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Opinion by
Gbeen, C.:
The plaintiffs in error sued the defendants in error in justice’s court in Wyandotte county for the sum of $ 183, upon an account for groceries sold and delivered to them. At the time the suit was brought attachment proceedings were also instituted, upon the ground that the defendants were about to remove and dispose of their property, with the intent to hinder and delay their creditors, and levied upon a general stock of groceries.
Upon the day set for the trial of the case before the justice, the parties appeared, and a motion was made to discharge the attachment. This motion was heard by the justice, upon affidavits and oral evidence offered by the respective parties. After hearing the evidence, the court overruled the motion to discharge the attachment, and gave judgment in favor of the plaintiffs for the amount claimed. The trial occurred on the 12th day of November, 1888. Three days thereafter the defendants in error had a bill of exceptions allowed, signed, and filed, and made a part of the record of the justice of the peace.
On the 17th day of November, 1888, the defendants instituted proceedings in error in the district court to reverse the ruling of the justice in refusing to discharge the attachment, and filed with their petition in error the original bill of exceptions, containing certain affidavits and oral evidence given upon the motion to discharge the attachment. A motion was afterward filed by Long Bros, asking that^ the proceedings in error be dismissed, upon the ground that no transcript or true bill of exceptions had been filed with the petition in error. Leave was obtained by Eroman & Webb to withdraw the bill of exceptions and substitute a certified transcript, which was done, the successor of the justice of the peace certifying to the same. The motion to dismiss the proceedings in error was then overruled by the district court.
The petition in error was heard in the district court as upon motion, and was sustained, and an order entered discharging the attachment in justice’s court, to which the plaintiffs in error excepted, and now ask that the order of the district court discharging the attachment be reversed.
It is urged: 1. That no true bill of exceptions was attached to the petition in error.
2. That no proper proceedings in error from the justice of the peace to the district court were commenced in-time and in the manner required by law; and that the district court erred in permitting the plaintiffs in error in that court to amend their petition in error by detaching the original bill of exceptions and attaching a transcript with a certified copy of the original bill of exceptions.
3. That the district court erred in reversing the order of the justice of the peace in the attachment proceedings, because some of the evidence was oral.
These assignments of error we will consider in their order.
Our attention is first called to the fact that the bill of exceptions was allowed, signed and filed without submitting the same to opposing counsel for suggestion and amendment; and that it did not show by any indorsement thereon that it was ever filed anywhere.
It has long since been held that a bill of exceptions may be allowed and signed for one party in the absence of the other, and without notice to the other party, though such power should be exercised with great care and prudence. (McClure v. M. R. F. S. & G. Rld. Co., 9 Kas. 373.)
A^ reference to the record discloses the fact that the justice made the following entry upon signing the bill of exceptions:
“On this 15th day of November, 1888, the defendants presented their bill of exceptions in this case, which was by me allowed, filed, and made a part of the record.”
This we think is sufficient to show that the bill of exceptions was properly filed in- the office of the justice of the peace, and fully answers the first objection.
It is next urged that no proper proceedings in error were instituted within the time required by the statute, and that the district court should have sustained the motion to dismiss the case, and that the amendment permitting the plaintiffs in error in the district court to detach the original bill of exceptions from the petition in error and attach a transcript from the justice’s court, with a certified copy of the original bill of exceptions, to the petition in error, should not have been allowed.
The petition in error was filed in time, and we think the district court had the power to grant the amendment; and we cannot, as a reviewing court, say that it abused its discretion. This court allowed a similar amendment in the case of L. N. & S. Rly. Co. v. Whitaker, 42 Kas. 634.
The last objection we shall consider is that, the district court erred in reversing the order of the justice of the peace sustaining the attachment. It is claimed, that because there was oral evidence, the district court could not review the decision of the justice of the peace. In this case the evidence was in the shape of affidavits and some oral testimony, and we think we can safely assume that all of the evidence was embodied in the certified copy of the record and the bill of exceptions. It is stated that all of the evidence is set out in the record.
We have carefully read the evidence as embodied in the record, and we cannot say that the district court erred in reversing the judgment of the justice of the peace. Reviewing courts will not ordinarily weigh conflicting oral evidence ; but where the evidence is such as to satisfy a reviewing court that the attachment ought not to be sustained, and it so decides, we do not feel justified in reversing such judgment when in our judgment it is sustained by the evidence.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Error from court of appeals, northern department.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by W. H. Howard, as trustee, to recover possession of a stock of merchandise from A. Morisette, sheriff of Cloud county, who had seized it as the property of the Clyde Mercantile Company, at the instance of the creditors of that company. After the action was.begun Fannie L. Holman intervened, and alleged that she had previously purchased and paid for the merchandise, and was the actual owner and entitled to the possession of the same. The creditors of the mercantile company, through the sheriff, claimed that the sale of the goods to Holman was fraudulent as against them, and was made by the company without power or authority lawfully exercised, and, therefore, was- invalid. The trial resulted in a verdict in favor of the purchaser, and is in effect a finding that the sale was made in good faith and for a sufficient consideration.
The honesty of the transaction was decided by the jury and is no longer open to question, but chere is a contention that the mercantile company had no power to transfer property, and that, if it had, the power was not exercised in a legal and effective manner. The stock of goods, business, and good-will, which constituted the entire assets of the corporation, were sold to Holman for $3000 in money, payable in instalments, and also for certain real estate in Kansas City, Mo., known as the “Ramsey flats,” upon which there was a mortgage. It is argued that the transfer of the entire assets and good-will of the corporation would disable it from continuing the business for which it was organized, and that the attempt to do so is ultra vires, and void. It is also contended that the acceptance of real property in consideration of the transfer, as well as the holding of the same, are not within the purposes for which the mercantile company was organized. Our / statute, which is only declaratory of the common law,/ provides that a corporation shall not employ its stock,/ means, assets or other property for any other purpose than to carry out the objects for which it was created.; (Gen. Stat. 1899, § 1243; Gen. Stat. 1897, ch. 66, § 23.) The mercantile company was organized for the purpose of buying and selling merchandise at retail, but that does not preclude the company from disposing of its property and closing out its business, if it be done in good faith and not for the purpose of delaying. or defrauding its creditors. (The State, ex rel., v. Irrigating Co., 40 Kan. 96, 19 Pac. 349.)
Counsel cite a number of cases to the effect that a corporation cannot abdicate its corporate functions or relieve itself from carrying out the object of its creation by a transfer of its entire property, or by otherwise disabling itself from performing corporate duties. The doctrine of these cases is applicable to corporations established for guasi-public purposes, such as railroads and other companies having the right of eminent domain and other extraordinary privileges, but it has no application to corporations of a strictly private character, like the one in question. (H. & G. M. Co. v. H. & W. M. Co. et al., 127 N. Y. 252, 27 N. E. 831; Treadwell and another v. Salisbury Manufacturing Company and others, 7 Gray, 393; Howe v. Boston Carpet Co., 16 Gray, 493; Alexander Hodges v. New England Screw Company et al., 1 R. I. 312; Evans v. Boston Heating Co., 157 Mass. 37, 31 N. E. 698; 27 A. & E. Encycl. of L. 387.)
The mercantile company exercised no powers of a public nature, and. a sale of its property and a retirement from business did not contravene public policy or affect the public in any way. It does not appear that the mercantile company obtained the real estate with a view of carrying on a real-estate business, but, on the other hand, that the mercantile business was unprofitable and the stockholders desired to wind up the affairs of the company by a sale and transfer of the business, and the real estate was taken in part payment and as a step in the closing up of the corporate business. It appears to have been done in good faith, with the consent of the stockholders, and we see no reason why a mere trading corporation, like this one, may not close up its business in the manner pursued in this instance. The money consideration of the sale was used in paying creditors of the corporation other than those now contesting; but it has been held that a corporation has the same dominion and control over the disposition of its assets and property as a partnership or an individual, and may make any honest disposition of them ; and also that it has the same power and right to prefer its creditors that a partnership or an individual has. (Plow Co. v. Rude, 60 Kan. 145, 55 Pac. 848.) Under the general finding of the jury, it must be assumed that the company and its agents acted in good faith in making the sale, and also in taking real estate in exchange for the goods, not as an investment, but as the most advantageous way of disposing of an unprofitable business and closing it up with the least possible loss.
The next contention is that the power of transfer was not lawfully exercised. While the corporate records of the board of directors authorized the sale of the goods, it appears that a formal meeting of the board was not in fact held. There was an individual assent of 'the directors reported to be present at a meeting, and there were also the acquiescence and assent of the stockholders and those representing them. The act which they undertook to perform was within the power of the corporation. It was informally done, but the informality was cured by the ratification of the stockholders, who were the owners of the corporate property and had the ultimate authority and control. On the face of the records there was express authority by the board, which appeared to be regularly conferred, and Holman, the purchaser, in the absence of knowledge or_ notice to the contrary, had a right to assume that the record correctly recited the facts, and that the authority was formally given at a meeting of the board. Aside from these considerations, the transaction had been completed, the money had been paid, the property had changed hands ; all having been done with the knowledge and consent of those in whom the ultimate authority rested, and from whom the board of directors derived its power, the transaction, however irregular, is not open to attack by any one other than the state. (Building Association v. Martin, 39 Kan. 750, 18 Pac. 941; Town Co. v. Swigart, 48 id. 292, 23 Pac. 569; Town Co. v. Morris, 43 id. 282, 23 Pac. 569; National Bank v. Shumway, 49 id. 224, 30 Pac. 411; Town Co. v. Fletcher, 46 id. 524, 26 Pac. 951; Railroad Co. v. Johnson, 58 id. 175, 48 Pac. 847; Bank v. Provident Institution, 59 id. 361, 53 Pac. 131; Parkinson v. Bank, 60 id. 474, 57 Pac. 126.)
Fannie L. Holman was the real party in interest, and the action of the court in allowing her to intervene and set up her rights in the premises was proper. It was competent for her to show that she was the sole party interested in the purchase, and that her husband, who had acted for her in making the purchase, paid no part of the consideration and had no interest in the property.
The measure of damages stated by the court, and to which an objection is made, appears to fall within the rule announced in Carson, Sheriff, v. Golden, 36 Kan. 705, 14 Pac. 166, and furnishes no ground for reversal.
An attempt has been made to raise questions on instructions requested but which were refused. It appears that the requested instructions were not signed as the code requires. It is provided that such instructions be reduced to writing, numbered and signed by the party asking them, and delivered to the court. (Gen. Stat. 1897, ch. 95, §285; Gen. Stat. 1899, §4538.) 'This is a plain provision of the code and cannot be safely overlooked. The failure to give a requested instruction not signed as the statute requires is not assignable as error. (Douglas v. Geiler, 32 Kan. 499, 4 Pac. 1039; Tays v. Carr, 37 id. 141, 14 Pac. 456; Craig et al. v. Frazier et al., 127 Ind. 286, 26 N. E. 842; Texas & Pac. Ry. Co. v. Mitchell, 26 S. W. [Tex. Civ. App.] 154.) Our examination of the requested instructions satisfies us that, even if they were open to consideration, they would furnish no grounds for reversal.The charge of the court fairly presented the case to the jury, and we see no reason to disturb the verdict or judgment. | [
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The opinion of the court was delivered by
Johnston, J.:
John Kornstett was charged with and convicted of the murder of his cousin, Nora Kornstett, and the severest penalty of the law was adjudged against Mm. In substance, the information charged the appellant with having attempted to ravish his cousin, and that then, with deliberation and premeditation, he choked and beat her and struck her head against a tree with great violence, and that afterward he threw her body into a well about twenty feet deep, all with intent to kill and murder her, and that the wounds and injuries so purposely and feloniously inflicted caused her death. When taken before a magistrate for preliminary examination, he entered a plea of guilty, and subsequently, when the information was filed and he was arraigned before the court, he again entered a plea of guilty of the charge alleged. Subsequently he was brought before the 'court and was fully informed of the penalty for the crime charged against Mm, and was asked whether he desired to change his plea of guilty which had previously been entered, and in response to the inquiry he insisted that the plea of guilty stand. About a week after that time, an application was made to withdraw the plea of guilty, which was granted by the court; and later, when arraigned again, he stood mute and re-' fused to plead, and upon the order of the court a plea of not guilty was entered for him.
1. Preliminary examination - proceedings construed as a waiver.On this appeal the first contention is that he had no preliminary examination, and that his plea in abate ment should have been sustained". The docket entries magistrate recite that he was afforded an opportunity for a preliminary examination, when he entered a plea of guilty and was bound over for trial in the district court. In the plea which was filed he admitted that he was taken into a room, and that there were present officers and other persons, whom he did not know; that papers were read to him and proceedings were had which he did not understand, and which he did not fully remember. Other matters were alleged as to the locking of the doors and the fear of mob violence, and that he did not know that what he said or did there would be construed as a waiver of his right to a preliminary examination; but, upon the whole, we think that the defendant was offered a preliminary examination, and that reasonable notice was given to him in regard to the nature and character of the offense charged against him. “For the purpose of authorizing a final trial and requiring the defendant should plead to the merits of the action, all that is necessary is that the defendant should be given a fair opportunity to know by a proffered preliminary examination the general character and outlines of the offense charged against him.” {The State v. Bailey, 32 Kan. 83, 3 Pac. 769.)
The second error assigned is that the information charged murder in the first degree in two different forms, and on that ground a motion to quash was made. In the first part of the information an attempt to ravish is alleged, but it is not stated that the attempt to ravish caused her death. All the facts and circumstances from the first assault and attempt to ravish to the throwing of the body into the well are set out at con siderable length in the single count of the information. It appears to have been a single and continuous transaction, and although murder had been charged in briefer and general terms, proof of all that occurred there was competent and must necessarily have been •brought out upon the trial. The defendant was not prejudiced by the fullness of the averments, and we think there was no such duplicity in the information as to make it obnoxious to the motion to quash.
The showing made upon an application for a change of venue did not warrant the court in granting it, and the fact that some of the persons who were drawn as jurors were served with process on Sunday, and that they were excluded from the court-room while others were being examined as to their qualifications to sit as jurors, did not disqualify them for jury service, nor in any way prejudice the rights of the defendant.
It is next contended that incompetent jurors served upon the jury after having been challenged for cause by the defendant. The one who approached most closely to- the line ox m- ° competency was J. W. Means. He had read newspaper accounts of the killing of the girl and of the charge that the defendant had killed her. He testified, among other things, that at the time he had accepted and assumed the statements which he read and heard to be true. However, upon final examination, he stated that he had not formed or expressed an opinion as to the guilt or innocence of the defendant, and had then no definite opinion on the question; that what he had read and heard had created no more than an impression — such an impression as one gets from reading a newspaper statement. Fixed and positive opinions disqualify (The State v. Start, 60 Kan. 256, 56 Pac. 15), and not mere impressions obtained from newspaper reports, slight and fugitive in character, which do not indicate a condition of mind that precludes a fair and impartial examination of the facts as presented in the testimony. (The State v. Medlicott, 9 Kan. 257.) We cannot expect to find intelligent jurors who have not heard or read of such an offense when committed in the community in which they live; men who are wholly void of information and entirely unimpressed by a report of the tragedy. A fair-minded person who, from rumors and newspaper reports, has gained only light impressions from what he has heard and read, and which will not weigh in the consideration of the testimony, is not within the prohibition of the statute excluding those who have formed or expressed an opinion on the issue or material facts to be tried. (Gen. Stat. 1897, ch. 102, §208; Gen. Stat. 1899, §5455.) When the oral argument was concluded we had grave doubts as to the competency of this juror, but a reading of the whole examination satisfies us that his condition of mind was such that he would fairly consider the case, and that when the statutory tests were applied he was not disqualified.
Proof of' confessions made by the defendant was received in evidence over his objections, and upon these rulings error is assigned. About the time of his arrest he was closely questioned by the sheriff, who believed the defendant was connected with the commission of the offense, and before admitting his guilt he was told that some of his prior statements had been found to be untrue. He finally acknowledged his guilt to the sheriff, giving the circumstances in considerable detail, and he afterward repeated the confession to a number of other persons. He knew that suspicion was directed toward him, and that there was considerable excitement in the community because of the brutal character of the crime, but the sheriff, to whom the confession was first made, testified that it was not given by reason of any threat made or promise held out. While the defendant claimed that he was induced by the pressure of fear and hope to make the admission, the sheriff states that he told the defendant that he believed the defendant knew who committed the offense, and that he would better tell all he knew about it; that if he was guilty it would be better for him to admit the truth, and that if he was innocent he should stick to it regardless of the suspicion against him, and that he, the sheriff, would protect him. It is claimed, and the defendant testified, that hope was held out to him that the punishment for the offense would be confinement in the reform school or reformatory, but this is expressly denied by the sheriff, although he does state that in response to an inquiry by the defendant he explained to him the character of those institutions. It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. However, mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent. According to the testimony of the sheriff, the confession was admissible ; and the fact that the defendant confessed so freely and frequently to others at different places and times and under varying circumstances appears to sustain the sheriff.
Complaint is made of rulings of the court in charging the jury. In one instruction the jury were bold that “the state is relying partly on what is known as circumstantial evidence,” and in another part of the charge the court spoke as though both' direct and circumstantial evidence had been submitted to the jury. It is contended that the testimony was wholly circumstantial, and that the assumption that there was direct evidence was misleading and prejudicial. While the classification of the testimony was of little consequence in this case, it can hardly be said that the confessions made were to be treated as circumstantial evidence. They are direct in the sense that the information is communicated by the defendant himself, who has actual knowledge of the facts. Circumstantial or presumptive evidence is that which shows the existence of one fact by proof of the existence of others from which the first may be inferred. The defendant here had actual knowledge of his connection with the killing of the girl, and his statement went directly to the main fact to be established. In another part of the charge, where the court was describing the elements of the crime, the disjunctive “or” was used between the words premeditation” and “deliberation,” but in the connection in which it was used it could not be misleading, as the whole charge set out in particular the ingredients of the offense, and instructed that the jury could not convict the defendant unless all were established to the satisfaction of the jury and beyond a reasonable doubt. Many instructions were requested which were not given, but those given so completely covered the case that there are no good grounds for complaint.
No error was committed by the court in declining to instruct the jury on murder in the second or any of the lower degrees of the crime. The charge of the court should be applicable and limited to the facts in evidence. The court is never required to state rules of law, however correct in the abstract, which have no relevancy to the case before it. The testimony in the present case shows beyond question that the defendant was either guilty of murder in the first degree or innocent. If his own statement, so frequently made, is true, he is guilty of murder in the first degree; if it is not true, he should be acquitted. This was the view taken by the court, and it is one which is fully justified by the testimony.
Another objection is made to the sentence, which required that the defendant be confined in the penitentiary for a period not less than one, year, and until the death-warrant was signed, when he should suffer death. The defendant was less than sixteen years of age when the offense was committed, and the statute provides that ‘ ‘ whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail not exceeding one year, instead of confinement and hard labor, as prescribed by the preceding provisions of this act.” (Gen. Stat. 1897, ch. 100, § 367; Gen. Stat. 1899, § 2253 ; Crimes Act, § 299.) It is argued that the words “any felony,” used in the section quoted, mean every felony, and necessarily include murder in the first degree, or any other degree, and that therefore the only punishment which could be imposed on, the defendant was confinement in the county jail not exceeding one year. There can be little doubt about the interpretation of the provision. The statute expressly provides that persons convicted of murder in the first degree» shall suffer death, and that was the punishment imposed by the sentence in this case. The punishment provided in the quoted section is a substitute for confinement and hard labor as prescribed by the preceding provisions of the act; and as confinement and hard labor are never imposed as punishment for murder in' the first degree, it would seem clear that it is not one of the felonies the punishment for which is “prescribed by the preceding provisions of this act.” The statutory provisions were borrowed from the Missouri code, and the supreme court of that state, in construing the provisions, said :
“This section seems capable of but one construction, and that is to require imprisonment in a county jail as a substitute for imprisonment in the penitentiary where such offenses as were punishable by imprisonment in the penitentiary have been committed by a youth under sixteen. A felony punishable by death is not within the meaning or letter of the statute.” (The State v. Barton, 71 Mo. 288; The State v. Adams, 76 id. 355; The State v. Schmidt, 136 id. 644, 38 S. W. 719.)
The subsequent statutory provision, enacted in 1872, which provides that a person sentenced to the penalty of death shall not be executed until the time is fixed for his execution by the governor, and requiring him to be confined in the penitentiary until the death-warrant is issued, does not operate to repeal the statute prescribing punishment for murder in the first degree, Nor does it modify the sentence of the law. {The State v. Crawford, 11 Kan. 32.) The latter statute, chapter 166, Laws of 1872, is in the nature of a statutory direction to the warden as to the execution of the sentence, and not a modification of the penalty which the law imposes. (In re Dyer, Petitioner, 56 Kan. 489, 48 Pac. 783.)
The sufficiency of the evidence is challenged, but on that question there is no trouble. In our view, it abundantly sustains the verdict, and an analysis of the same is not necessary. Some other objections are urged which do not seem to require special attention, and we find nothing in the record which would justify the setting aside of the verdict or the reversal of the judgment. The judgment is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is a proceeding in error from an order refusing to confirm a sale of real estate and from an order sustaining a motion to set aside the sale, and it involves a consideration of some of the provisions of the act of 1893 providing for the redemption of real estate from execution or judicial sale. (Gen. Stat. 1897, ch. 95, art. 22; Gen. Stat. 1899, §4742, et seq.)
In' 1895 the Long Bell Lumber Company recovered a judgment against the Cherokee Mining and Smelting Company. Subsequently it caused the issuance of sale process and the sale of certain real estate belonging to the judgment debtor. At this sale one Edward E. Wells became the purchaser. Soon thereafter the sale was confirmed and the sheriff directed to issue a certificate of purchase in accordance with the act of 1893. Soon after this sale and confirmation the plaintiff in error, George A. Case, recovered a judgment against the Cherokee Mining and Smelting Company, and soon after that time the company named assigned its right of redemption of the land sold under the Long Bell Lumber Company’s judgment to one Rollin Steward, and also executed to him a warranty deed therefor. Shortly before the expiration of one year from the time, of the before-mentioned sale to Wells in the suit of the Long Bell Lumber Company against the Cherokee Mining and Smelting Company, Rollin Steward, as owner of the right of redemption, redeemed the land from the sale, and soon thereafter he executed a conveyance of such land to the defendant in error herein, The Cherokee Lanyon Spelter Company. Subsequently the plaintiff in error herein, George A. Case, caused an execution to issue on his judgment against the Cherokee Mining and Smelting Company, and caused another sale of the land which had been sold under the previous judgment of the Long Bell Lumber tCompany, and from which first sale Steward, as stated, had made redemption. At the sale thus procured by Case he became the purchaser of the land. The Cherokee Lanyon Spelter Company, the owner of the conveyance from Steward, moved to set aside the sale to Case, while he in turn moved to confirm it. The motion to set aside was sustained ; the motion to confirm denied. From these orders Case has prosecuted error to this court.
The plaintiff in error was a subsequent judgment creditor of the Cherokee Mining and Smelting Company Under the provisions of the redemption act, a judgment debtor, or his assignee of the right of redemption, is given a preferred right within the first twelve months after the sale to redeem. For the next three months creditors in the order of priority of their liens are allowed the right of redemption. The main proposition of counsel for plaintiff in error is that a purchaser at an execution or judicial sale has, during the period allowed for redemption, only a lien upon the land for the repayment of the purchase-money, and that in this case the redemption of the land by Steward, the assignee of the judgment debtor, from the sale under the prior judgment of the Long Bell Lumber Company, made, as it was, prior to the time when the right of his client to redeem accrued, and which thereby prevented his client’s right of redemption, was a simple discharge of the prior purchase-money lien, and left the land subject to the subsequent judgment lien; in other words, that it was a discharge of a lien and not a redemption of land. This is not his language, but it is the point his argument would establish.
The assertion of the claim thus made is preceded by some subsidiary propositions, such as that the redemption act is to be strictly construed, and the rights claimed under it are to be strictly pursued; that the object of the redemption law is to apply the debtor’s lands as far as possible to the payment of his debts; that statutory redemption rights are not conferred for the benefit of the prior sale creditor, but for the benefit of the debtor and junior encumbrancers; that the right of Rollin Steward, as assignee of the Cherokee Mining and Smelting Company's right of redemption, became merged in the conveyance of the legal title made to him by such company, etc,
A right to redeem from a sale of real estate is purely statutory. It does'not exist at common law. Courts of equity, in justifiable cases, may grant in their decrees of sale something akin to the right, but the power thus exercised is apart from the one conferred by the statute under consideration. In the case before us the statute, after authorizing sales of real estate upon legal process, confers upon certain interested classes of persons a right of redemption from the sale, and it also points out the mode and time of the exercise of the right, and in addition thereto declares the effect to follow the sale and the allowance of the right. In this last particular it is unlike the statutes of other states upon which the decisions cited by counsel for plaintiff in error are based. It is altogether likely that, in the case of a statute which merely authorizes the sale of real estate, and merely gives a right of redemption from the sale without prescribing the effect of the sale and the allowance of the right, the consequence of the exercise of the right would only be to free the land from the prior judgment or other lien upon which it was sold, and thus give place to subsequent liens; but if the statute which authorizes the sale and gives the redemption right likewise declares the effect of the sale and allowance of the right, that effect, and it alone, may be allowed. Our statute— section 23 of the originally published act — reads as follows (Gen. Stat. 1897, ch. 95, § 542; Gen. Stat. 1899, §4764):
“Real estate once sold upon order of sale, special execution- or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.”
It thus appears that real estate once sold shall not again be sold for the satisfaction of inferior liens. This statute is not only positive, but it is plain down to the concluding clause. The land shall not again be sold for the satisfaction of inferior liens “under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.”
It will be remembered that within the twelve months allowed by the statute to execution debtors and their assignees of the right of redemption, Steward, the assignee of the Cherokee Mining and Smelting Company, redeemed the land from the sale. This exercise of the right of redemption by Steward prevented Case, the plaintiff in error, from exercising his like right as a subsequent lien-holder. Before the time for the exercise of his right had accrued redemption had been effected by the one to whom the preferred right had been given. From this, counsel for plaintiff in error argue that their client did not have a right to redeem, and, therefore, by the concluding clause of section 23, was not excluded from the right to procure a resale of the land for the satisfaction of his judgment. In this, counsel are mistaken. What is meant by the right to redeem is the right in the contingency and under the conditions allowed by the act. The phrase “right to redeem” is not synonymous with “oppor tunity to redeem.” The plaintiff in error had the right to redeem contingent upon the failure of a preferred class of persons to redeem. The exercise of that preferred right defeated .the right of plaintiff in error, but it did not destroy his contingent right as allowed by law. The language of section 23 of the redemption act, “ judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for,” was doubtless used to distinguish between liens of such grade and those still more inferior which might become inchoate upon the land within the final three months allowed, to the judgment debtor for redemption by him.
Suppose a judgment against the debtor should be rendered within the final three months mentioned, or suppose the debtor within that time should give a mortgage upon the land, and before the expiration of the final limit should himself redeem from the sale, neither this judgment creditor nor this mortgagee would have a right of redemption, but they would have a lien which should be discharged. Their right to a sale of the land in satisfaction of their liens should be preserved, and it is preserved by the section of the act quoted. This act excludes a resale by creditors who had a right of redemption within the prescribed time, though they may.not have acquired the opportunity to exercise it, but it does not restrict the right of resale by creditors who had no right of redemption at all.
As before stated, the cases cited by counsel for plaintiff in error are cases in which the effect of a sale and the allowance of a redemption right were not prescribed by statute. Where such effect is not thus prescribed, it may be that upon common-law principles a redemption, so called, from sale either by the judgment debtor or his assignee should be given no other effect than the payment of a lien. It was so ruled in Curtis v. Millard & Co., 14 Iowa, 128, 81 Am. Dec. 460. In that case it was held: “The failure of a subsequent judgment creditor to redeem the land of the debtor from sale under a former judgment does not render his judgment lien inoperative against the debtor or his grantee, in the event neither should redeem within the time allowed by law.” The sale was had in that case under the provisions of the Iowa statute providing for the sale and redemption óf real estate. (Code, Iowa [1851], § 1924, et seq.) That statute, however, did not contain any provision similar to section 23 of our redemption act, nor did it contain any provision declaring the effect of a redemption upon the rights of subsequent lien-holders.
Our conclusion is that the orders of the court below refusing to confirm the sale and ruling that the sale should be set aside were correct and should be affirmed. They are affirmed. | [
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Original proceeding in mandamus.
Writ denied. | [
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The opinion of the court was delivered by
Johnston, J. :
This proceeding brings up for decision the sufficiency of the service of a summons attempted to be made upon a railway corporation. In 1886 the Le Roy & Caney Valley Air Line Railroad Company constructed a railroad through "Wilson county, and at the same time constructed depots at ¡various points along the line, one of which was at jthe city of Fredonia, in Wilson county. When the ; railroad was constructed it was leased to the Missouri ? Pacific Railway Company, together with all sidings, depot buildings, and other property belonging to the railroad company, for a term of forty years, and the Missouri Pacific Railway Company immediately entered into the possession of the property and has continually operated it ever since that time.
An action was brought against the Le Roy & Caney Valley Air Line Railroad Company in Wilson county upon a judgment against the company previously recovered in New York. A summons was issued, and the sheriff in whose hands it was placed returned that he had served the same by leaving a certified copy thereof at the depot of the company, at Fredonia, with E. E. Munger, who was in charge of it. It was agreed, however, that Munger was not in the employ of the Le Roy & Caney Valley Air Line Railroad Company, but was in the employ of the Missouri Pacific Railway Company, and that he never was in the employ or under the direction and control of the Le Roy & Caney Valley Railroad Company. While the last-named company maintained an organization in the state, it had no officers or agents in Wilson county, and was not in possession of or operating any line of railroad in the state, and was not doing business in the state, unless the mere fact that it was the lessor of the line of railroad, as above set forth, shows that it was doing business in the state. There is a further stipulation that it had never designated any person in Wilson county on whom process could be served.
It is contended that, under sec. 68c of the civil code (Gen. Stat. 1897, ch. 95, § 69 ; Gen. Stat. 1899, § 4317), service on any one in charge of a station which was built and is owned by the company is sufficient to bind the company. The section cited is to be read and interpreted in connection with the two sections immediately. preceding, as they are a part of the same act and relate to the same subject. In section 68a (Gen. Stat. 1897, ch. 95, § 68 ; Gen. Stat. 1899, § 4315), it is provided, in substance, that every railroad company doing business in Kansas, or having agents doing business therein for the. company, is required to designate some person in each county through which its railroad runs or its business is transacted on whom process and notices may be served. In section 68b (Gen. Stat. 1897, ch. 95, §68; Gen. Stat. 1899, §4316), it is provided that a certificate of the appointment of the person so designated shall be filed in the office of the clerk of the district court, and that service on such person shall be deemed to be effectual and complete. In section 68c if is provided that, if any company fails to designate such person as required, process “ may be served on any local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of such company or corporation in such county, or such process may be served by leaving a copy thereof, certified by the officer to whom the same is directed to be a true copy, at any depot or station of such company or corporation in such county, with some person in charge thereof of in the employ of such company or corporation, and such service shall be held and deemed complete and effectual.” It is obvious from the language employed that these provisions relate only to companies and corporations doing business within the state. A service upon the officers or agents enumerated is to be made upon the officers and agents of a company doing business in the state; and a service by leaving a copy at a depot or station of “such” company or corporation certainly contemplates the depot or station of a company or corporation doing business in the state, and which is in charge of some person connected with or employed by the company.
It is stipulated that the defendant company was not doing business in the state, unless the fact that it was the lessor of the railroad shows that it was doing business. The mere fact that it had executed a lease to another company for a term of forty years and had surrendered the possession of the road and all of its property, and was not engaged in the operation of any railroad in the state, is strong evidence that it was not doing business in the state. Apart from this view, however, we think the statute contemplates that the summons shall be left at a depot or station occupied by the company, and with some person in charge thereof for the company or who is in the employ of the company. Evidently it was the purpose of the legislature that notice of the institution of an action should be brought to the attention of some one connected with the business operations of the company. A summons left at a depot occupied by another company or by a stranger would hardly serve as a notice to the defendant company which had neither possession nor right of possession to the depot or the railroad, and which was not engaged in operating a railroad or any other business within the limits of the state. Reasonable notice is essential to the maintenance of an action, and certainly the legislature did not intend that notice served on one corporation or person should be regarded as notice to a different corporation or person. The words “depot or station of such company” fairly mean the building used by the company as its depot or station; and the words “with some person in charge thereof” mean some person in charge thereof for such company; and the words *1 or in the employ of such company or corporation ’ ’ mean in the employ of such company or corporation, whether in charge of the depot or not.
In our view, jurisdiction of the company was not obtained by the service that was made, and therefore the judgment of the district court will be reversed, and the cause remanded with directions to sustain the motion of the defendant to set aside and vacate the service of summons. | [
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The opinion of the court was delivered by
Ellis, J.:
The plaintiff in error insists that the statute of limitations had run against plaintiff’s action before this suit was instituted, and having raised that issue in his answer in the court below, he now assigns the failure of the court so to find as one of his principal grounds of error. We do not think the position is tenable. The evidence shows, and the court below found, that the plaintiff widow had no notice or knowledge that the apparently formal and businesslike offer and undertaking of Samuel Brown to buy the farm was, in fact, but a rehearsal by him of a farce, until after the death of her husband. The representations then and there made by Samuel Brown constitute the fraud complained of. It does not appear, and is not vitally important, to what extent Van Voorhis Brown participated in the fraudulent intent of Samuel, though the court below found that he joined in the effort to procure the deed, knowing that the pretended consideration of $4500 was not to be paid by his brother. Of course, the widow knew that the deed was delivered in 1894, but at that time she believed, and had a right to believe, that her brother-in-law had bought the farm. Afterward, when he announced that he would give up the farm, in view of the relationship of the parties, we think she had a right to assume that no attempt would be made to assert title under the deed, and that the same would be surrendered or destroyed. Be that as it may, she had no notice or knowledge that the conversation had in her presence and the words spoken by her brother-in-law constituted but the enactment of a play to deceive her, until she was suddenly and ruthlessly apprised of it in a most heartless and un feeling manner, at a time when she was grief-stricken and bowed down with a much greater affliction. Within a few hours after her husband had been laid in his grave she was told that she and the child were paupers ; that the position of affluence which her husband had occupied, and which she had aided in establishing, was but a myth; that the property which she had helped to earn and save by industry and frugality belonged to others ; and that, instead of being the widow of a well-to-do Kansas farmer, she was a beggar woman with a child in her arms, dependent upon her husband’s family for the means to return to her relatives in Pennsylvania. Then for the first time she learned that she had been ensnared and deluded. Then the fraud was discovered, and until that time the cause of action had not accrued. (Gen. Stat. 1897, ch. 95, §12; Gen. Stat. 1899, §4262.)
Error is assigned because the case was tried in the court below at the same term that the issues were finally made up. It appears, however, that the issues had been made up long prior to such term, although amendments were made at the same term at which the cause was tried. Under these circumstances, it was not error for the court to call the case for trial at such term. (Rice & Floyd v. Hodge Bros., 26 Kan. 164.)
Mrs. Chapman, a witness offered by the plaintiffs below, was permitted to make the statement that Emaline Brown told her that the farm had been deeded to Samuel to prevent it from going out of the family, and to get it out of “her” hands, referring, presumably, to the wife of Van Voorhis. Emaline Brown was a witness for the defendant below, but no proper foundation was laid for impeachment. As a witness, she claimed, at the time the case was tried, to be the owner of this land, and that after the action was commenced her son Samuel conveyed it to her. Both she and Samuel, in their testimony, claimed it had been conveyed to Samuel by Van Voorhis and wife in consideration of the original $3000 advanced to her son, and that Samuel had taken title for her benefit. In the conveyance to her, made while this action was pending, a recital to that effect was made. According to her contention then, as well as that of the defendant below, she was the real party in interest, and it is well settled that the admission of a real party in interest is admissible as against a nominal party. (1 A. & E. Encycl. of L. 179, and cases cited ; 1 Greenl. Ev. 180; 1 Phill. Ev. 486; Hansen v. Parker, 1 Wils. 256; Barber’s Adm’r v. Bennett, 60 Vt. 662, 15 Atl. 348, 1 L. R. A. 224.)
Alma Harrison was a witness for plaintiffs below, and testified to conversations had with Emaline Brown, and also with Joseph Brown, in relation to the ownership of the farm after it was bought and the title of it placed in the name of Van Voorhis. In effect, she testified that they told her that the farm belonged to Van Voorhis. As to Emaline Brown this testimony was admissible, for the reasons last above given, and as to Joseph Brown, his attention w'as called to the matter while he was upon the stand, and proper foundation was laid for it, and it was admissible for the purpose of impeachment.
One Friesting was permitted to testify to the fact that Van Voorhis at one time paid to his father Joseph a large sum of money which Van Voorhis had received from the sale of products of the farm. Other witnesses also testified to similar transactions between Van Voorhis and his father. Indeed, it was made to appear that the father acted as banker for his son. Friesting’s testimony was admissible because it bore upon the question, if it was a question, as to whether Van Voorhis had repaid to his father and mother the money advanced, with which he had bought the farm, and, also, because the father claimed that he had paid the taxes upon the land, and, irrespective of the question as to whether a conspiracy.was established between the father, mother .and Samuel to defraud the plaintiff widow, it was competent to show the real method of doing business which had been pursued between these different members of the same family. A sufficient foundation was laid for the testimony of these witnesses while Joseph Brown was upon the stand.
It is also insisted that the widow was not competent to testify to the conversation between Samuel Brown and her husband, Van Voorhis Brown, under sections 322 and 323 of the civil code. (Gen. Stat. 1897, ch. 95, §§333, 334; Gen. Stat. 1899, §§4585, 4586). She did not testify to any communication had between her husband and herself. She was a competent witness to testify to a conversation had between Samuel Brown and her husband. (National Bank v. Beard, 55 Kan. 773, 42 Pac. 320; Pulsifer v. Arbuthnot, 59 Kan. 380, 382, 58 Pac. 70.)
The contention of counsel for plaintiff in error, that the court below erred in refusing to allow the expert witness, Shelley, to be disputed upon a collateral matter, is disposed of by this court in Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739.
Counsel also insist that prejudicial error was committed by the trial court in making special findings of fact without being thereto requested by either party. This court has held : “A court may, of its own motion, in addition to its general judgment, find specially upon all the issues or upon a part of them.” (Farwell Co. v. Lykins, 59 Kan. 96, 99, 52 Pac. 99.)
After the court had made special findings of fact, the defendant below made a written request for additional findings, and the failure of the court to comply with such request is assigned as error. Whatever may be the rule where a court refuses, upon request, to make a finding upon a matter material to the issue, upon which it has not found, there can be no doubt that in this case the failure of the court to make such findings was not error, for the requests were not that the court should find upon matters omitted, but that it should make findings which were antagonistic to those it had already made.
Counsel for plaintiff in error likewise contend that, because Emaline Brown furnished her son the money in the first place with which to buy this farm, she was the equitable owner of it “by virtue of a resulting or implied trust.” In response to this contention, it is sufficient to say that the mother, having given the money to the son with the understanding that he was to buy a farm for himself with it, and having for years thereafter, with full knowledge of what he had done, acquiesced in and approved of the course he had taken, the case does not come within our statute relating to trusts and powers. (Gen. Stat. 1897, ch. 113, §§ 6, 8; Gen. Stat. 1899, §§ 7524, 7526.) In this connection the euurt below found:
“There was no agreement or understanding, oral or written, between Yan V. Brown or his mother or father, or either of them, as to any interest, lien or claim that the said Emaline Brown might have in or upon said land by reason of having furnished the said $3000 with which Van V. Brown paid the purchase-price of said land.”
The case of Kennedy v. Taylor, 20 Kan. 558, to which we are referred, is clearly not in point.
Finally, it is claimed that the child cannot be granted relief in this action, because he could not be affected by a fraud practiced upon one or both of his parents before he was born. The land in question was a homestead; it had not been alienated by the joint consent of husband and wife — the deception practiced upon the wife prevented the conveyance from so operating ; the father was dead, and the child was an heir to that which the father equitably owned at the time of his decease. The land, having been alienated as the result of fraud, should be restored, and the child inherited an interest and was a necessary party to the action.
The findings of the court below fully sustain its judgment, and there was evidence in the case to sustain each of the findings. In the view taken by the court below of the testimony, its judgment was right, and as no material error was committed it must be affirmed. | [
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Appeal from Dickinson district court.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Charles Barker, the father of defendant in error, died intestate, seized of about 146 acres of land. He was a widower, and the defendant in error is. his only surviving child. She is about twenty-seven years old and unmarried. At the time of the death of Charles Barker the land above mentioned was occupied by him as a homestead. His daughter, Nancy A. Barker, resided with him and constituted his family. The question presented is whether the land, which continued to be occupied by the daughter after her father’s death, is subject to sale for the debts of the decedent ? The statutory law is found in the chapter devoted to descents and distributions. We quote:
“A homestead to the extent of 160 acres of farming land, . . . occupied by the intestate and his family, at the time of his death as a residence, and continued to be so occupied by his widow and children after his death, . . . shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the intestate, but shall be the absolute property of the said widow and children. . . .” (Gen. Stat. 1899, §2442; Gen. Stat. 1897, ch. 109, §2.)
“If the intestate left no children, the widow shall be entitled to said homestead ; and if he left children and no widow, such children shall be entitled to the same.” (Gen. Stat. 1899, § 2444; Gen. Stat. 1897, ch. 109, §4.)
“If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the agé of majority, said homestead shall be divided, one-half in value to the widow and the other one-half to the children.” (Gen. Stat. 1899, §2445; Gen. Stat. 1897, ch. 109, §5.)
The constitutional provision concerning homestead exemption reads:
“A homestead to the extent of 160 acres of farming land, . . . occupied as a residence by the family of the owner, . . . shall be exempt from forced sale under any process of law. . . .” (Art. 15, §9.)
It will be seen that both the statute and constitution make the fact conspicuous that the homestead right is for the benefit of the family. During the lifetime of Charles Barker, and while he lived on the land with his daughter, it was occupied as a residence by the family of the owner and was exempt; but upon the death of the owner a different question arises^, rendering it necessary to decide whether defendant in error, although continuing to occupy the land, can hold the same as a homestead free from the debts of her father. In The King against The Inhabitants of Darlington, 4 Term R. 797, 800, the word “family” was defined by Lord Kenyon as follows
“In common parlance, the family consists of those who live under the same roof with the pater familias; those who form (if I may use the expression) his fireside. . But when they branch out, and become the heads of new establishments, they cease to be a part of the father’s family.”
In Koons v. Rittenhouse, 28 Kan. 359, 363, the court said:
“It is the family of the owner, and not merely the owner, who must occupy the homestead; and it is the family of the owner, and not merely the owner, who must occupy the same as a residence. Such are the-requirements of the homestead-exemption laws of Kansas. In many states the homestead exemption is given to the owner who has a family, or to the head of a family; but in Kansas it is given with special reference to the family, and must be occupied by the family as a residence.
“It is said by counsel for defendants that Kansas is the only state which requires both occupancy and residence, and occupancy and residence by the family. We suppose that this is true; and if true, then the decisions from other states, holding that a husband alone may occupy and hold a homestead, could have but little weight in this state.”
In Farlin v. Sook, 26 Kan. 397, 404, it was said:
“The homestead laws apply only to families, and not to single individuals, and apply only where the family occupies the homestead as a residence, and not where the family resides somewhere else.”
While Charles Barker was alive the daughter constituted a family of which he was the head, but after his death there was no longer any head to the family. During Barker’s lifetime, and while his daughter lived with him, the property was impressed with a homestead character, and it could have been sold and conveyed free from the debts of the owner. If the deceased had left other adult children, the homestead would have been subject to partition, and in such case, under the decision in Dayton v. Donart, 22 Kan. 256, upon a division being made, the land would be chargeable with the debts of the deceased ancestor. If an estate is divisible in a case where it is inherited and occupied by more than one adult child of the deceased, and would under such circumstances be chargeable with the debts of the father, it follows logically that when one such child inherits the homestead it immediately loses its homestead character and becomes liable at once for the debts of the decedent. It would also be subject to such debts if occupied by a minor child but for sections 2444 and 2445 of the General Statutes of 1899, above set out. (Shirack v. Shirack, 44 Kan. 653, 24 Pac. 1107.) In Vandiver v. Vandiver, 20 Kan. 501, it was held that the word “children,” used in section 2442 of the General Statutes, supra, includes both adults and minors. The question in that case involved the right of adult children living away from the homestead to inherit any portion of the same upon the death of their father. Such children were determined to have an inheritable interest, but the question of the liability of such interest for the debts of the ancestor was not involved. As heretofore held, when the right to inherit the homestead is in question, the word “children” applies equally to adults and minors ; but when the right to withhold the property from appropriation to pay debts of the former owner is involved, in a case like this, the children of the intestate must be minors, and in such cases the exemption to them extends only to the period when the estate becomes subject to partition under the law — that is, when all the heirs arrive at the age of majority.
We are not called upon to decide, nor do we find that the question has been passed upon by this court, that where the head of a family residing on a homestead loses his wife and children, the right once fixed by law to hold the homestead as against creditors is divested by such circumstance. (See Farlin v. Sook, supra, page 403; Anderson v. Kent, 14 Kan. 207.)
In the present case the defendant in error, prior to the death of her father, had no control of the property she afterward inherited. Her interest first attached upon his death, and being an adult child she took the land divested of its homestead character, chargeable with the debts of the deceased owner.
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
Greene, J.:
It is argued by plaintiff in error that defendant in error cannot recover because he did not apprehend any danger to himself by the useof this jack. We think this contention is without merit. The defendant in error testified that he had frequently called the attention of the foreman to the defective condition of this jack and that they both had tried to remedy it; that the foreman had, on several occa sions, told Mm he would send it in and have it repaired or get a new one. The defendant in error testified that on one occasion he threw it away, or set it aside, and refused to work with it in its then dangerous condition; that the section foreman insisted upon his using it again, promising that he would immediately thereafter send it in and get a new jack, and it was upon this assurance that he was induced to, use it again. He also testified that he would have quit work sooner than have used this jack again, only for the promise made by the section foreman that he would send it in and have it repaired. He also testified that “when the clutches would slip it would give a fellow a tremendous jerk.” Cotteral, another witness, and fellow workman of defendant in error, testified that when it would slip it would unjoint his neck, if he was not watching. The witness Smith, who worked on the section with defendant in error, testified : “When the jack would slip it would hurt a person and give him a hard jerk; it would let a person down all of a sudden, and would generally hurt the back of my neck.” The evidence also showed that there were several complaints of this jack, not because it would drop the weight of the track, but because when it would slip it would hurt the person operating it.
It is also contended by plaintiff in error that, if the defective jack was dangerous, it was obvious, and known to the plaintiff below as well as to the foreman, McDonald, and that, therefore, the defendant in error was bound to exercise extra care and caution to avoid injury. We think that all that the law requires under such circumstances is that a person use that reasonable care to protect himself against such injury which ordinarily prudent men take of their persons when era ployed in a dangerous service of like nature. The plaintiff below testified that when he was hurt he was using this jack as carefully as he could, and there is no evidence in the record to show that he was in any' way negligent in the use of it. The section foreman testified that he was a good man with tools.
It is also claimed by plaintiff in error that the danger arising from this defective jack was so obvious that an ordinarily prudent man would not have used it; that defendant in error cannot recover, and that a promise to repair does not apply to simple appliances. This question has been determined by this court in the case of S. K. Rly. Co. v. Croker, 41 Kan. 747, 21 Pac. 785. In that case Croker was engaged in breaking rock for ballast, using for that purpose a hammer weighing about three and one-half pounds. The handle of this hammer was a green stick, cut from the brush adjoining the track, and was crooked. The defendant in error, Croker, had complained directly to the section foreman about the handle being defective, and the section foreman told him to work with this one as it was, and that he would get him a good handle in a few days. He struck a blow on a limestone rock with the hammer and a small particle of the stone struck him in the eye and destroyed his sight. The court said that the duty of the company was plainly understood to be to furnish reasonably safe tools for doing this kind of work; that this hammer was defective ; that protest was made against its use and a promise given that a new handle would be forthcoming; that this promise was accompanied by an order to go ahead and work with it. The court held: “The railroad company did not exercise that degree of .care required by law, in furnishing proper tools with which to do the work required of the' sec tion men, and was guilty of negligence in requiring the use of defective hammers.” This was certainly .a more simple appliance than the lifting-jack used in this case by defendant in error. On the very day that Puckett was hurt he complained to the foreman about this tool, and the foreman told him to go ahead and repair that'joint, and he would send it in for repair.
It is also contended that the evidence did not disclose that plaintiff’s condition is the result of the second injury. This question was submitted upon sufficient evidence and proper instructions by the court to the jury, who passed upon it and decided against the plaintiff in error. It is, therefore, not a question for this court.
The plaintiff in error also complains that the court erred in refusing to give an instruction submitted by it. We have examined the instructions submitted, and refused by the court, and find that the substance of the instructions asked by the defendant below was correctly given by the court to the jury. We think they fairly stated the law of the case.
The judgment of the court below will be affirmed. | [
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Error from court of appeals, northern department.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
John Lee was prosecuted upon a charge of having driven certain southern cattle into the state which were capable of. communicating Texas fever, during the month of November, 1891, in violation of the General Statutes of 1889. At the trial a jury was waived, and the cause submitted upon an agreed statement of facts, upon which the court found that the defendant was not guilty of the offense charged against him, and accordingly rendered a judgment of acquittal. The state attempts to appeal, and it was agreed that the entire law of the case might be made a question reserved for the purposes of an appeal for the state. t
The defendant calls our attention to the precedents holding that the acquittal and discharge of the defendant terminates the prosecution, and that an appeal by the state cannot be entertained. It is settled that the finding of not guilty and the judgment of acquittal protects the defendant from any further trial and effectually terminates the prosecution. As the litigation on the merits is ended, and the defendant finally discharged, an appeal by the state does not lie, and hence it will be dismissed. (The State v. Carmichael, 3 Kas. 102; City of Olathe v. Adams, 15 id. 391; City of Oswego v. Belt, 16 id. 480; The State v. Crosby, 17 id. 396; The State v. Phillips, 33 id. 100; The State v. Moon, 45 id. 145.)
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
It is contended by counsel for plaintiff in error that since the enactment of chapter 107 of the Laws of 1889 there has been no statute in force in this state authorizing service by publication. This claim is based upon the fact that sections 1 and 2 of that act do not refer to the chapter of the General Statutes of 1868 which they purport to amend. Section 1 begins as follows : “Section 1. That section 72 of the General Statutes of 1868 be and the same is hereby amended so that the same shall read as follows.” Then follow provisions prescribing in what cases service by publication may be had, etc. Section 2 begins : “Sec. 2. That section 73 of the General.Statutes of 1868 be and the same is hereby amended so that the same shall read as follows.” Then follows the requirement concerning the affidavit for publication and what it shall contain.
Chapter 80 of the General Statutes of 1868 relates to civil procedure. That it was the purpose of the legislature, by the act of 1889, to amend said chapter 80 of the General Statutes of 1868 appears to us clear. The title of said chapter 107 of the Laws of 1889 reads as follows :
-“An act relating to the code of civil procedure, and amendatory of sections 72 and 73, and 643, 644, and 646 and 647 of chapter 80 of the General Statutes of 1868.”
Again, section 9 of the same act reads: “Sec. 9. Original sections 72 and 73 of chapter 80 of the General Statutes of 1868 . . . are hereby repealed.” Thus the title to the act and section 9 thereof expressly mentioned chapter .80 of the General Statutes of 1868 as being amended and repealed. The lang-uage of the title of an act cannot be ignored as an aid to determine legislative intent. (Mitchell v. The State, 61 Kan. 779, 60 Pac. 1055.)
The omission of the words “chapter 80,” in sections 1 and 2 of chapter 107 of the Laws of 1889, constitutes the sole ground of attack on the law. The objection is technical in a high degree, and hardly worthy of the extended comment we have made on it. In Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753, it was said:
“The cases in which the courts have been called upon to supply evident legislative omissions by the interpolation of words to complete the sense of the act, and thus harmonize it with the obvious legislative intent, are frequent.”
The affidavit for service by publication was not void for lack of venue. The strict rule laid down in early decisions has been greatly modified and relaxed. In Proffatt on Notaries, section 66 (2d ed.), it is said:
“It is presumed, when no venue is stated, that the affidavit was taken within the jurisdiction of the officer taking the affidavit. So it is held, that the absence of a venue is not fatal to an affidavit, for the important thing is, that it shall appear that the oath was administered by a person authorized to administer the same ; and the omission to state the venue may be aided, when the affidavit is offered to be used in legal proceedings, by the presumption that the officer acted within his jurisdiction, and on a prosecution for perjury, by proof extrinsic to the paper.” (See, also, Feavis v. Cowell, 56 Cal. 588; Young v. Young, 18 Minn. 90.)
An attack is made on the judgment in the second suit, brought on September 13, 1893, by the Farm Land Mortgage and Debenture Company against C. J. Baker, wherein all his rights under the deed from C. W. Smith were cut off by the decree. The plaintiff in error is not in a position to attack the validity or question the regularity of that judgment. After it was rendered, and in 1896, Baker, without objecting to the jurisdiction of the court, filed a motion in the cause and claimed the right to redeem. In the motion no jurisdictional question was raised. On that hearing Baker’s deposition was read to sustain his claim of interest in the property. By this motion he entered his appearance in the cause. (Investment Co. v. Cornell, 60 Kan. 289, 56 Pac. 475.) If he complained of the judgment, he should have commenced proceedings in error to have it reversed.
Again, the court found:
“The deed from C. W. Smith to C. J. Baker was not recorded until seven months and eighteen days after the judgment in said suit No. 7715 was rendered, and was recorded pending the publication of the sheriff’s notice of sale, and only fourteen days before said sale.”
Neither C. W. Smith nor plaintiff in error was ever in possession of the land. Baker, therefore, was a purchaser pendente lite and could obtain no greater rights than his grantor, whose interest in the property had been terminated and cut off by the decree in the foreclosure action. (Smith v. Worster, 59 Kan. 640, 54 Pac. 676.)
There was no error in the proceedings, and the judgment of the court below will be affirmed. | [
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Original proceeding in habeas corpus.
Petitioner remanded. | [
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Error from Leavenworth district court.
Affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an original proceeding in mandamus brought by the city of Leavenworth against the Leavenworth City and Fort Leavenworth Water Company, a corporation engaged in the business of supplying the inhabitants of the city with water. The relief prayed for is the making and filing with the city clerk of an itemized account of the income and expenses of the water company, the names and places of residence of its stockholders, and the number of shares held by each of them. The plaintiff claims that its right to this relief is conferred by section 5 of chapter 82, Laws of 1897 (Gen. Stat. 1897, ch. 39, § 13 ; Gen. Stat. 1899, § 657). The defendant claims that the statute cited is ineffectual to impose on it the obligation in question, because the subject of the making and filing of income and expense accounts by water companies is not comprehended within the title of the act, and also because it is in denial of its right to the secrecy of its own affairs.
