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Per Curiam:
Two promissory notes were executed svidencing a debt due from their makers, secured by separate mortgages. At the same time a third mortgage was executed on other property to secure these two notes. Separate actions were brought to foreclose the first two mortgages. These actions proceeded to judgment of foreclosure and for a sale of the respective parcels of real estate. In each of the actions, after a sale of the real estate, there remained a deficiency judgment. Thereupon this action was brought by the judgment creditor, setting up the fact of the former actions, the amount of the deficiency judgments, the giving of the third mortgage, and the petition alleged :
“That said mortgage was given to secure any deficiencies there might remain on the aforesaid notes, after the judicial sale of the properties and tracts described in the mortgages foreclosed, as hereinbefore set forth.”
The petition contained the prayer that the plaintiff might be decreed to have a first lien on the real estate described in the mortgage to secure the amounts of such deficiencies, and for judgment for the sale of the real estate, but did not contain a prayer for a personal judgment for the amounts of such deficiency judgments. The defendants filed a demurrer on the sole ground that the petition did not state facts sufficient to constitute a cause of action, which was sustained by the court, and this action is now here for the purpose of reviewing this ruling.
The court was in error in sustaining the demurrer. While the prayer of the petition did not ask a personal judgment, yet the facts stated were sufficient to entitle the plaintiff to that much relief, at least.
Further, we are of the opinion that under the allegations of the petition the plaintiff was entitled to a foreclosure of the mortgage. The allegation which we have quoted above is clear and distinct that the mortgage was given to secure these deficiences sued for. But it is claimed that, inasmuch as the mortgage contains the provision that it was given to secure the notes, these allegations áre contradictory in their character, and, the rule of pleading being that contradictory allegations must be taken most strongly against the pleader, the construction must be that the mortgage was given to secure the notes and not the deficiency judgment. We hardly think the allegations are inconsistent. It would be a very natural and reasonable thing for one seeking to secure the balance of a judgment remaining unpaid after a foreclosure of a mortgage securing notes to speak of the same as being given to secure the notes. While this unpaid balance is now in judgment, at the same timé it is no great misnomer to speak of the same as due on the notes, and we might reasonably expect it so to be described, especially when mentioning the matter long before any judgment was rendered.
It is also suggested that the action cannot be maintained for the reason that the plaintiff should have combined it .with the former ones, and, having failed to do so, and thereby splitting up his causes of action, he cannot now maintain this one. Granting, for the purpose of the argument, that the demurrer raises this question, we think the point not well taken. It may be doubted whether, where a mortgage is given for the purpose as alleged in this petition, an action may be maintained to foreclose the same prior to the ascertainment of the deficiency. A defendant in such an action might well urge that it should not be maintained until it was ascertained that there was a deficiency. Admitting, however, that all of these actions might have been joined, still we do not think any of them were defeated by their not being so joined.
We are of the opinion that the court should have overruled the demurrer and taken further proceedings in the case, and for this purpose the judgment will be reversed and the case remanded.
Doster, O.J., Johnston, Cunningham, Ellis, JJ. | [
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The opinion of the court was delivered by
Johnston, J.:
On December 17, 1898, Nellie Bales ■istituted a bastardy proceeding in the name of the’ .'late against Albert Baker before a justice of the peace of Sedgwick county. Baker was arrested and brought before the justice, and upon payment of eighty dollars, which was accepted by the prosecutrix, she acknowledged that provision for the maintenance of the bastard child had been made to her satisfaction, and that' admission was formally entered upon the docket of the justice and the prosecution dismissed. After the settlement and discharge, and on July 1, 1899, a second prosecution was begun by the prosecutrix against Baker in the Wichita city court, in which the county attorney participated, and the defendant was recognized to appear at the next term of the district court for trial. In the district court the defendant set up the first proceeding and discharge as a bar to the maintenance of the second. The state in reply admitted the institution of the first prosecution, the payment of the money by the defendant, the acknowledgment by the prosecutrix of satisfactory payment, and that her admission had been entered of record in the docket of the justice; but it was alleged that the county attorney did not participate in that prosecution and did not consent to the discharge of the defendant. - It was also alleged that at the time of the discharge the prosecutrix was a minor of the age of seventeen years, and that after she became eighteen years of age she disaffirmed her action in the first proceeding and immediately brought the second one. The defendant moved for judgment in his favor on the pleadings, which motion was allowed and the defendant discharged.
The question presented for determination in this review is whether the first prosecution, the admission by the prosecutrix that satisfactory provision had been made for the maintenance of the child, and the entry of record of the admission, together with the discharge of the defendant, are a bar to further prosecutions. The statute provides that “The prosecuting witness may at any time before final judgment dismiss such suit, if she shall enter of record an admission that provision for the maintenance of the child has been made to her .satisfaction.- Such entry shall be a bar to all other prosecutions for the same cause and purpose.” (Gen. Stat. 1901, § 3835.) It is conceded that, under the provision quoted, the first prosecution, the record admission of the prosecutrix and the discharge of the defendant constitute an effectual bar to this prosecution, unless the absence of the county attorney and the minority of the prosecutrix save it from the bar'. The contention on behalf of the state is that, under the general provisions of the statute, the contract or release of a minor is not binding if it is disaffirmed after majority is reached, and that the entry of satisfaction by a minor ought not to bind the state, since neither the county attorney, nor any officer of the state, consented to the steps taken in the first proceeding. /
It will be observed that the bastardy proceeding is wholly statutory, and in the statute we must find the solution of the questions raised by the state. As has frequently been held, the proceeding authorized by the statute is not strictly civil or criminal, but partakes somewhat of the nature of both. It has a procedure peculiar to itself, and, hence, the general provisions of the civil and criminal codes do not apply, except so far as they are made applicable by the statute itself. (Gen. Stat. 1901, §§ 3320-3341.) Under the statute, no one can originate the proceeding except the mother of the bastard child, and she cannot do so unless she is an unmarried woman. . No distinction is made in the statute between adults and minors, nor does it provide that a minor shall be represented by next friend or guardian. While the proceeding is brought in the name of the state on relation of the mother, and the county attorney is required to assist in the prosecution, he cannot institute the proceeding on his own motion, nor is his consent required to a settlement and dismissal of the prosecution by the mother. The statutes of some of the states provide that a settlement and dismissal by the prosetrix is not effectual without the consent of some public officer. Instead of such a limitation, our statute leaves it wholly to the option of the mother whether a proceeding shall be commenced at all, and she is given the exclusive discretion and power to terminate the prosecution. In view of the interest which the public has in the provision that is made for the support of bastard children, it would seem to be a prudent provision to give some public officer supervisory control of such proceedings, but that is a matter for the legislature and not for the courts. Whether minor or adult, the mother may begin the proceeding without the consent of any one, and may obtain a judgment without regard to whether she has reached majority or not. The minority of the prosecutrix would not be a good defense to a proceeding brought by her, and that being true, a judgment rendered in such case that is free from fraud is necessarily binding on the plaintiff.
The judgment of dismissal based on an admission of record of the prosecutrix is a judicial proceeding, and can no more be disregarded than a judgment against the defendant making an award for maintenance and education and fixing the times and terms of payment. The statute expressly provides that any unmarried woman who is the mother of a bastard child may begin the proceeding, and may dismiss it if she shall enter of record that provision for the maintenance of the child has been made to her satisfaction. Such an entry and dismissal made at any time before final judgment are “a bar to all other prosecutions for the same cause and purpose.” No exception is made in the statute of proceedings brought by minors, and the court would not be justified in engrafting such a provision, or one requiring the consent of the county attorney, upon it. . (Gleason, Sheriff, v. Comm’rs of McPherson Co., 30 Kan. 492, 1 Pac. 384, 2 Pac. 644.) Of course, if the admission and dismissal had been obtained by deception and fraud they would have no binding force; but here no fraud or overreaching of the prosecutrix is alleged, and, as we have seen, the only ground for ignoring and avoiding the admission and dismissal was the minority of the prosecutrix and the absence of the county attorney. To sustain its contention, the state relies largely on State v. Baker, 89 Iowa, 188, 56 N. W. 425, in which it was held that a settlement made by a minor was not a bar to an action subsequently brought by the state to recover the support for the bastard child. In that case, however, the agreement was not made in connection with the prosecution. It was an agreement out of court by the mother that she would not assert that the defendant was the father of the child, and it was alleged that the agreement was obtained by fraud. Under the statute of Iowa any one may institute the proceeding, but no provision is made by which the mother can control or terminate the prosecution. Since no action was pending when the attempted settlement was jnade by the mother, and since the statute of Iowa did not, as in this state, authorize the mother to terminate the proceeding, and provide that the dismissal would constitute a bar to other prosecutions, the case is of little, authority here. In support of the view that the first prosecution, including the dismissal, is a bar to the second, we cite State, ex rel. Creighton, v. Carlisle, 52 N. E. (Ind.) 711; Commonwealth v. Weaver, 9 Pa. Dist. 427.
The judgment of the district court will be affirmed.
Poster, C.J., Cunningham, Ellis, JJ., concurring. | [
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Error from Jackson district court. | [
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The opinion of the court was delivered by
Cunningham,, J.:
Plaintiff in error brought this action against the defendant in error on a note given by her and in replevin for the recovery of certain personal property mortgaged to secure the same. The property was delivered to the plaintiff. No redelivery bond was given, and it was sold after due advertisement. Plaintiff answered with a general denial, and also specifically alleged that the note sued on was the last of a series of transactions running through several years, in which transactions sufficient usurious interest had been paid fully to discharge the indebtedness sued on, and contained this further allegation :
“That of the consideration expressed in said note of $199.23, executed October 30, 1898, and to secure which the mortgage in this action was given, $195.44 was for excessive and usurious interest theretofore charged to and exacted from the defendant by said plaintiff. ” •
A motion was made by the plaintiff to strike out this allegation because it was a conclusion of law and not a statement of fact. , This motion was overruled., but at -the same time the court required the defendant to set out copies of the several notes evidencing the prior transactions, which was done. The refusal to strike out this allegation constitutes the first ground of error. Technically, perhaps, this should have been stricken from the petition, but no material error arises from' the court’s refusal to do so. The facts were finally all presented upon which this legal conclusion was based. This being an action in replevin, probably nothing more that a general denial was necessary.
The issues having been joined, a jury trial was waived by both parties, and the case referred to a referee, who, having qualified, proceeded in accordance with the order of the court to hear and determine the facts. His conclusions were against the defendant. Whereupon she filed her motion for a new trial before the referee, and, also, her exceptions to the report, based upon various claims of erroneous construction of the evidence introduced before him, and of erroneous deductions from this evidence. The referee having reported all of the proceedings before him to the district court in due time, the plaintiff filed its motion for judgment on the report, and the defendant asked that the report be set aside. These motions were continued by the court, and leave given to the defendant to withdraw his bill of exceptions for the purpose of amendment and certification. Subsequently the case was referred back to the referee for additional findings. This was done-, and at the same time an amendment to the exceptions was made and filed, such amendment consisting of the evidence heard by the referee. The two motions on behalf of the respective parties were again presented to the court. Whereupon a motion of the defendant to set aside all of the findings of the referee was sustained, and the case subsequently taken up and tried to the court without the intervention of a jury, without objection on the part of either party.
The evidence introduced in this trial is not preserved in the record. A meager and brief abstract of portions of it appears, but very material and controlling testimony does not appear. The court made very exhaustive and full findings of fact, the record showing that each and all of these findings were supported by abundant evidence..
It is urged that the court erred in refusing to render judgment for plaintiff upon the original report of the referee, and in referring the case back for the purpose of additional findings, and this, because no sufficient bill of exceptions was filed. A bill of exceptions, however, was filed. It seems to have been incomplete in some more or less material matters and lacked the certification of the referee. The amendment which was made in no way enlarged the scope of the original bill of exceptions; it simply made clear and •intelligible the grounds already set forth. The office of the bill of exceptions is to express the dissatisfaction of the excepting party with the report of the referee and the reasons for such dissatisfaction. We think this was fairly accomplished by the bill as originally filed. It gave the court, jurisdiction to investigate these objections, and to require the referee to make it more clearly speak concerning the things already found therein. The referee is an officer of the court, and, as such', is under its lawful supervision for the purpose of the accomplishment of justice in the matter which has been referred to his consideration. If, upon proper exceptions, it reasonably appears that his report is not sustained by sufficient evidence, or is against the evidence, it becomes the duty of the court to set it aside. In general, the findings do not become binding until they have received the approval of the court. (17 Encyc. Pl. & Pr. 1054.) Like the granting-of anew trial, greater latitude must be given and presumptions indulged in, in support of the action of the court, where the'report has been set aside, than where the contrary action has been had. It does not appear from the record upon what ground the court concluded to set aside the referee’s report. We must assume that it was for good and sufficient reasons. We find no error in this matter.
Considerable space is given in the argument to propositions arising upon the evidence. If for no other reason, we cannot go into this, as the evidence is not fully preserved. •
It is further urged that certain items of evidence were introduced, by the defendant over the objections of the plaintiff. One of these related to the rate of interest charged, oral testimony concerning which plaintiff claims was not the best evidence. Another is as to proof of certain items which were not pleaded in the answer. Another is as to the value of the use of. the property taken as an element of damage, it not being claimed in the answer. It is sufficient to say as to all these claims that no proper objection appears to have been made to the introduction of such evidence.
The personal property taken consisted of two mares, three cows, one heifer, and some hogs. In estimating the damage to the defendant by. the wrongful taking of this property, the court added to the value of the use of the usable property its usable value from the time of taking to the date of judgment, and to the value of the rest of the property interest thereon for the same time. It is claimed that the usable value should not have been included in the damages, but rather the interest on the value of all property at the time of the taking. The court adopted the proper rule. (Civil Code, § 185, Gen. Stat. 1901,$ 4619 ; Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282 ; Werner v. Graley, 54 id. 383, 38 Pac. 482.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Error from Graham district court. | [
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Appeal from Cherokee district court. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action brought by Patrick and Eliza Logan, as parents and next of kin, to recover damages by reason of the death of their son, William T. Logan, who was killed by the cars of the Atchison, Topeka & Santa Fe Eailway Company, in the company's yards at Arkansas City. They had judgment in the court below.
The deceased was a switchman. He went between a coal-car and an oil-tank car to uncouple them while they were in motion. Standing on a brake-beam, and while the cars were being pushed by a switch-engine at a speed of about six miles per hpur, one Cooper, foreman of the switching crew, without receiving any signal from Logan, motioned to the engineer to stop. This was done, and a few moments later it was discovered that Logan had been run over. Four or five minutes after the injury, Logan made a statement in the presence of Cooper and the engineer. He said that “he tried to raise the lever on this side, and he could not, and when he went in between them to get to the one on the opposite side, he was jerked off.” This testimony was offered on behalf of plaintiff below, and received over the objection of the railway company. It was material:
It is necessary, to a proper understanding of the facts which led up ’to this statement of the deceased, to set out the testimony of the witness Cooper, who detailed them :
“Ques. Then, I-understand you to say that, immediately after the train had passed over him, you and Mr. Dowhen pulled Mm out from under the cars? Ans. Yes, sir.
“Q,. What did you do with him ? A.' Laid him on the ground near by.
“Q,. Did the deceased, Logan, make any statement at that time, as to how the injuries occurred? A. He did.
“Q.‘ How soon after he received his injuries did he make this statement ? A. About' four or five minutes.
“Q. And where'was it made? A. He was lying there on the ground at the time.
“ Q. Was he in plain view of the car that had run over him? A. Yes, sir.
“Q,. About how many feet away from the place where he was hurt? A. About two or three feet.
“Q,. Who was present? A. No one but myself, at the time he said he wanted to make the statement.
“ Q. Who was present at the time he made the statement? A. Engineer, Mr. Edward German.
“Q. Did Mr..Logan-die soon after the statement was made? A. Yes, sir.
“Q. How soon afterwards? A. I do not know the exact moment he died ; about thirty minutes.
“ Q. Now, you may state what he said relative to how he received the injuries. A. He told me to call some one, that he wanted to make'a statement, and I backed Mr. German down over the switch with the string of cars, and gave him the signal to come ahead, to get him up closer to me, so I could call him ; and I called Mr. German, and he came down and asked Mr. Logan what it was he wanted, and Mr. Logan said he wanted to say that he tried to raise the lever on this side, and-he could not, and when he went in between them to get to the one on the opposite side, he was jerked off.’’
The statement of Logan was received in evidence as a part of the res gestx, and its admissibility is defended by counsel for defendant in error on that ground. Counsel on the other side contend that the statements of the injured person, made five minutes after the accident, were but the narrative of a past transaction not accompanying the principal fact, and hence not receivable in evidence.
There is much conflict in the authorities respecting the admissibility of such declarations, but we are not called on by the circumstances of this case to decide the question on the objection made to the evidence by the railway company as above stated. Here the ac count given by the deceased respecting the manner of his injury was preceded by much deliberation. When lying on the ground, with no other person than Mr. Cooper present, he said he desired to make a statement. He requested Cooper to call some one, and delayed making any communication until Mr. German, the engineer, backed his engine down over a switch and then came forward near the place where he (Logan) was lying. Upon the approach of the engineer, the latter asked him what he had to say. His statement was then made in response to this inquiry.
The element of spontaneity is the controlling feature in the adjudged cases holding declarations made immediately after an injury of this kind to be admissible. Lapse of time is important only as affecting the spontaneity of the words uttered. An ejaculation, an intuitive explanation of a hurt, generated by feelings of excitement, are properly included within the res gestee, but a statement made after apparent deliberation, indicative of ruminating delay on the part of the narrator over the matter narrated,■removes what is said to the catagory of self-serving declarations which are inadmissible.
In Travelers’ Ins. Co. v. Sheppard, 85 Ga. 751, 776, 12 S. E. 18, 27, it was said:
“That they [the words spoken] shall be or appear to be spontaneous is indispensable, and it is for this reason alone that they are required to be speedy. There must be no fair opportunity for the will, of the s£>eaker to mold or modify them. His will must have become and remained dormant, so far as any deliberation in concocting matter for speech or selecting words is concerned. . . . His declarations must -be the utterance of human nature, of the genus homo, rather than of the individual. Only an oath can guarantee individual veracity. * . . True, the verbal deliverance in each instance is that of an individual person. But if the state of his mind be such that his individuality is for the time being suppressed and silenced, so that he utters the voice of humanity rather than of himself, what he says is regarded by the law as in some degree trustworthy.”
Logan said nothing about the manner of his injury to Cooper and Dowhen, who pulled him from under the cars. This may be explained, however, by considering the pain he was suffering at the time. Afterward, when Cooper alone was present, he requested that another person be called to hear his statement. He was evidently at that time as physically able to say to Cooper what he afterward said to Cooper and German. The desire that more than one persbn should hear his explanation of the cause of his injury, and holding it back until two were present, showed a calculating mind — a preliminary pondering over the subject — a reflective, thoughtful purpose to make testimony favorable to himself, postponed with method until the number of witnesses desired could attest his words. There was wholly lacking in the circumstances of the declaration that which showed an “ utterance of human nature rather than the individual.” ( Texas & Pacific Ry. Co. v. Robertson, 82 Tex. 657, 17 S. W. 1041; McGowen v. McGowen, 52 id. 657 ; Pilkinton v. Railway, 70 id. 226, 7 S. W. 805 ; Kennedy v. Roch. C. & B. R. R. Co., 130 N. Y. 654, 29 N. E. 141; Under. Ev. § 57.)
The rule in this state relative to declarations forming part of the res gestse is found in The State v. Montgomery, 8 Kan. 351, and Tennis v. Rapid Transit Rly. Co., 45 id. 503, 25 Pac. 876.
The fact of Logan’s death soo,n after the statement was made cannot affect the competency of the testimony. It was not a dying declaration, because it was not shown that the deceased was apprehensive of impending death. Besides this, dying declarations, except as they are so declared by statute, are not admissible in civil actions. (2 Tayl. Ev. [Chamb. Notes] 4703; The State v. O’Shea, 60 Kan. 772, 777, 57 Pac. 970.)
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The overruling of the motion for a new trial is the only action of the trial court assigned as error. In support of this several reasons are urged, all of which go either to the jurisdiction of the national council over the plaintiff in error, and the offense charged against him, or to the regularity of the proceedings had. We find it more convenient to discuss these matters generally rather than specifically and seriatim.
The court has announced in Reno Lodge v. Grand Lodge, 54 Kan. 73, 80, 37 Pac. 1003, 26 L. R. A. 98 :
“Where the question involved is one of policy or discipline, courts will not ordinarily interfere, but will leave all such questions to be settled in the manner pointed out by the regulations of the order. Such societies are formed by the purely voluntary association of individuals for the accomplishment of such objects as they have mutually agreed on.”
The law is further laid down in the syllabus of the case as follows:
“Courts will not undertake to direct or control the internal policy of such societies, nor to decide questions relating to the discipline of its members, but will leave the society free to carry out any lawful purposes in its own. way, and in accordance with its own rules and regulations.”
The application of this rule to this case leaves us but to inquire whether there was a legal by-law applicable to the case of the plaintiff in error, whether the procedure by the executive committee in the trial of the plaintiff in error was in good faith, in accord with such by-law, and not violative of the law of the land. We conclude that the by-law quoted in the statement of facts authorized the trial of the plaintiff in error for the offense charged before the executive committee. While other by-laws provide for the trial of other offenses committed by members of the order before a subordinate council, yet the terms of the quoted by-law seem clearly to commit to the executive committee, or the national council, the trial of the offense charged against the plaintiff in error.
It is urged that the notice served on him was ineffectual to confer jurisdiction, for the reason that it required him to appear forthwith, and because no copy of the charges accompanied the citation, as provided in one of the by-laws regulating the trial and procedure. It appears, however, that plaintiff did appear in obedience to the citation and made no objection to proceeding with the trial, except to urge the want of jurisdiction in the executive committee so to proceed, because of the want of a by-law conferring upon it such jurisdiction. He did not suggest that he was not fully informed as to the nature and character of the accusation against him, or that he desired further time, but, on the other hand, intimated that he was fully informed of the charges preferred, and did not wish for further time. We think that by so doing he waived both of these objections.
It is further urged that no proof was introduced against him on this investigation. The evidence on the trial in the district court .shows that plaintiff in error freely admitted that he signed and published the circular. That being the offense with which he was charged, his admission waived further proof. It was proof.
It is further urged that, as the circular was an attack on the management of the affairs of the order by the national council, and as the executive council was largely responsible for that management, such charges were essentially an accusation against the executive committee, and, hence, to permit the executive committee to try the question of the guilt or innocence of the plaintiff in error was allowing a person to adjudge his own case, which is against public policy. It might be a sufficient answer to this to say that the trial took place under the provisions of a by-law of the order to which plaintiff in error, by becoming a member thereof, fully assented, and as such falls within the principle announced in Reno Lodge v. Grand Lodge, supra. But, further than this, the offense charged against the plaintiff was one against the order fundamentally, and the aspersions contained in the circular were directed 'to the subversion and destruction, or, at least, to the serious injury, of the order. It was the clear duty, under the rules of the order, for the executive committee, which in the interim of the sessions of the national council was charged with the protection of the interests of the order, to take such steps as would preserve the integrity of the society, although, incidentally in such proceedings, the correctness, or even honesty, of the actions of the committee might be drawn in question. The ultimate fact to be tried was whether plaintiff had violated the rules of the order in his effort to rectify the abuses which he claimed had been committed. The by-laws provide abundant means by which he might have presented and had investigated the charges which he made, other than those he used.. Instead of pursuing these, he chose to pursue others which were obnoxious to the by-laws of the order. We think the executive committee had a clear right to inquire into these unauthorized proceedings. It was not investigating the truth or falsity of the charges made by plaintiff in error. Their truth was not a justification for him. If he desired an investigation, he should have followed the law, not nullified it.
Upon the trial, the executive committee indefinitely suspended the plaintiff in error, and between the time of this action and receipt of the notice thereof by the subordinate council to which Moore belonged, he paid to his council certain dues owing from him, and it is claimed that the receipt of these dues waived the sentence of suspension. To this we do not agree. He was not suspended, so far as the subordinate council was concerned, until it had received official notification thereof. Up to this time he was a member, and, undoubtedly had he died prior to that time, his beneficiaries would have been entitled to receive the amount specified in his beneficiary certificate. Besides, thQ sentence was one of suspension only and not of expulsion. It might never become effective as to the subordinate council, and he had a right to keep his beneficiary certificate in full force, by the payment of dues thereunder until his suspension became effective, and this, and this only, he did.
It is further urged that the property rights of the plaintiff in error may not be taken from him except by due process of law. The correctness of this proposition is freely granted. The right to be free from discipline is not, however, a property right; and discipline may proceed to the point of suspension or expulsion from the order, even though such disciplinary measures result in the forfeiture of the rights of the expelled member. Beyond this,' due proceedings, based upon proper by-laws of a voluntary association, constitute due process of law as to members of such an association.
We are unable to find in the proceedings of the district court of Shawnee county, or its judgment upon the entire case, any error, and, hence, affirm its judgment.
All the Justices concurring. | [
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Error from Shawnee district court. | [
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Opinion by
Clogston, C.:
At the commencement of this action an attachment was issued, which was afterward, on the application of the defendant, discharged; and the one question now presented is the review of the order discharging the attachment. The ground alleged for attachment, among others, was that the defendant had property and rights in action which he concealed, and was about to assign and remove and dispose of his property with the intent to hinder and defraud and delay creditors, and had assigned and removed and disposed of his property, or a part thereof, with the intent to hinder' and delay his creditors. Before this court can reverse the ruling of the trial court in discharging the attachment, it must appear by the undisputed facts and circumstances in the record that some of the grounds for attachment were true, and upon such facts and circumstances be able to say that, as a matter of law, the court erred in sustaining the motion to discharge the attachment.
The action was brought to recover some $1,600, and the indebtedness was not disputed. This indebtedness had existed since 1884. The plaintiff in support of the attachment showed that the defendant was the owner of a large amount of personal property which was covered by chattel mortgages, and that in August, 1886, prior to the levying of the attachment, the defendant mortgaged all of his personal property to one Wood for the sum of $1,800. This mortgage was given for a pretended indebtedness from defendant to Wood, alleged to have been contracted while they were in the army, and prior to the year 1865, but which the evidence showed was without foundation, and the mortgage without any consideration. The defendant on his own behalf on cross-examination said: “ I owed some parties in Kansas City, and they were talking about suing me, and I owed some parties here, and I did not know but that they might come down here and give these parties some trouble, and I went and asked Wood to befriend me and accept a mortgage on my property, which he did.” The defendant, while this Wood mortgage was of record, in substance stated that the mortgage was given to prevent parties in Kansas City from getting the property; in fact, it is not contended that the Wood mortgage was ever valid, or made to secure a bona fide indebtedness, but it is contended that because this mortgage was released on November 2,1886, some three months before the commencement of this action, that for .that reason, no matter how fraudulent it had been, it was not competent to establish any of the grounds alleged for the attachment. . The mortgage was made to Wood to defeat the claim of the plaintiff, because the defendant when referring to the Kansas City claims referred to the plaintiff’s claim. Then the defendant was doing just what the plaintiff alleged in its affidavit for attachment, and because he had caused the mortgage to be released would not protect him from the consequences of his own fraud. But the record shows why this Wood mortgage was released at the time it was released. The day of its release, or the next day thereafter, the defendant mortgaged the same property to his father-in-law for $700, that sum being about all the equity he had in the property; other mortgages having been given in the meantime to other parties to secure other indebtedness contracted -long after the indebtedness to the plaintiff. The defendant claims that this mortgage to his father-in-law was given to secure him for money he had paid for the defendant, but at the time the defendant procured the release of the Wood mortgage he told Wood that his father-in-law was going to buy him a farm, naming what farm it was in Sumner county, and he wanted to give him a mortgage for his part of the money. Defendant was to pay some $500 as part payment on the land; he to pay so much, and the old gentleman so much. The evidence further shows that his father-in-law did buy the farm named by the defendant, and had the title conveyed to the defendant’s wife. It is true this statement to Wood was not made under oath, and the statement now made by him was; but taking the entire transaction with Wood, the mortgage made to cover up his property, and the statements made for its release, together make a strong chain of circumstances connected with the purchase of the farm and the conveyance of the title to his wife, and which in our judgment needs a better explanation than the one given by the defendant. Wood was his friend, and there was no need of any explanation to procure the release of the mortgage. It was not necessary to state any falsehood or make any misrepresentations to procure its release. The mortgage was given to Wood for the defendant’s benefit and not Wood’s; therefore any statement made to Wood, his trusted friend, must be considered strongly against the defendant. Again, if the mortgage given to his father-in-law by the defendant was a bona fide transaction, and given to secure a then existing debt, as claimed by the defendant, the sustaining the attachment as far as defendant is concerned will not affect the rights of third parties; and when it is shown that such indebtedness did exist, and that other parties have rights to the property, their rights can then be protected.
It is therefore-recommended that the cause be reversed, and remanded to the court below with instructions to overrule the motion to discharge the attachment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought originally in the district court of Miami county by Julia Taylor against her husband, Cerill Taylor, for a divorce, alleging as the ground therefor willful abandonment for more than one year. At the October, term, 1886, the case was tried before the court without a jury, and the court found generally in favor of the defendant and against the plaintiff, and rendered judgment against the plaintiff for costs; and to reverse this judgment, the plaintiff, as plaintiff in error, brings the case to this court.
About the only question now presented is whether the court below erred or not in its general finding of fact. We cannot say that the court below committed any such error. It is true that the defendant was absent from the plaintiff for about three years; but from the evidence in the case, and especially from the testimony of the defendant, who was a witness at the trial, this absence was at least as much the fault of the plaintiff as it was of the defendant. Their home for many years was at Paola, Kansas. He left, and went to California and remained there about three years. He testified as a witness that while he was absent he wrote many letters to his wife, or rather had them written to her, for he could not read nor write, and that he seldom received any answer in return. He also sent money to her at one time, and directed a son of his and hers to send money to her at another time, and supposed that the son had done so. At one time he wrote a letter to her, suggesting that he would return home; and in answer to this letter she wrote to him not to do so; and she never during all his absence proposed or suggested or expressed any wish or desire that he should return to his home. When he left her at Paola he left her in the possession of their homestead, the title to which was in his name, and also left her in the possession or control of all his other property, and she still remains in the possession of the homestead. We do not think that we can reverse the judgment of the court below, refusing the plaintiff a divorce. We cannot say as against the finding and judgment of the court below that there was any willful abandonment for one year on the part of the defendant as toward the plaintiff. Indeed, upon the whole of the evidence, we think the judgment of the court below is right. In the natural course of things, however, the defendant cannot long remain the husband of the plaintiff. He is now past sixty-six years old, having been born on April 14, 1823; his eyes have greatly failed him and he is likely to become entirely blind, and he is also ruptured. What the plaintiff’s age is, is not shown; she was married to the defendant, however, in July, 1853, nearly thirty-six years ago, and they have raised a family of several children.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
On the 4th of March, 1887, the Buford & George Implement Company obtained judgment in the Miami district court against C. W. Carr for $1,593.50, and a decree of foreclosure of certain mortgages, and the sale of lands described therein to satisfy said judgment. On the 4th of April following a special execution was issued, directing the sheriff to sell these lands; on the 6th the sheriff had them duly appraised, and on the 8th inserted the first publication in a newspaper, advertising the lands to be sold on the 10th of May following, at one o’clock J?. M., and at that time did sell both tracts; one to C. E. J ones, plaintiff in error, and the other to H. S. Campbell, also plaintiff in error. Subsequently Jones and Campbell each filed motions for confirmation of sale, and Carr, the judgment debtor, and the Buford & George Implement Co., the judgment creditor, filed motions to set the sale aside. Upon a hearing of all the motions, the court set it aside; complaining of that order, the purchasers at the sheriff’s sale come to this court.
The judgment creditor in its motion to set aside the sale, and as a part thereof, made a bid of $1,650 for the tracts sold, in the event the sale should be set aside and a new sale ordered. The attorneys for the judgment creditor had been directed before the sale to make a bid of $1,650 for the lands. It is shown that the attorneys for the judgment creditor believed the sale was to have been in J une instead of May; there is no reason given or any evidence offered to show why they were thus mistaken. The notice fixing the day of sale to be the 10th day of May was brought to oue of them and he signed it, without, however, any examination of its contents; but it is established by the evidence beyond question, that they were honestly mistaken about the date of sale. One of them told Dr. Reichard, who said he wished to buy the land, that it would take place on the 7th of June; Reichard testified that he would have paid the full amount of the judgment and $100 more to have secured the land.
There was no copy of the return of the appraisers deposited with the clerk of the court before the sale; the notice of the sale itself, however, showed the amount of the appraisement of each of the two tracts. There is considerable testimony tending to show that the larger tract, containing 14J acres, was worth $1,600; that a day or two after the sale Jones said he expected to have $1,200 or $1,400 for the land; and that upon the day of the sale and about two hours after he bought it, he met one of the attorneys for plaintiffs and told him that he would sell it to him for $1,600, but would not take a cent less. It also appears that upon. the day of sale, after the 14J-acre piece had been bid in by Jones, Campbell bid for the undivided half of the smaller tract $320, but probably under a mistake that he was purchasing the whole instead of a part of the land; discovering his mistake, he and his competitor in the bidding, Jones, went into the office of the clerk of the court and had a consultation;_ afterwards coming out he made a single bid of $100 for the undivided half of the tract, and it was sold to him. There was evidence offered tending to show that the undivided one-half of this smaller tract was worth more than the sum for which it was sold.
It is well established in this state by a long line of decisions, that mere inadequacy of price at sheriff’s sale is not of itself sufficient to set the sale aside; and although these tracts were sold for less than half of their value, yet as they were sold for more than two-thirds of their appraisement, we would not upon that ground alone sustain the order of the court setting aside the sale. (Moore v. Pye, 10 Kas. 246; Northrop v. Cooper, 23 id. 432; Savings Bank v. Marsh, 31 id. 771; McGeorge v. Sease, 32 id. 387; Babcock v. Canfield, 36 id. 437.) But inadequacy of price may be considered with other grounds for setting aside a sheriff’s sale. (Dewey v. Linscott, 20 Kas. 684; Pickett v. Pickett, 31 id. 727; Capital Bank v. Huntoon, 35 id. 577.) And where the inadequacy is palpable, the purchaser can only retain his advantage by showing the proceedings are free from fault or irregularity. (Freeman on Executions, §§ 304e, 308, 309.)
In this case both the judgment debtor and the judgment creditor unite in the motion to set aside the sale. It appears that the attorney for the judgment creditor in the original action appears as the attorney for the judgment debtor in this motion. But before he was employed as an attorney for the judgment debtor, he told a person who wished to buy the land that the sale would be upon the 7th day of June instead of the 10th day of May, and he to whom the statement was made would have paid a much greater price for the land than it was sold for. This statement of the judgment creditor’s attorney tended to prevent a full and fair competition at the sale. He who asked about the day of sale was justified in relying upon the statement made to him of its date. He was misled without any fault of the judgment debtor, and prevented from bidding on the land sold.
It was the duty of the sheriff to file a copy of the return of the appraisers forthwith with the district clerk. This was not done; in its stead, however, there was in the notice of sale a statement of what the land had been appraised at. Yet the failure to file this copy of the returns of the appraisers was an irregularity which, together with the statement that the land would be sold upon the 7th of June instead of the 10th of May, and the inadequacy of price, is sufficient to sustain the order of the trial court. In addition to this, in the case of the sale of the undivided half of the smaller tract it appears that there was a consultation between the competing bidders, and afterward it was sold apparently without competition. The party purchasing had just previously made a bid of $320, believing he was buying the entire tract; after this consultation with his competitor, the undivided one-half was sold to him for $100. This is an additional reason why the sale of the undivided one-half of the smaller tract should have been set aside.
Erom the entire record we believe that the order and judgment of the court was right, and recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, O.:
For the purposes of this case it will be presumed that the plaintiff has sustained the injuries complained of, and that his petition is in all respects sufficient to entitle him to recover, if the city is liable for this class of injuries. It has already been held in this state that counties are not liable for injuries of this kind. (Pfefferle v. Comm’rs of Lyon Co., 39 Kas. 432.) And this seems to be the doctrine universally held elsewhere. (Wehn v. Gage, 5 Neb. 494; Crowell v. Sonoma Co., 25 Cal. 313; Miller v. Lron Co., 29 Mo. 122; Waltham v. Kemper, 55 Ill. 346; Brabham v. Supervisors, 54 Miss. 363; Winbigler v. Los Angeles, 45 Cal. 36.) But it is urged that a different rule prevails in respect to cities and other public corporations, and that they are not such political divisions of a state as to entitle them to immunity from damages for injuries such as complained of. It is not claimed that there is any statute making it the duty of a city of the third class, to which class the defendant belongs, to keep and maintain comfortable and safe city prisons, and no charter has been shown requiring this duty of the defendant. Where such duties are imposed by law upon municipal corporations they then become liable when the duty enjoined relates to some act in the doing of which the city has some special interest apart from the public generally. (Sawyer v. Corse, 17 Gratt. 230; Merrifield v. Worcester, 110 Mass. 216; Emery v. Lowell, 104 id. 13.) But where such duties relate to acts which in their nature are for the benefit of the public as well as the citizens of the city, then no responsibility follows that can be enforced by private action. (Pfefferle v. Comm’rs of Lyon Co., 39 Kas. 432; Gould v. Topeka, 32 id. 485; Washington v. Gregson, 31 id. 99; Bigelow v. Randolph, 13 Gray, 541; Hill v. Boston, 122 Mass. 344; Eastman v. Meredith, 36 N. H. 284; Hamilton v. Michels, 7 Ohio St. 109; 3 Harrison, 121; Finch v. Board, 30 Ohio St. 37; Flori v. St. Louis, 69 Mo. 341; Western College v. Cleveland, 12 Ohio St. 375.)
The distinction between an act done by a city in a public capacity and as a part of the political subdivisions of a state, and for an act done for its private advantage, and relating to things in which the state at large has no interest, is clearly defined and is well recognized. (Savings Society v. Philadelphia, 31 Pa. St. 185; Maximilian v. Mayor of New York, 62 N. Y. 160; Bailey v. Mayor of New York, 3 Hill, 531.)
In Hill v. Boston it was said:
“The examination of the authorities confirms us in the conclusion that a duty which is imposed upon an incorporated city, not by. the terms of its charter, nor for the profit of the corporation, pecuniarily or otherwise, but upon the city as the representative and agent of the public, and for the public benefit, as by a general law applicable to all cities and towns in the commonwealth, and a breach of which in the case of a town would give no right of private action, is a duty owing to the public alone, and a breach thereof,by a city, as by a town, is to be redressed by prosecutions in behalf of the public, and will not support an action by an individual, even if he sustains special damage thereby.”
This seems to be the current of authority everywhere, that a city while acting as a political part of the state in suppress ing crime and immorality, in the preservation of peace and good order, is not liable for its acts, although negligently committed by the city or its agents. And with the exception above noted, the city stands in the same catalogue with counties, townships and other quasi municipal corporations in this respect, and is not liable to a personal action for injuries resulting from the enforcement of the public laws affecting the state at large.
It is therefore 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
Horton, C. J.:
On the 24th of June, 1886, the SmithFrazer Boot and Shoe Co. commenced its action against F. J. Derse, in the district court of Republic county, to recover $543.85 upon an account for goods sold and delivered to the defendant. At the commencement of the action a summons was issued and an order of attachment obtained against the property of the defendant upon an affidavit and undertaking filed therefor. On the 19th day of August, 1886, the plaintiff attempted to dismiss its action without prejudice, and on August 20, 1886, commenced another action against the defendant in the district court of Cloud county, to recover upon the same account. An order of attachment was also issued in this action directed to the sheriff of Republic county. Under the order, he levied upon and took into his possession a stock of boots and shoes in Belleville, as the property of the defendant. On the 16th day of October, 1886, the defendant presented his motion to the district judge of Cloud county, for a discharge of the attachment: 1st, alleging that the grounds set forth in the affidavit for the attachment were untrue; 2d, because another action was pending in the district court of Republic county, between the same parties and upon the same cause of action. This motion was heard on the 18th of October, 1886, by the district judge at chambers. After hearing the evidence and the argumemts of the- attorneys, the district judge discharged the order of attachment. To this ruling the plaintiff excepted, and brings the case here.
All the papers and records in the case, commenced on June 24th, in Republic county, were introduced in evidence upon the hearing of the motion, and are referred to in the transcript filed in this court, but copies of these papers are not embraced in the transcript. An action may be dismissed by the plaintiff without prejudice to a future action, at any time before the submission of the case to the jury or the court; but as the dismissal is in the nature of a judgment, it must necessarily require an order of the court, and cannot be accomplished by a mere act of the plaintiff alone. (Allen v. Dodson, 39 Kas. 220; Brown v. Mining Co., 32 id. 528; Oberlander v. Confrey, 38 id. 462.) The transcript does not show that any judgment of dismissal was entered; therefore, at the time the motion was heard, there was another cause pending between the same parties for the same cause in Republic county, in which an order of attachment had been issued against the property of the defendant. There is nothing appearing in the record showing or tending to show any reason or necessity for the commencement of the subseJ quent action on the 19th of August, 1886. Under ^hg circumstances, the district judge had full authority to discharge the attachment commenced in Cloud county. (Civil Code, § 89, subdiv. 3.) Before a second action was commenced, and an attachment issued therein, the prior action should have been disposed of by some judicial act. An abuse of judicial process will not be tolerated in any court of justice. Where an action is pending between the same parties, in which an attachment is issued, it will be oppressive, and therefore an abuse of judicial process, to hold that the plaintiff might institute a second action for the same cause, and obtáin another order of attachment, thus multiplying and increasing costs and expenses without any reasonable excuse.
It is claimed, however, that the defendant was not a pi’oper party to move for a discharge of the order of attachment issued against him, because he had executed chattel mortgages to several parties upon the property seized under the attachment. These chattel mortgages were executed to secure debts only, and therefore it cannot be said that he had no interest in the property seized. It is not alleged that the property attached did not belong to the defendant, but on the other hand it was seized as his property. Section 228, civil code, reads: “The defendant may, at anytime before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property attached.” The defendant in this case has simply followed the provisions of the statute. We need not refer at length to the decisions cited from Michigan, because the defendant has not made an assignment and transfer of all his property, within the provisions of the statute, for the benefit of his creditors. It is doubtful, in view of the provisions of the statute, whether this court would be inclined to follow Chandler v. Nash, 5 Mich. 409; and Price v. Reed, 20 id. 72. If the defendant, as between himself and the plaintiff, is entitled to a discharge of the attachment sued out against him, he ought to be permitted, in au cageg^ g]e jjjg motion therefor.
The order of the district court discharging the attachment will be affirmed.
In the cases of C. W. Noyes, M. S. Norman and J. M. KempLer, partners as Noyes, Norman & Co., v. E. J. Derse, No. 4804, and William W. Kendall and Charles F. Emery, partners as Wm. W. Kendall & Co., v. F. J. Derse, No. 4805, the same questions are involved as are decided in the foregoing opinion; and upon the authority of the above case the order of the district judge, discharging the attachment in those cases, will also be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This case has been in this court before. (34 Kas. 740.) The statement of facts therein set forth is referred to as supplementary to the following: In 1882, Oliver Green, a cripple, entered into a marriage contract with Harriet F. Wilcox, now Harriet F. Green. It appears that Oliver Green was possessed of some little amount of personal property, but had no real estate nor a fixed abode. Harriet F. Wilcox was the owner of a quarter-section of land in Shaw nee county, of the value of about $2,500. Before their marriage they entered into a mutual agreement concerning the property of each of the parties, but it was not reduced to writing. She agreed that out of the proceeds of the farm he should be aided in his support during their married life, and if he survived her, until his death. They were married on the 31st day of August, 1882. Upon the 30th day of the same month she went to a notary and made deeds to her three daughters, giving to each of them an undivided one-third part of the farm; she left the deeds with the notary, with the direction that they were to be given to her when she might call for them, or if they were not called for before her death, they were then to be delivered to her daughters. The husband and wife lived together for nearly a year, he furnishing a large portion of the support for himself and wife from his own funds; during part of the time an unmarried daughter of his wife, and later a widowed daughter with her two children, lived with them. He furnished his wife with $100 to pay off a mortgage on the farm. After living together for about one year, she left him, and brought an action for divorce, which upon trial was decided adversely to her. In February, 1884, the deeds were delivered to her daughters, and they made a sale of the premises to Easterday, one of the defendants herein. In March following, all the deeds were placed on record in the office of the register of deeds of Shawnee county, Kansas. The cause was tried by the court and a jury, and the following questions were submitted to the jury, and answered:
“When were the deeds from Harriet F. Wilcox, now Green to her three daughters executed? A. August 30, 1882.
“When were the plaintiff and Harriet F. Wilcox married ? A. August 31, 1882.
“Did the plaintiff, Oliver Green, consent to, or know of, at the time of his marriage to Harriet F. Wilcox, now Green, the deeds by which she conveyed all of the farm in controversy to her three daughters? A. No.
“When were the deeds of Harriet F. Wilcox to her three daughters, as referred to in the first question, delivered to them? A. A few days before they conveyed said land to Easterday, or in February, 1884.”
The judgment was in favor of defendant Easterday, the wife and three daughters making default. The plaintiff, as plaintiff in error, brings the case here.
In the record it is stated that the agent of Mrs. Green sold the land to Easterday for $2,500; $1,000 was paid in cash, and a note of $1,500, secured by mortgage, was given for the balance. The plaintiff files an elaborate brief; but the only question we care to notice is whether Easterday was an innocent purchaser of the one hundred and sixty acres formerly owned by Harriet F. Wilcox. The court, in its instructions to the jury, states substantially that unless the defendant Easterday had actual knowledge of the ante-nuptial contract of Oliver Green and Harriet F. Wilcox, and of the failure of Harriet F. Wilcox to deliver the deeds on the day of execution, they must find in favor of defendant Easterday. This instruction might have been proper if the full consideration of the farm had been paid by Easterday to the daughters of Mrs. Green at the time of the purchase, but the testimony shows that only $1,000 was paid, and that Easterday gave his note for the other $1,500 to the grantees. Easterday was a bona fide purchaser only to the amount of money he paid for the farm, and if he had notice of the rights of Green under this ante-nuptial contract before the payment of the note in question, if not negotiable, then to that extent he purchased subject to the rights of Oliver Green. The rights of a grantee, innocent of the fraudulent intent of his grantor, are only protected where such grantee gives a valuable consideration before notice of the fraud of his grantor; and one who claims to hold against a prior equity, because he1 was an innocent purchaser, but had not paid all the purchase-money when he received notice of such equity, will be liable to the holder thereof to the extent of the purchase-money remaining unpaid when he received notice. (Bush v. Collins, 35 Kas. 535; Hardin v. Harrington, 11 Bush, 367; Henry v. Raiman, 25 Pa. St. 354; Dodson v. Cooper, 37 Kas. 346; Burke v. Johnson, 37 id. 337; 2 Story’s Equity, 11th ed., p. 829.) If the note was non-negotiable or past due and in the possession of the grantors, then the inter est of Oliver Green under bis ante-nuptial contract was superior to the rights of Easterday, the purchaser, to the extent of the unpaid purchase-money.
We recommend that the judgment be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district eoiirt of McPherson county by Nichols, Shepard & Co., ' a Michigan corporation, against Barnard P. Ratzliff and Mary Ratzliff his wife, on certain promissory notes and a real-estate mortgage executed by the defendants to secure such notes, to recover from them the sum of $966.85 and interest and costs, and to foreclose- the mortgage. Several parties were made defendants in the action, among which was the German Insurance Company, an Illinois corporation. The plaintiff, besides setting forth in his petition all proper allegations with respect to the notes and mortgage, also set forth the following allegation, to wit:
“ The defendants, the German Insurance Company, . . . claim to have some sort of an interest or lien on the premises described in this plaintiff’s mortgage, but the nature of their liens is to this plaintiff unknown; but whatever it is, it is inferior and junior to the lien of this plaintiff.”
The Ratzliffs did not file any answer. The German Insurance Company filed an answer setting forth a judgment in its favor against Ratzliff for the sum of $19.50 and interest and costs, amounting in the aggregate to about $40, and then alleged that such judgment “is a first, best, prior and superior lien upon the premises described in plaintiff’s petition.” At the November term, 1886, the case was tried before the court without a jury. The entire controversy in the case seems to have been between Nichols, Shepard & Co. on the one side, and the German Insurance Company on the other side, and the only question between them seems to have been: Which had the prior lien upon the mortgaged premises? The plaintiff, in order to show that its mortgage lien was prior to the defendant’s judgment lien, introduced the testimony of Barnard P. Ratzliff, the admitted owner of the property, which testimony was to the effect that the property upon which the liens were claimed was the homestead of Ratzliff and wife and family, and therefore that in fact the German Insurance Company did not have any lien upon the property at all. To the introduction of this testimony the German Insurance Company objected and excepted, and this for two reasons: First, that the pleadings in the case do not authorize or warrant the introduction of any such evidence; second, that the question as to whether the property in controversy was the homestead of Ratzliff and his family or not was a personal privilege, which only Ratzliff or his wife, or some member of his family, could raise, and was not a question which the plaintiff in this action, Nichols, Shepard & Co., could raise. At the close of the trial the court rendered judgment in favor of the plaintiff and against Ratzliff for the sum of $1,079.49 and costs, and against all the parties for the foreclosure of the plaintiff’s mortgage, and' that such mortgage constituted a prior lien to the judgment of the German Insurance Company; and the German Insurance Company as plaintiff in error brings the ease to this court for review, making the plaintiff below, and it only, the defendant in error in this court.
The only question attempted to be presented in this court is, whether the foregoing testimony of Ratzliff was competent or not, but it is at least doubtful whether even that question •or any other question can properly be presented upon the record brought to this court. The question, however, is easily answered. First, we think the pleadings were ample to authorize the introduction of any proper evidence tending to show that the plaintiff’s lien was prior to the defendant’s lien, and this evidence objected to tended to show that fact, and was competent. It tended to show that the property in controversy was the homestead of Ratzliff and his family, and therefore that the German Insurance Company never obtained or had any judgment lien upon the property. And second, the plaintiff below had the unquestionable right to show this fact for the purpose of showing that beyond all question its mortgage lien was prior and superior to the supposed judgment lien of the German Insurance Company. It had the right to show this fact, not for the benefit of Ratzliff, who owned the land and occupied the same as a homestead, but for the benefit of itself and for the protection of its own rights and interests. (Elwell v. Hitchcock, just decided.) Indeed, it is our opinion that whenever a contest arises between two parties as to which has the prior or superior lien upon property owned and occupied by a third person, either party may show any fact that will defeat the other party’s lien, or postpone the same so as to render it a subsequent or inferior lien, and this although the fact to be so shown may be that the property is the homestead of the third party.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an appeal by B. Ehret from an award of damages made to him by the board of county commissioners of Cowley county in certain condemnation proceedings had for the purpose of appropriating a right-of-way for the Kansas City & Southwestern Bailroad Company through his land and the land of others. The commissioners awarded damages to him to the amount of $542.40. After the appeal was taken, the case was tried in the district court before the court and a jury, and in that court damages were awarded to him to the amount of $870. The jury assessed the damages as follows: For the value of the laud taken, $232.80; for damages to the remainder of the land, $633.20; for fences taken, $4; total, $870. To reverse the judgment of the district court, the Railroad Company, as plaintiff'in error, has brought the case to this court. The principal alleged errors are as follows: 1. Error in the admission of improper testimony; 2. Error in excluding proper testimony; 3. Error in giving erroneous instructions to the jury. We shall consider these alleged errors in their order.
I. It is claimed that improper testimony was permitted to go to the jury, and the testimony of five witnesses is referred to. These witnesses were all farmers living in the vicinity of the land in question, had full and complete knowledge of the same, and testified with respect thereto, giving full details. Their testimony showed that the land was worth but little except for farming purposes; and they testified that they knew the value of the land for such purposes. But they did not testify that they knew its market value as contradistinguished from its usable or productive value; nor did they testify that they knew of any sales of any land made in their vicinity at or about the time when the right-of-way in this case was appropriated, and probably there were no such sales. These witnesses were permitted to give their opinion with respect to the value of this land, and this it is claimed was error. It is claimed that only such witnesses as know the market value of the land in question should be permitted to give opinions concerning its value, and that such opinions should be confined exclusively to market value. Now this claim is certainly untenable. It is not the market value merely that is in question, nor the usable or productive value, but it is the real value. And this real value involves everything that tends to make the land more valuable or less valuable. “The value of land for farm use is a proper' subject of inquiry in proceedings to condemn it for railway purposes.” (Mich. Air Line Rly. Co. v. Barnes, 44 Mich. 223.) Indeed, the value of land for any use is a proper subject of inquiry in such cases, and anything may be shown which will tend to show a greater or less value, or which will tend in any manner to affect its value, and the owner may in all cases recover for its diminished value, taking into consideration any purpose for which it might be the most profitably used. The market value of property is only a measure or evidence of its real value, but in some cases it is very important. Indeed, where property has an absolute market value like government bonds or certain railroad stock, it is controlling. But real estate can never have any such absolute market value, aud farms can hardly have any market value at all. Hence with respect to farms we have to resort to other measures of value, as to the value of their use, etc. Each farm depends principally for its value upon its improvements, its productiveness, the fertility of its soil, and the amount of money which can be realized from it. And it also depends for its value upon a great variety of special things: upon its location, its size, shape, and configuration; whether hilly, level, undulating or otherwise; its symmetry, beauty, attractiveness, etc.; whether it slopes one way or another, or in many ways; the quality and productiveness of its soil; the amount, kind and quality of its water, stone, minerals, etc.; how much forest, how much prairie, how much cultivated land, how much uncultivated; whether subject to weeds or other pernicious things to make it difficult of cultivation; its proximity to or remoteness from cities, towns, villages, markets, schools, churches, public roads, highways, and the kinds and characters of all these things; and also many other things not necessary to mention. All these things enter in to make a farm of greater or less value, and all these things may be shown. And with respect to these things no two farms can be alike, and they never are alike; and no two farms can be injured in precisely the same way by railroads passing through them. Farms are unlike railroad stock or bank stock, or other stock which may have an actual market value. They are unlike wheat, or corn, or other grain, which may respectively be homogeneous in character. They are unlike almost everything else. The most of things which are bought and sold may be classified, and a common or market value be established for all the things belonging to each particular class. In such cases when a market value is established for one particular thing of any particular class, a market value is established for all the things of that class. But farms cannot well be classified; each farm must to a great extent be considered separately, and the value of each farm must be determined separately. The market value of a thing is established by sales and purchases; the usable or productive value of a thing is established by the value of its use and the amount of profit which can be realized from it; but the real value of a thing is established or ascertained from all these things, and more too. It may be true that the market value of a thing may be established by sales and purchases of such thing alone made at different times, or by offers to purchase it made by different persons. But this is not the kind of market value involved in this case, or which we have been considering. The kind of market value which we have been considering in this case has reference only'to a general class or kind of property, homogeneous in character, or composed of a vast number of like parts or like things, and the value established by actual sales and purchases of some part of the homogeneous mass, or some of the like parts or like things out of the general whole. This is what is usually understood as the market value of a thing as contradistinguished from the usable, productive, or real value thereof. But it is difficult to see how this kind of value can be applied to farms. Of course whenever a farm has a market value it is proper, and in many cases necessary, that such value should be shown, but proof of such value is not exclusive of other modes of proving the real value of the farm.
After a careful consideration of this case, and of the whole subject of the proof of value of real estate, we have come to the conclusion, both upon reason and authority, that farmers who reside within the vicinity of a particular farm, who are familiarly acquainted with the farm, who know its capabilities, and who can testify that they know its value, may give their opinions in evidence with respect to its value; and such opinions are competent evidence, although such farmers may not know of any sale of any farm in that vicinity. As tending to support these views, we would refer to the following authorities: St. L. K. & A. Rly. Co. v. Chapman, 38 Kas. 307; L. & W. Rly. Co. v. Hawk, 39 id. 638; L. & W. Rld. Co. v. Ross, 40 id. 598, 20 Pac. Rep. 197; Whitman v. B. & M. Rld. Co., 89 Mass. (7 Allen) 318; Snow v. B. & M. Rld. Co., 65 Me. 230; I. & W. Rld. Co. v. Von Horn, 18 Ill. 257; K. & E. Rld. Co. v. Henry, 79 id. 290; Johnson v. F. & M. R. Rly. Co., 111 id. 413; Robertson v. Knapp, 35 N. Y. 91; Snyder v. W. U. Rld. Co., 25 Wis. 60; B. & M. Rld. Co. v. Schluntz, 14 Neb. 421; same case, 14 Am. & Eng. Rld. Cases, 182; S. C. & P. Rld. Co. v. Weimer, 16 Neb. 272; same case, 20 Am. & Eng. Rld. Cases, 184; Sherman v. St. P. M. & M. Rly. Co., 30 Minn. 227; same case, 10 Am. & Eng. Rld. Cases, 193; C. & G. Rld. Co. v. Mims, 71 Ga. 240; St. L. A. & T. Rld. Co. v. Anderson, 39 Ark. 167, 172; same case, 17 Am. & Eng. Rld. Cases, 97, 99; Penn. & N. Y. Rld. Co. v. Bunnell, 81 Pa. St. 414, 426; Little Rock Junction Rld. Co. v. Woodruff, 33 Am. & Eng. Rld. Cases, 169. See also Lawson on Expert and Opinion Evidence, 433-438, and cases there cited; 1 Sutherland on Damages, 798; 3 Sutherland on Damages, 462. In the case of the St. L. K. & A. Rly. Co. v. Chapman, 38 Kas. 307, we held that persons residing in the vicinity of the land, but without any knowledge of the market value thereof, may in some cases give their opinions as to its value. The syllabus of that case reads as follows:
“1. Upon the trial of an appeal from an award by commissioners of damages caused by the appropriation of a right-of-way through an addition to a city for railroad purposes, and a number of witnesses are called who testify that they have known the land appropriated for many years, its location and situation, and that at the time of its appropriation it had no market value; that they knew the value of real estate in that vicinity at the time of said condemnation; and such witnesses are permitted, over the objection of the defendant, to testify as to the value of the lots appropriated: Held, Not error.
“2. Where it is shown that the property sought to be appropriated has no market value at the time of its appropriation, witnesses who are competent to testify to the value of the property may give their opinions of the value of the land so taken.”
See also L. & W. Rly. Co. v. Hawk, 39 Kas. 640, 641, where it is said as foilows:
“The next objection is, that the opinions of incompetent witnesses as to the market value of the land were received. These witnesses were farmers living in the neighborhood of the land in question, well acquainted with its situation and fertility, its advantages and disadvantages, and they were therefore qualified to state their opinions in regard to its value before and after the railroad was constructed through it. This is not a question of science or skill, requiring expert testimony, but it falls within one of the exceptions to the rule excluding mere opinions of ordinary witnesses. It is not necessary that the witnesses shall be engaged in buying and selling land, nor that they should have knowledge of an actual sale of that or similar land, to make them competent. A farmer living in the vicinity is presumed to be familiar with and to know the value of farm lands, and there can be no doubt of his competency when it is shown that he knows the situation and character of the land, its productiveness and availability for use, and who further states that he knows the value of the same, as did the witnesses in the present case.”
"We.think that Ehret, the plaintiff below, was a competent witness to give his opinion with reference to the value of the land. It appears that in 1870 he worked on a farm in the state of Illinois. In 1873 he removed to Cowley county, Kansas, where he has since resided. In 1877 he owned a farm in that county, and farmed the same himself. In 1884 and since, he has owned the farm which it is now claimed was injured by the railroad company. He purchased the same. This farm is situated about four miles in a northeasterly direction from Winfield, where the plaintiff has resided a large portion of the time since he removed to Cowley county. In 1884 and in 1885 he resided upon and cultivated this farm. The railroad company took possession of its right-of-way through this farm about August, 1885, and while the plaintiff was residing upon it. The plaintiff removed from the farm about November, 1885, and since that time and up to the time of the trial of this case, which was on October 11, 1886, the property was in the possession of a tenant of the plaintiff, who cultivated the property for himself and paid rent to the plaintiff therefor. The plaintiff had full and complete knowledge with respect to the character, condition, situation and capabilities of this farm, and how the railroad injured it, and testified in detail with respect thereto. Wo think his testimony was competent. We cannot say that the court below erred in the admission of testimony.
II. Nor can we say that the court below erred in excluding testimony. The witness whose testimony was excluded did not seem, from his testimony, to be a competent witness to give an opinion. Pie did not know the value of the farm from his acquaintance with it, nor did he know the value of the farm from any sales made of any farm in that vicinity, or from any offers made to purchase the same.
III. We do not think that the court below erred in giving instructions to the jury. The instructions complained of we think were proper under the facts of the case.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is the fifth review of judgments rendered against the railroad company in this action, and the pleadings and facts are so fully set forth in the earlier considerations of the case that a repetition of all these is now unnecessary. The measure of damages to be applied in the case, and its merits, have been quite fully discussed and decided in former opinions, and we are now asked to review rulings made at the last trial of the pleadings, the admission of testimony, and the instructions requested and given to the jury.
