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Opinion by
Simpson, C.:
Frank Carter, on the 16th day of May, 1887, executed and delivered to his wife, Maggie Carter, a promissory note for $8,000, payable one year after date, with interest at 10 per cent, per annum from date. On the same day he executed and delivered a mortgage on a number of town lots in the city of Pratt to secure the payment of the note. On the 20th day of August, 1888, Maggie Carter made a written assignment of this mortgage to the defendant in error, H. II. Campbell. The assignment was recorded on the 21st day of August, 1888. Campbell commenced an action to foreclose the mortgage in the Pratt district court, and, among others, made James Walsh & Co. and Ferdinand "Westheimer & Sons, who were judgment creditors of Frank Carter, defendants in the foreclosure action. These judgment creditors filed verified answers, in which they denied every material allegation contained in the plaintiff’s petition not hereinafter specially admitted. They plead their judgments, and admit that Frank Carter executed the note and mortgage sued upon, and that Maggie Carter is the wife of Frank, but claim that this note and mortgage were executed by Frank Carter for the sole purpose of covering up and concealing said property from the payment of his just debts, and for the purpose of cheating and defrauding his creditors; that Maggie Carter had notice and knowledge of such fraudulent intent, and that the plaintiff herein took said note and mortgage with notice and knowledge of the foregoing facts stated in the answer. Campbell filed a general denial as a reply. The case was tried by the court on the 8th day of May, 1889, without a jury. The plaintiff introduced the note and mortgage and rested. The plaintiffs in error filed a demurrer to the evidence for the reason that it was not sufficient to entitle him to recover in this action, and it was overruled.
While the plaintiffs in error filed a verified answer, containing a general denial of all the allegations contained in the petition of the defendant in error “not hereinafter specially admitted,” they go on to state that the note and mortgage were executed; that they were so executed for the purpose of defraudingcreditors; that the mortgagee had notice and knowledge of this intent; and that the defendant in error took said note and mortgage with notice and knowledge of the fraudulent intent. The allegations in this answer narrow the issues in the case to the question of fraudulent intent on the part of the mortgagor, and the knowledge of the mortgagee and her assignee of this intent. The execution of the note and mortgage and their transfer to the defendant in error are admitted, and, in the absence of any evidence on the part of the defendants below (plaintiffs in error here), the plaintiff below would have been entitled to a judgment on the pleadings. The in troduction of the note and mortgage was not necessáry, and the demurrer to the evidence when they were introduced was properly overruled, as they proved nothing but what was already admitted by the pleadings.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
W. J. Wilson,. T. L. Fox and J. B. Fox were engaged in the' mercantile business in the city of Wichita, under the firm-name of Wilson & Fox, in April, 1887, when the firm ordered a bill of goods of Mason, Campbell & Co., the defendants in error ; some for immediate delivery and some to be shipped at a future date. It seems that the goods ordered for the spring delivery were all paid for. The goods ordered for the fall delivery, amounting to $822, were received by the firm of W. J. Wilson & Co., the successors of Wilson & Fox, about the 28th day of September, 1887, but were not paid for. On the 1st day of September, 1887, the firm of Wilson & Fox agreed upon a dissolution, and on the 15th of the same month notified Mason, Campbell & Co. The formal dissolution of the firm of Wilson & Fox took place on the 27th day of September. When the firm of W. J. Wilson & Co. received the goods, they addressed a letter to Mason, Campbell & Co., in which they stated that they were under the impression that the order for the goods in question had been countermanded when the firm of Wilson & Fox dissolved, and asked the privilege of returning the goods, or that a new date be given them to enable them to keep the goods. Under date of October 25, 1887, Mason, Campbell & Co. wrote W. J. Wilson & Co., requesting them to keep the goods, and authorized them to alter the dating of the bill, so that it would read January 1, 1888, making the bill fall due February 1, and stated that they had made a corresponding change on their ledger. On November 18, 1887, the firm of W. J. Wilson & Co. returned a portion of the bill of goods, some to be exchanged for other goods and the balance to be credited on the account. The goods sent for exchange were accepted, but the others, sent to be credited, were declined. The transactions between the firms of W. J. Wilson & Co. and Mason, Campbell & Co. were without the knowledge and consent of T. L. and J. B. Fox.
Mason, Campbell & Co. brought suit against W. J. Wilson, T. L. and J. B. Fox, partners as Wilson & Fox, to recover the amount due on the account. After the introduction of the evidence in chief by the plaintiffs and defendants, the plaintiffs then offered evidence in rebuttal, and then filed a demurrer to the evidence of the defendants, which the court sustained, over the objections of the defendants, and directed the jury to return a verdict for the amount claimed by the plaintiffs against all the defendants. The plaintiffs in error bring the case here, and say that the court erred in assessing the damages and instructing the jury to return a verdict for the plaintiffs. It is urged by the plaintiffs that there was sufficient evidence to have warranted the court in submitting the case to the jury, and that it was error not to do so. It is claimed that the correspondence between W. J. Wilson & Co. and Mason, Campbell & Co. indicated that the goods had been resold to the former. They were asked to keep the entire order, given an extension upon the bill, and permitted to exchange some goods.
We have carefully considered the testimony, and without expressing any opinion as to what is established by the evidence, we cannot say—
“That admitting every fact that is proved which is favorable to the defendants below, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the defendants, still they have utterly failed to make out some one or more of the material facts of their defense'.” (Brown v. Railroad Co., 31 Kas. 1.)
If the evidence fairly tended to establish the defense pleade d it was clearly the duty of the trial court to have submitted all of the issuable facts to the jury, under proper instructions.
It is recommended that the judgment be reversed, and the cause remanded for a new trial.
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 commenced in the district court of Meade county, on February 9, 1889, by Edgar McDaniel against M. J. O’Meara and M. H. Ewart, for damages for alleged breaches of certain covenants contained in a deed of conveyance of real estate executed by the defendants to the plaintiff on March 24,1887. The covenants contained in the deed are as follows:
“ That at the delivery of these presents they are lawfully seized in their own right of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature and kind soever; and that they will warrant and forever defend the same unto the said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
The supposed breaches of these covenants are alleged in the petition, as follows :
“ That at the time of the execution and delivery of said deed, the defendants were not the true and lawful owners of said premises, nor were they lawfully seized in their own right of a good, absolute and indefeasible estate of inheritance in fee simple to said premises, nor had they good right, full power and lawful authority to grant, bargain, sell and convey ■the same, in manner and form asserted and set forth, and adopted in said deed.”
The defendants answered to the plaintiff’s petition, alleging, among other things, as follows:
“That the plaintiff, ever since the 24th day of March, 1887, was and now is in the quiet and peaceable possession of said lot No. 14, in block No. 8, of the original survey of the city of Meade Centre, Meade county, Kansas, and the improvements thereon, to wit, a certain habitable dwelling and business house, and used, collected, enjoyed, and converted to his own use, and is now using, collecting, enjoying, and converting to his own use, the rents, issues and profits of the aforementioned premises, to the amount of $500.”
To this answer the plaintiff filed a paper entitled “ Motion, demurrer, and reply.” By it the plaintiff moved to strike out a portion of the defendants’ answer, replied to another portion thereof, and demurred to still another portion thereof, to wit, to that portion above quoted, upon the ground that it did not state facts sufficient to constitute any defense to the plaintiff’s action. The court below sustained that part of the paper filed called a “motion,” and also that part called a udemurrer;” and a trial was had before the court and a jury upon the remainder of the pleadings. At the trial, the court again sustained the theory upon which it had previously sustained the plaintiff’s so-called demurrer to the defendants’ answer, by refusing to permit the defendants to show that the plaintiff was in the possession of the property in question and receiving and enjoying the rents and profits thereof. Judgment was rendered in favor of the plaintiff and against the defendants for $2,104.50. This included $1,800, the alleged consideration for the land in question, and $304.50 as interest. To reverse this judgment, the defendants, as plaintiffs in error, have brought the case to this court.
The judgment of the court below in this case must be reversed. As the plaintiff was in the quiet and peaceable possession of the property, enjoying and collecting the rents and profits thereof to the amount of $500 at least, he should not have recovered from the defendants the amount of the consideration for the land, with interest. (Stebbins v. Wolf, 33 Kas. 765; Danforth v. Smith, 41 id. 146.) And as the plaintiff has never been evicted from the premises, and has never paid anything to remove an incumbrance therefrom, or to perfect his title, but is still in the quiet and peaceable possession of the property, enjoying and collecting the rents and profits thereof, he can recover at most only nominal damages; and this upon whatever covenant the action may be considered as having been commenced. (Hammerslough v. Hackett, 48 Kas. 700; same case, 29 Pac. Rep. 1079, and cases there cited.)
It is claimed by the plaintiffs in error, defendants below, that the foregoing were not the only errors committed. It is claimed by them that a paper was permitted to be introduced in evidence as a transcript of a judgment, without any sufficient foundation having been laid for its introduction; and we cannot say that this claim is not true. This paper was introduced for the purpose of showing that the defendants below did not have any title to the property in question; but it does not show that the defendants were parties to the action in which the supposed judgment was rendered, nor that they ever had any notice of the action, or that the action had ever been defended by the plaintiff or by any person in good faith.
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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The opinion of the court was delivered by
Horton, C. J.:
In passing upon the motion for a new trial, the trial judge stated, inter alia, “that the verdict did not meet the approval of his judgment;” that it was “largely in excess of what would be full compensation to the owner of the land;” that he would “stand out of the way,” and then overruled the motion. It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mjstake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error. He has no right “to stand out of the way” and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts. The following cases fully sustain the foregoing conclusions, and therefore the judgment of the district court must be reversed: Atyeo v. Kelsey, 13 Kas. 212; Williams v. Townsend, 15 id. 563; Railway Co. v. Kunkel, 17 id. 145; The State v. Bridges, 29 id. 138; Railroad Co. v. Keeler, 32 id. 163; A. T. & S. F. Rld. Co. v. Dwelle, 44 id. 394.
We are asked, on the part of Ryan, to expunge from the record the opinion or statements of the trial judge made by him in passing upon the motion for a new trial. We are referred to the case of King Co. v. Hull, 25 Pac. Rep. 927. There is no such case as King Co. v. Hull reported in 25 Pac. Rep. 927. The case of Salazar v. Longwill (S. C. of New Mexico) appears on that page. King Co. v. Hill et al. (S. C. of Washington) is reported in 25 Pac. Rep. 451, but the quotation cited in the brief is not found in the opinion. If, however, any case in the 25 Pac. Rep., or iu any other report, contains the language quoted in the brief, about striking out the opinion of the trial judge from a transcript, it would seem to us that such a motion was well taken and properly decided, but upon the sole ground that the opinion was not a part of the transcript. In the case at bar, the opinion of the trial judge is preserved in the case-made; therefore it is properly here for our consideration. This court has the right to ascertain from a record, made up and certified to in due form, whether the verdict of the jury has the approval of the trial judge. He has the same opportunity to see and hear the witnesses as the jury; and if, in his judgment, the jury have erred, it is proper, in disposing of a motion for a new trial, for the trial judge to so state. If he disapproves the verdict in as strong language as quoted, this court, having that knowledge from the record, will not hesitate to reverse the judgment and grant a new trial.