The water company was incorporated in 1881. In 1882 it secured from the city of Leavenworth the right to erect its works, lay its mains and pipes, and furnish water to the inhabitants of the city. In 1897 the legislature passed an act empowering cities to obtain water, light, and other public utilities. The title •of this act is of great length, and it is not necessary to quote it in full. Eliminating from it all which does not pertain to the authorization of cities to obtain water, it reads as follows : “An act authorizing and empowering cities to obtain water by contracting with private corporations to furnish water ; or by purchasing or constructing, owning and operating waterworks.” This title may be still further shortened by the exclusion of its verbiage so as to read: ‘ ‘An act authorizing and empowering cities to obtain water by contracting ; or by purchasing or constructing waterworks.” It may be still further shortened so as to read: “An act empowering cities to obtain water.” We agree with counsel for the defendant that the title of the act may be thus shortened without eliminating from it anything necessary to the inclusion of the general and incidental subjects which follow. The question, therefore, is, whether this condensed or abbreviated title is broad enough to include the subject of reports of business by water companies to city authorities, required by section 5 of the act, which reads as follows:
"Every such private corporation now existing or which may hereafter be organized in such city in this state shall, beginning with the 1st day of July, 1897, and on the 1st day of January and July of each year thereafter, and after the beginning of the operation of its plant, through its manager, secretary, or president, make out a statement and an itemized account, which shall be sworn to by the officer making out said account, and filed with the city clerk of such city, there to remain on file for the inspection of every citizen of such city, which statement of account shall set forth every item of income received by said corporation, giving the date received, of whom received, on what account received,'and the amount received; also, all •items paid out, including the date when paid, to whom paid, on what account paid, and amount paid, thus showing item by item the disposition or outgo of the entire income of said corporation, which statement of account shall also be accompanied by a statement of names, places of residence of each stockholder, and the number of shares held by each stockholder, set forth in writing.”
Other provisions of the act of 1897 provide for cities securing a water-supply in four different ways : (1) By an original grant of the franchise to furnish water; (2) by a renewal of an old grant; (3) by the purchase of an existing water-supply plant; (4) by the construction of a new plant. In all these ways a city may obtain a water-supply for its inhabitants. Now, an incident to the determination by a city of the question as to which of these ways of obtaining a water-supply it will undertake is the acquisition of the information which section 5 requires water companies to furnish to the cities where located. Of course, the possession of the information does not ob tain the water-supply, but it is information advisory to the city how best and most economically to obtain it, and is properly involved in the scheme of obtaining it. If a city contemplates a renewal of an existing franchise which a water company owns, or if it contemplates the purchase for itself of an existing water-supply plant, it is well that it should be advised as to the expense of owning and operating such public utility. The acquisition of this information is a step — the first step — toward obtaining water. There is, therefore, occasion for the legislative act in question, and it must stand against the objection made, unless it is undeniably repugnant to the constitutional provision which ordains that the subjects of legislative acts shall be clearly expressed in their titles.
It is hardly claimed by counsel for the defendant that the title of the act is not broad enough to cover the subject of compulsory reports of water companies to cities, but only that it is not broad enough to cover the subject of compulsory reports by existing water companies to cities. It is claimed that the title of the act is prospective, and, while it may cover the subject of reports by water companies hereafter acquiring franchises, that it is not broad enough to cover the subject of reports by water companies that already have franchises; in other words, that, when water companies now without franchises hereafter obtain them, their reports are a part of the city's process of obtaining water, but the making of similar reports by water companies that already have franchises is not a part of the city's process of obtaining water. There is nothing whatever in the statute or its title to justify such view. Our conclusion, therefore, is that the title, “An act authorizing cities to obtain water,” is broad enough to include the subject of the making of reports by existing companies concerning all those matters necessary to advise the city as to the relative cost and expediency of obtaining water in any of the several methods allowed by law.
Unless the statutory requirement to make the itemized statements of account in question is an imposition on existing water companies which goes to the impairment of some vested right of theirs they cannot be heard to complain. That it impairs any vested property right is not claimed. It is claimed, however, that it impairs their right to be free from meddlesome scrutiny of their private affairs, and a case was cited to us in which it was held that the Pacific Railway Commission could not require the production before it of the books and papers of certain railroad companies, although authorized by act of congress to make demand therefor. (In re Pacific Ry. Com’n, 32 Fed. 241.) We do not approve of the doctrine there announced, as we are asked to apply it. The only decisions which the writers of the opinions in that case cited were those in which the freedom of individuals and private corporations from the compulsion to disclose their affairs was upheld. The defendant in this case is not an individual citizen nor a private corporation; that is, not a corporation for the private purposes of its members. It is a corporation formed for purposes of public service. It is in the performance of a public service as much as though it were serving the people of the entire state. (Inhabitants of Wayland v. County Commissioners of Middlesex, 4 Gray [Mass.] 500.) Therefore, it may be controlled by the state in the interest of the public it agreed to serve, except that its vested rights may not be taken from it under the pretense of control. It has no vested right to withhold from the public information as to its operations under the very franchise the public conferred on it. Besides, it took its franchise to be a corporation and to serve the public under a constitutional reservation of power in the legislature to amend or alter the laws pertaining to its organization and the conduct of its business. (Const., art. 12, § 1.)
The defendant also asks for a peremptory writ against the plaintiff. It alleges that the city owes it for water ; that the amount has been collected and is on hand, but that payment is refused. The defendant cannot have the relief asked in this (the plaintiff’s) suit. In actions of mandamus, no pleadings are allowed other than the plaintiff’s writ and the defendant’s answer. The defendant cannot by cross-action obtain affirmative relief against the plaintiff. (Civil Code, § 696 ; Gen. Stat. 1897, ch. 96, § 114; Gen. Stat. 1899, § 5000.)
The peremptory writ asked by plaintiff will be allowed ; the application of defendant for a peremptory writ will be dismissed. | [
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The opinion of the court was delivered by
Pollock, J.:
The affidavit filed in this case for the. purpose of obtaining constructive service on Anderson is defective and. wholly insufficient in law. This affidavit was made in 1888. The statute then in force read (Gen. Stat. 1868, ch. 80, §73) :
“Before service can be made by publication, an affidavit must be filed that service of a summons cannot be made within this state on the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication.”
. This section requires the affidavit to show by proper averment that the case in which constructive service is desired is one of that class of cases in which constructive service is authorized. The allegation in the affidavit “that this is one of the cases mentioned in section 72 of the code of civil procedure in the laws of the state of Kansas” is not such a statement of a fact as is required in the affidavit, but a mere conclusion of law, and renders the affidavit wholly insufficient, under the statute, as a basis upon which constructive service can properly be predicated. This defect in the affidavit, we think, is fatal. As was said by this court in the case of Shields v. Miller, 9 Kan. 390:
“The law is explicit and peremptory, and there is no way of evading it. The affidavit is the foundation upon which jurisdiction is obtained. The plaintiff has no authority or power to obtain service by publication until after he has filed the proper affidavit. Without the affidavit, the attempted service by publication is a nullity. And without a valid service, every subsequent proceeding, including the judgment, the execution, or order of sale, the sale, and the deed, must necessarily be void.”
The court of appeals arrived at the same conclusion, but proceeded with a further consideration of the case upon the assumption that the attack- made on the service was in the nature of a collateral and not a direct attack. With this conclusion we do not agree. ¡The final judgment was rendered on the 3d day of [January, 1895, in favor of the defendant Douglass, and ¡was expressly based upon this constructive service. ¡The motion of Lieberman to set aside this service and [the proceedings based thereon was filed in this case on the 21st day of February, 1895, and at the same term of court at which this judgment was rendered. At the hearing of this motion Douglass appeared and without objection went to trial upon the merits of the motion. It is clear that such proceeding constitutes a direct and.not a collateral attack on the constructive |service and subseojuent proceedings based thereon, f and whether such service and proceedings were absolutely void or only voidable is not material. (Comm’rs of Rice Co. v. Lawrence, 29 Kan. 158.)
In People v. Greene, 74 Cal. 400, 16 Pac. 197, the court held: “A motion to set aside a judgment is a direct and not a collateral attack thereon.”
In People v. Mullan, 65 Cal. 396, 4 Pac. 348, the supreme court of California held: “A judgment following a service of summons purporting to be by publication, but which was made without affidavit and order, is void, and a motion to set aside the judgment is a direct and not a collateral attack.”
Black, in his work on Judgments, section 324, says : “It is in general good ground for setting aside a judgment that there was no service of process on the defendant, or that the service was materially irregular or defective, provided there has been no waiver of such defects by appearance or otherwise.” See, also, Simcock v. National Bank, 14 Kan. 529.
The affidavit upon which the service in this case was based being wholly insufficient in law, and the same being challenged in the case by this motion, a direct attack was made on the service and subsequent proceedings, and it follows that the action of the trial court in setting aside and vacating the same was correct and should be affirmed.
The judgment of the court of appeals is reversed and the judgment of the district court affirmed. | [
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Error from Cowley district court.
Dismissed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action on a judgment rendered by a court of record of New York in favor of Cornelia U. Elliott against the J. B. Watkins Land Mortgage Company. Judgment was again rendered in favor of Elliott, and from it error has been prosecuted to this court. The mortgage company is a loan corporation organized under the laws of Colorado. Suit was brought against it in New York and personal service of summons obtained on J. B. Watkins, its president. It made no appearance to the action, and judgment by default was rendered against it. The action in this state was on a transcript of such judgment. The defense was lack of jurisdiction of the court of New York over the person of the defendant. The ground of this claim was that the mortgage company was a corporation foreign to New York, and therefore was not amenable to suit in that state unless it was doing business there. The contention was also made that the fact of the company’s doing business in New York must affirmatively appear from the record sued on, which fact it was claimed did not appear from the record in question. These are likewise the contentions in this court.
We had occasion, in Life Association v. Boyer, ante, p. 31, 61 Pac. 388, to consider and announce our approval of the rule contended for by the plaintiff in error, viz., that a corporation of one of the states not doing business in another cannot be subjected to suit in such other state by the service of summons on one of its officers casually found therein. In that case we quoted from the authority upon which plaintiff in error in this case principally relies, to wit, St. Clair v. Cox, 106 U. S. 356, 1 Sup. Ct. 354, 27 L. Ed. 222, as follows :
“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 i-the corporation was engaged in business in the state.”
As likewise expressive of the rule, we also quoted ■from Morawetz on Corporations, section 980, as follows :
“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.”
It would appear, therefore, that the rule contended for is sound; but we are of opinion, however, that it does not apply to the case of the plaintiff in error, or rather, that its case lies within the exception to the rule and not within the rule itself. The record sued on shows that it was making contracts and otherwise doing business in the state of New York. The action in New York, as shown by the transcript of judgment sued on, was on instruments called “real-estate debenture coupon bonds.” These bonds showed on their face that they belonged to a certain designated series aggregating one hundred thousand dollars, all payable at the National Bank of Commerce, in the city of New York, and all secured by the assignment to and deposit with a trustee, to wit, The Farmers’ Loan and Trust Company of New York, of an equal amount of real-estate mortgages. And it was further specified in the bonds that they did not become oblig atory until the trustee had indorsed thereon a certificate of the fact that the specified amount of mortgage securities had been assigned to and deposited with it for the benefit of the holders of4 the debentures, in accordance with the terms of an agreement entered into between it and the mortgage company. In the case of the bonds sued on, the trustee had indorsed thereon the required certificate. We think this showed a doing of business, a making of contracts, by the mortgage company in the state of New York. The bonds were payable at a designated agency in New York. This involved a remittance of money to the agency to meet the obligations at maturity; it involved a contract of employment, an agency of the one party for the other; it involved an accounting between them; it involved the incurrence of a liability enforceable by the principal against the agent in New York.
The bonds sued on also showed the making of a contract of trusteeship in New York, enforceable in that state. The execution of this contract involved the placing of valuable securities under the protection of the laws of New York and subject to the jurisdiction of the courts of that state. It involved relations between the creator of the trust, the trustee and cestui que trust, enforceable in the courts of New York. Now the making of the several contracts and the creation of the several relations mentioned were all shown by the record of the case in New York sued on in this state, and therefore we are entitled to presume, as a consequence thereof, the execution of such contracts and the carrying on of such relations ; that is, to presume the transaction of the business the parties agreed to conduct.
The statutes of the state of New York, introduced in evidence upon the trial of the action in this state, au thorized tbe service of process upon the president of a foreign corporation doing business in that state.
The plaintiff in error also raises a question of revivorship, which revivorship, as it says, was made necessary by the appointment of a receiver of its assets and to manage its affairs, and it also raises a question as to the validity of an attachment of some of its property on account of a contract between its creditors to share equally and without preference in its assets. The first of these claims is unfounded; the other one is not in the case.
There is no error in the record and 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 foreclosure proceeding, brought by Samuel J. Sharpless against John T. and Florence M. Showalter. Three railroad companies were also made parties defendant. Sharpless asked for judgment on a promissory note for $3000, executed by the Showalters, and to foreclose a mortgage given by them on the west half of block 2 in Myers’s addition to the city of Wellington. In the trial court, there was no contention as to the debt nor as to the lien of the mortgage on the territory particularly described in the mortgage, but it was claimed that the mortgage covered and included a strip of land occupied by the railroad company north of that described in the mortgage, and the trial court so held.
Briefly stated, the facts out of which the contention arose are as follows : On and prior to April 19, 1887, Florence M. Showalter owned, and with her husband resided upon, the half block above described, which consisted of eleven lots. Immediately north of the lots was First street, which was vacated by the city council on April 19, 1887, and a right of way was granted to the railroad company for its tracks along the street leading to the station-house near by. On May 20, 1887, the mortgage in question was executed, and within a month thereafter the railroad company entered upon the strip of land and built railroad-tracks. On January 6, 1888, Mrs. Showalter brought an action against the railroad companies to recover for the appropriation of the strip of land north of her lots, upon the theory that upon the vacation of the street one-half of the street so vacated reverted to her as an abutting owner, and she was awarded j udgment against the companies for the sum of $4370. Upon proceedings in error the judgment was modified, and reduced to $3100. (Showalter v. S. K. Rly. Co., 49 Kan. 421, 32 Pac. 42; Railway Co. v. Showalter, 57 id. 681, 47 Pac. 831.) Soon after the rendition of the judgment Mrs. Showalter assigned portions of it to a number of her creditors to secure the payment of certain debts which she was owing, which assignments included all the money due on the judgment except $21.71, and the assignees were made parties to this proceeding. After the commencement of this action a garnishment proceeding was brought against the railroad companies, by which the plaintiffs sought to subject any unappropriated portion of the judgment to the payment of their claims. The court found that there was due on the note and mortgage the sum of $2917.35; that the mortgage was a first lien on the eleven lots above described, and also the strip of land which formerly constituted the street and on which the lots abut; that the persons to whom the judgment had been assigned were entitled to the portions assigned, and that the balance of the amount of the judgment, $21.71, be paid to the plaintiff.
While Sharpless, the mortgagee, criticizes the judgment of the district court and asks for relief not given in the decree, he is not in a position to obtain a modification of the judgment. He has not filed a cross-petition in error, and therefore, as to him, the judgment is a finality.
The railroad companies complain of that portion of the decree declaring that the mortgage is a lien on the strip of land north of the mortgaged lots and on which their tracks are located. They alleged that they were ready and -willing to pay the judgment awarded the Showalters against them for the permanent appropriation of the land to whomsoever may be entitled to it, whenever they can do so and be fully discharged and protected; but they were unwilling to pay for the land appropriated a second time.
The first and controlling question in the case is, Did the mortgage cover and include the strip of land which formerly constituted a part of the street and is occupied by the railroad company ? By the vacation of the street, one-half of it reverted to and became the property of the abutting owners. The reversion practically added another lot to the holding of the Showalters. Can it be fairly said that the mortgage which definitely described the eleven lots was intended to encumber the additional strip or lot which the mortgagor had acquired ? The owners were free to mortgage as much or as little of their property as they deemed best; and did they not in specific terms limit the encumbrance to the eleven lots south of the va cated street ? Is the mortgage to be extended by interpretation or operation of law over property other than that specifically described in the instrument? The limits of the lots were fixed by the plat of the city, of which the mortgagee was required to take notice ; and the strip of land in question lay outside these limits. Looking at the plat, the exterior limits of the eleven lots were as definitely fixed and as well known to the parties as though they had been described by metes and bounds ; and if they had been so described no one would claim that the description included additional territory, whether the mortgagors acquired it by reversion, purchase, or otherwise. The strip was acquired by the Showalters after the lot limits were established by the plat, and since they used the description and limits of the plat in describing the mortgaged property, why should we assume that they intended to mortgage property acquired after the limits were established and lying outside of those limits ? No language is used in the mortgage indicating a purpose to include ground acquired by reversion, and while it adjoined that described in the mortgage, the description used did not, it seems to us, indicate an intent to encumber it. The Showalters were at liberty to convey this strip apart from the lots to which it was annexed ; and, if they had expressly mortgaged it to another, would not the latter hold a lien as against the mortgage of Sharpless, which covered a tract the boundaries of which were as clearly fixed as if described by metes and bounds ?
We are referred to A. T. & S. F. Rld. Co. v. Patch, 28 Kan. 470, as authority for extending the mortgage over the adjoining strip, but that case applies to a transfer of title, and we need not at this time determine whether the language there employed was fully justified or enter upon a reexamination of the questions there decided. It related alone to a conveyance of title, while, as is well known, a mortgage neither gives possession nor vests title. (Chick and others v. Willetts, 2 Kan. 384; Waterson v. Devoe, 18 id. 223.) It is a mere security or lien, and we are unwilling to extend the doctrine of the Patch case so as to apply to a mortgage and hold it to encumber property outside that definitely described in the instrument itself.
We conclude that error was committed in holding that the strip was subject to the lien of the mortgage, and, therefore, that the judgment of the district court must be modified by excluding it from the operation of the decree of foreclosure or from sale for the mortgage debt. | [
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The opinion of the court was delivered by
Smith, J.:
On the 27th day of May, 1894, plaintiff below, Lena Price, took passage at Wichita on one of the passenger-trains of the Atchison, Topeka & Santa Fe Railroad Company, then operated by receivers, intending to ride thereon to Woodward, I. T. After the train had started, she presented to the conductor the return portion of a ticket from Wichita to Woodward, I. T., as follows:
She was told by the conductor that the time limit of the ticket had expired, and that she would have to get off at Derby, the next station. This she did under what the jury found to be “forcible persuasion.” The petition of plaintiff in the court below alleged in general terms that she was rightfully riding on the defendants’ train as a passenger for hire and entitled to be carried from Wichita to Woodward, I. T.; that she was directed and compelled, without right or justice, and against her consent, to leave the car and train, and was by the conductor negligently and wrongfully ejected therefrom, to her damage, etc.
On the trial Frank Price, a brother of plaintiff below, testified, over the objections of defendants, that he had purchased the ticket for his sister at Woodward, I. T., for the round trip from the latter place to Wichita and return; that he had asked and paid for an unlimited ticket, and that he did not notice the punch marks thereon; that he saw it was from Wood ward and gave no more attention to it. There was no testimony showing that the witness Price, who bought the ticket, told his sister that the same was unlimited; and the jury, in response to a particular question of fact, answered that he did not inform her of the conversation had by him with the' ticket agent at Woodward. Verdict and judgment were rendered for the plaintiff below, and the case was affirmed by the court of appeals.
Counsel for plaintiffs in error contend, and have cited many authorities to sustain their position, that the conductor must ascertain the rights of a passenger to travel from the ticket alone ; that a ticket being presented to him which showed that a prior right of the passenger to travel had expired, he was fully justified in putting plaintiff off the train, and his justification exempted the company from liabilty; that the expulsion being rightful, if the plaintiff below had bought and paid for an unlimited ticket and was furnished a limited one by the agent of the company, her remedy was an action for breach of the contract to carry, and not in tort. This contention is combated by counsel for defendant in error, and many cases cited holding that while the conductor himself in such case may be exonerated from liability, the plaintiff having bought an unlimited ticket, the corporation is liable for her ejection from the train, notwithstanding the conductor had no other guide for his conduct toward the passenger than the language of the ticket, and that a recovery is not restricted to damages for breach of contract.
The cases are not at all harmonious on this question. (4 Ell. Railr. § 1594.) In our view of the law applicable to the facts presented in the record, it is unnecessary to decide which side is right in its conten tion on this question. The plaintiff below had the round-trip ticket in her possession for about five weeks, and within the limit of time stamped on the going part of the same she traveled from Woodward, I. T., to Wichita. The time limits were plainly indicated on the ticket, and she was in no manner deceived as to its conditions, for nothing had been said to her intimating that when the ticket was purchased the agent of the company stated it was unlimited. She could have no grounds to doubt that the time limit expressed in the ticket was binding on her, and no reason whatever to believe that the conditions thereof had been waived by the company or its agent. The conductor also was in ignorance of any alleged contract or agreement different from that printed on the ticket.
Much stress is laid on the fact that the ticket was unsigned at the place left for signature on the margin. The following language is printed thereon:
“In consideration of the reduced rate at which this ticket is sold, it is hereby agreed that it will not be good for going passage after midnight of the date named in attached coupon, nor for return passage after midnight of date punched in margin hereof, and that it is strictly non-transferable. Conductors will take it up and collect full fare if presented by other than the person whose signature is hereon.”
The evident purpose of requiring this ticket to be signed was to render it non-transferable and to identify the purchaser. The lack of a signature did not relieve the holder from an observance of that condition which required the ticket to be used for return passage before the date punched in the margin. In Dangerfield v. Railway Co., ante, p. 85, 61 Pac. 405, it was said:
“Limited round-trip tickets, like the one presented by Dangerfield, are in common use throughout the country, and the conditions written upon the face of such tickets, and which constitute the contract between the parties, are not unreasonable or invalid. . . . Attention is called to the fact that the original purchaser did not sign the ticket when it was issued, but it is clear that his failure to sign did not eliminate the conditions of the contract. If these were binding upon the company, they were equally binding upon the purchaser, whether signed by him or not. Nor does the fact that the first company omitted or dispensed with the signing of the ticket affect the right of the second company to insist on the conditions, and it did not make the ticket transferable.” (See, also, Hutch. Carr. § 575; 1 Fett. Carr. Pass. § 285 ; Quimby v. Boston & Maine Railroad, 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846.)
There is a distinction between tickets which are mere tokens or checks not purporting to be contracts between the carrier and the purchaser, but which only indicate the route over which the passenger is to be carried, and contract tickets like that in the present case. This difference was noted in Fonseca v. Cunard Steamship Co., 153 Mass. 553, 27 N. E. 665, wherein it was held that one who accepts a contract, and proceeds to avail himself of its provisions, is bound by the conditions and stipulations expressed in it whether he reads them or not. In Elliott on Railroads, volume 4, in a note to section 1593, the following rule is deduced from numerous authorities cited :
“We think that a ticket may be both a receipt and a contract, and, in so far as it is a contract, its terms should be held binding.. Many of the cases above cited hold that a mere notice limiting liability or the like, printed on the ticket, is not binding because it is not a contract, but when shown to be part of the contract, if it is such as the law permits, we think it is binding, and there can, we think, be no doubt that such is the case as to terms and stipulations in the contract part of the ticket, especially where it is signed by the purchaser.”
In the same section, the following on the subject is said:
“But the terms of the contract, or certain conditions and limitations which enter into and form part of the contract, are frequently written or printed on .the face of the ticket, and where such is the case we think the better rule is that a passenger has no right to rely on the representations of an agent or conductor, which are contrary to its express limitations and conditions.”
In the case of K. C. St. J. & C. B. Rld. Co. v. Rodebaugh, 38 Kan. 45, 15 Pac. 899, relied on by counsel for defendant in error, the loss of a passenger’s baggage was involved. There was a declaration printed on the ticket, as follows: “None of the companies represented in this ticket will assume any liability on baggage, except for wearing apparel, and then only for a sum not exceeding $100.” There was a blank space for the purchaser’s signature, but it was not filled. It was decided that the above condition was not binding on the passenger. The language used is referred to in the opinion as a declaration of the company. It was merely an assertion on the part of the carrier — a proclamation that it absolved itself from liability for loss exceeding $100. The case at bar is materially different. Here there was something more than a notice to the passenger that the ticket must be used within the limited time. The words used in the ticket in the present case were indicative of a contract between the parties regarding the time within which the ticket must be used. (Ell. Railr. § 1593, and note.)
It follows logically, when it is decided that the acceptance and use of such a ticket as that held by the defendant in error constituted a contract between her and the carrier, that its positive terms, being expressed in writing, cannot be contradicted or varied by parol evidence. Nor can oral agreements relating to the subject expressed in the written ticket, made before or at the time it was issued, be received in evidence in contradiction of its stipulations. This is but the application of an old and well-settled rule of evidence. (Rodgers v. Perrault, 41 Kan. 385, 21 Pac. 287; Willard v. Ostrander, 46 id. 591, 26 Pac. 1017, and cases cited.) There is no ambiguity appearing in this con-, tract of carriage, or the use of words having a doubtful, meaning. So far as the knowledge of plaintiff below is concerned, it is not pretended that she, at any time prior to her alleged injury, had any other information regarding her rights as a passenger beyond those derived from the expressed stipulations of the ticket. The attempt, therefore, of the plaintiff below to impeach the written terms of the ticket by the parol testimony of her. brother must fail of its purpose, and the testimony held to be inadmissible.
Holding this view of the case, it follows that the plaintiff below was not wrongfully put off the train. The judgment of the court of appeals and district court will be reversed,- with directions to the latter court to enter judgment on the findings of the jury in favor of the defendants below. | [
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The opinion of the court was delivered by
Smith, J.:
This application is based on the following agreed facts : The petitioner was duly convicted of grand larceny in the district court of Leavenworth county, Kansas on the 2d day of February, 1899, he was sentenced by said court to the state industrial reformatory, at Hutchinson, in accordance with section 11 of chapter 134, General Statutes of 1897 (Gen. Stat. 1899, §'6781). Thereafter, on the 14th day of September, 1900, the board of managers of said reformatory, in accordance with section 14 of chapter 134, General Statutes of 1897, made the following order:
“At a meeting of the board of managers of the Kansas State Industrial Reformatory held at said reformatory on the 14th day of September, 1900, the following resolution was adopted:
“Whereas, One .Edward Murphy, of Leavenworth, Kan., was sentenced to this institution on the 2d day of February, 1899, by the district court of said county, for the crime of grand larceny; and
“Whereas, The said Edward Murphy is apparently incorrigible, and the board of managers, believing the presence of the said Murphy in this reformatory to be seriously detrimental to the welfare of the institution, have this day, and in accordance with section 14 of chapter 134 of the General Statutes of 1897, ordered the superintendent, J. S. Simmons, to take the said Edward Murphy to the penitentiary, at Lansing, Kan., and turn him over to the warden, there to be dealt with according to law.
“In Witness Whereoe, I, J. W. Lingenfelter, secretary of said board, have hereunto set my hand and affixed the seal of said reformatory, at Hutchinson, Kan., this 14th day of September, 1900.
[seal.] J. W. Lingeneelter, Secretary.”
Thereafter the said J. S. Simmons, superintendent of the reformatory, by virtue of the aforesaid order, took the petitioner to the Kansas State Penitentiary, at Lansing, and turned him over to J. B. Tomlinson, the warden. He is now there confined under the charge of said J. B. Tomlinson.
The prisoner must be denied a discharge from his imprisonment. When he committed the felony for which he was convicted, and when he was tried and sentenced therefor, the laws in force regulating his punishment, and the terms and conditions of the same, entered into and became a part of the record of the sentence. (The State v. Page, 60 Kan. 664, 57 Pac. 514.) The court, in the first instance, might legally have sentenced the prisoner to the punishment he is now enduring, and would probably have done so had his incorrigibility appeared as it did to the board of managers of the reformatory. Under the decision in The State v. Clark, 60 Kan. 450, 56 Pac. 767, a person convicted of grand larceny and sentenced to the reformatory is deemed infamous to the same degree as if he had been sentenced to the penitentiary. In The State v. Page, supra, the court said :
“It is undeniably true that the sole power to provide for the punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishments. Its authority in these respects is exclusive and supreme. Courts are empowered only to ascertain whether an offense has been committed, and, if so, to assess punishment, within the terms of the law, for its commission. It cannot be doubted that the legislature, in virtue of its exclusive and sovereign authority over such matters, may affix conditions to the punishment it ordains, -and among other things may set to it limits of duration, terminable upon conditions. To these conditions the courts in assessing punishment must conform. Into every sentence of conviction the terms and conditions which beforehand the legislature had prescribed enter as much as though they were written into and made a formal part of the record of sentence. Into the before-quoted sentence of conviction the law wrote, as provisos and as constituent parts of it, sections 11 and 20 of the act establishing the state industrial reformatory. (Miller v. The State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109.) It is not, therefore, an interference with judicial authority, nor an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge’s sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it is not an assumption of judicial power for an administrative officer, acting within the law and the terms of the sentence, to take upon himself the task of ascertaining whether the conditions have been observed.”
This court has already held that the reformatory is a penal institution. The order made by the board was merely done in administration of such institution, and the transfer was an act which was within the contemplation of the law under which the prisoner was sentenced, and inhered in and became a part of the sentence.
The law authorizes the board of managers of the reformatory to employ prisoners sent there at “such labor as will best contribute to their support and reformation.” In this case the prisoner could have been detained in the reformatory during the maximum time to which he might have been sentenced to the penitentiary, and required to work during the whole of that period. His situation in the penitentiary differs little from what it would have been in the reformatory, except that in the latter discretion is lodged in the board of managers to discharge him before the expiration of the maximum time to which he might have been sentenced to the penitentiary.
It will be noted that, under the last clause of section 14 of said chapter 134, General Statutes of 1897, it is provided that ‘ ‘ such managers may by written requisition require the return to the reformatory of any person who has been transferred.” It would seem from this that the act of transferring the prisoner to the penitentiary was merely disciplinary in character. It will be presumed that when the pris oner becomes tractable the board of managers, not baying lost control oyer bim, will require his return to the reformatory.
A claim of illegality in his present detention cannot be founded on the fact that if he had remained in the reformatory the discretion of its managers might have been exercised to reduce the period of his imprisonment below the maximum. The happening of such contingency is speculative and uncertain. The argument that the board of managers, in ordering his transfer to the penitentiary, exercised judicial powers, is not sound. The point made was decided against the petitioner’s contention in The State v. Page, supra. The case of In re Dumford, 7 Kan. App. 89, 53 Pac. 92, relied on by counsel for the prisoner, was decided before the case of The State v. Clark, supra, and proceeded on the theory that a sentence to and confinement in the reformatory did not render the prisoner infamous.
The writ will be denied and the prisoner remanded. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action to recover money deposited with a justice of the peace to obtain the release of the defendant who was prosecuted for a misdemeanor. On a warrant charging a violation of the prohibitory liquor law, W. O. Appelgate was arrested and taken before R. M. Young, a justice of the peace of Thomas county. Upon application of Appelgate the justice continued the case and required him to enter into a recognizance in the sum of $200 for his appearance. This was furnished, but, the surety-not being satisfactory, Appelgate deposited $200 with the justice and the recognizance was then approved. Subsequently another continuance was granted and a like recognizance was required of Appelgate, and, the $200 being still in the possession of the justice, the recognizance then tendered was also approved. At the appointed time for the trial Appelgate failed to appear and the recognizance which he gave was forfeited, but nothing was said about the forfeiture of the money which was in the hands of the justice. Afterward' Appelgate returned for the alleged purpose of appearing before the justice and was again taken into custody. When he went before the justice he asked for the return of the $200 deposit, but his motion was denied. After a change of venue he was tried for the offense charged against him and was acquitted. When the change of venue was taken from Young he did not transmit the money deposited with him to the justice before whom the case was tried, nor was there any order or declaration that it had been forfeited. Appelgate demanded from Young the return of the money, and the demand being refused, the present proceeding was brought to recover it.
The question of the authority of the justice to take the deposit as a security for the appearance of the defendant and to withhold the same upon demand was raised upon the pleadings, and the district court ruled that no such authority existed; that the money remained the property of Appelgate, and gave him judgment for the amount of the deposit. How may a defendant charged with a misdemeanor, and whose trial is postponed, obtain a release from custody ? In section 5 of the code of procedure before justices of the peace in misdemeanors (Gen. Stat. 1897, ch. 104, § 6; Gen. Stat. 1899, § 5618), express provision is made that a recognizance with sufficient security shall be taken conditioned that the defendant shall appear for trial at the time and place appointed. The security mentioned in this provision clearly refers to the person or persons signing the recognizance, and does not include security collateral to the recognizance. No mention is made in any of the provisions of the act that money or property may be deposited supplemental to a recognizance or in lieu of bail. A release from custody by means of a recognizance having been expressly provided for in the procedure before justices in misdemeanors, that method must be followed, and the justice cannot, in the absence of statutory authority, accept money in lieu of bail or as a substitute for a recognizance. As tending to sustain this view, see The State v. Lane, 11 Kan. 458; McCartney v. Wilson, 17 id. 294; Beckwith v. K. C. & O. Rld. Co., 28 id. 484; Reinhard v. City, 49 Ohio St. 257, 31 N. E. 35; Butler et al. v. Foster, 14 Ala. 323; United States v. Faw, 1 Cranch, C. C. 486; Eagan v. Stevens, 39 Hun, 311. Section 145 of the criminal code (Gen. Stat. 1897, ch. 102, § 144; Gen. Stat. 1899, § 5395) does provide that the defendant may deposit money in lieu of bail with the clerk of the court, and thus obtain a release from custody, and the contention is that this provision is made applicable to misdemeanors before a justice by section 20 of the justices’ code (Gen. Stat. 1897, ch. 104, § 18; Gen. Stat. 1899, § 5633). It provides:
“All proceedings, including the mode of procuring and the grounds for a change of venue, upon the trial of misdemeanors before a justice of the peace, shall be governed by the provisions of the code of criminal procedure, so far as the same are in their nature applicable, and in respect to which no provision is made by statute.”
If no provision had been made in the procedure before justices in misdemeanors for a release of the defendant from custody when the case was continued, section 145 of the criminal code would certainly have been applicable, and a discharge from custody might have ¡been obtained by means of a money deposit. The justices’ code, however, having specifically provided for a release from custody in cases of misdemeanor, there is neither necessity nor right to invoke or apply the provisions of the other code. It is true, as the defendant below contends, that the justices’ code does not provide for a deposit of money in lieu of a recognizance or bail, but it does provide a particular method for obtaining a release from custody in such cases ; and the court is not warranted in adding other methods than those definitely prescribed by the legislature. "We cannot look to the code of criminal procedure except in proceedings “in respect to which no provision is made by statute.” (The State, ex rel., v. Brayman, 35 Kan. 714, 12 Pac. 111.) In Toles v. Adee et al., 84 N. Y. 222, it was said “that public policy requires that officers armed with bailable process for the arrest of defendants, should, in taking bonds or other security for their enlargement, be held to a strict compliance with statutory requirements, neither accepting less nor demanding more than the law prescribes.” Having taken and retained the money without authority, it must be treated as the property of Appelgate, and therefore he was entitled to recover the same.
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 court'of appeals, southern department.
Affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This is an application for a writ of habeas corpus. The petition for the writ shows the following facts: On July 5, 1900, the petitioner was arrested on a warrant issued from “the court of Coffey ville.” The warrant issued on a complaint charging the petitioner with having committed the offense of burglary and grand larceny. Being brought before the court on July 6, he requested that the case be continued until July 10, which was done. On that date he appeared in court with his attorney, and, after “being fully advised, he demanded a preliminary examination.” On such examination the state introduced its evidence and the petitioner offered no evidence, but filed his motion in writing, requesting the court to dismiss the case and discharge him, alleging as grounds therefor that the court had no jurisdiction of the case, for the reason that the act creating it was unconstitutional, being in contravention of section 1, article 12, of the constitution of the state of Kansas. This motion was by the court overruled. Upon examination, probable cause to believe the petitioner guilty was found, and, in default of bond, he was remanded to the jail of Montgomery county. At the November term of the Montgomery county district court the trial of the complainant came on and he pleaded not guilty. Upon trial by jury he was found guilty, as charged, and afterward filed his motion for a new trial,-but at no stage of the proceed ings in the district court did he raise the question of the constitutionality of the act creating the court of Coffeyville or the legality of his preliminary examination. The motion for a new trial was overruled, and the petitioner was sentenced to imprisonment in the state penitentiary for the term of two years. This constitutes the illegal detention of which he complains..
In this court he seeks to raise the question whether the court of Coffeyville was constitutionally created, citing several, authorities in support of his contention that it was not, and, as subsidiary thereto, whether he had had a preliminary examination. We think, however, that complainant is too late with his contention. Having submitted himself to the jurisdiction of the district court of Montgomery county on the trial of the offense charged, without raising the question of the legality of his preliminary examination, he may not in this proceeding raise that question. We do not lose sight of the principle announced in the case of In re Dill, Petitioner, 32 Kan. 668, 15 Pac. 39, that if the court rendering judgment was without authority to render it, or if the court had exceeded its authority in rendering its judgment, the petitioner might be discharged under a writ of habeas corpus, but in the case at bar the district court had full authority to render the judgment it did.
' It will be held that the petitioner, by submitting to trial in that court without raising the question of the legality of his preliminary examination, waived his right to such an examination and cannot now be heard to complain. This is in accordance with the provisions of paragraph 4785 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 96, § 91; Gen. Stat 1899, § 4975), and with, the uniform holdings of this court thereunder. We do not intend to decide by this opinion that the court of Coffeyville was or was not constitutionally created.
The petitioner will be remanded. | [
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Error from Wyandotte district court.
Reversed. | [
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The opinion of the court was delivered by
Smith, J.:
Defendants in error contend that plaintiffs in the trial court were, at most, entitled only to conditional relief under their petition, dependent upon the repayment to the obligee in the bond for a deed of the $290 paid by Yaw to Roberts at the date of the instrument, together with $13.33 taxes paid by the former. This bond for a deed is a contract unilateral in character. The obligors alone were bound by its provisions. (Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164). When the action was commenced, Yaw, defendant below, had been in default for about fourteen months. At no time had he offered to comply with the terms of the instrument requiring payment as a condition to obtaining a deed to the land. He could not at any time have recovered back the first payment of $290 made by him when the contract was executed. (Ketchum & Sweet against G. B. Evertson, 13 Johns. 359.) Plaintiffs tendered a deed to the land before suit was brought, demanding payment of the amount due, and again in their petition made a like tender. Defendants below have at no time claimed any rights under the contract. On the other hand, persistently repudiating it, they demand back what they have paid.
It is well settled that where, by the terms of a written instrument, time is not made of the essence of the contract, it can nevertheless be made so by a performance or the tender of performance by one party and a demand of the other. (Foster v. Ley, 32 Neb. 404, 15 L. R. A. 737, 49 N. W. 450, and note ; Frink v. Thomas, 12 L. R. A. 239, 25 Pac. 717, and note ; Barnard v. Lee, 97 Mass. 92; Hatch against Cobb, 4 Johns. Ch. 559; Sea v. Morehouse, 79 Ill. 216; King v. Ruckman, 20 N. J. Eq. 316.)
In the case of Kirby v. Harrison et al., 2 Ohio St. 326, 332, there is an able discussion by Justice Thurman of this question, applied to a contract quite like the one under consideration. Kirby made a written contract for the sale of certain real estate to Harrison at the price of $1000. The sum of $100 was paid down, and the residue agreed to be paid in nine annual instalments of $100 each, and when so paid Kirby covenanted to execute to the obligee a warranty deed to the premises. The second instalment coming due, Kirby notified Harrison, some seven months thereafter, of the fact and requested payment, but received no response. Six months later he filed his bill for rescission. The learned justice said :
“Although there is no stipulation of the parties that time shall be of the essence of the contract, nor anything in the nature or circumstances of the agreement to make it so, yet it may be made essential by the proper action of a party who is not in default and is ready to perform, if the other party is in default without justification. Thus, if the vendee, without sufficient excuse, fail to pay at the stipulated time, and the vendor is in no default and is able and ready to perform all that the contract then requires of him, he may notify the vendee to pay within a reasonable time, or he (the vendor) will consider and treat the contract as rescinded. In such case, if payment be not made within a reasonable time, the vendor has a right to treat the contract as abandoned by the vendee. In like manner, and with like consequences, the vendee may notify the vendor, if the latter is in default and the former is not. Remmington v. Kelley, 7 O. R. pt. 2, 97; Higby v. Whittaker, 8 O. R. 201.”
In that case there was a decree entered that the contract be delivered up and canceled. In the case at bar there was a prayer for relief in the alternative, first, for a judgment against Yaw for $710, with interest, to be declared a first lien on the real estate, and an order of sale thereof; or, if the court should find that specific performance of said writing ought not to be enforced, then that the court decree that defendants surrender said writing for cancelation, and the cloud on the title of the real estate be removed, and that plaintiffs’ title be quieted. The relief last prayed for was granted by the court, and we think rightly so, in view of the persistent neglect of the obligee in the bond to comply with its terms, particularly after demand and tender of a deed by plaintiffs.
In Benedict v. Lynch, 1 Johns. Ch. 370, 376, Chancellor Kent said:
“The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a court of chancery will, almost at any time, relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It would be against all my impressions of the principles of equity to help those who show no equitable title to relief.”
The conduct' of the defendants below was such as not to entitle them to any equitable relief, and the decree entered against them in the district court was justified under the facts shown.
The judgment of the court of appeals will be reversed and the judgment of the district court affirmed. | [
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Appeal from court of appeals, northern department. .
Affirmed. | [
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Error from court of appeals, southern department.
Affirmed. | [
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Error from court of appeals, southern department.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action brought in the district court of Butler county by J. F. Greer against the plaintiff in error to recover the sum of $1000/more or less, the contract price agreed on between the parties for feeding 200 head of cattle during the winter of 1894 and 1895. At the commencement of the action the plaintiff below caused a writ of attachment to issue, under which the sheriff of Butler county levied on property belonging to the defendant, Thompson. Several summonses were issued, but none of them was served. The defendant filed a motion in the trial court to dismiss the action, as follows :
“Now comes the defendant, R. S. Thompson, for the purpose of this motion only and for no other, and moves the court to dismiss this action for the reason that the court had no jurisdiction over the person of this defendant, and that this action is improperly .brought in this county; that the defendant, R. S. Thompson, against whom alone this plaintiff seeks judgment and whose property plaintiff claims to have attached in this suit, is a resident of the county of Reno, state of Kansas, and has been for several years last past; that there has been no service had upon the said defendant in this county, and the court has no jurisdiction over his person or the subject-matter of the action.”
Defendant’s counsel appeared for the purposes of the motion only. The journal entry shows the following ruling by the court:
“The court finds that by the filing herein, on the 4th day of March, 1895, of the motion of the said defendant he, the said defendant, R. S. Thompson, thereby duly submitted himself to the jurisdiction of this court and thereby duly entered appearance therein, and that this court thereby acquired jurisdiction of the person of said defendant, R. S. Thompson.”
We think the court below erred in overruling the motion to dismiss. The application was based solely on jurisdictional grounds, and the appearance of the moving party was special. (Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Life Association v. Lemke, 40 id. 142, 19 Pac. 337.)
After excepting to the action of the court in overruling his motion to dismiss, the defendant Thompson thereafter filed an answer and cross-petition in the cause, wherein he not only denied all liability to the plaintiff under the contract he had made for the keeping of the cattle, but set up a cause of action for damage to the same by reason of the failure of plaintiff Greer to feed and care properly for the animals, and prayed for an affirmative judgment against the plaintiff below for the sum of $4650.
Counsel for plaintiff in error argue in their brief, and in our opinion their contention is based on sound reason and the weight of authority, that after a special appearance by a defendant for the purpose of objecting to the jurisdiction of the court, and the overruling of such objection, the defendant does not lose the benefit of his attack on the jurisdiction by thereafter answering or pleading to the merits. (Dickerson v. B. & M. R. Rld. Co., 43 Kan. 702, 23 Pac. 936; St. L. K. & S. W. Rly. Co. v. Morse, 50 Kan. 99, 31 Pac. 676; Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; 2 Elliott, Gen. Prac. § 475.)
The defendant below, however, was not content to place himself in a position of merely resisting a recovery by the plaintiff of the amount for which he sued, but on the other hand sought- to establish against the plaintiff below an affirmative judgment amounting to $3650 more than the plaintiff Greer claimed that Thompson owed him for feeding the cattle under the contract. As to this $3650, the defendant below went into the forum where the plaintiff had commenced his action and by filing his cross-petition invoked the action of the court in his own behalf. He was not satisfied with protecting himself with a shield, but attacked his adversary with a sword. His claim for relief placed him in the same position as if he had brought an independent action against Greer for the $3650, making a voluntary choice of the tribunal in which he desired to establish his claim.
The case of Chandler et al. v. The Citizens’ National Bank of Evansville, 149 Ind. 601, 605, 49 N. E. 579, is much in point. The bank sued Chandler to recover on certain notes, and to foreclose a lien on bonds pledged as security for their payment. The complaint averred that Giles claimed an interest in the bonds. The latter entered his special appearance and moved to quash the summons, which motion was overruled. He then entered a general appearance and filed an answer. Subsequently he filed a cross-complaint, making the plaintiff and his codefendant, Chandler, parties defendant therein. In this pleading he averred that he was the owner of the bonds, and demanded that the court order them to be surrendered and delivered to him. The trial resulted in a judgment in favor of the bank, and against Chandler, with a decree that the lien be foreclosed and that a portion of the bonds in suit belonged to Giles. In his appeal, Giles presented to the supreme court the question whether the overruling of his motion on special appearance to quash the summons was error. The court said:
“Appellant (Giles), under his cross-complaint, having voluntarily made himself a cross-complainant in the action, and asserted his right to the bonds involved therein, and thereby invoked the court’s jurisdiction to award him the relief demanded, must therefore be held to have submitted his person generally in the cause to the jurisdiction of the court, and for this reason cannot, in this appeal, base any available error on the ruling of the trial court in denying the motion to quash the original writ.” (See, also, 2 Encyc. Pl. & Pr. 625-627.)
We do not think the court erred in sustaining the objections to the questions propounded by defendant’s counsel to the witness Kirby. What the witness told Greer was certainly not competent, and much of the matter sought to be extracted from the witness was not within the issues. The statement by defendant’s counsel that he desired to examine this witness upon other matters on which he had not been interrogated was not specific enough to receive favorable consideration by the court.
The judgment of the court below will be affirmed.
Pollock, J., not sitting, having been of counsel. | [
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Opinion by
Simpson, C.:
This action was brought in the district court of Butler county by the defendant in error against the plaintiffs in error upon two negotiable promissory notes, one for $900 and the other for $800, both bearing date December 9, 1886, a copy of said $900 note, with the indorsements thereon, being as follows:
“$900. Beaumont, Kas., December 9, 1886.
“For value received, we promise to pay, on the first day of January, 1888, to the order of Kniffin & White, $900, at the National Bank of El Dorado, Kas., with interest at 8 per cent, per annum from date.
[Signed] N. Herring. E. P. Leaming.
F. M. Leaming. C. Kofoid.
R. E. & I. F. Van Huss.
Clinton Squier. John MacRitchie.”
Indorsements thereon :
“December 14, 1886. Received on the within note, from N. Herring, one hundred dollars ($100).
“For value received, pay to the order of John P. Johnson. May 5, 1887. [Signed] Kniffin & White.”
The $800 note sued upon is in the. same form, made by the same parties, and having the same indorsements thereon, except that it became due on the 1st day of January, 1889. The suit was brought in said district court on the 11th day of May, 1889. Johnson, in his petition in the court below, alleged that, for a valuable consideration, before the maturity of the notes sued upon and each of them, Kniffin & White, the payees in said notes, indorsed and transferred said notes to the said plaintiff, Johnson, who was, at the time of filing said petition in the court below, the owner and holder of said promissory notes; and, as above stated, each of said notes was indorsed in the following words: “ For value received, pay to the order of Jno. P. Johnson. May 5, 1887. [Signed] Kniffin & White.” Neither of the answers of plaintiffs in error, defendants below, contained a denial under oath of the execution of either of said promissory notes or of the in dorsements thereon; and the execution of the notes by the defendants and the indorsement thereof to the plaintiff as alleged in his petition must be taken as true. The defendants in the court below filed separate answers to plaintiff’s petition, setting up various defenses to the notes. The answer of Squier admitted the execution of the notes by him, but stated that he signed them under an agreement that several other parties besides the plaintiffs in error had agreed to and would sign the notes jointly with him, and, when so signed, they were to be placed in the hands of Herring, one of the plaintiffs in error, to be by him held until the parties who signed the notes should get together and express themselves as satisfied with the consideration for which the notes were given; that Kniffin, one of the payees, told him that said parties would sign said notes, and, believing his statement, he was thereupon induced to sign the same, which he would not have done if he had known or supposed that no one else, other than those above referred to, were to sign said notes; that said Kniffin & White at that time wanted to sell a stallion to him and other parties for $1,700, and made certain representations as to the quality and value of said stallion, and that he was not of the value or quality as represented; that in violation of said agreement, and without his knowledge and consent, Kniffin & White obtained possession of the notes, after they had been signed by plaintiffs in error, in some way to him unknown, and that he never received any consideration for said notes, and that plaintiff never received any legal right or ownership to said notes by the transfer of the same by Kniffin & White to him, for the reason that Kniffin & White never had any right to sell said notes, the same never having been delivered to them; that said notes were obtained through the false and fraudulent representations of Kniffin. He further answered, denying that plaintiff bought said notes before due, and stating that, if he did buy the notes before due, he was a party to the aforesaid fraudulent acts of Kniffin, and was in collusion with Kniffin & White to cheat, wrong and defraud the makers of said notes, and had them assigned to himself for the purpose of aiding Kniffin & White to cheat the defendants and to collect said notes; that he had given notice in two newspapers, warning all persons not to purchase said notes.
The answers of the other defendants were in substance the same as that of Squier, above set forth, except that some of them set forth other defenses to said notes, as follows: MacRitchie claimed that he had signed the notes while he was intoxicated, and that his intoxication was procured by Kniffin & White, and he had no knowledge as to his acts in' signing said notes, and was not responsible therefor; that Johnson never made any demand on him for the amount due upon said notes until more than one year after the maturity of one of the notes. Herring, in his answer, alleged that Johnson and Kniffin & White were in partnership at the time the notes were executed and assigned, and were sharing the profits arising from the business in which they were engaged, to wit, of selling grade horses, representing the same to be thoroughbred imported horses, and that Kniffin & White owed him $200 for board and lodging, livery, feed bills, and labor. To each and all of said answers the plaintiff, Johnson, filed his reply, denying each and all of the allegations of said answers, and his reply to the answer of Herring alleging partnership of Johnson with Kniffin & White was sworn to.
The defendants, having alleged in their answers that the notes sued upon, were procured by Kniffin & White from them by fraud and without consideration, on the trial the plaintiff, Johnson, testified before the court and jury in regard to the circumstances under which he became the owner and holder of the notes, and that he was a bona fide purchaser of the same for a valuable consideration and before maturity. He testified that, in April, 1887, he was introduced to Kniffin & White by one Halloway, in his store in the city of El Dorado, Kas., and he learned that they had sold horses through the country, and had some notes for sale. He inquired of several parties as to the responsibility of the makers of the notes, and, among others, of the officers of the National Bank of El Dorado, and ascertained that they were good, bankable notes, and made an offer for them, but went away from El Dorado to his home in Doniphan county without buying the notes, thinking when he went away that the notes were about to be sold to other parties in. El Dorado. He testified further, that some time thereafter Kniffin came to his office in Doniphan county with the notes, and notified him that he would accept his proposition made in El Dorado. His offer was a discount of about 4 per cent., so that the notes, which drew 8 per cent, interest, would make his money net him 12 per cent., and that he paid for the notes their full face value in money less only such small discount.
The testimony of Mr. Johnson, the plaintiff, was fully corroborated by the testimony of the witnesses Thompson, Ewing, Halloway, and Fouteh, all of whose testimony showed that Johnson was a bona fide purchaser of the notes for a valuable consideration and before their maturity, and without any fraud or collusion of any kind with either Kniffin & White or any one else, and that he purchased the same after making full inquiry in regard to the financial responsibility of the makers, and without any notice that the notes had been procured from the makers by fraud or undue means or without consideration.
The plaintiff below then rested, and the defendants below asked Clinton Squier, whom they had placed on the witness stand, this question: “ If you signed these notes, you nmy state to the court under what circumstances you signed them.” To this question an objection was made, on the ground that, under the issues made by the pleadings and the evidence introduced by Johnson, the plaintiff below, it was incompetent and immaterial, and this objection was sustained by the court. Thereupon counsel for the defendants offered to prove by all of the defendants in the ease that the notes in controversy were never executed by the signing of the names of all the parties that were to sign them when the contract was made with Kniffin & White. To this the plaintiff again objected, as incompetent, irrelevant, and immaterial, and his objection was sustained by the court.
Defendants then offered to prove by all of the defendants that they never delivered the notes to Mr. Kniffin or to Kniffin & White or to any other person, and never issued the notes to any person, and to this offer the plaintiff again objected, upon the same grounds as before, which objection was sustained. The defendants then offered to prove specially by 'Herring that Kniffin, without his knowledge and consent, took the notes from his possession and hurriedly left the city of Beaumont before he knew he had possession of the notes, taking a freight train; to which the plaintiff objected for the same reasons, which objection was sustained. Defendants’ attorney then offered to prove by all of the defendants except Herring that the horse for which the notes were supposed to be executed was never delivered to either of them, and that no other consideration was'given for the notes; to which plaintiff again objected for the same reasons, and the objection was sustained. Then the defendants offered to prove by the defendant MacRitchie that, if his name is to the notes, Kniffin first procured his intoxication to such an extent that he was rendered wholly incompetent to contract, and had then no knowledge of having signed the notes, and did not know he had signed them if he did, until more than two years after the execution and delivery of the notes; to this the plaintiff objected for the same reasons, which objection was sustained by the court. Thereupon the defendants’ attorney offered to prove by the defendant Learning that MacRitchie was in a state of intoxication that rendered him entirely incompetent to contract or do any business at the time that they claim the notes were signed; to which offer the plaintiff objected, as being incompetent, irrelevant, and immaterial, and the same was sustained by the court. And the defendants not having any further testimony, and not offering to prove any other issue in the case, the court directed the jury to bring in a verdict for the plaintiff, Johnson, which was accordingly done.
All these objections were properly sustained, for the reason that Johnson, having taken the burden of proving that he was an innocent purchaser of the paper before maturity, and there being no conflict in the evidence that he was, these offers were not competent without being accompanied by an offer to prove that the facts were known to Johnson before he purchased the paper. No offer of this kind was made by the defendants at any time during the trial. Johnson was presumably a bona fide holder, as appeared from the written indorsements. He fortified his position as such by some very satisfactory evidence, and then rested. It was absolutely necessary that the defendants should not only offer to prove a good defense, but that Johnson knew the facts constituting their defense before he purchased the notes. They rested their case without an offer or attempt to do so, and herein they failed. The court had a right to order a verdict, and the trial court or this court can make a proper computation.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This case was tried in the district court of Shawnee county on an agreed statement of facts, which shows that the real estate in controversy, situate in Shawnee county, was owned by one Helen M. Jones. She died intestate April 5,1875, leaving as her sole heirs her husband, Thomas W. Jones, and two children, Helen M. Jones and Susan I). Jones, who were, at the commencement of this action, minors. She owned also land in Osage county. Affidavit for attachment was duly filed in the district court of Osage county, on the 16 th day of July, 1878, in an action brought by F. E. Denman, administrator of the estate of H. B. Denman, deceased, against the said Thomas W. Jones and the said minor heirs of Helen M. Jones, on a note executed by said Thomas W. Jones and Helen M. Jones, during the lifetime of said Helen. The affidavit for attachment is as follows:
“State op Kansas, Osage County.
“ E. H. Denman, being first sworn in due form of law, on his oath says that he is the plaintiff above named, and is the duly qualified and acting administrator of the estate of H. B. Denman, deceased; that on the 11th day of July, 1873, the defendant, Thomas W. Jones, and his wife, Helen M. Jones (since deceased), executed their note to H. B. Denman (since deceased) for $500, with interest thereon, payable annually, at 12 per cent, per annum, and also for attorney’s fee if suit be instituted on said note; that Helen M. Jones since that time died, leaving the defendants surviving her as her heirs at law; that she died seized in fee of certain lands in the state of Kansas; that there has been no administrator on her estate in the state of Kansas, and no guardian appointed in said state for said minor heirs, Helen Maria and Susan Denman Jones, and that defendants are indebted to plaintiff on said note in the sum of $940.34; that said claim is just, due, and wholly unpaid. And affiant believes he ought to recover the sum of $940.34 on said note. Affiant says further, that all of said defendants are non-residents of the state of Kansas.
Feed. H. Denman.