After the case was last remanded to the district court, the railroad company applied for leave to file a supplemental answer,’ alleging that since the institution of the action the company had caused the alley to be restored to its former state, and to such a state as not to necessarily impair its usefulness as an alley. This application was refused, and the ruling is assigned as a ground of error. The supplemental answer offered to be filed was general in its terms, and contained no statement as to when the alley had been restored and repaired, if it had been done at all. The affidavit accompanying the answer was silent in this respect, and, besides, there was no showing made why this new matter was not presented to the court at an earlier stage of the litigation. The action has been pending for more than ten years, has been repeatedly tried on the issues made between the parties, and before additional defenses are interposed or new issues made, a full and definite statement of the facts constituting the proposed defense should have been made and satisfactory reasons given for the delay in presenting the same. The matter of changing the issues by the filing of amended or supplemental pleadings is within the control, and subject to the sound discretion of the trial court, and unless it appears that the court has abused its discretion in this respect no error will lie from its refusal. (Clark v. Spencer, 14 Kas. 398.) In view of the indefiniteness of the proposed answer, and the meager and unsatisfactory showing upon which the application was based, we cannot hold that the court abused the discretion with which it was vested. More than that, the record shows that the alley has remained in about the same condition that it was in when the obstruction was placed there, and as to its condition at that time the answer filed alleged that the alley was then left in such a condition as not to necessarily impair its usefulness, and that the company had restored it to its former state of usefulness. This allegation was denied by the defendant in error, and an issue raised thereon.
Objection is made to the testimony of witnesses North and Coats. They were examined as to the injury occasioned to the Andrews lots by obstructing the alley back of them, and which were occupied at the time of the obstruction by residence buildings. Upon cross-examination the company inquired of them if the property was not more valuable for mills, elevators, and the like, than for residences, and obtained their opinions thereon. Upon a reexamination they stated, over the objection of the company, that to utilize the lots for such purpose it would be necessary to take the residence buildings away, and substitute suitable ones. The claim is that it is opinion evidence, and therefore incompetent. But the testimony was not very material, and the objection is unimportant. If the testimony is objectionable at all, it is no more so than that called out on the cross-examination by the company itself, and the answers given only stated, what all knew, that the residence and out-buildings connected with it were unsuitable for mills and elevators. The use for which the property was adapted was a proper consideration in determining its value; but Andrews was not required to change its use or to destroy the buildings already there to accommodate the company. The company had attempted to draw from the witnesses the opinion that the property was better adapted for mills, elevators and wholesale houses than for residences, and the defendant was only pursuing the same inquiry, and the testimony objected to is certainly not prejudicial.
Objection is made to the testimony of J. E. Tufts, of counsel in the case, and to the action of the court in ruling out a question on cross-examination of him as to what per cent, of the recovery he would be entitled to for his services
in the action. The fact that he was an attorney in the case, or that his compensation as such was contingent on success, does not render him incompetent as a witness. The parties to an action are now allowed to testify in their own behalf, and so may an attorney in behalf of his client. The interest he may have in the result goes to his credibility, but does not affect his competency. The railroad company was permitted to cross-examine Mr. Tufts as to his interest, and in answer to inquiries he stated that his fee in the case was a contingent one, and depended to some extent on the amount of recovery. An objection was sustained, it is true, to the question as to what per cent, of the recovery he was to have, a question which might have been allowed; but later in the examination counsel for the company returned to the same subject, and was permitted to inquire of this witness with respect to his interest, without objection or restraint. The interest which the witness had in the result of the proceeding was quite fully brought out and an opportunity for further inquiry was given, and hence this point must be overruled.
The refusal of some requests for instructions is a ground of complaint, but in most of these cases the general charge embraces and states the rules contained in the rejected requests, and upon the whole we think the case was fairly submitted to the jury.
It will be unnecessary to refer specifically to all the objections raised upon the instructions. One of the requests made was that “the jury are instructed that if plaintiffs are entitled to recover herein at all, such recovery must be based upon the negligent, wrongful and improper construction of said alley, and the measure of damages will be the difference between the injury suffered' by a proper and improper construction of said. track.” This is not an accurate statement of the rule or measure of recovery, nor, indeed, is it as favorable for the company as the instruction given. It refers to the improper construction of the alley, instead of the road in the alley; and further, it would make the company liable to the defendant in error for all the injury resulting from an improper construction, whether it was special as to him or such as he would suffer in common with the public. The injury for which he can recover “must be special as to him, and not such as affeets the public in general.” (Garside Case, 10 Kas 552; Heller v. Rld. Co., 28 id. 630; Andrews Case, 30 id. 590; Rld. Co. v. Larson, 40 id. 301; same case, 19 Pac. Rep. 661.) The jury were instructed as a matter of law, that under the evidence the railroad company had a right to construct its track in said alley and use the same in the prosecution of its business, and that if it had restored the alley to its former state, or to such a state as not to have necessarily impaired its usefulness, the plaintiff below could not recover; and that if they found the obstruction to be a pérmanent one, which prevented ingress to and egress from the lots, thus diminishing their value, the damage would be the difference between the market value of the property immediately before the track was laid in the alley, and the market value immediately after the track was laid down. They were further told that the plaintiff below had the general right in common with others to travel upon and use the alley as such, and for any obstruction to this general right he could not recover, but that his right of recovery was limited to the special injury the same as if the alley was a private roadway; that he could not recovet for the land in the alley, nor for injuries arising from its obstruction as a public thoroughfare.
No error was committed in refusing the requests numbered 14 and 15, to the effect that the city ordinance authorizing the company to construct its road in the alley did not give it the exclusive right to occupy the alley, nor preclude Andrews from using the same. The issues of the case were joined and tried upon this exact theory, and the whole charge given proceeded upon the view that the company might use the alley in a proper way, but had no more right to permanently obstruct it than an individual, had; that Andrews was entitled to use the alley in going to and from his lots, and in fact his right of recovery was based upon the claim that the company prevented this use by permanently obstructing the alley and monopolizing its use.
A criticism was made upon the eighth instruction given by the court, which states: “If from the evidence you find that the defendant’s said railroad track was, from the mauner in which it was laid down, built and constructed in said alley, a permanent obstruction in said alley, materially and injuriously affecting the approach to plaintiff’s said lots, then the plaintiff had the right to treat the act of the defendant in building, laying down and constructing its track in said alley as a permanent appropriation of the right of access by the plaintiff’s intestate to his said lots, which would enable him to recover as damages the consequent depreciation in the value, if any.” The objection is to the words “materially and injuriously affecting the approach to the plaintiff’s said lots.” It will be observed that the instruction relates to the character of the obstruction, as to whether it should be treated as a temporary or permanent appropriation of the right of access rather than to the extent of the appropriation. It requires that the material injury to the approach must amount to a permanent obstruction, and where the track is constructed in such a way as to amount to a permanent obstruction, it should be treated as a permanent appropriation. The objectionable words might be treated as surplusage, but the inclusion of them is not a substantial variance from the rule stated in the Twine Case, 23 Kas. 585, and the later cases following it. Aside from that, it is clear from the testimony in the record that under the rule given in the Twine Case the obstruction was of a permanent character, and the jury have so treated it. Besides, the plaintiff below based his right of recovery upon the ground that he was absolutely excluded from the use of the alley in going to and from his lots, and upon nothing else.
The complaint that the court refused an instruction to the effect that Andrews might have planked or repaired the alley himself, and that he could only recover what was required to put ^ *n a Passable shape^ is not well founded, No such duty devolved on him, as the control of apey jg and courj., pr0perly advised the jury that “the plaintiffs in this case have no right to enter upon the track of defendant to make any alterations therein of any kind or nature whatsoever, and would be trespassers in so doing.”
The refusal of request 16, that the company was not obliged to put the alley in a better condition than it was before the track was constructed, is made a ground of error; but upon examination of the charge given it is found that instruction 10 is almost in the identical language of the request refused; and the same may be said with respect to request No. 3, which is fully covered by the instructions 7 and 11 that were given by the court.
An instruction was asked directing the jury that while each member was expected to consult and confer with the others, yet ultimately he must act upon his individual judgment. While this instruction might have been given with propriety, its refusal in this case cannot be regarded as reversible error. The failure to so charge the jury in a criminal case, when requested, has been held a ground of error in The State v. Witt, 34 Kas. 496; but the same strictness is not required in civil as in criminal cases, and no showing was made that there was any special necessity for the giving of such instruction in this case, or that any prejudice resulted from the refusal. Neither was there any error in refusing to instruct the jury that a railway corporation was entitled to the same protection under the law as individuals, and that it was the, duty of the jury to determine the issues without sympathy or prejudice as between the parties. It does not aPPear that there was any reason to distrust the integrity of the jury or impute partiality or prejudice to them. They were advised that the issues must be determined upon the evidence and the law presented to them, and that the burden of proof rested upon the plaintiff below.
Instructions were asked and refused in reference to the proof which is necessary to establish a dedication of an alley. These were unimportant in this case, as the answer of the company distinctly recognized the existence of the alley as a public thoroughfare, and alleged that it derived authority from the city having control of the alley to lay its track thereon. It further appears that the alley is in Challiss’s addition to the city of Atchison, and the jury found that a dedication was made by L. C. Challiss, the owner of the land, prior to the building of the railroad. This finding was based on the admission of the parties, and upon a plat made by Challiss in November, 1858, which is on file in the office of the register of deeds, formally dedicating the land, which was duly signed and acknowledged by him, and in which he speaks of the plat of land as “ my addition.” The point is made that the proof failed to show that Challiss was the owner of the land dedicated by him. There is no evidence of this fact beyond what kas keen mentioned, but presumably he was the owner of the land platted by him, and as between these parties and as the question is presented in this case, the plat must be held to he prima fade proof of his ownership.
Some sentences selected from the general charge in relation to the consideration and weight to which the testimony of witnesses is entitled, are criticised. One is, that “You are not bound to believe what a witness has said merely because he has sworn to it.” And another, that “You have a right to believe the witness you deem most worthy of credit, and disbelieve those you deem least worthy of credit.” Taken alone, and detached from other instructions, they would be objectionable, but when read in the connection in which they were used and construed with reference to the whole charge, the objection disappears. Of course a witness is not wholly to be disbelieved, nor his testimony wholly rejected, unless he has knowingly and willfully testified to a falsehood. (Hale v. Rawallie, 8 Kas. 136.) But the court recognized and stated this to be the rule. The language objected to was used in reference to contradictions in the testimony, and in that regard they were directed to reconcile the conflicting statements if it was possible, and where that could not be done they were to determine under the rules given whose statements should be received. The instructions should be read and construed with reference to one another and as a whole, and - .. . _ _ . . where detached sentences which standing alone might seem inaccurate are so qualified by other portions of the charge as to fully state the law of the case, and not calculated to mislead, they afford no ground for reversal.
It is finally urged that a new trial should have been granted because some of the findings are inconsistent and untrue. It is said that there was no evidence to sustain the finding of dedication, or that Challiss was the owner of the land upon which the alley was located. But this objection has already been answered. Finding No. 30 is that—
“If the jury find a general verdict for the plaintiffs, what amount of said verdict is allowed as damages by reason of the inability of said R. S. Andrews' to drive through said alley from Ninth to Tenth streets?”
The contention is that this had reference to the inability of Andrews to use the alley in the same manner as the public in general would have the right to use it. But this is hardly a fair interpretation. The jury were specially instructed that no damages could be given upon that ground, and they undoubtedly had reference to the use of the alley from Ninth to Tenth streets as a means of ingress to and egress from the property abutting on the alley. This finding is explained to some extent by those which follow:
“Was the use of said alley over which said track was constructed of any value to said property ? Ans.: Yes, as a private roadway.
“If the owner of said property sustained any damage by reason solely of the construction of said track in said alley, did such damage accrue by reason of his inability to use said alley as any person desiring to might use the same ? Ans. : No.”
The jury found that the damages suffered were $2,000, and the interest thereon from August 1, 1877, $1,479.50, amounting to $3,479.50. This result was reached by the difference between the market value of the property before the alley was obstructed, which was $8,000, and the market value of the same immediately afterward, which was placed at $6,000. The difference, $2,000, which is the sum mentioned in finding No. 20, was intended to include the entire injury suffered by Andrews.
Findings 32 and 33 are criticised for the same reason. They read as follows:
“If the jury find a general verdict for the plaintiffs, is such general verdict' based solely upon the theory that such property was damaged as residence property? Ans.: No.
“Then state what amount of said general verdict is allowed as damages to said property because of its depreciation for other purposes than residence property. Ans.: $2,000.”
The amount mentioned in this latter answer constitutes the entire allowance made, and is as much as to say that the verdict is not based solely upon the injury to the property as residence property, but for all other purposes as well. This is shown in the succeeding question and answer:
“What are the several elements or sources of damage which make up the aggregate of the general verdict, and how much of said aggregate is made up by each of said elements or sources of damage? Ans.: By use of the private roadway.”
It is obvious from this finding that the verdict was based solely on the special injuries suffered in permanently obstructing the ingress and egress to and from the Andrews premises; not the common injury which the owner would suffer in common with’ the public in general, but the damages arising from being prevented from using the alley as a private roadway to gain access to his property. Embraced in this is every element or source of damage for which an allowance was made.
The findings are subject to some criticism for want of clearness, but when they are considered together there is no difficult7 in understanding the meaning of the jury, and, so considered, they cannot be regarded as contradictory or inconsistent with the general verdict. The amount awarded by the jury seems to be quite liberal, but five different juries have substantially found the same amount; and as the case was fairly submitted, the verdict must stand and the judgment thereon must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On June 25, 1883, Peter Dusa purchased of M. K. Lewis & Son, through their agent, B. Cookingham, a “Lewis header,” and in payment executed his two promissory notes for $125 each, and paid $15 freight on the machine. One of the notes was transferred and assigned to the agent, Cookingham, who, on August 12, 1884, commenced his action against Lusa to recover the amount thereof. In his answer the defendant admitted the execution of the note, but alleged as a defense that there was a warranty given at the time of his purchase of the machine; that there was a breach of the warranty; that he tendered back the machine, and rescinded the contract of purchase. At the October term, 1885, the action was tried before a jury, which returned a verdict for the defendant for $17.50, being the money expended for freight, with interest. Of this judgment the plaintiff complains.
It is contended that the defendant utterly failed to prove a rescission of the contract. It is a general proposition, that on a sale of a personal chattel with a warranty, in case the chattel turns out to be not of the kind or quality represented, the purchaser may have one of the two remedies. He may rescind the contract and return the property. The effect of such action is to place the parties in the same condition in which they were before the purchase; and whatever has been paid or delivered by either is to be returned, and it or its value may be recovered in an action therefor. This is one remedy. The other is, that the purchaser may affirm the contract, retain the property, and recover damages from the vendor for the breach of his warranty. (Weybrich v. Harris, 31 Kas. 92.) In order, however, that the purchaser be entitled to rescind the contract, he must return the prop- / . . L . ^ erty or 'offer to return it within a reasonable time. He cannot retain and use the property, and at the same time sa7 he repudiates and rescinds the contract of purchase. In the case at bar, the defendant obtained the machine on June 25,1883; he used it during the harvest of that year, cutting over 180 acres of grain, and sometime in the fall of 1883 took George Walker with him and went to the plaintiff, who as agent had sold him the machine, and “asked him what he wanted him to do with the machine.” Plaintiff answered “that he had nothing to do with the machine; that he wanted the money for it, but not the machine.” Defendant testified “that he did not do anything more with it, but left it where it stood in [his own] yard, and that it stands there yet.” Upon the part of the defendant, it is claimed that he was induced to postpone the rescinding of the contract by the repeated promises of the plaintiff to make the warranty good, and therefore was excusable for his delay in returning or offering to return. The testimony shows that the machine was deficient in elevating; that it did not cut a clean or an even swath, but scattered the grain more or less on the ground. The defendant ascertained in a few days after his purchase that the machine did not correspond with the terms of the warranty, and went to the plaintiff and told him “the machine did not work at all in any shape; that he could not hold the hind end down, and that there was something wrong with it somewhere.” Plaintiff told him “he would get a team and send a man down right away.” On the return of the defendant to his home, he found the brother of the plaintiff in the field, who took the machine apart and changed the beams, and then put the machine together again. This, however, did not put the machine in good order. A few days afterward the defendant again went to the plaintiff, and told him “he,could not use the machine in any way, shape or form.” The plaintiff said to him “to do the best he could with the machine, and that he would send a man immediately, or dispatch to the agent to come, to put the machine in order.” After that the plaintiff paid no further attention to the machine, and did not send anyone to repair or look after it. The defendant, with full knowledge of its defects, continued to retain and use the machine, and did not return or offer to return it until the fall of 1883 —the exact date of his offer to return he could not remember. It does not appear from the evidence that the offer to return was made before the note sued on became due, and when the defendant made his offer to return, he did not demand his notes, or either of them. During the winter of 1883 — 4 the plaintiff requested the payment of the note as often as twice a week. In the spring, the defendant said to the agent of the plaintiff, when he was asked if he would not pay for the machine, that “whenever the machine was made good, the money was good.”
The question of fact as to what is a reasonable time within which to return or make the offer, is for the jury where there is sufficient evidence for them to consider, or upon which, under the circumstances, a verdict may be sustained that the time was reasonable; yet it is clear that it must, after some lapse of time and under some circumstances, become a question of law for the court'. It was said in Boothby v. Scales, 27 Wis. 626:
“No juiy has the power arbitrarily to say that six months or six years is a reasonable time in which to test a fanning-mill, when everybody knows that a single day, or at most two or three days, with all the conveniences at hand, is amply sufficient for that purpose. The very meaning of the rule is, that the purchaser shall have fair and sufficient time and opportunity, all the circumstances considered, including his own, to test and examine the property and ascertain whether it corresponds with the warranty or not; and if not, immediately to return or offer to return it to the seller, and claim a rescission of the contract. It is inconsistent with the nature of the right or privilege thus given the purchaser, that there should be any unnecessary delay in the exercise of it. The seller in the meantime is deprived of the use of his property, and perhaps of the opportunity for re-sale. He is liable to refund the purchase-money with interest from the time of sale; or, if it has not been paid, he loses the interest on it. These considerations are sufficient to require promptness, and forbid needless delay on the part of the purchaser. If it appears that he had ample time and opportunity to test and examine the article, and ascertain its quality or capacity with reference to the warranty, and might have conveniently done so, but neglected to do it, such neglect should be regarded as a waiver of the right to rescind, and as an election on his part to retain the property, subject to such claim for damage as he might subsequently establish.”
(See also Morgan v. McKee, 77 Pa. St. 228; Weybrich v. Harris, supra; Kingsley v. Wallis, 14 Me. 57; Holbrook v. Burke, 39 Mass. 546.)
In this case the facts of return or offer to return are not in dispute. When complaint was last made to the plaintiff of the machine during the harvest of 1883, he did not, as he promised, send out a man immediately to repair or put the machine in order, nor did he send anyone within a few days, or within a reasonable time; in fact he sent no person at all to look after or repair the machine after that complaint was made; yet the defendant retained and worked the machine the balance of the harvest, and then retained the machine during the months of August and September, and later, and made no offer to return it until after the payment of the note had been demanded. The offer to return was not made within a reasonable time, and the delay, therefore, was inexcusable; and upon the facts in this case, the trial court should have said, as a matter of law, that the offer to return came too late, and that there was not sufficient evidence o£ jj. ke consj(jere(j by the jury. Therefore the court erred in overruling the demurrer to the testimony offered by the defendant, and also erred in instructing the jury to find from the evidence “whether the defendant rescinded the contract and returned the machine, or offered to return it in a reasonable time after discovering its defects.” Although the defendant has not rescinded the contract by returning or offering to return the machine purchased within a reasonable time under the circumstances of this case, he may, upon proper amendment of his answer, recover damages for the breach of the warranty, if any be established upon another trial.
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Joi-inston, J.:
This is an original action of mandamus, commenced in this court in the name of the state of Kansas, on the relation of the county attorney of Harper county, to compel the board of county commissioners and the county clerlr of that county to make a canvass of the returns and declare the result of an election held in that county on the 8th day of November, 1887, upon a proposition then submitted to the voters of the county and voted upon to establish a county high school at the city of Attica, and also to appoint six persons, having the qualifications required by law, as a board of trustees for such high school.
It appears that at the October session of the board of county commissioners of Harper county, a petition was presented to the board requesting that an election be called for the purpose of submitting to the voters of Harper county a proposition to establish a county high school at the city of Attica. The prayer of the petition was granted by the board, and an election ordered to be held on November 8, 1887. Notice of the election was directed to be given by publication in the Anthony Republican, and by making due proclamation in the manner required by law. The election was held at the same time as the general election of that year for county officers, and on the Friday following the election the defendants met at the office of the county clerk and proceeded to canvass the returns of the election, and also the returns on the proposition to establish a county high school. It was found that 2,264 votes were cast upon the proposition, and of these 1,397 were in favor of the proposition, and 867 were against it. It was also found that the highest number of votes cast at that election, as.shown by the returns made to the county clerk for county officers, was 3,109 — that being the number of votes cast for county treasurer. The board of canvassers thereupon determined and declared that the proposition had not carried; and thereupon an application was made for and an alternative writ of mandamus awarded against the defendants, commanding them to reassemble and declare the proposition to have been carried, or show cause why they refused to do so.
Two objections are urged against the allowance of a peremptory writ: one. that the proposition did not receive a majority of all the votes cast at that election, and therefore failed; and another, that the election held was invalid because legal notice of the same was not given. Upon the first objection there is no room for controversy. The statute under which the election was held provides that the question of establishing a county high school shall, upon proper petition and notice, be submitted to the voters of a county at a general or special election, by the board of county commissioners; 'and it is further provided, that “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 establishing such high school,” the county commissioners are then required to appoint trustees and otherwise provide for the maintenance of such school. (Laws of 1886, eh. 147, §§1, 2, 3.) The question presented is, whether the proposition must receive a majority of the highest number of votes that may be cast upon any question at that election, or whether a majority of those cast upon the proposition itself is sufficient to give the required consent. This question has been already considered and settled in an action arising on a substantially similar statute. In Comm’rs of Marion Co. v. Winkley, 29 Kas. 36, the validity of an .election upon a proposition to allow a bounty for the growing and cultivation of hedge fences was under consideration, and the statute upon which the election was held provided that “if a majority of the votes cast are for the bounty, they shall declare said law to be in full force and effect.” That proposition was voted on upon the day on which the general election for township officers in the county was held, and it did not receive a majority of the votes cast at the township election, and it was therefore contended that the proposition was defeated. It was decided, however, that “the electors who were present at the polls, at the called election, and, while voting for township of-7 ' 0 ,1, ficers, did not vote upon the bounty proposition,
are presumed to assent to the expressed will of the majority of those voting thereon.” This is a controlling authority, and disposes of the first objection that has been made. (See also County Seat of Linn Co., 15 Kas. 500; Cass v. Johnson, 95 U. S. 369.)
The second objection is a more serious one, and must be held fatal to the election upon which the right to a peremptory writ is based. Section 2 of the statute under which the election was held expressly provides that twenty days’ notice of such election shall be given in the same manner as all legal notices of general or special elections are given. The manner of giving such notification is by the posting ,of an election notice or proclamation in each of the places where theelection isappointed to be held, and also by inserting the same in one of the newspapers published in the county, if any such are published therein. (Comp. Laws of 1885, ch. 36, § 5.) The required notice was properly published in the Anthony Republican, a newspaper published in Harper county, but it is admitted that the sheriff failed to post any notices of the election at the various polling-places of the county. Did this omission invalidate the election subsequently held? There is no more important step in an election than the giving of notice. It is essential to the validity of an election that notice should be given either by the law itself, or in the manner prescribed by the law. A well-defined distinction exists between general and special elections respecting the strictness to be observed in the manner of giving notice. In regard to general elections, the time for their occurrence and the officers to be voted for are definitely fixed by law; and as the electors are presumed to know the law, they are charged with knowledge of the time and purpose of the election, and the mere failure of the sheriff or other officer to post up or publish an additional or other notice will not invalidate the election. In such cases the provisions requiring additional notices are regarded as directory, the non-observance of which will not generally vitiate the election. (Jones v. Gridley, 20 Kas. 587; Wood v. Bartling, 16 id. 109; Morgan v Comm’rs of Pratt Co. 24 id. 71.) In special elections, like the one we are considering, where the time is to be fixed by some officer or tribunal, a very different rule must necessarily be applied. While the law furnishes the authority for calling and holding a special election, it does not generally'designate the time when it is to be held. In such cases the electors depend upon the notice required to be given, and not upon any knowledge derived from the law itself; and hence the right to hold such election at a specified time is the notice prescribed by the statute. It is therefore a mandatory provision, and the courts generally hold it to be essential that the prescribed manner shall be followed in order to give validity to the election. This court has always held that the particular mauner provided by statute for giving notice of a special election must be strictly pursued. In George v. Oxford Towship, 16 Kas. 72, the validity of a special election held for the purpose of voting bonds, for which thirty days’ notice was required to be given, was considered. ■ Notice was given of that election, but only for fifteen days instead of thirty as the statute required; and it was held that the election depended for its validity upon the prescribed notice being given, and that if it was not given, the election must be held to be invalid. It was there stated that “where the time and place of holding the election are to be designated by some board or person, as in this case, and are not fixed by law, then the notice required by law must be given.” Where the legal notice is not given, or there is a substantial departure from the direction of the law in the manner of giving the same, and a large number of the elect ors fail to vote, we must hold in conformity with earlier decisions, that the election held thereunder is void. (Jones v. The State, 1 Kas. 273; Gossard v. Vaught, 10 id. 162; Wood v. Bartling, 16 id. 109; Kenfield v. Irwin, 52 Cal. 165; Hubbard v. Town of Williamstown, 61 Wis. 397; Morgan v. Gloucester City, 44 N. J. Law, 137; Beal v. Ray, 17 Ind. 554; Harding v. Rld. Co., 65 Ill. 90; Stephens v. The People, 89 id. 337; Cooley’s Const. Lim. 603.) A large number of the electors of Plarper county who participated in the election of November 8, 1887, failed to vote upon the high-school proposition. This omission may have resulted from the-want of legal notice, or from the indifference of the voters; and,'possibly, if all had been advised as the law requires of the submission of the proposition, it might have been defeated. There were 845 voters who failed to express their will as to the expediency of establishing a high school, and as has been seen, the proposition received a majority of only 530 of the votes cast thereon. If the 845 voters present and participating in the general election had been notified of the special election and had voted against the proposition, it would have been defeated by a majority of 315. There was a claim made, and some attempt to show, that the holding of the election was brought to the attention of the voters by other methods than those prescribed by the statute, and which were just as effectual. But as the statutory notice is a prerequisite to the validity of the J L 1 # election, it is needless to inquire farther. It is conceded that the prescribed notice was not given; therefore the election must be held to be void, and the peremptory writ asked by the plaintiff must be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action to contest the will of E. C. Miller, deceased, and to set aside the order of the probate court admitting it to probate. The defendant in error, Jacob F. Miller, was the brother and sole heir of the deceased. The other defendant in error, William Crowell, had been appointed administrator and has otherwise no interest in the action. The petition charged that the will was invalid for several reasons ; among them, that it was not executed in the manner provided by law, in this, that it was not attested and subscribed in the presence of the testator by two or more competent witnesses.
By the terms of the will, the testator devised his property, amounting to about $25,000, in equal shares, to the plaintiff in error, Johnson Clark, and the defendant in error, Jacob P. Miller. It was written by said Clark and witnessed by himself and his wife and none other. On the trial it was admitted that the Johnson Clark who witnessed the execution of the will was the same Johnson Clark to whom the devise of one-half of the' property was made by it, and that the other witness was his wife. Some other evidence besides this admission was introduced by the plaintiff. The defendant offered several items of evidence, among which was the deposition of the wife of Clark, which was rejected by the court, and the court found that the will had not been legally executed, and rendered judgment for the plaintiff.
There is much discussion as to the question whether Mrs. Clark was a competent witness to the will, being the wife of one of the devisees, but our view of the case renders it unnecessary to follow this discussion or decide the question.
Section 2 of our act concerning wills (Gen. Stat. 1901; § 7938) provides that every last will and testament, except nuncupative ones, must be signed by the party making the same, or by some person in his presence and by his express direction, and be attested and subscribed by two or more competent witnesses. It is as essential that the writing be subscribed by at least two competent witnesses as it is that it be signed by the testator, in order to be a valid will. At common law a devisee under a will could in no case be a competent witness thereto (Under. Wills, 263) ; so chat, if we should go no further than section 2, it is clear that, inasmuch as Clark, being a devisee, was not a competent witness, then there was no will, and all of Miller’s property would go to his heirs — in this case, to his brother, Jacob F. Miller.
But section 11 of the act (Gen. Stat. 1901, § 7947) provides :
“If a devise or bequest be given to a person who is a witness to the will, and the will cannot otherwise be proved than by the testimony of such witness, the devise or bequest shall be void, and the witness shall be competent to give testimony of the execution of the will in like manner as if such devise or bequest had not been made.”
This provision ‘changes the common-law rule in so far as that one named as a devisee in the will may become a witness thereto to the extent of sustaining other devises contained in the will. He is still, however, an incompetent witness, so far as any devise to himself is concerned. A devisee can take nothing under a will witnessed only by himself and another, for, as to su'ch devise, there are not two competent witnesses, and, therefore, so far- as it is concerned, no will.. In this-case there was no devise to Johnson Clark, because there were not two competent witnesses to that part of the will. Clark could take nothing under a will witnessed by himself. To be sure, under the statute quoted, he was a competent witness as to the other devises contained in the will, but, as by the will what did not go to Clark went to the brother, Jacob F. Miller, and as Clark could take nothing under the will, therefore, Jacob F. Miller took the entire estate either with or without the will, and as Clark took nothing by the will, he could not be prejudiced by any erroneous rulings made by the court below. In other words, the admission that Clark, the devisee, and Clark, the witness, were one and the same person was but the admission that he had no interest whatever in the estate, and that in this case the brother was the sole owner.
The j udgment of the court below in favor of Miller, the defendant in error, was correct, and will be affirmed.
Greene, Pollock, JJ., concurring.
Smith, J., dissenting. | [
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The opinion of the court was delivered by
Smith, J.:
It is insisted by counsel for defendant in error that the law set forth in the statement was given retroactive effect by the collection, under its authority, of taxes from the insurance company for the year 1899, based on business done in 1898, and that, in fact, the tax was on insurance written before the law was passed. With this contention we do not agree.
Section 4 empowers the superintendent of insurance to revoke the license of any company that shall fail to comply with the requirements of the law for thirty days after January 15. As we interpret the act, it has for its purpose the annual collection of a two-percent. tax on the amount of. business done in this state by foreign insurance companies as a condition to their right to continue to transact business here. With this object in view, section 2 of the law, which requires a sworn statement to be made by such companies of the amount of all premiums received in the state during the year ending December 31 preceding, was inserted to cover cases like the present, when the company had been doing business in this state before the passage of the act. While it is a principle of statutory construction that laws are to be so interpreted as to give them a prospective rather than a retroactive effect, this rule is not infringed by sustaining the method employed, which the law authorizes, of ascertaining the amount of tax to be paid by computing it from the volume of business done in the preceding year by the company sought to be charged.
The penalty prescribed for the failure on the part of a foreign insurance company to pay the tax is that the superintendent of insurance shall revoke its license to transact business. In this case, if the interpretation put on the law by the insurance company is the correct one, it might have continued to carry on its business here throughout the year 1899, to January 15,1900, without the payment of this tax, and, on the last date, have withdrawn from the state, and the su perintendent would have been powerless to coerce payment of the amount due. The tax collected ih 1899 was not levied on business done in the previous year. The amount of the premiums collected during ¡the year before was used as a basis for determining the amount the company ought to pay for the privi-lege of writing insurance in this state for the subsequent year.
Counsel complain that the law is unjust. The regulation of the right of foreign insurance companies to transact business in this state is admittedly within the power of the legislature, and, in our opinion, nothing more was sought to be done by the passage of the law in question than to make the payment of this tax a condition precedent to the right of the company to transact an insurance business here after January 15, 1899.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Charles Perry brought suit against the Kansas City, Fort Scott & Memphis Railroad Company in the district court of Bourbon county to recover damages resulting from two fires claimed to have been occasioned by the operation of the railroad company’s trains. The first fire occurred November 17, 1898, and the second fire October 9, 1899. The testimony disclosed that each fire started near the outside of the railroad company’s right of way, and at all events not more than sixty-one feet from the center of the track. Both fires started in an enclosed cultivated field, and each time the ground was covered with very dry, combustible vegetation. In each case a considerable wind was blowing and the course of the fire was away from the railroad-track. One fire traveled at ab'out the speed of a horse and the other as fast as a man could run. In each case the tenant of the farm discovered the fire from the smoke driving from the field toward the farmhouse. One fire was discovered a minute or two after a passenger-train had gone by, and the other a few minutes after a freight-train had passed, the freight-train having been preceded by a passenger-train. No other facts were adduced in evidence relating .to the origin of the fires, and the question for determination is the sufficiency of the evidence produced to support a verdict against the railroad company.
' It is contended by counsel for the railroad company that since there was no evidence at all that either train threw sparks or live cinders, or emitted smoke, or was put to special exertion, and no further evidence than that stated above of the non-existence of any other adequate cause, the fact was not established that the fires complained of were caused by the operation of the railroad, under section 5923, General Statutes of 1901. There is no disposition to question the rule that, in the absence of positive proof of the means of ignition, a full conviction of the fact may be generated by circumstances. (A. T. & Santa Fe Rld. Co. v. Bales, 16 Kan. 252; Railroad Co. v. Matthews, 58 id. 447, 49 Pac. 602.) But it is argued that, to establish the relation of cause and effect between the passing of the trains and the fires in question, the jury must have invaded the realm of sheer conjecture and guess.
It is true that the origin of the fires must rest upon proof and not upon possibility ; but it is not true, as stated in Musselwhite v. The Receivers, 4 Hughes, 166, Fed. Cas. No. 9972, that the test of the value of circumstantial evidence in cases of this character is that no other theory but the hypothesis upon which the conclusion is based can be formed. If the circumstances present a'reasonably adequate cause, they will be sufficient to go to the jury, even though some other cause which may be suggested may not be excluded.
In discussing the probative force of circumstantial evidence, Professor Greenleaf says : “In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove.” (Greenl. Ev. § 13a.) In The Louisville, New Albany and Chicago Railway Company v. Balch, 122 Ind. 583, 23 N. E. 1142, the rule was stated as follows : “If circumstances are proved authorizing an i nference in favor of a plaintiff, it is proper for the jury to draw it, and their verdict cannot be dis turbed.” See, also, Railroad Co. v. Matthews, supra. Can it be said, then, that the conclusion of the jury from the facts before them was legitimate ? Courts of sound judgment have so decided.
In the case of Smith v. London & S. W. Ry. Co., determined in the exchequer chamber, 6 L. R. C. P. 14, the facts bore considerable similarity to those involved in this case, and, as set forth in the head-note of the report, were as follows :
“Workmen employed by the defendants, a railway company, after cutting the grass and trimming the hedges bordering the railway, placed the trimmings in heaps between the hedge"and the line, and allowed them to remain there fourteen days during very hot weather, which had continued for some weeks. A fire broke out between the hedge and the rails and burnt some of the heaps of trimmings and the hedge, and spread to a stubble-field beyond, and was thence carried by a- high wind across the stubble-field and over a road, and burnt the plaintiff’s cottage, which was situated about 200 yards from the place where the fire broke out. There was evidence that an engine belonging to the defendants had passed the spot shortly before the fire was first seen, but no evidence that the engine had emitted any sparks, nor any further evidence that the fire had originated from the engine, nor was there any evidence that the fire began in the heap's of trimmings and not on the parched ground around them.”
Upon the argument it was suggested :
“There were many other ways in which it may have begun which are equally consistent with the evidence. Thus, a fusee may have been thrown from a window of one' of the carriages of the train, or one of their workmen on the line may have dropped a spark from his pipe. Where the evidence is equally consistent with the view that the defendants were liable, and that they were not, there is no evidence to go to the jury.”
To which Channell, B., replied:
“But here the two causes of the fire that are suggested, viz., the engine and the pipe or cigar, are not of equal- probability, and there was evidence for the jury, therefore, that the fire was caused by the more probable of the two alleged causes.”
It Was, therefore, held:
‘ ‘ That it being a matter of common knowledge that engines do emit sparks, there was evidence for the jury that the fire originated in sparks from the engine that had just passed.”
Likewise the supreme court of Iowa, in Johnson v. The Chicago & N. W. Ry. Co., 77 Iowa, 666, 42 N. W. 512, held;
“Where the evidence showed that after defendant’s engines had passed the fires were discovered in the grass, and it was not shown that they could have arisen from any other source, the jury was warranted in finding that they were caused by the engines.” -
In Wisconsin the question was determined in Abbott and another v. Core, 74 Wis. 509, 43 N. W. 365, as follows:
“The fact that an engine passed shortly before a fire was discovered on or near the right of way is some evidence tending to show, in the absence of proof of any other cause, that such engine set the fire, notwithstanding it was in good order and properly managed.”
In the case of Richmond v. McNeill, 31 Ore. 342, 49 Pac. 879, the syllabus reads :
“Evidence tending to show that a railway company negligently left along its track combustible material, which was discovered to be on fire soon after the passing of a train, and plaintiff thereby suffered damage, raises an inference that the fire was caused by sparks from the engine, which the company must rebut.”
Other cases illustrating the method of induction involved may be found in the American and English Encyclopedia of Law (second edition), volume 13, page 513. See, also, A. T. & S. F. Rld. Co. v. Gibson, 42 Kan. 34, 21 Pac. 788.
In the case at bar, given the place of origin in a field devoted to the production of farm crops and near to the railroad-track, the inflammable character of the growth upon the soil, the close proximity in time of the passing of the train and the fire, the well-known fury of the forces in the locomotive, and the strength and direction of the wind, and no scientific or juridical process of thought could be violated in any way by inferring that the operation of the train caused the fire. The verdict of the jury, therefore, was fully warranted by the evidence.
Some complaint is made that in the proof of the origin of the first fire the only witness who was present on the premises at the time referred to the passing of the train as occurring “about” the time he discovered the fire. His narrative of all the facts and his description of the progress of events clearly showed, however, that the fire could not have been burning in the field before the train went by, and the evidence was sufficient to sustain the verdict in this respect.
A part of the property injured and destroyed consisted of fruit-trees in an orchard and a hedge forming a fence. The court instructed the jury that the measure of plaintiff’s recovery was “the amount and value of the damage to the thing injured, and the value of the thing destroyed, as an appurtenance to the part of the realty.” Property of this character has a distinct value of its own as part of the land, and was so esteemed in all the testimony relating to dam age. Since evidence of this character was properly admissible under the decisions of this court (Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526 ; Railway Co. v. Arthurs, 63 id. 404, 65 Pac. 651), it must follow that an instruction based upon such evidence was entirely proper.
No error appearing in the record, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant in error recovered a judgment against the Metropolitan Street Railway Company for personal injuries sustained at a place where Parallel avenue, in Kansas City, Kan., crosses the tracks of said company. She was driving a horse hitched to a surrey, and in attempting to go over the railway-tracks the vehicle was struck by a car. She .testified that the horse was going in a walk, and that at a distance of fifteen feet from the crossing she could see up the track (from which direction the car came that caused her injuries) no further than eighty or ninety feet by reason of obstructions to her view, caused by houses and trees. She also testified that when within six or eight feet from the track she looked up north and saw no car approaching. The defendant below introduced a witness who testified that he had made measurements and taken observations at the place where the accident occurred, showing that at a distance of fifteen feet west of the street-railway track a car could be seen approaching from the north at a distance of 277 feet. Plaintiff below was familiar with the crossing, and knew that cars were constantly passing over it.
The negligence alleged and sought to be proved by the plaintiff below was that the street-car was recklessly run at a speed of eighteen miles per hour, and that it approached the street-crossing without ringing the bell or giving other warning. Plaintiff below did not deny that the car could be seen at a distance of eighty or ninety feet from the crossing when she was within six or eight feet from the track..
Counsel for the street-railway company requested the court to give the following instruction to the jury, which request was denied :
“If you find from the evidence that plaintiff looked to the north for an approaching car before going upon the track, and you further find that, at the time she so looked, the said car was there approaching and within 'view of her, then you are instructed that plaintiff is chargeable with knowledge of its approach, although plaintiff claims that she did not see said car approaching.”
No instruction was given covering the same point,nor was the attention of the jury called to the legal effect of a failure on the part of the plaintiff below to observe the car if it was within the range of her vision. If the jury believed the testimony of the witness above referred to, who measured the distances and made the observations, they must have concluded that, if the plaintiff looked up the track with an unobstructed view for 277 feet, she could have seen the approaching car in time to avoid the accident. In view of this, it was proper that they should have been directed to consider the effect of her negligence in attempting to cross in the face of visible danger. It seems probable, also, that she might have escaped injury, at the gait the horse was going, had she seen the car coming from a distance of eighty or ninety feet, when she was six or eight feet distant from the crossing. She either saw the car or else her testimony was untrue, if the testimony introduced by defendant below was given credence. (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583.) In the case cited the court quoted approvingly from the case of C. C. C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340, 355, where it was said:
“It is nothing to the purpose that he should say he looked this way and that, when the object he seeks to discover is plainly and palpably before him, and he fails to see it. Either his statement is not true, or his exercise of vision was such as to be not only negligent but culpable.”
The instruction asked should have been given.
The judgment of the court belqw will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiffs in error brought suit in replevin in the district court of Kingman county in December, 1892, to recover the possession of a certain stock of merchandise, claiming to be the special owners thereof under a chattel mortgage executed to them by A. J. Grice and David O. Grice to secure the sum of $1481.50, which indebtedness was evidenced by five promissory notes, dated November 21, 1892, and due respectively in 10, 40, 70, 100 and 130 days after date. The cause was tried in December, 1894, and a judgment rendered in favor of defendants. From this judgment a proceeding in error was prosecuted to the court of appeals, where the judgment was reversed and the cause remanded. (McDonald v. Grice, 9 Kan. App. 657, 58 Pac. 1035.) The cause was again tried in the district court of Kingman county in March, 1900, wherein the court sustained a demurrer to the plaintiffs’ evidence, and entered judgment against them for costs. From this judgment the plaintiffs prosecuted proceedings in error to this court. No action was ever brought on the notes, and when the last trial was had an action on the notes was barred by the statute of limitations. The court sustained the demurrer to the evidence of plaintiffs on the ground that, as the action was barred on the notes, their right to recover in the replevin action was also barred.
This presents the only question in this case. We do not agree with this contention. The plaintiffs’ action was to get possession of the property and apply the proceeds thereof to the payment of their debt. The action, therefore, was in the nature of a foreclosure of the mortgage, and while it was pending the statute of limitations did not begin to run on their rights in that action. The contention of defendants in error, that where an action on a note or bond is barred it is also barred on a mortgage given solely as security, is fully sustained by the authorities, but the principle has no application to an action in the nature of a foreclosure of a chattel mortgage commenced at a time when the note and mortgage are both alive. In such case, the rights of the parties cannot change during the litigation. When the present action was brought for the possession of the mortgaged property, the notes held by the plaintiffs against the Grices, secured by the mortgage, were not barred by the statute, and, the action being in the nature of a foreclosure, the bar of the notes did not affect their right to recover.
The judgment of the court below is reversed and the cause remanded.
Smith, Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
G-reene, J. :
The plaintiff in this action filed its statement in the office of the clerk of the district court of Leavenworth county on the 24th day of December, 1895, claiming a lien on certain lots in the town of Lin wood, for material sold and delivered to the defendant in error the John Sailor Memorial. Methodist Episcopal Church of Linwood, Kansas, in the sum of $320.98. It stated that the material was used by the corporation in the construction and erection of improvements on the lots. On May 9, 1896, it commenced this action against the church corporation and its trustees to foreclose the lien. The amended petition, among other things, stated that in the month of August, 1895, the plaintiff entered into a contract with the trustees of the church, acting by and through one J. L. Buckner, a contractor, by which it sold and delivered to Buckner for said trustees the material mentioned in its lien statement; that all of said material was delivered to the trustees and by them received and placed- upon the premises described ; that on December 24, 1895, a notice of the filing of the statement for a lien was served on the trustees, with a copy thereof, which had an itemized account of the material so furnished attached thereto.
On the 29th day of July, 1896, the plaintiff again amended its petition by stating that J. L. Buckner was the, principal contractor and the one who procured 'the lumber from plaintiff. The cause was continued from time to time until September 25, 1899, when, upon the application of plaintiff, Buckner was made a party defendant and his name inserted in the original petition by interlineation. Summons was issued but returned not served. On March 5, 1900, a jury was impaneled to try the cause, and when the plaintiff offered to introduce evidence the defendants objected for the reason that the petition did not state facts sufficient to constitute a cause of action. This objection was sustained, and, the plaintiff not desiring to amend, judgment was rendered against it for costs.
It is said that the court sustained this objection for the reason that Buckner, the contractor, was a necessary party to the action, and that, as he was not made a party within one year from the filing of the statement for a lien, the petition, on its face, shows that the cause of action is barred by the one-year statute of limitation, and, therefore, does not state facts sufficient to constitute a cause of action. In' this we think the court erred. Ajl objection to the introduction of evidence because of the insufficiency of a petition is not favored. Upon such objection, the petition, and its intendments, will be construed with great liberality. (Mitchell v. Milhoan, 11 Kan. 617; The State v. School District, 34 id. 237, 8 Pac. 208 ; Robbins v. Barton, 50 id. 120, 31 Pac. 686.)
This petition states a cause of action against- the corporation, and as to it the action was brought in time. Section 5121, General Statutes of 1901, provides that an action to foreclose a material-man’s lien shall be brought within one year from the time of the filing of the statement. This action was brought against the owner of the property within the year. Notwithstanding the statute provides that the original contractor shall be made a party, it does not provide that he shall not be made a party after the ac tion is commenced and after the expiration of one year. The purpose to be served by making the contractor‘a party is that he may defend, at his own ex-, pense, and the statute provides that, “if he fails to make such defense, the owner may make it” for him. (Gen. Stat. 1901, §5122.) For this purpose the contractor may be brought into the action at any time upon the application of either party, provided the action is properly brought against the owner of the premises within the year.
The petition in this case is carelessly drawn, and with reference to the lien statement, which is made a part of it, is somewhat inconsistent. The statement says that the material was sold and delivered to the church corporation direct, while the amended petition, inferentially at least, alleges that it was sold to Buckner as a contractor. If the statement for a lien is correct, Buckner is not even a proper party; if the allegations in the amended petition are correct, he is a necessary party.
While a motion to make more definite and certain should have been sustained, an objection to the admissibility of evidence, on the ground that the petition does not state a cause of action in its present condition, should have been overruled.
The judgment of the court below is reversed.
Smith, Cunningham, Pollock, JJ., concurring. | [
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Error from Allen district court. | [
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Error from Montgomery district court. | [
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The opinion of the court was delivered by
Johnston, J.:
In an encounter between Albert Morris and John Nelson, at Coffeyville, on September 4, 1901, the latter shot and killed Morris. Nelson was prosecuted on a charge of murder, and was convicted of manslaughter in the second degree. On the trial and on this appeal, he claimed that it was justifiable homicide. They were brothers-in-law, but their relations had been unfriendly for some time before the encounter, and defendant claimed that on several occasions Morris had threatened to kill him, and came to Coffeyville on the day of the tragedy for that purpose. He claimed, and offered testimony to prove, that Morris, went directly to the livery barn where defendant’s horses were, and that when the latter went to the barn Morris stood in the door with an open knife. To avoid meeting Morris he left the barn, made preparations to leave Coffeyville, and, when about to start for home and as he was passing down the street toward the barn with a bundle in his arm, he saw Morris standing on the sidewalk looking toward him ; that he went to the edge of the walk farthest from Morris, and had passed him when the latter advanced and assaulted him with a knife. After Morris had struck Nelson, and several times had knocked him to his knees, defendant drew his revolver and fired several shots, one of which struck and killed Morris.
At the trial, over the objection and exception of the defendant, the court gave the following instruction as to self-defense :
“Where one without fault is placed under such circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and affords grounds for a reasonable belief in the mind of the assailed that there is imminent danger of the accomplishment of such design, he may, acting under the fears alone, slay his assailant and be justified by the appearances; and as, where the attack is sudden and the danger imminent, he may increase his peril by retreat, so situated, he may stand his ground and slay his assailant, even if it is thereafter 'proved that he might more easily have gained his safety by flight.
“On a trial for murder, if the defendant relies on a supposed necessity for the killing as a justification or excuse, the rule to be applied is that the accused must have believed, at the time he fired the fatal shot or shots, that he was in imminent danger of his life from the deceased, or of having great bodily harm done by Mm, and tMs belief must rest upon reasonable grounds, and the party from whom the danger is apprehended must be making some attempt to execute his designs, or, at least, be in an apparent situation to do so, and thereby induce the reasonable belief in the mind of the accused that he intended to do so immediately. You must determine' from all the facts and circumstances proven in this case whether this condition of things existed at the time of the firing of the fatal shot or shots by the defendant, John' Nelson. If you find from the evidence that at the time the defendant fired the fatal shot or shots which killed the said Albert Morris, the defendant acted under the belief that he was in danger of immediate death or great bodily harm at the hands of said Albert Morris, and that the circumstances, including the mental condition of the defendant at that time, were such as to induce such belief in the mind of an ordinary prudent person, under the same circumstances, and that the defendant was under the reasonable belief of the necessity of firing the said shot or shots in order to avoid death or great bodily harm, you will be justified in finding the defendant not guilty.” .
The vice of this instruction is that the jury are told that the facts and conditions recited therein would justify them in finding the defendant not guilty, when, if the facts and conditions suggested were found by the jury, it was a positive duty to acquit. The statute in effect provides that a homicide is justifiable if committed by a person in the lawful defense of himself from an assault, when there shall be reasonable cause" to apprehend a design on the part of his assailant to commit a felony or to do some great personal injury and there shall be immediate danger of such designs being accomplished. (Gen. Stat. 1901, § 1994.) If the killing was justifiable, the jury had no discretion in the matter, and were bound to acquit the defendant. The instruction complained of apparently gave the jury the discretion to acquit or convict, although the defendant may have shot and killed Morris when he believed, and had reasonable grounds to believe, that he was in danger of meeting death or great bodily, harm at the hands of Morris. It is not enough to tell the jury that a finding of not guilty in such cases is justifiable or defensible — that they are warranted Or at liberty to acquit where the homicide is justifiable — and the language used implies no more than that. Instead of giving the jury permission to find the defendant not guilty under such circumstances, there should have been a clear and unequivocal direction to acquit.
In a prosecution for murder, it is important that the charge should be so explicit and accurate as not to mislead the jury as to the law of the case or leave them in doubt as to their duty. It was especially important to the defendant in this case, as he was defending on the theory that he was under a reasonable apprehension of loss of life, or, at least, great bodily harm from the assault of Morris, and that the danger appeared to be so imminent that he had no alternative of escaping it, except by resistance with the weapon which he used. It is true, as the state claims, that in another instruction the court directed, an acquittal where certain elements of the crime were not established, but the one criticized was the only one which applied the law of self-defense to the defendant. It was the only one which presented the doctrine that one assailed could act on apparent danger of his life, and on the belief of the necessity of firing the fatal shots for the protection of himself. In view of the defense that was made and the circumstances of the case, wp cannot say that the erroneous instruction was not misleading and prejudicial, and that being true, the verdict should be set.aside.
The defendant had cause to complain of the misconduct of the jury and the bailiff in charge of them. Without permission of the court or the consent of the defendant, the jurors were taken to a public barber shop, where they remained a considerable time, until all of them were shaved. Later, and after the jury had retired to deliberate on the verdict, the bailiff separated the jurors, taking ten of their number to a hotel for breakfast, and left two of them, who did not feel like going, in the jury-room. While the bailiff and the ten jurors were absent, the janitor entered the jury-room and did some work there. At this time no officer was in charge of the jury-room or the jurors left in it, and these things occurred without the permission or knowledge of the court. At another time the bailiff left the jury in their room and went to his home some distance away, where he remained a considerable time, during which no one was in charge of the jury. An effort, not entirely successful, was made to show that no prejudice resulted from the misconduct. There were serious irregularities which should never occur in any case, and especially in one where life and liberty are involved. Whether there were sufficient of these to overthrow a verdict it is not necessary to inquire, since there is to be a reversal on other grounds.
Some important and newly-discovered evidence was offered on the motion for a new trial, which was excluded because it was not produced and filed within a time fixed by a rule of the court. It appears that some of it could not have been obtained within that time, and, hence, the enforcement of the rule was exceedingly harsh. In such cases, and where parties appfear to be acting in good faith, full opportunity should be given to the defendant to make a showing in support of his motion before final judgment is rendered.
For the error mentioned the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Appeal from Kingman district court. | [
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The opinion of the court was delivered by
Horton, C. J.:
On July 19, 1886, P. H. Elwell commenced his action against William Hitchcock, J. S. Nohrenhold, and others, alleging among other things .that on the 7th. day of October, 1885, he recovered a judgment against William Hitchcock for $159.06, with interest and costs; that on the 8th day of October of the same year he properly filed an abstract of the judgment in the office of the clerk of the district court of the county where the judgment was rendered; that subsequently an execution was issued upon his judgment, but returned milla bona; that William Hitchcock was seized of the equity of redemption in the northeast quarter of section 6, township 20, range 1, in McPherson county; and asking that his judgment be declared a lien upon the land; that it be sold, and the proceeds thereof applied to the payment of his and the other liens, if any, against the property. He also alleged in his petition that J. S. Nohrenhold filed in the office of the register of deeds of McPherson county, on April 20, 1886, a warranty deed from William Hitchcock to himself, of the land, but that Nohrenhold purchased the land subject to his judgment lien.
Upon the trial — which was by the court without a jury— it was shown that William Hitchcock, for a number of years prior to September, 1885, was the owner of the land in dispute; that he occupied it as a homestead; that he was a widower having two minor children; that in April, 1885, Hitchcock rented the land to Daniel J. Hagar; that Hagar was to have possession of two lower rooms of the house upon the land, but Hitchcock was to retain possession of one room in which to live; that at the time of the lease one of the children, Frank Hitchcock, about sixteen years of age, was at home with his father, and his other child, William, was at school in Iowa; that soon after the land was leased Frank went to Kingman county to work for his brother-in-law; that Hagar took possession of the land under the terms of his lease, on the 16th day of May, 1885; that Hitchcock put his household goods in one of the rooms of the house; that he came to the house from time to time to eat and sleep; that he continued to claim the house as his residence till he sold the same; that on the 21st day of September, 1885, he sold the land to J. S. Nohrenhold, giving to Nohrenhold a bond for a deed, which was filed for record in the office of the register of deeds of McPherson county; the consideration for the land conveyed was $3,460; possession of the land was given about October 1, 1885; Nohrenhold fully paid Hitchcock for the land at the date of the execution of the title-bond, by assuming certain incumbrances, paying $300 in cash, and executing his note for $1,563. After Elwell had introduced all his testimony and rested, Nohrenhold demurred to the evidence; this demuri’er was sustained by the court, and judgment rendered against Elwell for costs; exceptions were noted, and Elwell coznplains of the ruling.
I. It is contended on the part of the plaintiff, that if the land described in the petition was at any time the homestead of Hitchcock, the exemption therefor could only be claimed by him, and therefore that Nohrenhold could not claim it for him. It is true that Hitchcock, although duly served with a summons, failed to demur or answer1, but Nohrenhold as the owner of the land had the lawful right to show if he could, that at the time of his purchase, if it were necessary to establish that fact, the land in dispute was occupied as a residence by Hitchcock and his family, and exempt from forced sale under any process of law. Of course it is true that the right to claim the benefit of the exemption law is a personal privilege, but after the owner of a homestead has sold the same, the purchaser has a right, for the purpose of establishing his own title, to show that at the date of his purchase the land was a homestead, and therefore not subject to a judgment lien or forced sale. He does this, not for the benefit of his grantor, but for the protection of his own right and title. If a purchaser of land could not do this, then it would be unsafe to purchase any homestead or other exempt property. If the land was a homestead at the time Nohrenhold purchased, then the judgment of Elwell was no lien or incumbrance. If 160 acres of farming land is occupied as a residence by the family of the owner up to the time of its sale by the owner, no judgment lien not embracing taxes or purchase-money, or improvements, can attach or affect it. (Morris v. Ward, 5 Kas. 239; Hixon v. George, 18 id. 253.)
II. It is next contended that Elwell znade a prima facie case, and therefore that the court erred in sustaining the demurrer to the evidence. In this case there was no jury; the court, had all the testimony introduced by the plaintiff before it; upon the testimony it appeared that Nohrenhold was the owner of the land by purchase and possession before Elwell obtained or filed his judgment with the clerk of the district court. The judgment was dated the 7th of October, 1885; Nohrenhold bought and paid for the land of Hitchcock the 21st of September, 1885. He obtained his title-bond and took possession prior to the judgment — about October 1, 1885. The sale of the land and the delivery of possession by Hitchcock to Nohrenhold made Nohrenhold the absolute owner thereof. Hitchcock had no interest in the land subject to the judgment of Elwell at the time the abstract was filed.
The ruling of the trial court was in accordance with the law, and its judgment must be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
But one question is presented by the record in this action: Did the answer of the defendant set-out such a counterclaim and demand for relief that he was entitled to be heard thereon after the plaintiffs dismissed their cause of action ? The bill of exceptions shows that the mayor and city authorities answered in said action. Their answer is not set out, and we are unable to say what that answer was. There may have been sufficient allegations therein, in connection with defendant’s answer, to raise an issue of fact; and if it did, the dismissing of the action by the plaintiffs in error would not affect such issue. The defendant was claiming, affirmative relief; he was asking for an accounting between himself and the city of Meade Center, and the conveyance of the land claimed by the plaintiffs in error to himself. We think this was sufficient demand, upon which the court properly heard ,and determined the controversy set up in the defendant’s answer.
We therefore recommend 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
Horton, C. J.:
This is an original action brought in this court for the purpose of discharging the petitioner, Frank Farr, who it is alleged is illegally restrained of his liberty by Thomas Boyle, the sheriff of Lincoln county. An action was commenced in the district court of Lincoln county by the Waterman Bros, against Farr, to recover certain personal property. Subsequently, under the provisions of § 188 of the civil code, an attachment was issued against Farr, commanding the sheriff of Lincoln county to arrest and bring him before the district judge for examination as to the possession of the property described in the order of delivery. At the time that Farr was brought before the district judge of Lincoln county, he was at Salina, in Saline county; upon the examination, the district judge found that Farr had willfully removed a part of the property in dispute from Lincoln county, and concealed the same so that it could not betaken under the process of the court.
Upon the record and the evidence submitted, we think two questions only are presented for consideration. First: Was it necessary, before the arrest of Farr, to serve upon him the order of delivery, or any rule or order of the court to show cause why he should not be attached ? Second: Is the commitment or order of the district judge under which Farr is restrained of his liberty in due and legal form? Said §188 reads:
“In an action to recover the possession of specific personal property, the court, or judge in vacation, may, for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto, by attachment, and may examine either party as to the possession or control of the property. Such authority shall only be exercised in aid of the foregoing provisions of this article.”
The order of delivery issued in the action of Waterman Bros, against Farr, commanded the sheriff to take the property described therein, but as he could not find the property on account of its concealment, he was unable so to do. At the commencement of the action a summons in the case was served by leaving a copy thereof at Farr’s usual place of residence; before the attachment was issued Waterman Bros, presented to the judge of the district court their application, supported by affidavit, for the arrest of Farr, and alleging therein that the property sought to be recovered was eloigned, and concealed by him. Farr knew before he was arrested under the second order of attachment, which was dated the 4th of December, 1888, of the commencement of the action by Waterman Bros., and before he was arrested under the order of that date he had refused to turn over the property in controversy; therefore we do not think his arrest or detention is illegal on account of the failure of the sheriff1 to serve upon him a copy of the order of delivery, when his action prevented the sheriff from executing the order; nor do we think it necessary, in such an action, that any rule or order of the court must be first served upon a defendant to show cause before the issuance of the writ of attachment against him.
The objection to the sufficiency of the order of commitment is well taken. Section 705 of the civil code requires that all orders of the judge, in vacation or at chambers, shall be entered upon the journal of the court by the clerk.
Section 709 of the code reads: “All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts, upon a precipe filed with the clerk demanding the same.”
Section 700 of the code provides: “Thestyle of all process shall be: ‘ The State of Kansas.’ It shall be under the seal of the court from whence the same shall issue; shall be signed by the clerk, and dated the day it is issued.”
The process, or commitment under which Farr is held is signed by the judge only; it is not entitled “The State of Kansas,” nor signed by the clerk, nor has it his official seal attached thereto. After the examination of Farr before the district judge, the order of the judge should have been entered upon the journal of the district court of Lincoln county by the clerk thereof, and the commitment should have been issued by him, as required by said § 700.
The statement that Farr was arrested in Graham county and by virtue of that arrest confined in the county jail of Lincoln county, is not supported by the evidence. It is true he was arrested in Graham county, but escaped before reaching Lincoln county. Afterward he was rearrested in Lincoln county upon a new process.
If the sheriff of Lincoln county has disobeyed the orders or the commands of the probate judge of his county, the duty devolves upon that judge to punish, if any punishment is allowable. This court, in this proceeding, cannot enforce the orders of the probate judge, nor are we called upon to determine whether the sheriff is in contempt of that judge, or not.