As the case must go back for another hearing, other matters discussed in the briefs may be beneficially noticed. The appeal was perfected January 24, 1887. Within a few days thereafter the papers were transmitted to, and the case was docketed in, the district court. At that time, the “Olathe company” was in existence as a corporation. On March 28, 1887, the “Olathe company” and the “railway company” were consolidated into the “Kansas City,Wyandotte & Northwestern Eailroad Company.” Article 1 of the written agreement for the consolidation of these companies expressly provided that—
“The constituent corporations hereby agree to consolidate and form one company, to be called ‘The Kansas City, Wyandotte & Northwestern Eailroad Company/ which shall own, complete, maintain, operate and control said continuous and consolidated lines of railroads, with all the rights, powers, privileges and immunities of either of the constituent corporations, and subject to all the obligations and liabilities of every nature to which either of the constituent corporations is subject.”
Upon the consolidation, the Kansas City, Wyandotte & Northwestern Eailroad Company not only assumed all the obligations of the Olathe company and the railway company, but thereby became liable to pay to Eyan and other landowners the value of all land taken for the right-of-way of the Olathe company, and all damages thereto. On January 19, 1889, in accordance with the better practice, Eyan filed a petition alleging all the facts necessary for a recovery against the Kansas City, Wyandotte & Northwestern Eailroad Company, and expressly alleging that this company “assumed all the obligations and liabilities of every nature and kind of the companies so consolidated.” We think that there was no necessity for the district court to compel an election. Eyan had proceeded regularly; he had taken his appeal as the statute prescribed; he had filed his transcript, and had his case docketed. When the Olathe company ceased to exist, on account of its consolidation with another company, the issues were properly framed by pleadings against the new company. Instead of trying the case upon the transcript only, it should have gone to the court and jury upon the pleadings and the evidence presented thereunder. Whatever construction may be given to § 40, in connection with §§ 433 and 434 of the civil code relating to substitution and revivor, it is clearly apparent from the allegations of the petition and the articles of consolidation that the Kansas City, Wyandotte & Northwestern Railroad Company is responsible to the plaintiff below for the value of the land and all damages for which the Olathe company was, at the time of its corporate death, liable, and upon the same terms and conditions. The new railroad company expressly assumed, in writing, all of the obligations and liabilities of every nature of the Olathe company, and may be held therefor. The petition was filed in ample time to recover, upon the written articles of consolidation and the' facts therein alleged.
The court in its instructions to the jury, in referring to the expert testimony as to the value of the property taken for the right-of-way before and after the construction of the railroad, not only called the attention of the jury to such testimony as “ the best that could be furnished,” but also suggested to the jury that—
“The best the jury can do, I suppose — and that is for them to determine — would be to take into consideration all this testimony on both sides, and then apply their common knowledge, and the results of their observation down there, and from it all determine whether, after finding what the average is, whether that is a fair valuation and ought to be adopted, or whether they will discard certain witnesses’ testimony, and adopt that of others that they have more confidence in. That is a matter for you to determine. You must take care, however, that you are not to agree beforehand among yourselves that you will take the testimony of these witnesses and average them and adopt the result as your verdict; that you must not do beforehand. But if you ascertain what the average is first, and then conclude that that is a fair compensation afterward, there is nothing in the law to prevent you from adopting that as your verdict, but you must not beforehand agree to be bound by that result. But if you arrive at such a result, and are satisfied with it, each one for himself, and then you adopt it, you may do so.”
In Ball v. Hardesty, 38 Kas. 540, it was said:
“The testimony of expert witnesses, this court has repeatedly held, must be considered like all other testimony; it must be tried by the same tests, and receive just such weight as the witness is entitled to, in connection with all the circumstances of the case.”
In Railroad Co. v. Drake, 46 Kas. 568, it was decided that —
“In an action to determine the value of certain town lots condemned for the right-of-way of a railroad, the opinions of witnesses as to the value of the lots at the time they were condemned will not be deemed conclusive, but the jury may consider such opinions in connection with all the other testimony in the case, and then, for itself, determine from all the testimony the value of such lots.” Anthony v. Stinson, 4 Kas. 211; Railroad Co. v. Thul,32 id. 257; Heithecker v. Fitzhugh, 41 id. 50; Head v. Hargrave, 105 U. S. 45; Pingrey v. Railroad Co., 78 Iowa, 438.
As the jury are ordinarily inclined to give great weight to whatever a trial judge may say to them, the testimony of the experts should have been submitted to the jury? not as the best evidence, but for them to take it
and decide what weight, if any, should be given to the same.
Again, it is possible the jury might have been misled by the instruction concerning the “average theory.” It is hardly proper to suggest to the jury to ascertain what the average is first, and then to decide whether that is a fair compensation. Any suggestion to reach a verdict by adopting the “average theory” might result in a verdict from an agreement upon such a basis, rather than from deliberate judgment upon the evidence of those witnesses in whom the jury had the most confidence. Each member of the jury should arrive at his verdict after a careful consideration of all the evidence in the case, and the suggestion of averaging the evidence, coming from a court, might cause the jury to agree to “an average” without a further consideration of all the evidence in the case. Although a court might be justified in refusing to set aside a verdict made upon the “average theory,” it does not follow that a court would be authorized to.suggest such mode by an instruction. Thomas v. Dickinson, 12 N. Y. 364; Allard v. Smith, 2 Metc. (Ky.) 297; Bailey v. Beck, 21 Kas. 462; Johnson v. Husband, 22 id. 277; Werner v. Edmiston, 24 id. 147; City of Kinsley v. Morse, 40 id. 588. The language about the evidence of the experts “being the best,” and the reference to ascertaining first “the average,” might have been omitted with advantage from the instructions.
There are other matters referred to in the briefs, but in view of a new trial we do not think that further comment is necessary.
The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring. | [
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Opinion by
Green, C.:
Elizabeth S. Callahan owned lot 14, in block 22, in Junction City, Geary county. On the 9th day of July, 1884, she deeded a one undivided half interest in the property to her husband, who was to assume and pay a mortgage upon the premises for $350. It was expressly stipulated in the deed that the grantee reserved the right to hold and occupy the property during her natural life as a home, and at her death the undivided half interest should go to the heirs of her body. The husband and wife continued to occupy the premises as a homestead until the death of the latter, which occurred on the 2d day of February, 1886. Each had children by a former wife and husband, but there was no issue of their marriage. The husband had three minor children, who lived with him and his wife. The latter had three married daughters, neither of whom resided upon the premises. Upon the death of the wife, the husband was appointed her administrator, and applied for and obtained from the probate court an order to sell her interest in the premises to pay the debts of the deceased. He then resigned as administrator, and C. H. Ward was appointed administrator de bonis non, and was proceeding under the order of the probate court to sell the undivided interest in the property, when he was temporarily enjoined by the judge of the district court, in an action commenced by the husband on the 29th day of September, 1887. This injunction action was finally tried before the district court on. the 4th day of April, 1888, when the injunction was made perpetual. There was no motion made for a new trial or exceptions taken to this judgment. On the 5th day of January, 1889, the plaintiff in error filed a motion in the district court to set aside this judgment, for the reason that such judgment was void; that the district court had no jurisdiction over the subject-matter of the action. This motion was overruled by the court on the 3d day of April, 1889, and the plaintiff in error brings the case here upon this'jurisdictional question.
The judgment of the district court must be affirmed. The court had jurisdiction of the parties as well as the subject-matter of the action. If, as the plaintiff claimed, the property was a homestead, the probate court had no jurisdiction over it, and had no power to order it sold to pay the debts of the deceased. Injunction is the proper remedy to prevent the sale of property which the law exempts as a homestead The jurisdictional question, both of the probate and district courts, is made to depend upon the question of homestead exemption. The defendant in error filed his petition for an injunction; the plaintiff in error answered. This question of the homestead exemption was thus fairly raised and passed upon by the dis trict court. No exceptions were taken and the judgment became a finality, and cannot now be challenged.
It is claimed by the plaintiffs in error that the district court had no authority to interfere with the lawful orders of the probate court, and for that reason the judgment of the district court was void, and should have been set aside. The difficulty with the position of counsel is, that the district court must necessarily have found that the property in question was a homestead, and this finding and judgment left the probate court without jurisdiction • and the proceedings had in the latter court for the sale of the premises were therefore void. “ Courts of equity freely extend relief for the purpose of preventing an enforced sale under execution of premises in the actual occupancy of the debtor as a homestead, and which are protected from levy and sale under the homestead exemption statutes of the state.” (10 Am. & Eng. Encyc. of Law, 809, and authorities there cited.)
The judgment of the district court should be affirmed.
By the Court: It is so ordered.
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
Greene, J.:
This is an action in ejectment brought by the defendants in error in the district court of Sedgwick county for the possession of certain real estate described in the petition, situated in the city of Wichita, and known as the Wichita City Mills. On the 7th day of June, 1898, the plaintiff below, N. F. Frazier, was the owner of a large part of such property and afterward became the owner of the entire property. On that day he entered into the following lease and contract with plaintiffs in error :
“Wichita, Kan., June 7, 1898.
“For and in consideration of $1200, to be paid by W. E. Caldwell and F. D. Stevens, as follows: Ten dollars cash, the receipt whereof is hereby acknowledged ; $90 on August 1, 1898; $100 on the 1st of each month following, until the full amount of $1200 is paid, I hereby lease to the said Caldwell and Stevens the following-described property, to wit: Tract (known as the old City Mills), including lot or lots 145 feet east and west on Douglas avenue, extending back to alley, about 150 ( ?) north and south, together with all buildings, machinery, and scales, for the term of one year from the 1st day of August, 1898; said Caldwell and Stevens to have immediate possession of said property and to have the. right to make such changes in the machinery as may be necessary, and to have the right to remove from said property any buildings or machinery they may have placed on said property.
“ For the consideration above named, I hereby agree to. give to the said Caldwell and Stevens the option to buy the said described mill property at any time during the life of this lease, at $15,000 ; the said Caldwell and Stevens to return the property at the expiration of lease in as good condition as received, usual wear and tear excepted. N. F. Frazier.
“We hereby accept the conditions of this lease.
W. E. Caldwell.
F. D. Stevens.”
On the same date the plaintiffs went into possession of the property, under the lease, and' occupied the same until July 31, 1899, since which time they have been in possession, claiming to be the owners under their option contract as expressed in the lease.
At the time of the execution of the lease Frazier had this property insured in the sum of $10,000. During the existence of the lease this policy expired, and he had it reinsured for $8500, for his own benefit. On June 20, 1899, a fire occurred, and a great portion of the buildings, machinery and improvements were destroyed. Before the commencement of this action Frazier collected from the insurance company the amount of his policy, $8500, this being the value of the damage he sustained,by reason of the fire.
On the 31st day of July, 1899, Caldwell and Stevens offered to pay Frazier $15,00p for the leased property, provided he would place it in the same condition it was just before the fire and at the time of the execution of the lease, and made a good and valid tender of such amount with that condition. At the same time Caldwell and Stevens demanded that Frazier apply $8500, the insurance money collected, on the purchase-price of $15,000, and made a valid tender of $6500, and de manded a deed to the property in its then condition ; and at the same time they tendered Frazier $6700, and demanded a deed to the property in its then condition. All of these offers were rejected by Frazier. At the time these tenders were made, Caldwell and Stevens served a written notice on Frazier electing to- purchase the property described in said lease subject to the conditions substantially as stated above.
When this action was commenced Caldwell and Stevens were- in actual possession of the property, claiming to be the owners under the option contract. In their answer they prayed for a specific performance of the contract under some one of their tenders, or, if specific performance should be thought inequitable, then for their damage for a breach of the contract in the sum of $7000. This court is of the opinion that under the facts a specific performance could not be decreed, and that plaintiffs in error were not entitled to recover damages as for a breach of contract.