“Sworn to and subscribed before me, this 1st day of July, 1878. [seal.] W. D. C. Smith, Notary Public.”
The affidavit for publication was filed on the 18th day of August, 1879. Proper service by publication and proof thereof was made. On the 24th day of October, 1879 — 21 days after the answer was due by the terms of the publication — the adult defendant, Thomas W. Jones, having failed to answer, the court, on motion of the plaintiff, appointed James Rogers as guardian of the minor children (defendants). He filed the usual answer — general denial. On the 24th day of October, 1879, the case was called for trial. The court found that due service by publication had been made, and that proof thereof had been made and duly approved, tried the ease, rendered judgment for plaintiff, and practically ordered the attached land to be sold for the payment of the judgment and costs, and that all the defendants be barred and foreclosed. An order of sale was duly issued to the sheriff of Shawnee county, appraisement duly made, sale made to J. L. Beverly, return of sheriff made, sale confirmed, deed to purchaser made by the sheriff, and by proper conveyances the title went from the purchaser at sheriff’s sale to Warniek, the defendant below. The note on which the Osage county case was brought was executed by Thos. W. Jones and Helen S. Jones, the father and mother of the minor children, on the 11th day of July, 1873, and was made in Kansas. Between that time and 1877, the father and children removed from the state, and in 1888 Thos. W. Jones, the surviving husband, conveyed his interest to Nellis, one of the plaintiffs. War-nick, defendant below, is in possession. The sheriff’s deed to Beverly was executed January 22, 1880, and recorded February 2, 1880.
It will be seen from the above statement of facts that the petition was filed on the 16th day of July, 1878; that an order of attachment was issued on the same day, on an affidavit of date July 1, 1878, but that no affidavit for publication against the non-residents was filed until the 18th day of August, 1879, or for more than 13 months after the petition was filed and the order of attachment issued. Was a suit commenced at the time of the issue and service of the order of attachment? This is the first and most important question in the case. If it is answered in the negative, it disposes of the case, and no further inquiry is necessary. The code provides (¶ 4136, Gen. Stat. of 1889) that an action may be commenced by filing a petition and causing a summons to be issued thereon. In the case of Dunlap v. McFarland, 25 Kas. 488, it is said: “Of course an attachment cannot rightfully be issued before the action (of which it is only an incident) is commenced. The action was commenced when the petition and praaipe were filed, and when the summons was issued.” In the reported case the petition, pracipe and affidavit for attachment were filed April 16, 1878. On the 17th of April, an affidavit for publication was filed, and the first publication of summons was made on the following 19th day of April. This court held that the order of attachment did not issue before the commencement of the action, as the first publication of summons related back to the filing of the petition.
In the case of Bannister v. Carroll, 43 Kas. 64, it is said:
“When at the time of filing a petition an affidavit for the constructive service by publication is filed, and publication follows in due time, this is causing a summons to issue thereon just as effectual for its purpose as the other mode of service.”
All the sections of the code with reference to the time at which an action is to be deemed to have been commenced are carefully considered in the case, and the conclusion is reached that the proper construction to be given ¶4136 is—
“That when a petition is filed and a summons served, or the first publication is made within 60 days, such service relates back to the time of the filing of the petition and prcecipe and other necessary papers, and by such relation the suit is to be deemed to have been commenced at the date of their filing.”
It seems from a consideration of the various sections of the code that in any event a suit cannot be said to have been commenced unless the service of a summons is made or the first publication of notice is made within 60 days from the date of the filing of the petition and other necessary papers. This being so, no action had been commenced at the time of the issue, levy and return of the order of attachment that seized the real estate in controversy in this action. This fatal defect in the record of the Osage county case, under which the defendant in error claims title, compels us to recommend a reversal 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.:
The defendant, William E. Plum, was charged upon two counts of an information with violating the provisions of tlje prohibitory liquor law. He was found guilty upon the first count, and sentenced to 30 days in the county jail, to pay a fine of $100 and costs, and to stand committed to the county jail until the fine and costs were paid. He appeals to this court, and complains of various rulings.
After the regular panel of jurors had been exhausted, and the sheriff had commenced to fill the panel with talesmen, the defendant objected to the sheriff or his deputies being permitted to name the talesmen because of the interest they might have in the result of the trial. The court, with the consent of both parties, then proceeded to name the talesmen, and among such names placed one as talesman who had been previously selected by the sheriff. Upon this talesman the defendant exhausted his last peremptory challenge. It is urged that this is a sufficient cause for a new trial. We do not think so. There is nothing in the record tending to show that the sheriff was guilty of partiality in naming the juror, or that the court knew the sheriff had summoned this juror. As the record is presented, the jury impaneled and sworn in the cause were properly qualified and free from all legal exceptions.
In order to establish that hop tonic, which the defendant admitted he sold, was intoxicating, the county attorney, sheriff, deputy sheriff and county clerk testified they drank the same, and that it had an intoxicating effect. It is claimed the court erred in admitting the testimony of these officials, and also that the defendant ought not to have been convicted upon testimony from such interested witnesses. Under the law, these officials were competent witnesses. Their credibility and the weight of their testimony were for the jury and the trial court.
“It is the duty of a trial court, whenever the verdict is clearly against the weight or preponderance of the evidence, to set it aside and grant a new trial. The supreme court, however, has no such power. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict — not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact —and where the trial court approves the verdict by refusing to set it aside, and by rendering a judgment thereon, the supreme court cannot disturb it, although a preponderance of the evidence may seem to be against the verdict.” (U. P. Rly. Co. v. Diehl, 33 Kas. 422.)
It is further claimed that the verdict returned by the jury was the result of a compromise, and therefore must be set aside. The general rule is, that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. The affidavits in this case tend to show that several jurors stated they “only agreed to the verdict in order to avoid a hung jury.” These were statements made after the verdict concerning matters which essentially inhere in it, and therefore cannot be considered to impeach or overthrow it.
“Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to •disturb the expressed conclusions of 12; its tendency is to induce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict.” (Perry v. Bailey, 12 Kas. 539.)
A question is also presented concerning the costs which were adjudged against the defendant. The rule is-properly stated in The State v. Brooks, 33 Kas. 708:
“Where a defendant is prosecuted in separate counts for several violations of the prohibitory liquor law, and is found guilty under some of the counts and not guilty under the others, he should not be required to pay costs accruing under the counts under which he is acquitted, but should recover costs.”
But the record brought to this court is not properly certified as a transcript. We cannot accept and consider a paper filed in a criminal appeal purporting to be a transcript, unless it is duly authenticated by the clerk, with his certificate that a full transcript of the case is before us. (Whitney v. Harris, 21 Kas. 96; Lauer v. Livings, 24 id. 273; The State v. Lund, 28 id. 280; The State v. Nickerson, 30 id. 545; The State v. Fink, ante, p. 577; same case, 31 Pac. Rep. 144.)
If the costs have been improperly taxed, the trial court will undoubtedly correct the same, if its attention is properly called thereto. Other alleged errors are referred to in the briefs, but even if the case were properly here upon a full transcript, we perceive nothing substantial in the complaints.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
In an action by Moore & Almond against one Samuel Black, a horse in the possession of said Samuel Black was attached, and afterwards sold by' the constable as the property of Black. After the sale, William Black, who was the father of Samuel Black, claimed the horse, and commenced the action against A. C. Schilling, constable, and A. Van Fassen and R. D. Faught, sureties on his official bond, alleging a breach of the condition thereof in seizing and selling said horse in a proceeding against Samuel Black, to satisfy a debt of said Samuel Black.
The defendants in the court below demurred to the petition of the plaintiff in that court, and, as grounds therefor, alleged: 1. A defect of parties, both plaintiff and defendant. 2. That causes of action were improperly joined. 3. That the petition does not state facts sufficient to constitute a cause of action. Demurrer overruled.
In the argument of the case in the brief of the plaintiffs in error, there is no claim of any defect of parties plaintiff but it is alleged that there exists a defect of parties defendant, in this, that the sureties on the constable’s official bond, who are joined with him in the action, should not have been made parties thereto; that the action should first have been brought against the constable individually, and, if satisfaction could not be had against him, that proceedings might then be instituted against the sureties on his bond. The bond of the constable was joint and several, and the action was properly instituted against all the obligors thereon, for a breach of its condition. Jenks v. School District, 18 Kas. 356; Swerdsfeger v. The State, 21 id. 475.
In the second place, complaint is made that causes of action are improperly joined, to wit, a cause of action against the constable with a cause of action against the sureties.
We think a cause of action against a constable for a breach of the condition of his official bond may be joined with a cause of action against the sureties on said bond for such breach.
In Hoye v. Raymond, 25 Kas. 665, the case cited in defendants’ brief, Mr. Justice Valentine says: “ We also think that the constable and his sureties might be joined in one action upon the constable’s bond.” In this case the cause of action is the alleged breach of a joint as well as several obligation, and there would seem to be not only no reason, under our code, why the constable and the sureties on his official bond should not be joined in an action for a breach thereof, but that the better practice would suggest such joinder.
. The argument that the petition does not state a cause of action is based upon the idea that proceedings cannot be had against the sureties until the remedy against the constable has been exhausted, and that, as the petition does not show proceedings first had against the constable, it states no cause of action. We think the premises of this argument wrong, and, therefore, the conclusion is untenable. The court did not err in overruling the demurrer to the petition. The de murrer thus disposed of in the court below, an answer was filed containing a general denial and three special defenses. To each of the special defenses a demurrer was interposed by the plaintiff below. This demurrer was sustained as to all of such defenses, the court holding that the matter set out therein as matter of estoppel did not amount to an estoppel, and, therefore, constituted no defense. The sustaining of this demurrer is alleged as error, and, as we think, presents the only important question in the case. It is alleged that William Black, the plaintiff below, was present in the court when the case of Moore & Almond against his son Samuel Black was tried; that he knew that the horse which he after-wards claimed as his own had been attached in the proceeding against his son; that judgment had gone against his son in that proceeding, and that the attachment proceeding was affirmed by the court, and au order for the sale of the horse issued to the constable, one of the defendants below, and that the horse was duly advertised and sold on said order of sale; that he was also present at the sale and saw the horse sold, without, at any time during the trial, before or at the sale, giving any notice to the officer, or any one else, of his .claim to the horse, or making any demand upon the officer therefor. And it is claimed that such conduct on the part of the defendant herein estops him from subsequently claiming the horse as his own. Did such conduct on the part of the defendant amount to an estoppel? When an officer wrongfully seizes the property of one person upon process against another, is the latter required to make any claim of property before commencing proceedings for the recovery? May he not, with full knowledge of each step taken in the proceeding under which his property is seized, remain silent until the last act therein is closed, and then commence pro-' ceedings for its recovery, or the recovery of its value? Whatever the rule may be in an action by the owner against an innocent purchaser of property, which the former has seen the latter purchase at judicial sale and pay for, without any notice of claim to the property by the former, we do not think that, in an action by the owner against an officer who has wrongfully seized and sold his property, the silence of the former, though aware of the seizure and sale, when made, will operate as an estoppel to his recovery. The seizure being wrongful, the silence of the owner forfeited none of his rights, nor did it cure the wrong of the officer. In McKinney v. Purcell, 28 Kas. 452, this court said:
“The original seizure was wrong. Defendant did not assent to it. Her silence during the continuance of the attachment, and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.”
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
May 14,1888, the plaintiffs commenced suit in the district court of Linn county, against Mrs. M. S. Frog, formerly Mrs. M. S. Fouts, on a promissory note. At the commencement of the action, Mrs. Frog was a resident of Carroll county, Arkansas. The plaintiffs procured an attachment to issue, which was, on the 15th of May, 1888, levied upon a tract of land then the property of said defendant. The summons was served upon Mrs. Frog on the 19th day of said month, in Carroll county, Arkansas, by a deputy sheriff of that county. No other service was had until January 3, 1889, when service by publication was had. June 5, 1889, judgment was had by the plaintiffs against Mrs. Frog, for the amount of her note sued on, and the attachment proceedings were affirmed. On the same day, the defendant Roberson filed an interplea in the case, setting up title to the land attached, based on.a deed from the other defendant to himself, acknowledged June 9,1888, and recorded the 13th of. the same month. The issue between the plaintiffs and this defendant was tried in September, 1889, resulting in judgment for Roberson, setting aside the attachment and affirming his title to the land. The question is, Did the plaintiffs have a valid lien upon the land by their attachment at the time the interpleader obtained his deed? We think this question must be answered in the negative. The service obtained on the defendant Frog in Arkansas was void. It was not made by the officer authorized by our statute to make such service. (Gen. Stat. 1889, ¶ 4159.) “In all cases where service may be made by publication, personal service of summons may be made out of the state by the sheriff of the county in which such service may be made.” (Flint v. Noyes, 27 Kas. 353.) The statute authorizes the summons to be served out of the state by the sheriff, and names no other person, and the service cannot be made by a deputy or any other person acting as a substitute for him. The statute also requires the service to be proved, or verified by affidavit, which was not done in this case.
Plaintiffs in error contend that the attachment was valid at the time the defendant Roberson obtained his deed, because the 60 days within which service might have been had had not yet expired, and that the subsequent failure of the plaintiffs to obtain service within 60 days could avail him nothing. If the plaintiffs had followed up the commencement of their action by obtaining service within 60 days therefrom, then the fact that the interpleader obtained title after the commencement of such action, and before service, would have availed him nothing; but when the plaintiffs failed to obtain service within 60 days from the commencement of their action, the whole proceeding, including the attachment, failed. There was nothing, therefore, to prevent the interpleader from taking the land freed from any lien on account of such attachment.
. Counsel for plaintiffs in error says: “The only defect, if any, in the service of the summons, is in the return of the officer.” In this we think counsel is mistaken. The difficulty with the service of the summons is, that it was served by one who had no power to serve it, and it stands, therefore, as though no service had been had. Service by one who has no power to make it is a void service; and where such service is the only service had within the proper period under the statute, the action fails. The subsequent service by publication could not affect the interpleader whose title was obtained prior thereto.
It is recommended that the judgment of the court below 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
Smith, J.:
This was a suit brought by the railway company to enjoin the owner of a farm through which its road runs from removing, breaking down and opening the fences enclosing the right of way. The facts may be briefly stated: The farm consists of about 200 acres. In August, 1864, the Atchison & Pike’s Peak Railroad Company condemned a right of way 100 feet wide over and through it. Thereafter the Central Branch Union Pacific Railroad Company became the successor of the Atchison & Pike’s Peak road and acquired said right of way, and has ever since run its trains over it. At the time this 100-foot strip was so condemned the real estate was owned by J ames Baldwin. Under the law as it then existed, the railroad company acquired a fee-simple title to the land taken by condemnation for right of way. (Laws 1864, ch. 124; K. C. Rly. Co. v. Allen, 22 Kan. 285.) In September, 1870, James Baldwin sold the farm to James Conlon, with the following exception contained in the deed : “The right of way has been given to P. P. railroad by said Baldwin.” In June, 1872, James Conlon conveyed to William Bowen with the same recital in his deed. On July 26, 3872, Bowen deeded the land to Anna Conlon by similar conveyance.
In 1872 the Atchison, Topeka & Santa Fe Railroad Company, of which plaintiff in error is the successor, acquired by condemnation a strip of land 42-J- feet wide on the south side of, and within, the 100-foot strip formerly acquired in fee by the Atchison & Pike’s Peak Railroad Company. The Santa Fe road was built in 1873. Before the latter took possession of the 42i-foot strip condemned, the Central Branch Union Pacific railroad had put in a plank crossing oyer its rails for the accommodation of Mrs. Conlon, and at about the same time fenced the track, but provided gates through which the owner of the land might go from one part of her farm to the other. Immediately after constructing its road over the land, in 1873, the Santa Fe company laid a crossing of planks over its track and ties directly south of the crossing put in by the Central Branch company, and corresponding therewith. This crossing was maintained by the plaintiff in error and its predecessor from the time mentioned until May, 1897. In 1882 the Santa Fe company enclosed its right of way with a lawful fence and built therein gates opposite the crossing.
This crossing has been in use by the owner of the farm since the construction of the railroads, principally for driving cattle from the north to the south side of the land, and vice versa. In February, 1897, the railway company notified Mr. James Conlon, the husband of Anna Conlon, that unless the gates were kept closed, except when in actual use, they would be taken out and the openings shut. In May following, the company caused the gates to be nailed up and the crossing removed, notifying Mr. Conlon of its action. Thereupon the latter cut down the wires and left the space open where the gates were located.
In her answer and cross-petition the defendant below claimed a prescriptive right to use and enjoy the crossing, and the district court found that she was the owner of and entitled to a right of way across the right of way of plaintiff under such title. This judgment was affirmed by the court of appeals. After the commencement of the suit in the court below Anna Conlon died, and the action has been revived in the name of her heirs.
It is claimed by counsel for defendants in error that the crossing over the railroad-tracks was indispensable to the use of the farm and constituted a . T way of necessity. It is unnecessary to dwell on this contention. When James Conlon bought the land his grantor excepted in his deed the 100-foot strip, the fee of which had been taken from him by condemnation proceedings. The grantee obtained no title to it. He was in the same situation as if Baldwin, the grantor, had made two deeds, one to the land on the south and the other to the land on the north of the right of way. Conlon’s deed to William Bowen contained the same exception. The conveyance to Anna Conlon by Bowen also excepted the 100-foot strip. She bought land situated on both sides of a railway, with a fee-sirqple proprietor owning an estate between the two tracts at the time she took title. No rule of law will permit her to assert a dominant estate, from necessity, in any part of the intervening property.
The question remains whether, under the circumstances of this case, a prescriptive right to the crossing was obtained by a use of the same for more that fifteen years. The testimony shows that the railroad company made, in the first instance, and maintained during all the time of its use, a crossing of planks and earth suitable to the requirements of the landowner. Gates also were provided and kept in repair by the company, without expense to her. In Jones on Easements, section 282, it is said:
“If the use of a way over one’s land be shown to be permissive only, no right to use it is conferred, though the use may have continued for a century, or any length of time.”
Defendants in error assert a right of easement based on adverse enjoyment. Unless their ancestor used the crossing under a claim of right, and not as a privilege revocable at the pleasure of the railroad company, they have no defense to the action brought in the district court by plaintiff in error. There was no express contract or agreement between the parties at the time the crossing was first built and put into use by the landowner. The latter did not, at the beginning, claim adversely to the railroad company, but, on the contrary, the conduct of the parties shows clearly that a permissive privilege was given to her as a licensee merely. This status of the parties originally existing was no wise subsequently changed, unless the fact of the continued use of the crossing for more than fifteen years by Anna Conlon finally expanded into greater rights than she had at the beginning. A presumption of continuance obtains when a state of facts is once shown.
In Dewey v. McLain, 7 Kan. 126, 133, Mr. Justice Brewer quoted approvingly from Jackson v. Parker, 3 Johns. Cas. 124, as follows:
“An entry adverse to the lawful possessor is not to be presumed. It must appear by proof. The statute of limitations could not begin to run until the possession of the defendant was avowedly held in opposition to the right of the heirs.”
In Kirk v. Smith, 9 Wheat. 241, 288, 6 L. Ed. 81, 82, Chief Justice Marshall, delivering the opinion, said :
“It would shock that sense of right which must be 'felt equally by legislators and judges, if a possession ¡which was .permissive, and entirely consistent with the title of another, should silently bar that title. • Several cases have been decided in this court in which the principle seems to have been considered as generally acknowledged; and in the state of Pennsylvania particularly it has been expressly recognized. _ To allow a different construction would be to make the statute of limitations a statute for the encouragement of fraud — a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such construction.”
Mere use under a naked license, however long continued, cannot ripen into a prescriptive right. In Indiana an appellant alleged in his complaint that for fifty consecutive years a way had existed over the appellee’s land ; that for twenty years the way had been open to the appellant as an easement, and that he and his grantors had been permitted by the appellee and his grantees to use the way uninterruptedly for fifty years, and that in March, 1883, the appellee wrongfully closed up the way. It was held that under the facts so pleaded the appellant had a mere naked license to use the land, and such license was revocable at the pleasure of the licensor. (Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109.)
In the present case there is an absence of hostility to the rights of the railway company. The facts proved show that the possession and use by Anna Conlon were not adverse in their inception, but, on the contrary, began in a spirit of accommodation to her by the company. The repair of the crossing and the maintenance of gates by the latter for more than fifteen years, and the landowner’s use of the same, show that the privilege extended in 1873 was recognized as such by her during the time mentioned. (Dewey v. McLain, supra; Bennett v. Biddle, 140 Pa. St. 396, 21 Atl. 363; Dexter et al. v. Tree et al., 117 Ill. 532, 6 N. E. 506; Rosseel v. Wickham, 36 Barb. 386.)
The judgments of the court of appeals and the dis-. trict court will be reversed and a new trial granted. | [
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Error from Marshall district court.
Dismissed. | [
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The opinion of the court was delivered by
Pollock, J.:
Appellee Wood was convicted in the police court of the city of Topeka of a violation of ordinance No. 2061 of said city, appealed to the district court of Shawnee county, and there filed his motion to dismiss the prosecution and for his discharge, upon the ground that said ordinance is void for want of authority in the city to enact the same. This motion was sustained, the complaint quashed, the defendant discharged, and costs adjudged against the city, which appeals to this court.
The appellee challenges the jurisdiction of this court. The city claims the right of appeal by virtue of chapter 75 of the Laws of 1891 (Gen. Stat. 1897, ch. 82, §150; Gen. Stat. 1899, §785). Therightdoes not exist independently of this act. (City of Salina v. Wait, 56 Kan. 283, 43 Pac. 255.) Does this statute confer such right upon the city in this case? We think not. The title to the act is “An act relating to cities of the first class, and providing for appeals from the police court of such cities in certain cases.” The first section reads:
“Section 1. Appeals from the police court of a city of the first class to the district court and from there to the supreme court may be taken by the city in the following cases, and no other: First, upon a judgment for the defendant on quashing a complaint; second, upon an order of the police judge arresting the judgment; third, upon a question reserved by the city.”
The title contains no general terms, but is expressly restricted to appeals by the city from the police court in the event certain rulings are therein made against the city and in favor of the accused, a right which theretofore did not exist in the city. The body of the act attempts to extend this right of the city not only to appeals from the police court in the event that these certain rulings are made in favor of the accused and against the city, but also to confer upon the city the right to appeal from the district court to this court in the event the ruling of the district court is again in favor of the defendant and against the city, and in so doing violates section 16 of article 2 of the constitution, for it cannot be said that the second right of appeal by the city, not from the police court to the district court, but from the district court to this court, is clearly expressed in this title. Indeed, it cannot be said that it is expressed or included in this title at all.
Again, in this case the city was not called upon to exercise any right of appeal from the police court, the judgment of that court being in favor of the city and against the defendant. The ruling of the district •court, however, was against the city and in favor of the defendant, and it is from this ruling that the city appeals. The right of appeal by the city in such event is not only not clearly expressed in the title of the act but is not contemplated by the act itself.- It follows that the appeal must be dismissed, and it is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
The first and important question to be considered is whether or not, under the facts as they have been made to appear, this court will enter into an investigation of the controverted matters presented, involving the regularity of the proceedings had in the convention at Olathe, and decide which candidate was nominated according to the usages of the party and in conformity to the rules of parliamentary law applicable to deliberative bodies. The tribunal created by the statute, consisting of the secretary of state, auditor, and attorney-general, after considering testimony offered by the interested candidates on both sides, made findings of fact and reached the conclusion that Mr. Sponable had been regularly nominated.
We are asked to overturn this decision, not upon any allegation or proof of fraud or arbitrary action upon the part of the secretary of state and his associates, but solely on the ground that their conclusion is based on a misapplication of the rules 0-f parliamentary law and disregard of usages and party customs which have long prevailed in the calling of political conventions and in the conduct of their proceedings. We are fully convinced that this court ought not to ignore the determination arrived at by the tribunal mentioned, which is endowed by law with power' to pass on such questions as the relator has attempted to have us decide.
Chapter 129 of the Laws of 1897 (Gen. Stat. 1897, ch. 52, art. 4; Gen. Stat. 1899, §§ 2632-2665), as amended by chapter 17 of the Special Session Laws of 1898, regulates the-manner of holding elections, the nomination of candidates, and the printing and distribution of ballots. It provides a complete method unknown to the common law, and introduces what is known as the Australian-ballot system, which, with slight modifications, has been adopted in nearly all the states of the union.
Section 10 of the act of 1897 (Gen. Stat. 1897, ch. 52, § 44 ; Gen. Stat. 1899, § 2641) provides that after nomination papers have been filed in apparent conformity to the law they shall be deemed valid unless objection is made in writing within three days thereafter. In the case of state officers or others to be elected by the voters of a division less than a state or greater than a county, the objections are to be passed upon by the secretary of state, auditor, and attorney-general, and a decision of a majority of these officers is made final. It will be noted that the state officers named who are to act in such cases are not only vested with jurisdiction to pass on the regularity of the nomination papers, but additional power is given them to consider “other questions arising in relation thereto.” Notice is required to be given to the candidates interested when the hearing will be had. It is plain that these officers are authorized under this statute to consider just such questions as we are now called on to decide, and in express language the legislature has said that their decision shall be final.
It is a cardinal rule that when a right given is solely and exclusively of legislative creation, and does not derive existence from the common law or from rules prevailing in courts of equity, and jurisdiction of it is limited to particular tribunals, and specific, peculiar remedies are provided for its enforcement, the jurisdiction and remedy can be exercised and pursued only before the tribunals and in the mode the statute has provided. (Suth. Stat. Const. § 399; Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.)
Before the introduction of what is known as the Australian-ballot system the election laws of the state did not give public control over the ballots until they were deposited by the voters, and any candidate might distribute among the electors any form of ballot which he saw fit. Any person might be a candidate for office without a previous nomination. The law mentioned has changed this, and now the voter is not only completely protected in the secrecy, of his ballot and with freedom from interference when casting it, but the candidate is benefited by having his name printed on an official ballot containing the names of- those legally entitled to contest for the office, whose right so to do depends on the observance of certain statutory requirements.
When the contestants for state senator were before the convention of delegates from Miami and Johnson counties for nomination, each knew that his recognition as a candidate depended upon his name appearing on the official ballot. Hence each filed a certificate with the secretary of state showing his selection as a nominee of the party. It was not compUisory 0I1 either one to accept a nomination, but having done so they cannot deny the obligatory force of the terms imposed by the election law, and they must take and abide by the conditions contained in the statutes along with the benefits conferred. They cannot be permitted to adopt that part of the statute which is beneficia 1 and repudiate other parts of the same law imposing limitations which they may claim to be burdensome. If there are disadvantages in the law to which they do not desire to subject themselves, they must disavow all protection granted by not appearing as candidates. It may be answered that the candidate can have no option, but is compelled to submit to the terms and conditions of the one statute governing nominations and elections, and having no freedom of choice he ought not to be concluded by pursuing the only course open to him. This objection is met, however, by the fact that no citizen is compelled either to seek or accept a nomination or an election to office. If he is dissatisfied with the requirements of the law prescribing who shall finally determine the regularity of his selection as a nominee, he must not make himself a party to a contest before such tribunal.
This is.but an application of a familiar rule, well settled in the law of contracts and agency, and equally in force where new statutory rights are given and a specific tribunal created to pass on them, not provided for at common law. (Sedg. Constr. Stat. & Const. Law, 343; Chandler v. Hanna, 73 Ala. 390; Dudley v. Mayhew, 3 N. Y. 9; McIntire and wife v. Western N. C. Railroad Co., 67 N. C. 278; Broom, Leg. Max. 473.)
"We do not hold, however, that if the action of the officers specially designated to pass on the merits of such a controversy was induced by bad faith, or was the result of arbitrary acts showing wrongful conduct amounting to fraud, or their findings resulted in personal benefit to themselves, equity would not interpose to prevent a candidate from being thus wronged, or that the remedy by mandamus, sought to be employed in this case, might not be invoked.
In the case of Sims v. Daniels, 57 Kan. 552, 46 Pac. 952, it appeared that the republican party of Wyan dotte county divided itself into two factions, each claiming to be the regular organization, and each nominating candidates. John T. Sims and other nominees for the various county offices to be filled that year brought an action of mandamus against the county clerk to compel him to place their names on the official ballot, the clerk having theretofore recognized the nominees of the other faction of the party as regular candidates and decided that they alone were entitled to a place on the ticket. A majority of this court held that the county officers whose duty it was to consider objections to certificates of nomination, and nomination papers, had no power or authority to determine which of the two opposing factions was the true representative of the party, nor to exclude the candidates of either faction from appearing on the official ballot after the nominations had been regularly certified to the county clerk in the manner pointed out by law.
Since that decision, however, chapter 17 of the laws of the special session of 1898 has gone into effect, providing “that the name of not more than one nominee for each office to be filled at the election shall be placed in any one column on the ballot.” (Gen. Stat. 1899, §2645.) We conclude, from reading the opinion in the Sims case, that the amendment just mentioned, had it been in force at the time, would not have changed the conclusion reached by the majority of the court, which was in substance that the special tribunal created to determine such questions (consisting in that case of the county clerk, clerk of the district court, and county attorney) could not make a final decision which would be conclusive upon the courts. The power conferred by the Australian-ballot law on the county officers named is the same as that given to the secretary of state, auditor and attorney-general in cases where the nomination of a state senator is in question; that is, to consider “such objections, or other questions arising in relation thereto, Jand a decision of a majority of these officers shall be final.”
The court, in the Sims case, based its conclusion upon the fact, among others, that the tribunal designated in the law might abuse its powers; that in a large percentage of elections the officers appointed to pass on the nominations are themselves candidates before the people at the election and directly interested in the result, and therefore in the determination of the questions presented to them; that it is to their interest to avoid factions within their own party, and to cause divisions and discord in the ranks of their opponents ; that a final decision by such officers would tend to the domination of machine politicians. The power of the legislature to constitute the tribunal and make its conclusions decisive is not discussed in the Sims case except in the general manner above indicated. We do not agree with the majority of the court in the result there reached on the proposition stated. The legislature has placed the jurisdiction to. decide objections to nomination papers “and other questions arising in relation thereto” with a specially constituted board of officers, and made its determination final, on a hearing after notice.'
The case of Chapman v. Miller et al., 52 Ohio St. 166, 39 N. E. 24, arose over the decision of the state supervisor of elections (on the failure of the deputy state supervisors to agree) , in determining that candidates nominated by one faction of the people’s party of Mercer county, Ohio, should be placed on the official ballot for county offices. The statute in that state, like ours, provides: “Such objections or other questions arising in the course of nominations of candidates for county offices . . . shall be considered by the deputy state supervisors of the county . . . and their decision shall be final.”
In ease of their disagreement the same authority is given to the state supervisor. The court, in pass-sing on the question, at page 176, said:
“It will be noticed that the decision of the board of deputy supervisors, as well as the decision of the district or circuit board, is final. Also, that the decision of the state supervisor is final, whether made as to candidates for state officers or presidential electors, in the first instance, or county, district or circuit officers, upon submission to those boards. The statute provides that the questions shall be summarily decided, and that the decision shall be final. This necessarily excludes the jurisdiction of the court of common pleas as to the subject-matter, and it is clear that the judge of the court of common pleas was without jurisdiction, and that his order granting the injunction was utterly void and of no effect, and furnishes no excuse for the refusal to obey the order of the state supervisor of elections.” (See, also, In re Redmond, 25 N. Y. Supp. 381.)
To say that the board of state officers is liable to abuse its powers and discharge its duties with selfish ends, and that the influence of party bosses may be augmented, is an argument which should be made to the legislature, for on that body all responsibility for the law must rest. In his dissenting opinion in the Sims case Mr. Justice Johnston answered the argument of the majority of the court, and we think his reasoning is more satisfactory than that employed to support the opposite view.
It is objected that the state officers constituting the tribunal mentioned are clothed with judicial power, from which there is no appeal, and therefore that the legislature has created a court not named in the constitution and not inferior to the supreme court. It may be conceded that this tribunal is endowed with quasi-judicial power. It is important that it act expeditiously, and to permit appeals or proceedings in error to be taken from its decisions would often defeat the purpose of its creation. The right of appeal is not an inherent one. Such right did not exist at common law, and has always been statutory. The legislature may, within constitutional limits, regulate the mode of procedure and prescribe the acts that must be done by a party who desires to perfect an appeal. The subject is' legislative, and the discretion of the legislature cannot be controlled by the courts, although the latter may adjudge enactments which may violate the constitution to be void. (Elliott, App. Proc. §§ 75, 76, 354.)
A judgment denying the writ of mandamus prayed for was rendered on October 16, 1900, but for want of time no opinion was then written. This opinion is in pursuance of the judgment heretofore rendered. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a second attempt to obtain an order reviving a judgment, and was made about two years after the judgment had become dormant. The first application to revive the judgment was made within one year after dormancy and within the time allowed by statute, but it was made before a judge at chambers who had no authority to entertain the application or to order a revivor. Being disqualified and without authority, the order which was made by him was 'without force and has been held to be a nul lity. (Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755.) The time within which an order reviving a dormant judgment may be made without consent is one , year from the time when it could have been first jmade. (Civil Code, §§432, 433, 439; Gen. Stat. ¡1897, ch. 95, §§ 431, 432, 438; Gen. Stat. 1899, | §§4697, 4698, 4704; Tefft v. Citizens’ Bank, 36 Kan. 457, 13 Pac. 783.) As the present application was made two years after it could have been first made, it was too late, unless the previous illegal attempt to obtain an order of revivor in some way extended the time prescribed in the statute. The plaintiff relies on section 23 of the civil code (Gen. Stat. 1897, ch. 95, § 17; Gen. Stat. 1899, § 4267), which provides :
“If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure.”
It is argued that a proceeding to revive was begun in good time, which failed otherwise than on the merits, and that the present proceeding was brought within one year after the failure and within the time allowed in the section cited. The first attempt to revive, as we have seen, was an absolute nullity, and therefore the case stands as though no step had been taken or order made until this proceeding was begun. A proceeding in a court without jurisdiction is not an action, nor is the attempt to obtain an order of revivor before such a tribunal to be regarded as the commencement of an action.
There is a stronger reason, however, why the first attempt to revive and its failure do not operate to extend the time. In our opinion, section 23 of the civil code has no application to proceedings in revivor, which are summary in their character and may be had before a court or judge at chambers. That section presupposes an existing right of action and places a limitation on the remedy. In the matter of a revivor there is no right to an order, nor is there power within the court or judge to make one, unless it is made within one year after it could have been first made. The limitation in section 23 refers to the commencement of actions, and fixes the time within which a party must judicially assert his claim, while the limitation on revivor relates to the power of the court and fixes a limit for the final determination of the matter and the granting of an order. The first is a limitation on the remedy, while the second operates as a condition on the right itself, and, if a party fails to bring himself within the condition, the right to a revivor does not exist and there is no power in the court to revive the dormant judgment.
We conclude that the restrictions on revivor are not to be regarded as ordinary statutes of limitation, and that section 23 of the code has no application to revivor proceedings.
The ruling of the district court refusing the order will be affirmed. | [
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Error from Reno district court.
Certified. | [
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Error from Washington district court.
Reversed. | [
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Error from Lyon district court.
Affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action of injunction brought by the defendant in error as plaintiff against the plaintiffs in error to restrain the diversion of water from a stream on which the plaintiff was a lower, the defendants upper riparian proprietors. The injunction was made perpetual, wherefore the defendants have prosecuted error to this court.
Prom the pleadings, it would seem that the plaintiff based his right to the injunction upon some previous appropriation of the water by condemnation proceedings, had under some of the statutes relating to the subject of irrigation; but the case was not tried wholly upon his right acquired under the statute, but also upon his common-law right independently of the statute ; and the terms in which the judgment of the court was rendered are comprehensive of his common-law as well as of his statutory right. It will not be necessary to consider the character or measure of right, if any, acquired by the plaintiff under the statutory condemnation proceedings. The evidence showed that the defendants in error, the upper riparian proprietors, first conducted water out of the stream through two ditches, and finally through a third one. No complaint was made of the diversion of the water through the first two ditches. The plaintiff conceded the right of the defendants to the exclusive use of such water as was conducted through those ditches. He complained only of the diversion of water through the last one, and the ground of his complaint was that the water diverted through that ditch was applied by the defendants to no substantial, beneficial use, but, on the contrary, that it was allowed to run to waste upon a sand-bar and contiguous non-productive land. This claim was well supported by the evidence, and its truthfulness is included in the general findings and judgment of the court. What, then, is the law governing such case ?
Some doubts may have existed in the ancient common law as to the right of an upper riparian proprietor to appropriate all of the water flowing through his land, whether necessary to his reasonable purposes or not; but there can be no doubt now that he has no right, as against a lower proprietor, to appropriate any more of the water of the stream than is needed for his own beneficial uses. The uniform holdings of the courts are that he has no such right, and upon the non-existence of such right plans for the equitable division of water among riparian proprietors have been devised by statute in all of the states where irrigation can be successfully practiced. (Kinney, Irr. §§ 165, 166.)
"Water is too precious an article in the arid region to be permitted to run to waste, and the great weight of modern authorities hold that where a person has diverted a certain portion of the waters of a stream, and permits part of the water, so diverted, to run to waste, or fails to use a certain portion of the water for some beneficial use or purpose, he can only hold that part of the water diverted which has been actually applied to some beneficial use ; and his priority only extends to the quantity st> used. Also, the authorities hold that there was no appropriation as to the water not used, and which ran to waste, but that the same might be subsequently appropriated and held by other parties, provided they took all the proper steps, and they themselves applied it to some beneficial use or purpose, the final test in all cases being whether all of the water diverted is actually applied to some useful or beneficial purpose.” (Kinney, Irr. § 166.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
The important question in this case is, Did the judgment recovered in the former action become merged in the subsequent judgment, and thus extinguished ? The defendant in error, in its first action, included all causes of action which it held against Price and wife, and when judgment was rendered in that action all such causes became merged in that judgment. In the forceful language quoted by Freeman in his work on Judgments, section 115, they became “drowned in the judgment.” Black, in his work on Judgments, section 674, says:
“The cause of action is merged in the judgment and can never again become the basis of any claim against the defendant in the judgment. The original claim has, by being sued upon and merged in.the judgment, lost its vitality and expended its force and effect. ... So where judgment is recovered on a note, it is merged and extinguished, and a second judgment cannot be had thereon between the same parties.”
When the defendant in error recovered its first judgment against Price and wife, the several causes of action sued on became merged in that judgment for $16,728.09. This judgment then might have been made a cause of action, but as such it is inseparable and indivisible. The subsequent judgment obtained by the defendant in error must be held to have been on this greater cause of action, and not on a separate part of it. • If one has a single cause of action and elects to split it and recover on a part, this is a bar to a recovery on the remainder. In other words, the law declares that whatever of that cause of action is not sued on is merged in the judgment and thus extinguished. To hold otherwise would be to permit a creditor not only to embarrass his debtor but also to bankrupt him in interminable litigation, costs, and record liens on his property. The law will not tolerate this. It was held in Coal Co. v. Brick Co., 52 Kan. 747, 749, 35 Pac. 810:
“It is the policy of the law to avoid a multiplicity of actions, and a party is not' permitted to split a cause of action into two or more parts and maintain separate actions for each of the separate parts. A re eovery of one part of an action so split up will constitute a complete bar to a recovery upon any remaining portion thereof.”-
The same principle was again adhered to in Thistler v. Miller, 53 Kan. 520, 36 Pac. 1060.
In Bateman v. Railroad Co., 96 Mich. 441, 56 N. W. 28, Blaisdell executed to plaintiff a chattel mortgage on certain household goods, securing the payment of eighty-four dollars, according to the conditions of a certain promissory note of even date and collateral thereto. On February 28, 1889, plaintiff replevied the mortgaged chattels in the circuit court. In April, 1889, pending the replevin suit, plaintiff recovered judgment on the note before a justice of the peace. The replevin suit was afterward prosecuted to judgment, and the court found that there was nothing due on the debt secured by the mortgage in excess of the amount tendered at the commencement of the suit. Afterward plaintiff took out a writ of garnishment against the defendant in the proceeding before the justice of the peace. The defendant answered, pleading the finding and judgment in the replevin proceeding. The court held that this was a bar to the plaintiff’s action; that the judgment in the replevin suit, having become final, was binding and conclusive as to the subject-matter on all persons and on all courts.
In the syllabus in Gould et al. v. Hayden et al., 63 Ind. 443, the court said : “Where a judgment is thus recovered upon a judgment, the latter is merged in the former, and all of its liens or priorities released.” In the opinion, on page 448, the court used this language :
“Was the judgment first rendered in the court of common pleas of Union county, in this state, in favor of said Louis Stix & Co. and against said Louisa J. Johnson, so merged and absorbed in the judgment afterward rendered thereon in the court of common pleas of Warren county, in the state of Ohio, as to destroy the lien, vitality and other qualities of the first-named judgment?
“It seems very clear to us that this question must be answered in the affirmative. A judgment is a ‘debt of record’; and, whether foreign or domestic, an action may be maintained thereon for the recovery of such debt, even where it might appear that the judgment plaintiff could enforce the collection of his judgment by an execution issued out of the court in which it was rendered. ... If the precedent judgment is merged, as we think it must be, in the succeeding judgment, then it follows of necessity, as it seems to us, that the former judgment is completely extinguished. It has ceased to exist for any purpose ; it cannot be used again as the foundation for another action, and all its qualities and incidents are lost and swallowed up in the judgment obtained thereon.”
Under the laws of Mississippi, the sheriff or other officer is required, upon the levy of an execution upon personal property, to take a bond, if tendered with sufficient security, from the debtor, payable to the creditors, reciting the service of such execution, and the amount due thereon, in a penalty of double the amount of such execution, with condition to have the property levied on forthcoming at the day of sale; and, in case the property is not forthcoming, said sheriff <"• other officer shall return the bond so forfeited, with the execution, to the court from which the latter issued, on the return-day thereof. The law provides that every bond so forfeited shall have the force and effect of a judgment, and that execution shall issue against all the obligors thereon, etc. Under this law it was held, in Brown v. Clark, 4 How. (U. S.) 13, 11 L. Ed. 850: “The original judgment is merged and satisfied by the new and more comprehensive statutory judgment upon the bond.”
It was held in Purdy v. Doyle, 1 Paige, 557, that “where a creditor has obtained a lien upon real estate by a judgment at law, if he subsequently brings an action of debt on his judgment, and recovers a new judgment, he will lose his first lien.”
It is claimed by counsel for defendant in error that the judgment debtors in this case were amply protected. We find nothing in either judgment that protects them. In the first action the defendant in error recovered a judgment for $16,728.09 and costs. This was the total amount of the Prices’ indebtedness. In the second action it recovered another judgment in the sum of $11,647.84 and costs. Both of these judgments were liens, so far as the record is concerned, on the property of the defendants, and were subject to enforcement. To say that the judgment debtor could have gone into court and pleaded the satisfaction of one as the satisfaction of both, is not a protection.
It is contended by counsel for defendant in error that the extinguishment of the j udgment by merger would not extinguish the mortgage lien: The mortgage lien was security for the j udgment, and when the j udgment becomes extinguished or satisfied the security is released ; it has nothing upon which to rest. In Kansas a mortgage passes no title ; it is but incident to the debt, and cannot continue where there is no debt.
It is also contended by counsel that a merger can only apply where the party has had a full and complete opportunity to recover its whole judgment. In the action brought by the defendant below, it not only had an opportunity to recover its full demand, but it prosecuted that opportunity to final judgment, and ofter judgment it then waived its right and brought a subsequent action on a portion only of its debt. In its original action it might have brought in all parties necessary to a foreclosure of its mortgage on the homestead, as well as a foreclosure on its deed upon the other real estate ; it had the opportunity.
While the several causes included in the first action became merged in the judgment therein rendered, and thereby extinguished, the debt still existed in that judgment, and the second judgment, being for the debt included in the first judgment, is a total extinguishment of that judgment. The judgment itself having been thus extinguished, there was nothing to support the order of sale, and the sale conveyed no title.
It is therefore ordered that the judgment of the court below be reversed, and the cause remanded with instructions to enter judgment for plaintiffs in accordance with this opinion. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action by the board of county commissioners of the county of Morris against Frank L. Lower, as county treasurer, and the sureties on his official bond, for the recovery of public money alleged to have been received by Lower and for which he had not accounted. Briefly stated, the facts involved are that the board of county commissioners of Morris county appropriated $200 to aid in making a Kansas exhibit at the World’s Fair held in Chicago in 1893. The legislature having failed to appropriate money for an exhibit, an organization of citizens was effected to procure money by individual, corporate and municipal subscriptions for that purpose. Samuel T. Howe was the treasurer of that organization, and on January 19, 1892, the Morris county subscription was made on the order of the county board drawn on the general fund in favor of Howe as treasurer of the state World’s Fair committee. W. F. Shamleffer, who had interested himself in the exhibit and the subscriptions of Morris county, obtained and transmitted the money to Howe, who receipted for the same to Frank L. Lower as county treasurer. Later, and in 1893, the legislature of Kansas made an appropriation for a Kansas exhibit at the World’s Fair, as well as to reimburse parties, corporations and counties that had voluntarily contributed money to that end. (Laws 1893, ch. 3.) On February 24, 1894, Shamleffer procured from Lower, as county treasurer, an order on Howe requesting the latter to pay to Shamleffer the two hundred dollars subscribed and paid by Morris county, if the fund for that purpose was in his hands or under his control. When this order was presented to Howe he informed Shamleffer that the money for the payment of such claims was not in his hands or under his control, but was in the state treasury, and would be paid by the state treasurer on the presentation of a proper voucher. Shamleffer went to the state auditor’s office and presented the claim in his own behalf, in the following form :
“The State of Kansas, ToW. F. Shamleffer, Treas., Dr. March 2, 1894, For amount subscribed by citizens of Morris county to the World’s Fair, 1893,.................$200 00
“State oe Kansas, Shawnee County, ss.
“ I do solemnly swear that the above bill is just, correct, and remains due and unpaid; that the amount claimed therein is actually due according to law.
(Signed) W. F. Shamleeeer.”
“Sworn to and subscribed before me, this 2d day of March, a. d. 1894. A. P. Shreve, Notary Public.”
The voucher so made was audited and allowed, and a warrant based thereon was issued upon the state treasurer, who paid the money to Shamleffer. The amount so drawn has never been paid to Lower, either as county treasurer or otherwise, and it has never been covered into the treasury of Morris county, but has been retained and used by Shamleffer for his own individual purposes, he claiming that he had a right to the same, on the ground that Morris county owed him for services rendered over twenty years before.
Neither the county treasurer nor the sureties on his official bond are liable for the money so obtained and misappropriated by Shamleffer. The county treasurer did not draw the money belonging to Morris county from the state treasury, nor did he authorize any one to draw it from the state for him. He gave Shamleffer an order for the money, it is true, but it was on Howe, a private citizen, and as he had neither possession nor control of the funds out of which the claim was to be paid, the order was not honored. The money was paid by the state officers upon a claim made by Shamleffer himself against the state, and not on one made in behalf of the county by Lower ; and, besides, the claim paid was not for money due to the county, but it was for an “ amount subscribed by citizens of Morris county.” No claim was presented in behalf of the county treasurer, nor for the payment of money belonging to the county, and the state officers were without warrant to allow or pay out the funds of the county on the voucher presented. The two hundred dollars due the county was not received by the county treasurer, nor was it drawn.from the state treasury; and hence, no liability has arisen therefor against Lower or his bondsmen.
The judgment of the court of appeals will be reversed and the judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
In January, 1897, in the district court of Shawnee county, Patrick Farrell recovered a judgment against William P. Douthitt and a decree for the foreclosure of a mortgage on real estate. Proceedings in error for a reversal of the judgment were commenced in this court in June, 1897, and in November following, while the same were pending, the plaintiff in error, William P. Douthitt, died. In August, 1898, the owner of the judgment filed a motion in the district court to revive the action against the heirs of William P. Douthitt, who are plaintiffs in error here. The action and judgment were revived, but error is prosecuted from the order of the court making the revivor, and a reversal thereof is prayed for in this proceeding.
We think it unnecessary to review the action of the court in sustaining the motion to revive. After the death of William P. Douthitt, his heirs and the administratrix of his estate applied here for an order to revive the pending proceedings in error in their names, which motion was allowed, and said persons were substituted as plaintiffs in error in this court in place of the deceased. They then prosecuted the proceedings to a final termination. (Douthitt v. Farrell, 60 Kan. 195, 56 Pac. 9.) We do not believe that plaintiffs in error are now in a position to question the validity of the order of revivor made in the district court by reason of the action taken by them after the death of William P. Douthitt, when the case was here before. They made themselves parties in this court for the purpose of reversing a judgment, which, if permitted to stand, would injuriously affect them. In the event of a revei’sal in the former proceedings, the full benefit of such a result would have inured to them. Having sought the advantage of having their px’operty discharged from the lien of the judgment, they took the chance that the validity of the judgment would be sustained to their detriment.
In Railway Co. v. Quinn, 57 Kan. 737, 741, 48 Pac. 132, one Quinn obtained a judgment in the district court against a railroad, and the company prosecuted proceedings in error to this court. While the case was pending here the railroad company was consolidated with another company, and the latter was substituted, on its own motion, as plaintiff in error, and was successful in reversing the judgment' rendered in favor of Quinn in the court below. No order of'substitution or revivor was made in the district court, and more than a year elapsed before the judgment rendered in the district court was vacated in accordance with the mandate of this court. It was held that, in voluntarily assuming the position of plaintiff in error in this court and securing a reversal, the company consented to be substituted as defendant in the court below. The court said:
“Can it be that, after having asked and obtained through the command of this court a new trial of the case, it may still urge that it has never consented to become party in that court? Can it be a party for the purpose of vacating and setting aside the judgment where the plaintiff’s cause of action still remains, and where this court merely grants a new trial, and yet claim that it is not a p&rty for the purpose of any further proceeding in tha.fc court? "We think it must take the burdens and benefits of the judgment obtained here together; that it must follow into the district court the mandate sent there at its instance, and must abide the result of a new trial; that the substitution under these circumstances must be treated as having been made with the consent of the defendant.”
The case quoted from differs from the one at bar only in the fact that plaintiffs in error here were not successful in the former proceedings which they prosecuted to reverse the judgment. The adverse result of their efforts, however, does not lessen the effect or conclusiveness of the estoppel.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action by the plaintiff in error, Frederick A. Brigham, as a judgment creditor of the Commonwealth Loan and Trust Company, against the defendant in error, Albert F. Nathan, as a stockholder in said company, to recover on the latter’s statutory liability to pay the debts of his company. The action was instituted under section 32 of chapter 23, General Statutes of 1868 (Gen. Stat. 1897, ch. 66, § 50). This section was repealed by sections 14 and 17 of chapter 10, Laws of 1898 (Gen. Stat. 1899, 11260), but this repeal did not have the effect of abrogating rights of action theretofore existing. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331.) Thefacts are that on February 21, 1891, the plaintiff in error was a creditor of the Commonwealth Loan and Trust Company, owning a matured indebtedness against it. On that day the board of directors of the company passed a resolution to go into liquidation, and did then and thenceforth proceed to wind up the company’s affairs. It transacted no business thereafter except such as was incidental to that object. A part of the scheme of liquidation was to inform the company’s unsecured creditors of the action taken and to procure from them extensions of time for the payment of the indebtedness.
A short time after the date upon which the resolution of liquidation was passed, the plaintiff in error acceded to the company’s request for an extension of time and surrendered his obligation against it, and took in lieu thereof another one dated February 21, 1891, due in five years thereafter. A question is raised as to whether the plaintiff in error, at the time of .the exchange of the old obligation for the new one, had knowledge that the company had resolved to suspend business and go into liquidation. The evidence as to this was conflicting. Two officers' of the company testified that notices giving the information were mailed to all the creditors. The plaintiff in error did not deny receiving such notice — declined to say that he did not; he only said that he had no recollection of receiving it. The court’s finding, which was against the plaintiff in error, was general in its terms. So far as the disputed question of fact is material to the right determination of the legal questions 'involved, the court’s general finding is inclusive of every special matter necessary to uphold its judgment. Therefore, the question of fact must be resolved against the plaintiff in error. He had notice that the company had suspended its business and was proceeding to wind up its affairs.
For some time after the resolution of liquidation, but how long does not appear, the company maintained offices in Kansas City, Mo., and Boston, Mass., but, as before stated, transacted no business except in liquidation of its affairs. In 1894 it was put in the hands of a receiver. February 21, 1896, the obligation due the plaintiff in error matured. He brought suit against the company, and recovering a judgment, caused an execution to be issued, which was returned unsatisfied, and he thereupon instituted action against the defendant in error, as before stated. Judgment went against him, wherefore he has prosecuted error to this court.
Two difficult questions are presented. To these we have given much careful consideration. The novelty of these questions and the paucity of authonties bearing on them do not permit their positive and dogmatic determination. A statute material to one of these questions reads as follows:
“A corporation is dissolved — first, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction ; but any such corporation shall be deemed to be dissolved, for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, if it be shown that such corporation has suspended business for more than one year, or that any corporation now so suspended from business shall for three months after the passage of this act fail to re-, sume its usual and ordinary business.” (Gen. Stat. 1899, § 1268; Gen. Stat. 1897, ch. 66, § 45.)
The question arising on this statute is, What is the' meaning of the words, “has suspended business for more than one year”? Does it mean total suspension —the doing of no business whatever? Must the suspension be inclusive of the business of voluntary liquidation, or may it be exclusive of it? If a corporation quits its usual and ordinary business, the business which it was organized to conduct, and only prosecutes such business as is incidental to the closing up of its affairs, has it, within the meaning of the statute, suspended business, or is it still conducting business? We are constrained to hold that under such circumstances it has suspended business. What the statute means by business is usual and ordinary business — the business to conduct which the company was organized ; that business which constitutes the active life of the company, and which looks to a continuance of such life, and not that business which looks to a cessation of its affairs. Corporations are formed for the purpose of commercial activity in a chosen field. Operation in that field is its business. The abandonment of that field is not its business, but is an exigent condition, not contemplated in its venture and not entered upon as a corporate enterprise. The preservation of the assets of a corporation and the payment of its debts are, of course, part of its business; but, in the sense in which the word is used in the statute, the performance of those duties must be incidental to its life, and not incidental to its dissolution. The concluding clause of the section quoted lends counte nance to this view when it says: “Or that any corporation now so suspended from business shall for three months after the passage of this act fail to resume its usual and ordinary business.” The adjudicated cases are few in number, so far as we have been able to learn in our research, and with the exception of one, possess only an incidental bearing upon the subject. In that one it was ruled:
“Where a corporation, the ordinary business of which was to make fire and marine insurances, and to lend money on bottomry and respondentia, resolved to cease making insurances, to cancel outstanding policies, and to liquidate, as soon as possible, all liabilities, and for more than a year it had issued no new policy, made no loan, on bottomry or respondentia, taken no new risk except to fulfil stipulations to that effect in open policies outstanding when the resolution was adopted, and during the year only six risks were outstanding, it was held that the corporation had suspended its ordinary and lawful business for one year, and must be adjudged to be dissolved, although its corporate organization had been regularly kept up until the time of the application.” (Matter of the Jackson Marine Insurance Company, 4 Sandf. Ch. 559.)
We conclude, therefore, that the Commonwealth Loan and Trust Company suspended business February 21, 1891, within the meaning of the statute before quoted, so that the statute of limitations upon actions by creditors against stockholders began to run at. the expiration of one year from that date. (Cottrell v. Manlove, 58 Kan. 405, 49 Pac. 519.)
But the plaintiff in error at that time possessed no matured obligation against the Loan and Trust Company. He had before that time surrendered his matured obligation against it and taken a new one extending the time of payment', What effect did this have upon him to suspend his right of action against the defendant in error as a stockholder of the company? We are constrained to say that it had no effect; that notwithstanding the immaturity of his demand against the company he had a present right of action against its stockholders, and that right of action began to run at the expiration of one year from the company’s suspension of business.