For the defects in the commitment, the petitioner will be discharged, and will also recover his costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was for partition of a tract of land in Crawford county, in which Mary A. Mosteller, the plaintiff, claimed a one-half interest. The agreed statement of facts upon which the case was tried shows that Aaron P. Mosteller aud the plaintiff were married on February 9,1874, and lived together as husband and wife until his death, which occurred November 26, 1883. tie had four children by a former marriage, namely, George W. Mosteller, Lewis N. Mos-teller, John C. Mosteller, and Jane Gorrell, who intermarried with Thomas Gorrell. The mother of these children died many years prior to the marriage of the plaintiff to their father, aud they were all more than twenty-one years of age before the commencement of the action. These children and the plaintiff were the only surviving heirs of Aaron P. Mos-teller. Aaron P. acquired title to the land in controversy on June 11,1880, and on March 14, 1881, he executed a promissory note for $1,600, payable to Jane Gorrell and J. C. Mos-teller on the 1st day of the following July, secured by a mortgage on the premises in question. Default was made in the payment of the note, and on November 28,1881, an action thereon and to foreclose the mortgage was instituted in the district court, which was tried on January 6, 1882, at which time a personal judgment was rendered against Aaron P. Mosteller for the sum of $1,593, and a decree foreclosing the mortgage was obtained. There was a waiver of appraisement in the mortgage, and hence there was a stay of six months in the enforcement of the judgment aud decree. On' July 8, 1882, an order of sale or special execution was issued, and thereunder the sheriff levied upon the premises and proceeded to sell the same on August 14, 1882, in the manner provided by law. Jane Gorrell and J. C. Mosteller, the plaintiffs in the foreclosure suit, purchased the land at the sheriff’s sale, which sale was duly confirmed by the court on October 10, 1882, and the sheriff was directed to make the purchasers a deed, which was done October 12,1882. The plaintiff, Mary A. Mosteller, was not a party to the foreclosure suit, and the note and mortgage which formed the basis of that suit were signed by Aaron P. Mosteller alone, and the same were not given for the purchase-money of the premises, nor for any improvements thereon. Although Aaron P. owned the land while married to and living with plaintiff it was never occupied by them as a homestead. Upon these facts the court found in favor of the defendants, and adjudged the costs against the plaintiff.
Some objection is made as to the form and fullness of the answer of the defendants, which in short denied that the plaintiff owned the land or any part thereof, or any interest therein. This constituted a complete defense in the action, for if she has no title or interest in the land or any part thereof, her action necessarily fails. The question presented for consideration is, has the plaintiff any title or interest in the land of which she asks partition? It was the separate property of the husband, and not a homestead. Although counsel for plaintiff challenge the good faith and honesty of the transaction between the father and the children to whom he gave the note and mortgage, there is absolutely nothing in the record showing bad faith or fraud. So far as appears, the note and mortgage represented a bona fide debt of the full amount claimed, and there was a default in the payment. The mortgagees waited more than four months after the default before instituting an action on the note and mortgage. The action proceeded without undue haste, and in an orderly way, to judgment, the enforcement of which was stayed for six months, and the sale, confirmation and deed which followed seem to have been fair and regular in every respect.
There was no charge in the pleadings that any step or proceeding taken was intended as a fraud on the wife or with the purpose of defeating her inchoate interest or distributive share which might come to her upon the death of her husband, nor was there any fact in the agreed statement upon which the case was tried indicating such an intention. We think the sale which was made wholly divested the plaintiff of any in terest in the land. The arguments made and authorities cited against the judgment of the court would be applicable if the interest which the wife has in the property of the husband was a dower estate. As a general rule under the common law, no act of the husband alone could defeat or affect the wife’s dower, but the rules governing dower do not obtain in this state, where the legislature has expressly abolished the dower estate. The only interest which the surviving wife has or can take in the real estate of her deceased husband is that provided in the act concerning descents and distributions, as follows:
“One-half in value of all the real estate in which the husband at any time during marriage had a legal or equitable interest which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall under the direction of the probate court be set apart by the executor as her property in fee simple upon the death of the husband if she survives him: Provided, That the wife shall not be entitled to any interest under the provisions of this section in any land to which the husband has made a conveyance, when the wife at the time of the conveyance is not or never has been a resident of the state.” (Comp. Laws of 1885, ch. 33, §8.)
During the life of the husband the interest which the wife has in his estate is inchoate, and may never become consummate. It is true that it has some of the characteristics of property, and the wife may during marriage maintain an action for its protection, and for relief from fraudulent alienation of the land by her husband, as decided in Busenbark v. Busenbark, 33 Kas. 572. And that it is such an interest as may be the subject of conveyance by the wife during marriage, was decided in Munger v. Baldridge, ante, p. 236. But it does not vest until his death, and is subject to be destroyed by a sale upon execution or other judicial sale before his death, and even after death it may be defeated by being subjected to the payment of his debts. She only has an interest in such of the lands owned by the husband during marriage as have not been sold upon execution or other judicial sale, and which are not necessary for the payment of his debts. As said in Andrews v. Alcorn, 13 Kas. 351 :
“In this state, when the real estate of a husband or wife is sold at judicial sale, there is nothing left for the other to inherit or receive after the death of the one who owns- the real estate. The rights of the husband and wife are precisely alike in this respect, and the statute clearly shows that the wife on the death of her husband obtains no interest in any real estate ever owned by the husband, if the same had previously been sold to pay his debts on any execution or other final process.”
The property in controversy was sold upon a special execution to pay the debts of the husband. It is contended that the execution mentioned in the statute is a general one, and would not include an order of sale or special execution like the one under which the property was sold. If this was true — which we do not decide — still there can be no dispute that the land was sold at a judicial sale, and therefore comes within the statute. We think that his title was entirely extinguished before his death by this foreclosure and sale, and that her interest was thus barred, although she was not a party to the note or mortgage, or to the foreclosure proceeding. (Sturdevant v. Norris, 30 Iowa, 65.)
The point that error was committed by rendering judgment in favor of all the defendants because Lewis N. Mosteller was in default for answer, must also be overruled. His name appears in the title of the answer, but in mentioning the names of the defendants in the body of the answer it was omitted; but counsel filing the same signs his name as attorney for defendants, and it evidently was intended as the answer of all. The trial proceeded and the cause was submitted on the theory that all the defendants were before the court, and for this reason we can treat the answer as amended, if an amendment can be said to be necessary. (Bank of Lindsborg v. Ober, 31 Kas. 599.)
Judgment affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 5th day of August, 1886, the defendants in error commenced an action to recover the sum of $377.53 against the plaintiffs in error in the district court of Cheyenne county. At the same time they caused an attachment to be issued against the debtors and levied upon certain property belonging to them. The affidavit for attachment alleges two grounds; the first is, that the defendants have assigned and disposed of their property, to wit, their stock of drugs and their storeroom and lot in Bird City, •or a part thereof, with intent to defraud, hinder and delay their creditors; the second is, that the defendants have failed to pay the price or value of any article or thing delivered, as set forth in said bill of particulars, which by contract they were bound to pay in thirty or sixty days from the date of delivery. On the 9th day of May the defendants filed their motion to dissolve said attachment, which motion contained this allegation, verified under oath by Mitchell: the defendants say that they deny the allegation in said affidavit for attachment, that they, or either of them, have assigned or disposed of their property or any part thereof with the intent to defraud, hinder or delay their creditors. Thereupon this motion came on to be heard by the court, on the evidence of the defendants, the plaintiffs having refused to introduce any evidence. The defendants produced five witnesses who were examined at length and gave a detailed account of the sale of the drug stock, the lot and store-room, to persons whom they claimed had loaned them money; from whom they had bought merchandise; to whom they were indebted for board on other accounts. The creditors who purchased the drug-store stock and lot were also examined. A real-estate agent was examined, and he testified that the price paid for the lot and store-room was about its full value. The plaintiffs again refused to offer any evidence, and the matter was submitted to the court. The motion to dissolve the attachment was overruled by the court, and an exception to the ruling duly taken. The case was then tried on its merits, and a judgment rendered for the plaintiffs for the amount claimed.
The case is here to review the ruling of the court refusing to dissolve the attachment. On the hearing of a motion to dissolve an attachment, in a case wherein the defendants have filed an affidavit denying the grounds for the attachment, the burden of proof is on the plaintiffs who procured the attachment to issue. (McPike v. Atwell, 34 Kas. 142; Becker v. Langford, 39 id. 35.) When the motion to dissolve was called for hearing in this case, and the plaintiffs declined or refused to introduce any evidence to sustain the attachment, the defendants had the legal right to have the attachment dissolved, and the trial court should have made an order of dissolution. But this was not done, and the defendants introduced and examined witnesses in that behalf. We do not propose to comment on that evidence at length, but putting it in the strongest light for the defendants in error, and assuming that the trial court did not give the least degree of credit to the statement of any one or all of the witnesses examined, and yet the attachment ought to have been dissolved, because it would then stand one affidavit for, and one against the attachment, and under the rule it must be dissolved. The attachment could not be sustained upon the second cause set out in the affidavit of the plaintiffs to procure an attachment, to wit, that the defendants had failed to pay the price or value of any article or thing delivered, as set out in the bill of particulars, by which contract they were bound to pay in thirty or sixty days from date of delivery. In the first place, it is not a statutory cause for an attachment; and in the second place, the time of payment is indefinite and uncertain.
The court erred in not sustaining the motion to dissolve, and we recommend that its ruling be reversed, and the cause remanded with instructions to sustain the motion and dissolve the attachment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is a proceeding in error brought by Margaret O’Flanagan in this court to reverse an order of the district court of Wabaunsee county refusing to vacate a judgment or decree rendered in that court. Aderial H. Case is made the defendant in error. It appears that in 1872 a judgment or decree of foreclosure was rendered in the district court of Wabaunsee county in a case in which Aderial H. Case was the plaintiff and John T. Bradley, Josephine Bradley and John O’Flanagan were the defendants, foreclosing a certain real-estate mortgage. In pursuance of such judgment and decree and upon an order of sale, the laud was sold by the sheriff of that county to said Aderial H. Case, who paid from forty to sixty dollars more than sufficient to satisfy the foreclosure judgment and costs. This sale was confirmed, and on March 31, 1873, the sheriff executed to Case a sheriff’s deed for the property, and afterward Case sold and conveyed the land by a general warranty deed to other persons. It was afterward ascertained that the title to the land was in Margaret O’Flanagan, the wife of John O’Flanagan, one of the defendants in the foreclosure suit; and the sheriff retained in his hands the surplus money not needed to satisfy the foreclosure judgment, hardly knowing to whom to pay it. On September 26, 1876, the following additional judgment or decree was rendered by the court, to wit:
“Aderial H. Case, Plaintiff, v. John T. Bradley, Josephine Bradley, John O’Flanagan, Margaret O’Flanagan, Defendants. —Order and Judgment. — On this day, in open court, comes the said plaintiff, Aderial H. Case, and also come the said defendants John T. Bradley, Josephine Bradley, John O’Elanagan, and Margaret O’Elanagan, by their attorney George A. Kirkland, and by agreement of parties and consent of the court it is ordered that the journal entry heretofore made on journal A, pages 283 and 284, of this same case, be corrected in the title thereof as above stated, and that there be added thereto the following nunc, pro tunc correction, to wit: ‘and any surplus from the proceeds of said sale, after paying the said judgment, interests and costs, and accruing costs, be paid to the said Margaret O’Flanagan; and it is further ordered, that the said Margaret O’Flanagan be forever barred and estopped from claiming any right, title or interest in or to the said lands, to wit, the east half of the northeast quarter of section twenty-two, township eleven, of range thirteen, east of the sixth principal meridian, in Wabaunsee county, Kansas, adverse to the said rights or interests of the said plaintiff, his heirs, grantees, or assigns.’ Aderial H. Case.
Geo. A. Kirkland,
Atty. for Defendants, (And especially for Margaret O’Elanagan.)
Approved: Alma, Kansas, Sept. 26, ’76.”
George A. Kirkland was at the time of the rendering of this judgment a practicing attorney at law, residing at St. Mary’s, where John O’Flanagan and Margaret O’Flanagan also resided, and they were all well acquainted with each other, and John O’Flanagan was present with Kirkland at the time when the above-quoted judgment or decree was rendered. The surplus money was paid by the sheriff to Kirkland, the supposed representative of Margaret O’Flanagan. On November 4, 1885, Margaret O’Flanagan, byH. H. Harris, her attorney, filed the following motion in the district court, to wit:
“State of Kansas, Wabaunsee County. — In the District Court, November Term, 1885.—Aderial H. Case, Plaintiff, v. John T. Bradley, Josephine Bradley, John O’Flanagan, Margaret O’Flanagan, Defendants. — Motion to Vacate aVoid Judgment.— And now comes Margaret O’Flanagan, one of the above-named defendants, and moves the court to vacate the following judgment or order entered by this court without ju risdiction, entered September 26, 1876, in journal entry B, page 134.”
[Here is copied the above-quoted judgment or decree which it is desired to have vacated, and the motion then ends as follows:]
“This motion is made for the reason that the said Geo. A. Kirkland had no authority to enter the appearance of the said defendants, or either of them. For said reason-the judgment is void. Margaret O’Flanagan.
By H. H. Harris, Atty.”
On November 14,1885, this motion was overruled by the court; and to reverse this ruling Margaret O’Flanagan, as plaintiff in error, brought the case to this court, making Aderial H. Case the defendant in error. Case’s grantee was not made a party to the motion in the court below, nor is he made a party to this proceeding in this court.
It is claimed by the plaintiff in error, Mrs. O’Flanagan, that the above-quoted judgment or decree is void for the reason that George A. Kirkland had no authority to appear for her with respect to any proceeding in the case, and her testimony to this effect was introduced in the court below on the hearing of the motion; but evidently the court below did not believe her testimony, and we cannot say that the court below committed error. In the first place, where an attorney at law appears in a case for another, it will always be presumed, in the absence of anything to the contrary, that he had authority to appear, and the burden of overthrowing this presumption will rest upon the party disputing the authority. In the second place, Kirkland himself testified positively and directly that he had express authority from Mrs. O’Flanagan to so appear and to represent her in that court and in that proceeding, as the record shows that he did represent her; and taking all the evidence and all circumstances in the case, and all the presumptions of law in favor of the good faith of attorneys at law, and of the regularity, validity, and verity of judicial proceedings, we think the preponderance of the evidence is in favor of the correctness of the decision of the court below. The judgment or decree complained of was therefore rendered with Mrs. O’Flanagan’s consent, and she through her attorney and agent, George A. Kirkland, received the benefit and fruits of such judgment or decree, to wit, the surplus money remaining in the hands of the sheriff, and she cannot now complain of the judgment or decree.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action, upon appeal, was tried at the March term, 1887, of the Phillips district court, and judgment was rendered for the defendant. The plaintiffs claimed damages for hogs killed by the train of defendant on its road. The court found that the plaintiffs’ hogs escaped from their pen without any fault or negligence on their part, .and strayed upon defendant’s track where it passed across the ¡plaintiffs’ laud; that the hogs passed upon the track under a .gate, a part of the fence of defendant which inclosed the track; •that this was a wire fence, and a lawful one except that the lower plank of the gate was thirty-nine inches from the ground for the space of about fourteen feet; that neither the fence itself nor the gate would have prevented the hogs from passing upon the track, and that the killing of the hogs was accidental, so far as the evidence shows. The court also found as a conclusion of law, that the defendant was not liable under the railroad stock law for the killing of said hogs, and ren dered judgment for defendant for costs. The plaintiffs have brought the case here.
The findings of the court were in accord with the evidence introduced. One of the plaintiffs testified that a fence having its lowest wire twenty-two inches from the ground would not have prevented the hogs from passing under it. The judgment of the court must be affirmed. Section 2, chapter 40, Comp. Laws of 1885, provides that in a lawful fence the bottom rail, board or plank shall not be more than two feet from the ground. Sec. 4a, referring to barb-wire fences, provides that the bottom wire shall not be more than twenty-four inches from the ground, nor less than eighteen inches. It was found by the court that a lawful fence would not have been any protection against the hogs passing onto the track. To be sure, at the particular place where they did pass under it was not a lawful fence; but that is immaterial, because if the fence had been a lawful one the hogs, would have passed under it just as readily. In A. T. & S. F. Rld. Co. v. Yates, 21 Kas. 613, Chief Justice Horton, speaking for the court, says:
“The railroad company in any event was only bound to build a fence through the inclosure of Yates with the bottom rail, board or plank not more than two feet from the ground. (Laws of 1873, ch. 88, §1.) Such a fence would not have prevented the hogs killed from being on the road. Indeed, the fence thus constructed, and being within all the requirements of the law a good and lawful fence, would have in no respect been of any benefit to the proprietor of the land so far as keeping his hogs from the track. Then if such a fence was useless and unnecessary so far as this case is concerned, can it be logically said that the company ought to have built a fence, or that from its failure to construct a fence which would not keep the animals killed from going upon the road, it was liable under the law of 1874? We answer ‘No.’ The building of a dozen or any other number of fences of the character required by law . . . would have afforded no protection to the defendant in error, ánd he has no serious complaint of their absence. As a lawful fence would not have prevented the injury, and would not have protected the railroad from the swine, so no obligation existed to erect it.”
(See also K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kas. 501; L. T. & S. W. Rld. Co. v. Forbes, 37 id. 445; A. T. & S. F. Rld. Co. v. Shaft, 33 id. 521.)
Mo. Pac. Rld. Co. v. Bradshaw, 33 Kas. 533, is not in conflict with these authorities, nor the opinion in this case. It is there held that if the owner of the animals killed showed that the railroad was not inclosed with a lawful fence, then the burden of proof was upon the railroad company to prove that a lawful fence would not have prevented the animals from straying upon the track of defendant.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Cwriam:
Prank Peterson was convicted in the police court of the city of Ottawa upon a charge of violating a city ordinance which prohibits persons from performing any labor other than household offices of daily necessity or works of necessity or charity on the first day of the week, commonly called Sunday, and which forbids any person to keep open his place of business for the purpose of pursuing his usual vocation upon that day, except in cases of necessity or for charitable purposes. The ordinance is substantially a reenactment of the law of the state, as found in §§ 255 and 256 of the act regulating crimes and punishments. From this conviction he appealed to the district court, where he was again found guilty, and adjudged to pay a fine of five dollars and the costs of prosecution, and to stand committed until the fine and costs were paid. For the purpose of reversing that judgment, he attempts to bring the case to this court by petition in error and transcript of the record.
This court is without jurisdiction to review the rulings of the district court, as the case is a criminal one and can be brought to this court by appeal and upon notice to the clerk and prosecuting attorney only, and cannot be by petition in error. (Neitzel v. City of Concordia, 14 Kas. 447; McLean v. The State, 28 id. 372; The State v. Teissedre, 30 id. 210.)
The petition in error will be dismissed. | [
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Opinion by
Simpson, C.:
This action was originally commenced in a justice’s court, and there a judgment was rendered against the plaintiff in error. An appeal was taken to the district court of Shawnee county, and a jury being waived, a trial by the court was had in July, 1887, resulting in a judgment against the plaintiff in error. The court made special findings of fact and conclusions of law, as follows:
“ 1. On October 30, 1886, the plaintiff reeeived an order at Kansas City, in the state of Missouri, from Topeka, Kansas, signed D. I. Ross & Co., for one barrel of whisky, and plaintiff thereupon shipped the said barrel of whisky from Kansas City aforesaid to the address of D. I. Ross & Co.
“2. The value of said barrel of whisky was $78.47.
“3. At the time said barrel of whisky was ordered, shipped and received at Topeka, Kansas, the said D. I. Ross, Nellie Smith, and John R. Smith were not partners in business at Topeka.” (To the finding of the third conclusion of fact the plaintiff' objected, and excepted.)
“4. The defendant Nellie Smith was at the time aforesaid the owner and proprietor of a drug store in the city of Topeka, and John R. Smith was the husband and agent of the defendant Nellie Smith, and the said D. I. Ross was by profession a pharmacist, and was at the time aforesaid employed by the said Nellie Smith as a clerk only, in the drug store of the defendant Nellie Smith.
“ 5. The barrel of whisky aforesaid was received into the drug store of the defendant Nellie Smith, and was used in her business by her clerk, Ross.
“6. Neither the defendant Nellie Smith nor her husband and agent ordered from the plaintiff' the said barrel of whisky, unless the order sent by Ross, in the name of D. I. Ross & Co., was the order of the defendant Nellie Smith.
“ 7. The defendant Nellie Smith did not know in fact that said barrel of whisky had been received from plaintiff into her store, unless the knowledge of John R. Smith, her agent, and D. I. Ross, her clerk, was knowledge to her; and neither Nellie Smith nor John R. Smith had knowledge of Ross sending the ordfer to plaintiff.
“ 8. Some months before the said Russ entered into the employment of the defendant Nellie Smith as pharmacist and clerk in her drug store, the said Ross was engaged in the business of conducting a drug store in Parkdale, an addition to Topeka, as proprietor of said drug store, and carried on said business under the firm-name of D. I. Ross & Co., and the plaintiff had before that time sold and delivered goods of this character to him.
“9. The business of the plaintiff at the time aforesaid was that of carrying on a wholesale liquor store in Kansas City, Mo., by the name and style of Oscar Straub & Co.
“10. At the time the plaintiff received this order for the goods in question, at Kansas City, Mo., and shipped the same to Topeka, he did not know or have any knowledge that the said Nellie Smith, defendant, nor her husband and agent, J. R. Smith, had auy connection with a drug store, or that they were desirous of purchasing said goods.
“11. The defendant Nellie Smith had no conversation nor communication with the plaintiff in reference to the barrel of whisky, and the only conversation or communication that her agent, J. R. Smith, had with plaintiff or anyone representing him in reference to said whisky, was in Topeka, Kansas, several days after the whisky had been delivered at her drug store in Topeka, Kansas.
“12. The defendant Nellie Smith, at the time aforesaid, had no permit from the probate judge to sell intoxicating liquors, but she had a permit from the government of the United States Tor such purpose. “13. The said D. I. Ross, at the time aforesaid, had a druggists’ permit to sell intoxicating liquors from the probate judge of Shawnee county, as required by law.”
“conclusions ok law.
“1. The said D. I. Ross, having ordered the property above referred to from the plaintiff at Kansas City, Mo., for D. I. Ross & Co., and having received such property into the drug store of the defendant Nellie Smith, and with the knowledge of John R. Smith, agent of the said Nellie Smith, the same was used and disposed of by the clerk and agent of said defendant, the said Nellie Smith, the said Nellie Smith should pay the plaintiff for the property; and the plaintiff is entitled to recover the value of said property from said defendant Nellie Smith, to wit, $78.47, with interest at the rate of 7 per cent, from the date of delivery, November 1, 1886.
“2. The plaintiff* is entitled to recover of and from the defendant Nellie Smith, $78.47, with, iflterest at 7 per cent, per annum, amounting to $4.50 for interest, oi', to wit, for principal $78.47, for interest $4.50; total, $82.97.”
One question we shall consider is, whether or not the judgment of the court below can be supported by the special findings of fact, and this embraces the contention of counsel as to the inconsistency of the findings, and that they do not authorize the conclusions of law. The evidence is not recited in'the record. The suit was brought against D. I. Ross, Nellie Smith and John R. Smith, as partners, doing business under the firm-name of I). I. Ross & Co. They denied the partnership under oath, and it is among the established facts in the case, that there was no partnership, but that Nellie Smith, the plaintiff in error, was the absolute owner of the drug store, with her husband, John R. Smith, as her agent in active charge and control of the business, with Ross as a licensed pharmacist, employed by Nellie Smith as a clerk. The barrel of whisky was ordered in the name of Ross & Co., but was designed for the use of Nellie Smith in the drug business; was secured by her clerk and agent, with the knowledge of the agent; sold out by the clerk, and the proceeds of the sale received and retained by Nellie Smith through her accredited agents. The general statement is enough to fix her liability.
But it is contended that no judgment could be rendered personally in this action against Nellie Smith, as it was brought against her as a partner. It may be true that, under the common-law practice, in a suit against a partnership firm, no judgment could be rendered against an individual member of that firm; but our statute provides that all contracts shall be construed to be joint and several; and it also provides that in all cases of joint obligations and joint assumptions of co-partners or others, suits may be brought or prosecuted against any one or more who are so liable. This action was instituted under the theory that there was a partnership; the plaintiff in error filed her answer, under oath, denying the partnership; and if the proof fixed liability on any one of the parties, a judgment could be rendered against such party individually.
Again, it is urged that the plaintiff below alleged a cause of action for goods sold and delivered, but recovered'for goods received for the use and benefit of the defendant below, and that it is not a variance, but a total,failure of proof of the cause of action alleged. This is not so. The plaintiff below brought his action for the contract-price of a barrel of whisky which he alleged was ordered by a firm of which the plaintiff in error was a member. But the plaintiff in error successfully maintained that there was no partnership, and the evidence showed that she was sole owner of the drug store; that the whisky was ordered for her benefit; that she sold it by her agents and clerks, and received the proceeds; hence, the only mistaken allegation was as to the partnership. The barrel of whiskey was ordered, received and sold out, and the proceeds appropriated, not by the partnership firm, but by the plaintiff in error individually. The cause of action is not changed; there is no failure of proof: the only difference is, that the proof has shifted the liability from a supposed partnership to an individual who was thought to be a member of the firm.
Finally, a reversal is urged, because the action is for “an agreed purchase-price,” and a judgment was rendered for the value of a barrel of whisky. As the value and agreed price are identical in this particular case, we would hesitate long before recommending a reversal because the pleading called it an agreed price and the findings and judgment denominated it the value of the whisky — these phraseological variations being unimportant.
This action was instituted under the assumption that three persons named as defendants, were partners; the pleadings destroyed this assumption; the action then proceeded against them as individuals; the special findings of fact cast the obligation to pay upon one of the three; a judgment was rendered against the party liable. This is in accordance with our liberal system of pleadiug and practice, and no substantial error has been committed in the course of the trial.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The district court of Miami county rendered judgment in this action, decreeing that Thomas Deck was the absolute owner of certain real estate, and quieting his title thereto as against H. M. Tibbetts. The judgment was given April 9, 1887, and brought to this court for review on June 6, 1887. While this proceeding in error was pending, and on March 12, 1888, Thomas Deck, who was defendant in error, died. The action or proceeding has not been revived against the heirs of Thomas Deck, and they refuse to consent to a revivor, and now move to dismiss this proceeding. An order to revive an action against their consent cannot be made except in one year from the time it could have been first made. (Civil Code, § 433.) As there can be no revivor, the proceeding in error must be dismissed. | [
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The opinion of the court was-delivered by
Smith, J.:
This was an action to recover the amount of two judgments rendered against the defendant in error in the court of common pleas of Champaign county, Ohio, on June 6, 1893. The judgments were rendered on warrants of attorney, made part of the notes sued on, and signed by Terrel. Thus confessed, they are valid by the statutes of Ohio.
This action was commenced in the district court of Harper county on August 18, 1899. The petition contains this allegation as to each claim :
“That said judgment was rendered upon a warrant of attorney, in compliance with the statute in the state of Ohio in such case made and provided, and by the terms and provisions of said statute said judgment became operative on the expiration of eighteen months from the rendition thereof, and not before.”
The trial court made a finding that all the allegations of the petition were true, but decided in favor of the defendant below for the sole reason that the statute of limitations of this state had run against the plaintiff’s causes of action. ' Having found that the facts set forth in the petition were true, it is material to determine what the above-quoted language from the petition means.
If there was a stay of execution only, it would be no obstacle in the way of another action on the judgment before the stay had expired. ( Gifford v. Whalon, 8 Cush. 428.) The averment of the petition, however, is indicative of something moré than a mere suspension of the right to execute the judgment. It is al leged that the judgment did not become “operative” until eighteen months after its rendition.
The statutes of Ohio authorizing delay in the operation of a judgment beyond the date it was pronounced are not set out in the petition nor called to our attention in the briefs of counsel. Judgments usually become operative at the time of rendition, and, in this state, in most cases, relate back to the commencement of the term of court at which they are entered. They then become liens on the real estate of the debtor. If, however, a judgment has no operation until a time stated after it is entered, it can have no effect as a lien before such time. We think the language employed in the petition means that the judgment was so worded that it had no force or effect as a judgment until eighteen months after its rendition. Deducting these eighteen months, the action was begun in time.
The judgment of the court below will be reversed and the cause remanded for a new trial.
Cunningham, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J. :
Plaintiff in error insists that, because it took the DeWitt note under a commercial indorsement in due form, Fields is bound to all the liabilities of an indorser of negotiable paper ; that he became subject to suit at once upon default of the maker, and that, being subject to such suit, he was a real party ■adverse in interest to the plaintiff. This contention, however, omits all consideration of the principal contract in writing executed contemporaneously with that written on the back of the note. It is elementary law that parties may, if they so desire, express their full intention in separate instruments, and in this case it was proper for them to limit the effect of the indorsement by a separate agreement, if they saw fit so to do.
In Davis v. Brown, 94 U. S. 423, 24 L. Ed. 204, an indorser of a promissory note sought to prove an agreement in writing made with its holder at the time of the indorsement that he should not be held liable thereon, and the court said :
“The objection that'the agreement was inadmissible because it tended to vary and destroy the legal effect of the indorsement is not tenable. The agreement, being in writing, is to be taken and considered in connection with the indorsement, and the two are to be construed together. So far as the bank was concerned, the agreement made the indorsement equivalent to one without recourse to the indorsers.”
It is necessary to determine, therefore, whether the agreement relating to the purposes of the transfer of the note qualified the agreement embodied in the indorsement; and in arriving at a solution of this question, according, to incontrovertible precedents, whatever may be fairly implied from the language of the writings employed is, in the judgment of the law, contained in them. (Lawler v. Murphy, 58 Conn. 294, 20 Atl. 457, 8 L. R. A. 113, and cases cited. It is only by the light of this rule that the full purport of the indorsement on the note can be apprehended. (Doolittle v. Ferry, 20 Kan. 230, 27 Am. Rep. 166.) It is not any the less applicable in searching for the true intent of a companion instrument. The obligation of the indorsement was that the maker of the note would pay at maturity, and if he defaulted that Fields should then pay.
In Daniel on Negotiable Instruments, volume 1, section 671, the rule is stated as follows:
“The indorser of a bill contracts to pay it at maturity, if, on presentment for acceptance, it is not accepted according to its purport, and he is duly notified of the dishonor. And the indorser of an ac cepted bill, or of a note, likewise contracts to pay it, if it be not duly paid by the acceptor or maker. It matters not what may be the cause of the drawer’s or maker’s refusal. The indorser contracts to pay on being duly notified that he refuses to pay. He therefore warrants the solvency of the parties — or, in short, warrants that it will be paid, either by them or by himself, on receiving notice of their failure.”
In Story on Promissory Notes, section 135, it is said:
“The indorsement of a note, in contemplation of law, amounts to a contract on the part of the indorser with and in favor of the indorsee and every subsequent holder to whom the note is transferred : . . . (4) That the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay.it at maturity, or when it is due. (5) That if, when duly presented, it is not paid by the maker, he, the indorser, will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or other holder.” (See, also, 2 Rand. Com. Pap. §742; Wood’s Byles, Bills and N. *154; Chit. Bills, *241.)
The note fell due December 23,1899. The indorsement was made November 10 of the same year. Under the indorsement alone, it would be contemplated that in little more than a month after the paper changed hands DeWitt should pay $10,000, and that, upon his failure so to do, Fields would pay that sum to the plaintiff. Under the principal contract, nothing of the kind was either expected or required. The milling company was to collect the note ; it was to proceed to collect it upon its maturity; it was to do this with all reasonable speed; it was to institute prompt proceedings therefor. The proceedings in view were legal proceedings,.and, under the last clause of the contract, these legal proceedings were to result in a judgment. In all this the milling company was to be the moving party to enforce and compel payment, and was not to be the simple recipient of funds due to it. Apparently, nothing but the dishonor of the note was considered. It was not supposed that it would be paid according to its tenor at maturity, but it was to be collected by compulsory measures.
If Fields should pay under the indorsement, the provisions relating to collection by prompt legal proceedings on maturity of the paper would be nugatory, although they appear to be among the most essential provisions of the contract. The milling company would then no longer have a cause of action against either the maker or the indorser. The obligation to it would be fully satisfied, and it could not, if it would, reduce the debt to judgment; hence, Fields was not expected to pay. But there is certainly nothing to commend itself in the assertion that a full process of collection was elaborated against Fields when, should the indorsement control, it was his duty to pay at once without suit. Yet this view must be taken if the construction of plaintiff in error is to prevail. Candor, will scarcely suffer it to be said that Fields contracted' to have himself sued in order to goad himself by judgment and execution into performing his simple legal duty to pay, or that the milling company engaged- to embark upon such an anomalous undertaking. Nor' is it more reasonable to assume, as must be done if Fields were to be sued, that he reserved the privilege of receiving from the milling company $6000 for himself out of $10,000, which he was to be harrassed by litigation in paying to it. Therefore, the process of collection stipulated for was not to be directed against Fields.
From this it must follow as a necessary implication that the -note was to be collected from DeWitt alone. This construction of the contract is aided by the fact that the milling company withheld all benefits of the transaction from Fields until the result of the proceedings to collect should be ascertained. It was not necessary to do this beyond the maturity of the note if Fields were then required to pay, but so long as the milling company had assumed the burden of prosecuting an uncertain litigation and owed it as a duty to Fields so to do, it could rightfully secure itself against barren results, and it could justly reserve the privilege of determining what course should be pursued after judgment, as the last paragraph of the contract contemplates.
It clearly appears, therefore, that in the suit against DeWitt it was to the mutual advantage of both Fields and the milling company that the milling company should succeed. Their interests were identical and not adversary, and hence Fields was improperly joined as a defendant under section 36 of the code (Gen. Stat. 1901, § 4464), which provides that ‘ ‘ any person may be a defendant who' has or claims an interest in the controversy adverse to the plaintiff.” This being true, under the well-established law, no summons could issue for DeWitt from the county in which the suit was commenced.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Doster, O. J. :
This was an action for damages for alienating the affections of a wife and for her seduction. A verdict and judgment were rendered for defendant. The errors claimed are the admission and the rejection of evidence and the giving of instructions. As to the latter, exceptions were not preserved ; hence, the instructions cannot be reviewed.
The plaintiff offered his own testimony as to the defendant’s visits to his home, as to his wife’s apparent change of attitude and feeling toward him after she became acquainted with defendant, and as to statements made to him by defendant concerning the latter’s conduct with the wife'. All this was rejected, on the ground that the plaintiff, as the husband, was incompetent to testify to matters involving his wife, notwithstanding the latter was not a party to the case. The defendant below, the defendant in error here, places a literal construction on section 323 of the civil code (Gen. Stat. 1901, §4771), which reads: “The following persons shall be incompetent to testify: . Third, husband and wife, for or against each other,” etc. He says that this statute does not merely disqualify husbands and wives from testifying for or against each others’ claims to the subject-matter in litigation, but disqualifies them as well from testifying to each others’ personal character, conduct, status, or other matter in interest, whether they be parties to the litigation or not, and whether the judgment rendered would put the character, conduct, status or matter in interest in the category of res judicatx or not. In other words, the contention is that,' inasmuch as the litigation involved the subject of the wife’s fidelity to the husband, and inasmuch as she, though not a party litigant, was incompetent to testify for or against him, he, though a party, was equally incompetent to testify against her.
This contention derives support from some of the decisions, a principal one of which is Cornelius v. Hambay, 150 Pa. St. 359, 24 Atl. 515. It was there held, in a case of the character of this one, that a husband was incompetent to testify to the adultery of his wife, although she was not a party to the suit. That holding was made-under a statute like ours. It may be that the decision was satisfactorily reasoned, so far as that one statute was concerned, but in this state we have, in addition to such statute, another one of material significance. Section 319 of the civil code (Gen. Stat. 1901, §4767) reads: “No person shall be disqualified as a witness in any civil action or proceeding by reason of Ms interest in the event of the same, as a party or otherwise,” etc.
This statute abrogates the common-law rule of disqualification to testify because of interest, and, except as limited by other statutes in pari materia, makes every person competent to give evidence in any case. The limitation contained in the third subdivision of section 323 of the civil code, supra, does not apply in such a case as this. That applies only to prohibit a husband or wife, when not a party to the suit, from testifying for or against the other one who is a party ; not to prohibit the one who is a party from testifying for or against the other one who is not. This statement of the general rule is not intended, of course, to be inclusive of those exceptions which the statute itself makes, and which exist in that part of it not above quoted.
The language of the opinion in Higbee v. McMillan, 18 Kan. 133, while not having relation to a state of facts identical with those in this case, nevertheless declares a principle applicable to the general question, and definitely and positively settles the rule against the contention of the defendant in error. See, also, Van Fleet v. Stout, 44 Kan. 523, 24 Pac. 960. In thus holding the husband competent to testify against his wife, it must not be assumed that he can testify to transactions or communications had with her. Such character of testimony is forbidden by the last clause of the third subdivision of said section 323.
The plaintiff offered witnesses to prove the declarations of the wife as to the state of her feelings toward both her husband and the defendant. Some of these offered declarations were made at times before the alledged seduction, and some'were made after ward. They were all excluded. A question may exist as to the admissibility of such declarations if made, subsequently to the guilty intimacy, but we think none can reasonably exist as to declarations made antecedently to it. The general rule is that, when the inquiry involves the existence of a bodily or mental state, the declarations of the party, when under the influence of the physical or mental feeling in question, and disclosing his subjection to it, are not hearsay, but are original evidence. (Greenl. Ev. §102.) This rule applies in actions of the character of this one. (Gilchrist V. Bale, 8 Watts [Pa.], 355, 340 Am. Dec. 469 ; Edgell v. Francis, 66 Mich. 303, 33 N. W. 501.)
Other claims of error are made, some of which are subsidiary to, and connected with, those above discussed and therefore need not be specially noticed. Others, however, are of a different character, but will not be dwelt upon. It was not error to permit the defendant to testify to his motive in inviting plaintiff’s wife to visit at his home. It was, however, error to admit evidence of declarations made by plaintiff’s wife, that she had to work hard and get no credit for it, and that she was homesick and intended returning to the place from where she came. Declarations of such character do not disclose a mental state forming a pertinent subject of inquiry, and, therefore, are governed by a different rule. It was also error to admit evidence of plaintiff’s requiring his wife to assist in the breeding of animals, and to permit witnesses to detail conversations with plaintiff about lawsuits in Nebraska, and about his being subjected to the visits or threats of “whitecaps” in Missouri. These topics were irrelevant to the meritorious subject of inquiry, and would naturally tend to prejudice the plaintiffV cause before the jury.
The judgment of the court below is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In November, 1898, A. J. Stybr, as plaintiff, commenced an action in the district court of Marion county against Donald Bros, to quiet his title to certain real estate. From the amended petition, it appears that prior to 1890, E. C. and E. E. C. Motz, as owners, gave to Stybr a first mortgage, and to Donald Bros, a second mortgage, on the land. Stybr foreclosed the first mortgage against the Motzes without making Donald Bros, parties to the- suit. The foreclosure proceedings culminated in a sheriff’s deed to Stybr in 1890, who at once took possession of the property, and has ever since occupied it, claiming to be the’ owner in fee. These facts were not controverted, The plaintiff further claimed that the mortgage to Donald Bros, had been paid in April, 1889. This the answer denied. The answer further alleged that the Motzes had paid nothing on Stybr’s debt since the foreclosure of his mortgage ; set out the defendants’ mortgage, together with the notes it secured, and prayer for its foreclosure, and for an adjustment of the priority of liens in such manner as to make the second mortgage the superior one, and for a sale of the mortgaged premises. On the face of the answer, it appeared that the last of the notes to Donald Bros, became due October 2, 1888, and no facts were pleaded to remove the bar of the statute of limitations. Stybr replied to the answer, and then moved for judgment in his favor on the pleadings, which motion the court sustained. Donald Bros, then asked leave to amend the answer by inserting allegations of payments made to them by the mortgagors such as would avoid the bar of the statute, which leave the court denied, and rendered judgment quieting Stybr’s title to the land. Donald Bros., as plaintiffs in error, complain to this court of such rulings and judgment.
The plaintiffs in error very properly assert that a second mortgagee can plead the statute of limitations against a first mortgagee. If, therefore, their theory be tenable, that the order of liens had become reversed, that their mortgage had become a first lien on the property, and that Stybr should be barred of all interest in the premises upon the foreclosure of their mortgage, Stybr was clearly entitled to plead the statute of limitations, and further discussion is unnecessary upon such hypothesis.
If the answer of Donald Bros, be given all the effect which rightfully may be claimed for it, it was an application to redeem ; and, in any view, was intended to be the foundation of affirmative' relief, and should stand or fall upon its own validity.
Section 459 of chapter 80, General Statutes of 1868, in force at the time of the foreclosure of the Stybr mortgage, referring to sheriffs’ deeds, provided as follows :
“The deed shall be sufficient evidence of the legality of such sale and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party at, or after, the time when such lands and tenements became liable to the satisfaction of the judgment.”
The sheriff’s deed was sufficient, therefore, to vest in Stybr all the estate of his mortgagors and to give him the rightful possession of the land. While the foreclosure proceedings were ineffectual to disturb the rights of Donald Bros, under their mortgage, Stybr was, nevertheless, as to them, a senior mortgagee in rightful possession of the mortgaged premises ; and, because the full statutory period had elapsed in which Donald Bros, might enforce their mortgage, it was utterly unavailable to them, either as a cause of action or as a ground of defense. (Civil Code, § 25 ; Gen. Stat. 1901, §4453.)
In the case of County of Floyd v. Cheney, 57 Iowa, 160, 10 N. W. 324, it appeared that a junior mortgagee had foreclosed and obtained title without making the senior mortgagee a party. The senior mortgagee then foreclosed his mortgage without making the junior mortgagee a party, and, upon obtaining liis deed, went into possession of the mortgaged premises. The senior mortgagee then brought an action to quiet his title to the land, and the junior mortgagee, by way of cross-petition, asked that the plaintiff’s fore closure proceedings be decreed to be null and void, but that if such relief should not be granted, she might be permitted to redeem. In affirming a judgment quieting the title to the land, the court said:
“The plaintiff being a mortgagee in possession of the property, and the defendant being the holder of a junior mortgage, all rights under which are absolutely and completely barred by the statute of limitations, her mortgage is not available to her, either for the purpose of maintaining an action to redeem, or as the ground of a right to obtain possession of the land.”
Donald Bros, having chosen to stand upon the sufficiency of their answer until the court had sustained the motion for judgment-on the pleadings, their motion for leave to amend came too late, and it was not error for the court, in its discretion, to overrule it.
Donald Bros, make an additional claim that their, right to redeem had been admitted in the original petition filed in the action, because it contained an alternative prayer asking, first, for the cancelation of their mortgage as invalid, or, if -it be found to be valid, that they be required to redeem. The petition itself, however, alleged that the mortgage to Donald Bros, had been satisfied, and was, therefore, no longer a lien on the premises, but that because it had not been released it clouded Stybr’s title. There was, therefore, no election by Stybr binding him to suffer redemption at the hands of Donald Bros.
The judgment of the district court is affirmed
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was commenced by J. Rockwell Cowles, as plaintiff, upon a negotiable promissory note, and to foreclose a mortgage given to secure the same, on the north half of the southeast quarter and the south half of the northeast quarter of section 17, township 29 south, of range 16, in Wilson county. They were executed by Gertrude L. Webster, and the petition alleges that Paul Fisher, Benj. Seem, Mary Seem, et al., set up some claim of ownership to the premises described in the mortgage, the precise nature of which is unknown to the plaintiff, but he avers that whatever said claim may be it is inferior to and subject to the claim of plaintiff. The defendants Fisher, Benj. Seem and Mary Seem in their answer, among other defenses, claim an interest in said land under a tax deed. In his reply, plaintiff Cowles avers that the tax deed is not valid; to this part of the reply the defendants filed a general demurrer. They claim that in an action to foreclose a mortgage the mortgagee cannot compel a defendant other than the mortgagor to litigate the question of paramount title.
This matter has been discussed in the case of Bradley v. Parkhurst, 20 Kas. 464, and although the facts in that case are not exactly similar to this, yet we believe the rule therein announced should be extended to embrace this case, and upon’ that authority we believe the demurrer was properly overruled.
Afterward the case was tried in the Wilson district court, at the May term, 1886, by the court without a jury. The record discloses the facts to be as follows: On March 30, 1875, Gertrude L. Webster, the owner of the tract above described, gave her note and mortgage on said land to Wm. R. Cope for $1,000; December 21, 1877, she, being still the owner, executed a note and mortgage thereon for $1,500 to J. W. Stover, who sold them in the east and fraudulently appropriated the proceeds; Mrs. Webster received no consideration whatever for said note and mortgage. On March 15,1878, said Stover entered upon the records of the register of deeds of Wilson county a full satisfaction and release of his mortgage; August 6,1878, Cope commenced proceedings on his note and to foreclose his mortgage, and under a judgment obtained in that action forty acres of said tract were sold at sheriff’s sale to Paul Fisher, on the 27th of June, 1879; on the 18th of October, 1878, Gertrude L. Webster executed to A. M. Buchanon a mortgage upon the remaining 120 acres of land for $800, in order to obtain money to pay the balance due on the Cope mortgage, and the money so obtained was used for that purpose; on December 6, 1879, Buchanon commenced his action to foreclose his mortgage, and on February 20, 1880, obtained a judgment thereon. J. W. Stover almost immediately after obtaining the note and mortgage from Gertrude L. Webster sold and assigned them to Joseph B. Eldridge, of the banking firm of Cowles & Eldridge, of New Haven, Conn., who had been in the habit of purchasing and negotiating mort gages procured by Stover. Cowles & Eldridge sold and assigned this note and mortgage, and indorsed them to plaintiff, who was a farmer living in the vicinity of New Haven, Conn. As the coupons matured the plaintiff presented'them to Cowles & Eldridge, who paid them, and then forwarded the coupons to Stover for collection, who paid them, Mrs. Webster believing that the note and mortgage to Stover had been destroyed. On August 3, 1880, an unacknowledged assignment of the Stover mortgage to plaintiff was recorded; this assignment was written on the back of the mortgage, and purported to have been executed by Stover on January 23,1878. October 4, 1880, the land was sold under the Buchanon foreclosure, and in due course the sale was confirmed and deed executed to Paul Fisher, one of the defendants in error, who had no notice of the assignment of the Stover mortgage, or of the record of such assignment, or that there was any infirmity in the release of that mortgage entered upon the record by Stover. Under this testimony, which is substantially undisputed, the court rendered judgment in favor of Paul Fisher, Benj. Seem, Mary Seem, et al., for costs. It is agreed by all parties that the tax deeds set up in defendants’ answer are void.
We believe that so far as the forty acres of land purchased at the sheriff’s sale in the case of Cope against Webster et al., are concerned, the rule laid down in the case of Lewis v. Kirk, 28 Kas. 497, is applicable. The facts are very nearly alike in both cases, and so far as the application of the rule is concerned there can be no possible distinction between that case and this one. The plaintiff, however, claims that so far as the 120 acres which were sold under the Buchanan foreclosure are concerned, the purchaser had constructive notice by the record of the assignment of the mortgage, that Stover had made an assignment of the note and mortgage before he executed his release upon the records. He executed his release upon the 15th of March, 1878, and the assignment to Cowles & Eldridge was made on the 23d of January, 1878; and from the records he claims that it is shown that at the time Stover made this re lease he had do interest whatever in the note and mortgage, and therefore it was void.
The provisions of the statute which govern in the recording of conveyances of land or any estate therein so far as they are applicable to this case, are as follows: Section 3, chapter 22, Compiled Laws of 1885, provides:
“Conveyances of land, or of any other estate or interest therein, may be made by deed, executed by any person having authority to convey the same, . . . and may be acknowledged and recorded as herein directed.”
Section 11 is as follows:
“The court or officer taking the acknowledgment must indorse upou the deed a certificate, showing in substance the title of the court or officer before whom the acknowledgment is taken; that the person making the acknowledgment was personally known to the court, or to the officer taking the acknowledgment, to be the same person who executed the instrument, and that such person duly acknowledged the execution of the same.”
Section 19 is as follows:
“Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved, or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated.”
Section 21 is:
“No such. instrument in writing shall be \falid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”
The owner and holder of a mortgage has an interest in the lands mortgaged, aúd this assignment was made for the purpose of conveying the same; it was not acknowledged and certified as provided by § 11, and therefore, so far as imparting notice by being spread upon the records, falls within the provisions of §21. (Wickersham v. Chicago Zinc Co., 18 Kas. 481.) The plaintiff claims, however, that this assignment was a part of the mortgage, and the mortgage having been duly acknowledged, this as a part thereof was an instrument embraced within the provisions of the statute, and subject for record. This assignment was made January 23, 1878: the deed was executed December 21, 1877. The acknowledgment was the act and deed of Gertrude L. Webster; the assignment was executed by Stover. It was an act done by a different party, at another place, at a different time, for a different purpose, and the mere fact that it was an instrument of writing upon the back of the mortgage assigned would not make it a part of the same instrument. It being placed there gave it no greater validity for record than if made upon another paper. The law does not intend that such a paper shall be recorded, and therefore the spreading it upon the public records would not give constructive notice of its contents. As the assignment was not acknowledged as provided by §11, it should not have been recorded; and being spread upon the public records without authority of law, it imparted no notice whatever. (See also O’Neill v. Douthitt, 40 Kas. 689, 20 Pac. Rep. 493.)
We recommend that the judgment of the court be affirmed, and that the costs in the case of Fisher et al. v. Cowles be paid by the plaintiffs in error in that case; all other costs be paid by the plaintiff Cowles.
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.:
In this action, brought in the court below to permit Cornelius Elston to redeem the northeast quarter of section 32, in township 26, range 25, in Bourbon county, formerly his homestead, and to have an accounting with the parties who have been in the possession thereof, it is claimed on the part of the plaintiff that the quitclaim deed executed by him and his wife on the 22d day of November, 1879, must be declared a mortgage only; that the deed was delivered under a verbal arrangement between Elston and Bronson that Elston was to have five or six months in which to sell the land to pay off the judgment, and in any event that he wag to have the right to sell and redeem the land until the judgment was satisfied and the deed recorded. It is then urged that as the judgment was never actually satisfied of record and the deed never recorded, Elston has the right to redeem and call for an accounting, there being no intervening rights of innocent purchasers.
Elston testified with reference to the conveyence of 22d of November, 1879, that C. O. French was Darlington’s attorney when the judgment of foreclosure was rendered; that he told Mr. French if he would wait on him until the time to give a deed, he would make it; that Mr. French said he would wait; that when the time came for making the deed he went to Mr. French; that French directed him to Bronson, and said that whatever arrangement could be made with Bronson would be satisfactory to him; that Bronson was the clerk of the district .court of Bourbon county at the time, and had been for years; that he supposed Bronson was the man to receive the money when it was paid in, as the clerk of the court; that Bronson did not say anything about being the agent of Darlington; that he did not know he was Darlington’s agent, but supposed he was dealing with him as clerk of the district court; that Bronson took the deed in his own name, agreeing at the time that he (Elston) should have until the judgment was satisfied of record and the deed recorded to dispose of the land and pay the judgment; that in the spring of 1880 Bronson told him the matters had all been fixed up, and then he gave up and moved off the land; that in the winter of 1883 or 1884 he discovered the judgment in the foreclosure case was not satisfied, and immediately brought this suit to redeem.
Bronson testified that he did business for Hilborn Darling-ton through Smedley Darlington, of West Chester, Pennsylvania; that at the time of the execution of the quitclaim deed from Elston to him, and for several years prior, he had been the agent of Smedley Darlington; that the mortgage and note given by Elston to Hilborn Darlington were received by him for collection in the early part of the year 1879; that soon after, he notified Elston through the mail that the note and mortgage were in his hands for collection; that after he failed to pay, he caused the mortgage to be foreclosed; that in the judgment for foreclosure, there was a stay of the order of sale for six months; that about the end of the stay, Elston came to his office and said he was unable to pay the judgment; that he was afraid, if the order of sale was issued, the land would not bring enough at sale to satisfy the judgment; that he did not like to have a part of the judgment remaining against him; that he was willing to deed the land, if Darling-ton would release him from any further payment; that he (Bronson) said to him that all Darlington wanted was the principal, interest, and costs; that if he could get that, he was willing to take the land; that he believed that if Elston and his wife would make a deed of the land to Darlington, he could get a satisfaction of the judgment; that Elston said he was willing to do this, and proposed to make the deed at once; that he commenced to write the deed, when Elston suggested he did not know Darlington personally, and would rather make the deed to him, if he would agree to get a satisfaction of the judgment; that he told Elston if he would rather make the deed to him, he would give his personal agreement to obtain the satisfaction of the judgment before he would place the deed on record, and that he would look to Darlington for the costs; that Elston consented to this; that he (Bronson) wrote the deed accordingly; that Elston, after causing it to be acknowledged, delivered it to him as a deed to convey a full, legal and equitable title to the lan<3; that the only arrangement between Elston and himself about the delivery of the deed was this: that as soon as he (Bronson) got in his hands the satisfaction of the judgment from Darlington, the escrow was to cease, and the deed was to be absolute; that after that he should have full right to convey the real estate to Darlington, or whomsoever he might direct; that nothing was said about placing the satisfaction on record, or that the laud should not be transferred until the satisfaction of the judgment was of record; that no agreement was made that Elston should have the right to sell or redeem the land up to the time the satisfaction was put on record; that it was expressly understood the deed was to take immediate effect whenever he (Bronson) should receive the satisfaction of the judgment from Darlington. The question was asked of Bronson, “ whether anything was said to Elston about his having an opportunity to find a purchaser for the land?” To this Bronson answered, “ that before Elston left the office he remarked he thought the land was worth more than the judgment, and would like to have the privilege of redeeming it if he could do so; ” that he told him all Darlington wanted was the principal, interest, and costs; that while he had no authority to say so from Darlington, yet he believed Darlington would permit him to redeem the land at any time while he owned it, upon full payment of principal, interest, and costs; that if Elston found a purchaser before Darlington sold the land, he would write to Darlington concerning it, and he had no doubt but that Darlington would let him do so; that Elston never at any time applied to him, before the commencement of this suit, to redeem the land; that upon receipt of the deed, he wrote the following satisfaction of the judgment:
“In the District Court of Bourbon County, Sixth Judicial District of the State of Kansas.—Hilborn Darlington, Plaintiff, v. Cornelius Elston et al., Defendants. — I, Hilborn Darlington, the plaintiff in the above-entitled action, do hereby acknowledge that I have received full payment of the judgment rendered in said action; the said payment being a quitclaim deed from the above-named defendants for the land upon which the mortgage was foreclosed in said action; the said deed running to Ira D. Bronson, and a quitclaim deed from said Bronson to me. And I hereby authorize the clerk of said court to enter satisfaction of said judgment on the records of said court, the said conveyance and deed being made at the request of the said defendants in order to save further costs of sale of land.”
This he sent by mail to Darlington to sign, and informed him of the agreement he had made with Elston; that by due course of mail he received a letter from Darlington informing him he had consented to the agreement; that afterward he in formed Elston that he had received such a letter from Darling-ton, and asked for an order to his tenant on the land to deliver possession thereof to Darlington; that Elston gave him a written order to the tenant directing him to surrender possession ; that under the order he received possession of the land for Darlington; that he received the satisfaction of judgment above referred to signed by Darlington about March 25, 1880; that he immediately placed the written satisfaction of the mortgage in one of the pigeon-holes of the desk of the clerk’s office, but through neglect did not mark it filed with the papers of the office; that when he vacated the office of the clerk of, the court, in removing from the office his private papers he carelessly gathered up this satisfaction of the mortgage with other papers, which were in pigeon-holes in his desk, and took it to his residence; that he also mislaid the deed given by Elston, but after the commencement of this suit he found among his papers both the satisfaction of the mortgage and the deed.
The testimony of Mr. French is corroborative of some of the statements of Bronson. He said among other things that after the mortgage came into his hands for foreclosure, he had conversations at different times with Elston in regard to delaying legal proceedings so as to give him an opportunity to sell the land and pay the mortgage debt; that he knew he made efforts to sell the land; that he offered the land at about $800, but could not find a purchaser; that after this the mortgage was foreclosed; that after the judgment had been rendered he tried to assist Elston to find a purchaser for the land at a sufficient price above the judgment and costs to leave him $100; that he could not find a purchaser; that Elston told him at different times if he could not sell the land for sufficient to pay the judgment and costs he would deed it to Darlington to pay the judgment, as he was afraid if the property was sold at sheriff’s sale it would not bring the judgment, and he did not want a judgment hanging over him for the balance; and that Elston knew Bronson was Darlington’s agent in regard to the mortgage and the land.
The fact that Elston in the spring of 1880 moved off the land and turned it over to Bronson justifies the conclusion that he supposed his interest in the land was gone. If the testimony of Bronson with reference to the quitclaim deed to him from Elston be accepted as truthful, then the judgment of the trial court must be sustained. Upon this testimony Elston has no right to redeem. He executed the deed to Bronson so as to obtain the satisfaction of the judgment in the foreclosure case. The satisfaction of the judgment, reciting the quitclaim deed from Elston to Bronson, and the quitclaim deed from Bronson to Darlington, duly signed and acknowledged, were returned to Bronson. In March, 1880, Elston was notified the judgment was satisfied, and thereon he moved off and gave up the land.
Elston appeals to a court of equity to permit him to redeem, because the satisfaction of the judgment delivered to Bronson was not filed or put on record. In equity, that is considered as done which the parties have agreed to do and which they ought to have done; therefore, as Darlington accepted the proposition of Elston, delivered a written satisfaction of the judgment in the foreclosure .suit to Bronson to be filed, and as the defendants have always been willing to satisfy the judgment, we may consider the judgment satisfied, and the defendants ought to be permitted to file the satisfaction. It may be said that Elston surrendered his interest in the land at a price manifestly inadequate. There is nothing in the policy of the law which forbids him to execute the quitclaim deed to Bronson upon terms satisfactory to himself. Of course such a transaction will be closely scrutinized. At the time the loan was made, and also at the time of the institution of this action, the land was worth from two to three thousand dollars, but in the fall of 1879, although assisted by the attorney of Darlington, no sale of the land could be effected for $800. Elston in his own testimony stated he told Mr. French if he would wait on him until the stay expired, he would make a deed, and also stated he went to Mr. French to make the deed, and French sent him to Bronson. There is no evidence showing or tending to show that the written satisfaction of the judgment executed by Darlington, or the quitclaim deed executed by Elston, was fraudulently or purposely withheld from the record. These things seem to have occurred through the negligence or oversight of Bronson, not from any desire to do wrong. Darlington had already had his mortgage against the land foreclosed, and clearly he did not understand he was accepting the quitclaim deed as another mortgage, or that any debt, after that acceptance, existed between him and Elston. Bronson, upon receiving notification from Darling-ton that he would accept the quitclaim deed in satifaction of the judgment,- and upon receiving the written satisfaction above referred to, understood the debt from Elston to Darling-ton was extinguished; and when Elston was notified of the satisfaction of the judgment and gave up the land, he also must have understood that Darlington had no other or further claim against him, either by judgment or mortgage. It is nowhere shown by the testimony that either Darlington or his agents French and Bronson were anxious to procure the quitclaim deed. All that Darlington wanted, or his agents wanted, was the judgment, interest, and costs. According to all the testimony, Elston could not sell his laud for sufficient money to pay the judgment, and therefore was anxious for Darlington to take a conveyance of the land and extinguish the debt.
After Darlington executed and sent to Bronson the written satisfaction of the judgment, he paid, on account of the conveyance from Elston to Bronson, and from Bronson to him, $148.70 as costs in the foreclosure suit and as taxes upon the land. Although Bronson was the agent of Darlington, yet he was also the clerk of the district court of Bourbon county, and if Darlington returned to him the written satisfaction of the judgment as district clerk, the deposit with him of that instrument was itself a satisfaction of the judgment. If, however, full credence be given to the testimony of Elston, then he consulted Bronson as the clerk of the court and as his friend or agent. He ex'ecuted the deed to Bronson with the understanding that Bronson would obtain a satisfaction of the judgment, put the deed on record, and then that the land should belong to Darlington, with the parol agreement that until that time he was to have the right to sell the land. Now if in this arrangement Bronson was not the agent of Darling-ton, then when Darlington accepted from Bronson the quitclaim deed and delivered to him the written satisfaction of the ju(^gment and paid all the costs of the judgment, together with the taxes on the land, the land be-]0Qged to Darlington, even if Bronson, as the friend or agent of Elston, had violated instructions. Elston insists that he consulted Bronson not as the agent of Darling-ton, and if he was not the agent of Darlington in accepting the deed and obtaining the satisfaction of the judgment, then of course he acted for Elston and Elston is bound thereby.
Again, if it was the understanding between Elston and Bronson that the quitclaim deed of the 22d day of November, 1879, was executed to satisfy the judgment of foreclosure if Darlington would accept the same in payment thereof, and thereafter Darlington did accept the quitclaim deed, and delivered to Bronson, the clerk of the court, the written satisfaction of the judgment, even if there was a verbal agreement between all of the parties that Elston might have a reconveyance of the land if he effected a sale " within five or six months, this would not render the quitclaim deed from Elston to Bronson a mortgage, or compel a court of equity to permit Elston to redeem. He was not compelled by any agreement to repurchase, and the rights of this alleged verbal understanding were not reciprocal. (McNamara v. Culver, 22 Kas. 661; Eckert v. McBee, 27 id. 232.)