An option contract conveys no estate or interest in the property. It is but a continuing offer to sell, which may be accepted by the holder thereof, prior to a time usually fixed in the contract, and, like other contracts when accepted, takes effect from the date of its acceptance and not from the date of the offer.
In Warvelle on Vendors, volume 1, page 187, it is said:
“The remarks of the foregoing paragraphs have reference, however, only to bilateral contracts; for an agreement whereby the owner of land merely gives to a prospective vendee the right, option or refusal to purchase at any time in the future, confers upon the party having such option no interest, either legal or equitable, in the land. It is not a contract of sale within any definition of the term, and at best but gives to the option-holder a right to purchase upon the terms and conditions, if any, specified in the agreement or proposal.”
To the same effect are the decisions in Bras v. Sheffield, 49 Kan. 702, 31 Pac. 306; The Boston & Maine Railroad v. Bartlett and another, 3 Cush. 224 ; Edwards v. West, 7 Ch. Div. 858; Gilbert & Ives v. Port, 28 Ohio St. 276.
A contract of purchase passes an immediate interest in the real estate, and the vendor holds the title as trustee for the vendee. This contract takes effect upon its execution. But no such interest or rights arise from an offer to sell, before acceptance by the contemplated purchaser.
When the buildings upon the property in question were destroyed, Caldwell and Stevens had not availed themselves of the privilege under the option agreement ; or, in other words, had not accepted the offer of defendant in error. At that time they had acquired no interest in the real estate in controversy or in the property destroyed. Where there exists a contract of sale of real estate, one of the essential elements of which is. an agreement on the part of the vendee to purchase, and before the transaction is consummated the vendor dies, or the buildings are destroyed, the vendee may nevertheless have performance of his contract, and the property so destroyed must be restored or he will be allowed an abatement in the price. No authorities, however, can be found 'that have applied this rule to option contracts, where the property is destroyed prior to an acceptance. The reason obviously is that in the contract of purchase the obligee takes an interest and the contract is an executory one, while in an option contract to purchase the obligee takes no interest, the contract is incompleted, it lacks mutuality until acceptance, and when accepted it does not relate back to the date of the offer, but has no other effect than if the offer had been made on the day of the acceptance, and the election, when made, is to accept the property as it is on the date of the acceptance.
In Bras v. Sheffield, supra, the syllabus reads:
“ Where the owner of land leases it for a period of five years at a stipulated annual rental, and the contract of lease contains a stipulation that .the renters shall have the right, at the expiration of the léase, to purchase the premises, if they shall so elect, at a fixed price, there is no completed sale, nor do the renters acquire any estate in the land beyond the leasehold interest until they have elected to accept the offer and have paid or tendered the purchase price stipulated in the contract.”
In Boston & Maine Railroad v. Bartlett and another, supra, the court said :
“It was then but an offer to contract, and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance.
“But when the offer was accepted, the minds of the parties met, and the contract was completed, There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the,defendants. There was then nothing wanting, in order to perfect a valid contract upon the part of the defendants. It was precisely as if the parties had met at the timé of the acceptance and the offer had been made and accepted and the bargain completed at once.” ■
In Edwards v. West, 7 Ch. Div. 858, the court said:
“In the first place, it has been said that by the law of England the exercise of the option causes it to relate back to the time of the creation of the option in such a manner as to render the property for this pur pose property of tbe purchaser as from the date of the contract which gave the option ; so that here, althougl the option was given by a contract made in April, and not exercised until the 28th of September, yet that when it was so exercised, on the 28th of September, it operated retrospectively, and made the property the property of the purchaser as from the month of April preceding, and consequently made the vendor trustee of the fruits of the property for the purchaser. Now, it appears to ufé that such a conclusion would be highly inconvenient, because it would place a person under the obligations which rest upon a trustee, or make him free from them, by reference to an act which was not performed until a future day; and the retrospective conversion of a person into a trustee of property is a result eminently inconvenient. According to the view which I conceive to be true, the conversion of property, which means the treating it as belonging to somebody else before it has been actually transferred to that other person, results from a contract which can be specifically enforced; so that where there is no specific performance of contract possible there is no conversion'. It flows in effect from the principle of equity which considers that done which ought to be done, and which the court can compel to be done, and it extends so far back as those circumstances exist, and no further. In other words, where there is a contract capable of being specifically enforced as from the date of that contract, and neither earlier nor later, the property comprised in the contract is deemed to belong to the purchaser, and the money to be paid is deemed to belong to the vendor, because those two things ought to be done; but here there is no obligation to do them at any earlier date than that of the contract constituted by the exercise of the option. The conversion cannot, according to the principle, relate back to an earlier date than the contract which gives rise to it.”
Under the circumstances of this case, there was no breach of the option agreement on the part of Frazier in refusing to .convey the property with the improve ments restored, or in refusing to convey with an abatement in price equal to the value of the lost improvements, .and consequently he is not liable in damages as for a breach of contract.
The judgment of the court below is affirmed.
Smith, Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Dostbr, C. J. :
This was an action on a promissory note. The answer of the defendants admitted the execution of the note, but averred that it was given to evidence and secure part of the purchase-price of a horse sold by plaintiffs to defendants; that contemporaneously with the agreement to purchase and the execution of the note, and as part of the consideration for the transaction, the plaintiffs agreed that when the horse became four years old they would rescind the contract, if defendants so desired, and would accept a return of the animal, and would cancel and surrender the note. The jury found a verdict for the defendants, and in addition thereto made answers to special questions as follows:
“Q,ues. 1. At the time of the delivery of the stallion Kepi to the defendants by the plaintiffs, did the plaintiffs also deliver to the defendants a writing warranting the horse to be a reasonably sure breeder? Ans. Plaintiffs did give a written guaranty to defendants warranting from fifty-two to fifty-seven per centum of breeding qualities.
“ Q,. 2. Was there any written contract in connection with the sale and purchase of said stallion Kepi other than the three promissory notes of $400 each, and the paper relating to the breeding qualities of the horse? A. No.
“ Q. 3. Did the plaintiffs at any time agree in writing that they would take back the horse Kepi when he should become four years old? A. No.
“Q. 4. How long after the defendants purchased the horse Kepi before he became four years old? A. Between thirteen and fourteen months after.
“Q. 5. Did the defendants decline to take the reponsibility of returning the horse Kepi to the plain • tiffs’ stock ranch, near Chapman, on account of warm weather ? A. We find the defendants did not decline to, but would rather not, take the horse Kepi to the plaintiffs’ ranch in the warm weather.
“Q. 6. Did the defendants ever return the horse Kepi to plaintiffs ? A. No.
“ Q. 7. Did the paper delivered to the defendants with the stallion Kepi contain the following provi sion : ‘"We hereby guarantee that, with proper treatment and handling, the said stallion will prove a reasonably sure breeder; and in case he should prove unsatisfactory upon fair trial, we agree that he may be returned to our stables, and, if as sound and in as good condition as when he leaves here, exchanged for another horse at fair cash value. The above and foregoing agreement shall be construed as a special warranty, and as embracing in its terms the full extent of our liability in case of a breach thereof’ ? A. No.”
The plaintiffs moved for judgment on the foregoing findings, notwithstanding the verdict. This motion was denied, and judgment rendered for the defendants, to reverse which error has been prosecuted to this court.
It will be observed by the findings above quoted that the only writings executed by' the parties were the notes of the defendants, and the plaintiffs’ guaranty of the breeding capacity of the horse. The agreement of rescission, if made, was not in writing. The defendants, on the trial, did not claim that it was in writing, but admitted that it was oral. Such being the case, the defense was not maintainable. An unbroken line of decisions by this court sustains the proposition that oral evidence of agreements made contemporaneously with the execution of promissory notes or other written obligations is inadmissible to contradict, vary or add to the terms of the engagement. (Drake v. Dodsworth, 4 Kan. 160; Barnett v. Williams, 7 id. 841; Cornell v. St. L. K. & A. Rly. Co., 25 id. 613; Hopkins v. St. L. & S. F. Rly. Co., 29 id. 544; Rodgers v. Perrault, 41 id. 385, 21 Pac. 287; Willard v. Ostrander, 46 id. 591, 26 Pac. 1017; McMullen v. Carson, 48 id. 263, 29 Pac. 317 ; Safe & Lock Co. v. Huston, 55 id. 104, 39 Pac. 1035, 28 L. R. A. 53 ; Bank v. Manning, 60 id. 729, 57 Pac. 949 ; Trice v. Yeoman, 60 id. 742, 57 Pac. 955 ; Railroad Co. v. Price, 62 id. 827, 62 Pac. 1001, 84 Am. St. Rep. 392; Ehrsam v. Brown, 64 id. 466, 67 Pac. 867.)
The above-cited decisions are only in affirmation of the fundamental rule with which all are familiar, and with application to the special facts of each particular case. The counsel for defendants in error do not, of course, dispute the existence of the rule stated. Their claim is that the oral agreement to which their clients testified, on the strength of which, evidently, the jury found in their favor, was independent of and collateral to the main engagement, and therefore not in contradiction of it; or, as stated by them in 'another form, that the complete transaction consisted of reciprocal promises, a part only of which the parties saw fit to reduce to writing, and that the omitted part might properly exist in parol without infringing on the rule in question. It is hence argued, on the strength of remarks made in Trice v. Yeoman, supra, that “parol evidence is admissible to complete the proof of any kind of agreement which has been only partially reduced to writing, the added portion being in completion, and not in contradiction, of the writing” ; and as a claimed instance of the character of case falling within such rule and parallel to the one .at bar, Babcock v. Deford, 14 Kan. 408, is cited. That case is not similar in point of fact to this one. In that case it appeared that the following written order for merchandise had been made :
“Leland A. Babcock, M. D., Freeport, III.:
“Dear Sir — Please send us six of your pure solid silver uterine supporters, as follows, to wit: at ten dollars each, on six months’ time, with printed matter. Yery truly yours, D. Deeord & Co.
“Ottawa, Kan., February 3, 1873.”
Suit was brought on the above order, alleging it to be a contract of purchase, and that the purchase-price of the goods had not been paid. It was held that oral evidence of a contemporaneous agreement to'take the goods back was admissible in defense, for the reason that “the writing does not in terms assert an absolute purchase or contain an express promise to pay.” As stated by the court in that case, a promise to pay was implied from the receipt and retention of the goods; but it was an implication existing in parol, and therefore might be rebutted by parol. Such a writing as the one above quoted, containing no express agreement of purchase nor obligation of payment, but leaving both these elements of the contract to inferences, derivable in part from its terms and in part from subsequently occurring circumstances, is entirely different from the absolute and irrebuttable engagement to pay contained in a promissory note. The writer of the opinion in Babcock v. Deford, supra, unfortunately allowed himself to indulge in the expression of an opinion beyond any necessary statement of the law of the case before him, which has, perhaps, misled the counsel for defendants in error. Said he : “Though the writing in terms asserted an absolute purchase and contained an express promise to pay, it would still be consistent with an agreement to repurchase. Both might have been made at the same time and both expressed in writing, or one in writing and the other in parol.” The writer of the present opinion takes occasion for himself to repudiate the above expression of view, as being not only dictum of the baldest kind, but bad dictum at that. It is hot even the law of the supposititious state of facts in respect of which it was written.