What is the legal relation of a corporation stockholder to the company’s creditors? He is not a surety in the ordinary sense of that word, nor yet is he in the full sense an independent obligor. His obligation, in a sense, is collateral to that of the company. It cannot be sued on until the company has either suspended business for one year or until judgment has been secured against it and execution returned unsatisfied. Our opinion is that when either of these contingencies occurs the stockholder’s collateral obligation becomes so far disconnected from the company’s principal obligation as to be independent of it and to be amenable to proceedings for its enforcement, and that the creditor cannot by private composition with the company lengthen the term of the stockholder’s liability and suspend, as against him, the running of the statute of limitations; and the same is true if the composition was effected before the three years’ statute began to run, because the statute in reality is four years, not three — one year from the time of dissolution, i. e., the time of suspension of business — and then three years after the expiration of that period. This view, we think, can be fairly taken from the standpoint of the statute itself. The statute reads as follows :
“If any corporation created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit.” (Gen. Stat. 1897, ch. 66, §49.)
This statute, as will be observed, authorizes suits against stockholders of corporations which have been dissolved “leaving debts unpaid.” Now, a debt unmatured is as much a debt unpaid as though it had matured, and the statute has drawn no distinction between debts matured and unmatured. It authorizes suits on them because unpaid. We are of the opinion, therefore, that the extension of the time of payment of the obligation of plaintiff in error, made between himself and the loan company, did not have the effect to extend the time of its payment as against the company’s stockholders, but that the plaintiff in error might have instituted an action against them at the end of one year from the company’s suspension of business, and that, not having done so for more than three years after that time, the statute of limitations was a bar to his right. Authorities are cited to us by both sides. None of them has a direct bearing on the question, and we do not, therefore, review them.
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The opinion of the court was delivered by
Johnston, J.:
Thomas Dangerfield, contemplating a trip to Europe and desirous of purchasing transportation from his home at Scranton, Kan., to the city of New York, applied to an agent at Scranton, who wrote to a ticket-broker in Topeka and from him procured the unused portion of' an excursion ticket over the Atchison, Topeka & Santa Fe railway. With this ticket he started on his journey, and the first conductor to whom he presented the ticket accepted it for passage from Topeka to Kansas City ; there another conductor came upon the train, and when the ticket was presented to him he took it up, refused to allow Dangerfield to ride on it, and as the latter did not pay his fare he was required to leave the train. For the loss sustained by being compelled to discontinue his journey, and for the disgrace and humiliation of being put off the train, he seeks a recovery from the railway company.
The ticket purchased by Dangerfield from the ticket-broker at Topeka had been sold in Chicago at a reduced rate by the Chicago, Rock Island & Pacific Railway Company, and provided for a ride from Chicago to Topeka over the road of the company issuing it, and a return to Chicago from Topeka over the Atchison, Topeka & Santa Fe railway. It was sold subject to certain conditions that were plainly written on its face, and one among them was that it should be used within limited times, for continuous passage, and only by the original purchaser, who at the point of destination and before return passage must identify himself as the original purchaser in a particular way. There was a clause that unless the provisions of the ticket were fully complied with it should be void. It appears that the original purchaser did not sign the ticket when it was purchased, as the contract seemed to require, and that the ticket-broker signed Dangerfield’s name to the ticket when the purchase was made, as though he were the original purchaser, and had it witnessed by agents of the railway company in North Topeka. Upon the facts the district court held the ticket to be invalid in the hands of Dangerfield, and that he was not entitled to recover from the railway company.
Limited round-trip tickets, like the one presented by Dangerfield, are in common use throughout the country, and the conditions written upon the face of such tickets, and which constitute the contract between the parties, are not unreasonable or invalid. The ticket itself was notice to Dangerfield that it could only be used by the original purchaser, and that it was invalid in the hands of any one else. He knew that he was not the original purchaser, that his name had been signed to it by some one else as though he were the original purchaser, and, also, that he had never been identified to the agents of the railway company as the original purchaser. The conductor to whom the ticket was first presented did not detect the deception and raised no question as to its validity, but the suspicions of the second conductor were in some way aroused, and, upon inquiry, he learned from Dangerfield that he was not entitled to ride upon the ticket, and, in default of the payment of fare, he required him to leave the train.
The validity of the contract between the purchaser and the railway company issuing the ticket is conceded, and the plaintiff also concedes that, the railway company might have refused the ticket when it was presented to its agents and to the first conductor, but it is contended that the conductor having accepted it for passage at the outset, and having allowed Dangerfield to start on his journey, the railway company is es-topped to question its validity or to deny his right to be carried upon it. The doctrine of estoppel is not applicable in such cases, and the plaintiff, who was pretending to be the original purchaser and was therefore practicing a deceit upon the other party, is not entitled to invoke the equitable rule in his favor. The general rule is that the conduct of one, which has been induced by the misrepresentation or fraud of another, cannot be relied on by the latter as an estoppel. Nor can there be any waiver or estoppel without knowledge by the agents of the company of the facts and circumstances under which Dangerfield had procured the ticket. The fact that those to whom the invalid ticket was first presented did not detect the imposition does not preclude the refusal of such ticket by other agents or conductors who subsequently discovered its invalidity. (Bowers, Appellant, v. R. R. Co., 158 Pa. St. 302, 27 Atl. 893; Boylan v. Hot Springs Railroad Co., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290.)
Attention is called to the fact that the original purchaser did not sign the ticket when it was issued, but it is clear that his failure to sign did not eliminate the conditions of the contract. If these were binding upon the company they were equally binding upon the purchaser, whether signed by him or not. Nor does the fact that the first company omitted or dispensed with the signing of the ticket affect the right of the second company to insist on the conditions ; and it did not make the ticket transferable. (Comer v. Foley, 98 Ga. 678, 25 S. E. 671.) The ticket was in fact not transferable, and Dangerfield, not being the original purchaser, had no right to ride upon it. As soon as the agents of the company discovered that the conditions of the contract written on its face had been violated they had the right to refuse to carry the passenger, and, upon his failure to pay fare, to require him to leave the train. (Abram v. G. C. & S. F. Rly. Co., 83 Tex. 61, 18 S. W. 321; Moses v. East Tennessee, Virginia and Georgia Railroad, 73 Ga. 356; Rahilly v. St. Paul & Duluth R. Co., 66 Minn. 153, 68 N. W. 853; 1 Fetter, Carriers, 282.)
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Pollock, J.:
It is first contended that the petition is insufficient, in that the averments of the representative capacity in which plaintiff brings the action are not sufficient, and does not allege that plaintiff either had the possession of the property in controversy or was entitled to its immediate possession. The petition does allege “that he is the duly appointed, qualified and acting administrator of the estate of Van Voorhis Brown, deceased; that at the time of the death of the plaintiff’s intestate, Van Voorhis Brown, the said Van Voorhis Brown was the owner and in possession of the following articles of personal property, to wit.” This is sufficient. The demurrer to the petition was properly overruled.
Again, it is contended that defendant Joseph Brown should have been granted a continuance upon the dismissal of the action as to his codefendant, Samuel Brown. No formal application for continuance was made, nor was there any showing for such continuance. The trial court did not abuse its discretion in refusing the request.
Upon the trial evidence was received, over the objection of the defendants, tending to prove the value of the interest of Van Voorhis Brown in certain wheat grown upon what was known as the “Carter eighty,” for which no claim was made in the petition. The value of this wheat was separately found, by the jury and amount remitted before judgment.
The widow, Hattie E. Brown, was permitted on her direct examination to give a part of a conversation claimed to have been had with one Cora Brown, a daughter of defendant, in the absence of the defendant. Upon objection made, this evidence was by the court, in effect, withdrawn from the consideration of the jury. Cora Brown was called as a witness for the defense and interrogated as to this conversation had with Hattie E. Brown. Upon rebuttal, the proper foundation having been' laid by the cross-examination of Cora Brown, the widow, Hattie E. Brown, was permitted to give her version of the conversation, which was contradictory of and tending to impeach the evidence of Cora Brown. In this there was no error.
Again, upon examination in chief, and as a part of plaintiff’s case, after enumerating the number of cattle, horses and other personal property in the possession of Van Voorhis Brown at the time of his death, over the objection and exception of counsel for defendant, the widow, Hattie E. Brown, was asked: “Who did all this property belong to that you have been testifying about? Now, Mrs. Brown, all this property you have enumerated, whose was it?” etc. To which the witness responded that it belonged to her husband. The ownership of the property and the value being the only matters in dispute at the trial, the reception of this testimony was highly improper and the practice should not‘be encouraged. Yet, as the witness was asked to and did give fully her sources of information, both upon her direct and cross-examination, that the jury might determine not only the fact of ownership itself but the extent of the knowledge of the witness, the bald statement of the witness that her husband was the owner was not sufficiently prejudicial to work a reversal of the judgment.
Complaint is made of the refusal of the trial court to give certain instructions requested by defendant. An examination of the record discloses that the request was not signed by counsel, as required by the statute, and, in the absence of a showing to the contrary in the record, this court may presume that the same was refused for this reason. However, certain of the instructions requested relate to the exempt property. From the amount found by the jury before judgment the plaintiff remitted $750, expressly in-eluding in the same the value of the exempt property. The other requests are properly covered in the charge of the court, which we have examined, and in which we find no error.
The substantial claim of error in this case arises upon the action of the trial court in overruling the motion for a new trial. Upon the hearing of this motion, the defendant offered in evidence a letter purporting to have been written by Van Voorhis Brown to his brother, Rev. A. G. C. Brown, on February 7, 1898, in which it was stated: “You know how it is here. You know I do not own one head of cattle or horses on this farm.” The record shows that it was earnestly insisted at the hearing of this motion, and evidence was offered by the plaintiff tending to prove, that this letter was a forgery. However, the trial court expressly refused to rule on that proposition, but did rule this evidence to be cumulative to certain oral admissions, identical in import, testified to on the trial. It is the contention of counsel, on the one hand, that this is evidence of a character differing from that offered upon the trial, hence, not cumulative in its nature, and, being the positive denial in writing of ownership by Van Voorhis Brown, entitled the defendant to a new trial. On the other hand, it is claimed that the fact that the admission here made is in writing does not change the character of the evidence, and, as there were oral admissions of Van Voorhis Brown, identical in meaning, testified to on the trial, the admission made in this letter is cumulative.
The rules as to granting new trials on the ground of newly-discovered evidence, as established by this court, are: (1) The evidence must be in fact newly discovered, that is, discovered after the trial, and could not with reasonable diligence have been discovered and produced at the trial; (2) it must not be cumulative ; (3) it must be of such character and strength as would with reasonable probability have compelled a different decision. (Sexton v. Lamb, 27 Kan. 434.)
Is the evidence cumulative ? Does the fact that the admission made by Van Voorhis Brown in this letter is in writing, while his admissions shown upon the trial were oral, take it out of the rule against cumulative evidence ? We think not. Cumulative evidence is evidence of the same kind to the same point. Here the evidence offered is an admission. Oral admissions of Brown of identical import were shown by witnesses for the defense upon the trial. All are admissions; hence, they are of the same kind of evidence. All go to the same point — to show that Van Voorhis Brown was not the owner of the property. The fact that the admission here made is in writing may have made it stronger, but does not change its nature as evidence ; it is cumulative. (Wisconsin Central R. R. Co. v. Ross, 142 Ill. 9, 31 N. E. 412; Klein v. Gibson, 2 S. W. [Ky.] 116; Cox v. Harvey, 53 Ind. 174; The Town of Manson v. Ware, 63 Iowa, 345, 19 N. W. 275; Wynne v. Newman’s Adm’r, etc., 75 Va. 811; Wall v. Trainor, 16 Nev. 131; Glidden v. Dunlap, 28 Me. 379.)
A final contention is made that the verdict is excessive. While it appears from the findings and evidence that the jury estimated the value of a part of the property at the highest figure fixed by the evidence, yet the judgment as rendered is well within the evidence, and the findings made by the jury are conclusive upon this court.
The judgment is affirmed. | [
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Error from Labette district court.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Does chapter 358 of the Laws of 1895, set out in the statement, have the curative effect of validating the unwarranted acts of the board of county commissioners of Wallace county in issuing warrants in evidence of public indebtedness for bounties offered for gopher scalps, make them valid obligations, and fix the amount of the same as a charge upon the county? This is the question now before us.
When the county commissioners made the order offering a bounty on gopher scalps they based their authority so to do on an unconstitutional law. An act of the legislature wholly void can confer no right, power, or authority. (Cooley, Const. Lim. 222.) Whatever labor was done or services performed for the county in the matter of killing gophers, pursuant to the reward offered which was authorized in the body of said law, could not be recovered for upon the ground that the county received a benefit for which it justly ought to pay, for the reason that there was a total lack of capacity in the board of commissioners to incur an obligation of the kind mentioned. (Hovey v. Comm’rs of Wyandotte Co., 56 Kan. 577, 44 Pac. 17.) The plaintiff in error,' as a holder of the warrants in suit, cannot recover thereon unless the curative law of 1895 supplies, by its retroactive operation, that power which the commissioners lacked in the first instance, and unless the provisions of the healing act cover matters within the range of legislative prerogative.
Retrospective legislation has been held to be valid to the extent of imposing a legal liability upon the people owning property in a portion of a township or other subdivision of the territory of the state, where no such liability existed before, in cases where a preexisting moral obligation rested upon them to discharge such liability. (Craft v. Lofinck, Treas., 34 Kan. 365, 8 Pac. 399.) It is unnecessary, however, to discuss the question of moral obligation in this case, for, if such obligation in fact existed between the county and the holders of these warrants, it would in no manner affect our opinion regarding the invalidity of the act in question. It concludes :
“It is hereby declared the duty of said board to issue county warrants for the amount of such certificates now issued and outstanding, and all said warrants so issued and herein authorized to be issued be and the same are hereby legalized and hereby made county charges, and shall be and are made payable out of the general fund of the county.”
It will be noticed that the legalizing force of this law is applied to the warrants already issued and those to be issued after its passage. The assumed authority of the commissioners in making the written obligations is not validated, but the warrants themselves are made binding county charges, payable out of the general fund. The vitalizing power of the act operates on the warrants only. The effect which necessarily follows from this legislative decree is to convert prima facie evidence of debt into incontestible obligations upon the maker, from the payment of which there can be no escape. It is, in short, a judgment rendered by legislative act against the county, and its collection provided for by fixing the amount thereof as a county charge. A charge is defined as an “obligation directly bearing upon the individual thing or person to be affected, and binding him or it to the discharge of the duty or satisfaction of the claim imposed.” (Bouvier.)
No matter what may have been the defector failure in the consideration of these warrants or the extent of the imposition or fraud which might have been practiced in obtaining them, all inquiry into that subject by the courts has been predetermined by this curative act, and the arbitrary will of the legislature interposed, by which defenses are cut off and a liability declared, without trial by the usual methods or proceedings had by resorting to due process of the law.'
Let us assume that at the time the act of 1895 went into effect this plaintiff had brought an action to re-. cover from the county the amount of the warrants he then owned, and that the defendant had answered, attacking the consideration of the written instruments sued on. Must the court in which the action was pending, upon reading this law, in obedience solely to a legislative command, summarily enter judgment against the county, without hearing or trial ? Such determination would be abhorrent to all sense of justice, and destructive of the vested right which every person has, when sued, to defend against the enforcement of an unjust claim. The legislature cannot be allowed to thrust its arbitrary declarations into such adversary proceedings and decide which party should prevail. It is without power to substitute its judgment in a disputed matter for that of a court engaged in the work of administering justice by orderly methods, after discovering the truth by hearing evidence on both sides admitted according to legal rules. It is not, however, the interference with pending litigation that constitutes the sole evil of such legislation, but it is the divesting of legal defenses upon which a party has a right to rely as security against a successful attack in court by the assertion there of an unjust demand against him. The merits of an existing defense which may be pleaded in resistance against an asserted-liability can be affected only by judicial, and not by legislative, action.
Counsel for plaintiff in error have cited cases which instance the almost plenary power that has been exer cised by the legislature, with the approval of this court, in the regulation and control of counties. Among them is The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431, 434, from which the following language in the opinion is quoted:
“In short, as a general proposition, all the powers and duties of a county are subject to legislative control ; and, provided the purpose be a public one and a special benefit to the county, it may direct the appropriation of the county funds therefor in such manner and to such amount as it shall deem best.”
Under the rule thus stated, the legislature is powerless to charge upon a county the payment of a demand based upon services which have not been performed, for material which has never been delivered, or for money borrowed when no loan has been made. And county warrants issued in such cases cannot be validated by legislative act, for no special benefit has accrued to the county or public purpose been subserved.
There is no provision in the act under consideration which implies that the county commissioners are left any discretion. It is made their duty to issue warrants on all certificates outstanding, without inquiry into their validity as public obligations, and at the same time the law declares them to be a charge upon the county, and payable out of the general fund. Ordinarily, the fact that warrants or certificates have been issued by the board does not prevent the county from contesting a suit brought to recover the amount thereof for want of consideration. (Commissioners of Leavenworth v. Keller, 6 Kan. 510.)
We will not extend this opinion by quoting from decisions upholding the position we have taken concerning the force and effect of such laws, but cite the following as cases in point upon the question : Denny v. Mattoon and others, 2 Allen, 361; Commissioners of Shawnee County v. Carter, 2 Kan. 115; Forster v. Forster, 129 Mass. 559; Richards v. Rote, 68 Pa. St. 248; The C. C. & I. C. R. W. Co. v. The Board of Comm’rs of Grant Co. et al., 65 Ind. 427; Lane et al. v. Dorman et ux., 3 Scammon (Ill.) 238; Davis, Appellant, v. Minor and wife, 1 Howard (Miss.) 183; Milan County v. Bateman, 54 Tex. 153; Allison, &c., v. Louisville, Harrod’s Creek & Westport Railway Co., 72 Ky. (9 Bush) 247; Lindsay v. United States Savings & Loan Ass’n, 120 Ala. 156, 24 So. 171; In re Handley’s Estate, 15 Utah, 212, 49 Pac. 829; Rosier versus The William Tell Saving Fund Association, 39 Pa. St. 157; City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415.
In a chapter devoted to a discussion of powers exercised by the legislative department, Judge Cooley, in his work on Constitutional Limitations, after commenting on legislation of this kind, at page 125, concludes :
“In these cases there are necessarily adverse parties ; the questions that would arise are essentially judicial, and over them the courts possess jurisdiction at the common law; and it is presumable that legislative acts of this character must have been adopted carelessly, and without a due consideration of the proper boundaries which mark the separation of legistive from judicial duties. As well might the legislature proceed to declare that one man is- indebted to another in a sum specified, and establish by enactment a conclusive demand against him.”
The judgment of the court below will be affirmed. | [
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Error from Lyon district court.
Dismissed. | [
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The opinion of the court was delivered by
Johnston, J. :
On June 1, 1885, Annie Alexander and her husband, Matthew Alexander, executed and delivered to Mary R. Bryant a promissory note for $2000, payable three years after date, with interest at eight per cent, per annum, and at the same time they executed a mortgage on real estate belonging to the wife as security for the payment of the debt. Interest was paid on the note until December, 1893, but, default being made, an action was brought on June 1, 1895, in the name of Mary R. Bryant against the Alexanders to recover on the note and to foreclose the mortgage. The Alexanders were brought into court, and while the wife made default the husband filed a separate answer contesting his liability on the note. On March 17, 1896, judgment was taken against Annie Alexander for $2480, the amount then due on the note, and a decree of foreclosure was rendered, and the case, as to Matthew Alexander, was continued until a future day. On the day judgment was entered against Annie Alexander she paid $200 to be applied on the debt, and the payment was indorsed on the note and credited on the judgment against her. On April 20, 1896, judgment was rendered against Matthew Alexander for the amount due on the note, and a decree of foreclosure was taken as against him.
On April 16, 1898, the Farmington Savings Bank interposed and moved the court to substitute it as plaintiff for Mary R. Bryant, for the reason that it was the owner of the note and mortgage sued on and of the judgment that was rendered against the defendants. The hearing of the motion was continued until January 13, 1899, when it was made to appear that Mary R. Bryant was not the owner of the note and mortgage at the time the action was brought; that she had previously sold and transferred the same by indorsement, and that the Farmington Savings Bank was the owner of them at the time the suit was commenced. The note and mortgage had been delivered to Amidon & Gonly, attorneys, of Wichita, by an attorney and collection agent, along with a number of other notes and mortgages, with instructions to collect the Alexander note and mortgage, and, if necessary, bring suit on the same for the collection of the note and the foreclosure of the mortgage. When the note was placed in the possession of Amidon & Gonly, it had an indorsement of transfer signed by Mary R. Bryant, which was scratched over with pencil marks, and the attorneys who brought the suit inferred and believed that Mary R. Bryant was the owner of the note and mortgage, and, acting upon that belief, began the suit in her name. After judgment had been rendered, as has been stated, she filed a paper purporting to release and satisfy the judgment, and at the same time disclaimed all interest in it.' The Farmington Savings Bank did not know until a short time before the motion to substitute was filed that action had been brought in the name of Mary R. Bryant, but supposed that it had been properly commenced in the name of the bank as plaintiff.
On February 2, 1897, the Farmington Savings Bank began an action to cancel the release executed by Mary R. Bryant, and, upon issues joined between the parties, the release and satisfaction were set aside, and a separate proceeding in error has been brought to reverse this ruling. The court allowed the substitution of the name of the Farmington Savings Bank as plaintiff in the petition, and afterward set aside the judgment rendered in favor of Mary R. Bryant. A trial was then had with the bank as plaintiff and the Alexanders as defendants' — Annie Alexander having in the meantime been divorced from her husband and her name changed to Annie Service, and it resulted in a judgment in favor of the bank against both defendants for the amount of the debt and the foreclosure of the mortgage.
In one of the proceedings in error brought to review the rulings in this litigation, it is contended that the trial court committed error in substituting the Farmington Savings Bank as plaintiff for Mary Bryant, in whose name the action had been brought. Great latitude is given to the trial court in the matter of the amendment of pleadings, with a view of curing defects, supplying omissions, and preventing injustice. Our statute in terms authorizes the adding or striking out of the name of any party or correcting a mistake in the name of a party, or a mistake in any respect. (Gen. Stat. 1897, ch. 95, §139; Gen. Stat. 1899, §4389.) Here a mistake was made in bringing suit in the name of the payee of the note instead of the party to whom the payee had indorsed and transferred it. While it is a radical amendment to substitute one plaintiff for another, such an amendment is clearly within the power of the court, under the plain provisions of the code, and Weaver v. Young, 37 Kan. 70, 14 Pac. 458, is directly in point and settles the question in favor of the substitution. In that case an amendment was permitted striking out the name of one party who was the sole plaintiff and substituting another and distinct party, after it was shown' that the first name was used by mistake. This case was sufficient authority for the ruling by the district court, and the following cases tend to support the allowance of the amendment: Stevens v. Thompson, 5 Kan. 305; National Bank v. Tappan, 6 id. 450; City of Atchison v. Twine, 9 id. 350; Hanlin v. Baxter, 20 id. 134; Paola Town Co. v. Krutz, 22 id. 725; Comm’rs of Harvey Co. v. Munger, 24 id. 205; Reed v. Cooper, Adm’r, 30 id. 574, 1 Pac. 822; Hargrove, Sheriff, v. Woolf, 34 id. 106, 8 Pac. 192; Packing and Provision Co. v. Casing Co., 34 id. 346, 8 Pac. 403; Farmers’ Bank v. Bank of Glen Elder, 46 id. 376, 26 Pac. 680; Culp v. Steere, 47 id. 746, 28 Pac. 987. Cases are cited from other states holding adversely to such amendments, but our statute and the cases interpreting it completely cover the present action, and a review of other cases, based on other statutes, would be without profit.
The fact that considerable time elapsed between the commencement of the action and the making of the amendment is not a good ground of complaint, as it does not appear that the defendants suffered any prejudice by reason of the mistake in the pleading or the delay in amending it. The court in such cases is vested with much discretion, and it will guard the rights of parties by permitting amendments to be made only where they will accomplish justice, and in this instance the ruling, it seems, did not operate unjustly toward the defendants.
It is further contended that the bringing of the action in the name of Mary R. Bryant did not arrest the running of the statute of limitations against the bank which was substituted as plaintiff, and that the lapse of time and the bar of the statute prevented a judgment in favor of the bank. The holding that the amendment was permissible practically determines the point adversely to the claim of the Alexanders. . The substitution of the bank.as the plaintiff did not in fact change the nature or the identity of the action originally brought against the defendants. It will be observed that Mary R. Bryant, in whose name the action was brought, was not a stranger to the paper. She was the payee and the indorser of the note, and through her the bank acquired title to the same. The action which she brought was based on the same claim and cause of action which is the foundation of the judgment in favor of the bank. The purpose of the suit was the same after the amendment as it was before — to recover upon the note and to foreclose the mortgage given to secure its payment. The note and mortgage were in the possession of the attorneys who mistakenly supposed that the paper was owned by the payee of the note instead of the bank, to which it had been transferred, and the same attorneys continued to hold the possession of the paper and to prosecute the suit after the amendment was made. They were representatives of the owners of the paper throughout the litigation, and the change of parties which was made by reason of their mistake did not prejudice the rights of the defendants. As the amendment did not introduce a new claim or cause of action, it is not to be deemed a change of the action itself; and, under the liberal provisions of our code authorizing amendments, we think the amendment relates back to the beginning of the action, and that the statute of limitations did not run against the owner of the paper during the pendency of the proceeding. (Thomas v. Fame Ins. Co., 108 Ill. 91; Busw. Lim. § 364.)
If the substituted party had introduced a new claim and cause of action by the amendment, against which the statute of limitations had then run, the defense would have'been available ; but the object of the action from the beginning, as we have seen, was a recovery against the Alexanders upon the note which they had executed, and the foreclosure of the mortgage given by them as security for its payment. Aside from this consideration, Annie Alexander had made payment upon the debt up to March 17, 1896, a period less than three years before the amendment was made ; but in our view the statute ceased to run June 21, 1895, when the action was first instituted, and there is no claim that a right of action on the note was barred at that time.
In the other proceeding in error complaint is made of the ruling setting aside the release of the judgment by Mary R. Bryant. It is contended that the bank had no right or standing in court to attack that judgment or to obtain a cancelation of the same. It was the owner of the paper on which the judgment was based. By mistake the suit had been instituted and the judgment obtained in her name, and her attempted release and satisfaction apparently discharged the defendants from liability upon the note and mortgage. No consideration was paid for the release and satisfaction, and the bank, being the actual owner of the note and mortgage, had some 'interest in setting aside the pretended release and satisfaction based upon the note and mortgage and which was obtained by mistake. The view which we have taken of the merits of this case, however, renders that judgment and the cancelation of the satisfaction of the same of little importance. The court had authority to set the judgment aside and substitute the real owner of the paper, which was finally done, and irregularities, if any, in the proceeding to cancel the satisfaction cannot be material to the parties.
In this connection there is a contention that Mary R. Bryant was a necessary party to that proceeding, and that the judgment of cancelation without her presence was erroneous. She would have been a proper party; but as she had already filed a statement disclaiming all interest in the judgment, her presence was not absolutely necessary; but no prejudice could result from the failure to bring her into court.
All questions which are deemed to be material have been considered, and, finding no error, the judgments in both of the cases mentioned will be affirmed. | [
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Appeal from court of appeals, northern department.
Reversed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an original proceeding in habeas corpus, and it involves a construction of certain provisions of chapter 16 of the Laws of 1898, an act creating the court of common pleas of Cherokee and Crawford counties, and defining its jurisdiction. The petitioner, John Davis, was convicted of a felony in that court and by its judgment was ordered imprisoned in the state penitentiary. He alleges that the act creating the court is unconstitutional, in that it contains an abnegation of the legislative power to ordain the taking effect of itself as a law, and the delegation of such power to the electors to determine whether it shall have an existence as a law; and, as an alternative proposition, he alleges that if the act of the legislature was not an abnegation of its power and a delegation of it to the people, but was in the nature of a privilege to accept or reject the benefits of an enacted law, the electors did not, as provided by the act, vote to accept the benefits of its provisions, and, therefore, that the court sentencing him never rightfully came into existence.
The portions of the act material to notice are as follows :
“Section 1. That a new court of record be and such court is hereby created and established for the counties of Cherokee and Crawford, to be called the court of common pleas. Said court shall have one presiding judge, whose style of office shall be ‘judge of the court of common pleas’; and said court shall have two clerks, and style of- office shall be ‘ clerk of the court of common pleas’; provided, however, that the majority of the qualified electors of said counties shall vote in favor thereof as hereinafter provided.”
“Sec. 10. . The governor shall, immediately upon the passage of the act, and the approval of the same by the qualified electors of Cherokee and Crawford counties as hereinafter provided, appoint and commission a judge for the court hereby created, who shall be a resident member of the bar of Cherokee or Crawford counties, Kansas, whose term of office shall commence with the date of his commission and who shall hold his office until his successor is elected and qualified.”
“Sec. 12. The governor shall, upon the passage of this act and the approval of the same by the qualified electors of Cherokee and Crawford counties as hereinafter provided, appoint and commission for the court hereby created, two clerks, one for the county of Cherokee and one for the county of Crawford, whose terms of office shall commence with the date of their said appointments, and who shall hold their office until their successors are duly elected and qualified.”
“Sec. 26. At the general election to be held on the Tuesday next succeding the first Monday in November, 1899, and each four years thereafter, there shall be elected a judge of said court of common pleas, whose term of office shall be four years from the first Monday of January following his election, or until his successor is duly elected and qualified; and there shall be elected in each of said Cherokee and Crawford counties a clerk of said court for said county at the general election to be held on the Tuesday next succeeding the first Monday in November, 1899, and each two years thereafter.....
“Sec. 27. That the board of county commissioners of Cherokee and Crawford counties shall submit to a vote of the qualified electors of said counties, at the next general election, or at a special election to be called and held in said counties for that purpose, the question of establishing a new court of record for said counties, to be called the court of common pleas. The board of county commissioners of Crawford county shall meet in joint session with the board of county commissioners of Cherokee county at the commissioners’ room at the court-house at Columbus, Cherokee county, Kansas, on or before the 23d day of January, 1899, for the purpose of determining whether or not a special election shall be called in said counties of Cherokee and Crawford for the purpose of submitting to the qualified electors thereof the question of whether or not the court of common pleas of said counties shall be established. If said boards of commissioners of said counties shall, by a majority vote thereof, in joint session, decide to call special election to vote on said proposition, it shall be the duty of the county commissioners of each of the said counties to call a special election to be held on the same day in each of the said counties, not more than forty-five days after the date of said joint session, and of which special election thirty days’ notice shall be given ; said election to be held as provided by law for the holding of special elections in this state. The ballots to be furnished and used at said special election shall bear the printed words and characters thus :
“Shall a court of common pleas be established for Cherokee and Crawford counties, Kansas?
“Each elector shall designate his vote by a cross in the blank after the word ‘Yes’ or ‘No’ as he desires to vote for or against said proposition. Said election shall be conducted, and the ballots cast thereat shall be counted and returned, as provided by law in other elections, and shall be canvassed at a joint session of the board of commissioners of Crawford and Cherokee counties, to be held in the city of Columbus on the Friday next succeeding the date upon which said election shall be held. The county clerks of said counties shall immediately certify the result of said election to the governor of the state, of Kansas, who, if a majority of the electors in each of the counties of Cherokee and Crawford voting at such election shall favor the creation and establishment of said court of common pleas, shall immediately appoint a judge and clerks for said court as hereinbefore provided in this act.”
The boards of county commissioners of the two counties did not call a special election for the purpose of submitting to the electors the question of the establishment of the court, as they were authorized to do by section 27 above quoted. The vote on that question was therefore taken at the general election in November, 1899. At that election a majority of the voters of Cherokee county voting at such election voted in favor of the establishment of the court, but a majority of the electors of Crawford county voting at such election did not vote in favor of its establishment. In the last-named county 7013 electors voted at the election. Out of this number 3095, or 412 less than a majority, voted in favor of the establishment of the court, and 2940 voted against it. It will be observed, therefore, that while a majority of those who voted in Crawford county on the proposition voted in favor of it, yet, adding together all who voted both for and against it, there were 978 who voted at the election for candidates for office and on other propositions who did not vote at all on the proposition to establish the court. Therefore, the proposition to establish the court did not receive the actual assent of a majority of the electors in Crawford county voting at such election. However, as authorized by section 26 of the act, the electors of the two counties voted for a judge, and for clerks for each of said counties. The result of the election was certified to the governor, who, in accordance with section 10 and the closing sentence of section 27, made an appointment to the office of judge for the time preceding the commencement of the full term provided for said office.
As before stated, the validity of the act is attacked on the ground that section 27 contains an abnegation of the legislative power to will and ordain the law, and an attempted delegation of it to others than the constituted authority. This raises an interesting question, and one that is becoming important in this state, in view of the frequent reference by the legislature to the people of the question whether they will accept the benefits of statutory provisions enacted in their behalf. The question was submitted to us in In re Hendricks, 60 Kan. 796, 57 Pac. 965, but it did not become either necessary or proper for us to undertake its determination in that case ; nor, in the view we have of this case, does it now become either necessary or proper for us to undertake to determine it. Whether the statute now under consideration furnishes an instance of an attempted enactment of a law by popular vote, which the courts as a rule condemn, or furnishes an instance of the acceptance by popular vote of the provisions of a legislatively enacted law, which the courts as a rule approve, does not become necessary for us to consider. We may admit, as contended by the respondent, that the act in question is an instance of the latter kind, and that it is, therefore, constitutionally valid.
The question still remains, Did the electors of the judicial district provided for vote, within the terms of the act, to accept the benefit of its provisions and avail themselves of the opportunity to establish the court? It would seem, from the closing sentence of section 27, that the taking effect of the act, or, as the respondent prefers to express it, the acceptance of the benefits of the act, was conditioned upon “a majority of the electors in each of the counties of Cherokee and Crawford voting at such election” in favor of the creation and establishment of said court. Only in that contingency could the governor appoint a judge and clerks, ad interim, for the court. So, also, by section 1 of the act, the creation and establishment of the court was conditioned upon a proviso “that the ma jority of the qualified electors of said counties shall vote in favor thereof as hereinafter provided.” What is meant by the clause “as hereinafter provided,” will presently receive our attention. For the moment we will assume that it means, as provided by section 27, a favorable vote by a majority in each county voting at the election. Hence, the establishment of the court being conditioned upon the vote of “a majority of the electors in each of the counties of Cherokee and Crawford voting at such election,” the question occurs, What is meant by the words “a majority voting at such election”? We feel clear that they mean a majority of all those who voted at the election, whether they voted oh the proposition to establish the court or did not.
The language of the act is plain. There is scarcely occasion for the application to it of rules of construction. Electors voting at an election at which two or more propositions are submitted, or at which candidates for two or more offices are voted for, are those who vote for or against any one of the propositions, or for or against any of the candidates, whether they vote for or against all of such propositions and candidates, or only for or against a part of them. The total number of such electors who voted at such election, whether they voted on all of the propositions submitted, or for or against all of the candidates, are “the electors voting at such election.” Hence, in order to the establishment of the court, the statute required a majority of the electors voting at such election in each of the counties to favor its establishment. Inasmuch as a majority of the electors voting at the election in Crawford county upon the various propositions and candidates submitted to them did not vote in favor of the establishment of the court, the propo sition to establish, it failed of the requisite approval. Upon the question of the construction of statutes phrased like the one under consideration, the case of High School v. Commissioners, 61 Kan. 796, 60 Pac. 1057, is directly in point.
Counsel for respondent contend that the particular language of the act under consideration brings the case within the principle announced in Comm’rs of Marion Co. v. Winkley, 29 Kan. 36, and The State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523. The case first cited involved the consideration of an act providing for the taking of a vote on the question of the payment of a bounty for the growing of hedges. The statute (ch. 91, Laws 1871) read : “If a majority of the votes cast are for the bounty they shall declare said law to be in full' force and effect.” The vote on the hedge-bounty proposition was taken at a general election at which candidates for office were, voted for. A majority of all who voted at the election did not vote in favor of the bounty proposition, but a majority of those who voted on the bounty proposition voted in favor of it. Upon a consideration of the meaning of the statute, it was held that the proposition was carried. The court rested the decision in part upon the ground that “the electors who were present at the polls, and, while voting for township officers, did not vote upon the bounty propositions, are presumed to assent to the expressed will of the majority of those voting thereon.”
In The State, ex rel., v. Echols, supra, a similar vote under a similar statute at a general election was considered. The statute read : “After said election the ballots on said question shall be canvassed in the same manner as in the election for county officers, and if a majority of all the votes cast shall be in favor of es tablishing such high school,” etc., the school shall be established. In the last-cited case, Comm’rs of Marion Co. v. Winkley, supra, was regarded as a controlling authority and was followed. The decisions of these cases were correct, but the writer, speaking for himself alone, thinks the reasoning in them unsound, and, likewise, unnecessary, to uphold the decisions. What was meant in each of the statutes by the words, “majority of the votes cast,” was majority cast on the particular proposition submitted. The contexts of the statutes in each of the cases and the particular language under consideration showed this, and it was unnecessary to indulge the presumption that those who did not vote at all on the question were presumed to assent to the will of the majority, or, in other words, to count those who did not vote at all on the proposition as voting in favor of it.
Counsel for the respondent quote from the closing sentence of section 27 of the act under consideration the provision, “if a majority of the electors in each of the counties voting at such election shall favor the creation and establishment of said court,” etc., and, emphasizing the word “favor,” contend that its use constitutes a legislative adoption of the rule of the former cases of Comm’rs of Marion Co. v. Winkley, supra, and The State, ex rel., v. Echols, supra, that those who do not vote on a proposition are presumed to assent to the will of a majority of those who do vote on it. We cannot concur in this reasoning. The way for an elector to signify his favor for a candidate for office, or for a proposition to be voted on, is to cast a ballot for him or for it. When the statute speaks of an elector favoring a candidate or a proposition, it means favoring him or it by casting a ballot for him or it. It implies the ascertainment of his favor by means of the authorized and only permissible and recognizable evidence of it, to wit, a ballot; and it does not mean the ascertainment of his favor by presuming his agreement to the action of the majority of such of his fellows as choose to express themselves. He may be bound in some cases by the action of the majority by failing to dissent from it, but not where the law, in order to bind him, requires the expressed assent of a. majority of the whole of an ascertainable number, which is the case under the law we are considering.
It is also contended by counsel for respondent that, if their views as above stated should be regarded as unsound, the result of the vote must nevertheless be held favorable to the establishment of the court because the language of section 27, which we have been considering, relates only to the special election authorized by it, and the ascertainment of the result and the contingent appointment of the judge and clerks to follow thereafter. It is argued that section 27 only furnishes the rule for a special election, and, inasmuch as no special election was called, but the vote was taken at a general election, the statute appropriates those general provisions of law elsewhere found for ascertaining and declaring the result. The statute is not as clear as it should be, but upon this matter we feel convinced that counsel are also mistaken. It is true that the provisions of section 27 relate to a special election, but other sections of the act, instead of appropriating the provisions of the general election law for the ascertainment of the result of a vote taken at a general election held under such act, appropriate the provisions of this same section 27 for the ascertainment of such result. Section 1 declares that the court shall be established in the event “that the majority of the qualified electors of said counties shall vote in favor thereof as hereinafter provided.” Section 10 requires the governor to appoint a judge upon the approval of the act “by the qualified electors, ... as hereinafter provided,” and section 12 requires him, upon the approval of the act, “by the qualified electors, ... as hereinafter provided,” to appoint clerks for the court in the two counties named. The clause, “as hereinafter provided,” which occurs in these sections of the statute, refers to the thereafter provided terms and conditions of section 27 ; hence, for the ascertainment of the result of the general election, the statute appropriates the special provisions relating to the special election. These provisions govern, and they did not authorize the establishment of the court, except in the contingency of an affirmative vote favoring its establishment, by a majority of all the electors, in each of the counties, voting at the election, upon the various propositions and candidacies thereat submitted. We would like to be able to reach a different conclusion. We are reluctantly forced to the one we announce, but the law is plain, and by that only can our action be governed. There is no legally established court of common pleas for the counties of Cherokee and Crawford.
The prayer of the petitioner is granted and he is ordered discharged from custody. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by the defendant in error against the plaintiff in error to compel the issuance and delivery of certain shares of stock in the defendant corporation, or in the alternative for their value. Judgment was rendered for the plaintiff in the words following :
“It is therefore considered, ordered, adjudged and decreed by the court, that this plaintiff have issued and delivered to him by the defendant herein, The Consolidated Mining and Prospecting Company, twenty-four thousand shares of stock, of the par value of one ($1) dollar each, same being made payable to the order of W. W. Huff, within ten days after a certified copy of this decree is served by the sheriff of Cherokee county, Kansas, upon the present president and secretary of the defendant corporation, The Consolidated Mining and Prospecting Company. Delivery of said stock to plaintiff herein in compliance with this order shall be made within the time required by this order, by the defendant corporation depositing with and in the hands of the clerk of this court said twenty-four thousand shares of stock, to be by said clerk of this court delivered to plaintiff or his attorneys of record ; and if compliance with this order be made in manner aforesaid, then the subsequent part of this decree to be null and' void, and of no binding force or effect; but if the defendant corporation, The Consolidated Mining and Prospecting Company, fail to comply with the terms of this order, as hereinbefore stated, that then, and in that event, plaintiff have and recover against the defendant, The Consolidated Mining and Prospecting Company, a judgment for the value of said stock, amounting to the sum of forty-eight hundred (§4800) dollars, with interest at six per cent, per annum from the 17th day of January, 1900, said judgment to be entered as of the date of January 17, 1900, with costs of suit, taxed at the sum of §-; and that execution issue therefor.”
Error has been prosecuted to this court. Can a judgment conditional in form like the above be upheld? The defendant in error contends that the judgment is not conditional but is alternative in form, and that it was rightfully rendered and entered in such form, and in support of the contention he cites principally to judgments in replevin. Such kinds of judgments are allowable by statute in such kinds of cases, and they do not, therefore, constitute precedents for judgments the form and regularity of which depend upon general principles of practice. The view of the defendant in error as to the character of the judgment is incorrect. The judgment is not alternative — it is conditional. It first orders the issuance and delivery of the certificates of stock within a time stated. It then declares: “If compliance with this order be made in manner aforesaid, then the subsequent part of this decree to be null and void and of no binding force or effect.” The subsequent part of the decree is: “If the defendant fail to comply with the terms of this order as hereinbefore stated, then, and in that event, plaintiff have and recover against the defendant a judgment for the value of said stock, amounting to the sum of §4800; said judgment to be entered as of the date of January 17, 1900.” This money judgment is plainly conditional in existence and effect on the failure of the defendant to comply with the previous order, and, as will be observed, a compliance with that order was to be evidenced by depositing the certificates of stock with the clerk. Such judgment, therefore, could have no operation or effect except in the contingency of the defendant’s failure to deliver the certificates.
Now, in the language of the code, “a judgment is the final determination of the rights of the parties” (Gen. Stat. 1897, ch. 95, §389; Gen. Stat. 3899, §4659) ; and, as ruled by this court in Brown v. Galena Mining & Smelting Co., 82 Kan. 528, 4 Pac. 1013 (although not in a case like the present one), “ a final judgment is one which finally decides and disposes'of the whole merits of the case, and reserves no further question or direction for the future or further action of the court.” The judgment in question reserved further action either to the court or to' the clerk. Some one must be authorized to determine whether the defendant had complied with the precedent order of the court. The defendant could not be put in default of compliance with the order until a copy of such order was served upon it; and had a copy of the order been served upon it, questions might have arisen as to the regularity of the service, the correctness of the copy, and also as to whether compliance had been made with the order. Had the order been duly served, a question might have arisen between the defendant and the clerk into whose hand.s the certificates were to be placed as to whether the papers were of the character to which the plaintiff was entitled and which the court had ordered to be delivered ; and, in such event, if the order be valid, the clerk must be invested with the judicial power to determine the defendant’s default, and not only to enter but to render judgment against it, because, as will be observed, the above-quoted judgment for the value of the stock is not a judgment in prsesenti, but is a direction to enter judgment in futuro, to wit, as of January 17, if the main order be not complied with, and it is in that respect an attempt to shift to the clerk the judicial powers of the court. It is impossible to sanction the conditional portion of this judgment.
Judgments must be certain. Their validity and binding force must rest upon facts existing at the time of their rendition. They cannot rest upon what may or may not occur after their rendition.- They take their validity from the action of the court, and not from what persons may or may not do after the court has rendered them. The decisions of the courts of other states are to the effect of the one we make. “It is a general rule that judgments must not be conditioned upon any contingency, and it has been held that an alternative or conditional judgment is wholly void.” (11 Encyc. Pl. & Pr. 964.) The case of Strickland v. Cox, 102 N. C. 411, 9 S. E. 414, is quite like the present one. In that ease it was ruled:
“ Where a judge granted a judgment for plaintiff in an action for the possession of land, to be stricken out if defendant filed a proper bond in thirty days after adjournment of court, the judgment was void.”
It is perhaps not necessary to go to the extent of that case, and hold the conditional portion of the judgment void, but it certainly can be held irregular, and voidable upon direct attack. The case of Farmer and Arnold v. Samuel, etc., 4 Litt. (Ky.) 187, is also quite similar to the present case. In that it was remarked :
“The impropriety of leaving a decree conditional, or to be enforced conditionally, and of leaving the question, whether the condition is or is not complied with to the parties themselves, or the clerk of the court, must be apparent to every reflecting mind. It was proper that the chancellor should compel the complainant to do equity, before he received it, by paying the money ; but it was incumbent upon him to see it done. Who, in this instance, was to decide that the tender was sufficient, or that a payment was made ? It was certainly improper to refer to the decision of the clerk the genuineness and validity of a receipt. In short, no decree but a positive one ought to be rendered, before the court dismisses the parties without day.”
There are, however, decisions which seem to lend countenance to conditional judgments, but they are the exceptional cases noted under the text above quoted from the Encyclopedia of Pleading and Practice. They are out of harmony with the prevailing view and contrary to sound reason. A case cited to us is Telegraph Co. v. Davenport, 97 U. S. 369, 24 L. Ed. 1047. It was a case in equity, in which the complainants, stockholders in a corporation, filed a bill to compel the company to cancel on its books an unauthorized transfer of their stock, and to reissue to them shareholders’ certificates, or, upon failure of the company to do so, for a decree for the value of their stock. The court held that the complainants were entitled to a decree canceling the unauthorized transfer of the stock or to an alternative decree for its value. But what form these decrees took and at what time it was proper to enter the alternative decree was neither stated nor discussed.
We do not doubt that equity may entertain the complaint of a corporation shareholder for the transfer to him of the stock to which he is entitled and the issuance of certificates evidencing the fact, or in the alternative for the value of the stock, because equity has power, as ancillary to its main jurisdiction, to award compensation in money. Hence, it would be proper in the present case to adjudge that the plaintiff have the stock to which he showed himself entitled, and, in failure of the company to issue it to him, that he have judgment for its value; but that judgment for its value should not be a judgment rendered by the court in advance of knowledge of the defendant’s default of compliance with the main order, nor conditional upon the defendant’s non-compliance with it, but such judgment should be rendered upon the fact of defendant’s non-compliance with the order, duly proved and judicially found. To this end the court, as in all equity proceedings, having once acquired jurisdiction of the case, is entitled to retain it until just relief can be fully had.
Another claim of error is that the plaintiff’s petition did not tender an issue as to the value of the stock, and therefore that the court could not rightfully enter upon an inquiry as to that matter. This claim we think is correct. The only allegation as to values contained in the petition was that the capital stock of the company was “divided into 100,000 shares, of the par value of one dollar each.” This was not an allegation of either market value or special value.
Other claims of error are made, but, inasmuch as they may not again arise, we deem it unnecessary to give them consideration. It is ordered that the judgment of the court below be modified by vacating that portion of it which finds the value of the stock and which conditionally awards to the plaintiff its adjudged value, and that further, proceedings be had in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an appeal from a judgment of conviction of a misdemeanor. We ordered a certification of the case from the court of appeals in order to give consideration to the question whether it was the duty of the trial court, upon defendant’s request, to give to the jury the following instruction : “The fact that the defendant did not testify in this cause should not be construed to affect his innocence or guilt.” In this case the court of appeals for the northern department held that a refusal to give this instruction was not error. (10 Kan. App. -, 61 Pac. 680.) The court of appeals for the southern department, in The State v. Evans, 9 Kan. App. 889 (per curiam), 58 Pac. 240, made a contrary holding.
The criminal code, section 215 (Gen. Stat. 1897, ch. 102, §218; Gen. Stat. 1899, § 5465), after declaring the competency of defendants in criminal cases and their wives to testify, further provides:
“That the neglect or refusal of the person on trial to testify, or of a wife to testify in'behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.”
Section 215a also declares: “If the accused shall not avail himself of his right to testify in any ease, it shall not be construed to affect his innocence or guilt.” Is it the duty of the court, upon the defendant’s request, to instruct the jury in accord with the above-quoted statutory provisions ? We think it is. Is section 215, above quoted, in the nature of a limitation upon the power of the judge in the matter of instruc tions, or does it require of him the performance of a duty as to instructions when requested by the defendant ? We think it does the latter. It is a fact that it is always within the power of a defendant accused of crime to give exculpatory evidence in his behalf. It is a fact that his failure to do so will be noticed, commented upon, and considered by others, unless they are under a legal or sworn duty not to.do so. The very object of the statute was to guard, as well as could be, against the consequences of these well-known facts; hence it was provided that they should not be commented on by the prosecuting attorney, nor considered by the court or jury; that is, not considered to the prejudice of the defendant.
But how shall the right of the defendant be guarded against that natural suspicion of the jury aroused by his failure to testify, unless the law governing the jury’s duty be explained to them by the court? The statute does not say that the defendant’s failure to testify shall not be commented on by the court, but it says that it shall not be considered by it; that is, it shall not be taken into account against the defendant ; not that the court shall not guard the defendant’s rights against adverse criticism and consideration by others. If the statute were to be construed in accordance with the theory of the state it would utterly fail in at least one, if not all, of its provisions. Suppose the county attorney, in disregard of the prohibition upon him, should refer to the circumstance of the defendant’s failure to testify, and suppose the court, as in duty bound, should interfere to check him and should order him to desist, and should instruct the jury to give no heed to his remarks in that respect, the court would be of necessity considering the defendant’s failure to testify. It would be, how ever, considering it with, a view to the protection of his legal rights; but, under the theory of the state, the very duty thus performed would involve an error of law.
The decisions of the courts are not all uniform on the question. In The State v. Robinson, 117 Mo. 663, 23 S. W. 1066, and State v. Pearce, 56 Minn. 226, 57 N. W. 652, 1065, the refusal to give the instruction upon defendant’s request was held not to be error. A contrary holding was made in Farrell v. The People, 133 Ill. 244, 24 N. E. 423. In Matthews v. The People, 6 Colo. App. 456, 41 Pac. 839; People v. Flynn, 73 Cal. 512, 15 Pac. 102; Foxwell v. The State, 63 Ind. 539; and Metz v. State, 46 Neb. 547, 65 N. W. 190, it was held not to be error for the court, in the lack of a request by defendant, to fail to give the instruction. The logic of these decisions and the language of the opinions are to the effect that the court’s failure to instruct, if requested by the defendant, would have been error.
Some other claims of error are made by the appellant, but they are not well taken. However, for the reasons above given, the judgments of the court of appeals and of the district court are reversed, and a new trial ordered. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action by Edmond B. and Harriet S. Newton against Stephen and Cornelia Lyon and George and Josie Hitchcock to compel the execution of a-conveyance of a quarter-section of land in specific performance of an agreement which Elam S. Hitchcock, the ancestor of defendants and a former owner of the land, had made to devise it by last will to the plaintiffs. A demurrer to the petition was sustained and from the judgment sustaining it error has been prosecuted to this court. A summary of the facts stated in the petition is as follows: The plaintiffs, Edmond and Harriet S. Newton, are husband and wife, and said Harriet is the daughter of Elam S. and Susan B. Hitchcock, both now deceased. Stephen and Cornelia Lyon are husband and wife, as likewise are George and Josie Hitchcock. The said Cornelia and George are also children of the said Elam S. and Susan B. Hitchcock, and they, with the aforesaid Harriet, are the only children and heirs of the deceased Hitchcocks. Elam S. Hitchcock, the father, was the owner of certain town lots and also the owner of a quarter-section of land, the latter being the only farm land owned by him. About 1872 the plaintiffs, the Newtons, built a dwelling-house on the town lots, at a cost of about $500, and occupied it for a short time, under an agreement' that such town property should be eventually conveyed to the daughter, Harriet, but the father and mother presently took possession of it and resided on it for many years without paying rent therefor, and without conveying it or repaying the money expended in constructing the dwelling, proming, however, from time to time, to do so. August 18, 1882, the father wrote a letter to his son-in-law, Newton, seemingly in reply to ome previously received from the son-in-law, or in reference to some previous conversation had between them concerning the disposition of the father’s property between his children. This letter does not make any specific promise of con veyance or devise of property to the son-in-law, but implies that the subject is under consideration, and that the expenditure of money by the Newtons upon the town lots is to be taken into account, and that the son-in-law may have an option to take the quarter - section of land as against the town lots and some personal pi’operty. August 23, 1882, Newton, the son-in law, wrote a letter to the father in acknowledgment of the receipt of the letter from the latter, in which he expressed satisfaction with the view entertained by the father concerning the disposition of his property, and, among other things, said : “I am willing to be bound to such a settlement of affairs and take the farm.” In September following, the father wrote again to the son-in-law, as follows:
“Yours of August 31 is received. I have told you in a former letter what my mind was in regard to what property I have left and the division as near as the circumstances would permit. And now you are at liberty to make your choice (which is the advantage I give) which you would like. If you want the farm, you may consider you get your $500 back in it, or if you prefer the other say so very soon, as I intend to make writings before long and such as will stand after I am gone, that there will be no controversy.”
The petition also stated that it was agreed between the Newtons and the father that a testamentary devise of the land would be satisfactory to the former; that the father and mother might retain the land during their lives and enjoy the rents and profits of it, and that they, the Newtons, would, as they might be able and as was necessary, advance money to improve the farm and pay the taxes on it. Some letters from the father to the son-in-law were attached to the petition as exhibits, which quite satisfactorily showed that money was advanced by the latter over a number of years for such purposes.
The petition further alleged that the father, in execution of the agreement before spoken of, did execute 'his last will and testament, devising the farm to the daughter Harriet, but that he, by codicil and without the consent of the plaintiffs, subsequently revoked such devise and vested the title to the land, upon his death, equally among his three children. Attached to the petition is a copy of the will and codicil referred to, by which it appears that in 1891 the testator devised all his property, both real and personal, to his wife, Susan, during her natural life, with a direction that his executors sell the land when a mortgage that existed on it became due, and from the proceeds pay, first, the mortgage indebtedness, and secondly, invest the remainder in securities and apply the income from them to the support of his wife, and should that not be sufficient, that the principal be applied to her maintenance. The will further directed, that upon the death of the testator's wife, all remaining real and personal estate should go to his daughter Harriet, subject to the payment of legacies of #500 each to his daughter Cornelia and his son George. In 1892 the testator added to his will a codicil, declaring that he did “hereby give and bequeath, out of the personal and real property bequeathed to my daughter, Harriet S. Newton, as set forth in above will,” legacies of #100 each to the home and foreign missionary societies of the Presbyterian church. In 1894 the testator added a second codicil, devising and bequeathing all of his property to his wife, and directing that upon her death all of it then remaining should be divided in equal parts among his children, Cornelia, George, and Harriet. The wife died before the testator did, and therefore the will never took effect as to her.
The above epitomizes the facts alleged in the petition. In our judgment they state a cause of action, and therefore the demurrer was improperly sustained. An agreement in writing, made upon sufficient consideration, to devise real estate, is enforceable by specific performance against the heirs or devisees of the testator. (Fry, Spec. Perf., 3d ed., §223; Waterm. Spec. Perf. § 41.) The writings attached as exhibits to the petition, being signed by the party to be charged, when explained in the light of the facts and circumstances set forth in the pleading, are sufficient notes or memoranda of an agreement in respect to the land to satisfy the requirements of section 6 of the statute of frauds. (Gen. Stat. 1897, ch. 112, § 6; Gen. Stat. 1899, § 3072.)
