court, that the plaintiff, the Phelps & Bigelow Windmill Co., have and recover of and from the said defendant M. H. Baker the sum of $356.15, and that the judgment draw 10 per cent, interest from date; and it is further ordered and adjudged by the court, that the defendant A. T. Bush recover his costs herein, taxed at $22.65; to which further finding of fact and judgment of the court the plaintiff at the time excepted and excepts.”
Upon the above findings and conclusions, judgment was rendered in favor of the plaintiff against Baker for the amount of the notes. But the court refused a judgment foreclosing the lien, and gave judgment for A. T. Bush, owner of the land, for his costs. Motion for new trial was overruled, and the case brought up,for review.
The first matter discussed by the defendant in error in his brief is the objection to the consideration of the case by this court, for the reason that all the parties in the case in the court below are not made parties in this court. The plaintiff in its petition alleged that W. C. Newcomb and A. L. Bush claimed some interest in the land described in the petition, the extent and character of which was unknown, but which it was alleged was inferior to the rights of the plaintiff therein. Neither of such defendants answered, nor in any way appeared in the case in the court below. Having been properly served and not appearing, it is presumed that the court found that they had no interest in the land upon which the plaintiff claimed a lien, and this presumption is sustained by the court’s conclusion of law that “A. T. Bush took the lands free from all claims.” If the said defendants were found to have no interest in the lands they are not necessary parties here, and there is no objection to the consideration of the case because they are not parties in this court. (National Bank v. Ridenour, 46 Kas. 707, 718; 27 Pac. Rep. 150.)
Two questions on the merits of the case challenge the attention of the court here. The improvement for which a lien was claimed in this case was made while § 630 of the code, ¶ 4447 of the Compiled Laws of 1885, was in force. The language of said section, so far as material in this case, reads as follows:
“Any mechanic, or other person, who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perform labor or furnish material for erecting, altering or repairing any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attached to any such building or improvements — shall have a lien,” etc.
Is the plaintiff entitled under this section to a lien upon the land upon which it was erected, for furnishing the machinery and other material and erecting a windmill for use on said land in raising water for stock and other farm purposes? We think an improvement of the kind for which the lien is claimed in this case is within the statute. It certainly is an improvement erected upon the lands, and as useful and valuable as many other improvements, such as fences for restraining stock, corn cribs for storage of corn, and granaries for the safe-keeping of grain, which are admittedly within the statute. Windmills are sometimes placed upon the top of some of the farm buildings, but are more generally placed upon a derrick, or tower, to which they are fastened, the derrick, or tower, at the same time being securely bolted to posts that are let into the ground to a depth sufficient to hold firmly in place the tower and windmill, so that the tower and mill are as firmly attached to the soil as a corn house, granary or other building erected on posts let into the ground. It is also an improvement that adds largely to the value of the land, by enabling the owner thereof to secure and distribute a supply of water for stock, thus adding to the value of the land for grazing purposes. The principle upon which a lien is given for improvements upon land is that it adds to the value thereof. The plaintiff erected this improvement upon the land while it was owned by the defendant Baker, who after-wards sold the premises to Bush. Is there any doubt but that the mill passed to Bush as a part of the realty when the land was conveyed to him, and without any reference thereto in the descriptive part of the deed? We think not. The supreme court of Nebraska, under a statute quite like ours, held that the windmill, with tauk, pump, etc., “constitutes an appurtenance,” and was thus within the Nebraska statute. See, also, the case of Lumber Co. v. Water Co., 48 Kas. 182, 187, and cases there cited; 29 Pac. Rep. 476.
In the absence of any agreement that the mill and other necessary material employed in its erection shall remain personal property when erected upon the land and attached thereto, it becomes an improvement or appurtenance, within the meaning of our statute, for which a lien may be had thereon if the proper steps are taken in time to secure it.
The court below found as a fact that the notary public before whom the affidavit vei’ifying the lien was made failed to state after his official signature the time when his commission would expire, and upon such finding the court held, as a matter of law, the lien was void. We do not think such omission on on the part of the notary renders the lien void. The statute requiring such addition on part of the notary does not attempt to avoid the affidavit taken by the notary on account of such omission. It simply subjects the notary to a penalty therefor. The omitted matter constitutes no part of the affidavit, nor of the jurat thereto. It is a statutory requirement to be observed by the notary for the purpose of making the instrument show that the notary taking the affidavit is still in commission and with power to do so.