The general subject of oral evidence to attach conditions to the terms of written contracts was recently exhaustively considered by Mr. Justice Pollock in an opinion in which we all fully concurred, and the law was stated as follows: “Whether parties have committed their entire contract to writing is a question for the determination of the court. In this determination the writing itself is the guide. If, on its face, it imports to be complete, that is, if it contains such language as imports a complete legal obligation between the parties, it is complete, and parol evidence will not be admitted to extend its obligations to cover matters on which the writing is silent. ’ ’ (Ehrsam v. Brown, supra.)
Now the express condition to pay, contained in a promissory note of the usual form, such as the one in question in this case, constitutes such writing a complete contract, importing on its face an absolute obligation, as to which a reservation of right not to pay is entirely contradictory. Therefore, oral evidence of a contemporaneous agreement to surrender the note without payment in rescission of the contract pursuant to which it was given is not admissible.
The judgment of the court below is reversed, with directions to enter it for the plaintiffs on the findings of the jury.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to contest an election held in Chase county on November 16, 1886, for the voting of county bonds to be used in paying for stock of the Chicago, Kansas & Western Railroad Company, and in aid of the construction of the railroad of that company in Chase county. It was brought by D. C. Evans, an elector of the county, against the board of county commissioners and the county clerk of Chase county, under the provisions of chapter 79 of the Laws of 1871. The petition which he filed substantially alleged that a petition signed by a number of persons was presented to the board of county commissioners of Chase county on October 12, 1886, requesting that an election be called to submit to the voters a proposition to subscribe for $80,000 'of the capital stock of the Chicago, Kansas & Western Railroad Company; that the board of county commissioners in session duly convened, found that the petition was signed by 657 persons, who constituted more than two-fifths of the resident tax-payers of that county, and thereupon ordered an election to be held on November 16, 1886, as prayed for in the petition; that due notice was given of this election, and that afterward the election was duly had, and a canvass made of the returns of this election, and the board of county commissioners declared that the proposition submitted had been carried by a majority of 155 votes; that thereafter, on November 19, 1886, the board of county commissioners ordered the county clerk to make the subscription of $80,000 to the capital stock of the railroad company, and that in pursuance of that order the county clerk made the subscription; that thereafter the railroad company proceeded with the construction of its railroad, and that it intended at the July, 1887, meeting of the board, to tender to the treasurer of the county $80,000 certificates of stock, and to demand from the board of county commissioners $80,000 of the bonds of the county in payment therefor, and that the demand would be made upon the ground that the railroad had been completed and was in operation as required by the terms of the proposition, and that the railroad company had complied with all the conditions contained in that proposition. It was then alleged that the petition presented to the county commissioners, and upon which the election was called, did not contain the names of and was not signed by two-fifths of the then resident tax-payers of that county; that there were two thousand resident tax-payers, and that the petition did not contain the names of more than five hundred resident tax-payers, and that the names to the extent of one hundred or more of those who signed the petition were not the signatures of the persons purporting to sign the same, and were not authorized by such persons, and that the petition was illegal and insufficient in law upon which to call or hold an election, and that the election and proceedings connected therewith, and the subscription of stock, were illegal and void. He asked that the issuance and delivery of the bonds be enjoined.
The board of county commissioners filed an answer in the cause, admitting the allegations contained in the petition. After the action was begun, the plaintiff amended his petition upon leave of the court, by adding to it the name of the railroad company as a defendant, and making the company a party defendant to the action. The railroad company was brought into court by a summons, and it filed an answer, admitting all the allegations in the petition, except as to the insufficiency of the petition upon which the election was called, but it denied any insufficiency or illegality of the petition, election, or in the subscription of stock, and denied any wrongdoing upon its part. The cause was tried by the court at the June, 1888, term, upon the issues so made. The railroad company objected to the introduction of any evidence under the petition, on the ground that it did not state facts sufficient to constitute a cause of action against the railroad company. When the plaintiff closed his case and rested, the railroad company demurred to the evidence introduced by him, and this demurrer was overruled.
The court made findings of fact and conclusions of law, and among other things found that the petition requesting the calling of an election contained the names of 827 persons, and that the board after an examination declared that it contained the signatures of 656 resident tax-payers, and that that number was more than two-fifths of the entire number of resident tax-payers in the county at that time. It was further found that an election was held upon an order duly made, that the vote cast thereat was duly canvassed, and it was determined that the proposition was carried by a majority of 155; and that on November 19, 1886, the board directed the county clerk to subscribe to the capital stock of the company, and that in pursuance of the order the county clerk made a subscription to the capital stock of the railroad company for $80,000 on behalf of Chase county, under the seal of the county, which subscription was duly received and accepted by the railroad company.
“That thereupon, and after the 19th day of November, 1886, and prior to the 1st day of June, 1887, the Chicago, Kansas & Western Railroad Company complied with and fulfilled each, every, and all of the propositions and conditions which it was required to fulfill and comply with in order to carry out its part of said subscription, and it fully did and performed each, all, and every of the several things which it was to do and perform under and by the terms of the proposition submitted at said special election as shown by ‘Exhibit A’ to plaintiff’s petition, within the time therein required, and it did and performed everything that it was required to do and perform by the terms of said subscription, within the time therein required.
“That the plaintiff knew of the circulation of the petition that was presented to the board of county commissioners on the 12th day of October, 1886, and knew of the order of the board calling said special election, and of the election being held, of the canvass of the vote and its result; and of the building of the railroad on the part of the railroad company in accordance with the conditions contained in the said proposition so voted upon, during the time the said railroad was being built; and that during said time the plaintiff lived within five miles of the court house at Cottonwood Falls, Kansas; that during all said time he never made any investigation of the questions involved in this action until after the 1st day of June, 1887, and that he then commenced this action at the instigation of parties who had right-of-way appeal cases against the defendant railroad company then pending in this court, and that this case was commenced by the plaintiff to compel the railroad company to compromise and settle such right-of-way appeal cases, and with the expectation and belief that this case would be compromised and settled by the railroad company and dismissed by the plaintiff upon said settlement of said right-of-way cases.”
In respect to the petition upon which the election was called, the court found that on October 12, 1886, the entire number of resident tax-payers of Chase county, Kansas, was 1,425, and that the petition praying for an election, to which 827 names were attached, contained only 567 legal petitioners or resident tax-payers, which was just three less than the number necessary to have signed it in order to constitute two-fifths of the number of electors as found by the court. Motions were made by the railroad company for judgment on the findings and also for a new trial, both of which were overruled and excepted to. The railroad company brings the case here, and insists, among other things, that it was not properly brought into the case and made a party in the action, that no cause of action was set forth in the petition against the company, and hence that its objection to the introduction of any testimony and its demurrer to the evidence were erroneously overruled.
The question first presented and argued here is, whether in this special proceeding the plaintiff can bring in any defendants other than those named in the statute under which the action was brought, or have any question tried and determined except the contest of the election. The action brought by Evans can only be maintained under chapter 79 of the Laws of 1871. According to the allegations of his petition, he has no interest in the subject-matter of the actioq different from other citizens and electors of the county, and has no right to sue or appear in behalf of the public except as he is specially authorized by the statute mentioned. That statute provides a special method for contesting county-seat elections, and all elections other than those held for choosing public officers, and permits an elector to institute a contest, giving him a right which did not previously exist to interfere in public matters and in which he has no special interest. The act provides in terms what elections may be contested at the instance of the elector, the style of the action, the parties thereto, and the procedure governing the same. In § 1 of the act it is provided that such an election may be contested by the elector “in the district court of the proper county, as hereinafter provided.” The 5th section provides how such an election as the one we are considering may be contested. Omitting the portions not applicable to this action, it reads as follows:
“Whenever after any election . . . the board of canvassers shall declare . . . any question or proposition voted upon at such election to have been adopted, any elector . . . aggrieved thereby may commence an action . ’ . . to enjoin and restrain the proper officer or officers . . . from executing, issuing or delivering any bond or * bonds . . . or from subscribing any stock for or from loaning the credit of such county, township, or municipal corporation,” etc.
It is clear from the nature of the proceeding and the language employed by the statute, that the elector cannot contest any other question or proceed against any other persons than those named in the statute. The right of the 0 elector to enter and carry on *the contest is both created and limited by this statute, and by it he is limited to the mere question of contesting the election, and to accomplish this can only proceed against the officers of the county, township or municipal corporation upon whom the duty of executing and delivering the bonds voted at the election is devolved. It has always been held that when an elector invokes the remedy thus specially given, he must bring himself strictly within the provisions of the statute conferring the same, and must follow the procedure which the special statute prescribes. ( The State, ex rel., v. Smith, 31 Has. 129; Clark v. Comm’rs of Montgomery Co., 34 id. 632; The State, ex rel., v. Comm’rs of Wabaunsee Co., 36 id. 180.) In the case last cited it is said-that “under this act an injunction can be allowed only after the election, after the canvass, and only after the result has been declared; and in such elections as the one in this case, it can be allowed only to restrain the officers from subscribing for stock, or from executing, issuing or der •livering bonds, or from loaning the credit of their county, township, or municipal corporation.” The railroad company had no duty to perform in holding the election, and derived no authority from the result of the election. It was held for the purpose of empowering the county commissioners of the county to act for the people in the making of a contract of subscription between them and the railroad company. Even an affirmative vote creates no contractual right between the railroad company and the county. Such right arises only when the subscription is made by the proper officers in pursuance of a favorable vote. (C. K. & W. Rld. Co. v. Comm’rs of Osage Co., 38 Kas. 597.) But as the statute gives the elector no authority to proceed against any person other than the officers of the municipality, there is little room to contend that the railroad company or any outside persons can be brought into court and made parties to the contest, and thus be required to litigate with this elector questions not contemplated by the statute. In this case the proposition was voted on, was declared to have been carried, the subscription of stock was ordered to be made, and was made, received and accepted. After a contract was thus entered into between the county and the railroad company, the company built the road in accordance with the contract, and complied with every condition of the proposition. After all this had been done, and with knowledge of every step, the elector Evans instituted this proceeding — which is designed alone to contest an election — for purposes other than to contest, and sought to bring in outside parties, and to inquire into and cancel a contract already made between the county and the railroad company. This cannot be done, at least not in this special proceeding. Deriving his rights solely under a statute, he is strictly confined within its limitations, and must leave all other matters to be inquired into at the instance of the proper public officer, who has full authority, and who may in a suitable action bring in the necessary parties and have such matters inquired into. There is. no controversy here between the elector and the county commissioners, nor was there an issue formed between them in the district court, as the commissioners answered, admitting the truth of the allegations contained in the plaintiff’s petition; and this ended the contest between the parties who were properly before the court. As the railroad company was not a proper party and is alone in bringing the case to this court, we cannot in this proceeding inquire into the question of whether the elector was estopped from maintaining the action by reason of delay or bad faith in instituting the same, or because the rights of third parties were involved before the action was begun, nor any of the other questions so fully presented by the briefs of counsel.
The judgment of the district court against the Chicago, Kansas & Western Railroad Company will be reversed, and the cause remanded, with directions to dismiss it from the action and enter judgment in its favor for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
This is an original action in this court in the nature of quo warranto. The purpose of the action is to disorganize the county of Stevens on two grounds: 1st. The invalidity of chapter 37 of the Laws of 1886, entitled “An act to restore or recreate and define the boundaries of the counties of Seward, Stevens, and Morton, in the state of Kansas, and repealing all former law's relating to the boundaries thereof;” 2d. Fraud in taking the census of the county, and in the return thereof made to the governor.