The case is discussed by counsel for defendants in error and to a large extent by counsel for plaintiffs in error as though the agreement to devise was enforceable, if at all, as a trust resting upon the testator, Elam S. Hitchcock, and as though the validity or execution of such agreement depended upon an interpretation of the statute concerning trusts. This is not the case. The only statute bearing on the subject is the statute of frauds, and the only general question involved in it is the one relating to the enforceability of agreements, upon consideration, to devise lands. 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. :
This was an action in ejectment. Defendant in error H. O. Bowman was the owner of a judgment against M. E. Martin which was a lien on the real estate in controversy. Henry King was the holder of a mortgage on the same property, executed and recorded after the rendition of the Bowman judgment and junior thereto. William Sims was also the owner of a judgment against Martin, which, at the time of its rendition, was inferior in time and lien to both the Bowman judgment and the King mortgage. This last judgment of Sims was bought by the plaintiff in error, John Hunt, as trustee for King and for his benefit. The last execution on the Bowman judgment was issued on December 3, 1894, and returned unsatisfied on January 5,1895, by order of the execution creditor. It was issued more than one year subsequent to the rendition of the judgment, but within five years thereafter. Execution was issued on the Sims judgment, owned by Hunt, within one year after its rendition, and the property in controversy was sold thereunder and bought in by plaintiff in error. He received a sheriff’s deed, upon which is based his right to recover the real estate involved in this action. He was denied a recovery in the court below, and comes here by proceedings in error.
Section 4729 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 95, §476) reads:
“No judgment heretofore rendered or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of any debtor to the prejudice of any other judgment creditor.”
If there was no mortgage lien on the property intermediate the two judgment liens there could be no serious controversy between the parties. In such case the title of plaintiff in error derived through the sheriff’s deed would be obviously paramount, made so by the failure of the first judgment lien-holder to take out and levy an execution within a year after his lien became fixed on the land. (Lamme v. Schilling, 25 Kan. 92.) It is insisted, however, that because of the King mortgage the provisions of the statute above quoted cannot be appplied in strictness; that Hunt, acting for King, could not, by the purchase of the Sims judgment and by selling the land upon execution under it, secure to the mortgagee rights superior to those of a judgment creditor whose judgment was prior in time to the mortgage. The industry of counsel for defendants in error has produced two early cases from Ohio which seem at first reading to sustain their position.
In John T. Brazee and others v. The Lancaster Bank and others, 14 Ohio, 318, a case in many respects like the present one as to facts, the court concluded thabecause of an intervening mortgage the liens of the prior and subsequent judgments were not equal, and that the first was paramount. It was said:
“The elder judgment is a lien upon the entire land, and the entire value of the land may, if necessary, be appropriated for its satisfaction. But the subsequent judgment creditor has not a lien to the same extent. His lien extends only to that interest in the land which remains after the satisfaction of the mortgage, and there can certainly be no propriety in saying that a lien which attaches to the entire land shall be postponed to one which attaches only to a part of the land ; or, more properly speaking, to the interest which remains in the judgment debtor after having executed a mortgage upon the land.”
See, also, Fitch v. Mendenhall et al, 17 Ohio, 578. In 1846, when the above cases were decided, a mortgagee in that state took something more than a mere lien on the land. After condition broken the legal title vested in the holder of the mortgage, and he could recover and keep possession of the lands, subject only to the right of the mortgagor to redeem. (Childs v. Childs and others, 10 Ohio St. 339.) In the decision quoted from it will be noted that the court attaches importance to the fact that the lien of the senior judgment covered the entire land, and that the junior lien rested only on the interest which remained in the judgment debtor - after having executed a mortgage upon the property ; that is, the equity of redemption. The latter judgment is referred to as attaching only to a part of the land.
In this state the common-law attributes of mortgages have been wholly set aside. A mortgage is a mere security, creating a lien, but vesting no title and giving no right of possession either before or after condition broken, and the mortgagor’s right of control is not impaired by the existence of the lien. (Chicle and others v. Willetts, 2 Kan. 384.) Both the Sims and the Bowman judgments were liens on the whole real estate of Martin, and it cannot be said under our system that one of these judgments attached to a part of the land only by reason of the mortgage lien existing in favor of King. We conclude, therefore, that as the Sims judgment was enforced by a timely execution the purchaser thereunder took title unaffected by the Bowman judgment lien, execution to enforce the same not having been issued within a year from the date when the judgment was rendered.
In thus applying the express terms of the statute fixing the priority of judgments we have given little consideration to the King mortgage. Under its conditions, the note secured by it has been due since 1894. It seems to have been abandoned as a lien, and right of action upon it and its accompanying note barred by the statute of limitations. We think that the holder of such a mortgage might lawfully succeed, by assignment, to the rights of the owner of a judgment junior to it to the same extent that a stranger might have so done.
In John T. Brazee and others v. The Lancaster Bank and others, supra, the land was sold and the proceeds brought into court. The claimants, consisting of judgment creditors and mortgagees, were each asserting preferred rights to the fund. We cannot say that the decision would have been the same had the mortgagees made no claim to the money, and that the mere fact of the existence of an old mortgage, probably barred by limitation (under which no rights were asserted), intervening between the judgments, would have moved the court to do otherwise than to enforce the plain provisions of the statute respecting the liens of judgments.
2. Judgment on note alone. It having been shown that the note upon which the Sims judgment was founded was secured by a mortgage which was never foreclosed on the property in controversy, it is claimed that the execution sale is void, being prohibited by section 396 of chapter 95 of the General Statutes of 1897 ;(Gen. Stat. 1899, §4663). This section is merely directed against the sale of real estate pledged for the payment of a debt by the mortgagee, or a trustee in his behalf, under a power of sale, without a decree of court ordering the same. It can have no reference to-an execution sale under a judgment like the one under consideration. The owner of a note secured by mortgage may sue and take judgment upon the note -alone and is not required to foreclose his mortgage. (Lichty v. McMartin, 11 Kan. 565.)
In some states it has been held that the holder of a note and mortgage may not proceed to judgment on the note only and then levy on and sell out the mortgaged property under an execution. Several authorities are cited to this effect. One of the chief reasons given why such action is not permitted is that in a proceeding of that kind the time of redemption allowed’ in foreclosure cases is cut down and shortened, to the detriment of the mortgagor. Here no prejudice could arise in that respect, for, by force of chapter 109 of the Laws of 1893 (Gen. Stat. 1897, ch. 95, §§521,544; Gen. Stat. 1899, §§ 4742, 4769), a period of eighteen months redemption exists from the time of sale under a judgment resulting from a suit to foreclose the mortgage, or from an action on the note alone. Again, it appears from the testimony that the plaintiff in error bought nothing but the Sims judgment rendered on the note. Having sued on the note alone, and then having parted with his judgment, we think the mortgagee has by his acts evidenced a waiver of any lien under his mortgage. The claim that the sheriff’s deed to Hunt was void, because against public policy, is not tenable. If he had been the attorney of King, his purchase of the Sims judgment would not have been in opposition to the interests of his client, but in furtherance thereof.
The tax deed of defendants in error was deficient in description, and void, under the authority of Spicer v. Howe, 38 Kan. 465, 16 Pac. 825. It was expressly pleaded in the reply that the tax deed was void on its face. This, in the absence of a verification, was sufficient to raise the question of the validity of the deed.
The judgment of the court below will be reversed and a new trial ordered.
Pollock, J., not sitting. | [
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Opinion by
Green, C.:
Frank McDavitt sued J. E. ' Weems upon two promissory notes, in the district court of Sedgwick county. An answer was filed admitting the execution of the notes, but alleging that there was a failure of consideration. In May, 1889, the case was transferred to the common pleas court, and regularly assigned for trial on the 7th day of June, 1889.
It appears from the record that on the 4th day of June defendant’s attorney stated to the court that the counsel in the case had agreed upon a continuance until about the 11th day of June, the particular time to be fixed by the court j that in answer to such statement the court stated that the case would not be tried on Friday, June 7, as shown by the docket, but that, when the case was called, a day could be agreed upon for the trial of the same.
On the 7th day of June the case was called for trial, in the absence of the defendant and his counsel. A jury was waived by the plaintiff, a trial had, and the court rendered a judgment in favor of the plaintiff in the sum of $2,383.06.
The defendant filed his motion for a new trial, based upon the following grounds:
1. Irregularity in the proceedings of the court and the prevailing party, by which the defendant was prevented from having a fair and impartial trial.
2. Abuse of discretion on the part of the court, by which the defendant was prevented from making any defense.
3. Fraud practiced by the prevailing party in obtaining judgment.
4. Unavoidable casualty, rendering it impossible for the defendent to make his defense.
In support of the motion for a new trial, the defendant filed the affidavit of one of his attorneys, which stated in substance that, on the 4th day of June, 1889, he found it impossible to secure the attendance of material witnesses; that he called upon the attorneys for the plaintiff, and obtained their consent for a continuance until the next Wednesday, or some other day the following week, to be fixed by the court; that the court was informed of such facts, and was requested to set the case for Wednesday, June 12; that the court stated that it would be impossible then to set the case for a day certain, but that the case would not come up on Friday, June 7, because the court was behind one day, and that it would not be likely to come up that week; that when it was called, arrangements could be made for a trial day to suit all parties; that relying upon the statements of the court, counsel did not attend court on Friday, June 7, and that he had no notice of the trial until the following day; that he was only absent from his office from 10 to 11:30 o’clock in the forenoon, during Friday, June 7, 1889. This affidavit was followed by another affidavit, showing the nature of the defense.
The motion for a new trial was overruled, and this is assigned as error.
The plaintiff in error first objects to the amendments suggested by the defendant in error being considered as a part of the case-made, because such amendments follow the certificate of the judge, which recites that the case-made, “as above set forth, is true and correct.” By a reference to the certificate, it appears that the judge certified that “ the foregoing case-made, and the amendments thereto marked ‘amendment A’ and ‘amendment B,’ have been duly served, etc., . . . and I hereby settle, allow and sign the same as true,” etc. This is all that is necessary, we think, to make the amendments a part of the record.
It is urged that the court erred in not sustaining the motion of the plaintiff in error for a new trial, upon the ground of the irregularity in the proceeding of the court in calling the case for trial, and in taking evidence in the absence of the defendant, and without the intervention of a jury, where there had been no waiving of a jury by the defendant.
In addition to what has already been stated, it appears from the record that the defendant had requested the court to continue the case to a later date than the 7th of June, but the court refused to grant such continuance, but stated to defendant’s counsel, on the 4th day of June, that in the event the case was not reached on the day set for the trial, a time could then be agreed upon when the case should be tried; that on the 7th day of June the case was reached and called for trial, and a bailiff was sent out to find the attorneys of the defendant, and they could not be found.
It further appears from the record, that during the trial of the case one of the defendant’s attorneys came into the court room and was informed that the case was on trial, and he interposed no objection.
Upon the record as presented to us, we think the counsel for the defendant below should have been present in court on the day the case was assigned fi*r trial. It must have been evident to counsel that there was to be some disposition of the case on that day — that it was either to be tried or assigned for some other day. According to the affidavit of counsel, “ when it was called, arrangements could be made to suit all parties.” It was obvious, from this language, that the case was to be called on the day it was assigned for trial, and clearly it was the duty of counsel to have been present, unless a positive arrangement had been made, with the approval of the court, by which the case was continued to a day certain.
“Every one having a matter in litigation before any tribunal, court, or county board must, in order to protect his rights, be present at every session at which the controversy may be determined, until there is a final disposition. He stays away at his peril; and if, during his absence, the matter is disposed of, he can blame no one but himself. This, in many cases, is a great hardship. Many a suitor in the courts has felt it to be so, yet no remedy has as yet been devised.” (Masters v. McHolland, 12 Kas. 17; Mehnert v. Thieme, 15 id. 368; Green v. Bulkley, 23 id. 131; Turner v. Miller, 28 id. 50.)
The contention of the plaintiff in error that the district court erred in receiving evidence in the absence of the defendant below, and without the intervention of a jury, is not well founded. If the defendant failed to appear, the court had a right to dispose of the case, and by not appearing at the time the case was assigned for trial he waived his right to a trial by a jury. (Civil Code, § 289; Green v. Bulkley, supra.)
The record fails to show that fraud was practiced by the prevailing party in obtaining the judgment, and we do not think there was unavoidable casualty by which the defendant was prevented from making his defense.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
It is urged that the head camp did not make an assessment upon Jameson after his default upon the asessment of August, 1888, and therefore that the opinion handed down upon the former rehearing is not sustained by the facts. It appears that blank notices for assessment were sent in Sep tember from the head camp to the local clerk. The local clerk, acting for the head camp, received payment of $1.05 for the September assessment upon Jameson, which was due October 1, 1888, at the same time that he received the payment for the August assessment. As the local clerk acted for the head camp, we must regard the assessment for September as having been, made by the head camp through its local clerk, and therefore we conclude that the opinion handed down upon the rehearing is not incorrect in this matter. In Stylow v. Insurance Co., 69 Wis. 224, it was said :
“A mutual life-insurance company, whose by-laws provide that membership shall be forfeited by a failure to pay any assessment within 60 days after notice, but may be restored on paying all arrears, etc., the company reserving the right to exact a physician’s certificate as to health, waives a forfeiture by making a new assessment while the member is in default by a failure to pay a previous one within the 60 days limited.”
It was decided in McDonald v. Supreme Council, etc., 78 Cal. 49, that—
“The acceptance by a mutual-benefit association of assessments after knowledge of forfeiture by reason of non-payment thereof within the required time, operates as a waiver of the forfeiture, in the absence of convention of the parties to the contrary.”
In Mutual Benefit Association v. Beck, 77 Ind. 203, the court ruled that—
“The demand and receipt of assessments by a life-insurance company, after the death of the insured, with knowledge of his death, and that the contract was voidable on account of misrepresentations by the insured, waives the forfeiture.”
It was also ruled in Mutual Benefit Association v. Stapp, 7 7 Tex. 517, that—
“ Where the certificate of membership in a mutual-benefit society provides that assessments shall be paid within 30 days from the date of notice, payment within that time will preserve the validity of the certificate, though such payment is made by the beneficiary after the death of the member.”
The motion for a rehearing will be denied. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought in the district court of Osborne county on November 27, 1888, by E. B. Rathbun against W. A. Berry, The Beloit Milling Company, a corporation, George W. Bittman, O. B. Taylor, and W. N. Todd, copartners, doing business as Bittman, Taylor & Co., John Jackson and Andrew Jackson, copartners, doing business as Jackson Bros., to recover certain goods, wares and merchandise alleged to be unlawfully detained by the defendants from the plaintiff, and of the aggregate value of $563.98. The plaintiff claimed the property under a chattel mortgage executed to him on November 21, 1888, by James E. Andrews, to secure a promissory note then given for $550. The defendants claimed the property by virtue of the levy of certain attachments upon the property as the property of Andrews. The defendant Berry was the officer that levied the attachments, and the other defendants were the attaching creditors. The mortgage was deposited in the office of the register of deeds on November 24, 1888; and, so far as it is necessary to quote it, it reads as follows :
“This mortgage is hereby made to cover any and all goods that may be purchased from time to time to replace goods sold that are covered by this mortgage.
“Provided, however, That if said debt and interest be paid as above specified, this sale and transfer shall be void; that the above-described property is now, and (except as hereinafter provided) shall remain in the possession of the said first party at Downs, township of Ross, Osborne county, Kansas, until default be made in the payment of the debt and interest as aforesaid, or some part of it.
“Provided always, That in case of a sale or disposal of any of said property, or attempt to dispose of the same, or a removal or attempt to remove the same or any part thereof from said county, or an unreasonable depreciation in the value, or if for any other cause the said party of the second part shall deem itself unsafe or insecure, then the whole of said debt and interest thereon shall forthwith become due and payable, and the said party of the second part, or its authorized agents, may take said property, or any part thereof, into its own possession, and sell the same at public or private sale, and out of the proceeds of such sale retain the whole of such debt and interest thereon, and all necessary costs incurred in finding and caring for said property, and return the surplus to said party of the first part; and if from any cause said property shall fail to satisfy said debt and interest and costs incurred, said first party agrees to pay the deficiency. In case of conditions broken, said property or any part thereof may at the option of the mortgagee be taken to Downs, Osborne county, Kansas, or to any place in the county where the same may be at the time of taking’ possession thereof, and there be advertised and sold.”
The case was tried before the court and a jury, and the plaintiff, on his own behalf and as a witness, gave the following, among other testimony:
“Q,ues. When you left the goods in Andrews’s possession, what did you intend that he should do with them? Ans. I supposed that he was going to sell out and put his money in the bank and meet this obligation; that was my intention; I do n’t know as there was anything said about it. I have no recollection of anything being said as to what he was to do with them at all.
“Q,. You had no talk about it whatever? A. No.
“Q,. You expected he would go on and sell them out at retail as he had been doing ? A. Yes, sir.”
It also appears from the evidence that, prior to the execution of the mortgage, Andrews was engaged in a mercantile business in the city of Downs, in Osborne county. He with his family resided in the upper story of the building in which he did business, and his goods were kept in the lower story thereof. These goods constituted the property which Andrews mortgaged to the plaintiff. The plaintiff and Andrews were brothers-in-law, having married sisters. The note secured by the mortgage was given for $ 100 then loaned and for a preexisting debt. Andrews retained the possession of the goods. On November 24, 1888, Andrews left the country, and has never returned. On the next day, which was Sunday, the creditors of Andrews demanded of the plaintiff that he should execute to them a bill of sale for the goods, but he refused, and on the evening of that day he went to the residence (or late residence) of Andrews, for the purpose of obtaining the possession of the goods. Mrs. Andrews was at home, and in the story above the place where the goods were kept, which latter place was called the “store.” He procured a •key to the “store” from Mrs. Andrews, with the intention, as he informed her, of taking the possession of the goods. He then went down to the “store,” unlocked the front door thereof, stepped inside,, stayed there for a few minutes with the intention of taking the possession of the goods, and then went out and locked the door behind him. A few hours later, and after midnight, the aforesaid orders of attachment were levied upon the goods, and the officers took the possession of them, and on the next day the plaintiff commenced this action. These are substantially all the facts of the case that are of any importance.. The defendants demurred to the plaintiff’s evidence, upon the ground that it did not prove any cause of action, and the court below sustained the demurrer and rendered judgment accordingly; and the plaintiff, as plaintiff in error, brings the ease to this court for review.
The only question presented to this court is, whether the aforesaid chattel mortgage is void as against the mortgagor’s attaching creditors. Under section 2 of the statute of frauds, every transfer of property, real or personal, made with the intent to hinder, delay or defraud creditors, is void. It is also true that a chattel mortgage generally has a tendency to hinder and delay the creditors of the mortgagor in the collection of their claims; and it is also a general rule of law that every person is presumed to intend the natural and probable consequences of his own voluntary acts. But where a chattel mortgage is executed in good faith and for the purpose of securing a real debt, and the terms are reasonable, it will be held to be valid, although it may have a tendency to hinder or delay the creditors of the mortgagor in the collection of their claims. The present mortgage contains the following stipulation:
“This mortgage is hereby made to cover any and all goods that may be purchased from time to time to replace goods sold that are covered by this mortgage.”
This stipulation, it is said in the brief of defendants in error, was in writing, while very nearly all the remainder of the mortgage was in print, a blank printed chattel mortgage having been used in drawing up the mortgage executed. This statement of counsel has not been denied, and it is probbly true, although there is no direct evidence in the record tending to show whether the stipulation was in writing or not, or what portion of the mortgage was in writing and what not. The stipulation, however, as found in the record brought to this court, is underscored, and, as we understand, the court below held that the mortgage was void upon the ground that this stipulation rendered it void. Of course the court below had the mortgage before it and knew what part of it was in writing and what was not. Now, for the purpose of upholding and sustaining the decision of the court below, we think that it should be held that this stipulation was in writing, and that the other stipulations in the mortgage which might tend to contradict it or modify it should be held to be in print. And further, this stipulation is an extraordinary one, while the other stipulations in the mortgage are common and ordinary stipulations, such as are generally found in chattel mortgages. And if we should hold that this stipulation was written in the mortgage by the parties, then we must consider that it expressed their exact intention, and that any other stipulations in the mortgage only in print, and which might not be in harmony with it, did not express their true intention. And construing the stipulations in this manner, it would seem to require that the mortgage should be held to be void. We think that by unavoidable implication this stipulation authorized the mortgagor to sell and dispose of the goods — not merely at retail, or in the ordinary course of trade or in the ordinary course of business, which would simply be an authority to release from the incumbrance of the mortgage only a small portion of the goods from time to time — but it gave to the mortgagor an authority to sell and dispose of the whole of the property at once, or in the lump, or in any sized lots, as he might choose. There is in fact no limitation of any kind or amount upon the sale. Besides, the mortgage does not in fact provide what should be done with the proceeds of the sale when the goods are sold. There is no stipulation that the mortgagee should have the proceeds, or that they should be kept or deposited for his benefit. All was left with the mortgagor, and he had the power to do as he chose.
It is true the stipulation contemplates- that other goods might be purchased to replace the goods sold, but the purchase of other goods was not obligatory. Of course any sale of any portion of the mortgaged goods would destroy the mortgage incumbrance to that extent, and a sale of all the mortgaged property would completely destroy the mortgage. A power given to the mortgagor to sell the whole of the mortgaged property would really render the mortgage nugatory, and the mortgagor would still remain substantially the owner of the property. Such a power in any mortgage would be inconsistent with any supposed incumbrance granted by the mortgage, and a mortgage granting such a power should be held to be at least prima facie if not absolutely void. There is nothing to this case, either in the mortgage or as shown by the extrinsic evidence, that tends to explain how the parties intended that the sale or sales of the mortgaged property should be made, or what should be done with the proceeds. The plaintiff, by his own parol testimony, showed that he understood that the mortgagor would “sell out” the goods, or sell them at retail, as he had been doing, “and put his money in the bank and meet this obligation;” but, so far as is shown, there was no agreement or understanding betxoeen the parties or on the part of the mortgagor, other than that shown by the mortgage, as to how the sale or sales should be made or what should be done with the proceeds. Hence, under the stipulations of the mortgage and the parol testimony, we must assume that the mortgagor, while in the possession of the mortgaged property, had the absolute control over the same, and the absolute right to sell it as he chose, and the absolute control over the proceeds.
But it is claimed that the plaintiff as mortgagee obtained the possession of the goods before any of the same were sold, and that such possession cured all irregularities and rendered the mortgage valid. The possession, however, was not procured by any delivery of the goods by the mortgagor or with his consent. The plaintiff took the possession of the property without the mortgagor’s consent and only by virtue of the authority given by his void mortgage — not void because it had not been deposited with the register of deeds; not void because of a want of notice to the mortgagor’s creditors or subsequent purchasers or incumbrancers; not void because of an insufficient description of the mortgaged property; not void because of a want of a renewal affidavit, and not for any other mere irregularity which was not in contravention of good morals or public policy, but void because of a stipulation contained in the mortgage which must be considered as against public policy, if not in contravention of good morals, and as tending to hinder and delay creditors in the collection of their just claims, and thus hindering and delaying of creditors without any good reason therefor, and providing: for such a disposal of the property as must necessarily render the mortgage itself substantially nugatory. What the effect of the delivery of the possession of the mortgaged property by the mortgagor to the mortgagee or a taking of the possession of the property by the mortgagee with the consent of the* mortgagor would be, it is wholly unnecessary in this case to decide, for nothing of that kind took place in this case. It was not shown that the mortgagor ever gave his consent otherwise than by the mortgage. There is no evidence tending to show that the mortgagor’s wife had any authority from the mortgagor to deliver the property to the mortgagee, and it cannot be supposed that she had any such authority merely because she was his wife. A taking of the possession of mortgaged property by the mortgagee, to be sufficient to cure all irregularities and to make the mortgage valid, must be either under the authority of a written instrument valid and sufficient for that purpose, or under some valid parol consent of the mortgagor. Such was not this case. ••
We have given this case a great deal of attention, and carefully considered it in all its aspects. We have also examined many authorities, with a hope that our minds might become thoroughly satisfied, but still we have .great doubts. Among the decisions of our own court which we have examined are the following: Savings Bank v. Sargent, 20 Kas. 576; Frankhouser v. Ellett, 22 id. 127; Dayton v. Savings Bank, 23 id. 421; Cameron v. Marvin, 26 id. 612; Muse v. Lehman, 30 id. 514; Leser v. Glaser, 32 id. 546; Dolan v. Van Demark, 35 id. 304; Howard v. Rohlfing, 36 id. 357; Gagnon v. Brown, 47 id. 83. See also, 3 Am. and Eng. Encyc. of Law, 196, 197; Jones, Chat. Mortg., §§164, 178, and the whole of chapter 9, including §§379 to 425.
•We think the conclusions which we have reached in this case are in harmony with the spirit of all the decisions heretofore rendered by this court, and are also in harmony with the most of the decisions rendered by other courts. Many decisions of other courts, however, may be found with which the foregoing conclusions are not in harmony. Therefore, while we have very grave doubts as to the correctness of the decision rendered by us in this case, yet, taking into consideration the peculiar facts of this case, with all the reasons for and against the present decision, and taking into consideration all the decisions of other courts sustaining or opposing this decision, we are inclined to think that the decision is correct, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Sherman & Shaw ver, a firm engaged in selling real estate in 'Wellington, brought this action against Branaman and Black, whom they alleged -together owned certain real estate in the city of Wellington, to recover their commission for the sale of such real estate. The case was tried by a jury, and a verdict returned and a judgment rendered in their favor for $400 and costs. Branaman alone filed a motion for a new trial, and only his part of the case is here. The assignment of error in the motion for a new trial that is urged now for reversal is the admission of evidence that is alleged to be incompetent and immaterial and irresponsive to the issues made by the pleadings and the instructions based thereon. Most all of the objections to the admission of evidence and to the instructions are founded on the theory that the petition alleges a specific commission, while the defendants in error at the trial were permitted to prove the amount of the usual and ordinary commission paid to other real-estate agents in Wellington for the performance of similar services. The sale was made for $14,000. The defendants in error furnished a purchaser.
Sufficient evidence appears in the record to authorize the jury and justify us in the assertion, that Branaman knew at the time the sale was made, and understood before it was made, that he was to pay these defendants in error a commission for making the sale. While the counsel for plaintiff in error may be technically correct, it is difficult to conceive how many of the rulings he complains of could have prejudiced his client. The amount of commission charged in the petition as agreed to be paid is identical in amount with the usual and ordinary one charged by agents in that locality. And the evidence shows that inquiry was made as to what was a “straight commission,” and the ordinary charges were explained as being $50 on the first thousand and $25 on each additional thousand. The evidence complained of only went to the amount of the recdVery, and not to an implied authority to sell. The petition alleged, and the proof sustained the allegation, that there was special verbal authority to sell, and the evidence offered of the usual and customary commission did not convert the action into one on the quantum meruit. The evidence showed that Branaman would not sell until Black was consulted and assented, and hence what Black said was admissible.
We do not regard any of the errors complained of important enough to require a reversal of the judgment against Branaman, because the made case is full of a class of suggestive facts and insinuating circumstances that always float with the inevitable drift toward the truth in the record of a hard-fought lawsuit. We think substantial justice has been done. The controlling questions are of fact and not of law, and the jury has made a finding that is supported by some evidence.
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.:
The Kansas State Bank, of Peabody, as owner and cestui que trust, seeks to reclaim a portion of the estate of the First State Bank, of Marion, which it alleges is and should be regarded as a trust fund. On May 6, 1898, the bank commissioner, finding the First State Bank to be insolvent, closed its doors, took possession of its property, and soon afterward S. Burkholder was appointed receiver of it. On April 30,1898, a check for $1400, drawn on the Bank of Commerce, of Marion, was presented to and cashed by the Kansas State Bank, of Peabody. The latter bank forwarded it to the Citizens’ National Bank, of Kansas City, Missouri, for collection, which acknowledged the receipt of the check on May B, 1898, and on the receipt there was this statement: “This bank, in receiving collections payable elsewhere than in Kansas City, Mo., acts only as your agent, and assumes no responsibility beyond due diligence on its part.” The Citizens’ National Bank at once forwarded the check to the First State Bank of Marion for collection and remittance, and it was received by that bank and paid by the Bank of Commerce, on which it was drawn, on May 4, 1898.
No money actually passed when the payment was made, but the check was paid in accordance with the prevailing practice of an exchange of checks between the banks at the close of a day’s business. For instance, a representative of the First State Bank would take such checks on the Bank of Commerce as it had cashed during the day, and exchange them for checks drawn on the First State Bank which the Bank of Commerce had taken in during the day. If the checks presented by the First State Bank exceeded those presented by the Bank of Commerce, the latter bank paid the difference in currency to the First State Bank; and if the checks presented by the Bank of Commerce exceeded those held by the First State Bank, the latter gave the Bank of Commerce a cashier’s check for the balance. When a representative of the Bank of Commerce went to the First State Bank to balance accounts and make settlement of the day’s business, as it did one-half the time, and there was a balance in favor of the Bank of Commerce, the First State Bank paid such balance in cash; but if it was against the Bank of Commerce, it would give the other a cashier’s check. In other words, the bank at which the balance was struck paid any balance against it in cash, while a visiting representative of the-other bank paid any balance against his bank by a cashier’s check.
On May 4, 1898, a representative of the First State Bank went to the Bank of Commerce to exchange checks, and carried with him the $1400 check sent for collection by the Citizens’ National Bank of Kansas City, and when a balance was struck it was found that the checks held by the Bank of Commerce exceeded those presented by the First State Bank in the sum of $615.58, and for that balance the First State Bank gave the Bank of Commerce a cashier’s check. Included in the paper held by the Bank of Commerce against the other bank and exchanged that day were two cashier’s checks issued by the First State Bank, amounting to $1446.91, as well as checks drawn by individuals on the First State Bank for a considerable amount. According to the books of the First State Bank, it had over $2900 in cash on hand on May 4, when the check in question was paid. On the day following the bank continued to receive and pay out money and carry on the general business of the bank, and it appears to have paid out to one person on that day over $1200. When the bank was closed, on May 6, 1898, by the bank commissioner, the assets were estimated to be from $16,000 to $23,000, and the cash on hand only amounted to $363.45. The liabilities of the bank were estimated to be over $40,000.
It is claimed by the receiver that the assets in his hands are not impressed with a trust, and that the Kansas State Bank is not entitled to a preference, because no money was actually paid by the Bank of Commerce on the $1400 check; that the estate which came into the hands of the receiver was not augmented or bettered by the payment of the check, and that the proceeds of the check are, therefore, not traceable to the hands of the receiver.
An examination of the pleadings and the evidence in the case makes it clear that the Kansas State Bank was the owner of the check, and that the Citizens’ National Bank of Kansas City, as well as the First State Bank, were its agents for its collection. Upon receiving the check, it was the duty of the First State Bank to present it to the Bank of Commerce, receive payment in money or its equivalent, and to remit the proceeds at once to the sender. The money collected belonged to the Kansas State Bank, and the relation between it and the First State Bank was that of principal and agent, and not that of creditor and debtor. The right of the principal owner of the fund derived from the collection of the check to follow and reclaim it is determinable by rules frequently applied in this state. In Peak v. Ellicott, Assignee, 30 Kan. 156, 1 Pac. 499, it was held that money so obtained by a bank constitutes a trust fund, which the owner may follow and reclaim from the bank, or from an assignee of the bank. In that case the manner of identifying and tracing the trust fund received but little attention, but it was said:
“If the trust fund has been mixed with other funds of the bank, this cannot prevent the plaintiff from following and reclaiming the fund, because, if a trust fund is mixed with other funds, the person equitably entitled thereto may follow it, and has a charge on the whole fund for the amount due.”
The matter of identifying a trust fund wrongfully retained and mingled with the money and assets of a bank received attention in Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658. It was there held that if the trust fund can be traced into assets of a trustee it may be reclaimed, and it is immaterial whether the property with which the trust fund was mingled was bills, notes, securities, lands, or other assets; and that if a bank carrying on a general business converted and mingled the trust fund with assets of that character, and to that extent augmented them, it would constitute a charge on the entire assets so enlarged.
In Hubbard v. Irrigating Co., 53 Kan. 637, 36 Pac. 1053, 37 Pac. 625, it was said that in cases like this one courts proceed on the theory that no title to the trust fund ever passes to the trustee, and however it has been mingled with other property the title still remains in the cestui que trust; and, further, that an assignee into whose hands the fund comes must pay over the trust fund to its owner in advance of payment to general creditors. The case was decided upon the theory that the estate with which the trust fund was mingled was increased and benefited by the conversion of the trust fund.
In Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27, bankers who had received a trust fund made an assignment. An attempt was made by the owner of the fund to recover it from the assignee. It was not shown that the fund or any property into which it had been converted ever went into the hands of the assignee, and it was therefore held :
“To render an assignee liable to account to a party who had placed money in the hands of his assignor as for a trust fund, it must appear either that the fund actually came into the hands of the assignee, or that it went to swell the estate of the assignor, which he in fact received.”
It was further held that the mere fact that the fund had passed into the hands of the assignor a short time before the assignment did not warrant the presumption that the money came into the hands of the assignee or had never been repaid to the owner.
In some of the cited cases the doctrine of the impressibility of insolvent estates with trusts was carried to the full length, and language is used which, taken apart from the facts in the cases, might give countenance to a rule that if the trust fund had been used by the trustee even for the payment of his general indebtedness, and without increasing the estate which passed to his assignee, it would be sufficient to charge the whole estate with a trust. In Insurance Co. v. Caldwell, 59 Kan. 156, 52 Pac. 440, the former cases were reviewed to some extent, and the doctrine, with its limitations, carefully restated. It was there held:
“The fund itself, or something into which it has gone and which stands as its representative, must be on hand, subject to identification and separable from the general assets, in order to charge the assignee with the trust; or, if the fund has been so commingled with the general assets as to be incapable of identifition or tracing, the estate which came to the assignee must have been augmented or bettered, in an appreciable and tangible way, in order to charge it with the trust. The mere saving of the estate by the discharge of general indebtedness otherwise payable out of it, or by the payment of the current expenses of the business, is not an augmentation or betterment of the estate, within the meaning of the rule. If the estate has not been increased by specific additions to it, or if what previously existed has not been improved or rendered more valuable, it has not been impressed with the trust claimed.”
Under these rules, can the money collected on the check be traced into the hands of the receiver and reclaimed from him ? He has no better title to the assets of the insolvent bank than the bank itself had, and if the money collected upon the check was held by the bank as a trust fund when it failed, it would be subject to the trust after it was turned over to the receiver. Equity follows a trust fund through any number of changes and allows an owner to reclaim it when and wherever it can be identified. It matters not how much it may have been changed, either in form or character, it still belongs to the owner, and if it, or its fruits or substitute, can be found among the assets of the trustee, the amount of the fund may be taken out of such assets, providing no superior rights of innocent third parties have intervened.
According to the testimony, the trust fund is fairly traceable into the property and assets of the insolvent bank. When the money was collected the bank was a going concern, receiving and paying out money, and it continued to transact a general banking business after the money- was collected, on May 4, until the closing of the bank, on May 6. In the interim it had some quite large transactions with its customers, and, as we have seen, paid out over $1200 to one man on the day after the check was paid. The books of the bank show that on the day of payment there was over $2900 of cash on hand, and over $15,000 in loans and discounts, besides other assets and resources. If the $1400 collected on the check went into the vaults of the bank or into loans or discounts, or was employed in the ordinary course of banking business from the time it was received until the bank was closed, it would to that extent enlarge the assets of the bank and be a charge against them.
The contention is made that because the $1400 was exchanged for outstanding checks of the First State Bank no money was in fact collected, and that, there fore, the proceeds of the check did not go into the business or assets of the bank. It is claimed that the checks for which the $1400 check was exchanged were debts of the bank, and that the discharge of those debts, or the use of the money in payment of general indebtedness, did not operate to swell the estate or bring the fund within the rule of the authorities cited. In our opinion, the process employed by the banks in striking balances and making settlement between them of the day’s business is not to be regarded as the payment of debts. Each bank took up the checks of the other when they were presented by its own customers, and the daily settlements were made in due course of business and as a matter of convenience. The First State Bank could have taken up the checks of the Bank of Commerce, presented them at the counter of the latter and obtained the currency for them, and the Bank of Commerce could in turn have carried the checks which it had taken up to the First State Bank and collected the currency over the counters of that bank. To avoid inconvenience and needless labor, a plan of clearances and settlements, heretofore described, was adopted, and, as it was done in the regular course of business, it is to be regarded as an improved method of carrying on the general banking business, rather than as the mere discharge of debts. If the currency had been collected from the Bank of Commerce, placed in the till with other moneys of the First State Bank, used generally in paying the checks of the depositors, making loans and discounts, buying and-selling exchange, and had gone into the general business of the bank, it would have been conceded that the fund had increased the assets of the bank and had augmented and bettered the estate which went into the hands of the receiver. In cur view, the plan of exchanging checks and making clearances is substantially the same as if the cash had been paid for the check and then mingled and used with the other moneys and assets of the bank in carrying on its general business.
From the testimony, it appears to us that the trust fund went into and enlarged the assets of the bank, and that it was a part of the estate which passed into the hands of the receiver, and is, therefore, a charge upon it. As the finding and decision of the trial court were not in accord with the principles and views stated, its judgment must be set aside and a new trial had. In another trial the question of whether the proceeds of the check actually augmented the estate will open for consideration, and fuller proof may then be produced.
It follows, from the views expressed, that the judgments of the court of appeals and of the district court must be reversed and a new trial awarded. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action of replevin of a stock of goods, brought by the plaintiff in error, T. H. McManus, against the defendants in error, Jacob "Walters and Conrad Sell. The most material claim of error is that the court, in its instructions to the jury, misstated the theory on which the plaintiff based his right to recover the property, and also refused a request for instructions which correctly stated the theory of the claim made by him, and to the establishment of which claim his evidence was directed. The plaintiff claimed to be the owner of the goods, but admitted that he had made a conditional sale of them to the defendants, which conditions, as he claimed, had not been complied with by the defendants. The instructions of the court attributed to the plaintiff a claim of sale of the goods with an express reservation of title until compliance should be made with certain conditions. The plaintiff did not ask that the jury be instructed on the theory of an express reservation of title, but did ask for instructions on the theory of a reservation of title inferable from the facts and circumstances of the case.
To determine the character of the plaintiff’s claim a brief statement of the evidence on his part will be necessary. The plaintiff lived and did business at Newton, Kan. He owned the stock of goods in question, which was at Marion, Kan., and in charge of Jacob Walters, one of the defendants, as his agent. Walters and Conrad Sell, the other defendant, de sired to purchase the goods at Marion. A part of their plan was for Sell to remove a stock of goods owned by him at a neighboring town and unite it with the one at Marion. The parties met at the last-named town and agreed on terms. These terms were reduced to writing and stated in a provisional memorandum agreement, which recited in substance that an invoice of the stock of goods should be taken; that; the plaintiff should' sell to the defendants for ninety per cent, of the invoice price, payable $1000 in cash, the balance in weekly payments thereafter, which payments were to be evidenced by promissory notes signed by the defendants ; that upon the completion of the invoice the plaintiff should execute a bill of sale of the goods to defendants, who in turn were to pay the thousand dollars and deliver the notes.
The bill of sale and the notes were signed preparatory to delivery, and the parties met in a law office to complete the transaction. The plaintiff delivered the bill of sale and the defendant Walters handed the plaintiff $300 of the cash payment. The plaintiff objected that the amount was not what had been agreed upon. Walters said that it was all he had at that time, but that he would pay the remainder to plaintiff at his home in Newton in a very few days. The plaintiff declined to accede to this change of agreement and demanded the return of the bill of sale. Walters at first objected to returning the bill of sale, but handed it back, upon being advised by the attorney present that it should be done. The parties then separated, with the statement by Walters that his inability to pay the full amount agreed on would be temporary, and that he would presently pay it all, the plaintiff thereupon stating that he would deliver the bill of sale and complete the transaction when the thousand dollars was' paid.
The plaintiff returned to Newton and found one of his children suffering a serious injury, from the effects of which it died in about a week thereafter. During this time Walters remitted $200 more to the plaintiff and also called on him for the purpose of a conference concerning the payment of the balance and the closing up of the transaction. The plaintiff informed him that on account of the misfortune in his family he was not in a condition to attend to the business, but stated that as soon as he could do so he would go to Marion and close the matter out. Soon thereafter he did go there, but the parties were unable to agree on terms for the completion of the transaction. In one of his conversations there, Walters admitted that the goods still belonged to the plaintiff. During all this time the defendant Walters was in possession of the stock of goods and engaged in the sale of it, as he had been before he opened negotiations for its purchase.
The above summary of facts was in substance the testimony of the plaintiff. It was contradicted in many particulars by the defendants. We, however, are not concerned with the truthfulness of the statements of either party or their witnesses. The plaintiff was entitled to an instruction to the jury presenting his theory of the case, and the question therefore is, Do the facts, as testified to by the plaintiff, present a claim of implied reservation of title or a reservation of title by express agreement? We are entirely clear that they present a case of the former and not of the latter. Indeed, the counsel for the defendants in error, in their opposition to the theory of implied reservation, array only a portion of the circumstances above detailed and one or two additional matters derived from the testimony of their own witnesses and the cross-examination of the plaintiff, which, giving to them all the weight to which, in reason, they may be entitled, in no manner controvert the theory of the plaintiff in error. They say in their printed argument :
"When the plaintiff had accepted a part payment of the cash payment, when he knew the residue was not to be paid at that time, on the promise of defendants to pay within a short time, and then surrendered possession of the stock of goods, knowing same were to be sold in the usual retail trade, and that new goods were to be put in the stock and the Sells goods were to be moved from Lehigh and placed in the same general stock, by which the identity of the goods sold would be lost, and the means of determining the particular article sold would be made well-nigh impossible, and furnished advertisements for the parties to whom he had sold, and had gone away without receiving the payment, and then advertised in his home papers that he had sold out to Walters, it would take an express agreement to reserve a title in the plaintiff under these facts.”
The above is but the statement of circumstances proper to be taken into account in considering the nature of plaintiff’s claim, but none of them, nor all of them together, possessed a character which would make his claim into one of express reservation of title instead of an implied one. Indeed, the contention of the defendants in error is not g0 that the facts show an express reservation (if any at all) and not an implied one, as it is that the law does not countenance conditional sales by implied reservations of title. The authorities cited by them are summarized in 21 A. & E. Encycl. of L. (1st ed.) 482:
“When there has been no manifestation of intention, the presumption of the law is that the contract is an actual sale, and that the transfer of title takes place at once, if the specified thing is agreed on, and is ready for immediate delivery. This is universally true where the price has been paid or the goods have been expressly sold upon credit, but where the sale is for cash, payment, it has been said, must precede the transfer of title. The better doctrine, however, appears to be that the transfer of title takes place immediately upon the conclusion of the contract, notwithstanding the fact that the transaction is for cash, the seller having a lien for the price which entitles him to retain the possession of the chattel until the price is paid. And in those jurisdictions in which, when the sale is for cash, payment is held a condition precedent, it has been universally held that the seller waives the condition when he makes complete delivery without expressly reserving title to himself.”
There can be no question as to the correctness of the above statement of the law. It will be, however, observed that its application to any particular case is hinged on the fact of the delivery by the seller to the buyer of the thing sold. Counsel for defendants in error, therefore, beg the question in the case. There was no delivery of the stock of goods by the plaintiff to the defendants in error. The defendant in error Walters simply retained the possession of the goods as he had for many months before when he was holding them as the agent of the plaintiff in error, or, to state it in a way to which the defendants in error can take no possible exception, the facts of the case, as testified to by witnesses on both sides, raised nothing more than a question as to whether the possession of Walters was a continuance of his former possession as agent, or a new possession by Mm as owner. It would be impossible for defendants in error to reduce the question to one of more favorable terms than as above stated, and, thus stated, the inapplicability of the law quoted in their behalf becomes apparent. On the other hand, the law is well settled that a reservation of title as one of the terms of a conditional sale may be implied from the circumstances of the transaction. In Fishback v. G. W. VanDusen & Co., 33 Minn. 111, 22 N. W. 244, it was ruled:
“When payment of the purchase-money and the delivery of the goods are expressly or impliedly agreed to be simultaneous, and the payment is omitted or refused by the purchaser upon getting possession of the goods, the vendor may reclaim them, the delivery being merely conditional. To constitute a conditional delivery, it is not necessary that the vendor should declare the condition in express terms at the time of delivery. It is sufficient if it can be inferred from the acts of the parties and the circumstances of the case that it was intended to be conditional.”
In Tiedeman on Sales, section 201, it is said:
“No particular words or forms of expression are really necessary for the creation of a conditional sale. Any words which indicate an intention to annex a condition to the sale will be sufficient. Such phrases, however, as ‘on condition/ ‘provided/ ‘if it shall so happen/ etc., are found in constant use, in the making of conditional sales, and, if employed, will usually remove any doubt as to the sale or transfer being conditional. But whether these expressions are used or not, if the intention of the parties to make the sale dependent upon the happening of some event or the performance of some collateral obligation can be ascertained from the expressions of the parties, it will be a conditional sale, it matters not what may be the language used.”
Authorities to the same effect could be multiplied. We doubt, indeed, whether a single one to the con trary can be found. The court, therefore, erred in stating the theory of the plaintiff’s case and confining his right of recovery to an. express reservation of title.
The court also erred in another particular. It refused leave to plaintiff to amend his petition, under circumstances which constituted an erroneous view of judicial discretion. The plaintiff in his petition and affidavit for replevin alleged the value of the goods to be $5110. Immediately upon securing possession he took an inventory which showed them to be only of the value of $4144. The petition was filed on the 7th of February and the inventory taken a few days thereafter. The case was set for trial April 13, following. When it was called for hearing the plaintiff asked leave to amend his petition by alleging the value of the goods at what he had discovered it tobe. The court denied him leave to make the amendment, but upon the trial allowed him to prove the real value of the goods. After making proof of such value the plaintiff again asked leave to amend his petition by alleging the value to correspond with the proof. This request was denied, and the court thereupon instructed the jury that if it found against the plaintiff to find the value of the goods to be the sum stated by him in his pleadings, to wit, $5110.
Unless there was such conduct on the part of the plaintiff as to disentitle him to make the amendment he asked to make, or unless the making of it would have been to the material prejudice of the defendants, the court should have allowed it to be made. The opposition to the making of the amendment was stated to us by counsel for defendants in error, and, we suppose, was likewise stated by them to the court below, to be that the plaintiff had the time intermediate the discovery of the real value of the goods and the answer-day, a period of about one month, within which, under the authority of the statute, to amend his petition without leave, and also had from the beginning of the term of court at which the case was tried until the calling of the case for trial, a period of ten days, within which to apply to the court for leave to make the amendment, and that, when upon the calling of the case for trial he did ask for leave to make the amendment, he made no showing of reasons why it had not been applied for at an earlier date. These, it must be admitted, constituted proper objections to the making of the amendment, but in our judgment they did not constitute sufficient objections to making it. The defendants urge no reasons why the amendment would have been prejudicial to them other than to deprive them of the opportunity of holding the plaintiff to an inadvertently made allegation of value. They do not say that they desired to contest the plaintiff’s claim of lesser value and were not then prepared to do it. They rely not on merit in themselves but on the laches and consequent demerit of the plaintiff.
Now, while the making of amendments is very largely in the discretion of the trial court, it should, nevertheless, allow amendments in furtherance of justice to a party, if the making of them will work no injustice to the other party; and where the effect of an amendment will be to save to a party $1000, a fifth of the value of the thing in dispute, we think it should be allowed, notwithstanding a lack of diligence in applying for leave to make it. The laches of the one party is only of concern to the opposing party in the event he has suffered some loss or been put to some disadvantage because of it. It is proper to refuse leave to amend pleadings when asked for by negli gent suitors, if the acts of negligence and the amendments in correction of them will be to the material disadvantage of the one who is without fault, but unless such is the case a party should not suffer so serious a punishment for his laches as the deprivation of a very large portion of the value of the thing in controversy.
Some other claims of error are made — one that the court ruled that it was necessary for the plaintiff to make a demand on the defendants for the surrender of the goods before insti tuting the action for their recovery. This was one of the class of actions in which a demand was not a prerequisite to the institution of the suit, and the court, therefore, erred. The other claims of error raise questions subsidiary to the one first and principally discussed herein and do not require special mention.
The judgment of the court below will be reversed, with directions for a new trial. | [
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The opinion of the court was delivered by
Doster, C. J. :
This is an appeal from a judgment of conviction of the offenses of burglary and larceny concurrently committed. The store of one C. J. Gram, in Halstead, Harvey county, was broken into in the night-time and some articles of fruit and confectionery stolen. Suspicion of the crime fell upon the appellant, Taylor Gillespie, a boy aged about seventeen, who with two sisters resided on the outskirts of the town. A few mornings after the commission of the burglary, Gram, the store proprietor, and one Philbrick, a constable, called at the appellant’s house to search for the stolen property. After an explanation by these men of the object of their visit thejboy left, and remained away about an hour, during which time some of the goods in question were found in the house. "When he returned and learned that the goods had been found he explained that one Ike Thompson had brought them to him and left them in his keeping; or, rather, to state the fact more accurately, he testified in his defense on the trial that Thompson had brought them to his house and left them in his charge, and he offered to testify and likewise to prove by Gram and Philbrick that he so stated to them immediately on his return to his house and on being informed of the discovery there of the goods. This offered evidence of the explanation given by him was rejected by the court and its rejection has been assigned as error. We are quite well assured that it was error.
The general rule is that declarations made by a party concomitantly with the performance of an act by him, and of a nature to explain and characterize it, constitute a part of the act itself. The act and the accompanying declaration together constitute the res an¿ are ko^L admissible in evidence. This rule is too familiar to require the citation of authorities in order to the understanding or enforcement of it. It may be remarked, however, by way of illustration of its application to particular cases, that it is not limited to instances of self-disserv ing declarations, but extends as well to declarations self-serving in character:
“It makes no difference, so far as the admissibility of the declaration is concerned, whether it be in favor of or against the party making it. If the act is one of alleged criminality, and the accompanying declaration tends to show it to be innocent, it is equally admissible as where the tendency is to show the criminality of the act; and it may be given in evidence by the defendant as well as by the state.” (Hamilton v. The State, 36 Ind. 280.)
In further illustration of the rule, it may be also remarked that it is not limited to declarations accompanying the performance of acts by a party, but applies as well to declarations explanatory of existing facts with which a party stands in immediate personal relation. Declarations res gestee are not merely declarations accompanying acts performed, but they are also declarations concomitant with present facts. The test of their admissibility is spontaneity of utterance. If they appear to be the instinctive, unpremeditated speech of the party in immediate causal relation to the thing in question, they are admissible, whether that thing be an act concurrently performed or a fact concurrently existing, or whether it be inculpatory or exculpatory in character or import. Declarations of this kind explanatory of the possession of stolen property fall entirely within the rule, and .their admissibility has been fully authorized by the courts and text-writers. Bishop, in his Criminal Procedure, volume 2, section 746, says:
‘ ‘ The discovery of the stolen goods in the possession of the defendant being a fact in the case, the doctrine of the res gestee teaches that what was said in connection with this fact — that is, with the discovery — may in general be admitted in evidence on either side ; especially where, at the time of such discovery, he is directly or by implication charged with the theft. Por example, his explanation of how he came by the goods, and the like, may be testified to as well in his behalf as against him. And if such explanation appears to the jury reasonable, and it is not shown by the prosecutor to be false, its weight in the scale for him will be very considerable ; but, if it appears unreasonable, and especially if it is shown to be false, it will bear against him heavily.”
Some of the cases most clearly in point are The People of the State of New York v. Dowling, 84 N. Y. 478; Henderson v. The State, 70 Ala. 23; Mitchell et al. v. The Territory of Oklahoma, 7 Okla. 527, 54 Pac. 782.
It is not improbable that the court below ruled against the introduction of the offered testimony because the explanation made by the defendant was not given upon the instant of the first imputation against him of guilty possession of the goods. Some of the testimony might furnish a justification for this view but other parts of it do not. It was not so stated by the court as the ground of the ruling made. It was not pressed upon us by counsel for the state, but was only casually suggested by them, and, therefore, we have not critically examined all of the evidence to see whether such may not have been the reason for the court’s decision. In fact, it would seem difficult to determine the relation, in point of time and other circumstances,between an accused person’s knowledge of a criminating fact and his explanation of it, when the privilege was denied him of testifying what his explanation was and the time he made it with relation to his knowledge of the exculpatory circumstance.
Upon the subject of the presumption arising from the possession of recently stolen property the court instructed as follows:
“The possession of recently stolen goods, taken on the occasion of a burglary, is evidence tending to show the guilt of the possessor, and may, when taken in connection with other criminating circumstances, raise a presumption of guilt sufficient to warrant a conviction of both burglary and larceny.”
In The State v. Powell, 61 Kan. 81, 58 Pac. 968, the question of the presumption arising from the possession of recently stolen goods taken on the occasion of a burglary was given consideration. In that case the court below had instructed that the unexplained possession of recently stolen property was prima facie evidence of the guilt of the larceny, and when burglary was charged in connection with' the larceny, and the larceny could not have been effected without the commission of the burglary, the possession of the stolen property was also prima facie evidence of the burglary. This instruction was held to be erroneous because of the failure to include “other criminating circumstances” than the possession of the stolen property as necessary to raise the presumption of guilt of burglary. As to the conditions under which a presumption of guilt of burglary as well as larceny arises, the instruction of the court in this case omitted the statement of one of the essential facts justifying the presumption. That was the lack of explanation of the defendant’s possession of the property. The court instructed that possession of recently stolen property, taken on the occasion of a burglary, was evidence tending to show the guilt of the possessor, and that, of course, meant his guilt of both burglary and larceny, because they were both charged in the information and were both the subjects of investigation; and the court also instructed that such possession, in connection with other criminating circumstances, might be sufficient to raise a presumption of guilt of both burglary and larceny. Now, the unexplained possession of property recently stolen from a burglarized house may be evidence tending, to show guilt of both offenses, but it cannot be that the mere possession of recently stolen property is, as matter of law, evidence tending to show the possessor to be guilty of the larceny, because, if such be the case, it might tend so strongly to show guilt as alone to justify conviction.
Nor do we think that, as matter of law, the mere possession of goods recently stolen on the occasion of a burglary may be sufficient, even in connection with other criminating circumstances, to raise a presumption of guilt of the burglary. The difference in strength and cogency between evidence tending to show guilt and evidence sufficient to raise a presumption of guilt is not great enough, if it exists at all, to justify the drawing of distinctions between the rules applicable to the two states of moral conviction they generate. As just remarked, evidence tending to show guilt may tend so strongly to show it as to raise a presumption of guilt, and a presumption of guilt, if not rebutted, is sufficient to convict of crime. It is the unexplained possession of recently stolen goods that tends to show guilt or raises a presumption of guilt of the larceny, and it is the mexplained possession of goods recently stolen on the occasion of a burglary that tends to show guilt or raises a presumption of guilt of the burglary. In the case of The State v. Powell, supra, the instruction held to be erroneous was not criticized because lack of explanation by the possessor of the stolen goods was not included among the conditions giving rise to the presumption of guilt. In fact, in that case lack of explanation was distinctly included among the elements of the presumption so far as the larceny was concerned ; the instruction was held to be erroneous because the court had ruled that the possession of property recently stolen on the occasion of a burglary was sufficient, without other criminating circumstances, to raise the presumption of guilt of the burglary. The instruction might have been criticized because of its failure to include lack of explanation as one of the necessary additional criminating circumstances, but the question in the case was not what particular circumstances should accompany the possession of the goods in order to raise the presumption, but it was whether mere possession, without any other circumstance, was sufficient; hence it did not become necessary to consider lack of explanation by the possessor of the goods as a condition giving rise to the presumption. However, it is quite apparent that the opinion in that case proceeded upon the assumption that the law required lack of explanation of the possession of stolen goods taken from a burglarized house to constitute an element necessary to show guilt or to raise a presumption of guilt of both offenses because, among other things, it was remarked: “It has been frequently held in this state that such possession unexplained is prima facie evidence of larceny.” And again : “We do not feel warranted in still further extending the presumption that the evidence is of itself sufficient, if unexplained, to warrant a conviction for burglary.”