Darlington did not convey the land to Martha J. Chamberlain until December 10, 1880. This conveyance was filed for record January 17, 1881. The deed from Bronson and wife to Darlington was recorded January 29,1881. The deed from Martha J. Chamberlain to Harriet W. Chamberlain was recorded October 2, 1882. After these deeds were recorded, Elston executed, at the instance of Bronson, a second deed, but his wife refused to sign this deed, and soon after this action was commenced. At the time that Bronson asked him to make a new deed, Elston said “that he had no right to make another deed.-” Therefore, in whatever view we consider the testimony, we are driven to the conclusion that after Darlington accepted the quitclaim deed and deHvered to Bronson the written satisfaction of the judgment and paid all the costs thereof, no debt or claim existed in his favor against Elston, and therefore that the quitclaim deed of Elston to Bronson cannot be regarded as a mortgage.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This was an action by a landlord for the rent of his farm for the year 1885. The defendant, who is defendant in error, went upon the farm of plaintiff as his tenant in 1883, and remained there during the years 1884 and 1885. No written lease was ever made between them. It was agreed and understood between the parties that the landlord was to receive one-third. There was some dispute between them whether it was one-third of all that might grow upon the farm, or simply of the grain. For the purposes of this action, under the verdict of the jury for defendant, we shall hold, as the defendant claims, that the rent was to be one-third of the grain only; that eliminates all question about the hay and vegetables. The plaintiff began this action by an attachment, and the crop was levied on. At the trial the jury rendered a general verdict for the defendant, and answered the following question:
“Was any part of the crop removed from these premises by the defendant at any time within thirty days next prior to the commencement of this action in the justice court? Ans. : Yes.”
The testimony establishes that there were eighty or ninety acres in corn upon the land rented, and that the average yield per acre was about twenty bushels; that the defendant commenced cutting up the corn before it was ripe to feed his hogs, dividing it by taking ten rows and leaving five, and afterward took out of his ten rows one load of corn, twenty-two bushels, to the nearest market town to pay a doctor’s bill which he had owed for a year and a half. This removal was without the consent of plaintiff. Subsequently, and after this action was commenced and the attachment levied, he gathered about one hundred and sixty bushels and put it in plaintiff’s crib, when he was directed by him to stop gathering the corn.
The question to be decided in this case is, whether the removal of that load of corn from the leased land without the consent of the landlord was sufficient to sustain the attachment upon the crop.
Section 27, chapter 55, Comp. Laws of 1885, is as follows:
“When any person who shall be liable to pay rent (whether the same be due or not, if it be due within one year thereafter, and whether the same be payable in money or other thing) intends to remove or is removing, or has within thirty days removed his property, or the crops, or any part thereof, from the leased premises, the person to whom the rent is owing may commence an action in the court having jurisdiction. . . .”
It is admitted by the defendant that he took the twenty-two bushels of corn from the premises without the consent or knowledge of the plaintiff, and there was no testimony showing that there was any other amount of grain x’emoved. It is also apparent from the evidence that this load of corn was not taken away for the purpose of hindering or delaying the plaintiff in the collection of his rent, or with any intent to defraud him. The testimony shows furthex’, that there were fifteen hundred bushels of corn grown on the place that year. Under these facts the question is px’esented, whether the removal of this part of the crop is sufficient to sustain an attachxnent by the landlord, who claixxis a lien thereon.
Section 24 of chapter 55 provides that the landlord shall have a lien upon the crops growing or made upon the premises, and such lien may be enforced by action and attachment therein. Under this statute his lien extends to- the entire crop that may have been grown, not simply to any part of it. And in keeping with its provisions said § 27 provides in plain terms that the removal of any part of the crop from the premises is ground for an attachment. It does not require any intention of the tenant to delay, hinder or defraud the landlord. By the terms of this statute the intent of the party is immaterial; the simple fact of removal is enough; the language of the statute compels this construction. No other could be given without doing violence to the language used. If the motive of the tenant was material, then probably the judgment would have been correct, and the manner of removal and the purpose of defendant would have been proper matters to inquire into. But under the view we take of the case, all that it was necessary for the plaintiff to establish was, that the tenant had removed an appreciable part of the crop within thirty days withput the consent of the landlord. (Masterson v. Bentley, 60 Ala. 520.)
We recommend that the judgment be reversed.
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.:
I. Exception was taken to the overruling by the trial judge of the motion to quash the indictment which was filed as a plea in abatement, upon the ground that one of the grand jurors by whom the indictment was found was disqualified to act, being a member of the board of county commissioners of Sumner county. Section 18, chapter 54, Comp. Laws of 1885, provides:
“The following persons shall be exempt from serving as jurors, to wit: All persons holding office under the laws of the United States or of this state, attorneys and counselors at law, physicians, ministers of the gospel, professors and teachers of colleges, schools, and other institutions of learning, ferrymen, all members of any company of firemen organized according to law, all persons more than sixty years of age, and all other persons exempted by any other law of this state from serving on juries.”
Section 4, chapter 166, Laws of 1887, reads:
“That said commissioners shall select from those assessed on the assessment-rolls of the several townships and cities of the preceding year, suitable persons having qualifications of electors, and in making such selection they shall choose only those who are not exempt from serving on juries, and who are possessed of fair character and approved integrity, and in possession of their natural faculties, and not infirm or decrepit, and who are well informed and free from legal exceptions. No person shall be selected as a juror who either in person or by any other means shall solicit his selection as such; and in making such selection the said commissioners shall select one person for each fifty inhabitants in said county, and such selection shall be made without regard to city or township limits, from the whole body of the county.”
It is urged under the provisions of article 2, chapter 25, Comp. Laws of 1885, and the statutes quoted, that a member of the board of county commissioners of a county is disqualified from acting as a juror. The statute makes provisions for exempting certain persons from serving, or being selected as jurors, but does not state that such persons are disqualified. To exempt is not to disqualify. Exemption is the personal privilege of the party exempted, with which no one else has any concern. (The State v. Wright, 53 Me. 328-345.) It may be stated, as a general rule, that in the absence of terms in the statutes granting the exemptions, amounting to a positive prohibition or creating an incapacity for jury service, the exempt person may, when called, waive the privilege conferred by law, and take his place upon the jury, unless otherwise subject to challenge. (Thomp. & M. on Juries, §40, p. 38.) Even if it be admitted that a member of the board of county commissioners of a county is exempt from serving as a juror, there is nothing in the statute showing that a person holding such an office is disqualified; therefore, as the juror waived his privilege, the defendant has no ground of complaint.
II. The objection to the act under which the indictment was found is not well taken. The title of the act is, “An act authorizing the appointment of a commissioner of fisheries, and for the protection of fish in the waters of the state of Kansas, and making an appropriation for the salary of the commissioner.” (Laws of 1877, ch. 117; Comp. Laws of 1885, ch. 42h, p. 457.) The title of the act is sufficiently broad, and while it provides for a commissioner of fisheries, it also specifically applies directly to the protection of fish in the waters of the state. As a means of protecting fish, the statute makes it unlawful for any person or company to obstruct any of the streams in the state, by building a dam, or otherwise, without constructing a fish-way. The whole subject of the statute is the protection of fish in the waters of the state. Neither the statute, nor any of its provisions referred to, are in violation of the constitution.
III. It is alleged that the indictment does not charge that the dam was in Sumner county. We think otherwise. The indictment states that on the 14th day of February, 1888, and at all times and dates since the year 1888, Henry Stunkle had been the owner and operator of a mill-dam across the Ninnescah river, about two miles south of the Sedgwick county (Kansas) line, in London township, at what is commonly called Stunkle’s mill, said mill being situated in the county of Sumner and state of Kansas. This shows that the dam was located at Stunkle’s mill, which is in Sumner county.
IV. We cannot say that the testimony of S. Fee was incompetent. At the time of his examination he was state fish commissioner, and had discharged the duties of that position for over three years; he stated that the investigations which he had made had rendered him familiar with the habits of fish in the streams of the state; he had read very extensively the standard authorities concerning fish, and had some personal experience of their habits; he testified as an expert that from his knowledge on the subject, fish, in the streams of this state, could not, in ordinary stages of water, pass over an obstruction that is from three to five feet out of the water. (The State v. Baldwin, 36 Kas. 1.)
We have examined the other alleged errors commented upon in the brief, but they are so feebly urged and are of so little importance that it is unnecessary to notice them.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Laura Ford brought this action against the plaintiff in error and two others, to recover the possession of a number of shocks of wheat, valued at $160, and also to recover $10 as damages for the wrongful detention of the same. The wheat was grown upon a tract of government land, the possession of which was claimed by both of the parties, and is the same land upon which the oats grew that were in controversy in Barnhart v. Ford, 37 Kas. 520, an action very similar to the present one, in which the issues were determined in favor of Laura Ford, as they have been in the present case.
From the record it appears that in 1880 Laura Ford in good faith took the initiatory steps to obtain a title to the land by making settlement and improvements thereon, and by filing a declaratory statement, and paying the officers’ fees therefor, and she has continued to reside on the land and cultivate the sanie ever since that time. After she became a settler upon the land, one John Porter undertook to take possession of the same, and contested the right of Laura Ford to hold possession of or enter the land at the land office; but this contest was decided adversely to Porter on April 9,1883. Shortly after this decision, Barnhart purchased some improvements which Porter had made upon the land, and with Porter’s consent attempted to occupy the land, and on June 6, 1883, Barnhart filed a declaratory statement, alleging settlement on April 23, 1883; but as to this the jury found that he did not go upon the land in good faith, with the intention of residing upon it permanently and of purchasing it of the United States. The United States land officers have decided in favor of Laura Ford, and have allowed her entry of the land, although an appeal from the decision has been taken, which it is understood is still pending, and the jury in the present case have also found that she is entitled to the exclusive possession of the property, and therefore awarded her the wheat in controversy.
An objection is raised that it was not shown that Laura Ford was a qualified preemptor under the law, and it is claimed that the finding of the jury that she was a single person and a citizen of the United States, is without support. Testimony was submitted to the jury showing that she was accepted by the United States land officers as one duly qualified to settle upon and purchase land; and these officers are invested with authority to determine this question. This was prima fade evidence of her qualification as a preemptor; and that she was entitled under the law to enter government land was not disputed at the trial. The receiver’s receipt for $2, as the fees for filing the declaratory statement, and the register’s certificate that it was filed, a paper given by these officers to Laura Ford, and dated September 22,1880, was receivable in evidence. No objection was made as to the identity or genuineness of the paper, and if it had been objected to, the preliminary proof might have been forthcoming. The paper was not received in evidence to show title, but the filing of the statement and the payment of the fees being contemporaneous with her settlement and possession, it was received to show her good faith and the nature and character of her possession. The same kind of testimony was offered by and received in behalf of the plaintiff in error. No error was committed by the court in admitting it. (Stout v. Hyatt, 13 Kas. 232.)
Another objection is made to the reception of a decision of a contest between these parties with respect to this land by the local land officers, and which had been forwarded in course to the general land office. The following is the decision :
“Januaby 7,1884. — Laura Ford v. John Barnhart.—The above cause was heard October 24,1883. This is an old case, and has been decided by the department several times. The last time it was before you it was Ford v. Porter, and you decided in favor of plaintiff. After the receipt of your decision of June 21,1883, allowing Miss Ford to enter the land, before she could perfect the entry, defendant John Barnhart, a son of Jos. Barnhart, filed, thereby preventing Miss Ford’s entry.
“The evidence shows that Miss Ford, the plaintiff, is a single lady; that she settled on the land in August, 1880, and has good and lasting improvements; that she is a poor girl, and works away from home to save money to improve her claim, but has had no other home but this, and has done all she could under the circumstances to improve her claim and make a home for herself.
“The defendant settled on the land April 23, and filed June 6, 1883, and has built a house fourteen by sixteen, one story high. .
“He moved into his house about May 1st, and has made a continuous residence; and that he is a qualified preemptor.
“The defendant swears that he obtained permission to take the claim from the former defendant, Porter; but at that time you had decided Porter had no right, and had canceled his filing. So he clearly had no right to either sell or give away. We are of opinion that plaintiff ought to be allowed to enter the land. M. J. Salter, Register.
H. M. Waters, Receiver
This paper bears upon its face the evidence of its competency. It is true that no certificate is attached to the copy introduced, but there is a statement accompanying it in the record made by the court that it was duly certified to be a true copy of the original decision. Prom this we must assume that it was certified as the law requires to make it admissible in evidence; and when so certified it was competent proof. (Civil Code, § 384.) A copy of the decision of the commissioner of the general land office respecting the rights of these parties to the laud for which they were contesting was admitted over the objection of the plaintiff in error. There is a like statement that it was duly certified, and it will be so regarded. It was made November 2, 1885, after the action was begun, but the facts found and stated therein related only to that which had occurred before the commencement of the action. He was a competent officer to examine and decide upon these facts, which were submitted at a hearing on a contest between the parties with reference to their right of possession and right to purchase the land from the United States. He found in favor of Ford and against Barnhart, and the facts found and stated by him are in keeping with what the whole record discloses. This decision and a duplicate receiver’s receipt admitted were dated a short time after the commencement of the action, but no rights were claimed under any after occurrences, and the court in its charge confined the inquiry to the facts as they existed before the commencement of the action, and further expressly directed the jury that they were not to decide from the mere fact that the plaintiff had obtained the final receipt for the land that she owned it at the time of the commencement of the action. No prejudice could have resulted to the plaintiff in error from the introduction of these papers. The charge, although somewhat criticised, fairly submitted the case to the jury, and the testimony and record abundantly show that she was entitled to the exclusive possession of the land, and therefore entitled to the crops growing thereon.
We think no substantial error was committed during the trial, and that the judgment should be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
It is claimed that the findings of fact show that the levy for county purposes was larger than that authorized by law, and for that reason the land was sold for a larger sum than it should have been. The levy for the year 1879, upon which this tax sale is based, was: For state taxes, five and one-half mills; county taxes, seven mills; county road tax, three mills; township tax, three mills; school-district tax, ten mills. The court found that the tax-roll showed that the general tax was $2.64, and with delinquent road tax and school-district tax, $4.56; and the court explains this by stating that the general tax included the state, county and township tax; but the court also shows that this total was corrected by erasing $4.56 and making it only $4.40. In other words, it was found that one mill of this levy was illegal, and it was dropped from the total amount, making it 16 cents less, or $4.40. The findings of fact do not show how this occurred. Counsel insist that it was because the state tax instead of being five and one-half mills was six and one-half mills, or one mill for state school purposes, which one mill was held that year.to have been illegal, and therefore not properly included in the levy. But at all events we think the plaintiff cannot complain of this apparent irregularity, because the amount for which the land was sold included one mill less than the original levy.
Now as to the question, did these amounts include for county purposes more than ten mills? It is conceded that that sum was the highest amount the county could levy for county purposes. This general tax of $2.64 included the state tax, and taking off the one mill for school purposes leaves five and one-half mills; seven mills for county purposes and three mills for township purposes make fifteen and one-half mills; and at a valuation of $160 the tax would amount to $2.48. This shows that the road tax was not included in the general tax, and therefore the 32 cents included in the total amount of tax would be equal to two mills on the assessed valuation, making the total levy for county purposes but nine mills on the dollar. This must be correct, unless the three mills for township purposes are to be included in the general levy for county purposes. The findings of the court do not show for what purpose this three-mill tax was levied, except for the township of Newbury. Counsel in their brief go upon the theory that it was for road purposes; but the findings do not show that fact. Counsel again insist that the land was sold for 22 cents more than was shown on the tax-rolls. The court finds that the tax-roll shows two penalties of 22 cents each, one for December and one for March; but the findings also show that, the land was sold for $5.41; and if in that amount were included the three penalties of 22 cents each — which were the correct penalties due on this land — we are not able to say from the findings that this last penalty was not upon the tax-roll, but on the contrary, we must presume in the absence of any showing that the court properly found that charge, and that it was properly made. It was the duty of the clerk to have charged that up, and we must presume it was done, in the absence of anything to the contrary.
The last claim of error is, that the final notice did not give three years from the date within which to redeem the land. The notice reads that the land would be sold on the 7th day of September, and that “ the period of redemption will expire in three years from the date of sale, or on the 8th day of September, 1883.” The notice also provides that the land will be conveyed to the purchaser “if not redeemed on or before the 8th day of September.” These terms, it is true, are somewhat conflicting; but as the deed was not issued until the 15th day of November, and as the notice does say that three years will be given for redemption, and that it may be redeemed on or before the 8th day of September, we must presume that that included all of the 8th day; and if the owner had all of the 8th day of September in which to redeem, then he had the full three years from the date of the sale.
While we are free to say that the findings of the court in some respects are not very clear, yet upon the whole record we are of the opinion that the judgment was correct, and therefore recommend that it 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
Horton, C. J.:
This action was brought by Helen A. Franz to enjoin the county clerk of Atchison county from issuing a tax deed upon a tax-sale certificate, dated the 2d of September, 1884, on certain real estate situated in Atchison city. There was included in the amount of the taxes for which the real estate was sold, an illegal macadam tax. In the facts specially found by the trial court were the following’:
“10. Said assessments were duly placed upon the tax-roll for 1883. The plaintiff Helen A. Franz paid the first half of her tax upon the said property described as belonging to her, except said special assessment for macadamizing, but she did not pay and has not yet paid any part of the second half of her taxes or assessment upon said property.”
The court also found as a conclusion of law, that:
“2. Owing to the failure of the plaintiff Helen A. Franz to pay the second half of her general taxes, she is not entitled to an injunction herein upon the real property described as belonging to her, the tax-sale certificate not being wholly void.”
It is conceded that all the taxes levied upon the real estate, for which it was sold, were legal, except the special macadam tax. It has been frequently decided by this court that an action will not lie to set aside a tax-sale certificate or restrain a tax proceeding, without a prior payment, or tender, of all the legal taxes admitted to be due and payable. (Hagaman v. Comm’rs of Cloud Co., 19 Kas. 394; Knox v. Dunn, 22 id. 683; Miller v. Ziegler, 31 id. 417.) In this case, the amount of legal taxes was not in dispute, and therefore the rule applicable to other cases generally will be applied to this. Counsel contend, however, that this case should form an exception. It appears from the evidence, not from the findings, that the plaintiff, through her agent, on June 20,-1884, made an arrangement with the county treasurer of the county to furnish him with a list of the property she desired to pay taxes on, and that he would make out the receipts for the taxes after the “rush was over.” On July 3, 1884, the agent called on the treasurer for the tax receipts; he received the same and paid $431.48, the amount stated therein. The second half of the taxes for 1883, upon the real estate of the plaintiff in dispute, was not embraced in the receipts, and was not paid. This fault or neglect cannot be wholly thrown upon the county treasurer.
First, the list of property furnished by the plaintiff to the treasurer was not full, complete and definite; second, the treasurer, in making out the receipts and delaying payment thereon to July 3,1884, was acting for the benefit and accommodation of the plaintiff; third, the plaintiff and her agent failed to examine the tax receipts when they were obtained and paid for; and subsequently permitted her property to be advertised and sold for taxes, and a certificate thereof to be transferred to a third party. Evidently the plaintiff was guilty of laches in failing to pay or tender the-second half of her general taxes admitted to be legal and due. She was not attentive or diligent in the matter, and is not entitled, under the facts of the case, to have the tax-sale certificate set aside or the injunction prayed for granted.
The judgment of the district court will be affirmed;
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
William K. Baxter was convicted in the district court of Meade county of assault and battery, and he was sentenced to pay a fine of $ 1 and costs, and to stand committed until the fine and costs were paid. He appeals, and raises two points against the validity of the judgment. It appears that the sentence imposed at the conclusion of the trial was simply that he should pay the fine and costs of prosecution. On the following day, in the absence of the defendant, and when there was no person present to undertake for him to pay the fine and costs or to satisfy the judgment rendered, the court modified the judgment entered on the previous day by adding an order that defendant stand committed to the jail of the county until the fine and costs be paid.
It is argued that this action is in conflict with § 245 of the criminal code, which provides that, “for the purpose of judgment, if the conviction be for an offense punishable by imprisonment, the defendant must be personally present; if for a fine only, some responsible person must undertake for him to pay the judgment and costs; judgment may then be rendered in his absence;” and that it is such an error as will require a reversal. The defendant should have been brought into court when the subsequent order was made; but it is difficult to see that he suffered any prejudice from the failure to do so. In respect to the order which was made in his absence, the court had no discretion, for § 251 of the criminal code provides that when the defendant is adjudged to pay any fine and costs, the court shall order him to be committed to the jail of the county until the same are paid. The general rule, independent of statute, is that in all cases where corporal punishment is inflicted, the defendant must be present in court when the sentence is pronounced; and his presence is equally necessary when any modification of such a sentence is made. The modification made in the present case, however, did not change or affect the sentence originally imposed as a punishment for the offense of which the defendant was convicted. The order committing the defendant to the jail of the county until the fine and costs are paid is no part of the sentence, and the imprisonment is no part of the punishment inflicted for the commission of the offense. It is only a means provided for the enforcement of the penalty imposed in the sentence or judgment. (In re Boyd, 34 Kas. 573.) The code itself recognizes a distinction between the sentence or judgment and the order subsequently made for the enforcement of that judgment. As we have seen, the statute, arbitrarily requires the order to be made, so that, if the defendant had been present, he could not by any showing or argument have influenced or varied the action of the court. He could only have objected, and as the objection must have been unavailing, his substantial rights were not affected, and he was in no way prejudiced. It is manifest that the rule of § 245, requiring him to be present, or that some responsible person must undertake for him to pay the judgment and costs, is made for the benefit and protection of the state rather than of the defendant; besides, he was personally present when the judgment proper was rendered.
The second point raised is, that the judge of the court gave oral instructions to the jury after it had retired to deliberate upon the verdict. Some statements were made by the court in the absence of the defendant, but it was not done secretly, as they were made- in the presence of the county attorney, as well as the attorney of the defendant. The occurrence, as related in the record, is that, in response to the question of one of the jurors, the court stated orally to the jury that “the failure of the defendant to testify should not be construed against him; and in response to another question by a juror, the court orally expressed its recollection of the evidence as to whether any person other than the defendant and Charles A. Stevens and his sister was in a position to see and hear all that was done and said at the time of the alleged assault as charged in the information, the court stating orally that it did not recollect any testimony to that effect. And both the county attorney and counsel for the defendant addressed some remarks to the court in the presence of the jury and in the absence of the defendant, and without his knowledge or consent, the counsel for defendant expressing himself as being opposed to the court responding to other interrogatories by the members of the jury.” As will be seen, the remarks of the court were mostly made for defendant’s benefit and in his favor. It seems to have been so regarded by his counsel, who was present anti made no objection to what was said, his only objection being to the court responding to any other interrogatories than those already answered. However, this was a conviction for a misdemeanor, and the personal presence of the 'defendant was not' absolutely required, as in cases of felony. The trial may proceed in his absence when he is represented by counsel. (Crim. Code, § 207.) The case of The State v. Myrick, 38 Kas. 238, in which it was held that the giving of an instruction in the absence of the defendant was error, was a conviction for a felony; and as to that the statute expressly prohibits a trial of the defendant unless he is personally present. The charge in this prosecution was for a felony, it is true, but he was only convicted of a misdemeanor, and the rule applicable to misdemeanors must apply.. It may be said that by the verdict the defendant stands acquitted of the charge of felony, and any errors committed as to that charge must be laid out of consideration. We can only consider whether there was error in the proceedings treated as a prosecution for a niisdemeanor. (The State v. O’Kane, 23 Kas. 244; The State v. Granville, 26 id. 158; The State v. Newland, 27 id. 764; The State v. Watson, 30 id. 285; Barton County v. Negbaur, 34 id. 288.) On this appeal we must therefore regard the case as a prosecution for an offense less than a felony, and as the defendant was present by counsel the rule invoked will not apply.
We think no errors were committed which require a reversal, and hence the judgment of conviction will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding in mandamus, originally brought in this court in the name of the state of Kansas, upon the relation of the county attorney of Edwards county, to compel the county commissioners and county clerk of Kiowa county to extend a tax levy upon certain territory in Kiowa county which formerly formed a part of Edwards county, to pay the interest on bonds of Edwards county which were issued before the territory named was detached from Edwards county and made a part of Kiowa county. The alternative writ recites that prior to the taking effect of the act of February 11, 1886, which re-created the county of Kiowa, a portion of which was taken from the county of Edwards, Edwards county had issued $12,000 re-funding bonds, bearing interest at 6 per cent., falling due July 1,1908; $2,000 bridge bonds, bearing interest at 7 per cent., falling due July 5, 1901; $20,000 court house and jail bonds, bearing interest at 7 per cent., falling due in the year 1905; the interest on all of the bonds being payable annually. It is further stated that these bonds were legally authorized by a vote of the people of Edwards county, were legally issued, and had passed into the hands of purchasers before the passage of the act of 1886. Further, it is alleged that in the year 1887 the board of county commissioners of Edwards county made a levy to meet the interest on the bonds mentioned, as follows: To pay interest on re-funding bonds, three-fourths of a mill; on bridge bonds, one-tenth of a mill; on court-house and jail bonds, one and one-half mills. It is then stated that on or about August 2, 1887, the county clerk of Edwards county, under the direction of the county commissioners of that county, notified the clerk of Kiowa county of the action of the board of county commissioners in making said levy, as provided by law, and requested that the same levy be made by the county of Kiowa on the territory which was detached from the county of Edwards, but that the commissioners and clerk of Kiowa county refused and neglected to make the levy.
The defendants, in their answer and return to the alternative writ, deny that any portion of the territory of Kiowa county ever formed a part of Edwards county; or that the county commissioners of Edwards county had authorized and issued the re-funding bonds upon a vote of the electors of the county. They allege that the court-house, jail and bridge bonds were not legally issued, for the reason that the elections authorizing their issue were .not legally held. They also allege that the board of county commissioners of Edwards county did not lawfully levy the taxes, and the clerk of that county did not lawfully notify the clerk of the county of Kiowa of the action taken with respect to the levy, and did not lawfully request that the levy be made by the county of Kiowa, as alleged in the alternative writ. The defendants finally aver that at the time of the passage of the act of February 11, 1886, the territory alleged to have been detached from the county of Edwards was public lands of the United States, not occupied or settled upon under the preemption, homestead, or other laws of the United States, and were therefore not subject to taxation.
The case was submitted upon an agreed statement of facts, in which it was admitted that the re-funding bonds mentioned were issued to fund the outstanding debt of Edwards county, and that neither the debt nor the re-funding bonds were ever authorized and issued upon a vote of the electors of Edwards county; and the plaintiffs waive any claim against the territory in Kiowa county upon these bonds; and it is agreed that the allegations in the alternative writ relating to them shall be stricken out. The stipulation further shows that on October 6, 1885, an election was held for the purpose of voting upon the question whether or not Edwards county should issue $20,000 in bonds for the purpose of erecting a court house and jail at the city of Kinsley, in Edwards county, and that a canvass of the vote was had on October 9, 1885, when it was found that a majority of 31 votes had been cast in favor of the proposition. After the canvass, and before the bonds were issued, some effort was made to enjoin the issuance of the bonds, but no injunction was allowed, and the bonds were thereupon issued.
The court house and jail, for the building of which the bonds were issued, were not erected until after the territory described in the writ was detached from Edwards county. It is admitted that a large proportion of the territory del ached from the county of Edwards by the erection of Kiowa county belonged to the government of the United States, and formed a part of the public domain, and was not settled upon at the time of the re-creation of the county o‘f Kiowa. It is further admitted that the county clerk of Edwards county certified to the county clerk of Kiowa county that the board of county commissioners of Edwards county had levied one-tenth of a mill for the payment of interest and sinking fund upon bridge bonds, series No. 2, $2,000, and one and one-half mills for the payment of interest upon court-house and jail bonds, $20,000; that the same was received by the county clerk of Kiowa county prior to the institution of this proceeding, and in time to have made said levy.
Kiowa county was first established and its boundaries defined in 1868. (Gen. Stat., ch. 24, §37.) By an amendment of this act the boundaries of the county were redefined in 1874. (Laws of 1874, ch. 59, § 2.) In 1875, theterritory constituting Kiowa county was divided between and included in Edwards and Comanche counties, and the provisions creating Kiowa county were repealed. (Laws of 1875, ch. 60.) While Edwards county was so enlarged, the bonds mentioned were issued, and subsequently, in 1886, Kiowa county was recreated, and its boundaries restored as they had existed before, including territory detached from Edwards and Comanche counties. (Laws of 1886, ch. 35.)
We will briefly notice the objections raised to the allowance of the peremptory writ. As the re-funding bonds were not authorized and issued by a vote of the people, they are not a charge against the detached territory, and no levy can be made thereon for their payment. This much is conceded by the plaintiffs; and it is agreed that the alternative writ may be amended and the trial proceed as if no mention had been made of these bonds and no claim had been made upon them; and hence they will be laid out of consideration.
It is conceded that the court-house and jail and bridge bonds were authorized and issued by a vote of the electors before the division of Edwards county; and further, that the bonds had passed into the hands of innocent and bona fide holders for value before any question as to the regularity of the election at which they were voted was raised; and they must therefore be regarded as a valid indebtedness existing against Edwards county. (The State v. Comm’rs of Kiowa Co., 39 Kas. 657.)
It is suggested as a defense to the action, that the detached territory sought to be charged never formed a part of Edwards county, and cannot be held liable for any of the debts of that county. This claim is based on the theory that the title of the act of 1875 destroying the existence of Kiowa county and attaching its territory to Edwards and Comanche counties does not specifically mention Kiowa county, and is not sufficiently comprehensive to include any valid provisions relating to that county. The title reads “An act defining the boundaries of Edwards and other counties, and amendatory of chapter 24 of the general statutes of Kansas, approved March third, eighteen hundred and sixty-eight, (as amended by an act approved March sixth, eighteen hundred and seventy-three, and by an act approved March seventh, eighteen hundred ánd seventy-four,) defining the boundaries of counties.” Under decisions already made special mention of, the county of Kiowa in the title was not essential to the validity of the act, and the title is sufficiently broad to include and is fairly expressive of what is found in the act. The point that it is violative n _ . .. _ . .. , of § 16 of article 2 of the constitution must be overruled. (Weyand v. Stover, 35 Kas. 545.) The liability of the detached territory to taxation for the payment of the bonds and the duty of the defendants to extend the levy arise under chapter 142 of the Laws of 1873, an act to regulate taxation where there has been a change of the boundary lines of counties and townships after a bonded debt has been created therein in pursuance of a vote of the people. The constitutionality of this legislation is again attacked, for the reason that it does not provide a uniform rate of assessment and taxation of the real estate within the taxing district. Its validity has been repeatedly before the court, and after a full consideration it has been held not to be repugnant to the constitution. Every point and argument now made has been examined and answered, and further discussion is unnecessary. (Comm’rs of Sedgwick Co. v. Bunker, 16 Kas. 498; Comm’rs of Ottawa Co. v. Nelson, 19 id. 234; Chandler v. Reynolds, 19 id. 249; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 id. 181; Craft v. Lofinck, 34 id. 365.) No serious argument can be urged that the provisions of the act are broader than its title. The title is, “An act to regulate taxation on the change of boundary-lines.” Although it is general, it fairly indicates the provisions embraced in the act, and it would be difficult to conceive of one that would be more suggestive, comprehensive, and appropriate. I.t is said that a person reading the title would have no clue to the subject of apportioning the debt to the different parts of the divided territory. The method by which the liabilities aud expenses of municipal corporations are ordinarily met is by taxation, and legislation authorizing and regulating taxation necessarily adjusts the burdens and fixes the proportion which persons and property should bear. Now the act in question simply provides that counties or townships which have by a vote of their electors assumed a bonded debt, and are subsequently divided, shall, under a prescribed rule of taxation, levy upon all the real estate included in such county or township before the division was made. Every scheme of taxation involves apportionment, and we think the provisions of the act under consideration are germane to its title, and are naturally connected with (he subject of regulating taxation on the change of boundary-lines.
It is contended that the act does not apply where the detached territory is erected into a new county or township, but has application only to cases where such territory is attached to an existing organization. There is no such restriction in the title. It is broad enough to include every change of boundary-lines, regardless of whether the detached territory forms a part of an old or a new organization. Then, again, § 3 of the act expressly declares that the territory detached shall be subject to taxation for the debt mentioned, the same as though no change of boundary-lines had been made. The liability of the detached territory is fixed by §§ 1 and 3, neither of which takes into account where the detached real estate may be placed, nor limits the liability to any extent by the disposition that may be made of the same. The only basis for the claim made is in § 4, where it speaks of certifying the per centum of tax to be levied to the county clerk of the county to which said real estate shall have been attached. But this language is not sufficient to overcome the purpose, so clearly evidenced by the other provisions of the act, of making the territory liable wherever it may be placed, and regardless of whether the tax may then be enforced against it or not. Cases might be imagined where temporarily the act might have no application, as where the territory is placed outside of an organization and beyond the reach of the machinery provided for the collection of taxes, so that for the time being the provisions of the act could not be carried out, but the liability w'ould remain as fixed by the legislature, and when the terx’itory was brought within an organization and provided with the necessary local officers and machinery, the collection of the tax might then be enforced. In the present ease, the territory taken from Edwards county was attached to that taken fro'm Comanche county, and together formed into an organized county which is supplied with the same facilities for collecting taxes that the other counties possess. So we think there is little room for the refined theory of the defendants to apply. However, the cases already decided negative their proposition, as the court has sustained the application of the act where the detached territory was erected into a new organization; and we think this view is entirely in keeping with the legislative intent. (Comm’rs of Sedgwick Co. v. Bunker, supra; Comm’rs of Ottawa Co. v. Nelson, supra; Fender v. Neosho Falls Tp., 22 Kas. 311.) The fact that some the detached territory was government land, an(j j.jierefore exempt at the time of the division, will not affect the application of the rule. Eor the purpose of paying the debt the detached territory remains a part of the county from which it is taken, and the liability is to be enforced against all the real estate as it existed when the bonds were issued. Of course when a levy is made it applies only to the real estate which is then subject to taxation, and this is true concerning the real estate not detached. Exempt real estate cannot be taxed in either case, but a change from public to private ownership will at any time make it liable to a levy. The fact that it may for some reason have been exempt when a division occurred, will not relieve it from its share of the burden when the exemption is removed. This is conceded to be true as to the territory remaining in the county, and the statute expressly provides that the detached territory shall be subject to tax for this class of indebtedness the same as though no change of boundary-lines had been made. Nor is there any merit in the suggestion that the detached territory should not be held liable for the court-house and jail bonds because the buildings had not been erected when the county was divided. The rule apportioning the debt and fixing the time when the liability shall attach to detached territory belongs exclusively to the legislature, and cannot be modified to suit the notion of equity and justice which the court might entertain- ^ has sa^ that the liability arises against ^ ¿¡etaehec] territory when the bonds of the prescribed class have been issued, and not after their proceeds have been expended. What advantage would it have been to the people of the detached territory if the division had been delayed until the day of the completion of the court house and jail at Kinsley ? It is true they will have to contribute for the erection of public buildings in the new county as well as the old; but they voluntarily assisted in creating the obligation in Edwards county, and the amount of the bonds voted and price paid for the same may have .been largely influenced by the extent of the territory which under the law was then subject to taxation. Then they are relieved from the payment of any portion of the re-funding bonds and of all other forms of debt incurred by Edwards county, the benefit of which they have enjoyed, except such bonds as have been authorized and issued in pursuance of a vote of the electors. But as we have seen, it is within the power of the legislature to make a rule of apportionment in sueh cases; and as has been held, the one adopted by it is valid. (See cases heretofore cited.)
In the alternative writ the bridge bonds are designated as series No. 1, while the proof designates them as series No. 2; and upon this another objection is founded. The notice or certificate furnished the defendants by the county clerk of Edwards county, requesting them to extend the levy on the detached territory, described the bonds as series No. 2, and hence there is nothing substantial in the objection. The writ will be treated as amended to correspond with the facts disclosed on the trial.
An examination of all the questions raised, some of which do not require mention, satisfies us that judgment should go in favor of the plaintiff. A peremptory writ of mandamus will therefore issue, commanding the defendants to proceed and make a levy on the territory detached from Edwards county, described in the alternative writ, at the rate mentioned, to pay interest on the bridge bonds, and also on the court-house and jail bonds.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Washington county by George S. El wood, against the First National Bank of Greenleaf, in said county, for the purpose of having a receiver appointed to take charge of the affairs of the bank, and for other purposes. The action was commenced on October 18,1888, by filing a petition properly verified by the oath of the plaintiff, and also by filing a precipe for a summons, and having a summons issued in the case. On the same day a receiver was appointed in the case by the probate judge of the county. The notice of the application for the appointment of the receiver was served only upon one of the directors of the bank. The sheriff stated in his return of the notice that he could not serve the same upon the president, cashier, or other chief officer of the bank, for the reason that they were all absent from the county. The president, who was also the general manager of the bank, was absent from the state. The service of the summons was not made until the next day, to wit, October 19, 1888. It was then served upon T. J. C. Smith, the president of the bank, who had then returned to the county. On the same day the receiver filed his bond, took the oath of office, and entered upon the discharge of his duties as receiver. On November 17, 1888, the defendant answered. On November 21,1888, after giving proper notice, the defendant presented a motion to the judge of the district court at chambers, to set aside the order appointing the receiver, and to discharge the receiver, and for an order that the property in the hands of the receiver should be returned to the defendant; and the judge sustained the motion and ordered accordingly. This order was filed in the case on November 22, 1888; and to reverse this order the plaintiff below, as plaintiff in error, brings the case to this court.
The defendant in this case was and is a national bank under the laws of the United States, and the plaintiff was and is a stockholder therein. At the time of the commencement of this action, the bank, by the consent of all the officers, was in process of voluntary liquidation, and T. J. C. Smith, the president, had the charge and management thereof. It is also alleged by the plaintiff that the bank through the gross mismanagement of its officers had become insolvent, and that its officers and managing agents were then fraudulently squander-* ing its assets, and that unless relief were immediately granted great and irreparable injury would ensue to the stockholders, among which was the plaintiff. The main and principal object of the action was to obtain the appointment of a receiver to take charge of the affairs of the bank until its affairs could be finally settled; but the plaintiff also asked for and obtained the appointment of a provisional or temporary receiver to take charge of the affairs of the bank pendente lite. The order appointing this provisional receiver was afterward set aside by the order of the judge of the district court at chambers, and the receiver discharged; and of this order of the judge of the district court, and of this order alone, the plaintiff in error now complains. It would seem at first view that the order appointing the receiver was right, and that it should have been permitted to stand; but the defendant claims otherwise, and urges many objections to the order, and gives many reasons why a receiver should not have been and should not be appointed in the case. We shall consider these objections and reasons in their order.
I. It is claimed that the receiver was appointed before any action was commenced in the district court. This does not so appear from the record. It appears from the record that both these things took place on the same day, and presumably in their proper order. But as all were done on the same day, could it make any difference which parts of the same were attended to first?
II. It is further claimed that the appointment of the receiver was ex parte, and without notice to the defendant. This in legal contemplation is true; for the notice that was actually served upon one of the directors of the bank cannot be considered as a notice to the bank. It would seem however from the return of the sheriff, that the notice could not at that time be served upon the defendant, for the reason that all its officers upou whom the notice could be served were absent from the county. And besides, a receiver may be appointed without notice, although generally such a thing should not be done. But the question is immaterial now, as the entire question with regard to the necessity or want of necessity for a receiver, or the propriety or impropriety in having one, has been heard before the judge of the district court, and both sides have had an ample opportunity of being heard, and of presenting all that either party desired to present.
III. For the purpose of appointing a provisional receiver it is not necessary that all the grounds therefor should be set forth in detail in the plaintiff’s petition, as the appointment of such a receiver is only an ancillary remedy. (Hottenstein v. Conrad, 9 Kas. 435.) It is necessary, however, that the action should be one in which a provisional receiver may be appointed. But this one of such actions.
IV. It is also claimed that before a receiver can be appointed, it is necessary that the plaintiff should have a probable cause of action against the defendant, and that the benefit to be derived from such cause of action might be lost or substantially impaired if a receiver were not appointed. This is certainly true, but it would seem to us that the plaintiff showed all this, both before the probate judge and before the judge of the district court. He certainly owned one share of stock, although it did not appear on the records of the bank to be in his name. He also had been the owner of ten other shares of stock which then appeared and still appear from the records of the bank to be in his name, and these ten shares of stock do not in fact belong to any other individual stockholder. They belong either to the plaintiff, and are deposited with the bank as collateral security, or they belong to the bank — and it is not certain which; but in either case, the plaintiff has an interest in them as will hereafter be seen. The one share of stock was purchased for the purpose, among other things, of enabling the plaintiff to commence this action. If this one share of stock, purchased as it was, were his only interest to be protected, it is probable that he should not be permitted to maintain this action. But it would seem that he must also be liable to the creditors of the bank to the amount of the ten shares of stock, and taking his entire interest in the eleven shares of stock above mentioned and his liability to the creditors thereon, it would seem as though this ought to be sufficient with the other facts of the case to permit him to maintain the action. The bank also, in all probability is hopelessly insolvent, and the creditors will eventually, after exhausting all the assets of the bank, sue the stockholders, including the plaintiff, for the remainder due them.
V. It is claimed that there is a defect of parties defendant, for the reason that the “officers of the defendant and the stockholders therein are not and were not made parties to this action.” "We do not think that this is material at the present time. (Beach on Receivers, §§131 to 133.) It may be that before the final hearing of the case upon the petition is had, all necessary or proper parties should be brought in; and it would of course, even upon an interlocutory application for the appointment of a provisional receiver, such as this application is, be better to bring in all proper parties, but such a thing is not a prerequisite. The principal party defendant, the bank, a largely representative party, has been brought in; and it has had an opportunity to be heard upon these interlocutory matters concerning the appointment and the retention or discharge of the provisional receiver.
It is unnecessary to go further into the facts or into the merits of this case. It is clear that the affairs of the bank in the present case should be in the hands of a receiver. The bank is clearly insolvent. Its affairs have been very badly mismanaged. Some of its creditors have been secured by its managing officers and agents to the injury of other creditors. Absolute deeds of conveyance for the property of the bank have been executed where at most only mortgages should have been executed, and probably not even mortgages. And some of the books of the bank have been sent beyond the jurisdiction of the court and out of the state, and placed in the hands of the attorneys of the favored creditors and stockholders. Exact justice can be done only by a receiver who will not favor one creditor or stockholder more than another.
The order of the judge of the court below will be reversed, and the receiver appointed by the probate judge will be permitted to retain the position.
Johnston, J., concurring.
Horton, C. J., not sitting. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution upon an indictment in the district court of Shawnee county charging the defendants, William Horacek, Christian States and William Weidler, with selling intoxicating liquors in violation of law, and without having any permit therefor. The case was tried before the court without a jury, upon an agreed statement of facts, and the court found the defendants guilty as charged, and sentenced each to pay a fine and the costs of suit, and to stand committed to the county jail until such fine and costs were paid; and the defendants appeal to this court.
It appears from the agreed statement of facts that in 1876 a society composed of German citizens and known as the “Arions” was duly organized and incorporated, principally for the purpose of social enjoyment. This society was still in ex istence at the time of the trial of this action, and perhaps it still exists. It holds meetings regularly every evening in “Arion Hall” in the city of Topeka, from six o’clock P. M. to eight o’clock p. m. Among the various things commonly done at such meetings is the drinking of beer, an intoxicating liquor. At the time of the commission of the alleged offense, which was in May, 1887, the society consisted of about 150 members. The defendant Christian States was a member of the society, and its president; the defendant William Weidler was a member and officer of the society, and sold chips for the society representing drinks or glasses of beer; and the defendant William Horacek was a member of the society, and its steward and bar-tender, and drew the beer which was drank at the society’s meetings from kegs, and distributed it to the members thereof having and delivering to him chips. The beer used at these meetings was at different times purchased at Kansas City, Mo., at wholesale, and shipped to the society on half-car or quarter-car loads, and kept by the society at all times, and drank by the members thereof as a beverage. Neither the society, nor any member thereof, had any permit to sell intoxicating liquors. The agreed statement of facts further shows, among other things, as follows:
“ 7. At the meetings when a member of said society desires a glass of beer it is drawn from the keg or kegs of beer belonging to the association and drawn by the steward or bartender, and the member for whom it is drawn and who gets it, delivers to the steward or bar-tender a chip, and when he treats his friend he gives a chip for each glass of beer drank. These chips are bought by the members from certain officers of the association, and they pay twenty-five cents for eight of them, and each one of them is good for a glass of beer and nothing else. Cigars, pretzels, soda water, billiard-playing, etc., are paid for in cash. The money received from the sale of these chips, upon which the beer is obtained, is placed in the treasury of the society, to help in the payment of the expenses of said society, and the steward or bar-tender is paid by the month for his services. The steward and bartender has charge of and takes care of the rooms of said association.
“ 8. The money received from the sale of chips, upon which said beer is delivered and the money paid for cigars, soda water, etc., etc., goes into the society’s treasury to keep up its funds for payment of expenses, and procuring refreshments, which expenses are, fuel, rents of hall, books, and magazines, and newspapers, and the beer used, and paying the steward or bar-tender, and no other officers draw any pay for their work. The term ‘sale of chips’ means that the members pay at the rate of twenty-five cents for eight chips to the members having chips for sale, which money is paid into the treasury of the society, being a sum of money equal to the cost of the beer used by him, as near as practicable, and the chips he receives show that he is entitled to receive a certain portion of the beer purchased by the association, and the chips representing the actual cost of the beer as near as practicable, there being but little if any gain or profit on the beer drank by the members, each one paying for the chips as aforesaid into the treasury an amount sufficient to pay for beer used by him. Neither of the defendants in this action has ever received any part of the money paid into the treasury by the witnesses in this action, nor any benefit in any way therefrom, except the bar-tender, William Horacek, received his monthly salary.
“9. The meetings of said association were and are conducted in an orderly manner, and said organization was organized as alleged in agreement No. 4, and the beer that is drank is not drank as a medicine but is drank as a beverage. The club has no permit to sell, barter or give away intoxicating liquors, nor has either of the defendants or any member of said society a permit to sell, barter or give away intoxicating liquors from- the probate judge of Shawnee county, state of Kansas, and said society is not engaged in the drug business.
“10. The chips are sold only to members, and are paid for at the rate of eight for 25 cents, and beer cannot be had only upon the delivery of one or more of these chips, bought and paid for by the members of the association from some member of the association, and paid for at the time said chips are delivered to the purchaser.”
“18. . . . Each of the above deliveries of intoxicating liquors was made at the time and place as charged in each count as referred to, and the delivery was made by the defendant William Horacek, as such steward, and he received from the party named a chip therefor, which chip had before that time been bought and paid for as aforesaid, and bought of the defendant William Weidler, and which the said Christian States was president, and that in each case and transaction the beer was drank as a beverage; and it is agreed that the defendant William Horacek aided and assisted in keeping said place where beer was used and drank as above set forth, by being a member of said association and being its bar-tender or steward, and by being at the above-mentioned place every day, and that he receives pay by the month for his work from said society; that the defendants Weidler and States aided and assisted in keeping and maintaining said place by being members and officers of said society, and by being present at all or about all the meetings of said association, and that neither of the defendants has a permit to sell intoxicating liquors; nor has the said association a permit to sell intoxicating liquors.”
The defendants claim that the foregoing facts do not show or constitute any offense. It is claimed that their association was organized prior to the passage of the prohibition act, and therefore that it could mot have been and was not in fact organized with any intention of violating that act. It is claimed that neither the society nor any one of its members ever intended to violate any law, and never has in fact violated any law; that no sale of beer or any other intoxicating liquor has ever been made by the society or by any one of its members, as such, and that the facts stated in the agreed statement of facts do not show that any such sale has ever been made. It is claimed that the society merely purchased beer for its members, that the beer belonged to its members, and that the society merely distributed the beer in fair shares or proportions among its members who were the owners, and that the members merely drank their own beer. We do not think that any of these points are well taken. It makes no difference that the society was organized prior to the passage of the prohibitory liquor law, for by such organization the society could not and did not obtain for itself or for its members any vested right to go on forever dealing in intoxicating liquors. ( The State v. Mugler, 29 Kas. 272.) Besides, under the law that was in force prior to the passage of the prohibition act, it was as much a violation of law to sell intoxicating liquors without a permit, then called a license, as it is now to sell intoxicating liquors without a permit. It must also be presumed that the society and its members intended to do just what they did in fact do, and if their acts constitute any offense it must be presumed in law that they intended to commit just such an offense. From the facts stated it must on the other hand be held that the society obtained its beer lawfully, and if so, then nothing but a sale of the beer or a keeping of the same for sale would constitute any offense. The gratuitous distribution of the beer among its members, or the giving of it away to any person, or the using of it for any lawful purpose, would not constitute an offense. (The State v. Barrett, 27 Kas. 219; The State v. Standish, 37 id. 643.) But to sell the beer in any manner, directly or indirectly, would under the other facts of this case constitute an offense; and the disposition of it to members in the manner in which it was disposed of in the present case would, we think, constitute a sale. The case of The State v. Nickerson, 30 Kas. 545, tends to support these views. (See also the following cases: Marmont v. The State, 48 Ind. 21; same case, 1 Am. Crim. Rep. 447; Martin v. The State, 59 Ala. 34; Rickart v. The People, 79 Ill. 86; same case, 2 Am. Crim. Rep. 385; The State v. Mercer, 32 Iowa, 405.) The beer was not distributed to or among the members in equal shares, nor was it in fact distributed to them at all except as they purchased it. Under their rules some of the members might get all the beer and the others none. Those purchasing the chips would get beer while the others would not get any. The sale of the chips was really a sale of the beer, as the chips represented the beer and nothing else. The defendant Weidler sold chips and the defendant Horacek received them back and delivered the beer, hence these two defendants were directly and certainly guilty. The defendant States, however, did not sell any chips nor deliver any beer; nor did he directly participate in these sales. He however was in law equally as guilty as the others. The association owned the beer, and through its officers and agents, and in violation of law, sold and delivered the same to its members, and this selling and delivering of the beer was a part of its business. States was the president of the association; knew what its business was, what it was organized for, and what it was doing. He was also present at its meetings when all these sales took place, and had actual knowledge thereof, and was therefore as much responsible for what took place as were any of the others. In the case of The State v. Hunt, 29 Kas. 764, 765, the following language is used:
“Every person who aids, assists or abets in the commission of an offense, whether present or absent, whether as principal or proprietor, or general manager, or agent, or clerk, or servant, is liable to be prosecuted and convicted and punished for such offense.”
See also § 115 of the criminal code, which reads as follows:
“Sec. 115. Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal.”
See also § 16 of the prohibition act,,which reads as follows:
“Sec. 16. Every person who shall, directly or indirectly, keep or maintain, by himself or by associating or combining with others, or who shall in any manner aid, assist or abet in keeping or maintaining any club room or other place in which any intoxicating liquor is received or kept for the purpose of use, gift, barter or sale as a beverage, or for distribution or division among the members of any club or association by any means whatever, and every person who shall use, barter, sell or give away, or assist or abet another in bartering, selling or giving away any intoxicating liquors so received or kept, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months.”
We think the business carried on by this association, so far as it related to the disposition and distribution of beer, was illegal, and that all the defendants in this ease participated in carrying on such illegal business; and that this, under the statutes and the authorities, renders them all guilty of the offense charged.
The judgment of the court below will therefore be affirmed.
All the Justices concurring.
Per Curiam,: The judgment of the court below in case of The State v. Fritz & Wenthe will be affirmed, upon the authority of the case of The State v. William Horacek and others, just decided. | [
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The opinion of the court was delivered by
Ellis, J.:
This was an action brought by defendant in error to recover for medical services claimed to have been rendered by him to the infant son of plaintiff in error. Upon the trial, the fact that such services were rendered was not disputed, but it was claimed by plaintiff in error that the defendant in error was not entitled to recover therefor because he was not authorized to practice medicine under the laws of this state. The action was originally commenced in justice’s court, and the plaintiff’s bill of particulars, as amended, averred in an informal manner that the plaintiff was entitled to practice'medicine in Kansas. The defendant below did not specifically challenge the allegation above referred to, though he objected to any evidence upon the ground that the bill of particulars did not state a cause of action. Upon the trial in the district court the physician recovered judgment for a small amount, to reverse which these proceedings in error were instituted.
In this state, pleadings in justices’ courts are libererally construed, and “it is sufficient if a bill of particulars, in a case before a justice, states the essential facts, no matter how rudely and inartistically, yet so that the defendant is not misled, but clearly informed of the exact claim made upon him.” (Missouri, K. & T. Ry. Co. v. Brown, 14 Kan. 557.) The early decision from which the above quotation is made has been followed up to the present day. Our statute provides, in substance; that upon an appeal from a justice’s court the action shall be tried upon the original pleadings, unless the court, in furtherance of justice, requires others to be filed, and it follows, at least in those cases where no new pleadings are on file, that the rules of construction applicable to justices’ courts govern at the trial upon appeal.
The plaintiff below offered in evidence a certificate of membership in the Eclectic Medical Association of the state of Kansas, chartered February 15, 1871. To the reception of this certificate in evidence, when offered, the defendant below objected, and the record shows that the objection was overruled, but fails to show, in terms, that the paper was then read to the jury. In this court counsel for plaintiff in error insist that, because it is not recited in the case-made that the certificate was read, this court must presume that such was not the fact. It was marked “Exhibit-A” and thus identified by the witness at the time it was offered. Later on, in the cross-examination of the physician, counsel- for plaintiff in error asked this question : “This certificate that has been introduced in evidence, marked ‘Exhibit A,’ was that given to you after you took the lectures ? ” Answer. “Yes, sir; it was some time after I attended the lectures — ten or eleven years.” This is certainly an admission that the paper had been “introduced in evidence,” which implies that it had been read to the jury. At the close of the direct evidence of plaintiff below, this paper marked “Exhibit A” is set forth in the record, and, while it is not referred to as the paper thus marked and originally offered in evidence, there was no other “Exhibit A” referred to in the testimony, and it thus sufficiently appears that this particular paper was in fact formally received in evidence and considered by the jury. The opposing contention of counsel for plaintiff in error receives no sanction from the record, and is fairly disputed thereby. That certificate, on its face, shows sufficient authority to the physician therein named to practice medicine for com pensation in this state, and we think, under the liberal rule of construction heretofore referred to, it was' admissible in evidence under plaintiff’s amended bill of particulars.
It may be said, however, that it is, at least, doubtful whether the sufficiency of the allegation of qualification to practice contained in the bill of particulars was ever properly challenged by defendant below. In the case of McDaniel v. Yuba County, 14 Cal. 444, it was held that an objection that a physician was not a graduate of a legally constituted medical institute, if good at all, could not be taken by demurrer, unless the demurrer distinctly presented the objection. In this case, we do not think that an objection to the evidence upon the general ground that the bill of particulars failed to state a cause of action would be likely to attract the attention of the court to the failure to allege specifically the authority of the physician to practice medicine.
For the reason that the aforesaid certificate proved prima facie that the plaintiff below was qualified to practice medicine for hire, it is unimportant that the court erroneously instructed the jury in effect that such plaintiff might be regarded as qualified if he had practiced medicine continuously for ten years within this state. As the evidence of the physician showed conclusively that he had not practiced for ten years previous to 1870, the instruction was not authorized. (The State v. Wilson, 61 Kan. 791, 60 Pac. 1054.)
The other allegations of error presented are without substantial merit, and this is especially true of the claim that the cross-examination of the doctor was unduly restricted by the court. We are clearly of opinion that the court permitted a sufficiently extended cross-examination of such witness. Answers to the ques tions excluded would not have tended to elucidate any fact in issue, and they certainly did not relate to any matter brought out in the direct examination.
The judgment of the district court is affirmed.
Doster, C.J., Johnston, J., concurring. | [
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The opinion of the court was delivered by
Dostek, G. J. :
This was a suit for a balance due on a promissory note. Payments had been made on the note, but the number and amounts were in dispute. The jury returned a verdict for plaintiff for $547.80. This was in accordance with a claim of defendants as to the principal of the amount due. However, the verdict did not include interest to the date of its rendition on the balance of principal remaining due when the last partial payment was made. This was evident. The plaintiff moved for a-new trial because of the insufficiency of the verdict, pointing out in her motion the omission to include the interest and specifying the amount omitted, to wit, $89.21. The defendants consented to judgment on the verdict and for the interest mistakenly omitted from it. The court overruled the motion for new trial and rendered judgment for $637.01, the amount of the verdict and omitted interest. This was not error.
When the amount of a verdict is manifestly too small, and the deficiency can be ascertained and supplied by a mathematical calculation, as in this case, by adding the stipulated rate of interest on a balance due on a promissory note, it is not error, as against the party in whose favor the verdict was returned, to render judgment for him for the correct amount, and refuse a new trial because of the mistake. In this case the jury had found against the plaintiff as to the facts and times and amounts of the payments made. The meritorious issues of the case had been thereby settled as fairly as though interest had not been mistakenly omitted from the calculation. There could not be any dispute as to the rate of interest or the time it ran since the last payment was made. Hence, had the motion for new trial been sustained, it would have been to correct a mere mathematical error which the court and parties themselves were entirely able to rectify. It would have been to retry a disputed question of fact; not for any error in determining such fact, but for an error as to another matter about which there was no dispute. In such cases as this the courts are authorized to make an addition to the verdict, or rather to render judgment for the additional amount. (West v. The Milwaukee, Lake Shore & Western Ry. Co., 56 Wis. 318, 14 N. W. 292 ; Carr v. Miner, 42 Ill. 179 ; James v. Morey, 44 Ill. 352.) .The principle is the same as the one which authorizes the court to order a remititur of an excessive amount returned by a jury, when the excess is ascertainable by mathematical calculation. That has been done frequently. .
Other claims of error are made. One relating to the competency of witness was cured by an instruction to the jury. Another as to prejudicial remarks of counsel in argument is not presented in a way to enable us to notice it. The others are not well founded. The judgment of the court below is affirmed.
Johnston, Ellis, JJ., concurring. | [
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Ej;ror from Trego district court. | [
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The opinion of the court was delivered by
Pollock, J. :
This action was brought by plaintiffs in error, plaintiffs below, against the Iola Gas Company, to procure a decree of cancelation of an oil' and gas lease on a tract of land purchased by plaintiffs during the term and with notice of such lease. The right to the relief demanded is predicated upon two propositions: (1) That defendant company had failed to comply with the requirements of section 12 of chapter 10, Laws of 1898, commanding a report of its affairs to be made to the secretary of state ; (2) that defendant had forfeited its right to the property by non-payment of rent. The lease in question contains the following stipulation:
“In consideration of said grants and demise, the said party of the second part agrees to give or pay to the said party of the first part the full equal tenth part of the oil and minerals produced or saved from the premises, and to deliver the same free of expense into the tanks or pipe-lines to the credit of the first party, and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part shall be fifty dollars per annum for the gas from each well, so long as it shall be sold therefrom ; gas free of cost for household use on the premises ; said second party to have gas or oil free of cost for drilling or pumping purposes. It is agreed that there shall be no wells drilled within 300 feet of the buildings now on the premises without the consent of the first party. It is- further agreed that the party of the second part shall complete a well on the above-described premises within ninety days from date hereof, unavoidable delays and accidents excepted, or in default thereof to pay to the party of the first part for further delay a yearly rental of twenty dollars on said premises herein leased from the time above specified for completing a well until such well shall be completed ; the said rental shall be deposited to the credit of the party of the first part in the Bank of Allen County or be paid in direct to said first party. And a failure to complete such well, or to make such payments as are herein mentioned, shall render the lease null and void.”
A gas-well was completed upon the premises in the month of November, 1898, The company commenced marketing gas from this well on the 8th day of December, 1898. It was contended that the company had wholly failed to make payment of the sum of fifty dollars, as specified in the lease, at the time of the commencement of this action, which was December 16, 1899, and that, therefore, the lease became null and void and plaintiffs were entitled to a decree of cancelation. The company based its defense upon a waiver by plaintiffs of the right to insist upon the forfeiture claimed; asserted that plaintiffs were estopped by their acts and conduct from insisting upon such forfeiture ; and alleged the willingness and readiness of defendant at all times to comply fully with the terms of the lease, and the payment of a portion of the amount due to the lessor. There was a trial to the court. Special findings of facts were made at request of plaintiffs, and judgment was rendered for defendant. Plaintiffs bring error.
The sole ground of error relied on to work a reversal of the judgment rendered arises on the action of the trial court in overruling the motion for a new trial and entering judgment in favor of defendant. What effect the failure of defendant company to comply with the provisions of section 12 of chapter 10, Laws of 1898, would have had on its right to defend this action need not be considered, as the court specifically found from the evidence that no such failure was proved. As to the failure of the. company to make payment of the sum of fifty dollars per annum for each gas-well sunk upon the premises from which gas was marketed, the court found as follows :
“Ques. 22. Find what statements and representations, if any, were made by the officers and agents of the defendant company to induce the said James A. Jeffries to accept the sum of fifteen dollars as a payment on the rental for the use of the gas from said well long after said premises were conveyed to these plaintiffs by deed from him and after the commencement of this suit. Ans. Said officers and agents, honestly and in good faith, believed that said Jeffries was entitled to said sum; they thereupon tendered the sum to him, and he accepted it.
“Q. 23. Find whether or not the payment of saic fifteen dollars was made in good faith by said officers and agents of the defendant company to discharge ths indebtedness actually due, a debt from said defendant company to said Jeffries, ór was it paid to him for shift and device to, if possible, prevent the plaintiffs from recovering in this action. A. It was not paid as a shift or device to prevent plaintiffs from recovering in this action. The other portions of this question are answered in No. 22.