On the 24th of May, 1886, there was presented to the governor a memorial in writing purporting to have been signed by 455 householders, who were alleged at the time to be legal electors and residents of Stevens county — an unorganized county; the memorial purported to show that there were 2,500 bona fide inhabitants in the county; and that 400 of them were householders. The memorial prayed that the county might be organized, and was accompanied by the affidavit of five persons to the effect that the signatures attached to the memorial were the genuine signatures of householders and bona fide residents of the county, residing therein for six months; and to the further effect that there were 2,500 bona fide inhabitants in the county. After the memorial had been filed in the office of the governor and considered by him, he appointed, on May 24,1886, J. W. Calvert to take the census of the county, and determine the number of bona fide inhabitants therein. On the 2d of June, 1886, Calvert commenced to take the census of the county, and completed the same on the 30th of July, 1886, and on the 3d of August, 1886, made his return thereof, verified by his oath, to the governor; his return, upon its face, purported to show that there were 2,662 bona fide inhabitants within the county; that 868 of the number were householders, and 627 of the number voters. On the 3d of August, 1886, in accordance with the provisions of the statute relating to the organization of new counties, the governor appointed J. B. Robertson, H. O. Wheeler, and J. S. Chamberlain to act as county commissioners of Stevens county; J. W. Calvert to act as county clerk of the county; and designating Hugoton to be the temporary county seat of the county. All of these persons qualified on the 5th of August, 1886. The petition in this case was filed August 31,1886, but the summons that was actually served was issued October 5, 1886, and returned with service October 15, 1886. John B. Robertson and H. O. Wheeler, two of the defendants, ceased to act as commissioners on September 13, 1886, having been succeeded in office by other persons, elected September 9, 1886.
It is contended that chapter 37 of the Laws of 1886 is invalid for the following reasons: 1st. Because the president of the senate and the speaker of the house of representatives failed to sign the enrolled bill; 2d. Because the enrolled bill and the house journal do not agree as to the dates that the bill was presented and passed; 3d. Because the name of the county of Kansas, which appeared in the original bill presented to the house, was never, by vote or otherwise, legally changed to Morton; 4th. Because it is alleged that the act of 1886, which regularly passed both houses of the legislature of 1886, relating to Seward, Stevens and other counties, was lost, and that another bill, which had never passed the legislature, was surreptitiously substituted in its place; that this surreptitious bill was approved by the governor, and subsequently enrolled. The enrolled bill is known as “House bill No. 39,” and the house journal shows that it originated in the house January 20, 1886; that the bill was read the second time on January 21st, and referred to the committee on county seats and county lines; that the committee, on the 29th of January, reported the bill back, with various amendments, and recommended its passage; that on February 17th the bill was again before the house, and on motion of Mr. Smith, of McPherson, all after §4 to §16 was stricken out, leaving in the bill only the counties of Seward, Stevens, and Kansas; that the bill after having been amended, passed by a vote of 72 yeas to 31 nays; that subsequently its title w;as agreed to; that on February 18th it was engrossed and sent to the senate. As originally presented, the bill was entitled “An act to restore or re-create and define the boundaries of the counties of Seward, Stevens, Kansas, etc.” The engrossed bill was messaged to the senate as “House bill No. 39, An act to restore and re-create certain counties therein named.” Subsequently, H. B. Kelly called for the reading of house messages, and the senate journal shows that thereupon house bill No. 39, “An act to restore or re-create and define the boundaries of the counties of Seward, Stevens, Kansas, etc.,” was read the first time; an emergency was declared, and the bill was read the second time; an emergency was again declared, and house bill No. 39 was read the third time and placed upon its final passage, subject to amendment and debate. Soon after, it passed the senate by a vote of yeas 24, nays 8. The title was then agreed to. The house journal shows that it was returned to the house from the senate on February 18th as “House bill No. 39, An act to restore or re-create certain counties therein named;” and that, on February 18, the house committee on enrolled bills reported that they had compared the engrossed copy of “House bill No. 39, An act to restore or re-create and define the boundaries of the counties of Seward, Stevens and Morton, in the state of Kansas, and repealing all former laws relating to the boundaries thereof,” with the enrolled bill, and that the same was correctly enrolled. It also reported that the bill was properly signed by the officers of the house and senate.
While there are some discrepancies or irregularities connected with the history of House bill No. 39, we do not think that any of these discrepancies or irregularities render the act void, and, considering all of the evi- . , ° deuce, we do not think there is any room to doubt but that the act was regularly passed and approved; and we do not think, from the evidence, that the original act was lost after its passage and another bill surreptitiously substituted in its place. (Weyand v. Stover, 35 Kas. 545.) “The enrolled statute is very strong presumptive evidence of the regular passage of the act and of its validity, and is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly and conclusively, and beyond all doubt, that the act was not passed regularly and legally.” (The State v. Francis, 26 Kas. 731.) The signatures of the presiding officers of the house and senate are not absolutely essential to the validity of the act. Such signatures are only portions of the many evidences of the due passage and validity of the act; and an act may be valid although the signatures of the presiding officers are omitted. (Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kas. 62.) We do not think that the act can be void because there is a discrepancy between the journals of the house as to the origin and passage of the bill and the enrolled bill itself. The journals show the proceedings of the legislature, and the dates entered upon the enrolled bill as to its origin and passage are evidently clerical mistakes only. The name of the county of Kansas may have been changed to the county of Morton in the open house, without the journals showing the change or amendment. “ If there is any room to doubt as to what the journals of the legislature show; if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold the enrolled statute is valid.” (The State v. Francis, supra.) Further than this, without passing upon the validity of chapter 2 of the Laws of 1887, we call attention to its .provisions. This act was passed at the session following that which passed chapter 2, Laws of 1886. Many of the members of the house of the session of 1886 were members of the session of 1887; the members of the senate were the same in both sessions. It must have been personally known to a large number of the members of the house and to every member of the senate, whether chapter 37 of the Laws of 1886 passed their respective bodies. Said chapter 2 of the Laws of 1887 recites that chapter 37 of the Laws of 1886 was regularly passed by a constitutional majority of both houses of the legislature; that the name of the county of Kansas was changed to Morton after due consideration and a vote of the house of representatives had thereon, without a record of such action being made on the journal thereof; and that the enrolled bill fails to show the correct date of its origin and passage.
An examination of all of the evidence in the case satisfies us that there were not 2,500 bona fide inhabitants in the county of Stevens as stated in the memorial presented to the governor, and that the census-taker did not make to the governor a just and true return of the number of inhabitants in the county at the date of the presentation of the memorial to him. (See note 1.) Therefore, if there had been no subsequent recognition, by the legislature,.of the organization of the county proclaimed by the governor, we would be compelled to grant the prayer of the petition; but there was a complete organization defacto prior to 1887. After the proclamation of the governor of the 3d of August, 1886, there was a full set of county officers in the county, with all the paraphernalia of a legally-organized county. From that time up to the present, it has exercised all of the powers and duties of a legally-organized county. [The State v. Comm’rs of Pawnee Co., 12 Kas. 426.) By chapter 2, Laws of 1887, the organization of the county was legalized and made valid; but even if the constitutionality of that act were in doubt, the defective organization of the county was cured by chapter 133, Laws of 1887, which recognized the county as organized by attaching Grant county to it for judicial purposes, and by chapter 147, Laws of 1887, detaching it from Finney county for judicial purposes, and placing it in the 27th judicial district and authorizing courts to be held therein. (The State v. Comm’rs of Pawnee Co., supra.) As the county was organized in August, 1886, upon a false and insufficient census, but as its defective " organization has been cured by legislative recognitio'n since the commencement of the action, the ... . prayer of the petition will be denied. The costs, however, will be divided. The plaintiff will recover all costs against Stevens county which accrued prior to the approval by the governor on March 5, 1887, of chapters 133 and 147, Laws of 1887, recognizing the organization of Stevens county as valid. The defendants will recover all costs which have accrued subsequent to that date.
Note 1. In the action of The Slate of Kansas, exrel., v.S. S. Prouty, census-taker of Kearney county, at the July session of this court for 1887, it was decided that those persons who were entitled to express their preferences, on the census return, for the temporary county seat of the county, were those only who are legal electors of the county at the time the memorial to the governor was filed. (Journal “M” of the Supreme Court, page 146, July term, 1887.)
With this conclusion, it is unnecessary to determine whether the defendants, John B. Robertson and H. O. Wheeler, are proper parties to the action — no personal judgment for costs will be rendered against either of them.
All the Justices concurring. | [
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Per Curiam:
A motion has been filed for a rehearing of this case, and for a reconsideration of the matters heretofore presented. It is urged that the opinion ignores several vital, important and controlling questions contained in the record and discussed in the original briefs. The matters most forcibly presented in support of the rehearing refer to testimony of certain witnesses concerning conversations had between themselves and Henry Snyder, the engineer, after the accident occurred, and the testimony of James Calloway, that in his opinion the pilot of the engine was the proper place for Dexter F. McCally to be at the time of the accident. The statements of Snyder after the accident were incompetent, being hearsay testimony only. (Rly. Co. v. Pointer, 9 Kas. 620.) The only statements or conversations with Snyder which in any way tended to prove that he was negligent in running or operating the train were as follows. James Calloway testified:
“Q. What did you do in the way of calling or shouting for Snyder? A. I hallooed to him to look out — that we were going to strike.
“Q. Did you shout in a loud voice? A. Yes, sir.
“Q,. Do you know whether he heard you or not? A. I do not know. He said he heard somebody halloo.
“Q. Did you have any conversation with Snyder at the time of the accident or immediately after as to why he did not stop the engine, or why he- drove it so fast, or on any other subject? A. I asked him what in hell he wanted to do — did he want to kill us all ? and he said he couldn’t help it.
“ Q. Did he say anything further ? A. He said he didn’t think we were so near the coal cars; he claimed the smoke was down on his side of the cab, and the snow blowing so he couldn’t see.
“Q,. Did he say anything about hearing your cries and shouts ? A. He said he heard somebody hallooing, but he didn’t know what it was.
“Q. How long after the collision was it? A. Just after, as soon as I got up and walked to the engine.”
Again, W. T. Harrell testified :
“Q,. Hid Snyder say anything as to whether he saw Calloway making the signals? A. He said he didn’t see him; that is what he said; he said he didn’t see any signals.
“Q,. When did he tell you that? A. Right after it happened.
“ Q. How long after the collision ? A. A couple of hours; he talked right along while he was helping to put the engine on.”
Unless it can be said from the record that this incompetent testimony was not prejudicial to the rights of the railway company, its admission would cause a reversal of the judgment. We think, however, that an examination of the whole record shows that this testimony was not prejudicial or injurious. In the case of Railway Co. v. Pointer, supra, the hearsay testimony of Hamilton, the engineer, which occurred after the accident, was introduced by Pointer to show the negligence of Hamilton in running his train, after Pointer had called Hamilton as a witness to testify in his behalf. Hamilton’s attention was not called to such conversation when on the stand. In this case Snyder was a witness produced by the railway company; and although the objectionable testimony was not offered as evidence to impeach him, yet he had full opportunity to deny the statements attributed, and he made as a witness, full and complete denial thereof. But, further than this, the evidence of Snyder clearly established his negligence in the running or operating of his engine. He testified among other things as follows:
“Q. You may state what you were engaged in doing that morning. A. I got the engine out of the round-house, and the brakemen helped me.
“ Q,. Did you get it out for the purpose of switching in the yard — shifting cars from one track to another? A. Yes, sir.
“Q. In-that business who was to assist you that morning as brakemen? A. Calloway and McCally.
“ Q,. When you go out in the yard to do switching, do you give them (brakemen) orders to do a certain thing, or do you go for the purpose of following signals? A. I go for the purpose of switching, and I don’t know what is to be done until I go out; sometimes I do, and sometimes I don’t.