We think the rule stated by us obtains generally in the other states. In Orr v. The State, 107 Ala. 85, 18 South. 142, the court said:
‘ ‘ Whenever there is evidence tending to explain the possession, it is error to charge the jury ‘that recent possession of stolen property is prima facie evidence of guilt,’ without the qualification ‘unexplained.’ The words ‘may be’ should be used in the place of the word ‘is.’ It is the ‘unexplained’ recent possession of stolen property that authorizes the inference of guilt. Whether the explanation offered is credible or satisfactory is a question for the jury.”
See, to same effect, Blaker v. The State, 130 Ind. 203, 29 N. E. 1077; Robb v. State, 35 Neb. 285, 53 N. W. 134.
Other claims of error are made, but we do not consider them well founded; but, for the errors above pointed out, the judgment of the court below is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action in the nature of a creditor’s bill, brought under section 481 of the civil code (Gen. Stat. 1897, ch. 95, §501; Gen. Stat. 1899, § 4771), by the plaintiff in error, T. W. Harrison, as a judgment creditor of the Topeka Capital Company, against the defendants in error, J. R. Mulvane and others. The court below made a general finding on the evidence in favor of the defendants, and error has been prosecuted to this court. The question for consideration is, Did a trust exist on the facts disclosed on the trial in J. R. Mulvane in favor of the creditors of the Topeka Capital Company? As stated, the finding was general and in favor of the defendants ; hence we are bound to view the facts as claimed by them. If, therefore, there was evidence to support all of the material claims of the defendants, the judgment of this court must also be in their favor.
Summarized, the facts were that J. K. Hudson was indebted to one O. C. Baker in the sum of $15,000, secured by first mortgage on a newspaper property, and also indebted to the late Senator P. B. Plumb in the sum of $10,000, secured by a second mortgage, and to J. R. Mulvane in the sum of $5000, secured by a third mortgage on the same property. All this indebtedness was incurred prior to 1890. In that year the newspaper property was sold to the Topeka Capital Company, a corporation, in consideration of 500 shares of stock in the company issued to Hudson. Contemporaneously with this sale a written agreement was made between Hudson and the company by the terms of which 495 of the shares of stock were deposited with the Bank of Topeka in trust and as security for the payment of all indebtedness constituting liens on the property, such stock to be sold by the trustee upon the written request of the board of directors of the Capital company for the purpose of raising funds with which to discharge the liens for indebtedness. The writing provided that the sale should be made by the president of the trustee bank, or, in case of his absence or inability to act, then by the vice-president. At this and all subsequent times hereafter mentioned J. R. Mulvane was the president of the Bank of Topeka.
Soon after the transaction last mentioned, Mulvane sold the debt and chattel mortgage owned by him to the Bank of Topeka, but bought it back in 1895. The amount paid for it was not shown. Its face value, including overdue interest, was $7500. The precise date of the repurchase was not shown. It would appear to have been as early as July, 1895, because in that month Mulvane made an affidavit of renewal of the mortgage as a subsisting lien owned by him. However, there is some uncertainty in his testimony as to whether the transaction did not occur at a later time. October 23, 1895, the board of directors of the Topeka Capital Company, in pursuance of the aforementioned agreement with J. K. Hudson, requested Mulvane, the president of the Bank of Topeka, to sell the stock held by the bank as trustee in order to raise a fund to discharge the indebtedness against the company’s property, and, at the same time, they authorized the execution of a mortgage on the property to the Bank of Topeka to secure $3900 previously borrowed from it and an additional sum of $1100 for present purposes, making $5000 in all. This mortgage was executed, and constituted the fourth lien on the newspaper property. In pursuance of the request of the board of directors of the Capital company, Mul vane endeavored to sell the stock. It quite satisfactorily appeared from the evidence that he made a diligent effort to dispose of it, but was unable to find a purchaser. At or about the time of the direction of the company to Mulvane to sell the stock, the latter, being the owner of the third lien on the mortgaged property, bought the two prior liens. He bought the one owned by Baker for $15,000, paying the principal sum, without an accumulation of several thousand dollars of interest which then existed. He bought the one owned by the heirs of the Plumb estate for $8000, which was $2000 less than the principal sum, without counting a like accumulation of several thousand- dollars of interest. His own lien at this time amounted to about $7500. He also bought the mortgage last mentioned, the one given by the Topeka Capital Company to the Bank of Topeka, for which he paid $5000. This made $35,500 of actual investment in the various securities mentioned.
In 1895, and prior to the matters hex’etofore stated, a suit in equity had been instituted in the United States circuit court for the district of Kansas by one J. E. Baker, to which all of the persons owning liens on the newspaper property were made parties defendant, and required to disclose their interest in said property. On August 5 of that year J. R. Mulvane filed a cross-bill in said suit, claiming a chattel-mortgage lien to secure the aforementioned indebtedness of about $7500 from the aforesaid J. K. Hudson. This would seem to be additional and confirmatory evidence of the claim made by him in this suit that the particular indebtedness mentioned was owned by him prior to the time of his purchase of the prior liens of C. C. Baker and the Plumb heirs. In the equity suit in the United States circuit court, a decree was rendered in March, 1897, adjudging J. R. Mulvane to have liens on the property in his own original interest and as the successor by assignment of the indebtedness and liens of C. C. Baker, the Plumb heirs and the Bank of Topeka to the amount of $52,274, and’also decreeing a sale of such property to satisfy the indebtedness. This sale was made and confirmed in April, 1897. The sale was made to one D. W. Mulvane, and, as reported by the master, was for the sum of $52,000. As a matter of fact, it was only for the sum of $88,500. As before stated, the actual investment of J. R. Mulvane in the mortgages covering the property at the time of and including his purchase of the prior liens of Baker and Plumb and the subsequent lien of the Bank of Topeka, and inclusive of his own lien, was $35,500. The Baker mortgage of $15,000 bore interest at eight per cent. ; the Plumb mortgage of $10,000, purchased for $8000, bore interest at seven per cent.; the Mulvane mortgage of $5000 bore interest at twelve per cent., and the Bank of Topeka mortgage of $5000 bore interest at eight per cent. There had, therefore, fully $3000 of interest accumulated upon J. R. Mulvane’s investment of $35,500 in October, 1895, when the most of it was made, at the date of the sale made by the master to D. W. Mulvane in April, 1897.
Upon the above state of facts, the plaintiff in error contends that J. R. Mulvane was a trustee for the Topeka Capital Company and its creditors, and is accountable to them for the difference between the amount actually invested by him in the various liens on the company’s property and the amount reported by the master to have been realized at the foreclosure sale of such property. The reason for this claim is the familiar rule that a trustee is prohibited from pur chasing the property which is the subject of his trust, and which rule, at the election of the cestui que trust, avoids the sale or gives a right of action for resulting profits against the unfaithful trustee. It is said by the plaintiff in error that inasmuch as the Bank of Topeka was the trustee for the sale of the Topeka Capital Company’s stock, and inasmuch as a corporation can act only by its officers, and inasmuch also as the president of the bank was specially designated in the trust agreement as the one to make the sale, Mulvane, as such president, was in reality the trustee. If this were a determining question in the case we might agree with the plaintiff in error, but the question does not involve the relation between the bank and its officers, nor the duties devolving upon them to discharge trusts resting upon the bank, but the question is, Did the trust assumed by the bank to sell the shares of stock to raise funds to pay the newspaper company’s indebtedness preclude Mulvane, or even the bank as the trustee, from buying prior liens on the company’s property to protect a subsequent lien held by him or it ?
It must be observed that the trust was not in relation to the newspaper company’s mortgaged property, but it was in relation to Hudson’s shares of stock in the company, which had been pledged for the payment-of the company’s indebtedness. The trust was not in relation to the company’s property, but it was in relation to Hudson’s stock. It is true that the trust was to sell stock to pay indebtedness upon property, but that does not make the property or the indebtedness upon it the subject of the trust. The subject of the trust was not corporation property, but was shares of corporation stock. Had the trustee charged with the sale of the stock bought it for himself, the doctrine invoked by the plaintiff in error might have application, but the trustee did not buy the stock, the subject of the trust. He only bought liens on the property to discharge which the proceeds of the sale of the stock were to have been applied if such sale could have been made. We do not believe that equity, rigid as it is in its scrutiny of the conduct of trustees, condemns such a transaction, in view of the fact that the trustee was himself the owner in good faith of a subsequent lien, to protect which it became advisable to make the purchase of prior liens. The Mulvane lien of $5000, the third in order of priority, antedated the making of the trust agreement. The debt, to secure which that lien was given, was contracted before Mulvane or the Bank of Topeka became a trustee, and it was in existence during all the time the trust agreement existed.
A question has been raised by the plaintiff in error as to whether that indebtedness was in reality owned by Mulvane or the bank of which he was president. It was contracted to Mulvane, but, as before stated, was afterward sold to the bank, and by the bank sold back to Mulvane, as he claimed. Now, for the purposes of the case, it is immaterial whether Mulvane or the bank owned it. One or the other of them did. If in reality the bank owned-it, no right has been lost to the plaintiff in error through an assertion of ownership by Mulvane, its president. The ownership of the mortgage by the bank, with the consequent right to protect it by the purchase of outstanding liens, would have been as potent against the plaintiff in error as the same ownership with the same right in Mulvane. It might have been different if the Mulvane mortgage had been acquired by assignment from some source other than the Topeka Capital Company subsequently to the making of the trust agreement and with knowledge of the existence of that agreement. It might then have been claimed that the trustee was scheming to speculate in the trust property, assuming that such property was a newspaper property, and not shares of stock; but the trustee, if he were to be called such, purchased no interest in the trust property, if it were to be called such, with a view to speculation in that property. What the trustee, if he were such, bought was an outstanding prior lien on the trust property, if it were such, to protect the subsequent lien acquired by him before he became trustee and continuously held by him since that time. This, we feel sure, he was lawfully authorized to do.
We might agree with the plaintiff in error that Mulvane, if a trustee as to the newspaper property or the liens upon it, was accountable for the difference made by him between his actual investment in the trust property and what he realized out of it at the master’s sale. It is this difference which the plaintiff in error asks. He must, therefore, be held to have ratified Mulvane’s acquisition of the legal title to the so-called trust property. He does not ask that the transaction be set aside as void, but he permits it to stand, and asks that Mulvane be compelled to pay him such portion of the profits realized out of the transaction as will discharge his judgment. If, therefore, Mulvane made no profits the plaintiff in error cannot lawfully have the relief asked. As before shown, Mulvane made no profits except the contract rate of interest on his actual investment. If we could concur with the view of the plaintiff in error as to Mulvane’s liability, we could not hold him to the payment of a sum of money as profits on an unlawful transaction merely because the master reported a sale for a larger sum than was actually realized. It would be only for ac tual profits that Mulvane could be held, if for anything. That, as before shown, was nothing but ^-simple interest. The difference between his actual {investment of $35,500, and $38,500, the sum actually jrealized by him at the sale, did nothing more than ¡cover the .interest which accrued between the two •periods mentioned on the actual investment made. , This, of course, is a form of profit, but it is not of that exaggerated amount or fraudulent character as to be taken seriously into account, even in a transaction which the law otherwise condemns.
Other claims of error have been made, but they are either subsidiary to the principal one above discussed, and therefore need not be mentioned, or they are not well taken. In the presentation of the case many authorities were cited on both sides, none of which, however, has a direct bearing on the precise question. All of them were simply declarative of abstract and fundamental rules, the soundness of which cannot be disputed. Their applicability to the case in hand is not, however, perceived. The controversy is a peculiar one. It relates to the right of a person charged with the duty of selling corporation stock in order to raise a fund to pay liens belonging to himself and others, to protect his own lien by buying those prior to it, when his own lien had been acquired prior to the time he took upon himself the obligation to sell the stock. Upon this precise question counsel have not furnished us with any direct authorities, and the multiplicity of*our labors has prevented research for ourselves.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
C. C. Corum and W. O. Robinson were charged with selling goods in the city of King-man without a license, in violation of a city ordinance, and upon a trial in the police court were found guilty. Failing to pay the fine imposed, they were taken into custody, from which they seek to be relieved by the writ of habeas corpus.
The petitioners attack the jurisdiction of the police judge because the complaint was sworn to and the warrant issued by S. T. Palmer, a justice of the peace, who was acting police judge in the absence of Moses Wag-goner, the regular police judge. Attention is called to section 913, General Statutes of 1899 (Gen. Stat. 1897, ch. 37, § 18), in which it is provided that no person shall hold the office of police judge and justice of the peace at the same time. Standing with that provision, and as part of the law relating to cities of the second class, is another provision that if the police judge be absent, sick, or disqualified from acting, a justice of the peace shall act as police judge until such absence or objection shall cease. (Gen. Stat. 1899, § 993; Gen. Stat. 1897, ch. 37, § 100.) We think these provisions may be reconciled by interpreting the first to mean that a person holding the office of justice of the peace cannot be elected or appointed police judge; but if the police judge who has been elected or appointed be absent, a justice of the peace may be called in to act as police judge during his absence. In this view both provisions may stand and be given operation.
However, if the justice of the peace had been disqualified to act, it would not have invalidated the judgment that was subsequently rendered or justify the issuance of the writ. While the warrants were issued and recognizance taken by the acting police judge, the case was in fact tried, the judgment rendered and the commitment issued by Waggoner, who was regularly holding the office of police judge. The arrests were made without process, by officers in whose presence the offenses were committed, and hence the matter of the issuance of the warrants is of little consequence at this time. Irregularities preceding a judgment rendered by a court of competent jurisdiction cannot be corrected by a proceeding in habeas corpus. The police court had jurisdiction of the peti tioners and of the offense charged against them, and its judgment is not a nullity which can be collaterally attacked; and in such case the errors, if any were committed, must be corrected by an appeal.
Again, it is contended that as Waggoner had been appointed to fill a vacancy, and that, as there was no election for police judge at the ensuing election, the office became vacant, in the absence of an appointment subsequent to the election. It is unnecessary to consider whether an election should have been held, as Waggoner had been appointed, had qualified, and was in the actual and undisputed possession of the office. He was at least a defacto officer, holding a defacto court, and as such his acts were not void, and his title or right to the office was not subject to collateral attack. (The State v. Williams, 60 Kan. 837, 58 Pac. 476; The State v. Williams, 61 id. 739, 60 Pac. 1050.)
It is next contended by the petitioners that they were representing the L. B. Price Mercantile Company, of Kansas City, Mo.; that orders were taken by them which required the approval of the company before the transactions or sales were completed, and, therefore, that the business in which they were engaged was interstate, and not subject to local control or to a license tax. It may be remarked that neither the respondents nor the city claim that authority exists to impose a tax on interstate commerce. The ordinance in terms excludes business of that character from its operation, and the claim of the city was that the business which the petitioners were carrying on in Kingman, in part at least, was done within the state. We cannot go behind the judgment or open up and review the evidence on which the judgment rests. The city had authority to impose a license tax on pedlers, and for that purpose an ordinance was passed, the validity of which is not assailed. The petitioners were charged with a violation of this ordinance before a court competent to try such violations. Upon a trial it was adjudged that the petitioners were guilty. The statute provides that no court or judge shall discharge a party held upon any process issued on any final judgment of a court of competent jurisdiction when the term of commitment has not expired. (Gen. Stat. 1897, ch. 96, §91; Gen. Stat. 1899, §4975.) The record shows every necessary jurisdictional fact, and upon its face the judgment is valid. It appears tliat one of the defenses made before the police court was that the business was interstate, while the city made a contrary contention, and the court determined this question in favor of the city, and whether it decided it rightly or not under the testimony is not open to inquiry by habeas corpus. (In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414; 9 Encyc. Pl. & Pr. 1046.) If errors were committed in the proceedings in police court, or in the force and effect given the testimony before it, the remedy of the petitioners was an appeal to the district court. We think there is no merit in the claim that the city or its officers prevented the petitioners from taking an appeal, and upon the whole case we conclude that the relief asked must be denied.
The petitioners will be remanded. | [
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The opinion of the court was delivered by
Smith, J.:
Plaintiff in error earnestly contends that the trial court erred in overruling its demurrer to the evidence for the reason that the testimony introduced by plaintiff below raised no presumption of negligence on the part of the railroad company or its servants in the operation of the train. It cites authority to the effect that if the accident occurred undexcircumstances which might be attributable to causes unavoidable on the part of the railroad company, mere proof of plaintiff’s injury is insufficient to make a prima facie case of negligence against the carrier.
We have carefully examined the cases cited, together with others involving this question, and conclude that the rule of evidence in cases of injury. to a passenger is in accord with the decision of this court in A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 316, 46 Pac. 311. An accident resulted in death. The deceased left a widow and next of kin surviving him. The court said:
“Under the pleadings and the allegations of negligence contained, in the petition, it devolved upon the plaintiff below in the first instance only to prove the derailment, the injury of the passenger thereby, that death occurred from the injury, and that the deceased left a widow or kindred surviving him ; and it then became incumbent upon the company, in order to escape liability, to show that the derailment resulted from inevitable accident or something against which no human prudence or foresight on the part of the company could provide. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 659, 26 Pac. 45, and cases cited; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 345, 40 Pac. 641.)
If the testimony introduced on behalf of the plaintiff in such cases should develop that the injury resulted from an act of God, unavoidable casualty, or from causes not connected with the construction, operation or maintenance of the railroad, then the burden of proof would not shift to the defendant to account for the accident, for the explanation itself (made by the plaintiff) would exonerate the carrier from the charge of negligence. The gist of the action is want of care on the part of defendant. A presumption of negligence in such cases arises not from the fact of the injury alone, but from its cause or the circumstances attending it; and if such circumstances as detailed in the testimony introduced by the plaintiff should show, for instance, that he was shot through a window by a person distant from the track, or that the train was struck by lightning, that he fell down while the train was standing still, or that the accident happened in some other manner wholly beyond the control of the carrier or its servants, there would be no presumption of negligence for the defendant to rebut, for the reason that the plaintiff had, in his account of the accident, disproved the charge of negligence made by him. The railroad company being held to the highest degree of care which human prudence or foresight can provide, it is sufficient in this class of cases to show prima facie that the injury was occasioned by the failure of some portion of the .machinery, appliances or means provided for the transportation of passengers, or any other thing which the carrier can and ought to control as a part of its duty to carry passengers safely. (Meier v. The Pennsylvania Railroad Co., 64 Pa. St. 225.) A presumption of negligence arises from the occurrence of an accident alone when it proceeds from an act of such character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. (Transportation Company v. Downer, 11 Wall. 129, 20 L. Ed. 160.)
In Gleason v. Virginia Midland Rld. Co. 140 U. S. 435, 444, 11 Sup. Ct. 862, 35 L. Ed. 463, this question was considered by the supreme court of the United States. The accident in that case occurred by reason of a landslide in a railway cut, caused by an ordi nary fall of rain. It was held that' an injury to a passenger, caused by the train coming in contact with the earth which had fallen down upon the track, raised a presumption of negligence on the part of the railway company, and threw the burden of proof of showing that the slide was in fact the result of causes beyond the control of the railway company upon the latter. In passing on the question, the court said:
"The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” (See, also, Law. Pres. Ev. 128.)
We think the plaintiff below, by the testimony offered in his behalf, brought the case within the established rule, and that when he rested, a prima facie charge of negligence had been made out, which the railway company was called on to meet in order to overcome the presumption against it.
Nor can we hold, as a matter of law, that the plaintiff below was guilty of contributory negligence. This question was one for the jury. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) We cannot say, from the fact that plaintiff below leaned over toward the stove to spit, that he was guilty of an act of negligence. This is not an uncommon thing to do. Railroads recognize the general use of tobacco, both for smoking and chewing, by running smoking-cars on all passenger-trains and by furnishing their coaches with cuspidors. Plaintiff was riding in a caboose attached to a freight-train, and it is not quite clear from the testimony what his position was immediately before he was injured, but it would seem that he had assumed a crouching position, with one hand on the seat to brace himself. In Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136, it was said:
“In an action to recover for personal injuries, where the defense is contributory negligence on the part of the plaintiff, the court cannot tr.’:e the case from the jury and determine as a matter of law that the plaintiff was negligent where the standard of care required of him was a subject upon which different opinions might be entertained, and where the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably prudent man should have done under the circumstances.”
The degree of care required on the part of a railway company toward a passenger traveling in the caboose of a freight-train was considered in Mo. Pac. Rly. Co. v. Holcomb, 44 Kan. 332, 24 Pac. 467.
Objection is made to the reception of testimony of professional and lay witnesses relating to complaints of plaintiff with regard to the existence of his pain and suffering communicated to them after the accident. Counsellor plaintiff below, in propounding questions upon this point, brought themselves strictly within the rule stated in A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, and inquired concerning the presence of existing pain, and the answers given were responsive to such questions. There was no error in the admission of such testimony.
Particular questions of fact were submitted to the jury on behalf of the defendant to be answered, and one of the instructions relative thereto was the following :
“Your answers to these questions, if any, should be consistent each with the other, and should be answered, in the event that your verdict is for the plaintiff, in the light of the testimony, after due consideration thereof, and under the rules of law given you in this case.”
There was error in this direction to the jury. It was not their duty to reconcile the answer of any particular question of fact with another, but to answer each question in accordance with the preponderance of evidence bearing upon the fact involved in the interrogatory. (Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064, and cases cited.) This erroneous instruction compels a reversal of the cause, and, in view of another trial, we think that the following instruction is subject to criticism.
“The plea of carelessness and want of due care and caution on the part of the plaintiff is an affirmative plea tendered by the defendant, and, before it can avail itself of the relief in such plea sought, it must establish by the fair weight of the evidence the facts stated in such allegation and defense.”
By this direction the jury might have been misled into the belief that if the plaintiff, by testimony offered in his behalf, had shown con-tributary negligence upon his part, the same could not avail the defendant, because the fact of such contributory negligence was not established by the company. A similar instruction was passed on and criticized in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.
Again, the court instructed the jury that if they found that the plaintiff, by reason of his carelessness and negligence, as alleged by the defendant in its answer, occasioned the injury, then there could be no recovery. In the answer it was alleged that the injury was occasioned wholly by the plaintiff’s own carelessness and negligence. It would thus follow from the instruction that the plaintiff might nevertheless recover, although his injury was occasioned partly through his own negligence. The instruction was misleading.
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
Doster, J. :
This is an appeal from a judgment of conviction of embezzlement, as defined by section 95 of chapter 100, General Statutes of 1897 (Gen. Stat. 1899, § 2034). The case has been in this court once before. (The State v. Eastman, 60 Kan. 557, 57 Pac. 109.) The gravamen of the offense under the statute cited is the neglect or refusal of agents to deliver to their employers on demand moneys and other property which may have come into the possession of the agents by virtue of their employment. The principal ground of appellant’s contention is the refusal of the court to allow him to prove and the jury to consider a tender of the amount alleged to have been embezzled, made after the prosecution was begun.
The appellant was the agent of L. D. Morris to rent and care for real property, collect rents, etc. He did so, and out of rents collected made expenditures in the interest of his employer. Morris was absent from the state a number of years. Upon his return he at several times asked for a “settlement,” at all of which times excuses for not making it and requests for delay to make it were made and granted. Finally, in December, 1897, appellant exhibited to his employer a statement of account of moneys collected and disbursed for him, showing the amount of $164 still due and in his hands. This amount was not then demanded. The jury found that a demand for it was not made until January 1, 1898. On that day Morris, with an attorney, called on appellant and, as they say, made demand for the amount shown by his statement to be due. The making of the demand was denied by the appellant. His excuse for failure to pay the amount then was that he had in the meantime discovered the stated balance to be incorrect; that he was entitled to credits not included in the statement, and he said that Morris and the attorney left without giving him an opportunity to explain and to tender the sum really due.
Prosecution was instituted against him on the 12th day of February. Once or twice thereafter, and before the commencement of the preliminary trial, he tendered, as he says, the real sum due, to wit, $118. At one point in his testimony he stated the making of this tender without objection, but afterward, upon being further questioned by his counsel, the court refused to allow him again to state the fact of the tender, „ot because he had already testified to it, but because it appeared to have been made after the institution of the prosecution. To this refusal exception was taken. The jury were not at that time directed to disregard his testimony previously given as to the tender, but they must have understood the'court’s ruling rejecting it when latterly offered as tantamount to an injunction not to consider it as previously given.
At the proper time appellant requested the court to give to the jury the following instruction :
“While a tender by the defendant after the commencement of this prosecution would not excuse him for any offense before that time committed, at the same time that act of his is proper for you to consider in connection with all the other evidence in the case in determining whether or not at the time he refused to pay over to Morris upon demand such refusal was made with a criminal intent, and for this purpose you may consider the evidence before you as to such tender.”
This request was refused and exception taken. We think the court was in error in its rulings on the offer of evidence and on the refusal of instructions asked. It is true that restitution of property stolen or embezzled, or an offer to return it, does not obliterate the offense, and this is as true when the return or offer was made before the institution of the prosecution as afterward ; but there is no rule authorizing the rejection of evidence of a return or offer to return stolen or embezzled property, simply because the return or offer was made after prosecution was begun. Such evidence may possess but little weight, but nevertheless it goes to the question of intent with which the property was taken or withheld. It cannot, as matter of law, be said to manifest mere contrition of spirit, or be an effort to avert the consequences of wrong-doing. In the case of embezzlement, it may evidence a bona fide belief by the defendant that the money or property was rightfully taken or rightfully withheld by him, and a recent discovery of mistake as to that fact. This is especially true in cases of embezzlement arising under the statute cited. Under that statute the crime is not complete until demand is made by the employer and a neglect or refusal by the agent, and not then if the employer had permitted the agent to use the money or property, nor if the demand was of a sum of money which did not allow to the agent “his reasonable or lawful fees, charges, or compensation for his services.”
In this case the jury found the amount embezzled to be |118, but the demand by the employer was for a sum largely in excess of the one the jury found to be due — was for a sum which did not allow to the agent credits to which he was rightfully entitled. Considering the fact that, until January 1, 1898, no demand (on the agent for money had really been made, but only a demand for a “settlement,” and that on that day the demand was for a sum of money considerably greater than the jury found to be due, although the appellant had once mistakenly admitted it to be due, it would seem difficult to find ground upon which to rest a conviction; and we therefore think that the defendant, in view of the special circumstances. of the case, and apart from the general rule to which we have adverted, was entitled to the evidence offered and the instruction requested.
The verdict of the jury recited “that the amount of money in his (the defendant’s hands) belonging to D. L. Morris, on January 1, 1898, the date when the demand was made for the . A , . n money, was $118. Objection was made to this verdict because it did not state the value of the $118 embezzled. Inasmuch as under the section before cited the punishment for the offense is the same as for grand or petit larceny, according as the value of the property embezzled may be above or below twenty dollars, it is said that the jury should have found the value of the money in question. No cases in support of or against this claim of error were cited to us, but the novelty of the proposition induced us to make search among the authorities. We found none excepting the case of Gerard v. The State, 10 Tex. App. 690. That case supports appellant’s contention, but we cannot regard it as an authority to follow. Money is not a thing to be valued in its own terms. It is itself the measure of values. The value of a dollar can be ascertained only by comparing it with another dollar. When thus compared, they are perceived to be exact equivalents, but their equivalence was as well known before the comparison as afterward.
As to the different kinds of dollars of this country, issued by authority of the general government, we take judicial notice that, by the practice of the United States treasury department and in the economic habit of the people such dollars are maintained at a parity of value, and that they circulate at par; and we also take judicial notice that state bank money, some of which was formerly not accepted at its face value, is now no longer in circulation. We therefore conclude as matter of law that the f 118 mentioned in the verdict of the jury, meant one hundred and eighteen dollars of United States currency, each one of the actual value expressed on its face.
Other claims of error are made. Some of them are not well taken, and we have not considered it necessary to make examination as to the validity of the remainder. The judgment of the court below is reversed, with directions for a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
There is nothing in the record before us which distinguishes this case from that of Kansas City v. Kimball, 60 Kan. 224, 56 Pac. 78. So far as the petition to the mayor and council is concerned, it shows a conformity to the provisions of section 171 of chapter 32, General Statutes of 1897. There is a certificate by the city engineer, to which officer we presume the petition was submitted, stating that the same is signed by the owners of a majority of the front feet owned by residents abutting on Ann avenue between Sixth and Tenth streets, and a further certificate by the city attorney showing that the petition is signed by the parties having a legal right to sign for the property set opposite their names as shown by abstracts furnished by the city abstracters. These certificates, with the petition, were before the council when the prayer of the property owners was granted. The certificate of the engineer shows the total number of front feet owned by resident property owners to be 3520 ; total number signing, 1982.50 ; majority, 445. There is error in this calculation, in that the majority should be 222.50.
The principal attack made on the validity of the petition for paving is based on -the fact that Huron Place, having a frontage of 400 feet on the avenue to be paved, was dedicated to public purposes on September 28,1859, and that the mayor, representing the city, was without authority to join with the other petitioners. The 400 feet signed for by the mayor does not appear upon the face of the petition to be the property known as Huron Place. This fact was shown by evidence aliunde the petition to the council. We are concerned here only with the question whether the petition to the council praying for the improvement contained evidence on its face showing that it did not conform to the statute requiring that the same be signed by the resident owners of a majority of the feet fronting and abutting on said street to be improved.
In Kansas City v. Kimball, supra, Mr. Chief Justice Doster, speaking for the court, said:
“The defendants in error not having commenced their action within the statutory period, the remaining questions are easy of disposal. The law did not require the petition to the mayor and council for the making of the improvements in question to show upon its face that it was signed by the resident owners of a majority of the front feet to be paved. (City of Argentine v. Simmons, 54 Kan. 700, 39 Pac. 181.) The fact, if it were such, that the resident owners of a majority of the front feet did not'in reality sign the petition did not appear upon it or upon other proceedings. Upon the face of the petition and other proceedings nonconformity to the law did not appear. In such cases the validity of the assessment cannot be challenged beyond the limited period allowed by the statute for so doing. (Doran v. Barnes, 54 Kan. 238, 38 Pac. 300.)”
It is true that if the 400 feet frontage of Huron Place be deducted the petition lacks 177.50 feet of containing a majority of the front feet owned by residents of the city, but inquiry into this question cannot be made aftef -the statute of limitations has barred the right to attack the validity of the assessment. It would be a matter of doubt if the petition for the improvement showed on its face that the property represented by the mayor was in fact Huron Place, the legal title to which is in the county, whether j urisdietion had been conferred on the mayor and council to order the paving done and contract therefor at the expense of the property owners. Conforming, however, to the rule laid down in the case quoted from, we are not at liberty to hold that the 400 feet appearing thereon in the name of the city is the tract of land known as Huron Place, and that the mayor was without power to sign therefor. We must look to the face of the petition. '
A city can take and hold a fee-simple title to real estate when the same is necessary for municipal purposes, and the petition to the council asking for this improvement does not disclose that the property signed for by the mayor was not so held. In Doran v. Barnes, 54 Kan. 238, 241, 38 Pac. 300, 301, which was a case involving the levy of a paving tax in 1he city of Wichita and the validity of a petition therefor, the court said:
“The mayor and council examined the petition. Upon the hearing thereof, they found that it was signed by the owners of a majority of the abutting front feet, even after omitting 100 feet therefrom. With this omission, there was 3398 feet represented. They ordered the petition spread upon the journal. At the time the amount due on each lot or piece of ground liable for the assessment was ascertained, all the proceedings relating to the paving and assessment were apparently regular and valid. We are therefore of the opinion that paragraph 590 of General Statutes of 1889 is applicable, and that this action ought to have been commenced in the court below within thirty days from the time the amount of the assessment was ascertained.”
That some of the petitioners were non-residents is not available to the plaintiffs below after the statute of limitations has run, such fact not appearing on the face of the petition to the council.
The estimate of the engineer, in our judgment, was sufficiently detailed to meet the requirements of the statute. It contained the number of square yards, the cost per square yard, and the total cost. The objection urged against the estimate is that there is no specification whether one or more layers of brick are to be used, and that there is no apportionment as to how much is chargeable to the abutting property or to the city at large. In the case of Olsson v. City of Topeka, 42 Kan. 709, 21 Pac. 219, the city proposed to pave a street with stone and asphalt, and the estimate made by the engineer of the cost of the improvements was as follows: “Paving 2633 square yards, at $2.85 per square yard, $7504.05.” This was held to be in sufficient detail, and it corresponds substantially with the estimate in the case at bar. The statute does not require the estimate to state the amount chargeable to the city at large.
Furthermore, we think that section 212 of chapter 32, General Statutes of 1897 (Gen. Stat. 1899, §749), providing that no suit to set aside special assessments or enjoin the making of the same shall be brought after the expiration of thirty days from the time the amount due on each lot liable for such assessment is ascertained, does not permit an inquiry into the question whether the estimate in this case is sufficiently detailed, after that period. The suit to enjoin the col lection of the assessments was commenced more than thirty days from the time the amount due for the paving on each lot was ascertained. The estimate of the engineer was one of the steps in the assessment proceedings which followed the granting of the petition-of property owners presented to the mayor and council, and, if insufficient, it was shielded from attack by said statute after the thirty days had expired. The question first to be determined in this case is whether the mayor and council obtained jurisdiction by a petition regular on its face, showing from its recitals that the requisite number of resident property owners joined in the request for the improvement. This appearing, a defective estimate made by the city engineer, which, under the provisions of the statute, seems to be required for the information of the municipal authorities, cannot be shown, to defeat the power to make the improvement, after the time permitted by law to begin an action therefor has expired. It seems probable that, had an action been commenced in time, the property owners complaining of this assessment could have defeated the same, for then the range of their attack would have been much wider and not confined to such narrow limits. Having waited too long, they are not now in a position to obtain relief.
The judgment of the court below will be reversed and a new trial granted.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an appeal from a judgment of conviction of burglary. A bank building was burglariously entered and the bank safe was blown open by the use of some kind of explosive. The appellant was arrested, tried, and found guilty of the offense. Much evidence was adduced upon the trial tending to show his complicity with others in the crime committed. It was proved that within a few hours after the burglary the appellant and his alleged accomplices went to a boarding-house in Wichita, where he had several times previously stopped; that six or eight months before the burglary he had left at the boarding-house some percussion caps of a kind which are used in connection with a fuse for purposes of blasting and exploding. The admission of this evidence is the principal ground of error assigned. The argument against it is the considerable length of time intervening between the appellant’s known connection with the percussion caps and the burglary, and the fact that such caps are not necessarily criminal instruments, but may be and often are used for lawful purposes. Neither of these reasons was sufficiently cogent to justify the exclusion of the evidence. They only went to its weight and not to the legality of its admission.
In Commonwealth v. Brown, 121 Mass. 69, surgical instruments adapted to effecting abortions, although not exclusively designed for such use, found in the defendant’s possession, were held to have been rightly admitted in evidence. In Commonwealth v. Blair, 126 Mass. 40, testimony that, five months before the commission of an abortion with which the defendant was charged, he was seen in the possession of a surgical instrument adapted to effect the operation, was held to have been rightly admitted. The ground upon which the decisions in these cases were rested was the possession by the defendants of instruments fit and appropriate to the commission of the crimes with which they were charged. The fact that they could be used for lawful purposes, and the fact, as in the case last cited, of the considerable lapse of time between the possession of the instrument and the commission of the offense, were held to be matters affecting the weight, and not the admissibility, of the evidence. In such view we concur.
Another claim of error is the admission in evidence of some pennies which the state tried to prove the appellant had expended at the boarding-house before mentioned. The admission of this evidence was immaterial, in the sense that it was not anywise prejudicial to appellant. All other assignments of error were expressly abandoned at the hearing.
The judgment of the court below is affirmed. | [
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Error from Wabaunsee district court.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
The testimony introduced by the plaintiffs below showed that the deceased, up to the time he stepped on the track, was walking in a place of safety between what is called the main line and the track next to it. He was familiar with the location, and had traveled over the ground adjacent to these railroad-tracks many times. He knew that the employees of the railway company were engaged in switching freight-cars, and just before his death he had passed the very train which struck him, a short distance west of the place where he was killed. This train, consisting of an engine and six or seven cars, was moving about, with nothing to prevent its being seen by a person walking through the yard. Had the plaintiffs’ son taken the slightest precaution, by looking or listening, to ascertain whether the train which he had passed a few minutes before was backing up, he would have escaped the injuries which resulted in his death. He was in a place of safety up to the time of his suddenly stepping in front of the approaching cars. It appeared in the testimony that no warnings could have availed to prevent the injury after the boy stepped on the track.
In Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, it was said: looking he conld see a coming train, and there is no excuse for such failure, he will be deemed guilty of negligence per se and not entitled to recover for injuries sustained in a collision with a train, although | those in charge of the train failed to give any signals iof its approach.” (See, also, Railway Co. v. Willey, 60 Kan. 819, 58 Pac. 472; Beal v. Railway Co., ante, p. 250, 62 Pac. 321.)
“A person who sees a railroad-track upon which trains may pass at any time is already warned of danger, and it is the imperative duty of one about to cross the tracks of a railroad at least to look and listen for approaching trains. If he fails to look, when by
Counsel for plaintiffs in error contend that the question of the boy’s contributory negligence should have been submitted to the jury, and ought not to have been determined by the court as a matter of law on a demurrer to the evidence. The testimony showed that the boy was bright and intelligent, strong and in good health, and that he was nearly sixteen years of age. He had lived in the neighborhood of these tracks about five years, and had observed the switching of cars back and forward in’the yards. Previous to the accident he had been working for wages in a factory, and before that had clerked in a drug-store. He attended school in the winter and worked during the summer months.
A person, infant or not, is required to exercise only such capacity as he possesses. The caution required of an infant is measured by his maturity and capacity, and this is to be determined in each case by the circumstances of that case. (Railroad Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114.) Age is of no significance except as a mark of capacity. (The Western and Atlantic Railroad Co. v. Young, 81 Ga. 397, 7 S. E. 912; s. c., 12 Am. St. Rep. 820; Thompson v. B. R. Co., 145 N. Y. 196, 39 N. E. 709.) In this state a minor at fifteen years of age may enter into a contract of marriage. (Gen. Stat. 1897, ch. 100, § 242 ; Gen. Stat. 1899, §2168.) At the same age he may choose his own guardian. Both acts involve the ex ercise of discretion. If the person killed had been an adult — that is, oyer the age of twenty-onp years — of sound mind, and possessed of all his faculties, there could be no room for doubt that the railway company would not have been responsible. The arbitrary test of age alone should not govern the court in its submission of the cause to the jury. If such rule be adopted, then in every case where contributory negligence is interposed to defeat a claim for personal injuries, all consideration of the capacity, intelligence and responsibility of the person injured is withdrawn from the court and submitted to the jury, where the person injured is under twenty-one years of age, notwithstanding he may have been close to the age of majority and as capable in all respects as an adult, and sui juris. (Shearm. & Red. Neg., 5th ed., §73.)
In the case of Merryman v. C. R. I. & P. Ry. Co., 85 Iowa, 634, 638, 52 N.W. 546, a boy thirteen years and one month of age was injured while jumping on a turn-table, which had been set in motion by other boys. In an action to recover for the injury, the plaintiff admitted that he knew the distance between the ends of the table and the embankment; that if his leg was caught between them it would be crushed ; that if he had thought of the danger he would have avoided it, but that he did not think of it because he was having fun. The court said:
“There are numerous cases which hold that the question of negligence on the part of minors is for the jury to determine, and such is the rule where the ability of the minor to comprehend the result of his acts and the danger to which they will expose him is controverted. But this case involves no question of that kind. A little attention to his surroundings would have shown the plaintiff his danger. He fully understood what would happen to his leg' if caught between the table and the embankment, and some care on his^ part would have been sufficient to avoid all danger. The fact that his attention was diverted by the play in which he was engaged did not excuse his failure to exercise at least the slight degree of care which was needed for his protection. The conclusion is irresistible that the proximate cause of the accident was a want of that attention and care on his part which his knowledge and judgment required him' to exercise.”
Under the circumstances of this case, it would have been an evasion of responsibility for the court to submit to the jury the question whether the minor was of sufficient age and intelligence to comprehend the results of his own negligence. A man of twenty-one, possessing no more knowledge of the world, no better educated and no more active mentally or physically would have been charged, as a matter of law, with the consequences of such rashness or want of care ; and no certain time of life, after the irresponsible age of tender childhood has passed, should be arbitrarily fixed to determine the limits of discretion or accountability for acts done or duties neglected. The legislative declaration that the period of minority extends in males to the age of twenty-one years was obviously not intended to make that age when reached a time when the rules of evidence become changed, or their force impaired with respect to the conduct of persons charged with contributory negligence who have lived a shorter time. It could be urged with much force that the statute which permits a male infant of the age of fifteen years to enter into and carry out a contract of marriage implies the possession of a high degree of discretion and judgment, and a manhood adequate to the responsibilities assumed. If the deceased in this case had been married, which he might lawfully have been, that fact would not have been a determining consideration in an inquiry whether he was able to look out for himself at'the time he was beset with the dangers which caused his death.
Nor can it be said that the fixing by statute of a year when majority is reached must be held decisive in all cases of the time when a person has arrived at a period of accountability for his negligent acts. Irrespective of laws which remove the minor’s political disability at one age, and confer a right to marry at another, courts must look at the capacity, natural and acquired, of him whose conduct is under scrutiny, and if it clearly appears from the evidence that the child had a capacity for self-protection which it culpably omitted to use in face of a danger which it knew and sufficiently appreciated, then no question is left for the jury to pass on concerning the contributory negligence of the person charged with it. The court ought not to be required to release its grasp on the facts presented to a jury, nor be hampered in applying its intelligence to their probative force, in a case where it manifestly appears that negligence contributing to an injury which is the subject of the action proceeds from a’ person, though under age, who has ample capabilities to make him apprehensive of threatened harm and who, at the same time, is possessed with sufficient physical strength to avoid it. See Wallace v. New York &c. Railroad, 165 Mass. 236, 42 N. E. 1125; Cleveland C. C. & St. L. Ry. Co. v. Tartt, 12 C. C. A. 625, 64 Fed. 830; Felton v. Aubrey, 43 U. S. App. 278, 20 C. C. A. 436, 74 Fed. 350.
The case of Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4, 44 L. R. A. 655, is cited by counsel for plaintiffs in error as decisive of the question before us. While the general language used in the syllabus of that case seems broad enough to cover the proposition involved here, yet the facts in the case at bar more sharply present the question of the infant’s contributory negligence, and differ in many material respects from those on which the decision in the Biggs case was based. In the latter case the death of the infant was caused by a set-screw attached to a revolving shaft, the velocity of which was so great that it was said that “neither a boy of fourteen nor a man of mature years could have seen it.”
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 is a proceeding in error from an order refusing to confirm a sheriff’s sale of real estate and from an order setting aside the sale. It was first taken to the court of appeals. That court affirmed the judgment of the court below, and from that order of affirmance error has been prosecuted to this court.
Bridget O’Connor acquired title to the land under the homestead laws of the United States. She died. An administrator of her estate was appointed, who petitioned the probate court for leave to sell the land for the payment of debts. Due notice of the application for leave to sell was given. The order to sell was allowed, the sale made to one S. J. Collins, and an administrator’s deed executed to him. From him the land passed to one A. H. Teeter, who executed a mortgage upon it to secure a debt. This mortgage was foreclosed. At the foreclosure sale the plaintiff in error, The J. B. "Watkins Land Mortgage Company, became the purchaser. The defendant in error, Mary A. Mullen, is an heir of the deceased Bridget O’Con-nor, and she interposed a proceeding to set aside the sale to the plaintiff in error, on the ground that the debts for the payment of which the land was sold were contracted prior to the issuance of the. patent to it, and that consequently such sale and the title founded thereon were void under the United States homestead Jaws.
It will thus be seen that the attack made upon the administrator’s sale and deed is a collateral one. Can it be maintained? In our judgment it cannot, because the record in the probate court of the administration of the estate of Bridget O’Connor fails to show that the debts for which the land was sold were contracted prior to the issuance of the patent. The proof that was made as to the time the debts were contracted was made upon the hearing of the motion to confirm and the proceedings to set aside the sale, and not upon the hearing of the claims against the estate, nor upon the hearing of the application for leave to sell the land. The evidence offered in proof of the claims did not show when the debts were contracted, nor did the application of the administrator for leave to sell or the evidence in support of such application show when the debts were contracted. The language of the probate court granting the application for leave to sell negatives the idea that the debts, to pay which the sale was ordered, had been contracted before the issuance of the patent. That court, among other things, found that “the requirements of law and the orders of the court have been complied with.” This, although general in terms and formal in language, is nevertheless, to the extent to which it should be taken into account on either side, a finding in opposition to the claim that the debts were contracted before the patent issued.
Section 2296 of the Revised Statutes of the United States reads as follows: “No land acquired under the provisions of this chapter shall in any event become liable to the satisfaction of' any debt contracted prior to the issuance of the patent therefor.” This section, as is seen, provides an exemption from forced sale for the satisfaction of debts antedating the acqui sition of title by patent, and full effect has already been given to it by all the courts in cases where the claim of exemption was seasonably made. (Waples, Horn, and Exempt. 926.) Our attention has not been called to any decision on the effect of an inadvertent or erroneous judgment of a court of competent jurisdiction denying the claim of exemption, when such judgment was collaterally attacked, as was done in this case. Upon principle, however, we are fully persuaded that such judgment can only be reviewed upon appeal or other direct proceeding, and not in a collateral action. The general rule is that the judgments of courts of general jurisdiction, acting upon a subject-matter within that jurisdiction, are conclusive until reversed or otherwise vacated by a direct proceeding brought therefor. In this respect there is no difference between courts of general jurisdiction over all matters and courts of general jurisdiction over a single subject-matter. Though the jurisdiction be limited to a particular subject-matter, yet if authority exists to do anything to that subject-matter that can be done to it, the judgment of the court with respect to it is as conclusive as though pronounced by a court unlimited as to the list of things over which it may exercise jurisdiction.
Probate courts are everywhere courts of general jurisdiction over the estates of deceased persons, and almost everywhere a conclusive presumption of verity attaches to the record of tlieir proceedings. (1 Black, Judg. § 284.) This view of the character of probate courts and the binding force of their adjudications has always been taken in this state. In Shoemaker v. Brown, 10 Kan. 383, it was said:
“The probate court has jurisdiction to make final settlements with administrators. Its findings and decisions upon matters within its jurisdiction are in the nature of judicial determinations, and cannot be impeached collaterally except for fraud in obtaining the same.”
In Calloway v. Cooley, 50 Kan. 754, 32 Pac. 376, this court, speaking of the power of the probate court in respect to the proof of wills, said : “Being vested with jurisdiction, its finding and determination are final, unless corrected upon appeal or proceedings in error, and are not subject to collateral attack.” In Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, .it was said: “The adjudication of the probate court in a matter within its jurisdiction is as conclusive upon the parties as the judgment of the district court, and it should be allowed to stand unless set aside upon appeal or some direct attack.” In Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, it was said:
“The probate court is a court of exclusive jurisdiction over the distribution of the estates of deceased persons, subject to appeal to the district court. Its orders made in the exercise of its jurisdiction cannot be collaterally attacked and their effect frustrated by proceedings in other courts. . . . While probate courts are in a sense courts of inferior jurisdiction, they are not inferior in the sense that superior courts wili ignore their judgments and orders or undertake their correction otherwise than upon appeal or by other modes provided by statute.”
In the opinion of the court of appeals a quotation is made from one of the notes in 12 A. & E. Encycl. of L. (1st ed.) 247, as follows : “There is a tendency in the later decisions in the United States to hold that jurisdiction is not only the. power to hear and determine, but also the power to enter the particular judgment in the particular case.” If by this is meant that when a court invested with general jurisdiction over a particular subject-matter wrongly applies the law to a proved or admitted state of facts its judgment is outside its jurisdiction and subject to collateral review, we unhesitatingly say that no such tendency is to be observed in the later decisions, because such a tendency, instead of modifying the general rule or introducing an exception to it, would go to its absolute subversion. It may be that some constitutional provisions are framed upon such high principles of natural right or public policy as to be beyond the power of the courts to misapply or wrongly interpret them ; and, of course, a statute can be framed in such explicit and positive terms that a court disregarding its requirements would be held to have acted beyond its jurisdiction ; but, generally speaking, when a court is invested with power, upon evidence, to determine a state of facts and declare the law applicable thereto, its decision, no matter how erroneous, is conclusive, unless the error of its judgment is apparent upon the face of its record. Herein, we think, lies the mistake of the court of appeals in this case. The time when the debts of Bridget O’Connor were contracted was a matter of evidence. The date of the land patent was likewise a matter of evidence. Presumptively, the probate court received evidence as to these two matters ; and, presumptively, made its order for a sale of the land in view of the proved fact that the debts were contracted after the patent was issued. It had jurisdiction to hear this evidence and to determine these matters, and its judgment, although erroneous in point of fact, is binding upon the interested parties.
A stronger case than this one in favor of the theory of the conclusiveness of the judgment of the probate court is Wolfley v. McPherson, 61 Kan. 492, 59 Pac. 1054. The question in that case was as to the erro neous classification of a demand against the estate of a deceased person. In the opinion it was said:
“Counsel for defendant in error attempt to avoid the bar of the statute of limitations upon the theory that the original order of classification, being contrary to the statute, was void, and therefore, as a void judgment, it could be vacated at any time, under section 603. The judgment was not void. It was erroneous only. In Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, we held that ‘a judgment entirely outside the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at any time upon motion by the defendant.’ That case, however, was entirely unlike this one. In that case a judgment was rendered in favor of a party upon a claim he had never made. In this case a judgment was rendered against a party upon a claim which she did make. In stating to th,e probate court the character of her claim she appropriated in her behalf the provisions of the law assigning it to the second class. The jurisdiction of the probate court was thus invoked, not only as to the existence of the claim, but as to the priorities of classification to which it was entitled. The statute regulating the matter of classification is not plain. It required construction to ascertain its meaning, and this court, subsequently to the original order of classification made by the probate court, was called upon to construe it. (Cawood v. Wolfley, supra.) The mistake which the probate court made in construing it was an error only. Every question of law, as well as fact, was within its jurisdiction to determine. Its determination, though erroneous, was not void.”
The writer of this opinion, who was also the writer of the one from which the above quotation is made, has some doubt, and at the time of that decision had some doubt, as to whether the doctrine in question was not pushed to an extreme in that case, but as to its entire application to the facts of this case neither he nor his associates have any doubt.
Some courts have drawn a distinction between the records of so-called inferior courts which affirmatively showed jurisdiction upon their face, and those which did not but were silent as to recitals of jurisdictional facts, holding that the former were conclusive as against collateral attack while the latter were not. This distinction, we think, cannot be drawn in this state as to the judgments of probate courts. The decisions heretofore made as to the character of those courts and the effect of their records preclude us from viewing their judgments as otherwise than conclusive, unless the errors committed by them affirmatively appear on the face of their records. This we believe to be the general rule. (1 Black, Judg. § 283.)
“A court of record which has, by statute, all the power that any court could have over a certain subject of jurisdiction, especially if it be a subject of jurisdiction under the general rules of law or equity, is to be regarded (as to cases within that class) as a court of superior jurisdiction, within the rule which presumes the jurisdiction of such courts to render a particular judgment.” (Stahl v. Mitchell, 41 Minn. 325, 43 N. W. 385.)
This doctrine was distinctly declared as to the judgments of probate courts in Howbert v. Heyle, 47 Kan. 58, 65, 27 Pac. 116, and Bradford v. Larkin, 57 Kan. 90, 94, 45 Pac. 69.
The judgments of the court of appeals and of the district court are reversed, with directions to the latter court to proceed in the case in accordance with this opinion. | [
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The opinion of the court was delivered by
Smith, J.:
An act of the legislature entitled “An act creating one city court in Atchison City township,”' etc., was approved February %7, 1899, and took effect upon its publication in the official state paper on March 8 following. It is sufficient in this case to set out in full three sections of the law, which read :
‘ ‘ Sec. 4. The governor shall appoint and commission a judge and a marshal for said court hereby created, whose term of office, respectively, shall commence with the date of their commission, and who shall hold their office for two years and until their successors are elected and qualified, as hereinafter provided.”
“ Sec. 22. The terms of office of the judge and marshal of said court shall be for two years and until their successors are duly elected and qualified, and the first election of such judge and marshal shall be held at the election of city officers of said city in the year 1899.
“Sec. 23. All the vacancies in the office of judge or marshal of said court shall be filled by appointment of the governor until the next election for city officers occurring more than thirty days after such appointment.”
On March 10, two days after the law went into effect, plaintiff in error, Jacob W. Starr, was appointed marshal of said court by the governor, the commission reading that his term of office was for two years. At the annual city election held on the first Tuesday in April, 1899, the defendant in error was elected marshal of said court, and, after qualifying, demanded possession of Starr, who was then exercising the duties of the office. The demand being refused, he brought an action of ouster against Starr in the district court and obtained judgment against him. Starr has brought the rulings of the trial court here for review.
It is urged by counsel for plaintiff in error that the governor’s appointee was, by his commission, given title to the office at least until the spring election of 1900, notwithstanding the direction in section 22 of the act that the first election of a marshal for said court should be held in the year 1899; that the appointment having been made at a period when thirty days could not elapse between the appointment and the next election of city officers, the term of office extended at least until the election of city officers was held at a time more than thirty days from such appointment. The act took effect twenty-six days before the election mentioned in section 22.
Between sections 4 and 22 there is serious conflict, and it is plain to be seen that the two provisions cannot be harmonized, if they are to be read and understood literally as they appear in the statute. Section 4 provides for the appointment by the governor of a marshal, who shall hold his office for two years and until his successor is elected and qualified, and section 22 requires that such officer shall be elected in April, 1899. Having specifically provided for and fixed a date at which an election should be held for the selection by the people of a person to fill the of fice of marshal, we think the language of section 22-should be given a mandatory effect. (Throop, Pub. Off. § 148.)
Regarding section 23, we think that the vacancies provided for, which are required to be filled by the governor, have reference to vacancies occurring by death, resignation or removal after the office has once been filled. It is an inapt expression to use the term vacancy as applicable to a newly created office which has never had an incumbent. It is a better construction of section 23 to apply its language to vacancies occurring after the election of 1899.
Holding this view, it only remains to bring order out of the confusing and contradictory terms of sections 4 and 22, and in doing this we have arrived at that conclusion which can be reached with least resistance to a sensible construction of the two sections, doing as little violence as possible to the language employed. There are fewer obstacles in the way of giving effect to the law by holding that the word and in section 4 should be read or, making that section mean that the marshal' appointed should hold his office for two years or until his successor is elected and qualified. This interpretation in no manner interferes with the express direction that the office shall be filled at the April election in 1899.
Sections 4 and 22, as they appear in the statute-book, furnish one of the curiosities of legislation by fixing the marshal’s first term of office at two years from the date of his appointment by the governor, followed by a distinct direction that an election shall be held twenty-six days after the law creating the office took effect at which his successor shall be chosen.
It is permissible to substitute “or” for “and,” and vice versa, to render legislative acts intelligible and effective. In Sutherland on Statutory Construction, section 252, it is said :
‘ ‘ The popular use of ‘ or ’ and ‘ and ’ is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context.”
To the same effect, see United States v. Fish, 3 Wall. 445, 18 L. Ed. 243.
Where the provisions of a statute are apparently in conflict, it is our duty to adopt such construction as will give to each section force and effect, and attribute a meaning to the language used in different parts of a law as will best promote the harmonious operation of the whole. We conclude, therefore, that the lawmaking power intended, when it created the Atchison city court, that a marshal should be appointed by the governor to hold such office until the election of city officers in the spring of 1899, his tenure terminating upon the qualification of a successor elected at that time ; and that vacancies occurring in the office after said election shall be filled by the governor’s appointment until the next election for city officers occurring more than thirty days after such time. Under this view, the appointive term of the plaintiff in error expired upon the election and qualification of the defendant in error, Flynn, and the latter is entitled to hold the office for two years from that time.