“Q,. 24. Find whether or not the fifty dollars rental for the use of the gas from said well, as provided to be in said lease, for one year from the completion of said well, or the use by the defendant company of said gas from said premises, was paid or offered to be paid to the plaintiffs, or either of them, or to any person for them authorized to receive the same, before the expiration of said year and before the commencement of this action. A. The defendant, by its secretary, met the plaintiff Edwards in the city of Iola a shoi’t distance from the defendant’s office, and thereupon said defendant, in good faith, through its secretary aforesaid, requested said'plaintiff to come to the office-of the defendant for the purpose of there being paid all moneys due the plaintiff under the terms of the lease in controversy. The defendant was ready, willing and able to pay said money, but said plaintiff declined to receive the same, for the reason that he considered the lease forfeited. This occurred a few days after December 3, 1899, and before the commencement of this action.
“Q. 25, Find whether or not the offer of the said defendant company, through its secretary, if any such offer was ever made to pay these plaintiffs the said fifty dollars after the commencement Of this action, was made in good faith, or merely for the purpose of trying to defeat the -plaintiffs’ recovery in this action. A. This is covered by the last preceding answer.”
It is earnestly insisted by counsel for plaintiffs in error that the above findings are insufficient to excuse the refusal of the trial court to enter a decree canceling the lease ; that oil and gas leases are exceptions to the general rule that forfeitures are not favored-by the law; that unless a strict and literal compliance with the terms of the lease by the lessee is shown, it is the duty of the court to award a decree of cancelation ; and Galey v. Kellerman, 123 Pa. St. 491, 16 Atl. 474; Wills v. Manufacturers’ N. Gas Co., 130 id. 222, 18 Atl. 721, 5 L. R, A. 603; Hooks et al., Appellants, v. Frost et al., 165 id. 238, 30 Atl. 846; Evans v. Consumers’ Gas Trust Co. (Ind.), 29 N. E. 398, 31] L. R. A. 673, and other cases, are cited in support of this contention. While it is undoubtedly true that] provisions for forfeiture in' leases of this character are for the benefit of the lessor, and are more strictly enforced than in the ordinary lease between landlord and tenant, yet it is not a rule of universal application that all defaults made by the lessee entitle the lessor to declare a forfeiture, or have a decree canceling the lease.
The action here brought is equitable. The time of payment specified in the lease is neither in express terms nor by necessary implication of the essence of the contract. In the absence of such stipulation, equity will not decree the cancelation of a.contract for the failure of a party to comply strictly with its terms when it would be unconscionable so to do. While the very nature of the undertaking, the situation of the parties, the small amount of rent reserved in leases taken for the purpose of development of new territory, the'liability.of exhaustion of'the supply from wells sunk on adjacent property, all conduce to render equitable a more' strict compliance with the terms of the lease by the lessor in cases of this character than in ordinary cases of landlord and tenant; yet, as in this case the defendant company had expended a large amount of money in development work, had discovered a paying well upon the property, increasing the amount to be paid under the terms of the lease, and as the trial court specifically states at the conclusion of his findings that “the above and foregoing answers are only in response to the questions submitted by the plaintiffs and are not intended to include all the issuable facts in the case,” we cannot say, in the face of the general finding for the defendant, and under the findings made at the request of plaintiffs, that the trial court erred in refusing to enter a decree canceling the lease in question. On the contrary, we are of the opinion that, under the circumstances of this case and tfpon the facts as found by the trial court from the evidence, the decree entered is in harmony with equity and justice as between the parties, and is supported by the authorities. (Lynch v. Gas Co., Appellant, 165 Pa. St. 518, 30 Atl. 984 ; Steiner v. Marks et al., Appellants, 172 id. 400, 33 Atl. 695.)
It follows that the judgment must be affirmed.
Doster, O. J., Smith, J., concurring. | [
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Error from Sedgwick district court. | [
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Error from Doniphan district court. | [
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The opinion of the court was delivered by
Doster, O. J. :
This is an appeal from a conviction of the offense of violating the prohibitory liquor law. The appellant was first found guilty before a justice of the peace, from whose judgment he appealed to the district court. The justice failed to certify the complaint before sending up the appeal papers. The appellant objected to being put on his trial for that reason. The state asked for permission to the justice to certify the complaint." Permission was granted, but before the certification was made, and probably in contemplation of its being made, the appellant’s objection to going to trial was overruled. He was thereupon arraigned and required to plead, but he stood mute, and a plea of not guilty was entered for him. The jury were then impaneled and sworn and a witness for the state called and sworn and his examination commenced. To all these proceedings the appellant objected, because there did not appear to be .any complaint on which trial could be had. The court thereupon, at the state’s request, again gave permission to the justice, who was present, to certify the complaint. The certification was then made and the trial proceeded with, over the appellant’s renewed objection. This was error. In The State v. Anderson, 34 Kan. 116, 8 Pac. 275, it was ruled:
“Where a defendant convicted of a misdemeanor before a justice of the peace appeals to the district court, the statute requires the justice to certify up the original complaint to the district court; and if the complaint is transmitted without such certification, the district court in its discretion may permit the defect to be remedied by amendment; but it is error to compel the defendant to go to trial against his objection upon a complaint found among the papers of the case in the district court which has not been certified to nor authenticated in any manner.”
The trial of a criminal case begins at least as early as the swearing of the jury. That, with all the proceedings held after that, is trial, and we may not say, in view of the statute and the above decision construing it, that the requirement to certify the complaint before trial is complied with by giving permission before trial to certify it, but not requiring its actual certification until after the trial has been commenced. Until a certified complaint exists, there is not, in legal contemplation, any complaint at all, and certain it is that no part of the trial of a criminal case can be had until there is a written charge against the defendant to which he can be called on to respond. In criminal practice there is no rule, statutory or otherwise, which will give the filing or certification during the trial of a complaint, which contains the whole charge against the defendant, relation back as of the time it should have been filed or certified. The case of The State v. Geary, 58 Kan. 502, 49 Pac. 596, in which the making of an amendment during the trial was upheld, was of a different character from this one.
The justice of the peace before whom the first trial was had was of a different township than the one in which the district court was held, and in which the certification of the complaint was made. He had no right to make such certification outside his township. He did not carry his office with him into the township where he performed the official act, and, therefore, was not clothed with any official authority there.
“We would think that the entire proceedings of the justice of the peace are void, for the reason that all bis acts were performed while he was outside of his own township, outside of the township in which he held or had a right to hold his office (Phillips v. Thralls, 26 Kan. 780), and we think the proceedings of the justice are void, whether they are judicial in their character, gitasi-judicial, or merely ministerial.” (Wilcox v. Johnson, 34 Kan. 655, 659, 9 Pac. 610.)
“It follows from the foregoing decisions, and the sections of the constitution and statutes cited, that justices of the peace must perform all their official acts within their own townships, and that whenever they wander beyond the boundaries of their own townships and into the jurisdiction of justices of the peace of other townships they cease to be justices of the peace, and any attempted official acts there performed are mere nullities.” (A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, 597, 14 Pac. 229.)
In Morrell v. Ingle, 23 Kan. 32, it was said that, “in the absence of express provisions to the contrary, the powers of an officer are limited to the territory of which he is an officer.”
Now, the certification of a complaint for transmission to another court for action thereon by that court is an official act, made requisite as such for the legal identification of the paper. Whether the doing of it should be called ministerial or judicial' is immaterial. It is an official act, to be performed only within the territorial limits allowed for the exercise of the duties of the office. A justice of the peace may send his process outside his township and within his county, and may perform' some official acts outside his township, but these are so by virtue of express statute. It requires a statute to give him jurisdiction outside the place appointed for the holding of his office.
Much complaint is made of an instruction. Under ‘ the decision in The State v. Medley, 54 Kan. 627, 39 Pac. 227, this complaint is not well founded. Other errors also are alleged, but hone of them is well taken.
The judgment of the court below is reversed for proceedings consonant with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Joseph Schmalstieg sued the Leavenworth Coal Company for injuries sustained by the explosion of gases in the coal-mine in which he was working as a miner. When plaintiff had introduced his evidence the defendant demurred thereto. The demurrer was sustained and judgment rendered thereon, to reverse which Schmalstieg prosecutes this proceeding.
We are of the opinion that the demurrer should have beenjoverruled. The important and controlling question in the case is, Does a mine-owner, agent, lessee or operator of any coal-mine discharge himself of liability to an employee who is injured by the negligent omission of the fire-boss to perform the duties imposed on him by the statute, when such owner, agent, lessee or operator has exercised ordinary care in the selection of such fire-boss ? We understand that this question was resolved in the affirmative by the court below; hence, the sustaining of the demurrer.
The statutes directly applicable to the question under consideration and relied on for the contention of the defendant below are sections 4150 and 4162, General Statutes of 1901, which read :
“ Sec. 4150. The inspector of mines shall cause the volume of air to be increased when necessary to such an extent as will dilute, carry off and render harmless the noxious gases generated therein. And mines generating fire-damp shall be kept free of standing gas, and every working-place shall be carefully examined every morning with a safety-lamp by an examiner or fire-boss, before miners or other employees enter their respective working-places. Said examiner or fire-boss shall register the day of the month at the place of the workings, and also on top in a book which shall be kept in the weighmaster’s office for such special purpose ; and as proof of inspection, he shall daily record all places examined in said book, and in case of. danger where fire-damp may have accumulated during! the absence of any person or persons employed therein,| said examiner or fire-boss must notify the miners or-those employed therein, or those who may have occasion to enter such places. And the hydrogen or fire damp generated therein must be diluted and rendered harmless before any person or persons enter such working or abandoned part of the mine with a naked light.”
‘‘Sec. 4162. In case of non-compliance with sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this act by any owner, operator, agent or lessee of any mine, or any miner or other employee working therein, upon whom any duty is cast by any of said sections, he shall be deemed guilty of a misdemeanor, and shall, upon conviction of the same, for each offense, be punished by a fine of not less that one hundred dollars and not to exceed three hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days and not to exceed ninety days, or by both such fine and imprisonment, in- any court having competent jurisdiction; provided, that this act shall be construed as to affect or apply only to coal-mines in this state, or any person or persons operating or owning such coal-mines.”
It is ably argued that this law takes from the owner, agent, lessee or operator of every coal-mine, the exercise of judgment or discretion in determining the ■volume of air, necessary to dilute, carry off and render harmless the noxious gases generated in such mine ; and, in providing that each mine-owner or operator shall select some competent person, called an examiner or fire-boss, to investigate, determine and direct how and where the air shall be distributed, and how much will be necessary to dilute, carry off and render harmless the noxious gases generated therein, the law has relieved the owner or operator from any responsibility or civil liability to . persons injured through the negligent acts or omissions of such examiner or fire-boss, provided the owner or operator shall have exercised care in the selection and employment of a competent person as fire-boss. This position is sought bo be reenforced by reference to section 4162, above quoted, which makes the neglect of the examiner or fire-boss to perform the duties imposed on him by the statute a misdemeanor, and subjects him to a fine and imprisonment. Counsel for defendant in error state it thus:
“By this statute the legislature of the state of Kansas has undertaken to prescribe and define the manner and measure of care that shall be exercised by mine-owners with reference to the accumulation of gas in the working-places of said mine, thereby prohibiting the master from exercising his judgment with reference to the same.
“After the mine-owner has complied with the statute and employed a competent person for examiner or fire-boss, he or it has performed the measure of care required and in the manner required by the law towards his employees, and if through the examiner’s or fire-boss’s negligence one of the employees is injured¿
. the master is not responsible for the negligence of the examiner or fire-boss, . . . especially where the statute prescribed a penalty for violation of its provisions. . . .”
The contention is plausible and not without authority in adjudicated cases, but we do not think it sound. The authorities in support of this position base their conclusion on the ground that the fire-boss is a creature of the legislature, selected by the mine-owner in obedience to the commands of the law and in the interest and protection of the miners themselves ; that, as such, he is a coemployee or fellow servant, and, if he is negligent or careless in the performance’ of Ms duties, the miners can at once discover it and notify the superintendent, while the owner, with every^ wish to protect the miners, has no such opportunity, of information. Some of the authorities sustaining this position are: Hughes v. Oregon Improvement Co., 20 Wash. 294, 55 Pac. 119 ; Colorado Coal and Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; Waddell v. Simoson, 112 Pa. St. 567, 4 Atl. 725; Delaware and Hudson Canal Co. v. Carroll, 89 Pa. St. 374; Redstone Coke Co. v. Roby, 115 Pa. St. 364, 8 Atl. 593. We do not pretend to reconcile these decisions with the numerous others holding the opposite opinion, which are hereafter cited.
At common law it is the duty of a master to exercise care and diligence to provide his servants with a reasonably safe place to work, and reasonably safe and , suitable tools and appliances with which to perform the service. This duty can only be satisfied by performance.
One of the chief dangers to be guarded against in the mining of coal is the accumulation of noxious and explosive gases and dust. The duty, therefore, at common law, of guarding against these dangers, and making the place reasonbly safe for working men, is cast upon the master, and he is liable for injuries resulting from a neglect to perform such duties, unless relieved therefrom by statute. The title of the act in question, chapter 159, Laws of 1897, reads:
“An act to provide for the health and safety of persons employed in mines, and supplementary to and amendatory of chapter 66a, General Statutes of 1889, and repealing chapter 171, Session Laws of 1895, and providing penalty for violation of the same.”
We would be surprised, indeed, to find in an act bearing the above title a provision which takes from the miner the strongest protection from personal injuries the law has ever given, namely, the right to make his employer respond in damages for injuries resulting from the negligence of such employer in not providing him a safe place to work. The tendency of modern legislation is to magnify, rather than to .minimize, the individual, especially the man whose vocation is that of a common laborer ; to throw around him greater protection and surround him with better conditions and advantages for self-improvement; and to secure these objects increase, rather than decrease, the instances and circumstances under which his employer shall be civilly liable for personal injuries sustained because of the negligence of such employer. Therefore, a statute that would take away from him any of the protection of the common law should be plain, unambiguous, and subject to no other construction or interpretation.
Section 3 of chapter 159, Laws of 1897, being the same act from which the above quotations are taken, provides: *
“Every mine-owner, agent, lessee or operator of coalmines . . . shall provide and hereafter maintain for every mine ample means of ventilation. Said volume of air shall be directed or circulated where any person or persons may be working in any of said mines.”
It will be observed that the duty is here placed upon the mine-owner or operator to provide and maintain ample means of ventilation, and the volume of air thus provided “shall be directed, or circulated where any person or persons may be working in any of said mines.”
We also find, in section 4150, General Statutes of 1901, the following:
“And mines generating fire-damp shall be kept free of standing gas, and every working-place shall be carefully examined every morning with a safety-lamp by an examiner or fire-boss before miners or other employees enter their respective working-places.”
While the latter section designates the person who shall make the examination, it is the duty of the owner or operator to keep such mine free of standing gas. The act provides that the owner or operator of mines shall employ a fire-boss. It defines his duties and makes a neglect to perform them a misdemeanor, subject to fine and imprisonment. The only object sought is an additional precaution to secure a safe place for miners to work. It was not intended to relieve the owner or operator from any civil liability for damages resulting to the laborer from the negligent performance of such duties by the fire-boss.
The act in question in no way limits or takes from the owner or operator the general supervision of the work, or the exercise of judgment in the-manner or system of ventilation. He is left free, in the selection of the person to perform those duties, to fix the compensation, prescribe and require of him the performance of duties additional to those designated by the statute', and to exercise a general supervision over him in the performance of all of his prescribed duties.
Authorities are numerous holding that under statutes similar to ours the employer is not relieved of civil liability for personal injuries resulting from the negligent performance of the duties imposed by law upon the fire-boss. In Iron Co. v. Pace, 101 Tenn. 476, 484, 48 S. W. 232, an action to recover damages resulting from the explosion of dust in the mine, it was contended that the owner was not liable because the statute provided for the appointment of a fire-boss whose duty it was to keep the mine free of explosive gas. The court said:
“The tenth assignment is that the court erred in defining the degree of care required of a master in furnishing a safe room or entry where the plaintiff should work, and it is insisted that the effect of the charge is to make the mine-owner an insurer of the safety of the premises where the servant is to work, and an insurer, also, of the skill and prudence of fellow-servants. Taking the charge as a unit, we do not think it warrants the construction contended for, and is in accord with the general rule that ‘ it is the duty of the master to keep his premises used in the prosecution of his business in a reasonably safe condition, and, if he fails to do so, he is liable to the servant for all injuries resulting to him from such defects.; "
In speaking of the statute, the court further said:
“The eighth clause provides that, ‘to better secure the ventilation to either coal-mines or collieries, to provide for the health and safety of the men employed therein otherwise and in every respect, the owner or agent, as the case may be,' in charge of every coalmine and colliery, shall employ a competent inside overseer, to be called a mining boss, who shall keep a careful watch over the ventilating apparatus, airways, tramways, pumps, timbering, signaling arrangements, tubes, etc., and all things connected with and appertaining to the safety of the men at work in the mine. He or his assistant shall examine carefully the workings of all mines generating explosive gases every morning before the miners enter the coal-mine or colliery, and shall ascertain that the mine is free from all danger. 5 5 5
The case of Sommer v. Carbon Hill Coal Co., 32 C. C. A. 156, 89 Fed. 54, 57, arose under the statute of Washington, which is identical with our own. The court said :
“Disregarding this last averment as a conclusion jdrawn from the facts stated, it is clear that, under the law and the allegations of the complaint, Lowery was entrusted with a duty in the performance of which he represented the owners and operators of the mine, and that if he was negligent in the performance of that duty, and the plaintiff was injured thereby, the latter did not assume the risk of such employment.”
In the Linton Coal and Mining Company v. Persons, 11 Ind. App. 264, 275, 39 N. E. 214, the court, in construing a similar statute, said:
“In other words, the effect of. the contention is that •the employment of a competent mine-boss is the full measure of the duty of the owner or operator of the mine in such cases.
“The gist of the action is not the failure to employ a competent mine-boss, but grows out of the failure of the employer to discharge the duties resting on him in relation to providing a safe working-place for appellee. This duty appellant could not, in our opinion, by virtue of the provisions of the statute, delegate to the mine-boss so as to escape liability on account of the failure to perform the acts therein required. The statute prescribes the care which the employer is required to exercise. The employment of a competent mine-boss is not the exercise of the care. The failure of the boss to perform the duties designated in the statute is, under the statute, the negligence of the master. . . . In other words, the statute was not intended to lessen the duties of the master, but was intended to increase his duty to the extent of requiring him to' employ a mining boss to give special attention to the condition of the mine. It was not contemplated, however, when the mining boss was employed, that such employment should relieve or exempt the master from liability.”
We are of the opinion that the construction placed on the statute in the above-cited opinions is correct, and that the demurrer should have been overruled.
There is some contention that, notwithstanding the construction of the statute, the evidence introduced by the plaintiff below was insufficient to prove negligence on the part of the company. We have given this matter no consideration, as a reversal of the judgment must necessarily follow the conclusion we have reached upon the other question.
The cause is reversed and remanded, with instructions to overrule the demurrer to the evidence.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The conceded facts, the charge of the court to the jury, and the findings of the jury, present but one question, and that is, did the court in its instructions to the jury give the proper rule or measure of damages which the appellant was entitled to recover ? This question has been recently settled in an exhaustive opinion in the case of Railroad Co. v. Johnson, 38 Kas. 142, in which it is held that a different rule must be given if the occupant of the land condemned for right-of-way by a railroad company has only a homestead right and not the fee to the land; or, in other words, the jury must take into consideration the title so possessed, and the right of possession, in determining the extent of the damages and value of the land. In that case, Mr. Justice Johnston, speaking for the court, saysú
“The interest which the settler has may be appropriated for a right-of-way by adversary proceedings, as we have already, seen that congress has provided for the condemnation of a right-of-way through a homestead, as well as for its purchase from the settler. Of course the settler does not part with the same interest or value that he would if he had the legal title, and he should only receive compensation for the interest taken from him. The court below, however, in its charge and rulings on the admission of testimony, seems to have carefully restricted the jury to an allowance for the injury done to the rights and interest which the settler had in the land. The appropriation and use of a strip of land through the homestead affected the entire tract. The homesteader had taken and was using it as a single tract, and as his home and farm. The division of the farm into parts of irregular shape, the deep cuts and high fills that were made, and the inconvenience resulting from the construction of the road, constitute an injury to the interest of the settler which differs only in degree from that sustained by one who has the legal title.”
In this case the court instructed the jury and gave the rule for the measure of damages just as it would have given it had the plaintiff, instead of having a homestead right, owned the fee. This was error. The court ought to have defined the rights of the settler in such homestead, and left the question to the jury to determine his interest and from such interest the liability of the company. Just what that interest would be is a question of fact in each case, to be determined by the jury, and depends upon the improved condition and the length of time the homestead has existed, and all other facts that go to make up its value. Its value may be much less than if the settler owned the fee of the land, or it may be substantially the same, or a little less than its actual value including the fee.
We are therefore of the opinion that the instructions of the court are erroneous, and recommend that the cause be reversed, and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is one with reference to the validity or invalidity of a certain judgment rendered in a case of misdemeanor by a justice of the peace of Johnson county against William M. Evans, the defendant in error, who was the prosecuting witness in that case. Evans claims that such judgment is void for the reason among others that justices of the peace in eases like the present have no power under the laws of Kansas to render a judgment against the prosecuting witness. There is no pretense that the judgment in this case was rendered under § 326 of the criminal code, or under § 18 of the act relating to the jurisdiction and procedure before justices of the peace in cases of misdemeanor, or that any such judgment could-have been rendered in this case under such sections; and this for the reason, as we suppose, that there was no finding made in the case, and could not have been under the real facts of the ease; that the aforesaid prosecution was instituted without probable cause or from malicious motives — an essential thing to be brought about in order to authorize a judgment to be rendered against the prosecuting witness under the aforesaid sections. The only finding' that was made in this case was that contained in the general verdict of the jury that the defendant in the misdemeanor case, Henry Avery, was “not guilty and the judgment that was rendered in the case was one rendered by the justice of the peace discharging the defendant, Avery, and the one rendered by the justice of the peace against Evans, the prosecuting witness, which reads as follows:
“It is therefore considered and adjudged that the prosecuting witness, Wm. M. Evans, pay the costs of this case herein, taxed at $137.25, and that an execution be issued on said Vm. M. Evans to satisfy said costs in said case.”
This judgment was undoubtedly rendered under §13 of chapter 39 of the General Statutes of 1868 as amended by §1 of chapter 127 of the Laws of 1885. (Comp. Laws of 1885, p.442.) The original title to the act of 1868, published as chapter 39 of the General Statutes of 1868, reads as follows: “An act fixing the fees of certain officers and persons therein named.” The title to the act of 1885, published as chapter 127 of the Laws of 1885, reads as follows: “An act relating to fees in justices’ courts, and amendatory of §13 of chapter thirty-nine of the General Statutes of eighteen hundred and sixty-eight.” Section 13 of said chapter 39, as amended by chapter 127 of the Laws of 1885, reads as follows:
“Section 13. Justices of the peace shall receive the following fees: [here follows a list of justices’ fees, and of justices’ fees only.] Provided, That in all cases where any person shall be arrested, charged with felony, and the court shall decide that there were not reasonable grounds for such arrest, and when any person charged with an offense less than a felony shall be discharged for want of sufficient evidence to convict or bind over, the prosecuting witness shall be liable for costs.”
It will be seen from an inspection of the above §13, that no authority is given by it to any court to render a judgment against the prosecuting witness. In this respect this section is unlike §§326 and 18 above referred to, for these two sections expressly give such authority. -And surely unless the authority is given either expressly or by the clearest of implications, it should not be held as having any existence. Avery was tried twice in the present misdemeanor case. On the first trial the jury disagreed, and on the second trial the verdict was only that the defendant was not guilty, and there was not only no finding or decision on either trial by either the court or the jury that the prosecution, was instituted by the prosecuting witness without probable cause, or without reasonable grounds, or from' malicious motives, but the failure on the part of the jury on the first trial to agree upon a verdict would indicate that there might have been at least some reasonable grounds for believing that the defendant was guilty; and even the second jury did not readily agree. Section 13, above referred to, merely enacts that where the evidence in a misdemeanor case is not sufficient to convict, the prosecuting witness “shall be liable for costs,” and it does not give any power or authority to any court to render a judgment in the same case or indeed in any case against the prosecuting witness. The power, if any exists, must be sought for elsewhere. Section 13 merely renders the prosecuting witness “liable for costs” where the evidence is not sufficient to convict. It might possibly be proper, in a proper case coming under that section, for the justice of the peace trying the case to state that the prosecuting witness is liable for costs, but the justice should not go further and render such a judgment for costs against the prosecuting witness as could be enforced against him by an ordinary execution. There are many statutes making officers and others “liable” under particular circumstances, but where the statute only makes the officer or other person “liable” and does not specifically and expressly authorize a judgment to be rendered against him upon the happening of such liability, we do not think that any judgment could properly be rendered against him because of such liability except in an action regularly brought against him to enforce the liability by the persons in favor of whom the 'lia bility should exist. No statute authorizes a judgment to be rendered against the prosecuting witness under the aforesaid §13.
The cases of Shields v. Shawnee County, 5 Kas. 589, and The State v. McGillvray, 21 id. 680, are referred to as asserting a contrary doctrine. Now all that was decided or could have been decided in the first case was that the county of Shawnee was not liable for costs, and the second case purports merely to follow that case. Whatever is said in those two cases contrary to the views herein expressed, if any such thing is in fact said, is hereby overruled.
The court below held that the judgment of the justice of the peace against the prosecuting witness for costs was void, and the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This is an action in mandamus. The alternative writ sets forth substantially that George T. Neally was the city engineer of the city of Topeka, a city of the first class; that on the 3d day of July, 1888, D. C. Metsker, as mayor, attempted to suspend him from his office, and place therein William Tweeddale; and that John F. Carter, as city marshal, acting in concert with the mayor, forcibly and unlawfully deprived plaintiff of his office-room, books, papers, records, etc., and prevented him from exercising the duties of his office. The defendant moved to quash the writ, which was overruled by the court, and, they declining to make any further return, the alternative writ was made peremptory. The defendants, plaintiffs in error, excepted to this judgment, and bring the case here for review.
The defendants say, first, this action cannot be maintained against them, claiming that the plaintiff was simply suspended from his office, not removed; in their brief they seek to make a distinction between the authority to amove a city officer and to suspend him. They claim that the authority to amove a city officer requires a greater amount of power than to simply suspend him; that a mayor, by virtue of his office, and as an incidental and inherent power thereof, can at any time suspend an officer, even though he may have no power given by statute or ordinance to amove him. They cite authorities which are to the effect that the power to suspend is included in the power to amove. We can readily believe that the greater power to amove might include the lesser one to suspend, but we have failed to notice any instance where the power to amove is not conceded that the authority to suspend is admitted. In this instance the plaintiff was not suspended pending any exam-nation of charges against him, which if found true would have been grounds for a removal; he was suspended without charges against him, and without notice.
We cannot accept the claims of defendants as to the wide difference between removal and suspension from a municipal office. In its effects, so far as the merits of this action are concerned, the plaintiff would be deprived of his office whether removed or suspended, in one way permanently, in the other for an indefinite and uncertain time. In some instances a suspension would practically be equivalent to a removal; it would be the case where the duration of the suspension extended beyond the term for which the officer suspended was elected or appointed. We fail to see any difference between an illegal removal and an illegal suspension, so far as this action is concerned, except in the possible difference of time the officer would be deprived of the possession and enjoyment of his office; certainly when it comes to the remedies for the restoration of an officer unlawfully removed or unlawfully suspended, we-cannot perceive why the remedy in one case should not be applicable in the other. If the mayor exceeded his powers in suspending plaintiff, and the city marshal, as an officer, and the de facto, or as defendants style him the “ad interim engineer,” assist in keeping him out of the lawful occupation and peacable possession of the same, then this writ was properly issued.
It fact it is not seriously disputed by the defendants that mandamus would be the proper remedy to restore a party to an office from which he had been illegally removed. The same reasons given to sustain this remedy in cases of removal, apply with equal force where the occupant of an office had been illegally suspended. If the title to this office were in dispute, the action to determine it would probably be quo warranto; but it is admitted that the plaintiff was the city engineer by regular appointment, and in the actual and lawful possession and enjoyment of the office. There is no question of a contested election or disputed right to this office, except as it arises from the suspension alone. The plaintiff up to July 3d was the city engineer by undisputed right: was he legally or illegally suspended? — that is the sole question to be decided in this action. We believe mandamus is the proper action to restore an officer to his office when he, having the actual possession and undisputed right to the same, is illegally ousted therefrom, whether by removal or suspension. (The State, ex rel., v. Common Council, 9 Wis. 254; The State v. Jersey City, 1 Dutch. 536; Rex v. Barker, 3 Burrows, 1266; Fuller v. Trustees, 6 Conn. 532; Howard v. Gage, 6 Mass. 461; In re Strong, Petitioner, 37 id. 484; County Court v. Sparks, 10 Mo. 118; Commonwealth v. Guardians, etc., 6 Serg. & R. 468; Milliken v. City Council, etc., 54 Tex. 388; Ex parte Wiley, 54 Ala. 226; Dill. Mun. Corp. §248, and note; High Ex. Rem., §§67, et seq., and 407-409.)
If the suspension of plaintiff was unauthorized there could have been no vacancy to fill, and the appointment of Tweed-dale was without authority of law; and plaintiff’s office-room, books, records, instruments, insignia, etc., etc., having been taken from him by reason of such illegal suspension, it follows that a restoration to office should be accompanied by a restoration of all things pertaining to the office of which he had been deprived; for this relief mandamus is the proper remedy. (Atherton v. Sherwood, 15 Minn. 221; The People, ex rel., v. Kilduff, 15 Ill. 492; The People, ex rel., v. Head, 25 id. 325; Trustees, etc., v. Fogg, 78 Ind. 269; Nelson v. Edwards, 55 Tex. 389; High Ex. Rem., §73, et seq.; Dill. Mun. Corp., §302.)
The vital question to be determined in this ease is, whether the mayor had authority to suspend plaintiff from the office of city engineer. There is no statute nor ordinance of the city in hcec verba, giving him the power to suspend the city engineer from his office and duties. The statute provides that he may remove the marshal, assistant marshal, and any policeman — these, and these only, of the city officers. (Comp. Laws of 1885, ch. 18, § 72.) The plaintiff argues that because these officers are named no other officers can be removed or suspended by him, citing the well-known rule that the naming of one excludes all others; the defendants, admitting the general rule, deny its application in this case. They say that the provisions in regard to the removal of the marshal, etc., are found in article 5 of chapter 18, while the powers and duties of the mayor are defined under article 4, and this reference to the mayor in article 5 is only incidental and does in no way tend to limit the powers of the mayor as defined in article 4. They cite as showing the powers of the mayor, §§39 and 47:
“Sec. 39. The mayor shall preside at all the meetings of the council, except as herein otherwise provided, and shall have the superintending control of all the officers and affairs of the city, and shall take care that the ordinances of the city are complied with.”
“Sec. 47. The mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the city; and he shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty.”
Section 39 gives him the superintending control over all the officers of the city, and the defendants contend that would empower him to suspend; that the power to do so would be a necessary adjunct of the authority to control. We are of the opinion that authority to control would not confer the power to suspend; it does not to remove, evidently, for if it gave the power to remove there would have been no necessity for an express provision for removing the marshal, etc. In § 47 it is provided that he shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty, not that he shall deal with them himself, but shall cause such officers to be dealt with, presumably by the proper authority.
We are of the opinion that the power to amove is lodged in the corporation itself, and must be exercised by it at large, unless such power has been delegated to some officer or officers thereof by statute or ordinance. The governing and controlling power of a city is lodged in the mayor and council ordinarily, and therefore the power to amove rests with them jointly, there being no such authority given to the mayor in express terms, or inferentially eyen, as we understand and interpret the statute. (Dill. Mun. Corp., §§ 241-3, and authorities there cited.) In the absence of such provision, the mayor alone, being only a part of the governing power of the city, could neither remove nor suspend the city engineer; therefore his order suspending the plaintiff on the 3d of July from the office of city engineer was illegal and void.
We think the judgment of the court was correct, and recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
Upon the presentation of the motion for a rehearing in this case, some of the findings of the trial court were questioned, and it was also asserted that the evidence in the case did not show that Durkee & Stout had personal notice of the dissolution of the firm of Gunn & Mari’, aud that Gunn was to carry on the business of the old firm the same as if the firm had not dissolved. We therefore make the following quotations from the testimony. W. C. Gunn testified:
“Q. What business are you engaged in? A. Real-estate business.
“ Q,. How long have you. been engaged in that business ? A. About ten years.
“Q,. During all that time what experience have you had in real-estate business as compared with others in the city of Fort Scott — others in real-estate business? A. Well I suppose I have laid out as many additions as all the rest together, pretty nearly — at least until within the last three or four months — since I have been in the business.
“Q,. Have you been largely engaged in the real-estate business? A. Yes, sir.
“Q,. If at any time real estate began to improve, you may state when that took place. A. Well, from the first of January on to the middle of January, I guess, before it took any -change.
“Q,. If you did anything looking toward carrying out the advertising of the land in question, and the agreements contained in the contract, you may state fully and in detail what you did. A. We advertised in the papers as Gunn & Marr, and after I took the firm business I advertised that business as W. C. Gunn.
“Q,. Iu the first placer, did you plat the addition? A. Yes, sir; we had Mr. Fortney survey and plat the addition; Mr. Fortney is the county surveyor.
“ Q,. I will ask you about that plat: where did you last see that plat? A. I gave it to Mr. Durkee, the last I saw of it, to sign.
“ Q,. Please state in detail in regard to the survey and making of that plat. A. We had it surveyed and platted sometime in June; consulted "with Messrs. Durkee & Stout, and agreed what prices we would put on the lots to sell them at.
“Q,. The prices were agreed to on the lots between you and Mr. Durkee and Mr. Stout? A. Yes, sir.
“Q,. What did you call that addition ? A. Durkee & Stout’s addition to the city of Fort Scott.
“Q,. Did you cause that addition to be advertised in the newspapers? A. Yes, sir.
“Q,. Did you do anything personally toward giving it publicity and promoting the sale of the lots? A. Yes, sir, we did all we could; and then we started a boom that we got up there for the benefit of that property and the benefit of other property there that we had for sale.
“Q. What do you call a boom as applied to real estate? A. Well, that is getting up a little excitement for the benefit of the people, to let them see what a good town we have got, and get them to take hold and buy real estate.
“Q,. What did you do to increase the market value and promote the sale of this property? A. Well, I signed $300 for the purpose, and the rest of the real-estate agents called a meeting, and we all got up a subscription and raised what money we could, and gave it to the papers, to show' to the pub- lie, and show what a good town we had; to write it up and keep up the feeling and boom the town.
“ Q. Did you employ a special writer for the purpose ? A. Yes, sir; we employed J. M. Galloway, besides others among us, to write for the papers.
“Q,. When did you begin that process you call 'booming' the town’? A. Right away after I got that contract — and agreed to do that if I got the contract.
“Q,. That is, you promised that to Durkee & Stout? A. Yes, sir.
"Q,. As compared with the balance of the real-estate agents in the city, what proportion did the firm of Gunn & Marr sign toward this boom ? A. We subscribed more than anybody else; I am sure of that.”
NOTICE TO DURKEE & STOUT OP DISSOLUTION.
“Q. You say the dissolution of partnership took place on the 23d of July, 1886? A. Yes, sir.
“ Q,. Up to that time what had been the respective duties in your firm of yourself and Mr. Marr, as specially directed toward handling your real estate? A. Mr. Marr didn’t sell real estate; he was the inside man; I did the selling — the outside work; did nearly all the managing of buying and selling, and the like of that. He tended the books and the inside work.
“Q. After the dissolution of the firm of Gunn & Marr, was the Durkee & Stout addition still advertised for sale ? A. Yes, sir; it was advertised by W. C. Gunn — myself individually.
"Q,. Did the firm of Durkee & Stout know of the dissolution of the firm of Gunn & Marr? A. Yes, sir.
“Q,. How do you know? A. Why, I had talked with Mr. Stout about it once just in a friendly way two or three days after the dissolution.
“Q,. What did he ask? A. I don’t remember the exact words, but he wanted to know why we dissolved; I told him.
“Q,. What were your relations, (you and Mr. Stout,) at that time? A. Same as now; we have always been the best of friends.
" Q,. If, in that conversation which you had, about the time of the dissolution, with Mr. Stout, anything was said about to whom the real estate was turned over, you may state. A. I told him Marr had gone out of the business; that I had assumed the business and a portion of the debts, and taken all the business; I thought perhaps Mr. Marr was going to Kan sas City; I thought maybe he would, but he didn’t know yet what he would do.”
THE STARTING OP THE SECOND BOOM.
“Q,. Do you mean that was the beginning of the boom, or that that was the beginning of the effort to start the boom ? A. Well, it was along about the 1st of January when they made the first effort.
“Q,. What did you do? A. We got together and formed a stock company to raise $120,000, and get it subscribed by the citizens. Col. Pearsall and I got nearly all the subscriptions, and we canvassed the town and got nearly all the stock taken, and platted the ‘South Side Park addition,’ and wrote to Kansas City to show the people what a good town it was.
“Q,. What effect did it have upon the town ? A. Well, it doubled the value of property in and around town, I think I may safely say, from what it would have sold for before that boom, and three times, some of it; some of it as high as four times.
“Q,. To what extent were the sales of real estate in and around Fort Scott increased by this second, boom? A. Oh, it is hard to say; but I suppose there were five hundred times as many sales — yes, a thousand — in three or four months after the 1st of January as there were in any other three or four months since I have been here. Maybe that is a pretty big assertion, but it was a great increase.
“Q. To what cause was this increase in real estate in 1887 due? A. In my judgment it was due to this syndicate, the way we managed the sales, the advertising aud everything.
“Q,. What did you do toward organizing and perfecting this syndicate ? A. I was one of the directors; I was present at the first meeting and every other meeting; Col. Pearsall and I did everything to get the stock taken; I did everything I could to get it taken; it was the biggest job of my life.
“Q,. The biggest job of your life? A. The hardest one.”
SALES MADE.
“Q,. Did you have any talk at any time — yourself personally— with either Mr. Durkee or Mr. Stout in regard to withdrawing it from the market? A. There never was a word said to me until just before this suit was brought.
“ Q,. Did you ever withdraw it from the market and refuse to sell any of it? A. No, sir.
“Q,. If after the first of January you actually made any sale of any of the lots in this Durkee & Stout addition, you may say about when it was. A. Yes; I sold three of the lots to Mr. Marr; and I sold one of the lots to Mrs. McCleverty.
“Q,. About what time did you sell one of the lots to Mrs. McCleverty? A. I guess about the first of February; I can tell from my books.
“Q,. Was there any money paid down? A. $300. I made a written contract; took the money and gave her our receipt.”
GUNN REPORTS TO DURKEE & STOUT HIS ACTIONS.
“Q,. Did you have any talk with Mr. Stout immediately after making that contract, as to whether or not it was satisfactory to him? A. I went over and reported to Mr. Stout; he said it was a satisfactory sale; I told him how I had sold it, and the terms. That was at his office, the office of Durkee & Stout in this city.
“Q,. Did you have any talk with Mr. Durkee at or about the time you were organizing the second boom in regard to syndicate stock? A. We tried to get Mr. Durkee to take some stock for Durkee & Stout. Mr. .Pearsall and I saw Durkee and wanted to know if he was willing to put the land in. He said he was willing to put it in at $12,000; he was willing to put it in at $12,000, but he was not willing to take any stock. He wanted $12,000 for what was left; some of it was sold. I wanted Durkee & Stout to take some of the stock.
“Q,. You may state whether or not before that time defendants had refused further to carry out their contract; to proceed further under this contract. A. They never did refuse, or show any disposition to refuse, up to this time that Mr. Stout got back, along about the middle or last of January.
“Q. Did they refuse then? A. Yes, he refused. After that I saw him in regard to the sale to Mrs. McCleverty, the same day. He refused to take the money, though he had said the sale was satisfactory, an hour or two before that.
“Q,. When you saw this plat, what conversation took place? A. I said to Mr. Stout he was changing the plat without consulting me; and I supposed he intended me to sue him. He said he supposed that was what I would have to do; or something to that effect.”
CONVERSATION WITH GUNN AND STOUT.
“ If afterward you sold auy of this property, you may state when and to whom. A. About the sales: There was another sale he made to Mr. Tierman. There was a part of the ground left, about eleven acres on the south side, that he, I believe, gave Mr. Tierman an option on at $750 an acre; and I went to see him about it, and said I was very much dissatisfied. It wasn’t anything like what it was worth; we could get a great deal more out of it. We talked over the matter half an hour. He argued that the sale ought to be made; that it was a great price, and if the boom went down that he would have enough sold to pay for the land; and I claimed that we could get a good deal more for it, perhaps twice that much. I objected to selling it; but as long as it was his money I consented, but didn’t want to sell any more that cheap. That was along the first days of February.”
Mr. Pearsall testified:
“Q,. If you heard Mr. Durkee say anything in Mr. Gunn’s presence in regard to that land and the contract of Gunn’s in regard to that land aud the value of the land, you may state. A. I think all I ever heard Durkee say about it was when we asked him to subscribe to the stock. He objected to subscribing stock, on the ground of the street railroad being taken into the deal. He said he was willing that the land should go in; but he wouldn’t subscribe any stock until Mr. Stout returned. And he said, ‘Mr. Gunn, I am willing the land should go in, if you are willing it should go in.’ I knew Mr. Gunn had a contract; because he had told me about it. That was the last we heard in regard to it. Just before we succeeded in getting up all the stock, Mr. Durkee objected to subscribing stock. I think it was right there by Hauna’s livery stable. I think Gunn did all the talking. The ground on which he objected was because we had the street railway in; and he said it looked like a scheme to unload the street railway. But he was willing to let the land go in; but he wouldn’t take any stock until Mr. Stout returned; but he was willing the land should go in, if Gunn was willing. I knew Gunn was willing; because he had told me he had got a contract on the land.”
Jasper Fortney testified:
“Q,. I will ask you if you did survey at any time that land described in that plat. A. I did.
“Q,. What did you do down there?» A. Surveyed the land; laid it off into lots and blocks, and marked the corners of the blocks with stones, and some of the intermediate lines to the streets, I think.
“ Q,. Who asked you to do that ? A. I think the first said to me about it was said by Mr. Durkee; and he, if I am correct in my remembrance, referred me to Mr. Gunn. They— Gunn and Marr — made the contract with me. Mr. Gunn was the man who paid me for the work.
“Q,. You drew a plat of it, did you? A. I did.
“Q,. And furnished it to Mr. Gunn? A. No; I think I left the plat with Mr. Durkee — that is my remembrance now; I may be in error.
“Q,. Did you ever see a copy of it hanging up in Gunn & Marr’s office? A. My recollection is I marred the first plat by spilling a bottle of ink over it; and I think I made them two; and I think I saw the spoiled one in Gunn & Marr’s office, and I think they had one placed on file — I don’t know.”
Mr. Gunn, upon being recalled, testified:
“Q. If after the dissolution of the firm of Gunn & Marr you had any talk with Mr. Durkee in regard to the sale of any of this land south of the avenue, on the western portion, you may state what the conversation was. A. I don’t know as I ever had any talk with Durkee; I did with Mr. Stout. Mr. Stout told me two -or three different times, when we happened to be talking, that whenever we got over to that side he would credit with the sale he made to Mr. Cross — that is, he would credit it up with mine.
“Q,. Did you understand from Mr. Stout that some of this land had been sold to a man by the name of Cross ? A. Yes, sir, I knew it had.
“Q,. How do you know it; and what were the circumstances? A. Well, Mr. Steen came to me and told me he was trying to sell him something in Tower Hill addition, and he was favorably impressed with some of that land out there, and he was given half of the commission to sell it. I told him I would do it. Mr. Stout sold the land to Mr. Cross — two or three acres.
“Q,. What did Mr. Stout tell you in regard to what he would do? A. He said I would be allowed that sale on the contract that he and I had. I talked with him two or three times that he told me that, just as we would speak of it during the fall.
“Q,. That talk with Mr. Stout was after the dissolution of the partnership? A. Yes, sir.
“Q.. What conversation did take place about the Tierman matter? A. Well, he said to sell the land at $750 an acre; and I didn’t want to. I thought it ought to bring more money; but I conceded that I ought to sell it, as I had the commission contract, and the land was his. He thought this boom might not last long, and I thought it would be worth more after awhile. I protested that it was not enough for the land. I had the commission contract on the land.”
Mr. J. A. Durkee, one of the defendants, testified:
“Q. Well, up to the time that he came to report this, you had never told him he was not your agent, and you didn’t want him to hold this land for sale any longer; until he came to report this sale? A. No, sir.
“Q,. You took the Monitor? A. Yes, sir.
“Q,. You saw these notices along? ' A. I never noticed more than one or two advertisements.
“Q. Wasn’t it the Durkee & Stout property; you knew that was yours? A. Yes, sir.
“Q. And knew that was your property that you had put in his hands June 1st? A. I knew we had property right there; but I supposed he wmuld advertise it as Durkee & Stout’s addition.
“Q,. You knew the Margrave extension across National avenue; it had got to go on to the Durkee & Stout land, that you had contracted to Dunn & Marr last year? A. Yes, I knew that.
“Q,. You read the advertisements of the Durkee & Stout land? A. Yes, sir.
“Q,. Did you go to Gunn & Marr and complain that as a matter of fact he was not pushing this land for sale? A. No, sir.
“Q,. You were dissatisfied because he didn’t sell; and immediately on his first sale you were dissatisfied, and revoked the contract? A. I don’t see anything that he had done. I saw a few little squibs in the Monitor; that was all. I supposed the long time that the contract had run that he had thrown up the contract.
“Q,. Didn’t the contract have from February to October to run? A. Yes, sir.”
Mr. Stout testified:
“Q,. When was the first time you ever stated to Mr. Gunn that you didn’t recognize him as your agent in regard to this property, and that his right was forfeited under this contract, and you were no longer bound by it? A. It was about the first of February, when I returned from the East.
“When you returned from the East, you found there had been a great increase in the values and activity of sales in Fort Scott property? A. Yes, sir.”
Mr. Gunn, upon being again recalled, testified:
“ Q,. In regard to the conversation that he testified to when the Tierman sale was reported, I will ask you whether or not anything was said at that time by him in regard to not recognizing that contract. A. No, sir. He said nothing about not recognizing my contract at the time.
“Q,. Do you remember what day the meeting was held to organize the syndicate here in Fort Scott — this investment company? A. It was New Year’s night. I know it was New Year’s night, because there was a party at Eli Kearns’s, and I went from the Huntington House to that party.
“Q,. Where was it held? A. At the Huntington House.”
The foregoing extracts fully sustain the findings of the trial court, and also show that Durkee & Stout had knowledge of the dissolution of the firm of Gunn & Marr, and recognized the transaction whereby Gunn assumed the business of the old firm and carried on the business of the old firm. And also, the foregoing extracts show that Mr. Durkee, of the firm of Durkee & Stout, had personal knowledge of the advertisements and notices published by Gunn, in relation to the sale of the land belonging to Durkee & Stout.
Notice to one partner of the firm is notice to all. The motion for rehearing must therefore be denied. | [
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The opinion of the court was delivered by
Horton, C. J.:
Ou the 7th of October, 1882, and for a long time prior thereto, A. W. Bentz was the owner of the southeast one-quarter of section number thirty-two, township number six, of range number sixteen, in Jackson county. Gr. T. Eubanks claimed to have entered into a contract for the purchase of the same in March, 1881; he brought this action for the purpose of having the alleged contract specifically enforced; after commencing his action, A. W. Bentz died; and thereupon an amended petition was filed, in July, 1884, making his executors, heirs and devisees defendants; we therefore may treat the action as having been actually commenced, so far as the defendants are concerned, in July, 1884; the plaintiff resided near Holton, in Jackson county; A. W. Bentz in his lifetime resided at Carlisle, Pa.; but Charles A. Corn-man, the attorney in fact of A. W. Bentz, and with whom the alleged contract was made, resided at Minneapolis, Minn.; the supposed contract was made solely by correspondence. The power of attorney from A. W. Bentz to Charles A. Corn-man is dated August 13, 1880, and authorizes Cornman to sell “ on such terms as he deems most beneficial, . . . execute deed, . . . take mortgage to secure unpaid purchase-money.”
There was preliminary correspondence from Cornman to Eubanks, October 12, 188.0, and March 22, 1881; and a letter from A. W. Bentz to Eubanks, February 26, 1881. These letters show that Bentz and Cornman were desirous of selling the premises described in the amended petition. The first letter, however, which we need consider, is dated March 26, 1881, containing Eubanks’s offer. He wrote to Cornman: “I will give $1,600 — ten dollars per acre — $200 down, the remainder in 3, 4, and 5 years, with 8 per cent, interest, or all in five years. Let me know if you accept my offer, and which one.” In answer, Cornman sent a postal to Eubanks, dated March 30, 1881, as follows: “I just received yours, and will answer by this postal before going to my office. Your letter offering $200 cash and balance in 4 and 5 years, at 8 per cent, interest; I accept your offer, and will write you full particulars in to-morrow morning mail; you can just tell those parties that I sold the land to you, and will send you a deed to the bank. I will also write to Mr. Bentz.” A further answer to Eubanks’s letter of March 26 was made by Cornman on March 31, 1881, in which he states, among other things: “I only wish that you could get me $300 cash, and the balance in five years at 8 per cent.; but if you cannot give that amount, I will take the $200 cash, and the balance in four years’ time at 8 per cent, as per your offer last; probably the first would suit you better. Of course I want to get as much cash as you can spare over the $200; probably I had better send the bank two sets of notes, one in four years’ time, and the others in five years’ time, just according to the amount of cash you can give over the $200.”
Again, Cornman wrote to Eubanks on April 2, 1881, and among other things said:
“When I wrote you my last letter on March 31, I didn’t understand your letter thoroughly and wrote in great haste to inform you how I would send deeds, and what arrangements I would make with the banks in case you would pay more hand money. So I have sent two sets of notes, in case you pay more hand money. You say also in your letter if I sell to Drake to make him pay the cash for the land, and that is why I want you to pay more cash. I can sell the land to other parties for more cash and the balance in one, two, three, four and five years’ time, and if you don’t accept this offer I will be compelled to sell to other parties who are bidding for the land. . . . We have been asking $10 per acre for the land, and it is worth that amount, as there are plenty of farmers who will buy this land at that price by leaving them pay so much yearly for five years on the balance, with $250 hand money; so you want to execute the mortgage and notes promptly and immediately, and if not, why, notify me immediately by telegraph, in a night message of not more than ten words, and I will know what 'to do. This night message will be half rate at my expense.”
Eubanks received the postal of March 30, and the letters of March 31 and April 1 and 2, all on Saturday, the 9th of April, 1881; he lived in the country; his wife was sick on Monday; Tuesday it stormed; and Wednesday, the 13th, he and his wife went to the Exchange bank at Holton to pay the money, execute the mortgage and obtain the deed to the land. On April 12, 1881, at the instance of Bentz, Cornman had wired T. P. Moore, the cashier of the bank: “ If not delivered, do not deliver Eubanks deed until further notice.” After Moore informed Eubanks that he was instructed not to deliver the deed, Eubanks wired Cornman: “ I accept offer; am ready to comply with contract.” The postal from Cornman to Eu-banks of March 30 did not inform Eubanks which offer he accepted; he said he would take $200 cash, but added: “balance in four or five years’ time at eight per cent.; ” the offer of Eubanks was $200 cash down, and the balance in three, four and five years, at 8 per cent, interest, or all in five years. The postal, with the qualifications stated, was not an acceptance of the exact terms offered. In the letter of March 31, Cornman asked for $300 cash, and the balance in five years, at 8 per cent., but stated if Eubanks would not give that amount, he would take $200 cash and the balance in four years’ time, at 8 per cent. This letter, also, was not an acceptance of the offer of Eubanks, because it stated different terms. In the letter of April 3, Cornman notified Eubanks that he could sell the land to other parties for more than $200 cash and the balance in one, two, three, four and five years’ time, annual payments; and that if he did not accept the offer, he would sell to the other parties bidding for the land. In that letter he also stated that he wanted $250 in hand.
An offer by one party assented to by the other will generally constitute a contract, but the assent must comprehend the whole of the proposition. It must be exactly equal to its extent and terms, and must not qualify them by any new matter; therefore a proposal to accept or an acceptance of an offer on terms varying from those proposed, amounts to a rejection of the offer. “ If in answer to a proposal to grant Black Acre, a person replies that he is ready to close the matter and will take "White Acre, there is no acceptance. Neither is there an acceptance where executory proceedings on each side are involved in the proposal, and the party professing to accept introduces a variance and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect.” (Eggleston v. Wagner, [S. C. Mich.] 10 N. W. Rep. 37; Burkhalter v. Jones, 32 Kas. 5; Baker v. Johnson, 37 Iowa, 188; Hamlin v. Wistar, [S. C. Minn.] 18 N. W. Rep. 145.)
As we view the correspondence between the parties, they contain propositions and counter propositions; but Cornman in his professing to accept, varied the terms of acceptance from those proposed; therefore, m . . x 1 equity and good conscience, such a contract was not made as equity should adjudge to be specifically enforced.
The telegram from Eubanks to Cornman of April 13th was not sent until Bentz had wired Cornman that the land was leased for five years, and Cornman had revoked the authority given to Moore to deliver the deed, and had notified him not to deliver until further notice. Before this telegram was sent, Moore had also notified Eubanks that he was instructed not to deliver the deed. The acceptance of Cornman’s offer by wire, therefore, was not made until after it had been withdrawn.
Again, although Eubanks received the letter of Cornman dated April 2 on April 9, and although he was specially re quested to answer the letter by a night message at the expense of Cornman, he did not answer the letter by wire or by writing until the 13th, and not on that day until he had been notified that the bank could not deliver the deed; therefore he did not comply with the terms of the request in the letter of April 2.
There are many other matters referred to and discussed in the briefs, but it is unnecessary to comment upon them.
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
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Opinion by
Simpson, C.:
The First National Bank of Peoria, the plaintiff in error, is a corporation organized under the general banking laws of congress, doing business at the ■city of Peoria, state of Illinois. William E. Stone is the ■cashier of the bank. The defendants in error, E. S. Jaffray •& Co., the Nonotuck Silk Co., Alonzo W. Rollins, Shaw & Co., King & Fildes, and the Merrick Thread Co., are merchants to whom Day Bros. & Co. were indebted for goods ■sold and delivered by them to Day Bros. & Co. after the 10th day of January, 1884. On the 1st, 2d and 4th days of October, 1884, and on the 2d day of December, 1884, these defendants commenced actions in attachment in various counties of Kansas against Day Bros. & Co., and caused the lands in controversy to be subjected to attachment liens for said indebtedness. Judgments were subsequently rendered in these actions against Day Bros. & Co., and the lands sold to satisfy said judgments.- The defendants in error, Weigley, Burrows, and Shaw, purchased some of the lands at the sheriff’s sales, and took deeds therefor, and are made parties on that account. The firm of Day Bros. & Co. was engaged in the wholesale and retail dry-goods trade at Peoria, the firm consisting of Lucius L. Day, Herbert F. Day, Gordis R. Cobleigh, William G. Marsters, and Samuel H. Van Sickler. On the 10th day of January, 1884, the firm of Day Bros. & Co. was indebted to the bank in the sum of $53,000. The bank demanded payment, or security, and on that day Gordis R. Cobleigh and wife, one of the firm, in whose name the title was vested for the benefit of the firm, executed and delivered to W. E. Stone, cashier of the bank, for its benefit, eleven certain quitclaim deeds, conveying to Stone land in nine different counties in this state, for a stated consideration of $35,700. At the same time, another member of the firm deeded to Stone, for the benefit of the bank, real estate in Peoria of the value of $25,000. On the 23d day of September, 1884, the firm was indebted to the bank in the sum of $83,000, the bank having loaned Day Bros. & Co. $30,000’ after the 10th of January, 1884. On that day (September 23d) there was a settleme n between these parties, and the indebtedness of the firm to the bank was adjusted as follows: $20,576.30 was to be paid by Chas. B. Day, who had bought out their stock of goods; $30,000 was to be collected and retained from commercial paper of customers of the firm, which had been delivered to-the bank; $18,000 was secured by a trust deed on the homestead of Lucius L. Day; and the balance, $15,000, was to be considered secured by the Kansas and Nebraska lands conveyed by Cobleigh to Stone; and Stone executed a deed of defeasance, in which he recites the giving of the eleven quitclaim deeds, and agrees to reconvey the laud to Cobleigh upon the payment of the sum of $15,000, with interest at- eight per cent, per annum.
On the 3d day of October, 1885, this suit was commenced in the district court of Cowley county, seeking to have the nine quitclaim deeds made by Cobleigh to Stone, declared a mortgage to‘secure the sum of $15,000, and for a foreclosure of the same. The lands conveyed by the deeds are situate in the counties of Cowley, Ottawa, Lincoln, Russell, Ellis, Rush, and Barton, and are particularly described in .the petition. At the time Cobleigh conveyed the lands to Stone, they were subject to some mortgage liens that were subsequently purchased by the bank, and a foreclosure is prayed as to them. At the trial a default was entered against Day Bros. & Co., William Jack, Leslie D. Puterbaugh, William H. Herren, Samuel W. McFarlin, Sarah J. McFarlin, Charles F. Leonard, James D. Curtis, and Francis M. Boyer. The case was tried on the issues joined between the bank and the defendants in error. E. S. Jaffray & Co., Alonzo W. Rollins, Shaw & Co., King & Fildes and the Merrick Thread Co. filed like answers, each setting up claims against Day Bros. & Co., upon which attachment had been issued and levied upon the lands described in the petition of the bank and of Stone. FrankS. Weigley filed an answer, in which he denies the existence of any indebtedness by Day Bros. & Co. to the bank, on the 10th day of January, 1884; admits the execution of the deeds by Cobleigh to Stone, but denies that they were intended as mortgages, and alleges that they were made for the purposes of fraud. He denies that any of the indebtedness of Day Bros. & Co. to the bank remained unpaid on the 23d day of September, 1884, and alleges that it had all been paid; denies that the parties had an accounting on the 23d of September, 1884, and that said pretended deeds should represent a mortgage of $15,000. He alleges the insolvency of Day Bros. & Co. before the 10th of January, 1884, the bank’s knowledge of their condition, and that there was some secret and fraudulent scheme entered into by and between the bank and Day Bros. & Co., by which the bank was to aid them in protecting their property from the efforts of creditors to collect their just dues, and that these pretended conveyances were executed and delivered for that purpose, and in pursuance of that corrupt and fraudulent agreement. He then alleges that he is the owner in fee simple of certain tracts of said land, by virtue of being a purchaser at judicial sales made of such lands in proceedings had in certain actions, wherein Rollins, Shaw & Co., Morrison, Herriman & Co., Edward S. Jaffray & Co., obtained judgments against Day Bros. & Co., and orders of sale of the land attached in these actions.
Edward D. Burrows filed an answer similar to that of Weigley, and he claims to be the owner of certain tracts of the land by virtue of judicial sales in actions brought against Day Bros. & Co. by other creditors.
Theodore A. Shaw filed an answer to the others, claiming to have purchased a portion of the land at judicial sale in a creditors’ suit. They all prayed that the mortgage be declared fraudulent, for various causes hereinafter stated.
The claims of these defendants upon which they brought their actions in this state, and attached the various tracts of land involved in this controversy, were, with a few exceptions, contracted by Day Bros. & Co. with their creditors after the 10th day of January, 1884.
At the September term, 1886, the court below rendered a ‘judgment in favor of the bank, against Day Bros. & Co., for $15,000; adjudged that the mortgage had been executed by Cobleigh, and received and accepted by Stone, and held by the bank, for the purpose and with the intent on the part of each and all of the parties to hinder, delay and defraud the creditors of Day Bros. & Co.; and that it is void as to these creditors, who are made defendants in error. All exceptions were saved, a new trial was asked for and refused, and the case is here for review on the whole record. All the evidence is in depositions and documents, and the questions of fact may be fully examined and determined. There are many errors assigned, but probably a few controlling questions will determine the case.
It is claimed by the defendants in error that the conveyances made by Cobleigh to Stone are fraudulent in fact, and void in law as against them as creditors of Day Bros. & Co. The principal facts relied on to support this judgment are: First, that Day Bros. & Co. were insolvent on the 10th day of January, 1884; second, that the bank knew of the insolvency; third, that the bank failed or refused for over eight months to record the deeds; fourth, the bank represented to the publio that the firm was solvent and composed of men of large property, after they knew of their insolvency; fifth, that the defendants in error relied upon such representations, and gave the firm of Day Bros. & Co. credit on the strength of them; sixth, that the arrangement entered into on the 23d day of September, 1884, between the bank, Day Bros. & Co., and Charles B. Day, was a fraudulent one as to the defendants as creditors of Day Bros. & Co.
While incidentally we will consider and pass upon many of the questions that have been so thoroughly discussed by counsel on both sides, both in their oral argument and in their elaborate briefs, we shall avail ourselves of the right to consider all the evidence in the case, as it is all embraced in documents and depositions, and decide the facts according to the evidence, and determine the case on its merits. It is doubtful whether there is such a finding of all the material facts of the case, in the judgment rendered by the court below, as authorizes us to send a mandate ordering a judgment in this case according to our direction, as contemplated by § 559 of the code. While there is no general finding of the court below, that the facts stated in the answer of the defendants are true, or that all the issues are found in their favor, there are some special findings on particular questions of fact, but they do not embrace all the material facts, and consequently do not conform to what is generally understood under our rules of practice, as “findings of fact.” We shall endeavor to give all the questions arising in the case that broad and comprehensive view that is so earnestly urged by counsel for defendants in error. The evidence is very voluminous, and the questions discussed numerous, but some of the rules governing such actions are familiar, having been often determined by this court, and others well settled by the repeated adjudication of other tribunals.