“ Q,. Do you at all times follow the signals of the brakemen ? A. Yes, sir.
“Q,. Then the movement of the engine is in accordance with the signals given by the brakemen who are assisting in switching? A. Yes, sir.
“ Q. Which side of the cab is your position in as engineer ? A. The right-hand side.
“Q. The fireman, then, occupies the left-hand side? A. Yes.
“Q,. You may state what the condition of the road was at the time. A. It was snowing hard, and there was probably three inches of snow on the track and all over the ground; the snow was terribly light, and it was blowing every way.
“Q. Was the wind blowing hard at the time? A. Yes, sir.
“Q. What direction was it blowing from? A. Nearly from the north, and a little from the northeast.
“Q,. Were the rails wet and slick? A. Yes, sir.
“Q,. State if there was anything else besides the box car that prevented you from seeing ahead of the engine along the road. A. Yes, sir; I could not see the box car hardly any of the time, on account of the smoke and the snow blowing from the engine and the top of the box car against the cab windows.
“Q. When the coupling to the box car was made, where did the brakemen take their positions, if you know ? A. I never saw but one of them; that was the one on top of the car.
“ Q. Who was that ? A. Calloway.
“Q,. When Calloway got on top of the car what did you do ? A. He gave me the signal to go ahead, and I pulled her open and went ahead.”
He was subsequently asked if he saw any signal after that from the top of the box ear. He answered; “No, sir, I did not see any signal; the only signal I got was from the fireman.”
“ Q,. At what rate of speed did you pass over the track from where you coupled on the box car to the point where you crossed the highway ? A. In my judgment, I don’t think we went over ten miles an-hour any place on the side-track.
“ Q. I will ask you what would be a reasonably safe speed at which to run an engine over the track in the condition it was in that morning. A. Well, for the distance we had to go there, ten or twelve miles an hour was safe enough anywhere, if I had the signals when I ought to have had them.
“Q,. You say the wind was blowing so that the sand falling from the end of the pipe never struck the rail, but blew off to one side? A. Yes, sir.
“Q,. You say it takes but very little wind to blow the sand away? A. No, sir, it don’t take a great deal.
“Q,. You knew that the wind was blowing violently? A. Yes, sir; it was blowing terribly hard.
“Q. Did you run at the same speed in moving those cars that you would have run if it had been a bright, dry day, and the rails dry and clear? A. I don’t know but that I did.
“Q,. Where was McCally while you were passing from the western end of the side-track up to the box car ? A. He was walking ahead of the engine, I think.
“Q,. You knew that he coupled the engine on the box car? A. Yes, sir.
“Q,. You knew after that was done he was somewhere ahead of the engine ? A. I did not know where he was.
“ Q,. Did you see him after he coupled the engine to the box car? A. No, sir; the first time I saw him was when he was walking to the section house.
“Q. You were not looking after him? A. No, sir.
“Q. And you didn’t care where he was? A. It didn’t make any difference to me where he was.
“Q. It didn’t make any difference to you whether you killed him or not? A. It was none of my'business where he was.”
This testimony of Snyder clearly convicts him, as stated in the opinion, of reckless conduct and gross mismanagement. He stated that he was required to move his engine in accordance with the signals of the brakeman; yet he admitted that with wet rails and a slick track, in a cold, windy and snowy day, prevented by the snow, wind and' smoke from seeing any signals or receiving any orders from the brakeman, he ran his engine at the same rate of speed that be would have run it had the day been clear and bright and the rails dry.
Further, Snyder stated in his testimony that he did not think he was running over ten miles an hour at any place on the side-track. When asked if that was a reasonably safe speed at which to run his engine over the track in the condition it was in, the morning of the accident, he said, “Yes, if I had the signals when I ought to have' had them.” As the snow, wind and smoke prevented him from seeing the signals, even when properly given, his own testimony shows that he was not running his engine at a reasonably safe speed, as, according to his statement, he “did not see the signals.” Not being able to see signals, it was inexcusable for him to run so fast. No wonder that young McCally said to Dr. Harrell when he was dying, that “ the engineer was running back too fast, and it was his fault that he was hurt.” The hearsay testimony which was admitted only tended to prove very slight negligence upon the part of Snyder. The testimony of Snyder, introduced by the railway company, proved very great negligence. *
As to the opinion evidence of James Calloway, the only question or answer any way objectionable was as follows:
“Q,. Whether or not was it [the pilot of the engine] the proper place for him [McCally] to stand in performing such service, in your judgment? A. It was.”
The witness had already stated that the pilot of the engine was the usual place for brakemen in that yard in doing the service that McCally was engaged in. However incompetent this testimony may have been, (Rly. Co. v. Peavey, 29 Kas. 169,) we do not think as the case was tried, its admission sufficient ground for the reversal of the judgment. The railway company pursued a similar course of inqdiry, and attempted to prove by several experienced railroad men that the pilot was not considered a safe place. The pilot beam in front of ■the engine, upon which McCally was sitting at the time of the accident, was very carefully and fully described to the jury ■by various witnesses produced upon the trial; and therefore .the opinion of one witness that it was “a proper place for a brakeman to be,” when taken in connection with other testimony offered by the plaintiff below, that it was the usual place for brakemen doing such service as McCally was engaged in, could not have been very damaging or prejudicial. No motion was made to strike out the answer of the witness; and, as before stated, when the railway company came to its defense, it .pursued a like course in introducing opinion testimony at great length.
Upon the argument, it was asserted that during the trial the jury were sent out to examine the engine, pilot, and pilot beam, and the manner of making a coupling. Such an inspection must have been much more satisfactory to the jury than the mere opinion of any or all of the witnesses.
Again, the answer of Calloway may be construed to mean merely that the proper place for McCally to stand while making the coupling between the box car and the engine, was upon the pilot. The testimony shows that a brakeman to make such a coupling had to get temporarily upon the pilot. If this was all that Calloway meant, the testimony was clearly harmless.
The former decision refers to the failure of the railway company to provide a switch engine, and the use by the deceased at the time of his injury, of an ordinary freight engine for switching. This was referred to not to establish negligence on the part of the railway company, but as tending to sustain the finding of the jury that the position in which McCally placed himself was not necessarily a dangerous one. If the company omitted to furnish a suitable switch eugine, and McCally, from the structure of the engine, assumed the usual position it was customary for the brakemen in the yard using such engines to do, and the company suffered such use to be made of the pilot, or pilot beam, these matters were properly considered in deciding whether McCally voluntarily chose such a dangerous position as would in law defeat any recovery for his death.
The other matters discussed in the briefs have been sufficiently disposed of in the opinion already filed.
The motion for a rehearing will be overruled. | [
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Opinion by
Holt, C.:
This action was brought upon the following bond, which, omitting caption, is as follows:
“Whereas, it appears that the offense of destroying and obstructing a locomotive of a railroad company has been committed, and there is probable cause to believe that the defendant, F. C. McGuire, is guilty of its commission: now we, the undersigned, residents of said county, bind ourselves to the state of Kansas in the sum of five hundred dollars, that said defendant shall appear before the district court of Labette county, on the first day of the next term thereof, to answer the complaint in said cause alleged against him, and not depart the same without leave.”
The defendant McGuire appeared at the next term of the said district court, entered a plea of not guilty, a jury was impaneled, a trial had, and the jury returned a verdict of guilty; afterward, and before sentence or judgment was pronounced, he left, and has not been seen or heard of since. The court'rendered judgment against defendants, as sureties upon the bond, for the full amount of the same; they bring the action here for review. They claim that under our statutes the examining magistrate is authorized to take bail only “ in such sums as, in the opinion of the magistrate, will secure the appearance of the person charged with the offense, at the court where such person is to be tried.” (Comp. Laws of 1885, ch. 82, § 53.) The magistrate in the preliminary examination made an order and entered it upon his docket requiring the defendant in the action of The State of Kansas against F. C. McGuire to give a bond to appear and answer the charge made against it, naming it, at the next term of the district court. The bond itself provides that he shall appear at said court and answer to the charge, and not depart therefrom without leave. The contention of the defendants is, that the statute only authorized the examining magistrate to take bail for the appearance of the defendant; and because the bond provides not only for the appearance, but that he is to answer the charge made against him and not to depart from the court without leave, it is more onerous than the provisions of the statute, and for that reason is a nullity andcannot support the judgment based upon it. They also claim that the conditions of such a bond as would have been authorized by statute were fully complied with by the defendant McGuire; that he did appear at the term of the court, and therefore his sureties on the bond were released from all liability.
"We think when a party is required to appear at the district court after a preliminary examination has been had or waived, that the use of the word “appear” implies that he is to appear for the purposes of a trial of the charges made against him. (Comp. Laws of 1885, ch. 82, §152.) It is not enough for the party to be there for the first day and theu slip off without leave, in order to comply with the conditions of the bond; the very fact of the condition of his appearance is that he shall appear for a certain purpose; he appears for the trial of the charges made against him, and if he departs before the trial and judgment are had without leave of the court, his bond is forfeited. He appeared for trial, he departed before judgment. The statute .provides that if, without sufficient excuse, he neglect to appear for trial or judgment, the court must direct the fact to be entered upon its miuutes and declare the forfeiture of the bond. This was done; and under the showing and the testimony the court properly found a judgment upon the bond in favor of the state and against the defendants.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought originally in the district court of Atchison county for an injunction to perpetually enjoin the county clerk from issuing tax deeds upon certain tax-sale certificates embracing certain real estate situated in the city of Atchison, and belonging to the plaintiffs, which tax-sale certificates were issued upon tax sales made in the year 1883 for certain sidewalk taxes levied by the city of Atchison in the year 1882. The city of Atchison was at that time, and still is, a city of the first class. All parties interested in the tax-sale certificates or in the taxes represented by them were made parties to the action. The case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment thereon 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.
The sidewalk in question in the present case was built in the spring of 1882, in accordance with certain proceedings evidently intended by the city authorities to be had under chapter 37 of the Laws of 1881, (Comp. Laws of 1885, ch. 18, pp. 134-156,) and not under chapter 38 of the Laws of 1881. (Comp. Laws of 1885, pp. 157-159.) Among the findings of fact made by the trial court are the following:
“2. A sidewalk had at one time been built on the west side of Second street, between Kearney and Riley streets, but the same had rotted away, so that it became necessary to build a new sidewalk in the spring of 1882. There was no money in the treasury applicable to such purpose, and no ordinance was passed requiring or authorizing the sidewalk prior to its being built, and no opportunity was offered to the lot-owners to build the sidewalk after the city authorities decided to build the same, and before the letting of the contract therefor. A petition signed by the requisite number of resident citizens of the vicinity had been duly presented to the mayor and council before they took any steps toward authorizing the construction of said sidewalk. The city of Atchison never enacted any ordinance regulating the procedure for the building of sidewalks prior to the year 1883.”