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by T. L. Ryan, as administrator of the estate of M. J. McGlade, deceased, in behalf of the latter’s next of kin, against the Atchison, Topeka & Santa Pe Railway Company, to recover damages for negligently causing the death of said McGlade. A verdict and judgment were rendered for plaintiff, to reverse which defendant has prosecuted error to this court. The action was brought upon the statute (Gen. Stat. 1897, ch. 95, §418; Gen. Stat. 1899, §4686), which reads as follows :
"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
The petition named as next of kin Arthur McGlade, a brother, Elizabeth Burns, a sister, and John Langlois, a nephew, the son of a deceased sister. It is objected that the nephew is not within the class denominated statute “next of kin,” and hence that the action cannot be prosecuted in his behalf. Our attention has not been called to any decisions defining the phrase “next of kin,” as used in such a statute as the one above quoted, and therefore we are compelled to try to ascertain its meaning without the aid of precedents. Our judgment is that it comprehends all .those who inherit from the deceased under the statute of descents and distributions. It is true that the amount recovered in an action upon the statute forms no part of the estate of the deceased. It is not property which descends from ancestor to heir. (Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420.) However, as declared by the statute in question, the amount recovered “inures to the benefit of the next of kin"; and “is to be distributed in the same manner as personal property of the deceased.” Ordinarily, a statutory direction as to the “manner” of doing a thing is not understood to be a direction as to matters of substantive right, but only as to the forms of procedure to be observed ; but in this instance we are constrained to think that the former and not the latter is meant.
The statute is dispositive of property interests and not regulative of modes of practice. There is nothing -about the nature of the act to be performed — that is, about the distribution of the fund recovered — to which rules of procedure can be applied. An amount of money is to be paid by a judgment debtor and shared between several judgment creditors. There is nothing for the one to do but pay it, nor for the others to do but divide it. There is absolutely nothing in any of the acts to be done of which manner of legal procedure can be predicated. The statute, therefore, is not a direction to distribute according to certain forms, but it is a direction to distribute to certain persons. Those persons are the ones to whom the personal property of the deceased is to be distributed. In the lack of wife, children, or parents, such persons are the surviving brothers and sisters, and the children of deceased brothers and sisters. (Gen. Stat. 1897, ch. 109, §§18-20; Gen. Stat. 1899, §§2458-2460.) Therefore, the phrase “next of kin,” as used in the statute in question, means those kin to whom the personal estate of the decedent descends.
This view accords with such decisions as have a bearing on the subject. In Pinkham v. Blair, 57 N. H. 226, 242, a devise to the testator’s “next of kin” was held to include not merely his surviving brothers and sisters, but the children of his deceased brothers and sisters, as well. This because the statute of descents of the state vested such children with the inheritable rights of their deceased parents. A statute authorized a certain class of actions to be brought against the ‘ ‘ next of kin ” of a deceased person. It was held that the term included those to whom, under the statute of distributions, the personal estate of the deceased would pass. (Merchants’ Ins. Co. of New York v. Hinman, 34 Barb. 410.) The court below, therefore, did not err in holding the nephew, John Langlois, to be of the next of kin of the deceased.
M. J. McGlade, the deceased, was a railway mail clerk and had been such for ten or eleven years. He was thirty-eight or thirty-nine years old at the time of his death, and at that time was receiving a salary of $1150 per annum. His health and habits were good, and he had accumulated as property a house and lot in town worth $800 or $900, $500 in money, and had a life insurance policy for $6000. He was unmarried. His parents were dead, and his next of kin were the brother, sister and nephew before mentioned, all of whom lived in Canada. The nephew was a boy nine or ten years old. The brother and sister were adults, and the latter was a married woman. The deceased had visited his relatives in Canada three times, the first'two of which were in the lifetime of his parents, but all these visits were several years before the occurrence of his death. While interest in and affection for the brother, sister, and nephew, upon the part of the deceased, may be assumed from the fact of his relationship to them, there was no evidence of any manifestation of it. All his earnings had been expended upon himself. There was no evidence that he ever contributed in any sum or in any way to the support, education or comfort of his brother, sister, or nephew.
The jury returned a verdict against the defendant for $5000, and also made the following findings :
“Ques. Did the deceased ever contribute anything to the support of his brother, Arthur McGlade? Ans. No evidence.
"Q,. Did the deceased ever contribute anything to the support of his sister, Mrs. Elizabeth Burns ? A. No evidence.
“Q. Did the deceased ever contribute anything to the support of his nephew, John Langlois? A. No evidence.
“Q,. Where did the deceased live at the time of his death, and how long did he reside at such place ? A. Headquarters at Kansas City, but no evidence of length of time.
“Q,. What are the respective ages of the brother, sister and nephew of the deceased ? A. The first two, no evidence; age of nephew, nine or ten years.
“Q,. What are the financial conditions of said brother and sister ? A. No evidence.”
In the light of the evidence above summarized and the findings of the jury above quoted, it is not possible to sustain the judgment rendered in this case. It is not, however, a case of excessive damages given under the influence of passion and prejudice, and, therefore, to be set aside under the statute, but it is a failure to make proof of substantial damages, and therefore to be set aside, on the general principles of law. An action of the character of this one is purely compensatory. It is brought to recover for pecuniary loss consequent upon death. There being no legal liability resting upon M. J. McGlade to contribute to the support of his kinspeople, they can maintain the action only upon proof that he had contributed to them in some way, or had recognized his family obligation to do so and had manifested a disposition to discharge it. All the authorities are to this effect. (A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443; A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 id. 543, 6 Pac. 877; Coal Co. v. Limb, 47 id. 469, 28 Pac. 181.) In the last case cited it was said:
“This is an action for compensation only, and no damages can be recovered by the plaintiff below except for the pecuniary loss which the parents sustained by the death of the son. The burden was on the administrator to show that loss occurred. If there was no evidence that his life had been of actual benefit to the parents, or that any benefits might be reasonably expected by the continuance of his life, then no more than nominal damages could be recovered. (Railroad Co. v. Weber, 33 Kan. 543.) There must have been evidence either of actual benefits or those in expectation before the jury can give substantial damages; and an attempt to assess such damages without proof would be to indulge in mere conjecture, which is not permissible. If the son had contributed anything in the past, there would be grounds for the expectation that he would have continued to contribute in the future ; or if the son was a minor, the parents would have a legal right to the services of the son during his minority; but after majority no such legal right exists, and the benefits thereafter would depend upon the capability of the son and his disposition to confer benefits on his parents.”
We do not mean to say that there must be evidence of support currently furnished by a deceased to his next of kin, or presently promised to them by word or act of his. Expectation of descent or devise of property may be indulged by them, and may justify an action for pecuniary loss, although we do not so decide ; but, if so, that expectation, like the expectation of support, must rest upon a reasonable basis. In such case there must be something in the conduct, declarations, disposition or acts of the deceased toward his next of kin to give rise to a belief that they would profit out of his estate, provided that, dying in the future, he should leave one greater than he did leave, and provided, also, that it should not go to others by devise or by his marriage. These last-mentioned matters are so nearly in the nature of vague speculations as hardly to be worth consideration in many cases, even if to be considered in any case at all; but taking them into account for what possibly may be made out of them, there was nothing in this case in the conduct of the deceased toward his brother, sister, or nephew, or in his regard for them, as manifested by any acts or words of his, to justify a verdict for $5000 for the loss to them through his premature death of an estate larger than the one he did leave. On the contrary, there was a total failure of proof of any facts, outside the bare fact of the relationship of the parties, to justify anything beyond nominal damages.
However, we wish to say in this connection that the plaintiff offered evidence which, if received, would have tended to prove an intention upon the part of the deceased to educate and support the nephew. It consisted of declarations to that effect made by him. It seems to have been rejected by the court upon the theory that it was hearsay. Without determining the question, because it is not before us for determination, the correctness of the ruling made would seem to be questionable. (Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235.) The questions of evidence determined in The State v. Baldwin, 36 Kan. 1, 12 Pac. 318, would seem to be somewhat of the same nature as the one considered by the court below in this case.
The defendant railway company offered to prove by the declarations of Arthur McG-lade, the brother, and Elizabeth Burns, the sister, that the deceased had never rendered them any pecuniary assistance. The court rejected the .offer. This was error. While the jury failed to find that the deceased had been of any pecuniary assistance to his next of kin, and therefore, in legal effect, found that he had not been of any pecuniary assistance to them, yet before that finding was made, and to induce its making, the defendant was entitled to offer evidence of the fact. While the findings of the jury have cured the court’s error in rejecting the offered testimony, it may be well, nevertheless, to state the rule of evidence for guidance on a future trial. The action was prosecuted by the administrator for the benefit of those who had sustained loss by the death. Nominally the administrator was the party plaintiff, but in reality he was unconcerned as to the result. As remarked in U. P. Ply. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501: “The personal representative, in cases like this, brings the action, not for himself nor in the right of the estate, but as trustee for the distributees — the next of kin.” The rule in such cases is that the admission of the cestui que trust, or party beneficially interested, is neither hearsay nor incompetent, but may be received against his trustee or other nominal representative. (2 Whart. Ev. §1213.)
At the trial plaintiff read the tables of life expectancy as published in the Encyclopedia Bribannica, to which objection was made. We are quite well satisfied that courts are entitled to take judicial notice of the standard tables of life expectancy and may allow them to be read in evidence to the jury. (Erb v. Popritz, 59 Kan. 264, 52 Pac. 87; Donaldson v. Mississippi & Missouri Railroad Company, 18 Iowa, 280; Scheffler v. Minneapolis & St. Louis Ry. Co., 32 Minn. 518, 21 N. W. 711; Abell v. Penn Mutual Life Ins. Co., 18 W. Va. 400; Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232.) These tables consist of summarized statistical information on a matter of general interest. They are, therefore, impartial and disinterested, and they are so nearly in the nature of exact science or mathematical demonstration as to be credible and valuable. Consequently the uniform practice of the courts, is to receive them in evidence. If the courts judicially know the standard tables of life expectancy when presented to their observation, they may assure their knowledge by reference to publications containing them. The only easily accessible authentic publication of such tables is to be found in the standard encyclopedias like the Britannica. The courts recognize such publications as being authentic and in general use, and, therefore, may receive them in evidence as to matters contained therein of which judicial knowledge is possessed.
A statute of Iowa authorized the introduction in evidence of “historical works and books of science, when made by persons indifferent between the parties, as presumptive evidence of facts of general notoriety or interest therein stated.” The supreme court of that state held the Encyclopedia Britannica to be a work or book of the kinds mentioned, and affirmed the correctness of the reading therefrom of the Carlisle table of life expectancy. (Worden v. Humeston & S. Ry. Co., 76 Iowa, 310, 41 N. W. 26.) The defendant in the present case did not pretend that the tables read to the jury were not standard, or that the encyclopedia read from was not an authentic and reliable work.
For the errors pointed out, the judgment of the court below is reversed and a new trial ordered. | [
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Per Curiam:
This is the second coming of this case. When it was here before we held that the petition stated a cause of action, and the case was remanded for trial. (Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4, 44 L. R. A. 655.) At the trial, testimony was offered by the plaintiff which we think tended to sustain the averments of the petition, but the court sustained a demurrer to the evidence and took the case from the jury. The testimony, although not full and satisfactory in some respects, tended to show that the place where the boy was killed was attractive to children, and that children actually did frequent it with the knowledge of defendant, and that the uncovered and unprotected shaft and appliance by which the boy was killed was dangerous. There was testimony, too, that the set-screw on the shaft which caught the boy’s clothing only projected about two inches and could not easily be seen when the shaft was in motion ; that the velocity of the shaft at the time the boy was caught was from eighty to ninety revolutions per minute, and when revolving at that rate it appeared to some like a band around the shaft. It therefore appears that the case is substantially in the same condition that it was when it was here before. It was then held that the question of whether the boy was of sufficient intelligence, natural capacity, foresight and judgment to be guilty of contributory negligence was for the determination of the jury, and the same may be said with respect to whether the boy could and should have seen the projecting set-screw and have appreciated the danger of going near to the same. Whether the place was dangerous and known to be such, because it was attractive to and known to be frequented by children, and whether the defendant was guilty of negligence in leaving it uncovered and unprotected, are also jury questions. There appears to have been testimony tending to sustain the material averments of the petition, and; applying the views expressed when the case was here before, we must hold that error was committed in taking the case from the jury.
The judgment will be reversed and the cause remanded for another trial. | [
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The opinion of the court was delivered by
Ellis, J.:
This was a prosecution for burglary with intent to commit rape. In the information it was averred that defendant did, “in the daytime, break into and enter the dwelling-house of Joseph A. Bachofer, then and there situate, by forcibly pulling open a closed outer door of said dwelling-house,” etc. It was also properly averred that a human being was then within said dwelling, and in all other respects the charge was sufficient. The jury found the defendant guilty of burglary in the second degree, and he was sentenced to the penitentiary for five years.
The 'first question presented for consideration is whether the verdict is sustained by the evidence. The defendant is described by the witnesses as a tramp, having irregular and temporary employment in the neighborhood of Bachofer, a Saline county farmer, who, with his wife and two children, the elder of which was but three years old, lived in a creek bottom quite a distance away from, and not within sight of, the other houses in the neighborhood. The farmer’s wife was not acquainted with the defendant, and had never spoken to him. He came to the place just as her brother was ready to leave, and for the purpose of getting him away told the brother that the latter would be needed very soon at a neighbor’s farm, where they were thrashing. Defendant then pretended to depart, taking the road toward Salina, but as soon as the brother, whom he believed to be the woman’s husband, was out of sight he returned, and coming up to the house where the woman and her two little children were (the door of the room being open and its aperture being closed by a screen door held in place by coil springs) tried to engage her in conversation. Meeting with no encouragement, he then inquired if the man who had just driven away was her husband, and was informed that he was her brother. He then asked where her husband was, and in reply was told that he was out in the field. Being thus assured that the woman was alone with her children, he asked if he might come in, and receiving an abrupt negative reply, he asked if those present were the only children she had. Upon being told that they were, he asked if she had any larger ones, and being told that she had not, he again asked to be admitted, to which the woman replied that she did not want him or anyone else to come in. He then put up his arm to shade his eyes, and after standing up to the screen door and looking through the apartment thoroughly, said to the woman that she would not care if he came in; that it was her husband that went away, and if it was not, he would not see them anyway. The children intuitively became frightened and clung to her dress, and she again forbade defendant to enter, but he pulled open the door and boldly entered. The children screamed with terror, and she, dragging them by her skirts, hastened to a cupboard near by and procuring a loaded revolver, leveled it at his head, and told him to go out, or she would shoot. He was advancing toward her and, according to her testimony, was within five feet of her at the time. He told her not to shoot — that he would go, and he did go. As soon as he left the premises the woman took the children and in great fright fled from the house to find her brother, to whom she made known what had occurred. The defendant was arrested soon afterward, and, before he was informed of the charge against him, said that he knew he was “wanted for insulting that woman.” The defendant, as a witness in his own behalf, denied nearly all these statements of the woman, but we think the jury were justified in believing them to be true.
Counsel for appellant insists that this testimony tends to show that defendant’s purpose in entering the house was to prevail over the woman by solicitation, and that it fails to show an intent to ravish her. As before stated, the witnesses describe the defendant as having the appearance of a tramp, which fact the prosecution regards as important in determining whether the defendant had any reason to believe that the woman would be likely to yield to the blandishments of such a repulsive creature as he then appeared to be.
By appellant’s counsel, we are cited to The State v. Scholl, 32 S. W. (Mo.) 968; Carson v. The State, 24 S. W. (Tex. Crim. App.) 409; Fields v. The State, 24 S. W. 907; Kelley v. The State, 22 S. W. (Tex.) 588; State v. Owsley, 102 Mo. 678, 15 S. W. 137; State v. Biggs, 61 N. W. (Iowa) 417; White v. The State, 36 N. E. (Ind.) 275; Mitchell v. The State, 32 Tex. Crim. R. 479, 24 S. W. 280; The State v. Frazier, 53 Kan. 87, 36 Pac. 58; Thompson et al. v. The People, 96 Ill. 161. We have examined these authorities, and think each case is clearly distinguishable in its facts from the. case at bar. It would be idle to discuss them here.
It may be admitted that, as the case appears from the record, the jury might properly have hesitated to convict — that it looks like a border case ; still they saw the witnesses and the defendant, and heard, them testify in the case. The court below, with these advantages, which we do not possess, approved the finding of the jury. In view of these considerations, this court cannot say that the testimony does not sustain the verdict. In the fear that on account of the fiendish conduct of the defendant, of his apparent lack of all the better elements of manhood, of his disregard of the rights of the helpless, of his utter obliviousness of the duties and disposition to ignore the amenities which all men owe to women, he might be exposed to the danger of an uncontrollable prejudice on the part of the jury, we have carefully scrutinized the record for the purpose of trying to discover any evidence thereof, and we are convinced that he had a fair trial.
It is also contended that the information does not state facts sufficient to charge the defendant with burglary in the second degree. Counsel for appellant most ingeniously argues that the offense charged is burglary in the third degree. He admits that the precise words of the statute need not be used, but he contends that “ forcibly pulling open a closed outer door,” while it constitutes a breaking, does not constitute such a breaking as is requisite under sections 64 and 65 of chapter 100, General Statutes of 1897 (Gen. Stat. 1899, §§ 2005, 2006), which are as follows :
“Sec. 64. Every person who shall be convicted of breaking into and entering, in the night-time, the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some felony or any larceny therein, either : First, by forcibly bursting or breaking the wall, or any outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of., such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more . confederates then actually present, aiding and assisting ; or, third, by unlocking an outer door, by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.
“Sec. 65. Every person who shall be convicted of breaking into a dwelling-house in the daytime, under such circumstances as would have constituted the crime of burglary in the first degree if committed in the night-time, shall be deemed guilty of burglary in the second degree.”
The defendant’s counsel urges that the legislature intended to provide that, in order to commit the offense of burglary, as defined in section 64, the accused must use a greater degree of force in the breaking of an outer door than is ordinarily necessary to constitute a breaking in the crime of burglary. The argument is plausible, but not sound. If the legislature had intended to provide for a different kind of breaking than that which was then generally recognized as sufficient to constitute a felonious breaking in burglary, it is presumed that it would have said so in plain and unequivocal language. The addition by statute of the term “forcibly” only expresses what was implied by the term ‘ ‘ breaking ’ ’ at common law. (Ducher v. The State, 18 Ohio, 308, 316, 317.) Pushing open a closed door constitutes an actual breaking. (The State of Iowa v. Connor, 95 Iowa, 485, 64 N. W. 295, and cases cited.) To break a door it is not necessary to injure the door or its fastenings. (5 A. & E. Encycl. of L., 2d ed., 45, 46, and cases cited.) The opening of a closed’ outer door with felonious intent constitutes a burglarious breaking. (Timmons v. The State, 34 Ohio St. 426; The State of Iowa v. Reid, 20 Iowa, 413, 421; Sparks v. The State, 29 S. W. (Tex. Crim. App.) 264; The State v. Moore, 117 Mo. 395, 22 S. W. 1086; Simms v. The State, 136 Ind. 358, 36 N. E. 278; Frank [a slave] v. The State, 39 Miss. 705; Metz v. The State, 46 Neb. 547, 65 N. W. 190.)
The doctrine of these cases has been approved and followed by this court. (The State v. Jansen, 22 Kan. 498; The State v. Groning, 33 id. 18, 5 Pac. 446; The State v. Cash, 38 id. 50, 16 Pac. 144; The State v. Powell, 61 id. 81, 58 Pac. 968.)
The breaking alleged and proved in this case would have been sufficient under the common law, if it had occurred in the night-time, to have justified a conviction for burglary. (5 A. & E. Encycl. of L. 44, and cases cited.)
In The State v. Connor, supra, it appeared that the keeper of the store was sitting out in front thereof, the front door being open; that the permanent door at the rear of the room was also open, but there was a wire-screen door which was closed. This door was not fastened -with a .latch, but was hung on spring hinges, which served to keep it closed. The accused opened this door and entered the store, and that was held to be a sufficient “breaking,” under the statute. In Timmons v. The State, supra, the “breaking” consisted in pushing open a closed but unfastened transom that swung horizontally on hinges over the outer door of the dwelling, and it was held sufficient. See, also, Dennis People, 27 Mich. 151; Brown’s Case, 2 East Pl. Cr. 487. “A breaking necessary to constitute burglary may be any act of physical force, however slight, by which the obstruction to entering is forcibly removed.” (Metz v. The State, 46 Neb. 547, 65 N. W. 190; The State v. Wilson, Coxe [N. J.] 439, s. c. 1 Am. Dec. 216.)
It is evident that in enacting our statute against burglary the legislature intended to make it a greater offense burglariously to break and enter a dwelling-house than it is thus to break and enter any other building. That such was the intent is shown by section 67, wherein it is provided, in effect, that if one shall make an entry by day or night “in such manner as not to constitute any burglary as hereinbefore specified, with the intent to commit a felony or any larceny, or being in the dwelling of another shall commit a felony or any larceny, and shall in the- night-time break” out of said house, he shall be adjudged guilty of burglary in the second degree.
It will be remembered that, under the common law, to break out of a house did not constitute the crime of burglary. Sections 68 and 69 are further illustrations of such legislative intent, and section 70 specially provides, in view of the severity of the penalties which are prescribed for offenses committed in and against the dwelling-house, that no building shall be deemed a dwelling-house within the meaning of the foregoing provisions, unless it “be joined to, immediately connected with, and a part” thereof. If we were to construe the statute in accordance with the contention of the learned counsel, the mansion-house would have precisely the same degree of protection in-all ordinary cases as is accorded by our laws to the stable and the smoke-house.
We conclude, therefore, that the legislature intended to provide that when a dwelling-house contains a human being it should be regarded as more sacred and .entitled to a greater degree of protection under our law than is the shop, the store, or the granary, and-it intended to and did enact that the man who, with felonious intent, forcibly breaks and enters that sacred retreat should have meted out to him a penalty commensurate with the enormity of his crime. (The State v. Cash, supra.)
In our opinion, the information charges, in substantial compliance with the requirements of the statute, the precise offense of which the appellant was convicted, and the judgment of the court below will be affirmed. | [
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Error from Chautauqua district court.
Affirmed. | [
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Per Curiam;
Defendant, an employe of a wholesale liquor house, located at St. Joseph, Mo., was engaged in soliciting orders for intoxicating liquors in this state. When such orders were received by defendant they would be forwarded to the house at St. Joseph. If approved by the house, the liquors would be shipped to the person ordering. It transpired, in the course of business so conducted, that persons ordering would fail to pay the purchase-price and receive the goods ordered, in which event the liquors would remain stored at the depot where received until another order, corresponding in amount and character of goods shipped, could be obtained by defendant, when he would procure another bill of lading from his house and the liquor so stored would be turned over to such person upon payment of the purchase-price, together with the charges thereon. One of such transactions was had with the prosecuting witness in this case, John Younger, for which defendant was prosecuted, convicted, and appeals.
Whatever may be the right of the defendant under lhe law as a traveling salesman engaged in soliciting orders for his house^located in a foreign state, where such orders are received, accepted and filled in such state, and the liquors ordered are delivered to a common carrier for transportation into, and delivery to, the purchaser in this state, the transaction here shown cannot be justified in law. It constituted an unlawful sale and violation of the law.
There being no error apparent in the record, the judgment of conviction is confirmed.
All the Justices concurring. | [
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Per Curiam:
On March 1, 1887, one Adamson and wife executed and delivered to one Clapp, who was a loan-broker in Wichita, their four separate notes. One was for $1000, due in fivé years, bearing interest at the rate of seven per cent, per annum, payable semiannually, containing the following statement:
“This bond is given for an actual loan of money in the above sum, and is secured by a mortgage of even date herewith on improved farm land, which mortgage is a first lien on the property described therein.”
The mortgage itself stated that the premises were free from encumbrance, and that it secured a note due in five years, unless sooner matured by default in the payment of taxes or interest. A second note was for $350, due in five years, bearing interest at the rate of eight per cent, per annum, payable annually, and was secured by another mortgage on the same land. Another note was for $400, due in one year from date, bearing twelve per cent, interest per annum, payable semiannually. A fourth note was for fifty dollars, payable in five annual instalments. These last two notes were both secured by the same mortgage, which speaks of an encumbrance prior thereto. These mortgages were all placed on record in the office of the register of deeds of the proper county, the receiving book showing that the $1000 mortgage was first recorded.
On the 5th day of March, after their execution, Clapp sold to defendant in error Ellas the $1000 note and assigned the mortgage given to secure it, with the agreement and understanding that this mort gage was a first lien on the real estate. No record of this assignment was made. Clapp also subsequently-assigned to another the $350 note and mortgage and retained the two notes for $400 and $50 and the mortgage securing them. These last-mentioned notes becoming due, Clapp commenced his action to foreclose them, making the makers and the plaintiff in error, Shattuck, who. held a subsequent judgment lien on the land mortgaged, parties to that action, but did not make the assignees of the other mortgages parties thereto. After judgment of foreclosure, a sale of the premises by the sheriff was had, and they were purchased by the plaintiff in error for the sum of $650, the property being at the time worth more than $2400.
The plaintiff in error knew, at the time of this purchase, that Clapp had sold the $1000 note and mortgage in the East. He had also been told by the maker of the mortgages that the $1000 mortgage was prior to the mortgage under which he bought. Shattuck was also familiar with Clapp’s place of business, which was but one block from the place of the sheriff’s sale. He knew that Clapp was engaged in the mortgage business and was selling mortgage securities in the East. He had ample time and opportunity, both before and after the sale, and before payment of the purchase-price, to inquire of Clapp concerning the relative priorities of the mortgages as they appeared on the record.
This action was brought by the defendant in error Ellas to foreclose his $1000 mortgage. Shattuck, being made a party therein, claimed that he had a right to rely on the record, and, as it did not show the assignment by Clapp of the other mortgages, that he purchase the land freed from the lien of Ellas’s mortgage. He claimed the law to be that, where a mort gagee chooses to foreclose a junior mortgage and cause the mortgaged property to be sold under- such foreclosure, the purchaser takes it freed from other prior liens; that, as the mortgage under which he had purchased fell due first, that is, within one year, it, as a matter of law, must be held to be a first mortgage, and by its foreclosure, as he claims, all other subsequent mortgages were wiped out. We do not feel ourselves called upon to take issue with the plaintiff in error upon these questions as naked, abstract propositions of law, but find them clearly inapplicable to the questions here involved.
The trial court found that the plaintiff in error knew, at the time of his purchase, that the $1000 mortgage was prior to the $400 one, under which he bought, and that this $1000 mortgage had been sold and was no longer Clapp’s property. No greater knowledge could have come to him respecting this matter had the assignment of the mortgage been made of record, and, in view of this finding of fact, his contention over the law is of no force. He claims, however, that these findings did not bind him because they were outside the issues raised by the pleadings. In this we cannot agree with him. Among the allegations of the petition was the following: “That if any such interest in, lien upon, or estate in said land they have, the same is and are junior, inferior, subordinate and subject to the plaintiff’s said mortgage and interest therein.” In the answer filed by the plaintiff in error, he alleged :
“That this defendant . . . had-no notice or knowledge whatsoever, actual, constructive, or otherwise, of any assignment or transfer of the note, coupons and mortgage sued on by the plaintiff herein, or of either or any of them, from said defendant Clapp, . . . but that this defendant supposed and believed, at and during all and each of said several times, that both of said mortgages, and the several notes and coupons thereby secured, and each of them, were held and owned by the said defendant, L. W. Clapp, as appeared from said records in the office of said register of deeds.”
This allegation was denied by the plaintiff below, and the issues thereby raised were ample and sufficient to support the findings of fact made by the court.
Besides this, the fact that the land, which was worth more than $2400, sold for $650, and the knowledge that Clapp was engaged in the business of loan-ing money and selling, securities obtained, might reasonably have put the plaintiff in error upon inquiry as to the condition of these other notes, which inquiry could easily have been made, and, if made, would have resulted in a full confirmation from the lips of Clapp himself concerning the actual status of affairs.
The trial court held, under this state of facts, that Shattuck purchased the land subject to the claim of Ellas, who held the $1000 note and mortgage. In this we think the court was correct, and affirm its judgment.
Smith, Cunningham, Greene, Pollock, JJ. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Ellis, J. :
This .was an action brought in the district court of Greenwood county by J. A. Smith against Edwin Tucker and others, on none of whom service was made except defendant Edwin Tucker, who entered his appearance therein by filing a general demurrer to the petition. The plaintiff below sought to recover on a bond of indemnity given by Tucker as surety, and the other defendants as principals, to indemnify plaintiff as sheriff against loss or damage by reason of the levy, detention, sale or disposal of cor tain, cattle seized by him under a writ of attachment at the request of the Missouri, Kansas & Texas Livestock Commission Company, in a'suit brought by that company in that court. An amended petition was filed in the district court on the 20th day of May, 1897, and on the 25th day of the same month the defendant Tucker - filed a demurrer thereto, on the ground that it did not state a cause of action against the defendant. Such amended petition, omitting title, together with a copy of the bond, follows :
“The plaintiff says, that, on the 11th day of July, 1895, the Missouri, Kansas & Texas Live-stock Commission Company, a corporation, by its president, the defendant S. L. Brooking, caused an order of attachment to be issued from- the district court of Greenwood county, Kansas, in a action wherein said corporation was plaintiff, and William Freeman, M. J. Herrick and D. H. Herrick were defendants, which said order of attachment was delivered to plaintiff, who was then sheriff of said county ; that plaintiff, at the request of said corporation, the Missouri, Kansas & Texas Livestock Commission Company, levied said order of attachment upon a certain lot of cattle as belonging to said defendant William Freeman ; that at the time said order of attachment was delivered to plaintiff the cattle upon which ■ it was afterwards levied were claimed by one W. H. Freeman, and also by the firm of Willis & Errickson ; that the said Missouri, Kansas & Texas Live-stock Commission Company, in consideration of and upon the promise of this plaintiff to levy said order of attachment on said cattle, agreed with him to execute and deliver to him a bond of indemnity to secure him against any and all loss and damage by reason of the levy of said order of attachment upon said cattle, or the sale thereof under said levy, or on account of the claim of said W. H. Freeman, or Willis & Errickson, or any person or persons whomsoever ; that thereupon the plaintiff levied said order of attachment upon said cattle, and took them into his possession by virtue of such levy; that on or about tbe 30th day of September, 1895, while said attached property was in the possession of plaintiff by virtue of said levy of said order of attachment, the said defendant S. L. Brooking, as president of said Missouri, Kansas & Texas Live-stock Commission Company, took possession of all said attached property, consisting of about 288 head of cattle, without the knowledge or consent of plaintiff, and appropriated the same to the use of said corporation; that on the 2d or 3d day of October, 1895, plaintiff demanded of said S. L. Brooking, president aforesaid, that he return to him said attached property, which he refused to do ; that in truth and in fact said cattle had before that time been sold by said Brooking for said corporation, and for that reason it was impossible for plaintiff to repossess himself thereof.
“Thereupon plaintiff demanded the bond of indemnity which said corporation agreed to execute and deliver to him as aforesaid, but which, up to that time, October 2 or 3, 1895, had not been given, and said defendants, at said time last above named, executed and delivered to plaintiff a bond of indemnity, conditioned that said principal and sureties bind themselves to pay plaintiff all damages and costs that he may sustain by reason of the detention or sale of the property levied on in the suit of the Missouri, Kansas & Texas Live-stock Commission Company against William Freeman, M. J. and D. H. Herrick, by virtue of a certain order of attachment issued in said suit, and indemnifying said plaintiff against all persons whomsoever on account of release of said levy. A copy of said bond is hereto attached, marked ‘Exhibit A,’ and made a part of this petition. That after the levy of said order of attachment, after said S. L. Brooking, for said corporation, took said attached property from the possession of plaintiff, as aforesaid, and after the execution and delivery to plaintiff of said bond of indemnity, the said action in which said order of attachment was issued was by said plaintiff corporation dismissed at its costs as to all the defendants therein, and all said attachment proceedings thereby became null and void.
. “Plaintiff says that while said bond of indemnity is ambiguous, imperfectly, ‘inartistically’ and clumsily drawn, yet it was the agreement, understanding and intention of the obligors and obligee named therein and signed thereto that it should save plaintiff harmless from any loss or damages in any manner, shape, form or fashion- as the result of, or in any way connected with or growing out of, the aforesaid attachment proceedings and the plaintiff’s levy of the said order of attachment, and as security for plaintiff against any loss or damage that he might sustain or suffer in case said attachment should be discharged or become void for any reason, and he be unable to return said attached property to the persons lawfully entitled to the same, on account of the acts or proceedings concerning said property by the plaintiff in the action in which said order of attachment issued, to wit, the Missouri, Kansas & Texas Live-stock Commission Company, or any other person or persons ; that on the 20th day of February, 1896, said William Freeman brought an action against this plaintiff in the district court of Greenwood county, Kansas, for the -recovery of the value of 188 head of cattle attached as aforesaid, and on the 20th day of November, 1896, recovered a judgment in said court against this plaintiff for the sum of $683.64, and c'osts of the action, taxed at $94.98, and amounting, in the aggregate, to the sum of $778.62; that on the 26th day of February, 1897, the said William Freeman caused execution to be issued on said judgment and placed in the hands of the sheriff of said county, and this plaintiff was compelled to pay said judgment and costs; that .plaintiff duly notified the defendants herein of the institution and pendency of said action against him, and they employed counsel to defend the same for him ; that judgment was so rendered against plaintiff in said cause as aforesaid, and before the commencement of this action he demanded of said defendants herein that they reimburse him for the amount of said judgment and costs so as aforesaid rendered against and paid by him, but they have failed and neglected to pay the same and save harm less ihis plaintiff, as provided in said bond of indemnity.
“Wherefore, plaintiff prays judgment against said defendants, and each of them, for the sum of $778.62 with lawful interest thereon, and the costs of this action. James Shultz,
T. L. Davis,
Attorneys for Plaintiff.
“Exhibit A.
“In the District Court oe' G-reenwood Countv.
“The Missouri, Kansas & Texas Live-stock Commission
Company, Plaintiff, v. William Freeman, M. J. and D.
H. Herrick, Defendants.
• “We, the undersigned principal and sureties, bind ourselves hereby to pay to J. A. Smith,'as sheriff, all damages and costs that he'may sustain as such sheriff by reason of the detention or sale of the property levied on in this suit by virtue of a certain writ of attachment herein, and now claimed as the property of W. H. Freeman, in an action against said sheriff by said W. H. Freeman in said court for conversion, and indemnifying said sheriff for release of said levy against all persons whomsoever.
S. L. Brooking,
President M. If. & T. L. S. Comm. Go.
S. L. Brooking.
Edwin Tucker.”
Upon a hearing, the district court sustained the demurrer, and the plaintiff, electing to, stand on his petition, took the case to the court of appeals, southern department, central division, where, in due time, the judgment of the district court was reversed (Smith v. Brooking, 10 Kan. App. 523, 63 Pac. 19), and Tucker prosecuted a proceeding in error to this court to reverse such decision of the court of appeals.
The right of the court of appeals to entertain the case is here challenged, because of imperfections in Ahe transcript of the record. As the allegations of plaintiff in error are not supported by evidence which may be here considered, his contention cannot be upheld. We are at a loss to know on what ground the district court sustained the demurrer. It seems to be contended, however, by counsel for plaintiff in error, that the court of appeals decided the case on the ground that plaintiff below was entitled to recover for a “release of levy,” and that no sufficient allegation of such a breach of the bond was made. It may be conceded that the allegations of the petition are not definite and certain, and a motion directed to such defects would have been justified ; still it sufficiently appears from the averments of. the petition that the plaintiff has been damnified by reason of the official acts performed by him under the writ of attachment, at the request of the plaintiff in that action, and the nature and extent of the injury which he has sustained is fairly apparent. It is evident that the bondsmen undertook to indemnify the sheriff against such a loss as did, in fact, accrue to plaintiff below in the premises.
As these facts are averred, though “clumsily,” in the pleading, and the conclusions are a reasonable deduction therefrom, it follows that the district court erred in sustaining the demurrer.
The judgment of the court of appeals is affirmed, that of the district court reversed, and the case remanded for further proceedings in accordance with this opinion.
Doster, C. J., Johnston, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by J. F. Thompson to recover from H. E. Burtis and H. M. Burtis the value of legal services rendered for them as to the cancelation and setting aside of an oil or gas lease. The plaintiff alleged and offered proof of a contract of employment, under which the facts and law as to the validity of a lease were examined. A pleading was partially prepared, but, before the same was filed or the action instituted, the defendants employed other counsel and refused compensation to plaintiff. The defendants denied that there was a contract of employment, or that there were any negotiations between the parties from which a contract to pay would be implied. Upon the issue whether or not there was an actual employment the jury found in favor of the plaintiff, but only awarded him the sum of one dollar as compensation for his services under the employment. Of this the plaintiff justly complains.
The contract of employment being established, and no specific compensation having been fixed by the parties, the plaintiff was entitled to recover the reasonable value of the services rendered. The only proof as to the services rendered and the value of the same was that given by, and in behalf of, the plaintiff. He testified as to the character and extent of his services, including the time and study he had given to the questions of fact and law that were involved in the proposed litigation. - There was testimony, too, as to the value and importance of the subject of the controversy. The lease sought to be canceled covered 200 acres of land in the gas belt, which was shown to be of the value pf $75 to $100 an acre. The plaintiff himself testified as to the value of his services, and he produced as witnesses leading members of the bar, who united in saying that the reasonable compensation for the services rendered was from $150 to $200. The defendants rested upon the sole defense that there was no employment; and offered no. proof whatever as to retainer or the value of services such as plaintiff claimed to have rendered.
The jury, it íb true, was not obliged to accept as conclusive the opinions of experts as to the value of -.legal services, but they could not overlook competent ' testimony that was unimpeached. They were required | to consider the opinipn evidence in connection with (!all other testimony and the circumstances of the case, and, in the light of these and their own general knowledge, fix the value of the services. There was no im peaching testimony as to the value of the services ; the witnesses testified intelligently; their testimony was in practical harmony ; the employment of plaintiff was shown to the satisfaction of the jury; the extent of the services was not in dispute, and the circumstances all united to confirm the testimony and opinion of the witnesses, and to show that the plaintiff was entitled to a substantial recovery. In some way the jury were warped from the direct line of duty, and, instead of awarding a substantial sum, gave the mere nominal amount of one dollar. This was error. (Noftzger v. Moffett, 63 Kan. 355, 65 Pac. 670.)
When special findings are inconsistent and contradictory, the general verdict is set aside ; and where, as in this case, the general verdict involves a plain and material inconsistency, it should be set aside and a new trial granted. |
The verdict cannot be sustained by a fair and intelligent consideration of the evidence, and, therefore,the judgment will be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action brought by Henry Brecheisen as plaintiff in the court below against the plaintiffs in error to recover on a replevin bond. The facts out of which the controversy arose may be briefly stated. The Central National Bank held a chattel mortgage on cattle and hogs. One R. B. Vail was the mortgagor. On April 3, 1899, the bank filed its petition, based upon its right to possession under its mortgage, and an affidavit in replevin, to recover twenty head of steers and fifty hogs, alleged to be in Brecheisen’s possession, and also filed a replevin bond in the action in the usual form., A replevin writ was issued and served on that day and the live stock delivered to the bank. The summons in the action was not issued until the day following that on which the writ of replevin was issued and served. On June 6, thereafter, the defendant in the replevin action (defendant in error here) moved the court to set aside the order of delivery of the property to the bank, and to declare the proceedings thereunder null and void, and to award to him a writ of possession of the property, because the replevin writ was prematurely issued, before the actionwas commenced. This motion was sustained. Thereafter, and on the 14th day of November, 1899, the bank, as plaintiff in that action, dismissed its suit without pro j udice. The defend ant, Brecheisen, declined to have his rights of property determined in the action.
The defendant in error resisted the action of the bank for the possession of the stock on the ground that he was entitled to an agister’s lien thereon by virtue of having furnished feed to Vail, the mortgagor. After the dismissal of the replevin action by the bank, the present action was brought by Brecheisen to recover from the principal and sureties on the replevin bond the amount of his agister’s lien on the cattle and hogs. He had judgment in the court below.
The first point made by the bank as defendant below was that there could be no recovery on the replevin undertaking because the bond sued on was not given in any action, there being no suit pending at the time the replevin bond was filed, the summons in the action not having been issued until the day following the seizure of the property under the replevin writ. There is no merit in this contention. After the bank had obtained possession of the property by virtue of proceedings instituted by it in replevin, neither the principal on the bond nor its sureties could show when sued thereon that no suit was pending when the bond was executed because no summons issued in the replevin action. They are estopped from making such defense. (Shinn, Repl. § 821 ; Sammons and others v. Newman and others, 27 Ind. 508.)
An issue was made in the case whether a true copy of the bank’s chattel mortgage on the live stock had been deposited with the register of deeds of Osage county, in compliance with section 4244, General Statutes of 1901. The original mortgage described the location of the property as follows : “Said cattle to be kept and fed on the Brecheisen farm, viz., south east quarter of section 34, township 16, range 16, in Valley Brook township, Osage county, Kansas.” The copy offered in evidence by defendant below, described the location of the stock thus : “Said cattle to be kept and fed on the Brecheisen farm, viz., southeast quarter of section 34, township 11, range 11, in Valley Brook township, Osage county, Kansas.” The only discrepancy worthy of consideration is that which gave the township and range as number 11 in the .copy, when the original designated them as number 16. There is no range or township numbered 11 in Osage county. The court below rejected the copy and excluded it as evidence. We think the court erred in this ruling. Without the township and range, the remainder of the description was sufficient to identify the location of the mortgaged property.
In Ely v. Carnley, 19 N. Y. 496, the original mortgage was for $546.19, and the copy stated the amount of indebtedness secured by it to be $646.19. It was held bad because creditors of the mortgagor might be misled concerning the true amount secured by the mortgage. In such case third persons might be prejudiced.
The use of the words “true copy” in the statute relative to the recording of chattel mortgages does not require that a literal and verbatim copy of the instrument must be filed, but a copy substantially true, so that the creditors of the mortgagor or subsequent purchasers in good faith may not be misled, to their detriment. We regard the substitution of the figures 11 for 16 in the copy in question here as a mere clerical error which, however it occurred, ought not to destroy the lien of the mortgage. The changed figures in the copy did not relate to a material matter. ( Gillespie v. Brown & Ryan Bros., 16 Neb. 457, 20 N. W. 632.)
The jury, in answer to a particular question of fact, found that the agister’s lien ob the plaintiff below was created by a contract between him and Vail, the mortgagor. There was some testimony in the case, however, which tended to show a statutory lien. It was held in Case, Adm’r, v. Allen, 21 Kan. 217, 30 Am. Rep. 425, that the lien given by section 3931, General Statutes of 1901, had priority over an existing chattel mortgage on the stock fed by an' agister. The court was careful, however, to confine this superior right of the agister to a lien derived from a compliance with the terms of the statute, and not to one dependent on contract between the mortgagor and the person caring for and feeding the stock. See Corning v. Ashley, 51 Hun, 483, 4 N. Y. Supp. 255.
The denial of the right of plaintiffs in error to introduce their mortgage in evidence deprived them of any defense against the lien of the plaintiff below, whether it was created by contract or existed by virtue of the statute. The mortgage being admitted, the plaintiff below must recover, if at all, on the rights given him by law.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
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Error from Elk district court. | [
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Per Curiam:
In a very forcible and able argument counsel for the railroad company contend that another trial should be awarded, and to that end there should be a rehearing, instead of an affirmance, as directed in the opinion heretofore filed. One or two questions are submitted which were not presented upon the original hearing, and these, therefore, will not be considered. (The State v. Coulter, 40 Kas. 673; 20 Pac. Rep. 525.) All the other questions are sufficiently disposed of in the original opinion, excepting the one concerning the instructions as to gross negligence and exemplary damages. We stated in our former opinion that the testimony as to gross negligence, if any, was very slight, but that in view of the damages awarded, we were inclined to think that the instructions concerning punitive or exemplary damages were not sufficiently material to reverse the judgment. A reexamination of all the testimony convinces us that the negligence established was not wanton, willful, or malicious; one or the other of which elements must appear to justify punitive or exemplary damages. (Railway Co. v. Rice, 10 Kas. 426; Railway Co. v. Rice, 38 id. 402; Railway Co. v. Whipple, 39 id. 531.) Where there is no testimony showing that the negligence is so gross as to amount to wantonness, and no willful or malicious acts are proven, actual or compensatory damages merely, is the rule; therefore, to leave the question of punitive or exemplary damages'to the jury, when there is no testimony which would warrant a verdict for such damages, is improper. (Railway Co. v. Peavey, 29 Kas. 169; Kennedy v. Railroad Co., 36 Mo. 351; Traction Co. v. Orbann, 12 Atl. Rep. 816.)
It is probable, as heretofore stated, that, considering the age of Kier and his injuries, the damages awarded him were compensatory only; but as the jury were instructed that if they found gross negligence “to have entered into and formed or caused the injuries of which Kier complains,” they might allow punitive or exemplary damages, we cannot, with absolute certainty, say the verdict of $7,000 was not enhanced thereby. This much, however, is clearly established by the verdict, separate and apart from the erroneous instructions: First, that culpable negligence is to be imputed to the railroad company as charged in the .petition; second, that Kier was not guilty of any negligence directly or proximately contributing to his injuries; and third, that upon the testimony, he was entitled to recover his actual or compensatory damages.
We have concluded, considering the testimony and verdict, that as we cannot clearly decide that the erroneous instructions might not have increased or exaggerated the verdict, the judgment must be reversed unless Kier, within thirty days, remits $2,000 thereof. If this is done, the judgment of the district court will be affirmed for $5,000.
We may fairly assume, upon the testimony and verdict, that the jury intended to embrace in the verdict the actual damages which Kier was entitled to recover. The erroneous instructions only related to the measure of damages; therefore, these instructions only affected the damages allowed. It is apparent from all the testimony that $5,000 will not ■¡exceed the actual damages suffered. If the verdict had been for $5,000, it would be clear beyond doubt that the error alleged did not and could not have prejudiced the rights of the railroad company. (Thomas v. Dansby, 41 N. W. Rep. 1088.) While the damages found are not excessive, yet they are a full, round sum for the injuries complained of, and hence, on ■account of the error committed, the necessity of a modification of the judgment. If Kier had lost in the service of his country the portion of his limb which has been amputated, he would be entitled to a pension, under the law, of at least $30 per month; that would amount to $360 a year. The yearly interest of $5,000 at seven per cent, will be $350. If, however, the plaintiff below is unwilling to accept a judgment of $5,000, a new trial will be awarded on account of the erroneous instructions referred to.
Several cases are cited from this court to show that the erroneous instructions were harmless. In Railway Co. v. Little, 19 Kas. 269, the instruction permitting the recovery of exemplary damages was not excepted to, and the damages allowed were only $1,050; therefore no reversal.
In Railroad Co. v. Moore, 31 Kas. 197, and in Railway Co. v. Mackey, 33 id. 298, no errors were committed by the trial courts, and therefore, although the judgments were large, this court did not feel justified in interfering.
The judgment of the district court will be reversed, unless the remission of $2,000 is allowed as stated. | [
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Opinion by
Simpson, C.:
The appellant was convicted at the September term, 1888, of the district court of Kingman county, of the crime of attempting to induce a certain witness in a trial pending in said court to absent himself from the trial of the cause, and not to testify, with intent to obstruct and prevent the due administration of justice. The witness, one W. Gr. Wilson, was the complaining witness in a state case against one W. W. IMagruder. The appellant was also a witness for Magruder, and gave material testimony in his defense, and while on the witness stand and during his cross-examination stated that he had talked with Wilson, and then followed these questions and answers:
“ Q. For what purpose did you have this conversation with him? A. I had been acquainted with Wilson for some time, and met him here.
“ Q,. For what purpose did you seek this conversation ? A. With Wilson ?
“Q. Yes, sir. A. Yes — probably you know Mr. Wilson had sent some things through the mail, and I had agreed to look him up. I saw him here, as I went to Wichita to look him up, and when I saw him I was somewhat surprised, and shook hands with him.
“Q,. Who brought up the conversation of the Magruder trial ? A. I am sure I can’t say who brought it up to-day.
“Q,. Was there any money mentioned in this conversation between you and him ? A. Yes, sir. _
“Q. You offered him $150 to leave, didn’t you? A. No, sir.
“ Q,. Wasn’t that the object of the conversation ? A. No, sir.
• “ Q,. Did you promise him that ? A. Me ?
“Q,. Yes, you did make that offer to him ? A. Yes, sir.
“Q,. What is your business, Mr. Crowder? A. I am— at the present time ?
“Q,. Yes, sir. A. I am in various businesses — three, at least.
“Q. Mention them. A. Practicing law, for one; druggist business, for another; and looking up mail robbery.
“Q. Where areyou practicing law? A. At Conway Springs.
“ Q,. Where are you a druggist ? A. At Conway Springs.
“Q,. Where do you look up mail robbery? A. All over the country.
“ Q,. Where did you expect to get this money ? A. What for?
“ Q. This you mentioned. A. I will tell you, if you want to know, all about it.
“Q,. Why, yes. A. I offered him $150 because — the fact was that I had an object in view, that I was going to wire Mr. Goar, the inspector, and we could trace him. .He first broached the matter to me, and said he would take $250 and go; and finally he said he would take $150.
“Q,. You offered him $150? A. Yes, sir, after he asked me if I would give it.”
He filed an affidavit to support his motion for a continuance of the case, and a part of that affidavit contained this statement:
“D. L. Crowder, being first duly sworn, says that the promise of money to said W. G. Wilson as in said indictment set forth, was made by him in the discharge of his official duty, as detective in the post office department of the United States’ government, and not for the purpose of inducing or in any way directly or indirectly by influencing the said W. G. Wilson to absent himself from the said court, or to prevent him directly or indirectly from testifying as alleged in said indictment. That affiant had reason to believe and did believe that said W. G. Wilson had before accepted a bribe to absent himself from the above-named court, and had reason to believe and did believe that if a bribe was offered to said W. G. Wilson that said W. G. Wilson would leave the jurisdiction of the court. That if said Wilson should leave Kingman county, and the jurisdiction of said court, for any cause whatever, the said W. G. Wilson might finally escape from the officers of the United States government, and evade arrest. That said promise of one hundred and fifty dollars was made for the purpose that the affiant might discover that said W. G. Wilson, was at the time susceptible to bribe, and it was the purpose and intention of the affiant to advance to said W. G. Wilson a'part of the said money, and then have a warrant for the arrest of the said W. G. Wilson issued and served upon the said W. G. Wilson, and thus hold him until the inspector of the post office department could be notified of his arrest.”
The case against him was made by proof of his statement on the Magruder trial that he had offered Wilson money not to testify. These statements were proved by the stenographic notes of the trial; by the evidence of the clerk of the court, and by the evidence of two persons who had heard the statements made by Crowder while on the witness stand; and by that part of the affidavit for continuance, given above.
On the trial the appellant testified in his own defense as follows:
“Q. What is your business, Mr. Crowder? A. I am a druggist.
“Q. Anything else? A. Practicing law.
“ Q,. Anything else ? A. I look after mail robbery for the mail department.
“ Q,. State whether or not you have any other business or trade. A. No.
“Q,. Are you not a stenographer? A. No, sir.
“ Q,. How long have you been engaged in looking up mail robbery ? A. I came to Kansas some two years ago. I quit for a short time, and last year was looking after them again,.
“Q,. How long since you commenced looking after mail robbery? A. The first time in 1877.
“Q. Have you followed that business continuously? A. No, sir.
“ Q,. How long since you commenced the last time ? A. The first time was on the — was on last September, this last time. I could tell by refreshing my memory from a book I have.
“Q,. State whether or not you were occupied in that business last May. A. I was.
“Q. State whether or not you were in Kingman county sometime last May. A. I was.
“Q. About what time was it? A. I came on the noon train on the 2d, I think; not positive.
“ Q. How long did you remain here ? A. I remained here the 2d and 3d. I think I went away the 4th.
“Q. State whether or not you knew one W. G. Wilson. A. I did.
“ Q. State whether or not you knew one W. W. Magruder. A. 1 had met him once or twice.
“ Q,. State whether or not you know of a criminal trial in the Kingman district court, in which W. G. Wilson was the complaining witness and W. W. Magruder was defendant. A. Yes, sir.
“Q. State whether you had anything to do with that trial. A. Nothing at all.
“ Q,. State whether or not yo.u testified in- that case. A. Yes, sir.
“ Q,. State whether or not you came to testify in that case. A. I did not.
“ Q. Had you any other connection with that trial, officially or not? A. No, sir; not with the trial.
“Q. Mr. Crowder, please state how you came to visit King-man at that time? A. In the winter, sometime, I was informed that one W. G. Wilson was shot, at Spivey; and I had never seen Magruder, but I sent word to him and asked him who this W. G. Wilson was. I never heard from him until in the winter; and he said he was a bridge carpenter, and that he gambled some.
“ Q,. Who said that ? A. W. W. Magruder.
“Q,. About whom? A. This W. G. Wilson.
“ Q,. Go ahead. A. I asked him to give a description of the man; he did so. I asked if he knew his whereabouts, and he said he did not. That was the first time I ever saw Mr. Magruder; and after that I sent him word to advise me when his case was in court, and he did so. I came up here and didn’t know Mr. Magruder; he was pointed out to me and I went to him and entered into conversation, and he pointed out Wilson to me, and I saw he was the man that I had seen in this mail robbery. I sat down and wrote the department that Mr. Wilson was here, and I ascertained that he had been offered a bribe at one time. I had seen Wilson once before, and he shook hands with me. He said, ‘ Crowder, I want to see you.’ He said, ‘Is Magruder a friend of yours?’ and I said ‘Yes.’ And he said, ‘I know how you can get him out — ’
“Q. Mr. Crowder, I will ask you by what authority, if any, you had come here for the purpose of looking up post-office robbery, if at all ? A. I did. I came for the purpose of looking up the Conway Springs robbery, which occurred on the night of October 30th.
“Q,. Whom, if anybody, did you suspect of that? A. W. G. Wilson.
“Q. Do you know where he was at the time you came here? A. No, sir.
“Q,. Do you know where he was before? A. I do not. Whyj the fact was I lost sight of him for months. I heard he was at Spivey, and then he was gone; and then I learned from a railroad man that he was at Winfield, and when I went there he was gone.
“Q,. Now, Mr. Crowder, state what conversation, if any, you had with Wilson in reference to money?
“Q. Mr. Crowder, state what offer, if any, you made to him of money? A. I offered him — promised him $150. I wasn’t going to give him all of it, but part of it, and wire the inspector that Mr. Wilson was here, and arrest him.
“ Q. State why you made him the offer.” ''
He then read a part of his affidavit for continuance, that was admitted by the attorney for the state, as the evidence of the absent witness, and is as follows:
“My name is J. T. McClure; I reside at Macon, Missouri; my business is post-office inspector of the United States post office department. I have known D. L. Crowder, the defendant, for the last four or five months; the defendant, D. L. Crowder, has been in the employ of the United States post office department for more than one year last past, whose duty it was to trace up, discover and detect parties who have committed robberies in the United States post office. The defendant, during all the time I have mentioned, has been acting under the express authority of the government postal inspectors; it is his duty to go to any part of the United States where he has been officially notified of any post-office robbery, and then to follow any clew he may have. That on October 30, 1887, the post office at Conway Springs was robbed, and that D. L. Crowder, the defendant, was notified, and authorized to follow any clew he could obtain, as to the parties suspected of being the perpetrators of said robbery; and that in May, 1888, he went to Kingman, Kansas, as it was known that one W. G. "Wilson, was a witness in a case in the district court of Kingman county, Kansas, and said W. G. Wilson was one of the parties suspected of being implicated in the said robbery of the Conway Springs post office.