I. The first complaint of counsel for the plaintiffs in error is, that the judgment rendered by the court below does not conform to the issues made by the pleadings; or, to express it in other words, the court decided a case not presented. We think there is a more direct and controlling question, and in this view this complaint may be considered more as a technical than as a substantial cause of error. And yet there are some features of the judgment that give some force to this objection. A judgment must be predicated upon some findings of fact, and every finding outside of the issues of fact as made by the pleadings is a nullity; and hence every judgment rendered on a finding of fact not put in issue by the pleadings is erroneous. The issues in this case upon which the case should have been tried and determined, are made by the answers of Weigley, Burrows, and Shaw, and the replies of the plaintiff below thereto. These issues are: That these conveyances, were made by Cobleigh to Stone, by reason of some scheme or arrangement entered into between Day Bros. & Co. and the bank, that the bank, for the purpose of aiding Day Bros. & Co. to protect themselves from their creditors, should hold these lands in trust for Day Bros. & Co. until they could effect a settlement with their creditors. The trial court found that at the time of making said deeds, Day Bros. & Co. were indebted to the bank in the sum of $53,000; that in order to secure the payment of the same, Day Bros. & Co. requested Cobleigh to execute said deeds to Stone; that a written defeasance was subsequently given, as claimed, whereby the deeds were to be held as a mortgage for the payment of $15,000, and that the said sum of $15,000, with interest, remains due and unpaid; that said lauds are held as surety for the payment of that sum, and that the same was and is now valid and binding as a mortgage, between the parties thereto; and rendered a judgment in favor of the bank and against Day Bros. & Co., for $15,000 and interest, and yet found that at the time of the conveyance, Day Bros. & Co. were in embarrassed financial circumstances; that they were in contemplation and expectancy of bankruptcy, which facts were well known at the time to the board of directors, president and cashier of the First National Bank of Peoria, to which bank the firm was indebted on the 10th day of January, 1884; that the deeds were received by Stone and accepted and held by the bank, for the purpose and with the intention on the part ot all the parties aforesaid to hinder and delay the creditors of the firm of Day Bros. & Co.; and as a matter of law the court did find and declare that the conveyance so made by the said Cobleigh and wife to the said William E. Stone, on the 10th day of January, 1884, was and is fraudulent and void as to the defendants, the Nonotuck Silk Co., the Merrick Thread Co., Rollins, Shaw & Co., E. S. Jaffray & Co., King & Fildes, Theodore A. Shaw, Edgar D. Burrows, and Frank S. Weigley, and each and every one of said defendants. It seems rather difficult to make this judgment responsive to the issues as made by the pleadings. (U. P. Rly. Co. v. Milliken, 8 Kas. 647; U. P. Rly. Co. v. Young, 8 id. 658; K. P. Rly. Co. v. Dunmeyer, 19 id. 539; A. T. & S. F. Rld. Co. v. Irwin, 35 id. 286; St. L. & S. F. Rly. Co. v. Fudge, 39 id. 543.) It is more difficult to reconcile the judgment with some of the findings of fact made by the court. We shall not undertake to do either, for the reason that there is another question in the case which in our view determines it.
II. The primary question, the controlling fact, the foundation upon which all the correlative facts, inferences and legal conclusions rest, and upon which all the superstructure is built, is, whether or nt>t there was at the dates of these various transactions an honest existing indebtedness on the part of Day Bros. & Co. to the bank ? If this fact is not satisfactorily established, if there is grave doubt of the existence of such indebtedness, then the fraudulent intent, like a poisonous fluid, would penetrate the innermost recesses of each individual act of the parties, and its virulence destroy the whole transaction. We have carefully read all the evidence in the record, and there is not a single utterance in all this large mass of bifarious testimony that casts a shadow of doubt on the bona fides of the indebtedness of the firm of Day Bros. & Co. to the bank. This fact being established, all the efforts of the bank to secure the payment of the indebtedness, and to protect its stockholders from ultimate loss, must be viewed in the light of commendable anxiety; and at the same time some reasonable allowances must be made for the merchants struggling against adverse circumstances to keep in the current of prosperous business.
We shall assume for the present that the finding of the first and second facts above recited, that Day Bros. & Co. were insolvent on the 10th day of January, 1884, and that the bank knew of that insolvency, are sufficiently established by the evidence. We add to those findings another, that at that date the firm was indebted to the bank in the sum of $53,000. This latter fact is included in the judgment. Its force, however, is sought to be broken by counsel for the defendants in error, by the statement that the court below did not determine the validity of the indebtedness of Day Bros. & Co. to the bank; that the bank obtained a judgment by default against the debtor firm for the amount claimed. There is an express finding that the firm of Day Bros. & Co. was. indebted to the bank on the 10th day of January, 1884, in the sum of $53,-000, and that it was indebted to the bank on the 23d day of September, 1884, for $15,000, with these lands mortgaged to' secure that sum, with interest. The one'fact alone, and beyond all others, that is made plain and convincing by the evidence in this record, is, that there was at the respective dates of each of these transactions a bona fide indebtedness by Day Bros. & Co. to the bank. The legal effect of these three conjunctive facts: of bona fide indebtedness, insolvency of the debtor, and knowledge by creditor of the insolvency, on payments made or security taken from the insolvent debtor by the creditor, with knowledge of the insolvency, has often been declared by this court in the cases of Chapman v. Summerfield, 36 Kas. 610; Kennedy v. Powell, 34 id. 22; Bailey v. Kansas Mfg. Co., 32 id. 73; Baughman v. Penn, 33 id. 505; Tootle v. Coldwell, 30 id. 125, and other cases. These cases all hold that an insolvent debtor can convey property to his creditor to pay or secure his indebtedness, when the creditor has knowledge of his insolvency, or of his financial embarrassment; and some of them go to the extent of upholding the sale or security when it includes all the property of the debtor; and others uphold the sale or security when made or executed by the debtor with the fraudulent intent to hinder and delay his creditors, if the creditor to whom the sale is made or security given has no knowledge of the intended fraud. These findings are not therefore sufficient to sustain this judgment.
III. The third fact established and claimed to sustain the judgment is, that the bank held the deeds from the 10th day of January, 1884, until the 1st day of September of that year, without having them recorded. The first consideration touching these deeds is to determine if possible the precise circumstances or conditions under which they were executed. The record to some extent furnishes these conditions. The bank claims that they were taken on the day of their date as collateral security for the indebtedness of Day Bros. & Co., which then amounted to $53,000, and was unsecured. The bank at this time considered Day Bros. & Co. perfectly good, and this was the sole and only reason why they were not recorded. The firm of Day Bros. & Co. had been in business in the city of Peoria ever since the year 1856. There had been frequent changes in the persons composing the firm, but it had grown from small proportions until the firm transacted business to the extent of nearly one million dollars yearly. It carried large stocks of goods' in three large establishments, and had large outside property. For years it had been doing business through the bank, and to all outside appearances was thriving and prosperous. It was indebted to the bank in the sum of $53,000 at this particular juncture. In the exercise of an ordinary business prudence, the bank asked to be secured, and'these deeds were executed as security, with an honest belief on the part of the bank at that time that the firm was solvent and able to pay. The deeds were quitclaims, and there were some prior mortgage liens upon the lands, and these are circumstances tending to show that they were not intended as absolute conveyances, and were not taken in payment of the indebtedness. The consideration expressed on the face of the deeds, with that expressed in the deed to the real estate in the city of Peoria, and the value of the lands conveyed by these deeds, as stated in the record, did not exceed the amount of the indebtedness secured thereby. We have no doubt under all these circumstances, but that at the time of the execution and delivery of the deeds it was the confident expectation and honest belief of the bank, and very probably of the firm, that the indebtedness would be paid and the securities surrendered.
The subsequent relinquishment by the bank of a large part of the consideration expressed in the deeds, and its execution of the written defeasance by which they were to be held as a mortgage only, to secure the sum of $15,000, with interest, strongly corroborate the claim of the bank in this respect. If this was the only suspicious circumstance of fraud tending to show a fraudulent intent or conspiracy to defraud other creditors, it would not have much weight; and' we do not believe that any court, considering the fact as an independent and isolated one, would hold that it was sufficient of itself to establish a fraudulent intent on the part of the grantor and grantee. For the purposes of this case, it must be considered in reciprocal relation with the others heretofore commented on; and viewed in the light that the creditor took a conveyance from an insolvent debtor, knowing of the insolvency, and withheld the conveyance from record for about eight months, it would seem that under such circumstances some very reasonable explanation ought to be given for such an omission to follow the dictates of an ordinary business caution. Whether the withholding of a deed or mortgage from record, as in this case, is a circumstance tending to prove a fraudulent intent as to creditors, has so far not been determined by this court, although it has been the subject of some judicial discussion in other tribunals in cases arising principally in bankruptcy. The view we entertain of it now is, that as an independent and isolated fact, standing alone and disconnected with other suspicious circumstances, it would not be sufficient evidence of a fraudulent intent; but taken in connection with a chain of circumstances, as a link in the chain, it might be regarded as one of those premeditated omissions that lead the mind to an irresistible conclusion that a certain series of acts, either of omission or commission, were deliberate and for a well-defined purpose. If we eliminate the knowledge of the bank of the insolvency of Day Bros. & Co. at the time the deeds were executed and delivered, the withholding of them from the record is satisfactorily explained. We have so far proceeded upon the hypothesis that the bank had knowledge of the insolvency. But having carefully considered all the evidence bearing on this question, as well as the acts of the parties, we are led to the conclusion that at the time of the execution and delivery of the deeds the officers of the bank .did not know or believe that the firm of Day Bros. & Co. was insolvent. The subsequent action of the parties cannot be reconciled on such a theory. Giving the officers of the ' bank credit for ordinary business sagacity, it is not to be supposed for an instant that, with a knowledge of the insolvency of the firm on the 10th day of January, 1884, they would subsequently loan the firm the sum of $30,000. Another bank in the same city advanced the firm large sums of money after that date, with equal opportunities for learning its true condition. A former partner, who had sold out his interest in the firm some years before, indorsed its paper for large amounts .after that date. Such acts as these by the banks, and by the former partner, with a knowledge of the firm’s insolvency, are incomprehensible to the ordinary business mind. We have no hesitation in saying that'the great weight of the evidence is to the effect that at the time of the execution and delivery of the deeds, the bank did not know or believe that the firm of Day Bros. & Co. was insolvent; and in this view, the explanation it offers for withholding the deeds from record is consistent and satisfactory.
IV. The fourth fact alleged and relied on to establish the fraudulent intent is, that after the 10th day of January, 1884, the bank represented to the public that Day Bros. & Co. were solvent, and men of large property. The evidence tending to establish this fact consists of the statements of the resident agents of Bradstreet’s and Dun & Co.’s mercantile agencies. They testify that Stone always, at the interviews they had with him in the years 1882,1883, and 1884, represented the firm as solvent and prosperous; and during the year 1884 he represented the firm was worth, in his estimation, all the way from a quarter to a half-million above its liabilities. They showed Stone a report of the resources of the firm signed by its members, showing a net surplus of over $250,000, and Stone said he thought it was correct. Stone never made any mention of the amount the firm owed the bank, or made any reference to the Kansas land. He was never asked any questions about these things by the commercial agents.
. We have examined the statements made in January, 1882, by L. L. Day, for the firm, and delivered to the resident agent of Bradstreet’s; it contains no allusion to lands in Kansas or Nebraska. Day says in his statement that the firm possesses outside real estate, estimated at the value of $90,000. In the transmitted reports of the resident agent we find no allusion to “outside real estate” after the above date, until the 10th day of September, 1884, when in an additional report he says that the following statement has been made by a party conversant with their affairs. In this statement the Kansas land is estimated at a value of $30,000. This reference to the Kansas land was long after the liabilities of the defendants in error were contracted. In the copies of the reports made by Nettle, the resident agent of Dun & Co., there is no reference to real-estate investments by the firm. The firm is credited with outside investments to the value of $125,000, but there is nothing in the reports indicating the character of the investments.
These statements, made by Stone to the commercial agents in 1882, 1883, and up to the 10th day of May, 1884, are all consistent with his own dealings with the firm, and we. have not much doubt but that at the time he expressed his thoughts —that the expression was induced by an honest belief in the solvency of the firm. The strongest evidence imaginable that he so believed are the facts that the securities he had taken for the indebtedness of the bank had not been recorded, and that he had permitted the indebtedness to largely increase. We are bound to conclude on this state of facts that whatever was said by Stone with reference to the financial condition of Day Bros. & Co. at the various dates of these interviews was the expression of an honest belief. He made ho specific representation regarding the financial standing of the firm. He said he estimated it worth a large amount of money over and above its liabilities; that he thought the statement .it made of its property was correct. He answered general questions in comprehensive terms, without making any special representation on any particular matters connected with the business or property of the firm. He answered according to his honest belief, as exemplified by hi§ own dealings with the firm both before and after the interviews. So that there is an entire absence of evidence either by act or word tending to show that he knowingly made a false representation, or that he made any statement or representation with the fraudulent intent to use the commercial agencies ¿s instruments to accomplish a fraud upon these creditors. There is no evidence in this record that authorizes a court to say that either of the necessary elements of the principle of estoppel, to wit, a representation of material facts, knowing them'to be false, made with the intent that parties dealing with Day Bros. & Co. in the future should be induced thereby to give them credit, is established.
While this disposes of the question of estoppel, we cannot refrain from noticing the character of the evidence by which it is claimed that the creditors were induced to extend credit to the firm by the representations of Stone. These creditors, without exception, state that they were induced to give credit to the firm of Day Bros. & Co. by reason of the regular standing of the house, its general reputation, their dealings with it in the past, the reports of the commercial agencies, inquiries and examinations, and references from other parties. All these things were inducements to extend credit. No one of them testifies that he gave the firm credit, relying on the representations made by Stone to the commercial agents. We have noticed the fact elsewhere, that the bulk of the indebtedness of Day Bros. & Co. to these creditors was contracted after the 10th day of January, 1884. Some stress is laid upon the fact, that if these creditors had known of the conveyance of the Kansas and Nebraska lands, credit would not have been extended to the firm. The truth is, that not one of them had any knowledge that the firm owned such lands, the first reference to these lands being contained in the report of Bradstreet, made on the 10th day of September, 1884, long after credit had been extended. It is safe always to say, that if a creditor knew the exact financial condition of a failing debtor, he would not have extended the credit. This closes our estimate of the facts, and the evidence tending to establish them. The facts shown by this record do not sustain the judgment rendered by the court below.
V. There remain some legal questions to be determined. The first contention is, that the deeds in question are void for want of power in the bank under its charter, to take them for the purposes claimed. (Revised Statutes U. S., §§5187, 5200.) This contention is disposed of so far as this court is concerned, by the case of Orrin v. National Bank, 16 Kas. 341. Under the provisions of the national banking law, the right to take real-estate security for a preexisting indebtedness is expressly granted. At the time these deeds were executed and delivered to Stone, for the benefit of the bank, there existed a bona fide indebtedness from the firm of Day Bros. & Co. to the bank, that had been running for months before the deeds to the real estate were executed as security for this indebtedness, and under these circumstances the bank had the right to take real-estate security. We do not comment on the fact that the deeds were made to W. E. Stone and not to the bank, because if they, were in the name of the bank as grantee, it would make no difference. The deeds were, in fact, executed for the benefit, of the bank.
VI. The next contention is, that the plaintiffs’ right to relief is based upon an express parol trust, and such trust cannot be declared and enforced under the laws of Kansas. It is within the statutes of fraud. Comp. Laws of 1885, cb. 114, §§ 1, 2,3, and the cases of Brake v. Ballou, 19 Kas. 397, and Simpson v. Mundee, 3 id. 72, are cited to sustain this proposition. In the case of Brake v. Ballou, the plaintiff, who was not an actual settler on the Osage diminished reserve, procured the defendant to enter upon a certain quarter-section of land and purchase the same from the government, under a parol agreement that the plaintiff would furnish the purchase-money and all necessary means therefor, and deed it to the plaintiff, in consideration of which the plaintiff was to deed the defendant a certain other eighty-acre tract. The defendant refused to convey, as by the terms of the act of congress, these lauds could only be sold to actual settlers. The plaintiff commenced his action to procure the title to the land from the defendant. This court held that, as this particular contract concerning the purchase and conveyance of land belonging to the United States was in violation of the spirit and words of the statute and in fraud thereof, it could not be enforced in equity, and that no trust resulted. The case is -plainly distinguishable-from the one we are considering. The other citation, Simpson v. Mundee, is a case wherein it is held by this court that the old equitable doctrine of vendor’s lien is repugnant to the general policy of our real-estate law, and does not exist in Kansas. A reference to some other cases decided by this court will dispose of this contention. It is said in the case of McDonald v. Kellogg, 30 Kas. 170:
“In Kansas, every deed of conveyance, whether absolute or conditional upon its face, and whether made to,a trustee or not, if made for the purpose of securing a debt and for that purpose only, is a mortgage.”
(See also the cases of Moore v. Wade, 8 Kas. 380; Kirkwood v. Koester, 11 id. 471; McNamara v. Culver, 22 id. 661; and Bennett v. Wolverton, 24 id. 284.)
The only question in cases of this kind is as to the consideration of the conveyance: whether it is an absolute conveyance for the sum expressed, or given to secure a certain sum; and as we understand, this inquiry is open in all courts. It does not fall within the provisions of the statutes cited, or of the authorities quoted.
VII. The last contention that we shall notice is, that the conveyances are fraudulent and void as against the creditors of the grantor. To state this proposition more concisely, it is claimed that the law is that a conveyance executed by an insolvent debtor to his creditor, absolute on its face, but with the agreement and understanding that it should operate only as a security, is fraudulent and void as to other creditors. It is asserted in the brief of counsel for defendants in error, and strongly insisted upon, that there is an imperative rule of law that declares that when an insolvent debtor in fact makes a conveyance to a creditor, absolute on its face, but with the understanding that it should operate only as a security, such conveyance is fraudulent and void as to creditors who become such after the execution and delivery of the conveyance; that the insolvency of the debtor, the execution of the absolute conveyance, and the agreement that it should be held and considered as a security, are of themselves sufficient evidence of the fraudulent intent, and that when these three things exist and unite in the same transaction, the rule applies. Many authorities are cited that are claimed to support this view, and among them are the cases of McDonald v. Gaunt, 30 Kas. 693, Clark v. Robbins, 8 id. 574, and Wallach v. Wyley, 28 id. 138. There is no color of authority in the cases decided by this court to support such a-claim. One of the cases decided is to the effect that in a general assignment for the benefit of creditors made under the statute, the debtor cannot reserve a portion of the goods assigned for his own benefit. The other two cases are decided on familiar principles, that are not in any respect similar to the rule contended for, and may be dismissed from consideration with the absolute assurance that they do not tend in any degree to support this contention.
The case of Blennerhassett v. Sherman, 105 U. S. 100, is •said to be a leading case establishing this rule. The court finds from the facts that at the time the mortgage in question was given, the mortgagor was insolvent, and the mortgagee knew it; that his credit might not be impaired, the mortgage was purposely withheld from the record; that during this period of concealment, the mortgagee was industriously engaged in sustaining the credit of the mortgagor, and to accomplish it falsely and fraudulently represented him to be worth a million of dollars, and of unlimited credit; that by means of this representation, and the concealment of the mortgage and withholding it from the record, the creditors of the mortgagor were misled, and in consequence thereof had, between the date of the execution and registration of the mortgage, deposited large sums of money in the private bank of the mortgagor, which remained unpaid. Now these facts are found in the case: the debtor is insolvent; the creditor knew it; the mortgage was purposely withheld and actually concealed for fear that it might impair the credit of the mortgagor.All this was done with a fraudulent intent; specific, false and fraudulent representations as to the wealth and credit of the mortgagor; creditors deceived and misled by the representations— all these facts concurring, and all establishing the fraudulent iiitent, both on the part of the mortgagor and mortgagee. Surely that is not this case.
It is probably the law — and it ought to be — that where there is an agreement that the mortgage or conveyance shall be kept off the record for fear that it might impair the credit or hasten the failure of an insolvent debtor, then that such a ■conveyance or mortgage is a fraudulent one as to the creditors; but this does not reach the principle contended for in this case. In the many cases cited, and in the many more that can be found in the reports, there is not one that goes to the extent •claimed. There are cases’which hold that when an insolvent ■debtor conveys real property to a creditor, or gives a mortgage, and the consideration expressed in the conveyance or mortgage, •or the value of the property conveyed, or the amount stated in the mortgage, is in great excess of the indebtedness; andi the creditor knew of the insolvency; and there was an agreement to withhold the conveyance or mortgage from the record,, for reasons beneficial to the mortgagor or grantor; and creditors were misled by such agreement, that the conveyance; was void and fraudulent as against creditors. But our research has failed to find an adjudication in any of the reports., that the execution of an absolute conveyance by a debtor to a creditor, that was intended only to secure an honest existing; indebtedness, is from this circumstance alone fraudulent as to> creditors. When it is connected with other acts, all suspicious; in character, it is often enumerated as one of several things; from which a fraudulent intent can be inferred as a matter off fact; but it is not regarded as presumptive or conclusive off fraud, unless it is accompanied by a number of other omissions; or commissions that have become to be regarded by all courts; as indices of fraud. Under all the circumstances of this particular case, we do not regard the execution and delivery off the conveyances with any degree of suspicion. They were; only a part of a reasonable security for the amount of the indebtedness. They were taken without previous inquiry as to their value, without examination as to their title, and without knowledge of their situation or surroundings, and with the; distinct understanding that they were to be regarded as collateral security, and with the confident expectation on the part, of the bank that the indebtedness secured thereby would be; paid. That they were not taken with any fraudulent intent,, is demonstrated very satisfactorily by the subsequent release.of the bank of their value above and beyond $15,000, for it was the representative of the bank that executed the defeasance,, and first put upon record the fact that the conveyances were,, in effect, a mortgage to secure that sum.
VIII. There is still another view of this transaction to be; taken, that is fairly authorized by the facts established by the-record. We have already several times adverted to the fact that the debts of the firm of Day Bros. & Co. to these defendants in error were contracted after the 10th day of Jan uary, 1884; that these creditors had no knowledge of the Kansas and Nebraska lands until about the 10th day of September, 1884; that the credit was not given to the firm of Day Bros. & Co. by the mercantile firms that are the defendants in error in this action, on account of the ownership of the Kansas and Nebraska lands. These concurrent facts establish the proposition that the defendants in error are creditors subsequent to the conveyances; and that the conveyances could not have been accepted by the bank with the intent to defraud these subsequent creditors, there being no evidence that would warrant even a slight inference that the firm of Day Bros. & Co. intended any such fraudulent action, or that the bank had knowledge of any such intention on their part. The defendants in error, then, are subsequent creditors to the full extent and meaning of the words. The conveyances must be held good as against them, unless there is evidence to show that they were made by the firm and accepted by the bank with the intent on the part or Day Bros. & Co. to contract debts with r J the defendants in error, and to defeat the payment of debts so contracted. This is the law of this state as declared by this court in the case of Sheppard v. Thomas, 24 Kas. 780. See also the cases of Hanson v. Power, 8 Dana, 91; Keeler v. Ullrich, 32 Mich. 88; Whitescarver v. Bonney, 9 Iowa, 480; Morrill v. Kilner, 113 Ill. 318; Silverman v. Greaser, 27 W. Va. 550; Reeg v. Burnham, 55 Mich. 39; Crawford v. Beard, 12 Ore. 447; Hausmann v. Hope, 20 Mo. App. 193; Walker v. Bollmann, 22 S. C. 512.
In the case of Sexton v. Wheaton, 21 U. S. 229, Chief Justice Marshall, speaking of a subsequent creditor, says: “ In this case the title never was in Joseph Wheaton; his creditors therefore never had a right to trust him on the faith of the house and lot.” In this case the title to the Kansas and Nebraska lands never vested in Day Bros. & Co., and these defendants in error had no legal right to rely upon the ownership by the firm of these lands and having no right to do so, they cannot question the validity of the conveyances made by Cob leigh to Stone, because at the time these conveyances were delivered they were not creditors, had no interest in the matter, and because at the time they subsequently became creditors they had no knowledge of the ownership of these lands by their debtors.
IX. We find an existing indebtedness by Day Bros. & Co. to the bank on the 10th day of January, 1884, in the sum of $53,000; that this indebtedness was secured by the conveyances made on that day of the Kansas and Nebraska lands, and by other property; that the conveyance of the Kansas laud was made by Cobleigh, and received by Stone as security only; that Stone and the bank had an honest belief that Day Bros. & Co. would pay, and for that reason alone did not record the conveyances; that the bank had no knowledge of the insolvency of Day Bros. & Co. on the date of the delivery of the conveyances; that on the 23d day of September, Day Bros. & Co. were indebted to the bank in the sum of $83,000; that this indebtedness was secured by a mortgage on L. L. Day’s homestead in Peoria, for $18,000; $20,576.30 was agreed to be paid by Chas. B. Day; $30,000 was to be collected and retained from commercial paper of customers of the firm, which paper was delivered to the bank; the balance, $15,000, was to be considered secured by the conveyances of the Kansas land, and Stone, in pursuance of the original agreement, that day executed a written instrument reciting the fact that the conveyances were to be considered as security for the sum of $ 15,000, with interest, and when that sum was paid, the lands were to be reconveyed to Cobleigh, the grantor; that sufficient of the commercial paper was collected to pay the $30,000, and the balance of the paper not necessary to be used by the bank was subsequently turned over by the bank to the assignees of Day Bros. & Co., amounting to over $9,000, and this applied to the benefit of creditors; that there cannot be deductively inferred from these facts that there was a fraudulent intent on the part of the bank and its officers to perpetrate any fraud on the other creditors of the firm; that the bank, as a vigilant creditor, had the legal right to amply protect itself against loss, and to make such arrangements, and take such a class of securities, as would enable it to speedily realize the indebtedness to the bank; that these various acts of the bank are not welded together by a corrupt purpose to aid the firm of Day Bros. & Co. in hindering, delaying or defrauding their other creditors; but that these transactions occurred in natural succession, and in a fair strife against loss.
We think the judgment was wrong — both technically and substantially wrong; and we recommend that it be reversed, and the cause remanded with instructions to the court below to grant the plaintiffs in error a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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|
Opinion by
Holt, C.:
On Sunday morning, September 20, 1885, John W. Jones, the defendant, killed Edward H. White, in Shawnee county. The defendant was tried in November following, in the district court of said county, found guilty by a jury of murder in the first degree, and upon March 31, 1886, the court entered judgment accordingly. Defendant appeals.
The record discloses substantially these facts: Jones was a tenant of White, and there had been some difficulty between them concerning the terms of a lease under which he held, and more especially about the trespassing of White’s stock in Jones’s garden-patch and cornfield. There had been considerable bad blood, some threats made by both parties, and several altercations between them. Early in the morning in question White missed a heifer from his herd, and went to Jones’s house, which was about fifty or sixty rods south of his house, where he found her. Of what occurred after White first met Jones that morning, we have the testimony of the defendant and of Edward White, a ten-year-old son of the deceased. Jones says he was near his stable feeding his horses, and as White passed by after his heifer, he abused him; claimed he was responsible for the heifer getting into the cornfield by not keeping his fences properly repaired, and threatened him; that he said little, if anything, in reply. On the other hand, White’s boy states that Jones first called to his father, but that they were so far away from him that he could not understand what was said between them. Both agree that White passed on, found his heifer, and was driving her back to his house. The lad says that the heifer ran out of the road and his father followed her; while Jones states that after driving the heifer past his place he must have turned around and come back to the stable. The testimony in the district court was evidently gi%ren with reference to a plat before the court; that plat is not here, nor a copy of it, but from the record it seems that Jones’s stable, near where this man was shot, was four or five rods from his house in a northeast direction, and that the hen-coop hereafter mentioned was south of the house and southwest of the stable. After this talk between White and Jones, while White was hunting after his heifer, Jones went to his house and got his musket, brought it to the stable, and set it outside of the door. Concerning the immediate act of killing, young White states that as his father was following the heifer, Jones ran out and got upon the hen-house, and shot from the roof at his father, who was some distance away. From the testimony of the boy, it appears that the parties must have been at least sixty feet apart, and may have been one hundred. He states that after the defendant had shot, he jumped down off of the hen-house and ran and struck his father two blows with the butt of his musket, after he had fallen. The defendant on the other hand, testifies that he was at work at the stable, and White having driven his heifer past Jones’s house toward his own, turned and came back to him at the stable, and the first he knew of his presence was a threat from White; that he immediately stepped around the corner of the stable and got his gun; that White threatened to kill him, and was coming toward him with his hand in his coat pocket, and while he was advancing, and within seven or eight feet of him, he shot him, and, grasping his musket by the barrel, struck him before he fell. The gun-shot wound was in the left side, near the hip bone, and entered his body within a space of two inches, with three or four scattering shots around the edge of the hole; the shot used were double B’s. White never spoke after he was hit, and died almost instantly. Some of the threads of the coat of deceased were driven into the wound, and there was some testimony, though not very satisfactory, tending to show that the garments of White were powder-burnt.
At the trial Joel Huntoon, a civil engineer, testified that the defendant upon the day of the homicide fired a musket from the hen-house to a paper target placed where the deceased was shot; this was produced in court and introduced in evidence, but after all the evidence was in, the court excluded it from the jury. The witness testified that the musket used was similar to the one with which defendant shot deceased; it may have been the same one.
The defendant then offered George B. Palmer and A. J. McLaughlin for the purpose of showing from the nature and size of the wound the approximate distance that Jones must have been from White at the time of the shooting. They were not allowed to testify on that point. The defendant claims that the rejection of this testimony was error. He claims that this is expert testimony; the state denies. McLaughlin testified that he was a manufacturer and trader in breech and muzzle-loading guns; that he was a gunsmith by trade, and had been in the business for thirty years; that he had experimented with guns and muskets such as the one used by defendant; that it had been a study with him and with men in his business to find how guns could be manufactured to throw shot compactly for a distance, and that they tried to manufacture improved guns which would increase the distance they would thus carry a load of shot; that by experiment and study he had obtained a definite and accurate knowledge of how far shot-guns of all kinds would carry without scattering. He further stated that he had sufficient experience to tell from the character of the wound about the distance the gun discharged would be from the person shot; that he had experimented himself and seen others experiment with shot-guns and muskets when loaded with powder and “double B” shot, to see how far they would carry without scattering. He was then asked:
“Q,. From such experiment and observation are you able to tell with any degree of accuracy how far such a gun would throw shot without scattering beyond what would be a distance two inches in diameter, with four or five shots just around the edge of the space in diameter ? A. I can state the distance within which such a shot would necessarily be made.
“Q,. State what the distance would be.” [Objected to on the ground that said question is one of fact for the jury, and not such an one as requires the opinion of an expert; the court sustained the objection, defendant duly excepting.]
Other questions of like character were asked, and the question was fairly presented to the court.
We believe that the evidence sought to be introduced by these questions was competent, and that its rejection was error. It was material testimony in this case; the testimony of Jones, the defendant, and this lad, were upon two theories of the case and were distinctly inconsistent. One had testified that the parties were only seven feet apart at the time of the shooting, while the other had located them from sixty to one hundred feet from each other. It became a matter of vital importance to determine which account of the homicide was truthful — that of the boy, or of the defendant.
One of the important facts to be found by the jury was the distance the defendant and deceased were from each other when the fatal shot was fired. The determination of that disputed question would have in this case very great importance in determining whether the testimony of the boy White or of the defendant should have been given greater credence. If the boy’s testimony was true, then the defendant was guilty of murder in the first degree beyond a reasonable doubt; and on the other hand, it is equally plain if the defendant told the truth he certainly was not guilty of that degree of homicide.
If there is any rule known by those who have made the use of firearms a special study, showing at what distance shot could be thrown compactly and at what distance they would scatter, it should have been given to the jury, either as a corroboration «or refutation of either the defendant or of the lad White.
The theory of the state is, that this testimony was not expert testimony; that the jury was as competent to determine the distance the parties were apart when deceased was shot as the gunsmith, and cite a long list of authorities to support its contention. We have examined all that have been cited, and believe that no one of them is applicable to this case; they are all based upon the question of the relative position of the parties to a homicide, showing from what direction the shot was fired, and whether the assailant was at the front, side, or back of the party killed. None of these authorities reach the question here in dispute. It is not whether Jones was at the left side of White; that he was on higher ground or lower ground, or that he stood north, south, east, or west of the party killed, but how far was he from him? If that was a matter that could be determined by an experienced man from the size of the wound, then this testimonjr would not have been expert testimony. On this subject Mr. McLaughlin testified that he and others in his trade had made it a study to devise methods for shooting shot a long distance compactly, and that by reason of his study and observation he was able accurately to state how far shot could be thrown from the musket in question. We are of the opinion that very few men have any definite or accurate idea of the manner and distance shot would scatter when fired from a gun. Of course, all know that they are discharged in a compact body from the muzzle of the gun, but how far they go before they begin to separate, and the extent, or the relation of the distance from the gun to their separation from each other, is a subject upon which one, without special experience and study, could not even make an intelligent guess; in other words, this is a question of science, to be ascertained by study and experience, and does not come within the common knowledge of men.
We recommend that the case be reversed, and remanded.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring.
Johnston, J., dissenting. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Douglas county on July 29, 1886, by George W. White against Kate M. White and Susan E. Spencer, for the partition of certain real estate, less than one acre, situated in the city of Lawrence, in said county. The plaintiff claimed an undivided one-sixth interest in such real estate. The case was tried before the court without a jury, and the court made special findings of fact, and rendered judgment against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court. The property belonged originally to Thomas H. White, who died intestate on April 11, 1872. The plaintiff in this action was and is his oldest child, and the son of the deceased’s first wife. The defendant Kate M. White was the fourth wife of the deceased, and was married to him in 1868. The defendant Susan E. Spencer disclaimed having any interest in the property in controversy, and it will therefore not be necessary to mention her name again. The deceased left two other children, to wit: Mary E. White, the daughter of his second wife, and William IT. White, the son of his third wife. These two children were minors at the time of his death, but they became of age before this action was commenced. Since arriving at their majority they conveyed their interests in the property in question by quitclaim deeds to Kate M. White. The property in question was the only property left by the deceased not necessary to pay his debts and to pay the expenses of his administration, and it was and is worth about $5,000. From August, 1865, up to September, 1867, the deceased advanced to the plaintiff the sum of $2,659.50, which was intended and understood at the time to be an advancement out of the deceased’s estate. After the death of the deceased, the defendant, Kate M. White, paid the taxes on the property in controversy amounting to about $800, made improvements thereon amounting to about $927, and kept up the necessary and ordinary repairs amounting to about $325. The property in controversy was the homestead of the deceased and his family at the time of his death, and has since continued to be the homestead of his widow up to the present time. The plaintiff never resided upon the property. Some of the above-mentioned facts are controverted by the plaintiff, and he further claims that even if they are all true, still the court below committed error in rendering the judgment which it did render. The plaintiff’s counsel makes the following points in this court, to wit: First, that under the statutes of this state concerning the division or partition of the homestead, an advancement to an heir cannot be set up or shown. Second, that the widow of the deceased cannot in any event derive any benefit from an advancement made to an heir. Third, that in this case no advancement has been shown.
The counsel for the plaintiff makes a very ingenious argument with respect to his first and second points, but still we cannot agree with him. Sections 26 and 27 of the act relating to descents and distributions read as follows:
“Sec. 26. Property given by an intestate, by way of advancement to an heir, shall be considered part of the estate, so far as regards the division and distribution thereof, and shall be taken by such heir toward his part of the estate at what it would now be worth, if in the condition in which it was so given him.
“Sec. 27. But if such advancement exceeds the amount to which he would be entitled, he cannot be required to refund any portion thereof.”
Section 26, above quoted, is general in its terms with respect to the division and distribution of the intestate’s estate, and we think it is equally general in its scope and operation. It is intended to have application to all divisions and distributions of the intestate’s estate among all persons who are authorized to take from him under the statutes. It is intended to have application to all divisions and distributions made under §§ 5 and 6 of the statute, as well as under §§ 8 and 18 to 25, and under all the other sections of the statute, and will modify and control their operation accordingly; and it will certainly apply to widows as well as to all other persons who may take distributive shares from the intestate under the statutes ; and under the statutes and in cases like the present, the widow’s share is one-half of the estate, and the children take the other half in equal shares. In the present case, and aside from the advancement where the estate is worth $5,000, and where there is a surviving widow, and where there are three surviving children, the widow’s share will be in value equal to $2,500, and each child’s share will be in value equal to eight hundred and thirty-three dollars and thirty-three and one-third cents; but as the plaintiff in this case has already received much more than his distributive share, the share that would otherwise go to him must be divided among the others according to their respective interests in the estate; and as the widow’s share is equal to three times any one of the children’s shares, she should receive three-fifths of the plaintiff’s share, or an amount equal to $500, and each of the children, other than the plaintiff, should receive one-fifth of the plaintiff’s share, or an amount equal to one hundred and sixty-six dollars and sixty-six and two-thirds cents; or, in other words, the widow should receive from the estate an amount equal in the aggregate to $3,000, and each one of the children except the plaintiff should receive an amount equal in the aggregate to $1,000. Counting $1,000 for the plaintiff’s share would make the estate, for the purpose of division and distribution, worth $6,000 in value. The plaintiff has already received more than $1,000, and more than his full share of the estate, by way of advancement. But the widow in this present case owns the entire interest of the two children other than the plaintiff, and hence she should also receive their share of the estate; or, in other words, she should receive, including her own share and their shares, the entire estate left for division and distribution. But it is claimed that the widow cannot be allowed to have the interests which she purchased from the two children enhanced in amount by virtue of the advancement made by the intestate to the plaintiff'. This might be true in some cases, as where the widow should purchase only a specific and definite interest from one of the children, as, for instance, a one-sixth part of a particular piece or tract of land; but that is not this case. In this case it seems that the widow purchased the entire interest of each of the two children in this property, and this property was all that was left belonging to the estate, and all that could be divided or distributed among the widow and children. There might in some cases be several tracts of land and much personal property, instead of only one piece of land, as in this case, and in such cases it might be that the benefit to be derived from the advancement should be applied to all the tracts of land and to all the personal property, and should not be confined to any one particular piece or article of property; but none of these cases is the present case. In the present case, and in this present action, the entire estate, real and personal, is the subject of consideration, and there is nothing outside of the property now in controversy with respect to which any question of ad- van'cement or of division or distribution can have any application. There is nothing outside of the property now in controversy which the advancement can affect in the least. So far as the decisions of this court have any application to this case, we think they support the views herein expressed. (Dayton v. Donart, 22 Kas. 256; Gatton v. Tolley, 22 id. 678; Stratton v. McCandliss, 32 id. 512; Hafer v. Hafer, 33 id. 449; Hafer v. Hafer, 36 id. 524; Vining v. Willis, 40 id. 609; same case, 20 Pac. Rep. 232.) These decisions, so far as they have application to this case, are to the effect that when the widow marries again, if she should so marry, or when all the children arrive at the age of majority, the land occupied as a homestead shall be divided in the same manner as though it had never been a homestead.
The plaintiff also objects to the testimony of Dr. R. Morris, the administrator of the estate, who testified, among other things, as follows: “That although the estate was not finally settled, the other children had received no distributive share as heirs, and that there was nothing in his hands to distribute.” This testimony was objected to upon the ground that it was not the best evidence, and that the records of the probate court were. We think that the evidence was competent and sufficient for the purpose for which it was introduced. It simply shows that the administrator himself had not distributed anything to the two children other than the plaintiff, and that there was nothing in his hands to be distributed. These were facts independent of the records of the probate court, and there was no intention by this evidence to show what was contained in such records, or what was not contained therein. It must also be remembered that the intestate died in April, 1872, and that this testimony of the administrator was not given until in May, 1887; hence it tended to prove that there was no other property at that great length of time after the death of the intestate to be divided or distributed or to be affected by the intestate’s advancement to the plaintiff.
The plaintiff also claims that there was not sufficient evidence to prove that any advancement had been made by the intestate to the plaintiff. Now the record brought to this court does not purport to contain all the evidence, and how much or how little there was upon this subject we cannot tell. The court below found that such an advancement had been made, and in favor of the finding and decision of the court below it must be presumed that there was ample evidence to prove the advancement.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The title to the office of county treasurer of Kiowa county is in controversy between the parties to this action. ' Both claim under elections by the people — the plaintiff under one which was held in November, 1888, and the defendant under one held in November, 1887. The result of this action depends upon the eligibility of the defendant to be chosen and to hold the office under the election of 1887.
The county of Kiowa was re-created and its boundary-lines established by legislative action in February, 1886, and in the following March a temporary organization was effected through executive action. That organization was completed as the law provides by a first election, held on May 11, 1886, when a full complement of county officers were chosen. The defendant, BT. BE. Patten, was then chosen for county treasurer, and immediately thereafter he gave a bond and entered upon the discharge of the duties of the office. At the general election held in November, 1886, the defendant was reelected to serve for the term ending in October, 1888, and within the time prescribed by law he filed a new bond, took the usual oath of office, and continued to discharge the duties pertaining to the office. At the general election in November, 1887, the defendant came before the people again for reelection, and received a majority of the votes cast at that election for county treasurer, and upon a canvass of the votes he was declared to have been, elected for the regular term, beginning the second Tuesday of October, 1888. At the expiration of the term ending in October, 1888, the board of county commissioners of Kiowa county, proceeding upon the theory that the defendant was not eligible to a third election, declared the office of county treasurer vacant, and appointed one C. F. Mingenback to fill the vacancy. He duly qualified as county treasurer under the appointment, and demanded the office of the defendant, who refused to deliver the same to him. At the general election in November, 1888, the defendant and two others were candidates to fill the vacancy claimed to exist on account of the incapacity of Patten to hold another term, and at that election the plaintiff received a plurality of all the votes cast. The electors of the county participated generally in this election, there being upwards of 1,000 votes cast for the office of county treasurer. The county board canvassed the result of the election, and declared that the plaintiff, G. W. Davis, had been duly elected to fill the vacancy in the office of county treasurer for which the appointment had theretofore been made. He at once demanded the possession of the office, but the defendant declined to deliver the possession to him for the alleged reason that there was no vacancy in the office, and that the election of November, 1888, was without authority of law. He claimed that he was entitled to hold the office until the expiration of the regular term, which ends the second Tuesday of October, 1890.
It is clear that the plaintiff is entitled to the office. The defendant was and is ineligible to be chosen or to hold for the present term. The constitution, in § 3 of article 9, expressly provides that no person shall hold the office of county treasurer for more than two consecutive terms. The defendant has been in the office continuously from May 11, 1886, until the present time, and he is therefore serving the third consecutive term. The term of county officers is limited by the constitution to two years, and the legislature has prescribed when the terms shall begin and end. The regular elections of county treasurers are required to be held in the odd years, and the term begins in October of the even years. Now the defendant has served a part of the regular term ending in October, 1886, all of the term ending in October, 1888, and is now attempting to hold the office for another term, which ends in October, 1890. If he is permitted to hold the office during the present term, he will have held consecutively two full terms and about six months of a third term. This would be a plain violation of tbe constitution. It is true that he had not served two full terms, or four years, at the expiration of the term which ended the second Tuesday of October, 1888, but to allow him to hold another term would extend his service beyond the constitutional limit. This subject was before the court in Horton v. Watson, 23 Kas. 229, and a view directly contrary to that claimed by the defendant was there expressed. In delivering the opinion, Mr. Justice Valentine said: “The constitution, of course, does not mean that the county treasurer may hold the office for four years; for if it did, then Watson might have held said office, not only during said intermediate space of time, but also for nearly nine months of said third term. The constitution says two ‘terms/ not four years, and that the treasurer shall not hold the office ‘for more than two consecutive terms/ Now if he should hold the office for a part of one term and then for the whole of the next term, he could not be eligible to be elected for still another term; Jor that would give him the office ‘for more than two consecutive terms.’ ” That statement of the law exactly meets the claim made by the defendant in this case. He has held the office for a part of one term, the whole of the next, and therefore was not eligible to be elected for still another term. It is contended by the defendant that the first term or period of service from May 11,1886, to October, 1886, is not a term within the meaning of the constitution. He says: “Where a person has held the office for two consecutive terms, as fixed by the legislature, then such person would not be eligible to a third term. But such holding must be during a period between two regular terms; that is, there must have been a preceding term as fixed by statute, and of course one following, the third term, to which the officer would be ineligible in case of his election to the same; and in this case before said constitutional provision could apply, defendant must have held the office for a part of an unexpired term and then the whole of the succeeding term.” And he cites Haggerty v. Arnold, 13 Kas. 367, to sustain his claim. That case does not strengthen his position. It is immaterial whether the period of time from May 11 to the second Tuesday of October be called an “interregnum” or an exceptional term. Whatever it may be designated, it is a holding of the office which when added to two regular terms would exceed the constitutional limit of continuous service. In the case cited, it was held that the constitutional provision limiting the duration of the terms of county officers to two years did not prevent the legislature from enaoting that the terms should begin and end uniformly throughout the state, and that when a new county was organized the officers chosen at the first election should hold until the next general election, and not for two years from the time they happened to be so chosen. Nothing in the decision, however, sanctioned the idea that an exceptional term or other period of service could be added to the constitutional limit restricting the continuous service of a county treasurer to two consecutive terms. There is a general provision that county officers shall hold their offices for a term of two years, and until their successors shall have qualified; but notwithstanding this provision, it was held in Horton v. Watson, supra, that it would not operate to extend the limit of service of a county treasurer beyond the two consecutive terms. When that time expires his right to longer hold the office absolutely ends, although his successor may not be ready to assume its duties. If he cannot hold it for a few days at the end of the period until his successor qualifies, how can six months be added to the limitation at the beginning of his time of service? The object of the constitutional restriction, as stated in Horton v. Watson, “ was to require him to go out of the office for a time, and to deliver to another all the funds, books, papers, etc., belonging to the office, so that a full, complete, honest and final settlement could be made with him.” To permit the defendant to hold his office until October, 1890, would be a palpable violation of both the spirit and letter of the constitutional provision. He was not eligible to be elected, nor was he entitled to hold the office for the term commencing the second Tuesday of October, 1888.
Judgment must therefore be given in favor of the plaintiff, as prayed for in his petition.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action in ejectment, commenced in the district court of Rooks county on the 4th day of November, 1886, by the defendant in error against the plaintiffs in error, to recover the possession of one acre of ground in the northwest corner of the northeast quarter of section 35, township 9, of range 18, particularly described by metes and bounds. The quarter-section of land was originally taken under the provisions of the homestead act, by one James McCarty, who had entered into a verbal agreement with Markham & Byers, whereby they were to have the possession of the acre of land for the purpose of erecting a store building, and conducting a general mercantile business. He also agreed with them that when he obtained the title to the quarter-section of land from the government, he would convey them the acre upon which their building was located. McCarty relinquished his homestead rights in favor of Dr. P. M. Frisbie, who took possession of the land and occupied it as a homestead under the laws of the United States. When Frisbie obtained the possession, he found Markham & Byers in possession of the acre of land, and they had constructed a building thereon. It is alleged that a part of the consideration of the relinquishment of McCarty in favor of Ur. Frisbie, was, that Frisbie should continue the agreement with Markham & Byers. After this the plaintiff in error, Weeks, purchased the building of Markham & Byers, and such possessory interest as they might have in the acre of ground, and Weeks sought out Frisbie and entered into the same agreement with him that Markham & Byers had with McCarty. Weeks went into possession of the building and the acre of land in 1879, and was in possession at the time this suit was instituted. In the meantime Ur. P. M. Frisbie died, leaving a widow, M. C. Frisbie, and certain adult children. Under the provisions of the congressional homestead law, the widow is granted the right to take the land as a homestead, and she, at the proper time, made application to the local land office to prove up on this quarter-section of land. She obtained a final receipt from the land office. Her right to make such proof was contested by Chas. Weeks by way of a protest, because before this time she had denied that Weeks had any right in the acre of land, and had refused to recognize the validity of her husband’s agreement with Weeks. Before the commencement of this action, Mrs. Frisbie had commenced an action of unlawful detainer against Weeks before a justice of the peace. This case was tried before the justice, then appealed to the district court, and there decided against her. At the time this action was commenced, the protest of Weeks against her right to make final proof of the homestead was on file in the general land office, and was undetermined. After obtaining the final receipt, Mrs. Frisbie conveyed the acre of land in controversy to Wm. A. White, who brings this action.
The trial was had in July, 1887, before a jury. After all the evidence had been heard, the court instructed the jury that upon the law and evidence in this case, the plaintiff, W. A. White, was entitled to a verdict in his favor. The jury returned a verdict in favor of White, and a judgment was rendered in his favor for the recovery of the possession of the acre of ground. There are numerous exceptions saved to the rulings of the trial court, on the admission and rejection of evidence; to the overruling of the demurrer of the defendants below to the plaintiff’s evidence; and to the overruling of the motion for a new trial.
I. It is not disputed by counsel for plaintiffs in error but that this court has decided in the cases of Brake v. Ballon, 19 Kas. 397, and Mellison v. Allen, 30 id. 382, that a contract made for the sale of land being held under a homestead entry under the act of congress is void, if the contract is entered into prior to the time of acquiring title thereto by the homesteader. It is also conceded that a court of equity would refuse to enforce the specific performance of such a contract. It is claimed, however, that this is not such a case; that the pivotal question is here: “Have Weeks and family any such interest in this land, by reason of their occupancy of it, as will be respected, recognized and enforced by the courts of this state ? ” We say not. From the record it appears that Weeks made such an agreement with Frisbie in his lifetime, as Markham & Byers had with McCarty, and this court says that no such agreement can be made, and hence Weeks acquired no right to the possession of the land by virtue of such a promise by Frisbie. The utmost that can be said in favor of Weeks is, that he received permission of Dr. Frisbie to occupy this acre of land; that his. occupation was a permissive one, and even this is of very doubtful validity. If it was intended to be temporary, it might be sustained; if a permanent occupancy was intended, whether exclusive or subordinate to that of Frisbie, it could not be sustained in accordance with the scope and effect of the decisions of this court. It would be but a pretense; it would call a sale permanent occupancy; it would violate the spirit, if not the letter of the congressional homestead law. It may be safely asserted that Markham & Byers, or Weeks, obtained no interest in the land or no legal right of occupancy of it by these agreements with McCarty and Frisbie that they could enforce, or that they could assert in defense to any action brought to dispossess them. See the very recent cases of Whittaker v. Pendola, 20 Pac. Rep. 680, decided by the supreme court of California, erad U. P. Rly. Co. v. Kennedy, 20 id. 696, decided by the supreme court of Colorado.
II. It is said that this land was not subject to homestead entry by Dr. Frisbie; that at the time he took possession of it, he found Markham & Byers, the vendors of "Weeks, who succeeded to all their rights, in the sole possession and exclusive occupancy of this acre of land. And as they were in possession claiming an interest, and as he had agreed to recognize their rights, he did not take the land for his own exclusive benefit as the act of congress requires, and hence the rule laid down by the supreme court of the United States in the cases of Atherton v. Fowler, 96 U. S. 513; Hasmer v. Wallace, 97 id. 575; Worth v. Branson, 98 id. 118; Quinby v. Conlan, 114 id. 420; and Grower v. Fletcher, 116 id. 380, applies. The rule announced in these cases is this: “That no right of preemption can be established by a settlement and improvement on public land where the claimant forcibly intruded upon the possession of one who had already settled upon and improved the land.”
These cases have no bearing upon the questions discussed in this case. Weeks is not claiming an independent right as a homesteader to this acre of land; he claims in subordination to the rights of Dr. Frisbie. The theory of counsel for the plaintiffs in error must be, that Mrs. Frisbie succeeded to the rights and is bound by the agreements of her husband in his lifetime respecting this homestead. We think this is a mistaken view of the homestead act. She takes in her own right at the death of her husband, and not as his heir. If he had the legal right to obligate himself with respect to the possession of any portion of his homestead — and this is very doubtful — all his agreements ceased with his death. The widow with adult children, who then has the best right to take the land as a homestead, takes it independently and for herself, and is not bound by any agreements her husband made in his lifetime respecting it. As long as there is a dispute about the possession of a tract of government land as a preemption or homestead right, or as long as there is a contest over or dispute about whether the title to a tract of land has passed from the government, all such questions are primarily to be determined by the federal authorities; but when the title once passes from the government, all questions about possession, and all subsequent questions about title, are for the determination of the courts of the state within which the land is situate. The usual duplicate receipt of the receiver of the land office is declared by our statute to be proof of title equivalent to a patent against all but the holder of an actual patent. (Code, § 383.) Mrs. Frisbie has such a receipt, and this provision of the code cannot be evaded or suspended by proof of an agreement such as was entered into between Frisbie and Weeks, or by the assertion of a contest as to whether Mrs. Frisbie had the right to subject this quarter-section to a homestead entry. We give the receipt the legal effect declared by the code, and the inevitable result is, and must necessarily be, that the grantee of the holder of the receipt must prevail in an action to recover possession against those who rely on such defenses. We think the court instructed the jury right, and that all other alleged errors are immaterial.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The reasons urged for the exclusion of the evidence are, first, that the same was irrelevant and immaterial, because not within the issues in this case ; second, that when the case was in the court of appeals, defendant’s attorneys admitted-in their brief, filed in that proceeding in error, that the defendant was the owner of the electric-light plant at the time of the fire. In support of the first contention, it is urged, first, that the plea of contributory negligence, contained in defendant’s second defense, was in effect an admission that defendant caused the damage complained of ; that to deny defendant’s negligence is inconsistent with the plea of contributory negligence on the part of the plaintiff; that there could be no contributory negligence on the part of the plaintiff without the antecedent negligence on the part of defendant. In the language of the defendant in error, “the plea of contributory negligence is in the nature of a plea of confession and avoidance, and, if this be true, then the defendant is estopped from denying its identity as the party properly sued.”
This raises a novel and important-question in our practice. It will be observed that the defendant’s answer contained a general denial. This, standing alone, would have put the plaintiff upon proof of all of the material allegations in her petition. One of these allegations was that the defendant’s negligence was the cause of her injury. She was thereby required not only to establish negligence, but to connect the defendant' with such negligence, by showing its ownership of the' electric-light plant at the time of the injury. (Kansas Pac. Ry. Co. v. Searle, 11 Colo. 1, 16 Pac. 328; Jackson v. Feather River Water Co., 14 Cal. 19 ; Schular v. Hudson River Rail Road Company, 38 Barb. 653 ; Greenway v. James, 34 Mo. 328.) This she sought to do in mak-j ing her case by introducing evidence that the defendant was the owner of the electric-light plant at that, time. This denial, standing alone, would not only, require this proof at the hands of the plaintiff, but, per contra, permit the defendant to disprove this mat erial matter. (Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196.)
It will be further observed that the defendant in its second defense, while still denying generally, says that “if plaintiff was in anywise damaged,” then such damage was occasioned by the contributory negligence of the plaintiff or her agents. We do not think this claim inconsistent with the claim that the injury was not committed by the defendant, or occurred through its negligence. The defendant in error cites various authorities in support of her claim. They are strongly stated in a citation from the Encyclopedia of Pleading and Practice, volumes, page 11, as follows :
"The plea of contributory negligence is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that plaintiff was guilty of negligence which contributed to his injury.”
We are not ready to grant that the authorities cited fairly support the law as thus laid down, though remarks obiter dicta contained in some of them probably do. However, immediately following this quotation is the statement: "But this is not the rule in those states whose codes permit the defendant to set up as many defenses, whether of law or of fact, as he may see fit.”
Our statute (Gen. Stat. 1901, § 4528) permits the defendant to " set forth in his answer as many grounds of defense . . . as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” Notwithstanding this provision, the pleader may not rely in the same plea on absolutely inconsistent defenses. He cannot admit and deny in the same breath. He may, however, so adapt his pleadings as to meet the possible conditions and. contingencies of the case that his opponent may prove. He may say: “I was not negligent. Iam wholly innocent in that matter. It is possible, however, that you may be able by your indirection, or my misfortune, to satisfy the jury that I am at fault; if you do, I shall assert that the injury was occasioned through your contributory negligence.” Or, he may say: “If there was negligence, which was the cause of your injury, I was not its author,” and, at the same time, say: “If you were injured by the negligence of any one, you are not entitled to relief, for you contributed thereto by your negligence.” It certainly would be a very great hardship to a defendant who, knowing that he was not negligent, and knowing that the' plaintiff was, to compel him, at his peril, to elect which of these defenses, equally good, he should adopt. These defenses are not inconsistent. The truth of either by no means implies the falsity of the other. They may be used for the purpose of presenting the exact facts in a given case.
Beyond question, a defendant might take advantage of plaintiff’s contributory negligence; should such be developed in the making of plaintiff’s case, even though the defendant had pleaded nothing but the general denial. It would be a queer rule that would deprive him of this, had he added to such general denial a plea of contributory negligence. The plea of contributory negligence, standing alone, would be one in avoidance, but it cannot be said to be one in confession, where accompanied by a general denial. In Louisville & Nashville R. R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84, at page 724, the law was announced as follows:
“A denial of the negligence charged, or plea of not guilty, although pleaded separately, repels all pre sumption of confession which- arises from the plea of contributory negligence when pleaded alone.”
In Cole v. Woodson, 32 Kan. 272, 4 Pac. 321, which was an action for slander, where defendant had denied, and also pleaded, the truth of the slanderous words, this court said, at page 276 :
“It would certainly be a great hardship to a defendant who has been sued for slander to be required to admit that he had used the alleged slanderous words, when in fact he may never have-used them, in order that he may be allowed to show that such words are in fact true. And it would equally be a great hardship to him to be required in effect to admit that the' words are false and slanderous, when in fact they may be-true, in order to be allowed to make the defense that he never used such words. Our statutes do not tolerate any such unjust rules, but allow a defendant to set forth as many defenses as he may have, which, in slander cases, may be that he did not úse the words charged, and also that the words are true. And it makes no difference what the common law may have been, or what may have been decided by courts in other states, where their statutes are different from the statutes of Kansas. The statutes of Kansas must govern in actions originating and instituted within the borders of Kansas, and where .they are clear and explicit, we need not look any further.”
In Bell v. Brown, 22 Cal. 671, at page 678, tha court, commenting on the provisions of a statute like our own, on a right it gives a defendant to set up all his defenses, said:
“It is an absolute right given him by law, and the principle is as old as the common law itself. He may fail to prove one defense by reason of the loss of papers, absence, death, or want of recollection of a witness, and yet he. ought not thereby to be precluded from proving another equally sufficient to defeat the action.”
In Treadway v. The S. C. & St. P. R. Co., 40 Iowa, 526, the law was laid ddwn in the syllabus : “An admission in the nature of a confession and avoidance in one count of an answer, does not operate to admit matter formally denied in other counts.” In Weaver v. Carnahan, 37 Ohio St. 363, it was held that a defendant, when sued to recover the value of services rendered, may deny that the services were rendered, and also allege that, if rendered, their value was less than the amount claimed. For cases holding analogous views, see Encyclopedia of Pleading and Practice, volume 1, page 857.
It is further contended by the defendant in error that this evidence was not within the issues in the case, for the reason that the allegation of the petition as to the agency of the parties who placed the wires in plaintiff’s building for the defendant, not being denied under oath, must be admitted as true. This allegation was :
“The defendant, its officers and agents thereunto duly authorized and empowered, entered into and contracted with the said plaintiff whereby the said defendant was to put and place lights in said barn for the use of the plaintiff in and about such business.”
This is an allegation of action, not of agency. It is nothing more than an averment that the defendant did these things.
“A failure to deny under oath an allegation that a principal through his agents did a certain act is not an admission under the statute (requiring the denial to be under oath) that the principal did the act complained of.” (16 Encyc. Pl. & Pr. 910, note 2 — citing Mo. Pac. Rly. Co. v. Finley, 38 Kan. 550, 16 Pac. 951.)
It is further insisted that the court was right in excluding this evidence, because the defendant had estopped itself from denying that it was the owner of the lighting plant at the time the injury occurred by its admissions in the brief referred to in the statement of facts, and because at no prior time through the progress of this litigation, which commenced in May, 1893, had it made ‘any such claim or offer of proof. We know of no ^principle of law which would operate as an estoppel .on the defendant as thus claimed. The admission contained in the brief of plaintiff in error filed in the court of appeals was one for the purposes of that case, made, presumably, because the record in that case showed it to be so. Had it been made absolutely, and as a matter of fact, without regard to what the record there showed, there is nothing about it to operate as an estoppel — nothing appearing that the plaintiff ever acted or relied upon such admission to her detriment. It would hardly do to hold that a chance or mistaken admission, accidentally made, as to facts, would forever preclude the party from showing what the facts actually were, and, besides this, the matter pending before the court of appeals was another and different one from the matter tried before the district court, as it is well settled in this state that proceedings in error are independent actions, and not a continuation of the action at nisiprius.