The cases cited from the Missouri reports by the defendant in error do not seem to be applicable. Our statute is broader than the Missouri statute, and the cases cited mostly refer to improvements upon leasehold property.
We think the court erred in its conclusions of law, and recommend that the judgment thereof be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an appeal from the
board of county commissioners of Osage county in allowing damages to the plaintiff in error on account of a public road laid out through his premises. The appeal came on for a hearing at the June, 1887, term of the district court of said county. Before the case was called, the parties entered into the following agreement:
“ It is hereby agreed between the parties hereto, that the questions to be determined by the jury shall be, is the road, as ordered and located by the board of county commissioners over and along the plaintiff’s land, of public utility? If found by the jury in the affirmative, then the question of the plaintiff’s damages by reason of the location of said road shall be submitted to them upon evidence to be introduced before them. But if the jury shall determine said question in the negative, then the judgment of said court, shall be, that the order of said board of county commissioners ordering and locating said road, and ordering said road survey and plat to be recorded, and ordering the trustee to open said road for public travel, shall be set aside, and that the defendant pay the costs of this suit.”
The case was heard under this agreement, and the jury found in the negative, that the road was not of public utility. Afterward, on its own motion, the court set aside said finding, of the jury, on the ground that the court had no jurisdiction over the question. At the following November term of said court, the case was heard upon the question of damages and a verdict was returned for the plaintiff in the sum of $375, the exact amount allowed by the commissioners. Plaintiff filed a motion for a new trial, which was heard at the April, 1888, term, and allowed. The case was again tried at the following June term, resulting in a verdict for $378.70 in favor of the plaintiff. A motion for a new trial was again filed by the plaintiff, which was overruled, and judgment rendered in favor of the plaintiff for $378.70, and that the defendant recover costs. The judgment as to costs was based upon the fact that there was on file among the papers of the case an offer of the defendant confessing judgment in favor of the plaintiff for the sum of $500, a sum greater than the amount found by the jury in his favor. The plaintiff objected to the judgment as to costs, and offered to prove that he was not in court when said offer was made and knew nothing of it till afterward, and then only what he had heard out of court, and did not,know it had been filed in the case; that he had had no opportunity to accept or reject the offer. The court overruled his objection, and refused to allow th^ plaintiff to make the proof offered.
The first question argued by the plaintiff in error in his brief is, that the court erred in setting aside the finding of the jury that the road was “not of public utility.” It is conceded that the court had no jurisdiction over that question, unless such jurisdiction was obtained by force of the agreement of the parties to submit the question to the court. And this court has decided that, on an appeal, in a case like this, in the absence of an agreement attempting to confer jurisdiction, the only question the court has jurisdiction to determine or to submit to the jury is, the amount of damages the appellant is entitled to. (Briggs v. Comm’rs of Labette Co., 39 Kas. 90.) The statute of our state has conferred upon road viewers and the board of county commissioners power to determine whether or not a proposed public road is of public utility; and we do not think parties by an agreement can take this power from the tribunals with which it is lodged by the statute and confer it on the district court. A public road usually affects the lands of more than one person, and the rights of travel of many persons. It would hardly be the proper thing to permit a single land-owner, by an agreement with the board of county commissioners, to confer jurisdiction on the district court that every one knows the statute has lodged elsewhere. Jt would be unfair to the other persons interested in and whose rights are affected by the question whether or not the proposed road is to be established.
A further contention of the plaintiff in error is, that the court erred in refusing, all through the trial, to allow the plaintiff to show, as an element of damage, what it would cost to keep up or in repair the new fences necessitated by the opening of the road through his land. In the case of Comm’rs of Dickinson Co. v. Hogan, 39 Kas. 606, a case like this, the court said:
“ In such a case, the proper elements of damages are whatever tends to make the land of less value after the location [of the road] than it was before, which may include additional fence, its repairs, separating the land, inconvenience of going from one tract of land to another separated by such road, and the like.”
The court also says in this case:
“ The fact of the land being separated by a public road, the ■disadvantage of maintaining and keeping up fences, the open ing of gates and crossing from one part of the land to another* for the purpose to which the land was used and adapted, are all proper elements to be considered by the jury.”
In the light of this case, and upon the general principle that whatever tends to make the land of less value constitutes an element of damages, we think the court erred in excluding evidence as to what it would cost to keep necessary new fences in repair.