Erom these findings we think it appears that the proceedings had by the city of Atchison and its officers attempting to authorize the construction of the sidewalk in question, and to impose the aforesaid taxes upon the abutting lot-owners to pay for such sidewalk, are void. Under chapter 37 of the Laws of 1881, we think it is necessary when the construction of sidewalks is authorized or ordered, that not only a resolution but also an ordinance to that effect should be regularly passed by the mayor and council. The resolution provided for under §14 of the first-mentioned act is preliminary, and the ordinance provided for under § 11 of the same act is final. This has in effect been already decided by this court. (See the cases of Newman v. City of Emporia, 32 Kas. 456; and Sloan v. Bebee, 24 id. 343.) In the first-mentioned case it was held that in cities of the second class, and under chapter 100 of the Laws of 1872, (Comp. Laws of 1885, ch. 19,) sidewalks could be constructed only under and in pursuance of city ordinances, and could not be constructed under or in pursuance of resolutions alone; and §11, subdiv. 43, and §14 of said chapter 37 of the Laws of 1881, correspond almost precisely with §§32 .and 75 of chapter 100, of the Laws of 1872. Of course it is not absolutely clear that the construction given to chapter 100 of the Laws of 1872 by the decision of this court made in the •case of Newman v. City of Emporia, is correct, but the decision was made upon an elaborate argument by counsel and after a careful consideration by the court, and we are still inclined to think that the decision is correct; and if it is correct, then it must follow that in cities of the first class as well as in cities of the second class, sidewalks can be constructed under chapter 37 of the Laws of 1881 only under and in pursuance of city ordinances. We think it is true that in cities of the first class, sidewalks may be constructed under and in pursuance of chapter 38 of the Laws of 1881 under and in pursuance •of resolutions alone. But there is no claim or pretense that the sidewalk in question in this case was built or the taxes levied under or in pursuance of that chapter. It is therefore our opinion in the present case that the injunction prayed for should be allowed.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered upon the facts found in favor of the plaintiffs and against the defendants for the injunction prayed for.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Action to recover on an insurance policy of $1,000, on a steam elevator at Bennington, Ottawa county, commenced in the district court of that county on the 15th day of March, 1887. The company resisted payment upon the ground of a false representation and warranty of title of the land, which was in part a portion of the right-of-way of a railroad company. The reply alleged that the agents of the company, Simmons & Cole, had known the exact condition of the title, and filled up the blanks, and wrote the application, except the signature. The case was tried by the court, and special findings of fact were made, and judgment rendered for the plaintiffs below. The court found in addition to the facts admitted, the following:
“During the whole of the month of September, 1886, W. B. Simmons and W. L. Cole, partners under the firm-name of Simmons & Cole, were the duly-authorized agents of the defendant at Bennington, Kansas, for the purpose of taking applications and issuing policies of insurance for the defendant, and as such agents they had full authority to take the written application mentioned in the defendant’s answer herein, and to issue the policy of insurance set forth in the plaintiff’s petition herein. The said application was taken by said agents for the said defendant on the 20th day of September, 1886, and was written and prepared entirely by them, except the signature of the plaintiffs thereto, and at the time said application was being so written and prepared and in answer to the questions therein contained, said plaintiff gave to said agents a full and correct account and statement of the title to the land upon which said elevator stood, and fully and correctly informed said agents that a part of said elevator stood on land leased from the Solomon Railroad Company, being a part of its right-of-way; and that at the time said application was so made, and before the same was signed by the plaintiffs, said agents had full knowledge of all the facts concerning the titles to the land upon which said elevator was located. In consideration for the issuance of said policy, and at its date, the said plaintiffs paid to the said defendant the sum of $35, and then executed and delivered to said defendant their promissory note for $175, payable by installments to said defendant at any time or times as the board of directors of said defendant might order. The said plaintiffs were the owners of the property described in said policy of insurance at the time of its insurance, and at the time said property was destroyed by fire. On the 5th day of November, 1886, the property described in said policy of insurance was totally destroyed by fire. On the 22d day of December, 1886, the said plaintiffs furnished the defendants with proof of said loss, and have otherwise performed all the conditions of said policy on their part. At the time said application was taken and said policy was issued, the property therein insured by the defendant was also insured in another company for the sum of $2,000, which fact was fully set forth in said application. The property described in said policy and insured thereby was at the time of its destruction by fire as aforesaid of the value of $2,783.32, and the amount and value of the loss under said policy was $931.06, which defendant should pay to plaintiffs.”
The assignments of error are, that the findings are not supported by sufficient evidence; that they do not authorize the conclusions of law;. that improper testimony was admitted • and that the motion for a new trial was improperly overruled. All the findings of fact are supported by the evidence; that of the agency of Simmons & Cole is clearly established; their knowledge that a part of the elevator was situated on the right-of-way of the railroad company is sufficiently established ; and the weight of the evidence considered in connection with [all the circumstances is, that the insured answered the controlling question in the affirmative, by the advice of the agents of the company. They wrote the application, filled in all the blanks, and all the insured did was to write the signature.
The pivotal question under this state of facts is, whether or not the insurance company is not estopped from denying the truth of the statement contained in the application concerning the title to the property; The leading case in this state upon this question is that of American Cent. Ins. Co. v. McLanathan, 11 Kas. 533, and in this particular feature is very similar to the one we are considering. There the agent knew that the title to the lots was in the wife of the applicant, but said it did not make any difference. Here the agents knew that a part of the elevator was on the ground of the railroad company, but advised the applicant to answer that he was the owner, and themselves wrote the answer. The case cited holds, “That an agent of an insurance company authorized to issue policies and consummate the contract, binds his principal by any act, agreement, representation or waiver within the ordinary scope and limit of insurance business, which is not known by the assured to be outside the authority granted to the agent.” This declaration of the law has been approved by this court in the following cases: Sullivan v. Phenix Ins. Co., 34 Kas. 170; Continental Ins. Co. v. Pearce, 39 id. 396.
It is said by the court in Sullivan v. Phenix Ins. Co., that the current of judicial authority in this country is in favor of this declaration. Applying this principle to the facts found, there can be no other legal conclusion than that the company is liable on the policy for the loss.
The learned counsel for the plaintiff in error makes a vigorous and ingenious argument, trying to show that this principle is not applicable in this case because the plaintiff in error is a mutual insurance company organized under chapter 132, laws of 1885. He claims that as under this law each policyholder becomes a member of the company, he is thereby charged with notice of its by-laws and policies, which must be approved in form, by the attorney general of the state, and that each member also must be held to have had knowledge of the extent of the power of every agent. This may all be true, and yet not vary the rule announced. The counsel would not certainly claim that the mere act of application for a policy would make the applicant a member of the company. If he is made a member, it is not until a policy is issued and delivered to him. He is claiming in this case, that the act of the applicant in misrepresenting the condition of the property avoids the policy. He claims he is a member, because he has a policy, and yet that the policy is void. He cannot be permitted to blow hot and cold in this manner. So far as the question we are considering is concerned, it is not affected in any way by his action as a member of the mutual company, if he has become one. The main strength of his argument, however, is derived from those provisions of the law of 1885 which seem to contemplate that the policies must issue from the home office. This is not an express requirement, but is inferentially true, because the law provides that the directors shall determine the rate and the amount of the premium note, and the part of the premium to be paid in cash. It further declares that no policy shall exceed $3,000 in amount, and in no case shall it exceed ten per cent, of the value of all premium notes in force. It also provides that the note, application, by-laws and regulations shall be copied on the policy, and shall become a part of the contract. This was not done with reference to this policy. From all these requirements, it is suggested that the policy must be issued by the home office, for the reason that the agents could not possess the necessary knowledge with reference to all these restrictions. We are left without any knowledge as to whether or not this policy has been issued in violation of any of these requirements; and in the absence of any evidence on that subject, we are bound to presume that everything connected with the issuance of this policy has been done in accordance with the laws creating the company, and its own regulations. We must presume that only a limited number of policies signed and ready for delivery was in the hands of the agents, with instructions conforming to the legal requirements; in other words, on the state of facts presented, we cannot permit the insurance company to say that this policy has not been issued in accordance with the law regulating their conduct in these matters. No such a defense would be listened to for a moment, unless it appeared that the assured had knowledge of and participated in the violation of the law. We think the reason for the rule is stronger when applied to a resident incorporated insurance company, than to one operating from some other state. This company has its principal office in Salina, this risk was taken by agents in a neighboring county, and the policy was issued and delivered within a few hours after the application was first made; and yet, under these circumstances, when the company has intrusted its agents in this locality with the power of issuing policies, they being located within a few miles of the home office, we are met by the contention that the policy must issue from the home office. If this claim is made in good faith it ought to be accompanied by some explanation why these policies, all signed and ready for delivery, were in the hands of the agents at Bennington.
There is no reversible error. We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
This case was pending at the January term for 1887, upon a motion to quash the alternative writ, and an opinion was filed. (36 Kas. 519.) It is now to be disposed of upon its merits.
The city of Hiawatha is a city of the second class, and on the 29th day of November, 1886, the mayor and the city council passed an ordinance calling a special election for December 28, 1886, to submit to the electors of the city the question of issuing $50,000 of city bonds for the purpose of raising money to construct water works; the bonds were to run thirty years, at not exceeding six per cent, interest. The election was held, and a majority of the electors voted in favor of issuing the bonds. On the 7th of February, 1887, the mayor and the city council passed an ordinance providing for the construction of the water works, and for the issue and sale of the bonds of the city to raise money to pay for the same. Section 14 of the ordinance reads as follows:
“The clerk shall give notice that sealed proposals shall be received at his office until 8 o’clock p. M., February 21, 1887, at which time the bids shall be opened and considered.by the council in regular session, for the amount of bonds issued under this ordinance, and that each bidder shall accompany his bid with the written guarantee of some reliable banking firm that he makes his bid in good faith, and not in collusion with any other bidder.”
Section 15 reads:
“The bonds shall be sold to the highest and best bidder who can give the guarantee above referred to to the satisfaction of the mayor and council: Provided, however, That the right to reject any and all bids is hereby reserved.”
On the 21st of February, 1887, the city council met to open the bids for the bonds, but no sealed bids were found to be filed. Thereupon the council by resolution decided to offer the bonds at public auction. A. E. Spitzer bid $52,700 for $50,000 of the city bonds, running thirty years and bearing six per cent, interest. M. S. Smalley stated he would give $49,000 for the $50,000 of city bonds, the same to bear interest at five and one-half per cent. The council then rejected these bids, and offered the bonds on a basis of five and one-half per cent, interest to the highest bidder. M. S. Smalley bid $49,169.50, he being the highest bidder. Upon motion, his bid was accepted, and the bonds were declared sold to him for the amount thereof. The council then adjourned until February 28. On that day it met pursuant to adjournment, and, upon motion, the proceedings of the meeting of February 21, in selling the bonds to Smalley, were revoked. On the first day of March, 1887, the council passed a new ordinance, amending §14 of the old ordinance, and providing a different mode for selling the bonds; and on the 15th day of March, 1887, $50,000 of bonds of the city, bearing six per cent, interest, were sold to Spitzer & Company for $52,906.85, and afterward issued to them.
When this case was here upon the motion to quash the alternative writ, we said:
“The authority given to issue bonds bearing interest at a rate not to exceed six per cent, per annum, empowers the defendants to issue bonds bearing-interest at the rate of five and one-half per cent. Ordinarily, the authorized officials of a municipal corporation may bind it by resolution, or by vote clothe its officers with power to act for it. Our attention has not been called to any section of the ‘act to incorporate cities of the second class’ prohibiting the sale of bonds, or other personal property of a city, by resolution. In our examination of the statute, we have found no such limitation or restriction; therefore the contract entered into between the parties to this action, upon the resolution of the city council, as set forth in the writ, is valid.” (Smalley v. Yates, 36 Kas. 519.)