Nor do we think the fact that, for the first time in the progress of the litigation, defendant then sought to show that it was not the owner of the light plant at the time of the injury, avails. It can easily be seen how such a fact might be overlooked by an attorney trying a case, or by the officers of a corporation who had newly come to their offices and were unaquaint'ed with the history of the corporation, or, even if fully known by either of these, we know of no rule that precludes a party from proving a meritorious defense on the second trial, though he had neglected to do so on the first. Second trials are often sought for the purpose of introducing such proof.
We think the district court erred in refusing to permit the proof offered; therefore we reverse its judgment and remand the case for a new trial.
All the Justices concurring. | [
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Error from Wyandotte court of common, pleas. | [
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The opinion of the court was delivered by
Johnston, J.:
The notes and debt were formerly the property of Donahy, and, unless' he made an actual donation or disposition of them in his lifetime, they constitute a part of the Donahy estate, and the judgment was, therefore, correctly given. To constitute a valid gift of the debt and the evidence of the same, it must appear that Donahy not only intendéd to make a donation, but that he also divested himself of title and possession of them. (Johnson v. Eaton, 51 Kan. 708, 33 Pac. 597.)
Delivery, actual or constructive, is essential to a gift inter vivos. A mere intention to make a donation effective at a future time confers no title to or- right in the subject-matter of the proposed gift. Here there was no delivery of the notes, nor any relinquishment of control or dominion over them. Instead of a transfer and surrender of the debt evidenced by the notes, its continued existence was recognized by the expressed purpose to collect interest on it. If there was no debt, no interest would accrue. The letter relied on indicates a purpose On the part of Donahy to make a gift of the notes to Gallagher at a future indefinite time, and that he intended to consummate the gift by sending the notes to him. ■ No time was fixed by him for the' sending of the notes, but he did declare that he would expect the continued payment of interest. His retention of the dominion and control of the debt and notes and his statement that he would expect the continuance of payments of interest do not evidence a purpose to make a gift in prsesenti.
As was said in Roland v. Schrack, 29 Pa. St. 125, a transaction cannot be changed from a loan to a gift by loose declarations of one that he has given- money to another, and especially where there is an absence of complete delivery so essential to the validity of a gift.' Under the evidence, it would appear that there was no intention on the part of Donahy to make an absolute transfer of the debt which would take effect immediately, and no understanding by Gallagher that the proposed gift was to go into immediate effect. The transaction lacked the essential elements of a gift inter vivos, and indicates no more than a promise to make a gift, which was unexecuted at the time of Donahy’s death. ( Young v. Young et al., 80 N. Y. 422, 36 Am. Rep. 634; Dole v. Lincoln, 31 Me. 422; Withers v. Weaver, 10 Pa. St. 391; Buswell v. Fuller, 156 Mass. 309, 31 N. E. 294, 14 A. & E. Encycl. of L. [2d ed.] 1015.)
The judgment is affirmed.,
Cunningham, Gkeene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action of Anna Koles to recover damages to her land, resulting from alleged trespass and an attempt by Peter Tholl, the road, overseer, and others, to open a highway claimed to have been previously established. The land in controversy was inherited by Anna Koles from her father, Joseph Koles, who entered it under the homestead law in 1874, and acquired a patent therefor in 1882. Soon after settling on the land he planted a row of trees on the east line of the tract,-which was a section line, and when the trees grew to sufficient size he used them as posts upon which wires were stretched, and this constituted a fence on that side of the land.
In 1880 a petition for the opening of a section-line road on the east line of his land was presented to the board of county commissioners, and Koles, who then owned the land, was one of the petitioners. Upon this petition an order appears to have been made by the county board for the opening of the road, but it does not appear that notice of the petition for the highway was duly given, nor that viewers were ever appointed, nor notice given of the time and place when and where the viewers would meet to determine the damages and benefits sustained. About twenty years afterward, Peter Tholl, the road overseer, acting upon an order made by the township officers, proceeded in good faith to open the road, and did cut down the trees, grade and make a road forty feet wide, for a distance of one-half mile along the east side of the Koles land, one-half of which was taken from said land.
If no highway existed on the line in 1880 when the preliminary steps were taken, it would appear that the action then taken by the board of county commissioners did not affect the establishment and opening of a highway. The steps taken did not measure up with the requirements of the statute, and were so defective and insufficient as to be ineffectual. It is claimed, however, that prior to that time a highway had been established by dedication and acceptance, and, that being true, the overseer and those working with him had a right to open and improve the highway, and were not liable in damages to the owner of the land by reason of their action.
In 1866, while it was government land, and before the rights of Koles or any other settler, had attached, Congress enacted a provision that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” (U. S. Rev. Stat. § 2477.) In 1867 the legislature of Kansas declared all section lines in Washington county to be highways. (Laws 1867, ch. 67.) This act was subsequently amended so as to include other counties, but in each of them Washington county was specifically named. (Gen. Stat. 1868, ch. 89; Laws 1869, ch. 57; Laws 1871, ch. 135; Laws 1872, ch. 177.) Did the act of congress and the enactment of the Kansas legislature constitute a dedication and acceptance of highways over the public lands in Washington county ? It is conceded that at the times mentioned the land in question was public land and open to settlement. No vested interest had been acquired by any one, and*it remained subject to the absolute disposing power of congress.
The congressional act of 1866, as will be observed, is in language a present and absolute grant, and the Kansas enactment of 1867 is a positive and unqualified declaration establishing. highways on all section lines in Washington county. The general government, in effect, made a standing proposal — a present grant of any portion of its public land not reserved for public purposes for highways — and the state accepted the proposal and grant by establishing highways and fixing their location over public lands in Washington county. The act of the legislature did not specifically refer to the congressional grants, nor declare in terms that it constituted an acceptance, but we cannot assume that the legislature was ignorant of the grant or unwilling to accept it in behalf of the state for highways. The law of congress giving a right of way for highway purposes over the public lands in Washington county was' in force when the legislature acted, and it was competent for it to take advantage of that law, and the general terms employed by it are sufficiently broad and inclusive to constitute an acceptance.
A similar act making section lines public highways was held to be an acceptance of the congressional grant, which became operative at the date of its em actment. It was further held that the act of congress and the local law together constituted a dedication and acceptance, and that persons who thereafter acquired any rights in public lands took them subject to the right of way for highway purposes. (Wells v. Pennington County, 2 S. Dak. 1, 48 N. W. 305, 39 Am. St. Rep. 758.) The same question was before the supreme court of Nebraska in 1901, and it was held that the congressional act was a present grant, and that as soon as it was accepted in an appropriate manner by the agents of the public, or the public itself, the highway was established. (Streeter v. Stalnaker, 61 Neb. 205, 85 N. W. 47.) In the case last cited there was no legislative acceptance of the dedication, but only a general user and recognition by the local authorities.
The supreme court of California also holds the view that long-continued user by the public is a sufficient acceptance of the grant. It was said :
“The actof congress of 1866 (sec. 2477, R. S. U. S.) granted the right of way for the construction of highways over public land not reserved for public uses. By the acceptance of the dedication thus made, the public acquired an easement subject to the laws of this state, and the easement not having been extinguished by the operation of such laws, when the defendant acquired the title to the land she took it subject to the easement.” (McRose v. Bottyer, 81 Cal. 122, 22 Pac. 393.)
In a later case, where there was legislative acceptance of the congressional grant, the supreme court of California affirmed the soundess of the rule, of McRose v. Bottyer, supra, holding that the act of congress, operating with the statute of the state, constituted a dedication and acceptance of public land for a highway, so that when it passed into private ownership it would be taken subject to the easement. (Schwerdtle v. County of Placer, 108 Cal. 589, 41 Pac. 448.)
Our attention has been called to Carbon C. & M. Co. v. Drake, 26 Kan. 345; Hughes v. Milligan, 42 id. 396, 22 Pac. 313, and The State, ex rel., v. Spencer, 53 id. 655, 37 Pac. 147, as authorities against the contention of the plaintiff in error. In these cases it was held that the legislative acts declaring section lines to be highways without making provision for compensation or damages were invalid, but in none of them was the act of congress, or the effect of a congressional grant, considered by the court. Nor does it appear that the act of congress would have had application in those particular cases. It could have no effect where the lands had ceased to be a part of the public domain before the acceptance by the legislature or the public, nor where private rights and interests had attached to public lands before the enactment.
However, as to lands which were public and which had not been reserved for public use, and where no private rights had intervened before the passage of the law of acceptance, the dedication became complete. In such cases all who acquired title to the land thereafter took it subject to the easement, and, therefore, neither compensation nor viewers to ascertain the same were necessary. The case was tried upon another theory, and the rulings of the court on the testimony in charging the jury were erroneous, and for that reason the judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.
' This was an action by Bassett against Glass to recover a reward of $500 alleged to have been offered for the arrest and conviction of the person or persons guilty of the murder of the son of defendant, at the town of Welch, in the Indian territory.
It appears from the record that one Melvin Lovelace attempted to rob young Glass; that the latter resisted and Lovelace murdered him. Prior to the murder plaintiff had formed the acquaintance of, and was intimate in his relations with, Lovelace at Chetopa. Lovelace informed plaintiff that he was going to Welch to commit the crime of robbery, and solicited plaintiff to go with him and participate in the commission of the crime. After the murder plaintiff imparted this and other information to the officers, subscribed and swore to a complaint against Lovelace, and appeared and testified at the trial at which Lovelace was convicted of the murder.
The record further shows that, prior to the bringing of this action, plaintiff had brought another action against defendant for this reward, in which his counsel had filed a notice of attorneys’ lien. Shortly before that action was to be tried plaintiff had received from one Hazen, a son-in-law of defendant, the sum of $125, and had left the country, and the action was dismissed. Thereupon counsel for„ plaintiff in that action commenced their action .against defendant to recover the amount of their attorneys’ fees, in which action plaintiff gave his deposition, testifying that he had received the $125 from Hazen to leave the country and dismiss the action. The answer filed in this action was a general denial. Upon the trial, counsel' for defendant were permitted, in cross-examination of plaintiff as a witness in his own behalf, to interrogate him on his former testimony that he had received $125 from Hazen for the purpose of leaving the country and dismissing the prior action; and, also, to show his acquaintance and relation with Lovelace prior to the murder, for the purpose of affecting his credibility as a witness, and as tending to show his knowledge of, and participation in, the crime out of which the claimed reward arose. There were verdict and judgment for defendant, and plaintiff brings error.
The principal proposition relied on by counsel for plaintiff in error to work a reversal of this judgment is that defendant was permitted, by way of cross-ex amination of plaintiff, under a general denial, to show payment of the reward offered; that payment is an affirmative defense which must be pleaded, and, hence, the cross-examination was error.
Was such cross-examination extended to limits so improper as to be erroneous, and compel a reversal of the judgment ? We think not. Conceding payment to be an affirmative defense which must be specially pleaded, we do not think the cross-examination of which complaint is made was for the purpose of showing payment. The real question is, Was the cross-v examination so highly improper and prejudicial as to be material error ? The form of the pleadings does not affect this question.
It must be remembered that the witness under cross-examination was the plaintiff, testifying in his own behalf, in an action for a reward. In his direct examination, he gave testimony tending to show the offer of reward; his acquaintance and relations with Lovelace prior to and after the homicide ; the part he had taken in giving information to the officers and securing the conviction of Lovelace — the natural inference to be drawn from this testimony being that plaintiff, in good faith, was seeking the recovery of a reward justly due him in bringing the murderer to justice. The testimony elicited from the plaintiff upon cross-examination tended to show his intimate acquaintance and relations with Lovelace prior to the commission of the crime ; that he had kept secret the proposed robbery by Lovelace at Welch until after the murder ; and an attempt to show that he had brought a prior action for the reward ; the dismissal of such action ; his acceptance of the sum of $125 for the purpose of dismissal; his leaving the country; and the giving of his deposition in a prior case in which he had testified to such facts.
The extent to which one may be cross-examined on matters collateral to the main issue, to elicit information tending to show the hostility of the witness, his interest in the result of the litigation, or which tends to test his veracity or accuracy, or which has a tendency to affect,his credibility as a witness, and the like, or on matters directly connected with his examination in chief, which tend to destroy or modify the inference naturally to be drawn from his direct testimony, rests largely in the discretion of the trial court and depends on the appearance and conduct of the witness, the nature of the case under investigation, and all the facts and circumstances in relation thereto. The exercise of this discretion by a trial court will not be controlled here except for abuse which has worked error to the party complaining. In the case of The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406, this court held:
“The extent to which a witness may be cross-examined on matters irrelevant and collateral to the main issue, with a view of impairing his credibility, depends upon the appearance and conduct of the witness, and all the circumstances of the case, and necessarily rests in the sound discretion of the trial court; and only where there has been a clear abuse of that discretion will error lie.”
In the opinion in Blake v. Powell, 26 Kan. 320, 326, Mr Justice Brewer said :
“A cross-examination is not limited to the very day and exact fact named in the direct examination. It may extend to other matters which limit, qualify or explain the facts stated on the direct examination, or modify the inferences deducible therefrom, providing only that such matters are directly connected with the facts testified to in chief.”
In Rice on Evidence, volume 3, section 232, it is said:
"When a witness gives material evidence it is always important to ascertain and discover how much weight or reliance can be placed upon his testimony. Whatever may weaken or tend to discredit his evidence is important and material and necessarily affects the determination of the issue.” (See, also, The State v. Krum, 32 Kan. 372, 4 Pac. 621; The State v. Collins, 33 id. 77, 5 Pac. 368 ; 8 Encyc. Pl. & Pr. 109, and cases cited.)
The relations and association of plaintiff with Lovelace prior and subsequent to the murder, and his knowledge that Lovelace proposed the commission of the crime of robbery at the place where the murder occurred, prior to the murder, were proper subjects of investigation, not only for the purpose of affecting the credibility of the witness, but because of its tendency to show the close connection of plaintiff with the crime out of which the claimed reward arose. The testimony of plaintiff taken in the former case as to the bringing of the prior action for the reward, his receipt of a sum of money upon an agreement that he should leave the country and permit the action to be dismissed, and the dismissal of the action, were also proper subjects of cross-examination, as tending to affect the credibility of the witness, and, the same being connected with the subject-matter of his examination in chief, to rebut the inference which the jury would necessarily draw from such testimony, standing alone, unqualified and unexplained by his former conduct in dealing with the subject-matter of the case.
Plaintiff complains of the refusal of the court to give certain special instructions requested, and of an instruction given by the court in its general charge to the jury. The charge of the court embodies, sub stantially, the instructions refused. Wherein the charge of the court fails to state the law, and in what respect the instructions given are erroneous as matter of law, are not specified.
It follows that the judgment must be affirmed, and it is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The first question raised is as to the sufficiency of the information. The motion to quash the same was overruled. We have carefully examined the information, and the objections urged against it, and are clearly of the opinion that the information contains a sufficient statement of facts to constitute the crime of murder. It is true the information contains much that might have been stricken out, and it is open to the objection that it does not in plain and concise language, without repetition, set forth the charge; but this is not such a defect as will warrant the court in quashing the information, as surplusage or redundant allegations will not render the information bad where there is specific matter alleged sufficient to clearly indicate the crime with such certainty that the court could pronounce judgment upon a conviction. The motion to quash was properly overruled.
The second allegation of error is, that the court permitted the preliminary proof to the introduction of the death-bed statement of Calvin Cooper to be given to the court in the presence of the jury. The hearing of this evidence by the GOU1't in the presence of the jury was largely within the discretion of the court. Good practjce -would require that this evidence be heard, not in the presence of the jury, but in this case no motion to exclude the matter or to request that the jury be sent out was made, and therefore no error is alleged in the record.
The third assignment of error is, that it is not sufficiently shown by the testimony that Calvin Cooper realized that he was in a dying condition, or that death was certain as the result of the wound, at the time of making the written statement offered in evidence. Before the death-bed statement of the deceased could be used, it must be clearly shown that such statement was made with a full knowledge and belief that death was imminent, and that the deceased with this knowledge, without a hope or expectation of recovery, made the statement. (See The State v. Medlicott, 9 Kas. 257.) The evidence offered and received by the court we think sufficient to entitle the statement of the deceased to be admitted in evidence. Four witnesses testified upon this question. Dr. D. H. Painter testified that on his second visit to the deceased he concluded that the wound was fatal, and he told Cooper so. This was on Sunday or Monday following the Thursday on which Cooper was injured. The doctor testified: “ I told Cooper that I felt satisfied in my own mind that the injuries he had received were necessarily fatal, and that he would die as a result of them; that I could not do anything more for him.” The doctor then testified that, after this statement, it was reduced to writing, and was signed by Cooper. The doctor also testified that Cooper told him that he knew he was going to die.
The next witness called to establish this fact was Robert Cooper, who also testified that he was present at the time the doctor told Cooper he was going to die. This witness was the uncle of Calvin Cooper, at whose house Calvin Cooper was living before and at the time of his death. He stated that the doctor told him (Cooper) that the wound would be fatal, and that he would die, and asked Cooper to make a statement of what took place at the time he received the injury. He said that at the time the doctor made this statement Cooper said he did not hardly think he was going to die, or something like that, or that he had not thought of dying at all. But after being informed by the doctor that he would die from the wound, and that if he had anything to fix up he had better fix it, the doctor asked him if he did not want to make a statement of what occurred at the school-house, and he said he did, and a short time afterward made the statement that was offered in evidence.
The third witness who testified was William Chitty, who said that he was present at the time Dr. Painter said to Cooper that if he had any worldly matters to fix up he had better fix them up right away, because he was likely to die at any time, or something to that effect. Witness testified he had a conversation with Cooper, in which Cooper told him he thought he was going to die, and that he was trying to keep it from the knowledge of his friends, and requested witness not to inform the family that he was going to die. Before making the statement he asked some one to come in and pray for him, and Mr. Simmons prayed for him; and Cooper then asked if there was anyone else in the house who would pray for him, and Chris. Anderson also prayed for him. He also stated, in response to a question asked by Mrs. Cooper, that he was prepared and ready to go at any time, speaking of his death.
The fourth witness was Samuel Rouse, who testified that he was present at the time Dr. Painter made the statement to Calvin Cooper. This witness1 also testified that the deceased had prayers offered for him, and that Simmons and Chris. Anderson, at his (Cooper’s) request, prayed for him, and after these two had offered prayers, Cooper asked if there was anyone else in the house to pray for him, and after this statement of Dr. Painter’s to him, and the prayers offered, this statement was made that was offered in evidence.
Now from this testimony it can clearly be said that Calvin Cooper made this statement under the belief that he was about to die, and that all hope of recovery had fled. The rule contended for by the defendants is, that before this statement can be offered, all the testimony must show that the deceased knew he was going to die, and the fact that his uncle testified that Cooper said he did not think he was going to die, or had not expected to die, left the matter in doubt, and that if there was any doubt about it, it was the duty of the court to exclude the statement. In this we do not concur. It was a question of the admissibility of evidence, and was governed by the same rules that govern the admission of all other evidence. The question is, was there sufficient evidence to sustain the ruling of the court ? The court passed upon this question, and there is abundant evidence to sustain the ruling.
The next allegation of error urged by the defendants is, that the court permitted the statements of the defendants given at the coroner’s inquest to be offered in evidence for the state, over the objections of the defendants. It is shown by the testimony of at least one of these defendants that they were duly subpenaed to attend the inquest, and gave their testimony by reason of being subpenaed as witnesses. At this time the defendants had not been arrested or accused of the crime, other than in the dying declarations of Calvin Cooper. To make this testimony competent as their declarations, they must have been made voluntarily. (Kirby v. The State, 5 S. W. Rep. 165.) The question whether or not this evidence was voluntary in this, particular instance, it is not necessary to determine. Whether it was or not, the evidence was made competent afterwards by the defendants. They went upon the stand as witnesses on their own behalf, and there gave substantially the same evidence as that given at the coroner’s inquest. If the testimony was incompetent in the first instance, which we are inclined to believe, the defendants on cross-examination substantially stated that the evidence given at the coroner’s inquest was correct. It was in substance the same as that given by them . . *111 at the trial. It then becomes immaterial whether or not the testimony offered as their declarations before the coroner’s inquest was properly admitted..
The main objections urged by the defendants in their brief is to the instructions given by the court to the jury. A large number of the instructions are complained of, but we will examine only two, for the reason that they contain the only error that we have discovered, sufficient to reverse the case. The first instruction complained of, which upon examination is found to be erroneous, is as follows:
“If you believe from the evidence in this case, beyond a reasonable doubt, that the defendants, or any of them, conspired and agreed together or with others to assault Calvin Cooper by force, or to unlawfully beat or wound him, and if you further believe from the evidence, beyond a reasonable doubt, that in pursuance of such conspiracy, and in furtherance of such common design, a stab was inflicted on the body of the deceased by a member of such conspiracy at the time, and that Calvin Cooper was killed by such stab, then such of the defendants as the jury believe from the evidence, beyond a reasonable doubt, to have been parties to such conspiracy are guilty of murder, whether the identity of the person inflicting such stab be established, or not.”
The objection to this instruction is, that the jury are told that if any of the defendants conspired together to assault Calvin Cooper by force, and in furtherance of that common design a stab was inflicted upon the body of the deceased by a member of the conspiracy, and Calvin Cooper was killed by that stab, then all connected with that conspiracy were guilty of murder. This is not the law. If the court had added to this instruction that if the defendants, or any of them, conspired and agreed to assault and stab Calvin Cooper, and in furtherance of that common design a stab was given from which Cooper died, that all who participated in the conspiracy were guilty of murder, the instruction would have been correct. The court in this instruction charges as to two kinds of conspiracy: first, a conspiracy to assault by force; and second, to unlawfully beat and wound. The first of these, to assault with force, would constitute a misdemeanor, and where an assault or an assault and battery is committed under an arrangement between defendants or with others, and death results from such assault, where there is no intention to kill, and such results could not have been anticipated, or likely to happen therefrom, under such circumstances the defendants would be liable for manslaughter, and not for murder. (Brown v. The State, 28 Ga. 199; Rex v. Caton, 12 Cox, C. C. 624; United States v. Hibert, 2 Sum. 19; Frank v. The State, 27 Ala. 37; Adams v. The State, 65 Ind. 574; The State v. Shelledy, 8 Iowa, 477.)
Again, where parties combine to commit a crime, and while engaged in such unlawful act murder is committed by one of such conspirators, without the knowledge or consent of the others, and the act is not the natural and probable outcome of the common design, but the inde- . . . . pendent act ot one conspirator alone, and outside of the common purpose, those not participating in it are not guilty of murder. (See Lusk v. The State, 2 South. Rep. 256; Kirby v. The State, 5 id. 165; Williams v. The State, 1 id. 179; The Anarchists’ Case, 12 N. E. Rep. 865.) While on the other hand, if they conspire together, or with others, to assault, beat and stab, then all who participated in the conspiracy would be guilty of murder. The court ought to have made this matter clear to the jury, and they ought to have been instructed that it was necessary to show the conspiracy to wound or stab, and that the stab or wound from which Cooper died was the result of that conspiracy.
The second instruction complained of is as follows:
“The rule requiring you to be satisfied beyond a reasonable doubt of the guilt of the defendants in order to -warrant a conviction, does not require you to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the guilt of the defendants. It is sufficient if, taking the testimony altogether, you are satisfied beyond reasonable doubt that defendants are guilty.”
Before a defendant can be convicted, every fact essential to the conviction must be found by the jury beyond a reasonable doubt, to be true. Now doubtless what the court intended to charge in this instruction was, that in 0 t the different facts that go to make up a chain of circumstances, each individual fact that constitutes or makes up the principal fact and link in such chain need not to be found to be true beyond a reasonable doubt. If the court had so instructed, such instruction would have been proper. Whatever facts or circumstances may have entered into and formed a part of a link in the chain, each minute circumstance or fact that went to make up the sum total constituting a link need not be found by the jury to be true beyond a reasonable doubt; but the link itself, taking all the evidence together to establish that link, must be found to be true beyond a reasonable doubt. In other words, the chain can be no stronger than the weakest link in it. If one link in the chain is not found to be true beyond a reasonable doubt, then the chain is broken, and the defendants must be acquitted. The court afterward gave a proper instruction upon this question:
“In law the defendants are presumed to be innocent of the offense preferred against them, innocent of any guilty intent, and innocent of every fact necessary for the state to prove in order to establish their guilt. And this presumption of innocence continues to operate in their favor until their guilt is proven by the evidence, and until each and every fact necessary to constitute the offense charged against them is so proved beyond a reasonable doubt.”
In this the court gave the law to the jury as it ought to have been given.
It is recommended that the judgment of the court below be reversed, and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced by C. S. Bowman and Charles Bucher, partners as Bowman & Bucher, and J. W. Ady, against W. H. Phillips, James L. Serviss, G. W. Rogers, and George E. Clark, to recover from the defendants the sum of $240, alleged to be due for professional services rendered by the plaintiffs as attorneys and counsellors at law. The case was tried before the court without a jury, and judgment was rendered in favor of the defendants and against the plaintiffs for costs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
It appears that on May 5, 1883, a society existed at Newton, Kansas, composed of the defendants and others, known as “The Saloon and Druggists’ Protective Association of Newton, Kansas.” The members of the association were principally saloon-keepers, and were engaged in selling intoxicating liquors in violation of the prohibitory liquor law; and the principal object of the association was to frustrate the law to the extent of evading all punishment for its violation. The plaintiffs in this case had full knowledge of all these things. On that day the plaintiffs and the defendants, with a few others, entered into the following written contract, to wit:
“Newton, Kansas, May 5, 1883.
“We, the undersigned business men of the city of Newton, agree to pay Messrs. Bowman & Bucher and J. W. Ady the sum of eighty dollars per month, on the 1st day of each month, for the period of one year from May 1, 1883, eighty dollars to be paid on the execution hereof; said payments to be made in consideration of the services herein agreed to be rendered.
“ We, the undersigned attorneys at law, agree to defend all cases that may be brought against Geo. E. Clark, Jas. Serviss, W. H. Phillips, J. E. Marti, J. H. Gray, J. H. Pappe, O. S. Bassett, E. Wetzel, and any others who may become members of The Saloon and Druggists’ Protective Association of Newton, Kansas, or any person in business with either of them as clerk, partner or otherwise, for a violation of the prohibitory liquor laws of the state of Kansas, and to accept as full compensation for our services the sums hereinbefore stipulated to be paid. This is not to include the necessary expenses or outlays on our part, should such be necessary, but only fees for professional services. Executed in duplicate.
Bowman & Buchek. Jas. L. Serviss.
J. W. Ady. W. H. Phillips.
J. H. Pappe.
J. E. Marti.
L. H. Crafts.
George E. Clark.
September 1st. G. W. Rogers.”
Afterward, and within one year thereafter, various criminal prosecutions were instituted and conducted against the several members of the aforesaid “Saloon and Druggists’ Protective Association” for violation of the prohibitory liquor law, and the plaintiffs in this action, as attorneys and counselors at law, defended them. Also during that year, and for the services of the plaintiffs for the first nine months thereof, the members of said association paid to the plaintiffs the sum of $720, leaving, as the plaintiffs claim, still due to them on the aforesaid contract and for their services for the last three months of the aforesaid year, the sum of $240, for which sum they brought this action. It is stated in the briefs of counsel that the court below decided this case upon the theory that the aforesaid contract was in violation of public policy, and therefore void; while the plaintiffs claim that the contract is not in violation of public policy, nor void for any other reason; and they further claim that even if the contract is void, still that they alleged enough in their petition and proved enough on the trial to enable them to recover in the action as upon an implied contract for the actual services which they in fact performed. They certainly proved that the services which they actually performed were worth more than $960, which is all that they claim for the entire year’s work.
We think the contract is against public policy, and void. Of course attorneys at law may be employed to defend persons charged with crime, where the alleged offenses are charged to have been committed prior to the employment. An attorney’s services may also be engaged for future transactions where no wrong is intended or contemplated; and in all cases good faith and innocence will be presumed until the contrary appears. Also where a contract is not in violation of public policy, nor in any matter tainted with immorality or illegality, and services are performed or benefits conferred under it, but the contract is void because of some want of power in one or both the parties to make it, or void because of some irregularity in its execution, a contract will be implied and a promise assumed that the party benefited shall pay for all benefits which he has actually received under the void contract. Or if no contract is expressly made, but services are nevertheless performed or benefits actually conferred with the knowledge and consent of the other party and not as a gratuity, which services or benefits are in and of themselves innocent and proper, a contract and promise will be implied to pay for all the benefits actually received. But none of these cases is the present case. In the present case it was future wrongs and violations of law that were contemplated when this contract was executed, and it was future wrongs and violations of law that were to furnish the foundation for the plaintiffs’ services, and the foundation for their compensation; and except for these contemplated future wrongs and violations of law the contract would never have been made. This contract was tainted at its inception with these future intended and contemplated violations of law. Of course the plaintiffs when they entered into the contract did not intend to perform services different from services which may rightfully and legally be performed under a contract made for similar services after the violations of the law have actually occurred; and the plaintiffs in rendering their services under this contract did not render any services except such as they might have legally and rightfully rendered under a contract made after the violations of the law had actually taken place; but these things are not the things which render the contract in this case objectionable. The wrong on the part of the plaintiffs consisted simply in entering into a contract to defend persons for criminal offenses which were in contemplation of all the parties to be committed in the future. This was a virtual encouragement of the defendants to violate the law. And surely the defendants expected by future violations of the law to furnish to the plaintiffs a sufficient amount of work to make the plaintiffs earn the agreed compensation. And in all probability the defendants also expected to realize a sufficient amount of profits out of their illegal and interdicted traffic to pay the plaintiffs and have something left. It was evidently considered by the parties as a mere sharing of the profits. The evidence tends to show that the defendants employed the plaintiffs in advance because they believed that by so doing they could better evade the prohibitory liquor law, and could obtain the services of the plaintiffs at a cheaper rate, provided they continued to carry on their illegal traffic. If the plaintiffs had refused to enter into such a contract, possibly the defendants would have closed their illegal business at once. What operated upon the minds of the plaintiffs to enter into this contract in advance of the commission of the contemplated offenses, is not shown, but it is open to the supposition that they may have believed that if they did not enter into this contract the defendants would close their illegal business, or at least would not commit so many violations of law, and thereby would render the plaintiffs’ services and their compensation correspondingly lighter. The defendants by this contract agreed to pay the plaintiffs $80 per month, and they did in fact pay them that amount for the first nine months of their employment, and failed to pay them only for the last three months. It must also be remembered that the plaintiffs in this action are attorneys and counselors at law. They belong to a class of persons who are authorized and licensed under the laws of Kansas to assist the courts in the administration of justice and in enforcing the laws. Now is it proper for such persons to say to persons who are contemplating the commission of crime: “If you commit the crime we will defend you, and are ready now to enter into a contract for that purpose”? Attorneys at law, above all others, should refrain from doing anything which might seem to encourage a violation of the laws. We know of no authorities directly and precisely in point of the questions involved in this case, but we cite the following as giving support to the views herein expressed: Treat v. Jones, 28 Conn. 334; Arrington v. Sneed, 18 Tex. 135; Hayes v. Hayes, 8 La. Ann. 468; 3 Am. and Eng. Encyclopsedia of Law, 869, 875, 886, and cases there cited; 7 Wait’s Actions and Defenses, ch. 31; Greenhood on Public Policy, parts 11 and 13.
As above stated, we think the contract in question in this case is void for the reason that it contravenes public policy; and we also think that the plaintiffs cannot recover for their services which they actually performed under the contract, and this for the same reason. As between the original parties and all persons in pari delicto, the courts will not enforce illegal contracts nor any supposed rights founded upon them, but will leave the parties and those in pari delicto just where they find them and leave each in the possession of just what he has already obtained. So much of the contract or its fruits as has already been executed, performed, or vested, the courts will permit to stand, but whatever remains to be executed or performed or to become vested, the courts will not enforce. In the present case the plaintiffs will retain all the money which they have received under the void contract without the defendants having any action to recover it back, and the defendants will retain all the benefits resulting from the services of the plaintiffs which have already been rendered under the void contract, without the plaintiffs having any action to recover for the value of such services. Indeed, except for the contract there might never have been any necessity for the performance of any such services, for without the encouragement given by the contract to the defendants they might never have violated any of the laws of Kansas.
We think the decision of the court below is correct, and its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The material facts are comprised* in the following special findings of fact made by the trial court at the February term, 1886:
“ 1. On the 5th day of April, 1883, P. H. Thompkins executed an instrument in writing whereby he purported to assign and convey to William G. Randall all his real and personal property for the benefit of his creditors, and which assignment purported to be made under and in pursuance of an act of the legislature of the state of Illinois, entitled ‘An act concerning voluntary assignments, and conferring jurisdiction therein upon county courts/ approved March 22, 1877.
“ 2. At; the time of said assignment the said P. H. Thompkins resided and was doing business and had the greater part of the assigned property in Woodford county, in the state of Illinois.
“ 3. Said William G. Randall did not accept said assignment, or the trust thereby created.
“4. On the 5th day of April, 1883, the said instrument of assignment was filed for record in the office of the recorder of deeds of Woodford county, Illinois.
“ 5. At the time of the execution and recording said assignment there was no schedule of the property attached to or filed with said assignment, describing the property intending to be assigned. The said assignment contained the statement that the property thereby intended to be assigned was ‘fully and particularly enumerated and described in an inventory under oath of said assignor, thereto annexed, marked ‘Schedule B/ and made part thereof.’
“6. On the 11th day of April, 1883, there was made and filed in said recorder’s office a statement under oath of said P. H. Thompkins of the assets of said assignor, and attached to said assignment, and intended to operate as such ‘ Schedule B ’ thereto.
“ 7.. In said statement of assets was contained a description, among others, as follows: N. E. qr. sec. 9, T. 34, R. 2 E., Sumner Co., Kansas; S. E. qr. sec. 9, T. 34, R. 2 E., Sumner Co., Kansas; N.W. qr. sec. 22, T. 28, R. 2W., Sedgwick Co., Kansas. But the same in no way described any land in section 4, township 34, range 2 east, in said county of Sumner.
“8. On the 12th day of April, 1883, the said P. H. Thompkins signed and acknowledged two quitclaim deeds, in which ‘David A. Espey, assignee in trust for the benefit of my creditors/ was named as grantee, one of which said deeds purported to convey to said Espey the northwest quarter of section 22, in township 28 south, range 2 west, in Sedgwick county, Kansas, and one of which purported to convey to said Espey the southeast quarter of section 4 and the northeast quarter of section 9, in township 34 south, of range 2 east, in Sumner county, Kansas. Neither of said deeds was delivered to said Espey, nor accepted by him.
“ 9. On the 16th day of April, 1883, the said P. H. Thompkins filed said first deed for record in the office of the register of deeds of Sedgwick county, Kansas, and on the 16th day of April, 1883, at one o’clock p. m., filed said second deed for record in the office of the register of deeds of Sumner county, Kansas.”
“11. There was no consideration whatever for the execution of either of said quitclaim deeds, and they were both executed for the purpose of preventing the creditors of said Thompkins from levying legal process upon said land until said assignment should be accepted by said Randall, or an assignee should be appointed in his stead by the county court of Woodford county, Illinois:
• “12. On the 14th day of April, 1883, the plaintiff commenced this action against the said P. H. Thompkins in this court, in which he obtained personal service upon said Thompkins, and on the same day procured an order of attachment to be issued in said action directed to the sheriff of Sedgwick county, Kansas, which attachment was on the 14th day of April, 1883, duly levied upon the northwest quarter of section 22, in township 28, range 2 west, in Sedgwick county, Kansas; and on said 14th day of April, 1883, said plaintiff procured an order of attachment to be issued in said action directed to the sheriff of Sumner county, Kansas, which attachment was on the 16th day of April, 1883, at 3 o’clock p. m., duly levied on the southeast quarter of section 4, and the northeast quarter of section 9, in township 34, range 2 east, in Sumner county.
“13. At the June term, 1883, of this court, which term began on the 5th day of June, 1883, the plaintiff obtained judgment against said P. H. Thompkins in said action, for the sum of $1,572.80, and an order for the sale of the above-described attached real estate to satisfy the same.
“14. On the 26th day of April, 1883, the county court of Woodford county, Illinois, appointed David A. Espey assignee of said estate of the said P. H. Thompkins in the place of the said William G. Randall, who had failed to accept said assignment; and the said David A. Espey then and there accepted said trust, and qualified as such assignee under the act of the legislature of Illinois, aforesaid.
“15. On the 29th day of June, 1883, the said assignment, and said schedule of assets, and a copy of the order of the county court of Woodford county, Illinois, appointing said David A. Espey assignee thereof, were filed for record, and recorded in the office of the register of deeds of Sedgwick county, Kansas. And on the 17th day of August, 1883, the same were filed for record, and recorded in the office of the register of deeds of Sumner county, Kansas.
“16. On the 20th day of September, 1883, the said David A. Espey presented to the county court of Woodford county, Illinois, the following petition:
‘“State oe Illinois, Woodeobd County, ss.- — County Couet, September Term, 1883. — In the matter of the assignment of Philip H. Thompkins: Now comes David A. Espey, assignee in the said matter, by Hopkins & Hammond, his attorneys, and shows to this honorable court, that among other assets of the said estate assigned to and inventoried by him, are the following tracts of land, viz.: Block 14 in Gibson’s addition to the town of El Paso, containing about fifteen acres; also the northeast quarter of section number 9, township number 34 north, range number 2 east, in Sumner county, Kansas; also the southeast quarter of the section last aforesaid; also the northwest quarter of section 22, township number 28 north, range 2 west, in Sedgwick county, Kansas. The said tracts of land are all of them seriously incumbered by mortgages, tax liens, attachment suits now pending and undetermined, and the dower right of Mary H. Thompkins, the wife of said assignor, rendered it difficult to sell said land at any adequate price; and further shows that said Mary H. Thompkins has offered to purchase the title vested in him as such assignee upon the following terms, viz.: To give for said first-named tract the sum of seven hundred dollars in cash, and take the same subject to all existing liens andincumbranoes; to give for the second and third tracts above named the sum of three hundred dollars, and take the same subject to all incumbrances. To give for the last tract above named the sum of four hundred dollars, and take the same subject to all liens andincumbranoes; and further, to give your petitioner a quitclaim deed, releasing all her homestead and dower rights in all other real estate vested in said petitioner by said assignment. And petitioner shows that in its involved condition said property could not be advantageously sold at auction; that he has Hjade diligent effort to dispose of the same at private sale, and has not been able to obtain any better offer than the one above named. He believes it will be for the best interests of the estate to accept said offer.
“ ‘ Wherefore, he most respectfully asks the order and direction of this honorable court in said matter. David A. Espey, Assignee.’
“ 17. On the 20th day of September, 1883, the county court of Woodford county, Illinois, made the following order:
“ ‘ State oe Illinois, Woodeobd County, ss. — County Couet, September Term, 1883. — In the matter of the assignment of Philip S. Thompkins: This day this matter coming on for further hearing upon the petition of the assignee herein for leave to sell block number 14 in Gibson’s addition to the town of El Paso, in the county of Woodford and state of Illinois, also the northeast quarter and the southeast quarter of section number 9, in township 34, range 2, Sumner county, Kansas, also the northwest quarter of section 22, in township number 28, range number 2, in Sedgwick county, Kansas, to Mary H. Thompkins, in consideration of fourteen hundred dollars, and a release of her dower and homestead rights in all other lands belonging to said estate, and the court having heard the proofs and examined the facts in the matter, and finding that in the present involved and incumbered condition of said property it will be for the best interest of the creditors of said estate to accept said offer, it is ordered, adjudged, and decreed that the said David A. Espey, assignee, be and is hereby authorized and directed, upon the receipt from the said Mary H. Thompkins of fourteen hundred dollars and a deed of quitclaim of all her interest in all the other lands belonging to said estate to him, the said assignee, to execute, acknowledge and deliver to said Mary H. Thompkins a good and sufficient assignee’s deed of the aforesaid lands and premises, and thereof make report to this court. W. S. Gibson, County Judge.'
“18. On the 14th day of September, 1883, the said David A. Espey executed and delivered to Mary H. Thompkins, the interpleader herein, a deed of conveyance as follows:
“ 1 This indenture, made this fourteenth day of September, 1883, between David A. Espey, assignee of Philip H. Thompkins, of the city of El Paso, county of Woodford and state of Illinois, party of the first part, and Mary H. Thompkins, of El Paso, in the county and state aforesaid, party of the second part, witnesseth: That whereas, Philip H. Thompkins, of said El Paso, on the 5th day of April, 1883, executed and delivered, and caused to be recorded in the recorder’s office of said Woodford county, his deed of assignment for the benefit of creditors, made in pursuance of the statutes of Illinois, to one William G. Randall, assignee therein named; and whereas, said Randall neglected and failed to qualify as such assignee by filing the inventory and appraisement and giving and filing an assignee’s bond, according to the provisions 'of such statutes, within twenty days after the making and recording of such deed of assignment; wherefore, on the twenty-sixth day of April, 1883, the county court of said Woodford county, by its order and decree, appointed the party of the first part assignee in lieu of said Randall, to execute the powers and provisions of said assignment, and thereupon the party of the first part filed the inventory and appraisement, and gave bonds as required by law and entered upon his duties, and is still acting as such assignee; and whereas, there was among the assets of said Philip H. Thompkins, the legal title of which was vested in the party of the first part by virtue of the said deed of assignment and proceeding, the following-described lands and premises, to wit: Block number fourteen in Gibson’s addition to the town of El Paso, in the county of Woodford and state of Illinois, containing fifteen acres more or less; also the northeast quarter of section number nine, township 34 south, range two east, in Sumner county, Kansas; also the southeast quarter of section four, the same township and range last named; also the northwest quarter of section number twenty-two, in township twenty-eight south, range two west, in Sedgwick county, Kansas; and whereas, by the order and decree of said county court, made and entered of record in the matter of said assignment proceeding, on the 27th day of September, 1883, the party of the first part was authorized and directed to accept a proposition made by the party of the second part, to purchase the title of the party of the first part in and to said premises, and to deed and convey the same to the party of the second part upon the payment of fourteen hundred dollars, and the execution and delivery of the deed of Philip H. Thompkins and his wife, the parties of the second part, to all other lands included in said assignment: now, therefore, know all men by these presents, that the party of the first part does hereby remise, release, grant and convey to the party of the second part, her heirs, administrators and assigns forever, all his right, title and interest as such assignee in and to, all and singular, the lands and premises aforesaid, and all the right, title and interest of the said Philip H. Thompkins at the time of his said assignment, and which passed to and vested in his assignee by virtue of his said deed of assignment, and the proceedings thereunder, by virtue of the laws of the state of Illinois in such cases made and provided, to have and to hold the same to her, her heirs and assigns forever, with all the privileges and appurtenances thereof.
‘“Witness my hand and seal, the day and year first above written.
(Seal.) David A. Espey,
Assignee of Phihp PC. Thompltins.’
“Which deed was duly acknowledged, and on January 4, 1884, was filed for record and recorded in the office of the register of deeds of Sedgwick county, Kansas, and on November 30,1883, was filed for record and recorded in the office of the register of deeds of Sumner county, Kansas. During all the times above mentioned there was in force in the state of Illinois a statute of said state governing the making and administration of voluntary assignments for the benefit of creditors; said law was embraced in a certain act of the legislature of said state entitled lAn act concerning voluntary assignments, and conferring jurisdiction therein upon county courts;’ approved May 22, 1877; in force July 1, 1877. By said act of the legislature, it was provided that the assignee in the execution of assignments should at all times be subject to the order and supervision of the county court of the county wherein the assignment was recorded when in session, or the judge of said court when not in session.
“19. It was also provided in said act that if the assignee named in the assignment should fail to qualify for the period of twenty days after the making thereof, the county judge of the county where the assignment was recorded should appoint some one to execute the trust embraced in the assignment.
“20. It was also provided in said act that the assignee should have full power to dispose of all the estate, real and personal, assigned, but that no sale of real estate should be made except on notice published, as in case of real estate sold on execution, unless the county court should order otherwise.
“21. The principal part of the estate so assigned by the said P. H. Thompkins was situated in Woodford county, Illinois, and the property attached in this action and in controversy herein constituted only, a small proportion in value of the property attempted to be assigned by said Thompkins to said Randall.
“22. During all the time above mentioned the plaintiff was a resident of Woodford county, Illinois, and had knowledge of said assignment and of said assignment proceedings, and of the signing of said two quitclaim deeds by said Thompkins; and after said attachments were levied, filed his claim against said Thompkins, being the same sued on in this action, with said Espey as assignee, and received a dividend thereon of $211 from said Espey.
“23. At the time of the execution of the two quitclaim deeds, the plaintiff herein objected to their delivery to Thompkins for the purpose of being placed on record in the state of Kansas, as Thompkins and Espey proposed.”
“conclusions ok law.
“1. The plaintiff, J. Q,. Adams, obtained a lien on the property in controversy, as follows: In the northwest quarter of section 22, township 28, range 2 west, in Sedgwick county, Kansas, on the 14th day of April, 1883; and in the southeast quarter of section 4, and the northeast quarter of section 9, in township 34 south, of range 2 east, in Sumner county, Kansas, on the 16th day of April, 1883, at 3 o’clock p.m.
“2. The quitclaim deeds from Thompkins to Espey did not operate to convey any estate in said land as against the plaintiff, and as between the parties thereto did not take effect until the time of filing them for record.
“3. The estate and title in said land did not pass from P: H. Thompkins, but remained subject to legal process against Thompkins until the appointment of Espey as assignee on the 26th day of April, 1883.
“4. The interest of plaintiff in the property in controversy accrued prior, and was superior, to the interest of Espey under the assignment proceedings.
“5. The county court of Woodford county, Illinois, had no jurisdiction of the land in controversy, nor to order the sale of said land, and the order of said court directing the sale and conveyance of said land, and the conveyance of said land based upon said order, were inoperative to convey any interest in said land as against plaintiff.
“6. The order of the county court of Woodford county, Illinois, did not authorize Espey to convey the southeast quarter of section 4, in township 34, range 2 east, in Sumner county, Kansas, and the conveyance of the same by Espey to Mary H. Thompkins was without authority, and conveyed no title to said tract.
“7. The deed from Espey to Mary H. Thompkins was not sufficient to convey any interest in the property in controversy as against the attachment lien of the plaintiff
“8. The fact that the plaintiff was and is a resident of the state of Illinois does not preclude him from contesting the effect of the said assignment as a conveyance to the property iu controversy in the courts of this state, to the same extent as if he were a citizen of the state of Kansas.
“9. The presenting his claim to the assignee and acceptance of a dividend thereon from Espey did not operate to forfeit or release plaintiff’s attachment lien upon the property in controversy.”
Judgment was rendered against the plaintiff in error, disallowing her interplea, and ordered the attached land to be sold to satisfy the judgment rendered in the action. A motion for a new trial was made and overruled; and to reverse the judgment of the district court sustaining said attachment, the case is brought to this court.
This case is so fruitful in questions, and counsel on both sides are so prolific in discussion, that we have been compelled to devote an unusual length of time to its consideration. Among the questions discussed are the nature, character and classification of that class of instruments known as “general assignments for the benefit of creditors;” whether such an assignment is valid; or'valid as to a part of the property assigned, and void as to a part; and if valid as to a part only, whether a creditor can accept under it and not be bound by the whole. Another very important inquiry is as to the effect of such an assignment, executed in the state of Illinois according to the laws thereof, on the real property of the assignor situate in the state of Kansas. There are other important questions incidental to those already stated that it may be necessary to discuss and consider.
There is one question that we think controls this case, and disposes of it so far as the rights of the plaintiff in error are concerned. Vattel lays down as a principle of international law, that immovable property is to be disposed of according to the law of the country in which it is situate. This principle we believe has universally been applied as between the states that form our general government, and it has always been held that real estate situate within one of the states is alone subject to the laws of that state respecting its alienation, distribution, and other disposition. That the legislation of a state can have no extra-territorial force is fundamental, and in the very nature of things incapable of modification, and unproductive of exceptions. The boundaries of the state in which a law originates mark the limit of its operation, and determine with precision and accuracy the extent of its territorial force, and beyond these boundaries it ceases to exist.
Guided by these fundamental rules, we will examine the legislation of the state of Illinois, to determine whether or not the mode provided thereby for an insolvent to transfer to an assignee for the benefit of his creditors, real estate owned by him in the state of Kansas, conforms to the laws of this state regulating the conveyance of real property. It must be conceded that a resident of the state of Illinois owning real property in the state of Kansas can make a conveyance of it to a purchaser that will pass all the title he possesses, if that conveyance is made conformably to the laws of Kansas. .A resident of the state of Illinois who owns real property in Kansas can make a transfer of such real property to an assignee in trust for his creditors, if such a transfer is made in accordance with the laws of Kansas governing the conveyance of real property. A statute of the state of Illinois, entitled “An act concerning voluntary assignments, and conferring jurisdiction therein upon county courts,” approved May 22, and taking effect July 1, 1877, provides as follows:
“ Every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same shall reside, or where the business in respect to which the same is made has been carried on; and in case said assignment shall embrace lands or any interest therein, then the same shall be recorded in the county or counties in which said land may be situated.”
This assignment was made in accordance with the law of the state of Illinois governing such matters. It was signed and acknowledged in these words :
“I, Peter A. Simmons, a notary public in and for said county, in the state aforesaid, do hereby certify that Philip H. Thornpkins, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared be-% fore me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act and deed, for the uses and purposes therein set forth.”
Now this acknowledgment meets all the requirements of §§10 and 11 of our statute, relating to conveyances of real estate when acknowledged out of the state. Section 1 of an act to regulate voluntary assignments for the benefit of creditors, of chapter 6, Compiled Laws of 1885, p. 96, provides that every such assignment shall be proved or acknowledged or certified and recorded in the same manner as is prescribed by law in case wherein real estate is conveyed. Attached to this assignment is a schedule embracing a list of personal and real property transferred by it to the assignee, and in this schedule we find this description of real property situate in this state: N.E.¿sec.9, T.34, R.2 E., Sumnér county, Kansas; S.E.| sec. 9, T.34, R. 2 E., Sumner county, Kansas; N.W.J sec. 22, T. 28, R. 2 W., Sedgwick county, Kansas. It is true that there is a misdescription as to a part of the land owned by Thompkins in this state in this schedule, but this is not important in the view of the case we are considering. We have now reached this conclusion: that the assignment made by Thompkins in the state of Illinois is not only in conformity to the laws of that state, but if made in this state would be sufficient to pass the title to the assignee under the assignment of the lauds owned by him in Kansas. The statute of Illinois contains this provision as to the sale by the assignee of the real estate embraced in the assignment:
“Sec. 11. That any assignee or assignees as aforesaid shall have full power and authority to dispose of all estate, real and personal, assigned, as the debtor or debtors had at the time of the assignment, and to sue for and recover in the name of such assignee or assignees everything belonging to or appertaining to said estate, real or personal, and generally to act and do whatsoever the said debtor or debtors might have done in the premises; but no sale of any real estate belonging to said trust shall be made, only on "notice published as in case of sales of real estate on execution, unless the county court shall order and direct otherwise.”
Our statute upon that subject provides:
“Sec. 34. The district court, or judge thereof in vacation, shall make an order for the sale of all the real or personal estate conveyed by any deed of assignment, either for cash in hand or upon such reasonable credits as shall appear to such court or judge to be most advantageous to all the parties in interest, and shall, by order, direct the nature of the security to be taken at sales made by assignees under the provisions of this chapter.”
We have now to recur to the manner in which the sale of the attached real property was made by the assignee to the plaintiff in error, and see whether or not it was disposed of in accordance with the provisions of our statute, because, as we have seen, this is the law that governs the sale and passes the title. It will be noticed that the Illinois statute gives the assignee an unrestricted power to sell the real estate transferred to him by the assignment, the only power of the county court being to fix the length of notice necessary, if a shorter or longer time is thought desirable by the assignee than the notice prescribed for sales on execution. In this state real estate that is transferred under a general assignment for the benefit of creditors, can only be sold by an order of the district court. It may be possible that the Illinois assignee could apply to the district court of the county in Kansas .in which the land is situate, for an order of sale. But be this as it may, it is certain that no such order was applied for or made. The record discloses that this pretended sale from the assignee to the plaintiff in error was made by the consent and with the approval of the county court of Woodford county, state of Illinois. This sale, not having been made in accordance with the law of this state, vests no title in the plaintiff in error. As she takes nothing by this sale, she is not in a position to question the validity of the attachment proceeding. Conceding that the acts of the defendant in error have been such as to make him an assenting party to this assignment, and to estop him from asserting in a proper action the invalidity of this assignment, still we are of opinion that the plaintiff in error not having shown any title to the real estate attached, and not having asserted her rights as a creditor or otherwise, cannot invoke the aid of such a principle. We are not to be understood as deciding this principle of estoppel as having application in this ease; all we do now decide, and all that is necessary to decide to determine the rights of the plaintiff in error to the Kansas land is, that there has been no sale or conveyance to her according to the law of this state regulating such matters. We can rest very confidently on this as being not only fundamental, but in accord with everydecided case. (Story, Conflict of Laws, §§428, 448, 551, and 555; Burrill on Assignments, § 304; Williams v. Maus, 6 Watts, 278; Osborn v. Adams, 18 Pick. 245; City Ins. Co. v. Commercial Bank, 68 Ill. 348; Rhawn v. Pearce, 110 id. 350; Kelly v. Crapo, 45 N. Y. 86.)
We desire to restrict this principle in its application to this case to the attempt of the assignee Espey to convey the title to the land in this state to the plaintiff in error. There is some very respectable authority that applies this same rule to the assignment, and holds distinctly that the assignment of a non-resident debtor cannot be allowed to operate on property so as to defeat an attachment of a resident creditor made subsequent to the assignment. (Fox v. Adams, 5 Greenl. 245; Ingraham v. Geyer, 13 Mass. 146; Dunlap v. Rogers, 47 N. H. 281.)
We rest our decision in this ease upon the fundamental principle that the assignor can only convey the title to the land in Kansas according to the laws of this state. These require a judicial sale by the order of and under the direction of the district court of the state in whose jurisdiction the land is situate.
We recommend the affirmance of the judgment.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Hobton, C. J.:
Lucy C. E. Gay brought her action against George W. Bartholomew, to recover upon a promissory note and foreclose a mortgage given to secure the same. The petition set forth that the note had become due and the mortgage subject to foreclosure by reason of the failure of the defendant to pay the semi-annual installment of interest when, by the terms of the note, the same became due. The defendant answered, pleading payment of interest, and therefore that nothing was due; to which answer, plaintiff replied by a general denial. Neither the petition nor the answer was verified. The case thereupon stood for trial upon the issue made by the pleadings, whether the interest had, in fact, been paid. The plaintiff filed her motion to strike the answer from the files as untrue in fact, and therefore a sham. It was sought to support this motion by the deposition or affidavit of the petitioner. He refused to testify before the notary public when his deposition was attempted to be taken; and for this refusal was committed to the custody of the sheriff, W. W. Hays, as keeper of the common jail, for contempt. He alleges that he is unlawfully restrained of his liberty, and this proceeding has been brought by him to obtain his discharge.
The principal question is, whether the defendant can be required to furnish an affidavit or his deposition to support a motion to strike out his answer upon the ground that it is a sham only. A sham answer is one good in form, but false in fact and not pleaded in good faith. In several of the states, as for instance, New York, Indiana and California, the civil code provides that sham and irrelevant answers may be stricken out upon such terms as the court may in its discretion impose. The code of this state contains no such provision. In this state a petition does not have to be verified, and the answer needs no verification, unless it is intended to put in issue the execution of a written instrument, or an indorsement thereon, or the existence of a corporation or partnership, or some appointment or authority. Clearly, a general denial, or an answer of new matter, affirmatively pleaded, ought not to be disposed of by the court in a summary way, nor an inquiry in advance of the trial be entertained as to the good faith of the defendant in filing his answer. Affidavits as a general thing are not the best way to hear and try the issues in a case. The defendant’s right to have a trial of the issues of his case before the court or a jury ought not to be frittered away. It may be said that a motion to strike out an answer is not the trial of an issue. This is true; but in substance the difference is scarcely perceptible; it calls for a determination whether the pleadings be true or false. If found false and stricken out by the court, the defendant is deprived of any benefits therefrom. If this practice is encouraged or permitted, it is in the power of a plaintiff in every case to file a motion to strike out the answer because it is a sham, and in this way the plaintiff’ is permitted to have a trial upon affidavits, and if he fails in that, he is still entitled to a trial in the usual and ordinary way. This gives the plaintiff a great benefit, because he hazards nothing by a motion to strike out but costs, while the defendant is precluded from a trial by the court or jury upon oral evidence by an adverse result. At common law a special plea of a matter known to be false was considered as an abuse of justice; and a reasonable exercise of the power to correct and prevent abuses in pleading and practice is said by some of the decisions to be inherent in the court and indispensable to the proper administration of justice. (Barker v. Foster, 29 Minn. 166; Lumber Co. v. Richardson, 31 id. 267.)
- While we shall not go so far in this decision as to say that an answer which is false in fact, and therefore a sham, may not, under some circumstances, be stricken out, yet we do not think it good practice to permit a motion to be filed to strike out an answer as a sham, and then compel the defendant to make affidavit or give a deposition to be used upon the motion. On the part of a plaintiff, the answer may be claimed to be untrue in fact. On the part of the defendant, the answer may be filed in good faith and with the honest belief that its allegations are true. In such a case, it would be a great injustice to have the judgment of the court expressed upon affidavits merely. There is no more reason for striking out a false answer than a false petition. In the judgment of the plaintiff, almost every answer filed is false or untrue, and if courts are permitted to hear and dispose of answers upon affidavits only, much of the time of the courts will be wasted in hearing unnecessary and useless motions of this kind. If the facts justified, perhaps the district court might orally examine a defendant as to the truth of his answer.. In New York, where provision is made in the code for striking out sham answers or defenses, the court has no power to strike out a sham answer consisting of a general denial. (Wayland v. Tysen, 45 N. Y. 281; Schultze v. Rodewald, 1 Abb. N. C. 365.) Such is also the rule in California. (Fay v. Cobb, 51 Cal. 313.)
We do not think the petitioner is required to give his affidavit or deposition to be used upon the motion to strike his answer from the files. He will therefore be discharged, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a continuation of the controversy between George W. Newman and the city of Emporia that was before this court in 1884, respecting the levy of a special tax upon the property of Newman in that city for street improvements, and the decision then made is reported in 32 Kas. 456. The facts in this case are substantially the same as in that, except that since the earlier case was decided the legislature of 1885 passed a curative act as an amendment to § 41 of the act incorporating and governing cities of the second class. It provides that—
“ In case the corporate authorities of any city have attempted to levy any assessments or taxes for improvements, or for the payment of any bonds or other evidence of debt, which assessments, taxes or bonds are or may have been informal, illegal or void for the want of sufficient authority or other cause, the council of such city, at or before the time fixed for levying general taxes, may re-levy and re-assess any such assessments or taxes in the manner provided in this act.” (Laws of 1885, ch. 101.)
Subsequent to the passage of this act, and in pursuance thereof, the mayor and council of the city, on September 26, 1885, by ordinance, and “with all due formality,” re-levied the entire amount of the special tax and assessment against the plaintiff’s property, with interest at ten per cent, on the amount of the tax from the date of the re-levy, as a tax of 1885. This amount was certified to the county clerk of Lyon county, who entered the same on the tax-roll of the county for the year 1885. The tax-roll was placed in the hands of the county treasurer, who was proceeding to enforce a collection when this action was brought to have the assessment and tax against the property declared void, and to enjoin the officers from proceeding further.
The plaintiff contends that the curative act under which the re-levy was made is in contravention of §1 of article 12 of the constitution, which forbids the passage of any special act conferring corporate powers, and is therefore void. There is no force in this objection. The act is general in its form and terms, and necessarily general in its effect, It is not limited as to time, but is present and prospective in its operation. Every city of that class may take advantage of its provisions, and the experience of the past indicates that numerous occasions for their application will arise. Neither persons nor property should be relieved from taxation in fair proportion by reason of the errors or neglect of the corporate authorities; and as errors are frequently made, the necessity for some curative legislation like this is apparent to all — a necessity which is not confined to any particular city. It is manifest from the scope of its operation that no particular instance or city was in mind when it was enacted. It applies when a tax is informally or illegally levied in a city, as well as when an assessment is so levied. It applies in any city where the authorities have so made a levy for improvements; and where either an assessment or tax is informally or illegally levied for the payment of bonds issued by the city, the act may operate; and it may likewise apply wherever such a levy is made for the payment of any other evidence of debt issued by the city. In every view that may be taken the act must be regarded as general in purpose and operation. (City of Topeka v. Gillett, 32 Kas. 431; Mason v. Spencer, 35 id. 512.)