The court instructed the jury that it might take into consideration the value of the title to the land over which the road was laid, and also the use of such land, for the purposes for which he might use it other than as a public road, in diminution of the damages suffered by the plaintiff. This instruction was given without any evidence in the case upon which it could be based, and was ¿for that reason, we think, error. There was no evidence in the case, and none offered, to prove the value of such title, nor the value of such use of the land over which the road was laid. The plaintiff objected to that part of the judgment relating to the costs, on the ground that he had no knowledge of any offer of judgment having been made, and offered to prove to the court that he was not in court when the offer was filed in the case, and had had no notice of it. The court refused to listen to proof on the subject, and entered judgment against the plaintiff for the costs. We think this was error. The mere fact of such an offer having been filed with the papers in the case is not sufficient to authorize the court to render judgment against the plaintiff for costs, especially when the plaintiff protests that he knew nothing of such an offer in the case, and offers to make proof of that fact to the court. A paper containing such an offer is not like a pleading, the filing of which imparts notice. But our statute points a way in which an offer confessing judgment may be made so as to save costs to the party making it, if the judgment obtained on the trial is not for a greater sum than the amount offered. Under ¶4622, General Statutes of 1889, if the defendant or his attorney serve a written offer to compromise on the defendant, and he refuses to accept, he must pay all costs accruing subsequent to the offer, unless on the trial he recover a judgment for a sum larger than the amount so offered. Paragraph 4627, same statutes, provides that after an action for the recovery of money is brought, the defendant may offer in court to confess judgment for a part of the amount claimed, and if the plaintiff is present in court when the offer is made, or has had notice that the offer will be made, and of the time when it will be made and the amount thereof, and fails on the trial to recover a judgment for an amount greater than the sum confessed, he shall pay all the costs of the defendant incurred after the offer.
It will be seen that each of these paragraphs requires notice of some kind to the plaintiff of the offer, to render him liable for the costs of the defendant accruing subsequent to the offer, if he fails to recover a judgment for a sum larger than the amount of the offer. Under the first paragraph cited, a written offer must be served upon the plaintiff to render him liable for such costs. Under the latter paragraph, he must either be present in court when the offer is made or he must have notice thereof, to render him liable for costs. If he is present in court, and the attention of the court is called to the offer at the time it is made, that will be sufficient. But it will not be sufficient, even if the plaintiff is present in court, to file a written offer with the clerk of the court, without calling the attention of the court or plaintiff or his attorney in the suit thereto. If this was the only error in this case, this court could modify the judgment, by directing the court below to hear the plaintiff on the question of his knowledge of the offer to confess judgment in the case, and retax the costs if the court should find in his favor. But as the case must be reversed on other grounds and go back for new trial, such trial can be had in accordance with the views herein expressed.
It is recommended that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, O.:
The material facts are, that in 1880, William Johnson, the defendant in error, settled upon and preempted the southwest quarter of section No. 21, township 32,«range 9 west of the sixth principal meridian, in Harper county. His settlement and preemption were made in accordance with linesj boundaries and corners as fixed by the original government survey, made in 1871. Spawr, the plaintiff in error, is the owner of the southeast quarter of section No. 20, in the same township and range. The subject-matter of the litigation is a strip of land 13 rods wide, east and west, and 160 rods long, north and south, which Johnson claims as a part of his quarter-section. According to the original government survey, this strip of 13 acres belongs to Johnson ; but it is claimed that in the year 1884, the proper land officers ordered a resurvey of the land in that locality, and this survey is called the Tweedale survey, and by it this strip belongs to Spawr, the plaintiff in error.
The question is, Which of these two surveys shall govern — the original, or the survey made 13 years after by Tweedale? There is substantial agreement as to the facts. At the time of the first settlements all witnesses agree that many of' the section and half-section corners established by the survey of 1871 were plainly visible. It is established that at the time Johnson took his land there was a government corner plainly visible at the southwest corner, one at the northwest and one at the southeast corner of the section in which his land is situate. His final certificate and patent were issued with reference to the lines, boundaries and corners of the survey of 1871. This survey had been approved by proper authority and cer tified to the local land office. Under these circumstances, it seems too plain for argument that Johnson is entitled to the land. After the government parted with its title and it had been vested in the settlers, no officer of the land department had the right to order or approve a resurvey that changed the boundaries of the specific parcels of land to which the various settlers had title, in the absence of any claim or showing that fraud had been practiced by them or some one in their interest. Section 2396 of the revised statutes of the United States provides: “The boundary lines actually run and marked in the surveys returned by the surveyor general shall be established as the proper boundary lines of the sections oi*subdivisions for which they were intended.” This section was in force at the time Johnson preempted his land and his patent was issued, and gives him a clear legal right to insist on the existing lines and boundaries as established by the original survey.