“I have known D. L. Crowder, the defendant, officially and by correspondence, for more than a year, and fully six months before I ever met him personally. The reason I never met D. L. Crowder before I did is, that the government postal inspectors are continually changed from one state to another, and I have only been assigned to the territory embracing the state of Kansas but a short time.”
The defendant then introduced Ethan Waite, who testified that he was the postmaster of the city of Kingman, and had been for about three years. That he was somewhat acquainted with the defendant, and had a conversation with him in reference to Wilson a few days before the defendant’s arrest, and before the trial of Magruder. He was then asked what the conversation was that he had with the defendant respecting Wilson. This was objected to by the state, and the objection sustained. The defendant then offered to prove by this witness that in this conversation it was agreed among other things that Mr. Crowder was to offer Wilson money, and by that artifice to hold him. This was objected to, and the objection sustained. The postmaster was then asked whether or not Crowder had any authority, within his knowledge, as a post-office detective. This was objected to, and the objection sustained.
An effort was made to have the city marshal of Conway Springs give the details of the post-office robbery at that place on the 30th of October, previous to the trial, and this was objected to by the state, and the objection sustained.
The postmaster at Conway Springs was examined, and identified an envelope addressed to the appellant as, one used by government officials; and when asked if such envelopes were used by anybody else, an objection was sustained to the question. The appellant then sought to introduce the following letters that had been identified during his examination, but the court sustained an objection to them as being incompetent and irrelevant. They are as follows:
“Exhibit 1.
Subject,-; Case No.-. Return this letter with your reply.
Post Office Department, j Office of Post-Office Inspector, l St. Louis, Mo., July 2, 1888. J
E. L. Crowder, Esq., Conway Springs, Kas. — Dear Sir: Your letters of May 3d, 1888, and June 18, 1888, just received, having been forwarded to Washington, D. C., from Emporia, Kansas, and then here. Am sorry to learn you are in trouble. Yes, I offered you $100 for evidence to secure the arrest and conviction of the El Dorado, Kansas, P. O. burglars, and remember to have telegraphed you to come to Wichita, Kansas, on that business. If I can be of any service to you,' communicate with me at St. Louis, Mo.
Yours very truly, Will T. McDonald,
P. 0. Inspector.”
“Exhibit 2.
Subject-; Case No.-. Return this letter with your reply.
Post Office Department, I ■p O Injector ( OFFICE OF POST-OFFICE INSPECTOR, V SP • 3 St. Louis, Mo., August 1, 1888. j
Mr. E. L. Crowder, Conway Springs, Kansas — Dear Sir: Your, letter of July 25, 1888, received and noted. I do not hesitate to say I earnestly requested you while in Conway. Springs last fall looking after the P. O. robbery, to keep a sharp lookout,, and report to me any clue you might discover looking to the guilty parties. I am truly sorry your1 desire to find the guilty party has gotten you into trouble.. Surely you. can get the object of your course before the court, and have the case dismissed against you. I am now at Abilene, Kansas, for a day or two. Yery respectfully.
F. M. Goar, P. O. E.”
“ Post Office Department, Office of Post-Office Inspector, St. Louis, Mo. Official business.
A penalty of $300 is fixed, by law for using this envelope for other than official business.
Abilene, Kan., Aug. 1, 1888.”
“Exhibit 3. -
“Said envelope was stamped on the back as follows: ‘Conway Springs, Kas., Aug. 2, 1888.’”
On this state of facts these questions arise, and are discussed by counsel for appellant, who insist: First, that there is no evidence of the wrongful intent necessary to constitute the crime, but on the contrary, it is established that the offer of money to Wilson was not corrupt; second, that the uncorroborated confession of Crowder did not warrant a conviction; third, that the court erred in excluding the evidence of Postmaster Waite and others as to the object of Crowder in offering the money to Wilson.
I. The first contention can be disposed of in a few words. It was incumbent on the state to prove the criminal intent, but this could only be done circumstantially. This was a question exclusively for the jury, and they could fairly say, under all the circumstances, that the offer of money to the witness was a corrupt one. Crowder is present at the trial of Magruder, and goes upon the witness stand and testifies strongly in his behalf. It transpires that he attempted to induce the prosecuting witness to absent himself and not testify against Magruder. The pretense for the attempt is, that Wilson is suspected of a post-office robbery at Conway Springs. If he would accept a bribe not to testify against Magruder, he could be arrested on that charge, and held until a United States official could be notified of his arrest. Why could he not be arrested on a charge of robbing the post office, and held until the proper authorities could be notified? The explanation of Crowder is not satisfactory to the ordinary mind, and the jury were warranted on the state of facts presented, to say that the offer of the money was corrupt. This much was a natural inference from the offer itself, and this was greatly strengthened by the act of Crowder as a material witness in behalf of Magruder. His presence at the trial; his volunteer testimony in behalf of Magruder; his offer of money to the prosecuting witness not to appear and testify against Magruder; his declaration that he had told the deputy sheriff, Linn Hallowell, that perhaps he wanted a warrant for Wilson, the day before he offered the money; and the denial of the deputy that any such statement was ever made to him; his statement to the deputy sheriff that he was there because he was interested in the Magruder case, produce a very strong conviction that he is there in the interest of Magruder, and for no other purpose. This finding of the jury is aided by the declaration of Crowder that his sole pretense for arresting Wilson on a charge of having received a bribe, was to hold him until a certain post-office detective could be informed of his arrest. Suppose he had been arrested on the charge preferred against him by Crowder, he would have been held for trial by the state authorities, and not surrendered to the post-office inspector on a mere suspicion that he had participated in the Conway Springs post-office robbery. As a matter of legal inference the jury were right in this question, and the circumstances attending the offer abundantly show that it was a corrupt one.
II. As to the second assignment of error^ urged by the appellant, it may be said there is no necessity for the consideration of some of the nice distinctions made by many reported cases, as to whether or not a conviction can be supported by an uncorroborated confession. In this case there has been no confession, because that term has a well-defined legal meaning, and implies acknowledgment of guilt. It is a person’s declaration of his agency or participation in a crime. (People v. Parton, 49 Cal. 632; People v. Strong, 30 id. 157; 1 Greenl. Ev., §170, and authorities cited in note.) Nowhere in the various statements made by the appellant — neither in his evidence in the Magruder case, his evidence on his own trial, or his affidavit for continuance — does he make any confession of guilt, or of unlawful intention, or of intent to commit a crime. He admits the fact that he offered Wilson money not to testify, and this admission of the fact of the offer is not to be excluded merely because it may, when connected with other facts, tend to establish guilt. To make the rule contended for by counsel for appellant applicable in this case, Crowder must have confessed that he offered money to Wilson with the corrupt intent to obstruct and prevent the administration of justice. But this is the very thing that he denies, and offers proof explanatory of the circumstances under which the offer was made.
Admissions by persons accused of crime suggesting the inference that such crime was in fact committed as alleged, are always admissible against the person making the admission. (1 Greenl. Ev., §§ 213,215; Brown v. The State, 32 Miss. 433; The State v. Holenscheit, 61 Mo. 302; The State v. Brown, 48 Iowa, 382; Cain v. The State, 18 Tex. 387; The State v. Carrick, 16 Nev. 120; Blackburn v. Com., 12 Bush [Ky.], 181; Com. v. Sanborn, 116 Mass. 61; Eiland v. The State, 52 Ala. 322; Cox v. People, 80 N. Y. 500.)
In this case the appellant admits by his statement under oath, the fact, that he offered the witness Wilson money to absent himself, and not to testify in the Magruder case, but these admissions are always coupled with explanatory statements of the intent with which the offer was made; so that the most that can be said about his various declarations is, that the offer of money is an admitted fact, and the sole remaining inquiry is as to the motive and intent of the offer. It is not either a judicial confession as a plea of guilty, nor is it an extrajudicial confession of guilt. It is an admission reduced to writing so far as the affidavit for continuance is concerned, and it becomes subject to the rules governing documentary evidence. It is a most satisfactory establishment of the fact that money was offered Wilson not to testify, and that is the limit of the legal effect that can be given it. It is very like a case of homicide, in which the killing is admitted, but it is claimed that it was done in self-defense. As to the intent with which the money was offered, this must be gathered from all the circumstances surrounding the offer. These may come under the general designation of confessions by conduct, but after all they are usually original circumstantial evidence. (People v. Stanley, 47 Cal. 113; McKee v. People, 36 N. Y. 113.) Some of the deductions or inferences from the attending circumstances, we have adverted to in the first paragraph of this opinion, in commenting on the question as to whether or not a corrupt intent was shown on the trial.
III. This brings us to the consideration of the various questions about the rejection of evidence offered by the ap pellant. (1.) As to the letters from the post-office inspectors: These letters were identified by Crowder while on the witness stand, and subsequently were offered in evidence by the appellant, and rejected. They are from post-office inspectors to the appellant, and both dated in July, after the appellant had been indicted in the month of May previous thereto, and both show conclusively that the only relation the appellant sustained toward the post-office department was, that one of the inspectors had requested him to keep a lookout for any clue to the robbery of the Conway Springs post office; and one of the inspectors offered the appellant $100 for evidence to secure the arrest and conviction of the El Dorado post-office burglars. Now it must be recollected that the appellant admits the offer of money, but says he was a government detective, and made the offer with the design to cause Wilson’s arrest, so that he could be held until the postal authorities were notified. To make this. defense, it was necessary for him to prove that Wilson was at least suspected of having committed an offense; that the appellant knew of these suspicions, and that he was a government detective looking after such matters. His own -.sworn statement that he was a government detective would have been sufficient prima facie showing. (Com. v. McCue, 82 Mass. 326, and authorities cited.) Or proof that he had acted notoriously as such, is prima fade evidence of his official character. (1 Greenl. Ev., § 83.) It is not in general necessary to prove the written appointment of public officers. All who are proved to have acted as such are presumed to have been duly appointed, until the contrary appears. (Greenl. Ev., § 92.) This proposition is indorsed and approved by Bishop in his work on Criminal Procedure, vol. 2, §783-; see also §828. The reason of the doctrine is said to be founded mainly in public convenience.
There is no theory of the case under which the letters of third persons are admissible in evidence. If he wanted to support his claim of government employment, he must do it by the testimony of witnesses, and not by letters of people disconnected with the action. The ruling excluding them was a merciful one for the appellant, and therefore not reversible error. (2.) It follows from this that the exception to the rejection of the offer to identify these letters by Leach, the postmaster of Conway Springs, is not well taken.
IV. The last exception to be noticed arises from the refusal of the trial court to prevent Waite, the postmaster at King-man, from answering a question as to the conversation he had with the appellant before the trial of Magruder, in regard to Wilson. The appellant then offered to prove by the witness that in this conversation Crowder was to offer Wilson money, and by that artifice to hold him. This offer was properly rejected, in the first place because it is not definite and certain ; it does not connect the offer of money with the particular offer made by the appellant to Wilson. It is claimed that it is a self-serving declaration of the appellant, and a part of the res gestee. But the offer is not to prove a declaration by the appellant, but to show the knowledge of the postmaster at Kingman, that an offer of money to Wilson was to be made for some purpose not indicated.
And finally, some criticism of the instructions of the court is indulged in, but it is sufficient to say generally that these instructions fairly embody the law applicable to the state of facts presented, and whatever errors they contain are not sufficient for reversal.
There are some general observations with reference to the facts in this case that ought to be made for the purpose of showing the condition of mind produced by their investigation, and the spirit in which the rules of the criminal law have been applied. The appellant goes to Kingman a day or two before the trial of Magruder; he states to the deputy sheriff that he is there because he is interested in the Magruder case; he admits that he offered the prosecuting witness against Magruder money not to testify; he claims on the witness stand that he told the deputy sheriff that he would probably want a warrant on that day; this is specifically denied on the witness stand by the officer; he is a volunteer witness on behalf of Magruder, and gives material testimony to his defense; he claims at one time that Wilson is suspected of having been concerned in the robbery of the post office at Conway Springs; at another he claims that Wilson is guilty of sending obscene matter through the mails; he offers no proof to show that he was invested with any authority to cause the arrest of Wilson; what he does offer shows conclusively that he is not employed by the postal authorities in any capacity; he offers the prosecuting witness money not to testify, and yet makes no explanation as to how he is to be reimbursed for this outlay; his pretense is, that if Wilson would accept the money, he could have him arrested by the state authorities and held until a post-office inspector could be notified; he makes no explanation why he could not have been arrested for the mail robbery and held; according to his own statement on the witness stand, he told Magruder of his conversation with Wilson, and of Wilson’s offer to take $150 and go away; and Magruder said, “Damn him, I will not give him a cent;” thus admitting in terms, that he had made the offer on behalf of Magruder, and reported the terms to Magruder; in his conversation with Wilson, he told Wilson that he was a friend of Magruder; his statement on the witness stand that he did not have any conversation with Magruder about offering Wilson money; his statement that he did not know Wilson, and that Magruder pointed him out to him; and his subsequent statement that he had met him once before. These contradictory and astounding statements, made by the defendant himself, produce a belief in his guilt that amounts to an absolute conviction; so that we would not reverse the case unless the record shows that during the trial such grave and material errors occurred as to make a reversal an imperative necessity as a legal right.
We recommend that the judgment of conviction be affirmed.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Johnston, J.:
Upon a writ of habeas corpus granted by this court and directed to the sheriff of Eiley county, he returned as the cause for the detention of the petitioner a commitment issued by a justice of the peace of Eiley county, reciting that Newton H. Lee had been arrested and brought before • him upon a warrant issued by him on a complaint of bastardy made against Lee by Mary Thomas, an unmarried woman and a resident of Eiley county; that Mary Thomas was examined in the presence of Lee, and such proceedings were had that Lee was ordered to enter into a recognizance, with security, in the sum of $300, for his appearance at the next term of the district court of Eiley county, to answer the charge of bastardy preferred against him; and that Lee having refused and neglected to enter into a recognizance, the sheriff was directed to receive him into custody in the jail of the county, there to remain until he was discharged by due course of law.
When Lee was arrested and brought before the justice of the peace he objected to any further proceedings being taken, asserting that the court had no jurisdiction over the subject-matter of the suit or of the person of the defendant, for the reason that the warrant was served upon him, and he was arrested by virtue thereof in the county of Osage, and not in the county of Eiley, where the proceeding was begun and the warrant issued. For the same reason he now urges that his restraint is illegal, alleging that at the time of his arrest he was in Osage and not in Eiley county, and that the justice of the peace acquired no jurisdiction or authority over him by virtue of a service of the warrant outside of Riley county. The jurisdiction of the justice of the peace and the legality of the petitioner’s restraint must be ascertained from the bastardy act, and the nature of the proceeding there authorized. (Comp. Laws of 1885, ch. 47.) If it is a civil action it must be brought in the county where the defendant resides or may be summoned; and if it is a criminal proceeding to inflict punishment upon persons committing crimes, the jurisdiction would be in the county where the crime was committed, but the warrant might go to and be served in any part of the state. But it is not strictly either a civil or a criminal proceeding, although its form and incidents partake somewhat of the nature of both. It is a police regulation, not for the punishment of crime, but requiring the putative father to provide maintenance and education for his offspring, and thus provide for the child, relieve its mother, and indemnify the public for the possible burden of its support. (Willetts v. Jeffries, 5 Kas. 470; Jackson v. The State, 30 id. 88 ; Gleason v. Comm’rs of McPherson Co., 30 id. 492; In re Wheeler, 34 id. 96.) The action has many of the characteristics of a criminal proceeding. It is denominated a “prosecution,” which is brought in the name of the state, based on a complaint upon which a warrant is issued. Under this warrant the person charged is arrested and brought before a justice of the peace, and the hearing had before him is called a “ preliminary examination.” The complainant is termed a “prosecuting witness,” and the county attorney is required to conduct the prosecution. If the defendant is adjudged by the justice of the peace to be the father of the child, he is required to give a recognizance, conditioned that he will appear in the district court; and failing in this, he is committed to jail. If he fails to comply with the final judgment of the district court, he may be imprisoned in the jail of the county. Although the purpose of the action is not to punish the father, it will be seen that it has many of the features and incidents of a criminal prosecution. Other provisions of the act, however, are entirely inconsistent with criminal procedure. It is expressly provided that the rules of evidence and the competency of witnesses shall be the same as in civil cases. The mother may at any time before final judgment compromise with the father, and discontinue the suit by entering of record the admission that provision for the maintenance of the child has been made to her satisfaction; and this entry is a bar to all prosecutions for the same cause and purpose. Then again, if the putative father dies after the hearing before the justice of the peace, the right of action survives, and may be prosecuted against the personal representatives of the deceased. Upon the judgment— which is somewhat anomalous — an ordinary execution may be issued, which is to be executed as in other cases. More than this, it is provided in § 8 of the act that “ the trial and proceedings of such prosecution, both before the justice and in the district court, shall, in all respects not herein otherwise provided for, be governed by the law regulating civil actions.” ■ Following this provision, the proceeding must be regarded as a civil one, and civil procedure must govern it in all respects not otherwise provided for in the act. The act, however, as already indicated, prescribes much of the procedure to be applied, which differs in many respects from that found in the civil code, and hence some confusion arises. But the procedure thus prescribed, although of a criminal nature, must be pursued. The remedy is a stringent and summary one, and to effect its purpose the legislature has deemed it wise to authorize the employment of both criminal and civil procedure. The initiatory steps in the proceeding are mostly of a criminal character, and doubtless they are much more effective than any other in accomplishing the legislative object. According to the direction of § 8, if the act did not provide where the proceeding should be commenced and what process should be used, the action would be begun in the county where service could be obtained on the defendant, and the process must be a summons to be served as the civil code provides. But as we have seen, the act is not silent on that subject. It provides that the proceeding may be begun before any justice of the peace, and hence in any county or township of the state. In a strictly civil action, the defendant may be served by leaving a copy of the summons at his usual place of residence; and when so served a judgment may be given against him in his absence. Under this act, the justice must cause the defendant to be brought before him upon a warrant; and until the defendant is brought before the justice the trial cannot proceed, and judgment cannot be rendered. Nothing in the act localizes the action or limits the prosecuting witness in bringing the same to the county where she resides or has a legal settlement, as is done by the statutes of some of the states.
In view of the fact that the prosecution may be instituted before any justice of the peace of the state, it is immaterial where the- complainant became preguant, or where the child was born, or what county might become chargeable with the maintenance of the child. Being “otherwise provided” in the bastardy act, the provisions of the code as to where actions shall be commenced, do not apply; and the same is true as to the process. Instead of beginning the action by the issuance of a summons, as in civil cases, criminal procedure is employed by filing a complaint on which a warrant is issued, and upon this warrant the defendant is arrested. The process or warrant, being of a criminal character, may be served in the same manner as warrants are served in criminal cases, and therefore, is not limited to the county from which it issued, as would be the case with a summons; but the defendant may be arrested thereon wherever he may be found within the state. It follows that the proceeding against the petitioner was properly instituted before the justice of the peace of Riley county, and that the warrant was rightly served upon the defendant in Osage county.
A further objection is made to the legality of the petitioner’s restraint, because the commitment does not show upon its face that on the hearing the justice of the peace adjudged Lee to be the father of the bastard child. This objection is not good on habeas corpus. The statute provides that if the justice on the hearing adjudges the defendant to be the father of the child, he shall require him to enter into a recognizance. The mittimus in the present case recites that a hearing was had upon the charge that he was the father of the child, and such proceedings were had that he was ordered to enter into a recognizance. As the recognizance was required, it implies that the proper finding was made, and we may fairly infer from the terms of the mittimus that the defendant was duly adjudged to be the father of the bastard child.
The petitioner will be remanded to the custody of the sheriff of Riley county.
All the Justices concurring. | [
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Per Curiam:
Action to recover upon a promissory note and to foreclose a land contract, assigned as security for the payment of the note. Verdict and judgment for defendant. Plaintiff alleges error.
The general finding of the jury is based upon disputed facts and conflicting testimony, and, being approved by the district court, must stand. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145.)
There is nothing substantial in the objection to the rulings of the court on the admission of testimony. Judgment affirmed. | [
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Error from Sedgwick district court. | [
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Per Curiam:
Armitage S. C. Forbes and husband executed a mortgage on real estate, and thereafter sold the property to defendant in error L. M. Corum, subject to the mortgage. Plaintiff in error, the owner of the promissory note secured by this mortgage, brought his action to foreclose the mortgage and obtained service by publication. Defendant in error L. M. Corum, the holder of the legal title to the property, was not named in- the action or proceeding. By mistake the name of L. M. Crum was used. After decree, sale thereunder, and deed executed by the sheriff, the purchaser attempted to.secure possession of the mortgaged premises under the deed. His right of possession was denied by Corum on the ground that the entire action and proceedings, as to him, were void for want of jurisdiction. Thereupon Hubbard commenced this suit against Corum, his wife, and' other parties in interest, to obtain a foreclosure of the mortgage. Defense was made to this action by Corum. The trial court gave judgment for defendants on the ground that the mortgage, having 'been once foreclosed, a second decree of foreclosure cannot be had. This was error. The decree of foreclosure rendered upon constructive service against L. M. Crum did not bind L. M. Corum, the holder of the legal title. As to him the mortgage has not been foreclosed, and he, not being bound by the former decree, cannot use it for the purpose of defeating the just rights of the owner of the mortgage while holding his title to the property in subservience to this mortgage.
The judgment is reversed, and cause remanded for further proceedings in conformity with this opinion.
Smith, Cunningham, Greene, Pollock, JJ.. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant, James Wilson, was charged with a violation of section 3827, General Statutes of 1901, known as the eight-hour law, by permitting a laborer in his employ to work more than eight hours in one day in and about the erection of a school building which defendant was constructing under a contract with the board of education of the city of Iola. The information was quashed for the reason that no public offense was charged. The state has come here by apppal.
That part of the statute necessary to be considered reads:
“That eight hours shall constitute a day’s work for all laborers, workmen, mechanics or other persons now employed or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality of said state, except in cases of extraordinary emergency ■which may arise in time of war, or in cases where it may be necessary to work -more than eight hours per calendar day for the protection of property or human life,” etc.
The question presented is whether a school district is included within the term “municipality. ” If so, the information is good.
In Rathbone v. Hopper, 57 Kan. 240, 242, 45 Pac. 610, 34 L. R. A. 674, the construction of an act of the legislature was before the court. The title read : “An act to enablé counties, municipal corporations, the board of education of any city and school districts to refund their indebtedness.” It was held that the words “municipal corporations” included townships. It was said: •
“A township is generally spoken of as a municipality or municipal corporation, but, strictly speaking, every political subdivision of the state organized for the administration of civil government is a quasi- corporation. In this respect they are placed on the same plane as counties and school districts,'' etc.
If the words “municipal corporations” include townships, we find, in Freeland v. Stillman, 49 Kan. 197, 207, 30 Pac. 235, that school districts are classified with townships. It was said:
“A school district belongs in the same class as counties and townships, which ‘ are denominated in the books and known to the law as g-acm-corporations, rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions — agencies in the administration of civil government — and their corporate functions are granted to enable them more readily to perform their public duties.' (Beach v. Leahy, 11 Kan. 23.) ”
In In re Dalton, 61 Kan. 257, 262, 59 Pac. 336, 47 L. R. A. 380, this court, in passing on the section of of the statute under consideration', said :
“Here the state has seen fit to declare (and for what reason it is unnecessary to inquire) that eight hours shall constitute a day’s work for all personsemployed by it or by any of its political subdivisions.”
Strictly speaking, cities are the only real municipal corporations in this state. We have no doubt, however, that the lawmakers, by the use of the word “municipality” in the connection in which it is employed in the eight-hour law, intended to include school districts.
In Intoxicating Liquor Cases, 25 Kan. 751, 763, 37 Am. Rep. 283, Mr. Justice Brewer quoted approvingly from the case of Holmes v. Carley, 31 N. Y. 289, 290, as follows:
“A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers; and such construction ought to be put upon it as does not suffer it to be eluded.”
In State v. Grimes, 7 Wash. 191, 34 Pac. 836, it was held that a school district is a municipal corporation within a constitutional provision which directs that the permanent school fund “may be invested in national, state, county or municipal bonds.”
In Iowa “ municipal corporations” were authorized to issue bonds for certain purposes. It was decided that school districts were included. (Curry v. The Dist. Twp. of Sioux City, 62 Iowa, 102, 17 N. W. 191.) Also, see School District No. 7 v. Thompson, 5 Minn. 221.
We are clear that it was the intention of the legis lature to include employees of school districts, within the provisions of the eight-hour' law, and that it has done so by the use of the word “municipality” in the statute.
The judgment of the court below will be reversed, with directions to overrule the motion to quash the information.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
Thomas Kirby was the owner of a private bank, conducted under the name of the Thomas Kirby Bank. At the same time he. acted as the agent of plaintiff in error, who resided at Jamestown, Pa., in the business of loaning money on real estate in Dickinson county. Among other loans by him made was one to F. R. Carpenter, in amount $2600, secured by a second mortgage on a half-section of land, the first mortgage being for $6000 to one Doctor Austin. Proceedings to foreclose these mortgages were instituted. Personal judgments- were entered on the notes and a decree rendered foreclosing the mortgages and ordering sale of the property. After an order of sale had been issued, but before sale, Carpenter conveyed the property to Doctor Austin. Thereupon, the order of sale outstanding was returned. Doctor Austin contracted to sell the real estate to Thomas Kirby for the amount of his judgment lien thereon, $7200, and Kirby oontracted to sell the land to one Cooper, and took, as evidencing the purchase-price to be paid, eleven notes of $1000 each. Thereafter, Kirby paid to Doctor Austin the amount, agreed on as the purchase-price and received a conveyance of the property. Cooper paid no part of the purchase-money notes.
Thereafter, plaintiff in error with his attorney came to Kansas to investigate the condition of his real-estate loans. For his interest in the property, Kirby indorsed and guaranteed payment of three of the $1000 notes received from Cooper on his contract of sale of the property to Cooper, and delivered them to plaintiff in error, who in return therefor delivered to Kirby the $2600 notes of Carpenter, then in judgment, and the second mortgage securing the same, then foreclosed. Thereafter, the Thomas Kirby Bank being insolvent, an action in liquidation was commenced by the the attorney-general of the state against the bank, and defendant in error Halleck was duly appointed receiver of the bank. The half-section of land mentioned came into the possession of the bank and was sold by the receiver for the sum of $5400. The three promissory notes of plaintiff in error, made by Cooper and indorsed and guaranteed by Kirby, were presented to the receiver for allowance as a demand against the trust in his hands, which allowance the receiver refused. Thereupon, plaintiff in error filed his motion in the original liquidation case for an order against the receiver, directing him to allow the notes as a claim against the estate in his hands as receiver, and for an order directing the receiver to pay on this claim in proportion to the amount paid on the demands of other creditors of the trust. To this motion there were attached as exhibits, and made part of the motion, copies of' the notes and indorsements thereon. The receiver filed an answer to this motion, alleging want of consideration moving to Kirby or the bank from plaintiff in error for the indorsement and guaranty of payment of the notes.. This, motion came on for hearing before the court. The evidence of both parties was introduced and the matter taken under advisement by the court for future determination.
Afterward, in the absence of counsel for plaintiff in error, the court made findings from the evidence offered, and entered an order overruling the motion and denying the application for allowance. From this order the present proceeding in error is prosecuted. No motion for a new trial of the motion or application for allowance was made or determined in the court below.
Upon this record and the briefs and argument of counsel arise two questions for our determination: First, will the order of the trial court be reviewed here, in the absence bf a motion for a new trial’s having been filed in and ruled on by the trial court ? Second,' if so, was there such an entire want of consideration moving to Kirby for his indorsement and guaranty found on the notes as to relieve him and his estate from liability thereon ?
The question of general importance in this case is, Will this court review the alleged errors arising upon the hearing and determination of this motion, in the absence of the filing and presentation of . „ . . . , ,. , , a motion tor a new trial to the court below, for the purpose of affording that court an opportunity for the correction of such errors ? As we shall presently see, this question has received consideration from the courts of other states having code provisions similar to our own, but we believe the. precise question has not heretofore been before this court for determination. It has long been the settled rule of this court, firmly held, that errors occurring upon the trial cannot be considered or reviewed by this court unless a motion for a new trial, founded upon and including such errors, has been presented to and overruled by the trial court and exception saved. (Decker v. House, 30 Kan. 614, 1 Pac. 584; Buettinger v. Hurley, 34 id. 585, 9 Pac. 197; Ritchie v. K. N. & D. Rly. Co., 55 id. 36, 39 Pac. 718.) Hence,'if the hearing and determination of the motion filed by plaintiff in error was á trial, in contemplation of law,’ and as that word is used in and defined by the code, it is evident that any alleged error occurring at such trial cannot be reviewed or corrected in this present proceeding.
Was it a trial and judgment,,or a hearing and order ? The word “trial” is defined by the code, as follows :
' “A trial is a judicial examination of the issues, whether of law or fact, in an action.” (Civil Code, §265; Gen. Stat. 1901, §4712.)
The derivation and definition of the word issues are found in article 14 of the code (Gen. Stat. 1901, §§4708-4711) :
“Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party, and controverted by the other. They are of two kinds : First, of law ; second, of fact.” (Id. §4708.) “An issue of law arises upon a demurrer to the petition, answer, or reply, or to some part thereof,” (Id. §4709.) “An issue of fact -arises : First, upon a material allegation in the petition, controverted by the answer; or, second, upon new matter in the answer, controverted by the reply; or, third, upon new matter in the reply wihich shall be considered as controverted by the defendant without further pleading.” (Id. §4710.)
The word “pleadings,” as used in section 261 (id. §4708), is defined by section 84 of the code (id.' § 4518) as follows :
“The pleadings are the written statements, by the • parties, of the facts constituting their respective claims and defenses.”
By the provisions of section 85 of the code (id. § 4519), all prior riiles as to pleadings in civil actions were expressly abolished. Section 86 (id. §4520) limits and defines the only pleadings permissible by the code, as follows :
‘ The only pleadings allowed are:- First, the petition by the plaintiff; second, the answer or demurrer by the defendant; third, the demurrer or reply by the plaintiff; fourth, the demurrer by the defendant to the reply of the plaintiff.”
Section 87 (id. §4521) prescribes what the petition must contain, as follows :
“The petition must contain : First, the name of the court and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word ‘ petition ’ ; second, a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition; third, a demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated ; and if interest thereon be claimed, the time from which interest is to be computed shall be also stated.”
A new trial is provided for and defined by the code as follows:
“A new trial is a reexamination in' the same court of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court.” (§306; Gen. Stat. 1901, §4754.)
We are of the opinion that the conclusions which naturally, logically and inevitably result from an examination and comparison of the different code provisions having reference to trials and new trials are these: First, the only pleadings possible under the code are the petition, answer, reply, and demurrer second, issues'can arise only upon pleadings; third, a trial is had only of issues; fourth, a new trial is had only of issues of fact after such issues of fact have been once determined by a referee, a jury, or a court; fifth, the issue of fact so to be reexamined upon a new trial must have arisen upon a material allegation in the petition controverted by the answer, new matter in the answer controverted by the reply, or new matter in the reply denied without further pleading.
Applying these conclusions to the case at bar, we find the paper filed by plaintiff in error lacking in all the essential elements of a petition. It is not styled a petition. There is therein no plaintiff and no defendant. It seeks no judgment of the court. It prays no relief against the defendant in the action. It requests merely the making of' an order by the court upon an officer of the court. It is in form and character of relief sought identical with that which is provided for by section 532 of the code (Gen. Stat. 1901, §5009) : “A motion is an application for an order, addressed to the court, or a judge in vacation, by any party to a suit or proceeding, or any one interested therein or affected thereby.”
The presentation and determination of this motion or application was a hearing, not a trial. In denying the relief sought, the court entered no judgment; that is, made no decision of an issue of fact, as that phrase is defined by the code. The court refused to direct the receiver to allow and make payment on the demand. This direction was an order. Section 538 of the code (Gen. Stat. 1901, §5015) provides : “ Every direction of a court or judge, made or entered in writing, and not included in a judgment, is an order.” The fact that the receiver filed what he styled an answer to this motion is immaterial. In the absence of this answer, all defenses to the motion were open to the receiver. It follows that, in the determination of this motion or application of plaintiff in error, the trial court rendered no decision on an issue of fact arising upon pleadings. Therefore, the filing and hearing of a motion for a new trial in the court below were unnecessary and not required to authorize a review of the errors alleged by this court. As supporting the conclusion reached, see Slobodisky v. Curtis, 58 Neb. 211, 78 N. W. 522 ; Harper v. Hildreth, 99 Cal. 265, 83 Pac. 1103 ; Beach v. Spokane R. & W. Co., 21 Mont. 7, 52 Pac. 560 ; Charles Stone, Assignee, v. Bank, 8 Ohio C. C. 636 ; First Nat. Banc v. Swan, 3 Wyo. 356, 23 Pac. 743 ; 2 Thomp. Trials, § 2716; 4 Encyc. Pl. & Pr. 853.
This brings us to a consideration of the matter upon its merits. From the evidence offered upon the hearing of the application, the court made certain findings of fact and conclusions of ° law based thereon which are incorporated in the order made. Among others was the following finding of fact:
“In 1893 John McDermott, with an attorney, came from Pennsylvania to Kansas for the purpose of looking after and making, settlement of his Kansas loans. While in Abilene, McDermott gave Kirby the original $2600 Carpenter note and mortgage, which, at that time, was in judgment in the aforesaid foreclosure proceedings; neither the note nor the mortgage was indorsed or assigned to Kirby by McDermott; both Kirby and McDermott knew the note and mortgage had gone to judgment, but neither spoke to the other about the same at the time of the transfer of the note, nor was there at that time or at any other time an assignment of the foreclosure judgment on said note and mortgage made by McDermott to Kirby ; at the same time that McDermott gave Kirby the said $2600 noté and mortgage, Kirby gave McDermott in exchange therefor three of the said C. W. Cooper notes of $1000 each, and at the same time Kirby indorsed said three notes and guaranteed the payment of the same on the back thereof. Thomas Kirby indorsed and guaranteed the payment of said three $1000 Cooper notes through his ‘friendship for McDermott/ whom he had known for thirty-five years.”
And as a conclusion of law based thereon, the court found the following :
“Thomas Kirby received no consideration for indorsing and guaranteeing the payment of the said three $1000 C. W. Cooper notes in controversy, and the same being without consideration, the receiver is not liable to McDermott for dividends thereon.”
It is insisted by counsel for plaintiff in error that this finding of fact and conclusion of law are wholly at variance with the testimony found in the record.' From an examination of the record we are inclined to agree with this contention. The only witnesses who testified upon the hearing were plaintiff in error, his attorney, Mr. Kittrell, who was present when the agreement was made between Kirby and plaintiff in error concerning the Cooper notes, and Thomas Kirby. Both plaintiff in error and Kittrell testified that the consideration for the indorsement and guaranty of payment of the Cooper notes by Kirby was the surrender of the second-mortgage lien of plaintiff in error on the property. Whatever may have been the value of this lien, much or little, it was, in our opinion, ample to sustain the contract of indorsement and guaranty made by Kirby upon the notes. The bank thereafter having received and disposed of the property, free and unencumbered from this lien, and Kirby and the bank being one in law, it follows that plaintiff in error was entitled to participate in the dividends paid by the trust in the hands of the receiver, unless some other and conflicting testimony is found in the record. The only witness who testified in behalf of the receiver was Kirby. His evidence, instead of being contradictory of and conflicting with that of plaintiff in error, was clear and positive that he indorsed, guaranteed and delivered the Cooper notes to plaintiff in error in consideration of the interest plaintiff in error held in the land represented by his second-mortgage lien, and not that he indorsed, guaranteed and delivered the notes to plaintiff in error through his friendship, as found by the court.
It follows that the order made in denying the relief sought by the motion is erroneous, and must be reversed, as not supported by the evidence, with directions to proceed further in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dostek, C. J. :
This action was a collateral attack by the National Bank of America on a judgment rendered appai’ently in its favor in the district court in a former case entitled Tucker v. Ericson et al.; whether in its favor or otherwise is immaterial to the question presented. The impeachment of the judgment was attempted'on the ground of lack of jurisdiction over the bank. The journal entry of judgment in the case mentioned was as follows :
“And it is further decreed, upon the application of the National Bank of America, and with ’the assent of the defendant John A. Nordstrom, that the amount due the defendant John A. Nordstrom on his lien be paid to the National Bank of America, of Salina, Kan., by the clerk of the district court, to be applied on its mortgage note, secured by a mortgage now of record on said premises, upon said National Bank of America filing in the office of the register of deeds of Saline county, Kansas, a full release of said mortgage and debt so far as it affects the lands hereinbefore described.”
The controversy in Tucker v. Ericson et al. related to real estate and claims of lien thereon. The pleadings in that case did not name the National Bank of America as a party, nor make any allegations in respect to its interests in the subject of the controversy, except that one of the defendants, after averring ownership in himself of the legal title to the land, alleged that he had executed a mortgage on it which, by assignment, had passed to the bank. No order to make the bank a party was made, nop was summons or other notice served on it. No evidence was introduced on the trial of the action to impeach the judgment tending to show that the bank had not intervened in the other suit and made application for, and procured, the order above quoted. Some slightly confirmatory evidence that it did so intervene exists in the record, but of this we take no note. The district court refused to disturb the former judgment, and accordingly error has been prosecuted to this court.
The principle that the judgments of courts of general jurisdiction will be presumed to be within the authority allowed, unless the record contains sufficient evidence to dispel the presumption, is one of universal application. (Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446; Haynes v. Cowen, 15 id. 637 ; Dexter v. Cochran, 17 id. 450.)
“The presumption, on collateral attack, that a judgment of a federal circuit court was within its jurisdiction is not overcome by the-fact that the transcript of the record, certified by the clerk to be a true copy of the record remaining in his office, does not include a summons to defendant, nor recite jurisdiction of his person.” (M’Connell v. Day, 61 Ark. 464, 83 S. W. 731.)
“A domestic judgment rendered by a court of general jurisdiction cannot be impeached by the parties to it, merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally conclusive oh the parties thereto, whether it recites or whether fails to recite, that jurisdiction has been acquired.” (McClanahan v. West, 100 Mo. 309, 13 S. W. 674.)
Many other cases are to the same effect, some of which are Applegate v. Lexington See. Mining Co., 117 U. S. 254, 269, 6 Sup. Ct. 742, 29 L. Ed. 892; Bush v. Lindsey, 24 Ga. 245, 71 Am. Dec. 117; Benefield v. Albert, 132 Ill. 665, 24 N. E. 634.
As to what limitations may circumscribe the rule above stated, or in what exceptional and anomalous cases it may not apply, we need not conjecture. It applies to this case. Here a pleading was filed' by a party to the action alleging the possession by the bánk of an interest in the subject-matter of the suit. The record is silent as to whether process of any kind was served on it, or whether a formal order admitting it as a party or requiring it to appear as a party was made. However, the record recites that it did appear as a party and that it procured an order in its behalf respecting the subject-matter of the litigation. Now, one may voluntarily appear to an action against him without the service of process on him, and one with interests to protect may intervene in controversies be tween other persons and be admitted as a party thereto, and in all such cases we think that, to say the least, if there is in the record of a court of general jurisdiction any pleadings connecting the outside party with the subject of the litigation, and averring a liability against him or an interest in his favor, and there further appears in the record a recital of his appearance in the case, jurisdiction over him will be presumed.
The judgment of the court below is affirmed.
All the Justices concurring.
Burch, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Pollock, J. :
C. D. Columbia, a locomotive fireman in the employ of the Missouri Pacific Railway Company, was killed by the derailment of his engine at the station of Langley, on said road. His widow, Jennie V. Columbia, in her own behalf and in behalf of her minor children, brought this action to recover damages on account of negligence of the company, resulting in his death. The acts of negligence charged were: (1) That the company negligently permitted several heavy grain doors to be. piled and to remain upon a raised platform at the west end of its depot at the station of Langley, near the track upon which the engine which Columbia was firing was scheduled to pass on the night of May 9, 1899, which doors, being there so negligently placed, were blown off, falling upon the track, derailing the engine, and causing the death; (2) that it was the duty of the company to provide a reasonably safe and clear track for the engine, but, in disregard of its duty in this respect, it negligently permitted said doors to remain upon the track after being blown there by the wind, thus obstructing the track and rendering it unsafe for use, the result of which negligence caused the death of Columbia. The general verdict was for the plaintiff. In addition to the general verdict, at the request of defendant, the jury made special findings of fact from the evidence, as follows :
“Q,ues. 1. How long had C. D. Columbia, deceased, been in the employ of the defendant company prior to May 9, 1899 ? Ans. About seven years.
“Q. 2. In what capacity had the said C. D. Columbia been employed by the defendant prior to May 9, 1899 ? A. Two years in roundhouse and five years fireman on locomotive.
“Q. 3. In his capacity as fireman on locomotive-engine, did his duty require him to pass and repass said station where said doors were piled many times day and night prior to the evening of May 9, 1899? A. Yes.
“Q. 4. If question No. 3 is answered in the affirmative, then state how frequently the said C. D. Columbia had passed said depot previous to the date of the said accident. A. According to evidence, about 600 times in the five years.
“Q,. 5. For what length of time' previous to the date of the said accident had said doors been piled on said depot platform ? A. Since the road had been in operation.
“Q,. 6. Were the same piled in a conspicuous place on the platform, where they could easily be seen by the said C. D. Columbia and other employees passing to and fro over the track ? A. Yes.
“ Q,. 7. Was it the usual and ordinary practice of the defendant company to pile grain doors upon the platform of their various stations in the manner in which the grain doors were piled at the station of Langley on the evening of May 9, 1899, and prior thereto ? A. No.
“Q,. 8, If you answer question No. 7 ‘no,’ or in the negative, then state what was the practice of defendant with reference to piling of grain doors along its line of road at other stations. A. At stations where there were elevators, near the elevator, and at the depot where there is no elevator.
“Q,. 9. How many grain doors were piled on the depot platform at Langley on the evening of May 9, 1899 ? A. From eleven to fifteen.
“Q,. 10. What were the dimensions and weight of said grain doors so piled on said platform of the depot at Langley on the evening of May 9, 1899 ? A. About five and one-half to six and one-half feet; weight, from 70 to 100 pounds.
“Q,. 11. How far from the track on which deceased was injured were the said grain doors piled on the •platform of said station ? A. From fifteen to twenty-two feet.
“Q,. 12. For how many years prior to May 9, 1899, had it been the custom to pile the grain doors on the depot platform at Langley, Kan.? A. From ten to fourteen years.
“Q,. 13. If you find that it had been the custom or practice of said defendant company to pile the grain doors on the depot platform at Langley, Kan., then state if there had ever before been anaccident similar to the one which resulted in the injury complained of, or any other accident by reason of the piling of grain doors on said depot platform ? A. No.”
“ Q,. 15. During the time that you find it has been the custom or practice of the defendant company to cause its grain doors to be piled on the depot platform at Langley, Kan., had any accident ever resulted on account of said grain doors being so piled? A. No.
“Q,; 16. Were one or more of said grain doors carried, by an unusual and extraordinary wind-storm or severe gale, from the place where they were piled onto defendant’s track? A.' By severe gale.”
“Q,. 20. Was said wind-storm of such a character as to blow off a bracket on said depot? A. No..
“Q,. 21. If you a'nswer question No. 20 ‘no,’ or in the negative, then state what damage, if any, was done to said depot by reason of said wind-storm. A. Two battens ripped off and two brackets damaged.”
“Q. 24. At the time said doors were blown onto said track, was there any agent or employee of the defendant company on duty in or about the said depot building? A. No.
“Q,. 25. Did any employee of the defendant company have any notice or knowledge that said grain doors or any thereof .had been blown onto the track previous to the injury complained of? A. No.”
“Q..27. How long did the said grain doors which were blown onto the track remain on the track before the accident occurred? A. No evidence to show.
“Q. 28. If there had been no wind-storm or severe gale on the evening of May 9, 1899, would the accident complained of have occurred? A. We believe not.
•“Q,. 29. Was the wind-storm or severe gale which carried the door from the pile,on the platform to.the track where the accident occurred the proximate cause of the accident? A. No.
“Q,. 30. If you answer the next preceding question ‘ no,’ or in the negative, then state what was the proximate cause of the accident. A. By piling grain doors on elevated platform in an exposed position.”
The defendant filed its motions for judgment in its favor on these findings, notwithstanding the general verdict, and for a new trial, which motions were overruled and judgment entered on the verdict in favor of plaintiff. Defendant brings error.
The single question for our consideration is, Was defendant entitled to judgment on the special findings made by the jury, notwithstanding the general verdict? It is obvious that, under the findings made, the second claim of negligence pleaded is eliminated from the controversy, for, the burden of proof resting upon the plaintiff to prove the acts of negligence charged, and there being, a3 found by the jury, “no evidence to show” how long the grain doors remained upon the track before the engine arrived at the place of derailment, negligence in permitting an obstruction to remain upon the track was not proved. As to the remaining act of negligence charged, on the findings made, a much more grave and serious controversy arises.
From the findings it is learned that the deceased had been employed by the company as locomotive fireman on its line of railway for five years, during which time he had passed the station of Langley about 600 times. It was the custom of the company at stations where no elevator was located to pile the grain doors at the depot. There was no elevator at Langley. The company had piled the grain doors upon the depot platform at this station since the construction and operation of the road, a period of some ten to fourteen years. There were, on the night of the injury, from eleven to fifteen of these doors, in size about five and one-half by six and one-half feet in dimensions, in weight from 70 to 100 pounds, piled in the usual place and manner about fifteen to twenty-two feet from the track. During all the years in which the road had been operated these grain doors had been so piled and no accident had resulted therefrom. On the night in question a severe gale blew one or more of them from the place where located upon the track, resulting in such obstruction as to derail the engine, causing the death of deceased. Had the severe gale not blown, the injury complained of would not have happened. The findings so made up to this point are without doubt clearly in favor of defendant, but, in respect to questions numbered 29 and 30, the jury found that the piling of these grain doors in an ex posed position upon the elevated platform was, and the severe gale which blew at that time was not, the proximate cause of the derailment of the engine.
Upon these findings the learned counsel for plaintiff in error make two contentions: First, that the deceased must have known of the practice of piling these grain doors at this station, and, knowing this fact, by continuing in the employ of the company without protest he assumed the risk incident thereto, if any might have been foreseen; second, that the place and manner of keeping the grain doors, taken in connection with all the findings in the case as made by the jury, do not constitute actionable negligence against the company; and the jury, having found that two distinct, successive causes, independent in their operation, contributed toward the injury complained of by plaintiff, it became a matter of law for the court to declare which of the two distinct, successive, independent causes was the direct and proximate cause of the injury, and that this question of law was not settled and concluded by the findings of the jury as to the proximate cause of the injury.
To the first proposition we cannot agree. It was not shown that deceased had auy actual knowledge of the place and manner in which the doors were' piled. Nor was it shown that it was any part of the duty of a locomotive fireman to observe or know the manner of piling grain doors at the stations along the line of road, and there is nothing in the nature or character of his duties which would necessarily attract his attention to such objects. He was not, therefore, required to know such fact. Again, assuming for the purpose of the argument that the deceased actually knew of the location of these doors at the station of Langley, or that, from the frequency with which he had passed this station in the five years of his service as fireman, with these doors placed in plain and unobstructed view, he must have known of their location and existence-, yet the argument must fail, because it was not shown that deceased knew, or should have known, that the manner or place of piling the doors portended danger to him. 'He had the right to assume that the company, in the exercise of a superior knowledge in the performance of its duty to furnish a clear and reasonably safe track over which to run the engine, would not place these doors in such position as to expose him to unnecessary danger. (T. H. & I. Ry. Co. v. Williams, 172 Ill. 379, 50 N. E. 116, 64 Am. St. Rep. 44; Dickson v. Omaha & St. L. R’y. Co., 124 Mo. 140, 27 S. W. 476, 25 L. R. A. 320, 46 Am. St. Rep. 429 ; Tutrix v. Sellers & Co., 39 La. Ann. 1011, 3. South. 363, 4 Am. St. Rep. 256 ; L. R. M. R. & T. Ry. Co. v. Leverett, Admr., 48 Ark. 333, 3 S. W. 50, 3 Am. St. Rep. 230; St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, 16 Pac. 146, 1 Am. St. Rep. 266; A. T. & S. F. Rld. Co. v. Rowan, 55 id. 270, 39 Pac. 1010.)
The remaining proposition is one more difficult of solution. The existence or non-existence of negligence in any given case, wherein the facts are disputed, is a question of fact to be determined by the jury. When the facts are undisputed, and only one inference or deduction is to be drawn from them, a question of law is presented for the court. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.) However, it is not every act of negligence that furnishes a basis for recovery of damages sustained. In case of Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, this court held:
“Negligence, to be actionable, must result in dam age to some one, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a-man of ordinary intelligence and prudence, and be the probable result of the initial act.
“The allegation of negligence is not sustained by evidence of acts resulting in damage to another, which result is not the reasonable and ordinary outcome of such acts, and which would not have been foreseen or anticipated by the exercise of ordinary prudence and foresight under all the circumstances of the case.
In the opinion, quoting from City of Allegheny v. Zimmerman, 95 Pa. St. 287, 40 Am. Rep. 649, it was said :
“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 not the proximate cause of an accident unless, under the circumstances, the accident was a probable as well as natural consequence thereof- — -one which might reasonably have been foreseen by a man of ordinary intelligence and prudence.” (Huber v. The La Crosse City R. Co., 92 Wis. 636, 66 N. W. 708, 31 L. R. A. 583, 53 Am. St. Rep. 940.)
“It is not enough that the defendant has been negligent, unless that negligence has contributed, to the injury of the plaintiff.” (Sowles v. Moore, 65 Vt. 322, 26 Atl. 629, 21 L. R. A. 723.)
While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened to concur with something extraordinary and therefore not likely to be foreseen, he will not be answerable for the extraordinary result. (Schaeffer v. Jackson Township, 150 Pa. St. 145, 24 Atl. 629, 18 L. R. A. 100, 30 Am. St. Rep. 792; Milwaukee etc. Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Hubbell v. City of Yonkers, 104 N. Y. 434, 10 N. E. 858, 58 Am. Rep. 522 ; Washington v. B. & O. R. R. Co., 17 W. Va. 190 ; Block v. Milwaukee Street R. Co., 89 Wis. 371, 61 N. W. 1101, 27 L. R. A. 365, 46 Am. St. Rep. 849 ; High Line Canal Co. v. Westlake, 23 Col. 26, 46 Pac. 134; Lewis v. Flint & Pere Marquette Ry. Co., 54 Mich. 55, 19 N. W. 744; Daniels et al. v. Ballentine et al., 23 Ohio St. 532, 13 Am. Rep. 264; Henry v. The St. Louis, Kansas City & Northern Railway Company, 76 Mo. 288, 43 Am. Rep. 762.)
In cases of this character where two distinct, successive causes, unrelated in operation, to some extent contribute to an injury, it is settled that where there .is an intervening and direct cause, a prior and remote cause cannot be made the basis for recovery of damages, if such prior cause did no more than furnish the condition, or give rise to the occasion, by which the injury was made possible. It seems to be sound in principle and well settled by authority that where it is admitted or found that two distinct, successive causes, unrelated in their operation, conjoin to produce a given injury, one of them must be the proximate, and the other the remote, cause of the injury, and the court, in passing on thé facts as found or admitted to exist, must regard the proximate as the efficient and. consequent cause, and disregard the remote cause.
In Pass Ry. Co. v. Trich, 117 Pa. St. 390, 11 Atl. 627, 2 Am. St. Rep. 672, it was held :
“When, in an action for negligence, the fact is undisputed in the evidence that the injury received was inflicted by an intervening agency over which the defendant had no control, the question of remote or proximate cause must be determined by the court, and the jury instructed accordingly.”
In Herr v. City of Lebanon, Appellant, 149 Pa. St. 222, 24 Atl. 207, 16 L. R. A. 106, 34 Am. St. Rep. 603, it was held :
“If two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. In such case, the law regards the proximate as the efficient and consequent cause and disregards the remote.”
In Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 27 L. R. A. 583, 63 Fed. 400, it was said.:
“The proximate cause of an Injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” (Bleil v. Railway Co., 98 Mich. 228,57 N. W. 117 ; Insurance Co. Boon, 95 U. S. 117, 24 L. Ed. 395.)
Applying these principles to the case at bar, what conclusion must be reached therefrom? We find the grain doors in question piled fifteen to twenty-two feet from the track; they weighed 70 to 100 pounds each ; they were five and one-half by six and one-half feet in dimension ; with battens nailed across the ends, they were two inches in thickness; there were eleven to fifteen of them, thus making a pile of the height of twenty-two to thirty inches; they were piled against the depot' building. In this place and manner the same kind of doórs had been placed from ten to fourteen years prior to the injury, and no accident was caused thereby. That the placing of these doors in such position furnished the occasion or condition which rendered the accident possible is not to be disputed, and cannot be denied. That is to say, if these grain doors had not been there on the depot platform the accident which did happen would not have happened ; the injury would not have occurred. But can it be reasonable and successfully maintained that the employees of the company, in the exercise of that reasonable care and precaution required for the safety of those operating the engines of the company to keep the track free of obstructions, should have foreseen, anticipated, or even imagined that, from the operation of any ordinary natural cause, these doors, or one or more of them, might be lifted and carried from the place where located and lodged upon the track in such manner as to obstruct and render dangerous the operation of the road or to cause the derailment of an engine? We think not. On the night in question a severe gale blew. A gale is defined as a wind having a velocity of forty to seventy miles an hour. (Stand. Diet.) Webster defines a heavy gale as a wind having a velocity of eighty miles an hour. The jury found, and must of necessity have found, under the evidence, that the accident would not have occurred in the absence of this severe gale.
In Milwaukee etc. Rly. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, Mr. Justice Strong, in delivering the opinion of the court, said :
“But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the .injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. . . . We do not say that even the natural and probable consequences of a wrongful act or omission are in,all cases to be chargeable to the misfeasance or non-feasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong-must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.”
The trial court instructed the jury as follows:
“The jury are instructed that by the proximate cause of an injury is meant that cause which, in the natural and continuous sequence, unbroken by any intervening cause, produces the injury, and without which the result would not have occurred.
“The jury are instructed that negligence is not the proximate cause of an accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man exercising reasonable and ordinary care. It is not enough to prove that the accident is the natural consequence of some negligence. It must also have been the probable consequence of the special act of negligence alleged in plaintiff’s petition ; and before you can find a verdict for the plaintiff herein, you must find from the evidence that the piling of the said grain doors upon the platform of defendant company at Langley, Kan., was negligence, and that the defendant company, in the exercise of reasonable and ordinary care, should have foreseen that the piling of said grain doors upon the platform at Langley, Kan., would in all probability cause an injury similar to that which did happen on the evening of May 9, 1899, and which resulted in the death of C. D. Columbia.
“You are instructed that that which never happened before, and which in its character is such as not naturally to occur to prudent men, to guard against its happening at all cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against the remote contingency.”
Measured by authority, determined upon principle, or viewed in the light of the instructions of the court to the jury, which of the two distinct, successive causes operating independently of each other to pro- cl-uce the injury, that is, the place and manner of piling and keeping the grain, doors, or the severe gale, must be held to have been the consequent, efficient and proximate cause of this injury? Manifestly, it must be said that the place and manner of piling and keeping the doors did no more than furnish the condition, afford the opportunity, for the accident which occurred. The operation of the successive, wholly independent and unrelated cause and intervening agency, the severe gale, was the consequent, efficient and proximate cause of the grain doors’ being upon the track, which resulted in the derailment of the engine and damage to plaintiff.
It follows that, under the charge of the court to the jury, and the .findings of fact as made by the jury, the general verdict should have been in favor of the defendant. The jury failing in this, the trial court should have sustained the motion for judgment on the findings made, notwithstanding the general verdict. The judgment must therefore be reversed, and the cause remanded'with instructions to enter judgment on the findings in favor of defendant.
All the Justices concurring. | [
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