A curative act like the one under consideration, except as to the time when the re-levy may be made, was examined and upheld by this court in City of Emporia v. Norton, 13 Kas. 569; and the decision there reported answers some of the objections relied on in the present case. The main objections to the re-levy of the assessment are that it was imposed as a charge on the plaintiff’s property without notice to him; and further, that it was made regardless of benefits to the property by reason of the improvements. That the owner must have some notice or opportunity to be heard in opposition to the special assessment before it becomes a fixed and permanent charge against the property, is conceded and well settled. (Gilmore v. Hentig, 33 Kas. 156.) But the plaintiff in the present case was not without notice or opportunity to contest the correctness of the valuation and appraisement. After the improvements were determined upon in August, 1882, appraisers were appointed by the mayor and council of Emporia, who made an appraisement of the property to be charged with the special improvements in question. When their report was returned, due notice thereof was given, and that a special session would be held á week later, at which time complaints could be heard as to the valuation, and appraisement made. The plaintiff did not avail himself of this opportunity, and, notwithstanding the notice given, he made no objection concerning these improvements until the commencement of the litigation heretofore mentioned. It is argued that all the preliminary proceedings taken, including notice, must be treated as void because the original levy was declared by this court to be illegal. It was not then determined that every preparatory step in the proceeding must be taken by an ordinance; indeed, the propriety of taking certain initiatory steps, such as precede the authorizing and ordering of the work by resolution, is recognized. It was decided that the authorization of the work, the manner of its performance, and the levy of the assessment to pay for the same, must be done by ordinance instead of by resolution; and this is the extent to which the decision in that case went. It is urged that while the curative act may remedy other preliminary steps that were defective, it cannot dispense with a new and additional notice before the re-levy is made. If it is granted that the determination that the tax is void affected all the steps taken, and that another notice and opportunity to oppose the assessment are required to be given before the asséssment re-levied under the curative act can become a charge against the property, still the plaintiff has no reason to complain. The parties agree that an ordinance re-levying the assessment was passed on September 26, 1885, “with all due formality,” and as the ordinance must therefore have been published, it was notice to him, and he had an opportunity to further contest the fairness and regularity of the assessment before it became a charge on his property, which did not occur until the following November. It is not essential that this notice should have been given before the re-levy was made to sustain the assessment. In Gilmore v. Hentig, supra, it is said that —
“It is not necessary, however, in any case that the notice should be personally served upon the property-owner, or that the proceeding should be a judicial preceding; but any notice that will enable the property-owner to procure a hearing before some officer, board, or tribunal, and to contest the validity and fairness of the taxes assessed against him before the same shall become a fixed and established charge upon his property, will be sufficient.”
Numerous authorities are there cited which sustain these propositions and the sufficiency of the notice given in the present case. The publication of the ordinance alone afforded the plaintiff due notice that an assessment had been levied on his property in pursuance of the act of 1885, which was intended eure which had been irregularly and illegaily done before the re-levy, and he had ample time and opportunity after the re-levy, either before the council or in the court, to contest the justness and validity of the assessment before it became irrevocably fixed.
He next assails the validity of the assessment because, as he claims, it was not made on a just and correct basis, but was levied regardless of special benefits that would result from the improvement of the street. He claims that the rec ord contains an admission of this fact where it states “that the appraisers in appraising this property for the purpose of making the special assessment upon the same, were governed by their judgment as to what the value of such piece of property was without any improvements thereon, and did not take into consideration the question or any question of the benefits the improvements would be to such property or any part of it.” This does not amount to an admission that the assessment was made without reference to special benefits. The appraisers, it is true, did not take into consideration the benefits which would result to each lot from the improvement to be made, nor make any assessment against the lots upon that standard, for that was not in their province or duty. The standard for apportioning the cost of the improvements is fixed by the legislature itself, and is to be applied to the lots or parcels of ground in the district according to the value of the same, exclusive of improvements thereon. All that is required of the appraisers is to fairly and impartially appraise the value of the lots or pieces of ground regardless of buildings or improvements thereon, reporting the same to the city council; and beyond the matter of fixing the actual value they are without discretion or power. (Comp. Laws of 1885, ch. 19, § 32.) They had, therefore, no power to distribute the expense of the improvements in accordance with benefits, except as their action in appraising the values indirectly affects the apportionment. The objection of the plaintiff, therefore, goes to the method prescribed by the statute rather than to the detailed action of carrying it out. The appraisers placed and returned a value on all pieces of property extending from the street to be improved to the center of the block, as the statute provides, and very little if any complaint is made against the fairness and justice of the valuation made. Further, it is agreed that the assessment was for needed improvements; that the work was well done upon competing bids, and the charges therefor were reasonable and not excessive. The plaintiff’s lots did not abut on the street which was then improved, but they were in the half-block which did abut. The manner of assigning districts for special taxation upon the standard of benefits conferred, is largely a question for the legislature, and the mode thus established is not to be set aside because in the opinion of some individuals or of the court some other plan would be more equitable and just. In 2 Dillon on Municipal Corporations, § 761, it is said that, “When not restrained by the constitution of the particular state, the legislature has a discretion coextensive with the broad domain of legislative power, in making provisions for ascertaining what property is specially benefited, and how the benefits shall be apportioned.” Further along in. the same section the author states that the tendency of later decisions “is to hold that the legislative power is not unlimited, and that these assessments must be apportioned by some rule capable of producing reasonable equality, and that provisions of such a nature as to make it legally impossible that the burden can be apportioned with proximate equality are arbitrary exactions, and not an exercise of legislative authority.” A great variety of methods upon which assessments are levied for local improvements have been adopted by the several legislatures of the country, but it is doubtful whether any one of them is more just in its application than the one adopted by ours. Eules based arbitrarily on frontage or on superficial area have been sustained; but our method combines valuation with area, and it is made more nearly equal and just by excluding from the valuation the buildings or improvements that may be upon the lots. It is doubtless true that our scheme of assessment will in some cases operate unfairly, but it is impossible to find one which will in all cases do absolute and exact justice. The district upon which the assessment is levied is not great in extent nor unreasonable in form, nor can we say that it is “legally impossible” to apportion the burden of the assessment with proximate equality upon the lots included therein. The matter of assigning districts is confided to the legislature, and its judgment must control, unless it has plainly and manifestly passed beyond the limits of legisla tive power. (Cooley on Taxation, 429, 450.) The assessment reaches to the center of the block for the improvements of the surrounding streets, and in the present case the district in which the plaintiff’s property was situate is 175 feet in width by 320 feet in length. The improvement of the streets surrounding this territory must in the nature of things be of special benefit to the same. As was said in Ottawa v. Barney, 10 Kas. 279: “There is a certain sort of relationship between streets and blocks, whose existence we all appreciate, no matter how illy it may be in fact recognized. The streets are for the service and use of the blocks; and the idea is that there should be such an adjustment of their numbers and size that each portion of the block should receive all needful service from the streets.” The validity of the scheme of assessment devised by our legislature can hardly be regarded as an open . question, as it has been approved directly and indirectly by this and other courts. (Hines v. Leavenworth, 3 Kas. 186; Ottawa v. Barney, 10 id. 270; Emporia v. Norton, 13 id. 586; Gilmore v. Hentig, 33 id. 156; Mason v. Spencer, 35 id. 512; Downer v. Boston, 61 Mass. 277; Wright v. Boston, 63 id. 233; Brewer v. Springfield, 97 id. 152; Springfield v. Gay, 12 Allen, 612; Cooley on Taxation, 456.)
The remaining objections are, that it was inequitable to assess the whole of the tax in one year, and to include a charge of ten per cent, interest on the amount of the assessment from the time of the re-levy. But neither of these will avail the plaintiff. The whole amount of the assessment was due and to be provided for in 1885. The improvements were completed in August, 1882, and an opportunity was given to the owners to pay the assessments on or before October 5th of that year. The bonds of the city to pay for the improvements were issued in October, 1882, payable in one, two, and three years, with interest at ten per cent, per annum, payable annually; and it will therefore' be seen that the plaintiff pays less than the other property - owners, as he escapes all interest on the assessment except from the time the re-levy was made. We are inclined to think that the action taken was proper; but the plaintiff has not paid or tendered any part of the taxes, and hence he is not in a position to complain that the action was inequitable, or to obtain an injunction on the ground that the amount of the levy was excessive. (City of Ottawa v. Barney, supra; Mason v. Spencer, supra.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
By this action Julia P. Munger seeks to recover valuable real estate in the city of Wichita, which was formerly owned by D. S. Munger, her husband. He conveyed the same by warranty deed in 1877, which was executed by signing his own name thereto, and also that of his wife as her attorney in fact, under a power of attorney previously given by her. Long after the conveyance, and when the property has become valuable, she questions the validity of her own act, and now asserts that the power of attorney is invalid for want of capacity to make the same, and that it and the deed of conveyance are defective in form. She contends that by reason of being a married woman she was incapable of appointing her husband by letter of attorney as her agent to convey the inchoate interest which she held in her husband’s real estate. The arguments and authorities cited to sustain this view proceed upon the common-law theory that the marriage rendered the wife incapable of making contracts, and hence incapable of appointing an agent or attorney to act for her. These arguments and authorities are inapplicable in this state, where the disabling rules of the common law have been largely changed by the statute. By legislative enactment the wife has been placed on an equality with the husband in respect to holding, controlling and disposing of property which she may own at the time of the marriage or which may afterward be acquired by her. During coverture she is specifically empowered to carry on any trade or business, and perform any labor or service on her sole and separate account; she may sue and be sued in the same manner as if she were unmarried, and “may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same, in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.” (Comp. Laws of 1885, ch. 62, §§ 1, 2, 3,4.) While the unity of the husband and wife in the marital relation in a certain sense remains, these provisions have brushed away many of the disabilities of the wife under the common law; have recognized her individual existence, and conferred upon her distinct rights and powers respecting contract’s, the •carrying -on of business, the owning, controlling and disposing of property, equal to those held and enjoyed by the husband. She is clothed with power to manage her own affairs, and certainly has power to appoint an agent or attorney to do that which she is capable of doing in person. The' right of the husband to act as the agent of the wife and to contract with her has been repeatedly recognized by this court, and it has been held that the conveyance of real estate directly from the husband to the wife would be upheld so far as it was equitable to uphold the same. (Sproul v. National Bank, 22 Kas. 336; Horder v. Horder, 23 id. 391, and cases cited.)
In respect to conveying property, or any interest which she may hold therein, she stands on an equal footing with the husband and is governed by the same rule. No restrictions are placed upon the wife, and no other or different methods of conveying property, real or pei’sonal, are prescribed. As has been seen, she is in respect to property a distinct person, with distinct and separate rights from her husband, authorized to “ enter into any contract with reference to the same, in the same manner, to the same extent and with like effect as a married man in relation to his real and personal property.” At the same time the legislature provided the methods by which real estate should be conveyed, and the language used is general and applicable alike to all persons. It was enacted that “conveyances of land, or of any other estate or interest therein, may be made by deed executed by any person having authority to convey the same, or by his agent or attorney, and may be acknowledged and recorded as herein directed without any other act or ceremony whatever.” (Comp. Laws of 1885, ch. 22, § 3.) By § 7 of the same act it is provided that “all deeds or other conveyances of land, or of any estate or interest therein, shall be subscribed by the party granting the same, or by his lawful agent or attorney, and may be acknowledged or proved and certified in the manner herein prescribed.” No distinction is made between the wife and any other person, either in the manner of execution or the acknowledgment of a conveyance of real estate. By virtue of this legislation the wife is undoubtedly authorized to convey any real estate or interest therein which she owns and which is subject to conveyance. It is equally clear that she is left free to select whomsoever she pleases as her agent or attorney for that purpose, and there is no reason why her husband may not act in that capacity. It is contended, however, that the wife cannot dispose of her inchoate interest in her husband’s real estate in this way. It is argued that she does not hold an estate or interest in the land, but a mere contingent right, which is not property, but is similar to the right of dower, which is not contemplated by the legislature in the acts referred to, and can only be transferred in the manner in which the right of dower was formerly transferred. The estate of dower has been expressly abolished by the legislature of Kansas, and an interest differing both in quantity and quality has been provided for the wife. It is true, as counsel suggests, that § 646' of the code, relating to the distribution of property when a divorce is granted, refers to the portion which the wife shall receive if she survives her husband, as a right of dower. But in Crane v. Fipps, 29 Kas. 585, it was decided that this provision was not intended to create the right of dower, and in the present state of the law was inoperative. The interest of the wife in the real estate of her husband during marriage is a contingent one, it is true, but it is unquestionably property, and no reason has been advanced why she may not empower the husband to act for her and in conjunction with himself convey it away. In Busenbark v. Busenbark, 33 Kas. 572, the nature of this interest was considered, and it was determined that while it was inchoate and uncertain it still possessed the elements of property which may be in connection with the husband the subject of contract and bargain, and was of such a character that the wife might during marriage maintain an action for its protection and for relief from fraudulent alienation by her husband. That it is an existing interest, and one which may be the subject of conveyance by the wife during marriage, is expressly recognized by the statute defining the same, as follows:
“ One-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts and of which tbe wife has made no conveyance, shall under the direction of the probate court be set apart by the executor as her property in fee simple upon the death of the husband if she survive him.” (Comp. Laws of 1885, ch. 33, § 8.)
How shall this interest be conveyed ? If, as contended, it attaches to the estate of the husband and must be conveyed in conjunction with him, still it is the property of the wife, an interest in real estate, and the statute respecting conveyances makes no distinction between this and any other real property or interest therein which the wife may have. When it is admitted that it is property and an existing interest in real estate, the act respecting conveyances, already cited, certainly applies. Its provisions are broad and comprehensive, and authorize a conveyance by any person of any interest in real estate in the manner directed • and also that it may be done by any person through an agent or attorney. They apply to all persons, male and female, married and unmarried, and nothing in the law or its policy forbids that the husband should act as the agent or attorney of the wife in this respect, or which would exclude the conveyance of this interest from the ordinary rules .laid down in the statute. Nor is there any ground for the claim that the interest of the husband is adverse to that of the wife, making it improper for him to act in her behalf. The statutes of Kansas recognize no conflict of interest between them, nor any necessity to protect the wife against the act of the husband. They do not contemplate that she may be led to convey her interest through fear, compulsion, or the undue influence of her husband; and hence we have no enactment, as some states do, that in making a conveyance she must undergo a private examination by an officer to learn whether she is intimidated by her husband or is executing the conveyance against her will. On the contrary, the law proceeds upon the theory of confidence, good faith and honest dealing between husband and wife; and while there may be cases where the husband may take advantage of this confidence, yet it is almost as liable to occur through his obtaining her signature to the deed of conveyance as it would be in procuring from her a power of attorney authorizing him to convey the same property. We conclude that the wife • < i tit i ■ i . can appoint her husband as her agent and at- & torney m fact to convey the inchoate interest which she holds in his real estate, and that an instrument duly executed by himself and by him for her under such authority is effectual to transfer such interest.
The remaining objections made by the plaintiff in error are technical in their character, and under the circumstances of the case are not entitled to serious consideration. She claims that the power of attorney is invalid because the property authorized to be conveyed is not sufficiently described. The power granted is “to execute and acknowledge, sign, seal and deliver any deed or deeds for the conveyance or assurance of all my right, title and interest in and to any lands and tenements the title to which is in the said D. S. Munger, and in which I have any interest as being the wife of him, said D. S. Munger.” The language employed is sufficiently broad to include all lands owned’ by the husband at the time the letter was executed, and specific enough to authorize the conveyance of the land in controversy. The word “any” is to be taken in the broader sense, and includes all or any particular portion of the lands then owned by D. S. Munger. A detailed description oi the lands which he owned was unnecessary. A power of attorney is required to be recorded in the office of the register of deeds of the county in which the lands to be conveyed are situate• and the pleadings show that the power of attorney in the present case was recorded, in compliance with such statute, in Sedgwick county, where the lands in controversy lie, and this would authorize the sale of any land which D. S. Munger owned within that county. As the power authorized the sale of any lands the title to which was in D. S. Munger at a stated time, the lands intended to be conveyed can be definitely ascertained; and the rule is, that that is sufficiently certain which can be made certain. Whatever might be held in other cases and under other circumstances with respect to the sufficiency of such a description, it must be held sufficient as against the claim of the one who executes the power of attorney under which the land has been transferred through several hands, and where the party has stood by for many years, as the plaintiff has done, until the property has, become valuable, without questioning the validity of the instrument.
The acknowledgment of the power of attorney is said to be insufficient. The objection is that the officer taking the acknowledgment failed to certify that the person making the same was personally known to him as the person who executed the instrument. He does certify that Julia P. Munger is personally known “to me to be the identical person whose name is affixed to the foregoing instrument of writing as grantor, and duly acknowledges that she executed the same and for the purposes therein set forth.” This substantially complies with the requirements of the statute, and only a substantial compliance is required, jj. jg reqUire(j that the instrument shall be executed in the presence of the officer, nor is it material that he should know that the signature was written by the grantor, for if the grantor acknowledges before the officer the due execution of the instrument, he thereby recognizes and adopts the signature as his own.
The final objection is, that the deed conveying the property was not legally acknowledged. The challenged portion of the certificate reads as follows: “Came D. S. Hunger and Julia P. Munger his wife, by D. S. Hunger, her attorney in fact, who are personally known to me to be the same persons who executed the foregoing instrument of writing, and duly acknowledged the execution of the same.” It might have been more explicit in stating that D. S. Hunger acknowledged the execution of the deed for himself, and also in his representative capacity for his principal, Julia P. Hunger. But as the plural form of expression is used, it plainly implies an acknowledgment in both his individual and representative capacities, and that in the latter capacity he acknowledged the deed as the act of his principal, who was named in the certificate- The sufficiency of the acknowledgment, however, was not properly raised by the demurrer, as the certificate of acknowledgment is not essential to the validity of the instrument. It is simply evidence of the execution of the deed, and where the certificate is absent the execution may be established by other proof. An unacknowledged deed passes title equally with one duly acknowledged and certified; but of course it would not be admitted in evidence upon the trial until its execution was shown by competent testimony. The question of the sufficiency of the certificate of acknowledgment can only be raised wheu the deed is offered in evidence; and if it is found to be defective, it can then be supplied by direct proof of execution. (Gray v. Ulrich, 8 Kas. 122; Arn v. Matthews, 39 id. 274.) The execution of the conveyance, however, was alleged in the answer and admitted by the demurrer, and hence the certificate of acknowledgment is of no consequence at this time.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action by Nancy J. Judah, as mother and next of kin of Fannie Judah, to recover damages for her death. She had judgment in the district court.
Jennings D. Judah, the husband of the plaintiff below, and his two daughters, Fannie and another, were killed in a collision between a spring wagon in which they were riding and an engine pulling a passenger-train of plaintiff in error. The accident happened in January, 1898, about six o’clock p.m., at a crossing a short distance west of the city of Atchison, where what is known as the Monrovia road passes over the tracks of the Missouri Pacific Railway Company, the Central Branch Union Pacific Railway Company, and the Atchison, Topeka & Santa Fe Railway Company, in the order named, beginning from the north. The wagon road runs from the north in a southwesterly direction across the tracks.
Jennings D. Judah, accompanied by his two daughters, started from Atchison toward their home in the country. He was driving the team. When they reached a point several feet north of the Missouri Pacific track, which is about fifty feet north of the track of plaintiff in error, a switchman whose watch house, or “shanty,” was about 140 feet north from the center of the Santa Fe track, south of the wagon road, and eight or nine feet north of the Missouri Pacific railway track, heard the voices of persons approaching. About this time he saw the headlight of an engine coming from the west. A few seconds later he heard, the whistle sounded eighty rods distant. Immediately he heard one of the women in the wagon exclaim, “Stop; there comes a train!” He then took .his lantern, went out, and saw a team of horses and a spring wagon approaching from the northeast. The team was then sixty-five feet distant from the Santa Fe track. He shouted, as the jury found, in more than a moderate tone of voice, “Hold on; you can’t make the crossing!” The team was going at a brisk trot and continued at the same speed until the collision with the locomotive. Eighty rods from the crossing the engineer sounded four blasts of the whistle. The jury found that the bell was not rung. They also found that, as soon as the engineer learned that there was a team going toward the crossing, he applied the air-brakes with full force. The negligence of plaintiff in error was found by the jury, in answer to a particular question, as follows :
“Ques. If you find that deceased came to her death by or through the fault or negligence of the defendant, then state fully all the facts and things which you find from the evidence constituted the said fault or negligence of the defendant. Ans. Excessive rate of speed over a crossing which had an unusual amount of travel over same, and failing to provide proper and reasonable precautions.”
The testimony introduced by plaintiff below tended to show that the train was running at a speed of forty to fifty miles per hour. It is an established fact that the occupants of the wagon had due warning of the approach of the train when they were at least sixty-five feet from the track of the plaintiff in error. The first alarm came from one of the women, who said, “Stop ; there comes a train !” and the second from the switchman who was watching the crossing. Having ample knowledge of the proximity of the train, a failure to ring the bell cannot be charged against the railway company as an act of negligence. A signal by whistle or bell in such cases is to give warning of an approaching train. When a traveler, about to cross a railroad-track, has notice of that which a whistle or bell signifies, the giving of such warnings is a work of supererogation as to him. A failure to give notice to one already informed of a fact cannot be called negligence. (C. R. I. & P. R. R. Co. v. Bell, Adm’r, 70 Ill. 102; Pakalinsky v. N. Y. Cent. & Hud. R. R. R. Co., 82 N. Y. 424; A. T. & S. F. Rld. Co. v. Walz, 40 Kan. 433, 19 Pac. 787.)
There remains, therefore, in the case but one question, which is whether the railway company was chargeable with negligence in running its train at a speed, of forty to fifty miles an hour ? This speed, it is urged, wasxso great that the momentum of it could not be overcome by the engineer after he saw the team and wagon about to cross the track. Witnesses who testified for the plaintiff below stated that the train was going at about its usual speed, and it appeared not to be behind time. While there was considerable travel over this crossing, yet it was not in the corporate limits of a city, but in the country. It has been held by this court that in such cases speed cannot be made an element of negligence. In Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 670, 44 Pac. 607, it was said:
“The crossing was in an open country, where there was no statutory or municipal regulation with respect to the speed of trains. The demands of the public and the necessities of modern business require that such trains should be run at a rapid rate, and railroad companies would hardly be justified in slacking the speed at every such highway crossing to avoid the risk of a collision with some one who was passing over the same. Even if the rate of speed had been pleaded as a specific act of negligence, it could hardly be held, under the circumstances, that the speed at which the train in question was run was negligent or unlawful. The court, however, without justification, made the speed of the train an element of negligence, and the jury evidently made' it a .basis of recovery. In this there .was error. . . . Under ordinary circurm stances, in the open county, the railroad company can run as many trains and at as great a rate of speed as is consistent with the safety of its passengers.” (See, also, A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257, 45 Am. St. Rep. 278.)
Those in charge of the train seem to have done all that they could to avert the accident. Probably n'othing more would have served any useful purpose.
Counsel for defendant in error insist that the carelessness of the father, who was driving the horses, cannot be imputed to the daughter who was riding by his side. This is an immaterial consideration, however, when it is found that the railway company was guilty .of no act of negligence toward the occupants of the wagon.
The judgment of the court below will be reversed, with directions to enter judgment on the findings of the jury in favor of the defendant below.
All the Justices concurring. | [
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Error from Sedgwick district court. | [
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Error from court of appeals, northern department. | [
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The opinion of the court was delivered by
Cunningham, J.:
Appellants were convicted be-
fore a justice of the peace of the city of Columbus, in Cherokee county, of keeping and maintaining a nuisance. They sought to appeal from such conviction to the district court of that county. Chapter 156, Laws of 1901 (Gen. Stat. 1901, §1949), provides for holding terms of the district court of that county both at Columbus and at Galena, and section 5 of the act provides that, in all appeals or proceedings in error from justices of the peace to the district court, the party taking such appeal or proceeding in error has a right to designate whether the same shall be to the court sitting at Columbus or sitting at Galena, and in all cases in which any person is required to enter into recognizance for his appearance before the district court, the officer taking such recognizance shall designate whether the person shall be recognized to the court sitting at Columbus or sitting at Galena. Appellants here claim that this was such an appeal.as gave them the right to indicate whether it should go to Columbus or Galena.
Section 5826, General Statutes of 19015 provides that a defendant in a criminal action shall have the right to appeal from the judgment of a justice of the peace imposing a fine or imprisonment or both upon condition that he “enter into a recognizance to the state of Kansas in a sum and with sureties to be fixed and approved by the justice before whom said proceedings were had.” Now, as under section 5 of chapter 156, Laws of 1901, in cases where a recognizance is required to be given, the officer taking such recognizance must direct where such appeal shall be tried, and as this is a case whex’e upon an appeal a recognizance is required to be given by the terms of section 5826, General Statutes of 1901, therefore, the justice did right in selecting the place where the case should go. While the language used in the first part of section 5 is that in all appeals the party appealing shall have the right to designate where his appeal shall be tried, the subsequent portion, as well as the context, indicates that civil appeals were meant, and not criminal ones.
Appellants further complain of the action of the district court in perxnitting the name of the probate judge to be indorsed upon the coinplaint during the progress of the trial, contrary to the rules of the court in relation to such matters. The evidence of the probate judge was mex*ely formal and something that defendants might well expect to be introduced, the offering of which could nowise prejudice or surprise them. The rule of the trial court cannot be said to be a hard-and-fast one, or one the violation of which this court may hold to be an abuse of discretion.
After the court instructed the jury, the defendants were asked in the presence and hearing of the jury if they had any objection to the jurors’ separating and going to their meals. It is insisted that this was error, for the reason that it tended to prejudice the jury against the defendants, as, if they should deny the request, the jurors would naturally feel injured and revengeful, and if they should grant the request, the jury might be exposed to adverse influences by their mingling with persons prejudiced against the defendants. Appellants cite State v. Parker, 25 Wash. 405, 65 Pac. 776, in support of their contention. The statutes of Washington do not permit the separation of a jury except by the consent of the defendant, and it was held in that case, under circumstances somewhat similar to that of the case at bar, that consent so given was not voluntary, and, hence, it was not the consent of the defendant. No such provision is found in our statute, the whole matter relating to the conduct of the jury being left to the sound discretion of the court, without respect to the wishes of the parties. We see no indication in the facts of this case that this discretion was not properly exercised.
The complaint charged that the nuisance was maintained in a one-story building, and it is insisted that the evidence shows that it was in a two-story building. The evidence does show that there were some attic rooms in the building, and perhaps it'might have been well called a one-and-one-half-story building, but we see no material departure from the allegations of the complaint, even if we should say that it was essential to prove the building to be exactly such as was alleged in the complaint. The identity of the building where the nuisance was shown to have been maintained with that charged in the complaint was fully established.
The judgment of the trial court will be affirmed.
All the Justices concurring. | [
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Error from Decatur district court. | [
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The opinion of the court was delivered by
Burch,
record in this case presents but two questions for determination: (1) The extent of the duty of the cement company to Moore; and (2) whether Moore was himself free frorq such fault as would preclude recovery.
It is wholly unnecessary to enter upon any discussion of the duties of a landowner to one who enters upon his premises by mere “sufferance,” or “license,” or “permission,” and without “inducement,” or “allurement,” or “enticement,” or “invitation.” No refinement upon any of these terms is required in estimating the facts of this case. Its superintendent says the cement company “gave up” the track on which the injury occurred to the brick company. It appears that this was done for the business purposes of the brick company and the railway company, and that the use contemplated involved the running of trains operated by crews of men back and forth over the track without previously communicating knowledge of the time of such action to the cement company. There was, therefore, a surrender of the property to the users, which, in effect, operated as a grant revocable at will.
It is immaterial that the consideration was one of favor only. The relationship established, whatever the motive, was the essential thing, and it follows from the testimony quoted that the track in question was, for all purposes of the law, the track of the railway and brick companies until the cement company chose to reclaim it. An obstruction of the track might be notice of a revocation of the authority to use it, but such notice should be communicated in some manner not jeopardizing life and limb in its cognizance. The use of the track by the railway company, and, therefore, by the plaintiff in the discharge of his duties as a member of one of its train crews, was lawful and was rightful against the cement company, and while the track was accepted in the condition it presented when given up, and subject to all the hazards it then disclosed, the owner could not, without notice, create new perils and escape liability for disasters entailed upon persons innocently relying on the former status of affairs. (Corby v. Hill, 4 C. B. N. S. *556; Corrigan v. Union Sugar Refinery, 98 Mass. 577 ; Pomponio, Admr., v. N. Y. N. H. & H. R. R. Co., 66 Conn. 528, 32 L. R. A. 530 ; Barry v. N. Y. C. &H. R. R. R. Co., 92 N. Y. 289 ; Morrow v. Sweeney, 10 Ind. App. 626; 1 Thomp. Neg. §§ 968, 969.)
Under Moore’s own testimony, he was not, as a matter of law, guilty of contributory negligence. The jury might well conclude that he understood the first question propounded to him as quoted above to relate to a general watchfulness of one trainman over another’s welfare while occupied in the performance of duty, amid the perils of an employment presenting daily traps for them all, and not as comprehending prudence for his own safety while engaged in reaching and setting his brake. When the latter subject was pressed upon him, he answered : “I did n’t have to look to see them.” Under the law, it was his duty to observe all dangers threatened by any structure connected with, or incident to, the use of the track or movement of the train, but he was not bound to an anticipation of any obstruction not involved in, or relating to, the operation of the road. The gin-pole and guy-rope were impediments of such character. They had nothing to do with railroading at that place. They had no proper or rightful connection with any brakeman’s environment, and he was no more compelled to guard against them than against some sudden trespass. If he had knowledge of their existence, he would be chargeable with the necessity of avoiding them-, but he could not be careless respecting that of which he was ignorant, and of which he was not compelled to inform himself. [Kearns v. The Chicago, Milwaukee & St. Paul Ry. Co., 66 Iowa, 599; 7 A. & E. Encycl. of L. [2d ed.] 392; Beach, Contr. Neg. [3d ed.] § 36.)
Of course, no one can close his senses to that which is perfectly manifest and palpable ; but whether or not Moore actually kn'ew of his danger, and whether or not the position of the gin-pole and guy-rope w.ere so conspicuously apparent as to make a failure to see them negligence, under the circumstances attending his work, were questions for the jury. ( Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468 ; A. T. & S. F. Rld. Co. v. Rowan, 55 Kan. 270, 39 Pac. 1010.)
While the evidence is conflicting in a number of important particulars, the verdict is amply sustained, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This is an application for a peremptory writ of mandamus. The plaintiff and Peter T. Laughlin were opposing candidates for the office of representative in the third representative district, comprising part of Atchison county. After the election the board of county commissioners met at the office of the county clerk and opened and canvassed the several election returns made to that office. It was thus ascertained that of the votes cast at such election in the territorial limits of the representative district plaintiff had re ceived a majority. There were, however, votes cast-outside the district by persons who were residents and legal voters of the district, who were, on the day of the election, absent from the district engaged in railway services, which, when counted, gave to Peter T. Laughlin a majority of the total votes cast by the electors of the district. The votes cast outside the district by persons engaged in the railway service, under the provisions of chapter 180, Laws of 1901 (Gen. Stat. 1901, §§2771-2777), were in all respects cast and returned in conformity with the provisions of that chapter. The entire vote cast and returned was canvassed by the board of county commissioners and the clerk made out an abstract thereof and forwarded a certified copy to the secretary of state.
It is claimed by the plaintiff that chapter 180, Laws of 1901, which authorizes railway employees to vote at a place outside their voting precinct, is unconstitutional and void, and such votes should not have been counted. It is sought by this proceeding to have the board of county commissioners and the clerk reconvene and recanvass this vote, and to exclude from their consideration the votes so cast outside the election district, and to certify the result thereof to the secretary of state. A determination of the questions requires, first, an examination of the duties imposed by law upon the canvassing board, and, second, the office of a writ of mandamus.
Section 2587, General Statutes of 1901, reads:
“On the Friday next following the election, the county clerk and the commissioners of the county, or a majority of said commissioners, at ten o’clock a. m. of said day, shall meet at the office of said county clerk, and shall proceed to open the several returns which shall have been made to that office ; and said commissioners shall determine the persons who have received the greatest number of votes in the county for the several county, district and state officers, and members of the senate and house of representatives, representative in congress, and electors of president' and vice-president of the United States. . .
Section 2590 reads :
“As soon as the commissioners aforesaid shall have determined the persons who have received the highest number of votes for any office, the county clerk shall make out abstracts of the votes in the following manner: . . . Third, the abstract of votes for member or members of the senate and house of representatives on one sheet. . . . Which abstracts, being certified and signed by the county clerk, shall be deposited in his office, and certified copies of abstracts, numbered . . ■ . three . . . (when said officers have been voted for at said election), under the official seal of said clerk, and shall be placed in separate envelopes, indorsed, and directed to the secretary of state, and forwarded immediately to the seat of government, by mail. . .
The only duty imposed by this statute on the board of canvassers is to open the returns, determine their regularity and genuineness, make the footings, and declare the result. In case of the election of a representative or state officer, it is then the duty of the clerk to make and certify an abstract of the votes to the secretary of state. Such duties are so manifestly ministerial as to make elaboration useless.
In Brown v. Comm’rs of Rush Co., 38 Kan. 436, 439, 17 Pac. 304, it was said :
“Where it is once determined that the returns are genuine, the board has no further right to investigate and declare which of the votes are illegal and fraudulent. The board must count the votes as it finds them. Its duties are simply ministerial — to declare the result from the returns so made.”
In Lewis v. Comm’rs of Marshall Co., 16 Kan. 102, 22 Am. Rep. 275, it was said:
“Where returns are regular in form, and genuine, a canvassing board may not reject and refuse to canvass them on the ground that illegal votes had been received, or other frauds and irregularities practiced at the election. Such matters are to be inquired into by a tribunal for contesting elections, or in quo warranto proceedings.”
It is not, therefore, the duty nor within the power of the board of county commissioners to pass on the validity of the votes sought to be excluded, or to declare the law under which they were cast valid or invalid. However, there is no contention that there were any irregularities in the manner in which the votes were cast or the returns made, or as to the genuineness of such returns. If, therefore, it was not within the power of the board to pass on or determine the constitutionality of the law in question, or to exclude votes because, in its judgment, the law under which they were cast is unconstitutional, can this court by mandamus confer on it power not otherwise possessed, or create a new duty and enforce its performance ?
Section 5184, General Statutes of 1901, reads :
“The writ of mandamus may be issued by the supreme court ... to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or station. . . .”
It will be observed that it is not the office of mandamus to confer power or impose duty, or to enlarge duties already imposed. It imposes no duty beyond what the law imposes. Its only office is to command the exercise of a power already possessed, or to perform a duty already imposed; to compel a body or person to whom it is directed to perform some act which the law has already enjoined as a duty.
In The United States, ex rel. Ranger, v. The City of New Orleans, 2 Wood, 230, Fed. Cas. No. 15,871, the court said:
“The purpose of the writ of mandamus is to enforce, not to create, legal duties. It will not issue to compel officers of municipal corporations to levy and collect a tax unless the legislature has, either expressly or by implication, made it the duty of such officers to levy and collect such tax.”
In The United States, ex rel., v. Labette County, 2 McCr. 25, 7 Fed. 318, it was said:
“The office of the writ of mandamus, when addressed to a public officer, is only to compel him to exercise such functions as the law confers upon him ; and if it assumes to go further and order him to do that which by law he has no power to do, it is so far void.”
This question has heretofore challenged the attention of this court. In The State, ex rel., v. Comm’rs of Kearny Co., 42 Kan. 739, 747, 22 Pac. 735, this court said:
“Mandamus will not lie to compel an officer to do an act which without its command it would not have been lawful for him to do.”
In Rosenthal v. State Board of Canvassers, 50 Kan. 129, 135, 32 Pac. 129, 19 L. R. A. 157, the court said:
“It is well settled that the duties of canvassing officers are purely ministerial, and extend only to the counting up of the votes and awarding the certificate to the person having the highest number. They have no judicial power.”
In this same case the court quoted approvingly from Luce v. Mayhew, 13 Gray, 83, as follows :
“They are not made a judicial tribunal, nor author ized to decide upon the validity or the fact of the election, in any other mode than by an examination of ‘ the returns' made to them according to law. They are not required or authorized to hear witnesses or weigh evidence. They have no power to send for persons or papers. If one result appears upon the returns, and another is the real truth of the case, they can only act upon the former. If they have done their duty, the remedy of the person actually elected to the office is not to be sought in a mandamus. This court has no power to direct public officers to do any more than their duty, or anything different from their duty.”
It not being one of the duties, nor within the power of the canvassing board, to determine the constitutionalty of the law in question, mandamus will not lie to require it to make such determination.
The application is denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
This was an action brought by Wilson against Treat to recover a judgment on a judgment. The facts aire substantially as follows: In 1892 the Keene Five Cent Savings Bank recovered a judgment in the federal court against the Brunswick Hotel Company, the plaintiff, defendant, one Adkins, and others. An execution w;as issued on this judgment and levied on a span of horses belonging to Wilson as the property of Adkins. The horses were sold under this execution and purchased by defendant at the execution sale. Thereupon, plaintiff brought his action against defendant in the nature of replevin, without bond, and on the. 20th day of May, 1893, recovered a judgment of $550 as the value of the horses, and fifty dollars damages for their detention. On the 23d day of May, 1893, and before this judgment had been superseded, an execution was issued thereon, and on the same day defendant enjoined the levy of the execution. This injunction was dissolved. Supersedeas bond was filed and the original judgment superseded. Proceedings in error were prosecuted by defendant to the court of appeals, in the original case and injunction proceedings. Both cases were affirmed by that court. While such proceedings in error were pending in the court of appeals defendant purchased a note made by plaintiff and secured judgment thereon against plaintiff. This present action on the judgment was commenced on the 21st day of May, 1898.
Among other things, it was alleged in the petition that the judgment on which the action was brought was obtained for the value of exempt property. The defense made was that the judgment on which the action was brought was dormant at the date of the institution of the action, and by way of set-off the judgment obtained by defendant against plaintiff was demanded. The case was tried to the court without a jury. There was judgment for plaintiff, and defendant brings error.
At the June session of this court an opinion was filed (not reported) reversing the judgment of the trial court and directing a dismissal of the action, on the authority of Reeves v. Long, 63 Kan. 700, 66 Pac. 1030, and Smalley v. Bowling, 64 id. 818, 68 Pac. 630. Thereafter, a petition for rehearing was filed and granted. The case is now before us on the rehearing.
The first question for our determination is, Do the cases relied on in our former opinion conclude plaintiff from a recovery? The case of Reeves v. Long, supra, arose on an application to revive a dormant judgment under the statute. In the case at bar no question of revivor arises for our consideration. The action was simply one on a judgment to recover a second judgment thereon. The judgment on which the action was brought was not dormant when the action was commenced. Execution might have issued thereon for its collection, but the remedy, by issuance of execution, was wholly inadequate to establish the character of the judgment as one for exempt property. A proceeding under the statute to revive, the judgment did not lie, for the reason that.the judgment was not dormant, and hence could not then be revived. For this reason the case of Reeves v. Long has no application here.
The case Smalley v. Bowling, supra, was an action on a dormant domestic judgment, brought for the purpose of recovering a second judgment thereon. It was sought to avoid the statute of limitations in that case and to maintain the action on the ground that the judgment debtor had at all times since its rendition been a non-resident of the state and absent therefrom. This contention was denied for the reason therein stated, that the judgment was dormant by-reason of the failure of plaintiff to keep it alive by the issuance of execution or revivor proceedings; and, in consequence, it was held that no action thereon could be maintained.
The case at bar is distinguishable from that case in this, that there the judgment was dormant, and no execution could issue to enforce its collection. Nor, under previous decisions of this court, could a revivor be had on application based upon the statute. Here, however, the judgment is not dormant, and execution could have issued at the date of the commencement of this action. A revivor by application under the statute was wholly unnecessary and could not be had. A review of the authorities convinces us that the case.of Smalley v. Bowling does not control; that the action was brought within time and can be maintained. As the judgment was not dormant when the action was brought, it is elementary and axiomatic that no statute of limitations, or other statute, can intervene during the pendency of the action to prevent a recovery, and that the pendency of the action on the judgment obviated the necessity of the issuance of an execution oh the judgment or other proceedings to preserve its vitality as a cause of action.
The only remaining question is the right of defendant to set off his judgment against the judgment of plaintiff. This right was denied by the trial court. It is claimed that the court erred. It will be remembered that the judgment on which plaintiff grounds his right of recovery was alleged' in the petition to have been obtained for' the value of property exempt to him, taken on execution. Ample proof of this fact was made at the trial. Can the defendant have his judgment set off against such judgment? Clearly not. It was shown that the span of horses taken on execution were exempt to plaintiff and could not have been seized on execution or on other legal process for the collection of plaintiff’s debt when taken. The judgment recovered by plaintiff was for the value of this exempt property. The judgment so obtained stands in the place of the property and is exempt to plaintiff. As defendant could not have seized the horses exempt to plaintiff on execution issued for the enforcement of his judgment if they had remained unsold, because they were exempt, he cannot, by way of set-off in this action, or other lfegal proceeding, seize and apply the judgment obtained by plaintiff as the owner of such exempt property. (Beckham v. Manlove, 18 Cal. 388 ; Reynolds et al. v. Haines, 83 Iowa, 342, 49 N. W. 851, 13 L. R. A. 719, 32 Am. St. Rep. 311.) The set-off demanded was properly disallowed.
A motion filed to make the petition definite and certain, by attaching thereto a copy of the judgment in action, was overruled. A copy of the judgment upon which the action was based was set forth in the. body of the petition. There was no necessity for attaching a copy as an exhibit.
Perceiving no error in the record, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a proceeding instituted by the Chicago, Kansas & Western Railroad Company to procure a right-of-way over and across certain lands in Ottawa county, including, among others, the land of William M. Hurst. The ■commissioners awarded to Hurst $217 as damages, and after this award was made, Hurst appealed to the district court, where the case was tried before the court and a jury; and judgment was rendered in favor of Hurst and against the railroad company awarding to Hurst the sum of $1,051.25-J- as damages, and the railroad company brings the case to this court for review.
The plaintiff, Hurst, claimed 240 acres of land, all in one body, but it was not all held by the same kind of title. One portion of the same, consisting of 120 acres, Hurst held by a ■complete and perfect title, and it is described as follows: The west half of the southeast quarter and the southwest quarter of the northeast quarter of section 6, in township 11 south, of range 1 west. The other portion Hurst holds only as a timber-culture claim under the laws of the United States; and the title thereto is still in the United States, and it is described as follows: The east half of the northwest quarter and the northeast quarter of the southwest quarter of section 6, in township 11 south, of range 1 west. The principal question involved in this case is as follows: Did the court below adopt the proper rule for the measurement of the plaintiff’s damages occasioned by the railroad company’s procuring its right-of-way across his timber-culture claim? This question is made manifest from the following statement of a portion of the facts of the case. The plaintiff in his petition substantially alleged that he was the owner of all the above-described land. The defendant, the railroad company, as a first defense to the plaintiff’s petition set forth a general denial; and as a second defense thereto set forth that the plaintiff had no title to the second-described land, but only a timber-culture claim; and then alleged as follows:
“That said plaintiff ha,s abandoned said lands, and has failed to put out, cultivate, protect and keep in good condition the timber which he is required by law to put out, cultivate, protect and keep in good condition in order to prevent said lands from reverting to the United States, and to protect his title to the same.”
This allegation was stricken out by the court, and the defendant excepted. The case was then tried before the court and a jury, and the court instructed the jury among other things as follows:
“1. In assessing damages in this case, you may take into consideration all incidental loss, inconvenience, and damage, present and prospective, which may reasonably be expected to result from the construction and operation of the road in a legal and proper manner.
“2. The actual value of the land appropriated by the defendant for its right-of-way; and
“3. Damage to the rest of the farm by reason of the appropriation of the right-of-way and the construction of said railroad upon and through the farm; and to arrive at the damage, if any, to the rest of the farm, you may take into consideration the general course 'of said road through said farm, the height of the embankments, the depth of cuts, the inconvenience, if any, of passing from one part of the farm to another, if any such appears; the inconvenience, if any, of passing from the farm to the public highway; the expense of making and maintaining farm-crossings.”
The jury then rendered a general verdict assessing the plaintiff’s damages at $1,051.25-^, and made several special findings of fact. They found that “the fair market value per acre of the lands claimed by the plaintiff” “immediately before” the right-of-way was taken was “$15 per acre;” and immediately afterward was “$11.75 per acre.” They in effect found that the land to which the plaintiff had a full title was damaged in the aggregate to the amount of $468.47. And they found that the timber-culture claim was damaged as follows:
“5. How mauy acres did the defendant take for its right-of-way out of the east half of the northwest quarter and the northeast quarter of the southwest quarter of said section 6 ? Ans.: Thirteen and seven-hundredths acres.
“6. What was the fair market value per acre of the land taken by the defendant for its right-of-way through the east half of the northwest quarter and the northeast quarter of the southwest quarter of said section 6, at the time said right-of-way was so appropriated by the said defendant? A. $18 per acre.”
“9. At the time the defendant’s said right-of-way was condemned through the lands described in the first question as set forth above and numbered one, was the title to the east half of the northwest quarter and the northeast quarter of the southwest quarter of said section 6 in the United States ? A. Yes.
“10. At the time the defendant’s said right-of-way was condemned through the east half of the northwest quarter and the northeast quarter of the southwest quarter of said section 6, did the said plaintiff have any interest in said lands except such as he held under a timber-culture entry made under the laws of the United States? A. No.”
“12. In addition to the value of the land taken by the defendant for its said right-of-way, and at the time of such tak ing, what were the real and actual damages to the remainder of the east half of the northwest quarter and the northeast quarter of the southwest quarter of said section 6 by reason of the taking of said right-of-way through the same by the defendant? A. $347,521.”
The aggregate amount of damages allowed by the jury to the plaintiff with reference to the timber-culture claim was $582.78^. It would seem from the foregoing proceedings that the case was tried in the court below by the plaintiff and the court upon the theory that the plaintiff had the right to recover damages to his timber-culture claim in the same manner and to the same extent as though he had full and complete title to the land, and that the damages awarded to him were awarded to him upon that theory. This was error. (E. M. N. & S. E. Rld. Co. v. Gates, ante, p. 574; same case, 21 Pac. Rep. 632; H. & G. I. Rld. Co. v. Ingalls, 15 Neb. 123.) The claimant in such a case can recover damages only # ° J for the diminished value of his interest in the land an(j not for the diminished value of the land itself. (B. K. & S. W. Rld. Co. v. Johnson, 38 Kas. 142, and the cases above cited.) The claimant’s interest in the land may, under some circumstances, be worth as much as the land itself, while under other circumstances it may be worth scarcely .anything; and the claimant may, under some circumstances, ■be entitled to recover for the diminished value of his interest in the land an amount as great as though he had a full and «complete title to the land, while under other circumstances he may not be entitled to any considerable amount. All the facts with regard to the plaintiff’s interest in the land, the time he .has occupied it, the work done upon it, etc., as well as with jespect to the injuries done to the land by the railroad com¡pany, should be permitted to go to the jury, and then the jury .should be permitted to assess the plaintiff’s damages from a «consideration of all these facts.
The judgment of the court below will be reversed, and the «cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This is an action of mandamus, brought in this court by Chancellor Livingston against T. McCarthy, as auditor of state of the state of Kansas, to compel him to issue to said Livingston a certificate of indebtedness, under the provisions of chapter 180 of the Laws of 1887. Plaintiff alleges that under the provisions of chapter 103 of the Laws of 1875, there was awarded to plaintiff, for loss sustained by the invasion and burning of Lawrence by guerrillas, $1,840, and that by chapter 180 of the Laws of 1887 the state of Kansas assumed the payment of said claim; that said auditor was directed and required to issue to claimants whose claims were allowed by said commission, certificates of indebtedness, upon demand, and that plaintiff made due demand for such certificate, but that said auditor had refused to issue the same; to which petition the auditor filed an answer, alleging as a reason for his failure to issue the certificate, as alleged in plaintiff’s petition, that he had been restrained by injunction proceedings in the district court of Shawnee county, at the suit of F. W. Marsh against the defendant and plaintiff herein and S. A. Haseltine, and that the said injunction was in full force against defendant, Restraining the issuance of said certificate to plaintiff. Upon these pleadings the cause is submitted.
By the answer the allegations of the petition are admitted, and the only question is, has the auditor set up such an excuse as will prevent the peremptory writ from issuing against him ? By the answer the fact is shown that Marsh, the plaintiff in the injunction proceedings, is claiming some right in the certificate in question, adverse to the interest of the plaintiff in this action, and the answer of the defendant sufficiently notifies the plaintiff of what that interest may be. If Marsh is claiming some interest adverse to the plaintiff, before the peremptory writ of mandamus will issue as prayed for, Marsh ought to to be made a party to the action, and the controversy determined between them. McCarthy, the defendant herein, is but a nominal party to the proceeding, and ought not to be mulcted in costs in an action of this character, when there are parties interested who, if made parties to the action, will bear the burden of the defense. The peremptory writ of mandamus only issues where there is a clear legal right on the one hand, and a refusal to perform a lawful duty on the other. The auditor in his answer shows that he has been enjoined in a suit by Marsh from issuing and delivering the certificate to plaintiff, and we think this is a good defense, and until the parties in interest are brought before the court no peremptory writ will issue. (Cassatt v. Comm’rs of Barber Co., 39 Kas. 505.)
It is recommended that the peremptory writ be denied, and the action dismissed at the cost of the plaintiff.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
Two questions are raised by the plaintiffs in error: First, was Bragunier, the party served with garnishment, such an agent, and did he have such possession of the property of Weaver & Co. as would make him liable in garnishment proceedings? Second, are mortgagees of personal property, while in the possession of the property, liable in garnishment? As to the first of these questions, it is one of some doubt, and each case of this character must be determined upon the facts surrounding it, and no rule can be established that will apply to all of this class of cases; for it has been held, and doubtless properly, that some classes of agents are not liable; such, for instance, as hotel-keepers while in possession of the baggage of their guests, and persons who hire livery teams, common carriers, persons in charge of property under conditional sales, where goods are turned over for examination or trial; all those classes of possession have been held not sufficient to create a liability to answer in garnishment. (Waples, Att. and Garn., p. 194.) But we think few cases can be found where this rule has been applied to persons who are in charge of stocks of goods or stores as general managers or agents having the care, control and management of such business. In this case, while Bragunier in one sense was the agent of Kellogg & Sedgwick, yet Kellogg & Sedgwick were simply the agents of the original creditors; they were representing non-resident creditors of Weaver & Co., and neither they nor Bragunier had any interest in the goods, but were simply trustees or agents for the persons named in the mortgage. At the time of the service, the goods were held by Bragunier under the mortgage, but at that time the mortgage had spent its force, and all rights under the mortgage had ceased, for the reason that a sufficient amount of the goods had been sold and the money deposited in bank to pay off the mortgage debt. The mortgage then did not give any possession to Sedgwick or Bragunier, but the goods were held by them subject to Weaver & Co.’s order. If this is true, then the goods were subject to attachment as the goods of Weaver & Co.; and, if so, surely subject to garnishment in the hands of the persons who had actual possession and charge of the goods. (Victor v. Insurance Co., 33 Iowa, 210; Jones v. Crews, 64 Ala. 368; Caldwell v. Coates, 78 Pa. St. 312; Webster v. Steele, 75 Ill. 544.) Under these facts, we think Bragunier’s possession and agency were sufficient to require him to answer and be responsible for the goods. (Buddig v. Simpson, 33 La. Ann. 375.)
The second claim we think is not well taken, and the authorities cited by counsel do not bear out their theory. In Dieter v. Smith, 70 Ill. 168, cited by counsel, the court held that property in the hands of a mortgagee was not subject to garnishment, but it was upon a very different state of facts from that presented in this case. In that case the mortgagee had taken possession of the property but a few days before service, and had not made a sale of the mortgaged property. The court properly held in that case that the mortgagee was not subject to garnishment, because it could not be definitely told that the property would be more than enough to pay the mortgage debt, or that it might not be lost or destroyed and nothing be realized from it. But the court in closing that case said: “If he had the property and had an excess in his hands over his debt, that would have presented a different case; or if he had refused'to sell according to the terms of the mortgage and converted the property to his own use, that would have presented a different question.” We think the rule is well established that where the mortgagee is in possession of the mortgaged property, and is fairly carrying out the terms of the mortgage, or has failed to get possession of the mortgaged property, although entitled to its possession — in all those classes of cases the mortgagee is not liable to such process. (Fountain v. Smith, 30 N. W. Rep. 635.) But where he has the property in his possession, and refuses to sell and satisfy the mortgage, or where he has sold and satisfied his mortgage, and there remains an excess of property in his hands —in that class of cases we think the authorities are also well settled that he must answer to garnishment.
These questions settle this case, and we are satisfied from the answers of the garnishee that at the time of service upon him he had such control of the property as made him liable; and as this property was turned over in violation of the process of the court, the defendants were liable to the plaintiffs below for the amount of their judgment and the costs.
It is therefore x*ecommended 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
Valentine, J.:
This was a proceeding instituted on December 7, 1886, by the Chicago, Kansas & Western Railroad Company to procure a right-of-way over and across the following, among other lands in Dickinson county, to wit: The northeast quarter of section 5, in township 14 south, of range 3 east, containing about 164 acres. The land belonged to John 0. Dill, and the damages thereto were assessed in his favor and in his name. A strip of land containing about 5.32 acres was appropriated by the railroad company for its right-of-way. The commissioners assessed his damages in the aggregate at $232.80, and he appealed to the district court, where the case was tried before the court and a jury, and the jury returned a general verdict in favor of Dill and against the railroad company, and assessed his damages at $1,066; and also made special findings of fact, finding that immediately before the right-of-way was appropriated the property as a whole was worth $6,560; that the land actually taken for the right-of-way was worth $266; and that the remainder of the land was damaged in the sum of $800; and the court rendered judgment accordingly, awarding to Dill as damages the sum of $1,066, and assessing the costs against the railroad company; and the railroad company as plaintiff' in error brings the case to this court.
The first alleged error is, that the plaintiff Dill was permitted as a witness and in his own behalf to introduce in evidence and as a part of his testimony a certain map or diagram drawn by himself, showing the location of his various improvements on the land, his house, barn, orchard, meadow, cultivated land, etc., and the relative location of the railroad over the land with respect to these . . , improvements, and was also permitted to refer to this map or diagram in his testimony. We think there was no error in this.
The next alleged error is, that the court below permitted a witness, Eeuben Haffner, who could not testify what the propperty was worth either before the right-of-way was appropriated or afterward, to testify that the plaintiff’s land was worth after the appropriation of the right-of-way about one-third less than it was before. This manner of proving damages to land over which a railroad is constructed and through which a right-of-way is appropriated, is certainly not to be commended or encouraged^ and m many cases it would constitute material and substantial error. (L. T. & S. W. Rly. Co. v. Paul, 28 Kas. 816.) But in this case, as in the case above cited, we think the admission of the testimony, although it may have been error, was not substantial or material error, and is not suffieient to justify a reversal of the judgment of the court below. Many witnesses testified with regard to the value of the land before the right-of-way was appropriated and afterward, and from the evidence of these witnesses the verdict of the jury could not have been for a less amount of damages than it was. The defendant introduced only one witness, a Mr. Kimmerly, and his testimony was that the land was worth about $40 per acre, or $6,560, and the jury found that it was worth just that amount. He also testified that the damage to the farm aside from that portion appropriated as a right-of-way, was about $5 per acre, or about $800, and the jury found this damage to be just that amount. Kimmerly did not testify as to what the land actually taken for the right-of-way was worth, but the testimony of the other witnesses showed that it was worth much more per acre than the remainder of the land, and that it was worth about $50 per acre, just what the jury found it to be worth. We think no substantial error was committed in the admission of Mr. Reuben Haffner’s testimony.
It is also claimed that the court below committed material error in permitting the testimony of the witness M. P. Jolly to be'introduced. We think error was clearly committed in this particular, but the error was not material. The witness testified as to damages only and not as to values, and therefore his testimony was erroneous ; but he placed the damages so low that his testimony was actually beneficial to the railroad company. This witness testified that the damage to the land aside from the value of that portion taken for the right-of-way was from $700 to $800. Now as above stated, the defendant’s only witness testified that this damage was about $800, and all the other witnesses testified that it was much greater than that, some of them fixing the amount as high as $3,000. The jury found it to be just $800.
Some other points are made in the brief of counsel, but they do not require comment.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The petition in error filed in this case contains eight assignments of error, which, as is alleged, occurred during the trial in the court below. These errors, to be considered by this court, must have been called to the attention of the trial court by a motion for a new trial; and the adverse ruling of the trial court on the motion for a new trial must be specifically assigned as error in the petition in error filed in this court. This has not been done. The action of the trial court in overruling the motion of plaintiffs in error for a new trial is not assigned as error here, and hence we cannot consider the questions discussed as to the introduction of evidence, the instructions, etc. (Carson v. Funk, 27 Kas. 524; Clark v. Schnur, 40 id. 72.)
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendants in error, as plaintiffs, brought their action in replevin to recover possession of a stock of goods at Saratoga, Kansas, and at the October term, 1887, of the Pratt district court recovered a judgment for the possession thereof, and a finding and judgment that their possession was of the value of $3,033.88. It is shown, by the record that John J. Davis was a merchant doing business at Saratoga, and prior to July 19, 1887, was the owner of the goods in question; that George A. Lewis & Co., the defendants, were bankers at Saratoga, and that the plaintiffs, Burnham et al., were eastern creditors from whom Davis had purchased his stock; that Davis executed a chattel mortgage to defendants to secure the payment of five notes of $500 each, and gave them possession of the store-room and goods ; and that they retained him as their agent. He continued to sell from the stock up to the first day of August, and the amount of sales between the 19th of July and the first day of August was about $500. None of that amount was applied to the payment of the notes of defendants, but was used to pay checks that had been given by Davis prior to the giving of the mortgage — among others, one of $100 to plaintiff. Upon the first day of August W. J. Milligan, agent of plaintiffs, came from Kansas City, Mo., and Davis gave him a chattel mortgage to secure the payment of $3,033.88. In that mortgage there was this condition: “This mortgage is given subject to a prior mortgage to George A. Lewis & Co. for the sum of $2,500, executed July 19, 1887.” Upon the second day of August, by an agreement and understanding between defendants and Milligan, as the' agent of plaintiffs, and Davis, plaintiffs were placed in possession of the goods, who retained Davis as their agent; and it was agreed that all the money that should be received from the sale of the goods should be applied to the payment of Davis’s indebtedness to defendants. This arrangement continued until the 23d day of August, 1887, during which time there had been deposited in defendants’ bank the sum of $565, which had been applied to the payment of their claim. Upon that day they obtained possession of the store again, retained Davis as their agent, and proceeded to sell the goods. Plaintiffs then brought this action in replevin. In their petition they allege that they are entitled to the immediate possession of the goods in question under a chattel mortgage, a copy of which is hereto .attached, marked “Exhibit A”; a note and written agreement with John A. Davis, a copy of which is hereto attached, marked “Exhibit B”; and an oral agreement with defendants. “Exhibit A” referred to the mortgage given by Davis to defendants, which contains the provisions above referred to; “Exhibit B” is a memorandum oí agreement made between Davis and the plaintiffs. In that mt norandum it is stated:
“And it is further agreed that as soon as two certain chattel mortgages, one made by second party to George A. Lewis & Co., to secure $2,500, and the other made by said first party to said second party to secure $3,033.88, . . . shall all be fully paid out of the net proceeds of said business, the said first party shall cancel the said mortgage and turn over . . . said business.”
The testimony introduced in the ease to establish the parol agreement mentioned in the petition, shows that it was stipulated and agreed that the plaintiffs were to have possession of the storehouse and stock, and authority to sell the goods, with the understanding that they were first to pay off the indebtedness of Davis to defendants, out of the proceeds.
The plaintiffs in error assign a great many errors for our consideration; we shall not examine them specifically; it will not be necessary to do so in the disposition of this case. We believe under the pleadings there was error in the admission of testimony. The plaintiffs introduced testimony over objection of defendants, tending to show that there was a want of consideration in the notes given by Davis to defendants, and that they were given in fraud of plaintiffs, and to hinder and defraud them in the collection of their debts. We think, under the pleadings, such testimony was inadmissible. There is no claim of fraud in plaintiffs’ petition, except as it may possibly be inferred from the statement that the goods were wrongfully detained from plaintiffs. In their exhibits they state their mortgage was given subject to the mortgage of defendants; in their memoranda of agreement with Davis they recognize the same mortgage again, and in their parol contract, and in the evidence to sustain it, they testify that their possession of the goods was subject to the payment in full of the debt of defendants. They recognize by their pleadings, and by their evidence to sustain the parol contract, that the indebtedness of Davis to defendants was bona fide.
In the petition and exhibits the plaintiffs set forth their interest in the goods replevied. It is therein averred that they hold under a chattel mortgage given by Davis to them; under a written agreement with said Davis, and a parol agreement with defendants. If we should consider these as three distinct grounds of plaintiffs’ right of possession, or on the other hand as constituting collectively different parts of the same transaction, we should find that each and all have a limitation, whether we consider them as separate contracts or parts of one entire agreement. The plaintiffs’ chattel mortgage expressly recognizes the prior lien of the defendants’ mortgage, and the written agreement with Davis refers to the same. The parol agreement alluded to in the petition is proven by plaintiffs’ evidence to have been made with the definite understanding that defendants had the first lien upon the goods, and that it should continue until their indebtedness should be paid in full. Under such pleadings it was error to admit evidence for the purpose of showing fraud and collusion between defendants and Davis in the consideration or execution of the notes.
If the plaintiffs had been misled by any statement or act of the defendants in recognizing and admitting their prior lien upon the goods, or if they had believed at the time they took their mortgage that the defendants’ claim was bona fide and afterward had found it was not, then these facts should have been set forth in their petition; but in the absence of any allegations of fraud and collusion, the evidence tending to show that the notes were given without consideration and to defraud creditors, was inadmissible.
Taking the admissions in plaintiffs’ petition and exhibits, and all the evidence most favorable to plaintiffs together, we think the finding of the value of plaintiffs’ possession is not supported. It must be held under the record that the value of plaintiffs’ possession is not the first lien upon the goods, but was subject to the payment of defendants’ notes.
We recommend that the judgment be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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