Another view can be taken, and that is that the location oi the corner stones is a question of fact about which there was some conflict in the evidence, and the trial court having decided in favor of Johnson, and there being some evidence to sustain the finding, we will not disturb it. It seems to us from the recitations in the record that the weight of evidence was with Johnson at the trial.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The result of this proceeding depends upon the proper construction of the contract of lease made February 5, 1883, between the owner of the land, H. L. Sage, and Alexander Bras and Charles Bras.
The Bras brothers entered into the possession of the land under the lease, and together cultivated and operated it for about two years. Afier that time Alexander left the farm and engaged in another occupation, and did not subsequently contribute anything toward either rent or taxes. He seems to have abandoned the land and the lease, and left his brother Charles to carry on the farm and carry out the contract. In the month of September, 1886, a new contract was made between Sage and Charles Bras, with the consent of Alexander, which was the same in every respect as the first, except that it omitted the name of Alexander Bras and made Charles the sole lessee, and the only one who could exercise the option to purchase the land at the expiration of the lease. At that time, Sage made an agreement, which was indorsed on the back of the lease, that if the rent was paid when it became due he would reduce it to $120 per year, the lessee to pay the taxes.
If the contract originally made cannot be considered as a sale and transfer of the land, then Alexander Bras acquired no equitable title therein, and no part of the same can be subjected to the payment of the judgments against him. An inspection of its terms shows that it is an ordinary lease for a period of five years, at the annual rental of $144 and the taxes that may be levied against it. It was expressly stated that the taxes were to be paid as rent, and it was also provided that the renters should surrender the possession of the premises at the end of the term in as good condition, usual wear excepted, as they were in when the lease was made; and that upon the nonpayment of any rent when due the owner might declare the lease at an end or distrain the rent due, and notice of demand for the possession of the premises in such case was waived. At the end of the lease is the stipulation that the renters had the right at the expiration of the lease to purchase the premises at the price of $1,200, provided they elected to do so, and, in case they elected to purchase at that time, that the owner would make a good and sufficient title, warranting to such purchasers the premises, except taxes and tax titles.
It will be seen that the renters made no agreement to purchase the land at the end of the term, nor were they under any obligation to purchase at that time. There was no completed contract of sale upon which Sage could ask for specific performance, and the renters could have surrendered the premises at the end of the lease without violating the contract. All payments under the contract were to be paid as rent, and not as purchase-money. It is true that the owner of the land had offered and agreed that the renters might have the privilege of purchasing at the end of the five-year period; and this agreement was probably binding upon him; that is, he was bound that the offer should be open and available to the renters at the end of the rental period; but the unaccepted offer had no binding force upon them. They had an option to purchase, which they were at liberty to accept or not at the end of the lease, but the fact that they made a contract' for an option did not constitute a sale nor vest in them any title or interest beyond what was acquired under the lease. Until they had elected to accept the offer made by Sage, and had paid or tendered the purchase-price stipulated in the contract, there was no sale or transfer of the title. (Tied. Sales, §§33, 41.)
The case of Hawralty v. Warren, 90 Am. Dec. 613, is relied upon, but is no authority on the turning point in this case. It was there héld that an optional contract to convey-land, made upon proper consideration, might be enforced; but there, the party to whom the option had been given had elected to purchase, and had offered to pay the purchase price within the stipulated time. Here, Alexander Bras, against whom the judgment sought to be enforced was rendered, never at any time elected to purchase, but had abandoned the lease and the land, and left the country, long before the time to purchase had arrived. In fact, these proceedings were begun before the rental period had expired. Before the time when the parties were to avail themselves of the privilege of purchasing, the rights of Alexander Bras under the contract had terminated, and the owner had made a new contract with Charles Bras; but neither Alexander nor Charles Bras had elected to avail himself of the option before the commencement of this action, and Alexander Bras has never done so, and has no equitable title to the land in controversy.
The judgment of. the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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-122,
-12,
11,
-69,
41,
38,
98,
0,
117,
-1,
92,
-40,
12,
-37,
-115,
-90,
-107,
88,
-94,
64,
-76,
-99,
85,
80,
-89,
126,
-26,
21,
-100,
124,
0,
-113,
-42,
-93,
15,
120,
-110,
0,
-13,
39,
49,
113,
-49,
-114,
76,
69,
114,
-109,
-113,
-40
]
|
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