Our attention is now called to §42, ch. 19, Comp. Laws of 1885, being the act to incorporate cities of the second class. This reads:
“The mayor and council shall have no power to appropriate or issue any scrip, or draw any order on the treasurer for any money, unless tbe same has been appropriated by ordinance or ordered in pursuance of some object provided by law: Provided, That no ordinance providing for the borrowing of moneys, levying taxes, or appropriating money, shall be of any validity unless a majority of all the couucilmen elected shall vote for such ordinance; and such vote shall be taken by yéas and nays, and the same shall be entered upon the record of proceedings of the council.”
It is claimed that the sole effect of the special election of December 28, 1886, was to remove the limitation imposed by the statute upon the power of the city to issue bonds; and that after the election resulted in favor of the issuance of the bonds, the mode of exercising their issue and sale was to be controlled by the provisions of said chapter nineteen; that, as the issuance of the bonds by the city was the borrowing of money, said § 42 prescribes their issuance by ordinance only.
We cannot agree with this claim, because, in our view, the bonds were authorized to be issued under the provisions of chapter 1156, Comp. Laws of 1885, pp. 1003,1004. Section 3 of said chapter 1156 reads:
“That to defray the cost of such water works, the council is authorized and empowered to issue the bonds of the city, the interest on the amount issued not to exceed one per centum of the taxable valuation thereof, as shown by the last preceding assessments, such bonds to bear interest not exceeding eight per cent, per annum, and payable at such times and places as the council may direct. Such bonds shall be signed by the mayor of the city, and countersigned by the clerk thereof, and have coupons or interest warrants attached.”
And § 6 of said chapter 1156 provides:
“That before any of the bonds provided for by this act shall be issued, the city council shall submit the question of such issue to the electors of the city, at any general or special election to be called for that purpose, by the council, of which election at least twenty days’ notice shall be given, by publica tion in at least one newspaper published in said city. The election shall be governed in all respects as other elections; and if a majority of the votes cast at any such election be in favor of the issue of bonds, as provided in the notice of such election, then the council may issue them, as it may deem advisable, to secure the erection and operation of said water works.”
Said § 6 commits the decision of the issuance of the bonds to the council “as it may deem advisable to secure the erection and operation of said water works;” and as the statute is silent as to the mode, the decision may be evidenced by a resolution. A resolution has ordinarily the same effect as an ordinance, and both are legislative acts; but a resolution is an order of a special and temporary character. An ordinance prescribes a permanent rule of conduct or government. A sale of city bonds may be regarded as an executive and administrative act.
On February 21, 1887, after the ordinance providing for the reception of sealed bids had been disposed of by the failure of any bids being offered, then the mayor and city council had the right to sell the bonds by resolution, if they deemed such a mode advisable. They did deem this mode advisable, and made the sale to the plaintiff, who now claims the same. The bonds were not to be issued under any express provision of the act incorporating cities of the second class, but were to be issued under the provisions of chapter 1156. In the notice for the special election, called December 28, 1886, to vote upon the issuance of bonds for the erection of water works, nothing was stated therein about the bonds being sold or disposed of by ordinance. The notice, however, did recite “that the bonds were to be sold for the purpose of raising funds for the erection of permanent water works for the use of the city of Hiawatha.” Of course the mayor and city council could not limit the provisions of said chapter 1156 by any ordinance or resolution prior to the vote in favor of the bonds; and after the ordinance providing for receiving sealed bids had wholly failed of its purpose, there was nothing for the council to do except to dispose of the bonds by resolution, or adopt a new ordinance authorizing their sale. The mayor and city council deemed it advisable to sell and dispose of the bonds by resolution. Subsequently they adopted a new ordinance, providing for a different mode of selling the bonds; but this ordinance was too late. The mayor and city council had already exhausted their power. The bonds voted had been sold, and the plaintiff was entitled to have them issued to him. As Spitzer & Co., or their authorized agents were present when the bonds were sold to the plaintiff, on February 21st, and had full notice of the sale, they were not bona ficle purchasers. (Meixell v. Kirkpatrick, 33 Kas. 282.)
The subsequent issuance of the bonds by the mayor and city council to Spitzer & Company was in disregard of the contract with the plaintiff, and in violation of his rights in the premises; therefore the action of the mayor and city council in adopting, on the 1st da)'- of March, 1887, a new ordinance, providing for the sale of the bonds and the issuance of the same to Spitzer & Company, who had full notice of the rights of the plaintiff, cannot affect or prejudice his purchase of the bonds on February 21st.
No valid excuse is presented why the mayor and city council should not carry out in good faith the contract they made with the plaintiff, and receive his money and issue to him the bonds according to the terms of their contract; therefore a peremptory writ will issue as prayed for.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This suit was instituted by Scammon against the railroad company, to recover for the death of one bay mare, alleged to be of the value of one hundred and twenty-five dollars, killed by the railroad company in the operation of its trains under such circumstances as to render the company liable, and fifty dollars, a reasonable attorney’s fee, if the following statement is not a good defense to the action. The railroad company claims, that at the same time, and in the same manner, and at the same place, a colt of this mare was killed. An action was brought for its value, and the reasonable attorney’s fees; that a judgment was rendered in favor of Scammon for the value of the colt, the attorney’s fees and costs, and paid by the company, and that this judgment is a bar to this action. The case was submitted to the court for trial on -the following agreed statement of facts:
“1. Defendant admits the facts stated in plaintiff’s petition.
“2. At the January term of this court, the plaintiff recovered a judgment against the defendant for the value of a colt killed on defendant’s railway, attorney’s fees and costs as alleged in defendant’s answer, which judgment has been paid in full by the defendant, and has never been reversed or modified.
“3. On the 17th day of September, 1886, said colt and the mare in the petition herein mentioned entered upon the defendant’s railway at the same time and place, and, both running-before the train, the colt was first struck and killed, and then the mare was struck and injured at a point about thirty rods from where the colt was struck.
“4. At the time the suit was brought for the killing of the colt, the mare was still alive, and it was not known to the plaintiff whether the said mare would recover from said injury or not.
“5. Subject to the objection that the fact is not admissible under the pleadings in this ease, defendant admits that defendant’s agent agreed with the said plaintiff that if the mare recovered he was to put in no claim for damages, but if the mare did not recover from said injury, then the defendant was to pay the value of the said mare; which agreement was made by an agent duly authorized by the defendant to make such an agreement. If the court should hold that evidence of said agreement is not admissible under the pleadings in this case, it is not to be considered.
“6. The value of said mare was one hundred and twenty-five dollars, and fifty dollars is a reasonable attorney’s fee .for the prosecution of this action.
“ 7. The admissions herein contained are made for the purposes of this trial only.
“8. The plaintiff to be at liberty to file amended pleadings, in which case this agreed statement .of facts shall be void, and this action continued for the term.”
The court below overruled the defense pleaded in bar, and rendered juddment for Scammon for the value of the mare, the attorney’s fees, and- costs of the action.- The railroad com pany saved all necessary exceptions, and brings the case here for review.
The only question discussed by counsel, is as to whether the first judgment was a bar to this action. The theory of the plaintiff in error is, that there was but one cause of action, and hence that there could be but one recovery; that all acts of the same nature, performed at the same time, are regarded as one act in law, and cannot be made the subject of several and successive actions; that the payment of the first judgment satisfied the tort, and that there could be no further recovery. It is a familiar rule of law, that there can be but one satisfaction for a. tort, trespass, or trover. When two horses are killed by the cars of a railroad company at the same time, or when different chattels are taken by one trespass, or converted by one person at the same time, but one recovery can be had. This rule applies in all such cases where the tort, trespass, or conversion, consists of one entire and undivided act.
It is insisted that the rule applies to the state of. facts agreed upon by the parties to this action. These facts are, that the mare and colt entered upon the railroad track at the same time and place, and both running before the train. The colt was first struck and killed, and then the mare was struck and injured at a point thirty rods from where the colt was struck. There was a difference of time and locality, and these make and constitute separate and distinct causes of action. The fact that the mare and colt entered upon the track at the same place, and at the same time, is no more controlling than if they were of the same color, or size; and these similarities are not the test. The determination of this question rests in the action of the railroad employés. Was the killing of the colt, and the injury of the mare, one and the same act? Or was the act of the plaintiff in error a continuing act? These and like considerations must control. The train was in motion, the mare and colt running along the track in front of it, the colt is struck and killed, the train runs on, and at a distance of thirty rods, or about five hundred feet, strikes the mare and causes such injuries that the mare subsequently dies. It must be conceded that these acts are separate and independent. As causes of action, they are necessarily composed of different elements. The mere statement of these facts, without explanation, naturally produces the conviction that, while the killing of the colt might have been prevented by the prompt exercise of ordinary care and caution, the injuries to the mare must 'have been the result of gross negligence on the part of those operating the train. As causes of action, they would probably require different pleadings, and would certainly have to be proved by distinct evidence.
We think that by the agreed statement of facts upon which the case was submitted for trial to the court below, the judgment was right, and we recommend its affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This was an appeal from an award made by the board of county commissioners of Cowley county for damages alleged to have been sustained by Volney Baird by reason of the appropriation of a right-of-way over his land by the Kansas City & Southwestern Railroad Company. A verdict was rendered for Baird for eleven hundred and fifty dollars, and judgment entered thereon. The Railroad Company excepted, and brings the case here.
The principal question presented and argued is as to the competency of the evidence of the value of the land by witnesses, who were farmers residing within the vicinity of the land, but had no knowledge of the sales of land in their vicinity. This question was fully examined, and decided adversely to the railroad company, in K. C. & S. W. Rld. Co. v. Ehret, ante, p. 22; 20 Pac. Rep. 538.
It is also urged that the trial court erred in permitting the jury to take into consideration the probable expenses of constructing and maintaining reasonable farm-crossings. It is said that there was no evidence that additional crossings were needed. It appears from the record that, with the consent of the parties and the permission of the court, the jury were conducted .in a body to view the land; they therefore had full opportunity to examine and ascertain what crossings the railroad had built, and what were needed. (Lewis on Em. Dorn., §496.)
It is further urged that Baird was allowed sixteen dollars for fences taken on the right-of-way, and also $203.40 for the right-of-way actually taken; that the damages allowed for the right-of-way included the fences thereon. The evidence, however, shows that some of the witnesses testified that all of the land was worth upon an average $45 per acre, and also, that the hedge or fence taken was worth from $16 to $20. We therefore cannot say that there was any error in the item of $16 for the fence or hedge taken.
The judgment of the district court will be affirmed. | [
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Opinion by
Cgogston, C.:
The note sued on was given in part payment for a threshing-machine. The machine was sold by the plaintiffs to the defendants for the sum of six hundred and fifty dollars, and notes were taken in payment. This sale was made in July, 1882, and the first note was made payable in the October following; others in a year from that time, and some still later. The note in controversy was payable in October, 1883. The machine was sold by an agent who resided in Ellis county. The plaintiffs were residents of Davenport, Iowa. The contract under which the machine was purchased was in writing, and contained the following warranty of the machine:
“The machine ordered herein is purchased and sold subject to the following warranty and agreement: That it is well made, of good materials, and with proper management is capable of doing first-class work; that the purchasers shall have three days to give it a fair trial, and if it should not work well, written notice, stating wherein it fails, is to be given to the agent from whom it is received, and to John S. Davis’s Sons, Davenport, Iowa, and a reasonable time allowed to get to it and remedy the defect, if any, (the purchaser rendering necessary and friendly assistance,) when, if it cannot be made to do good work, it shall be returned to the place where received, and a new machine given in its place, or the notes and money will be refunded. Continued possession of the machine shall be evidence of satisfaction — it being understood and agreed that if the purchaser does not make full settlement with cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty. (No agent has authority to change the above warranty.)”
The defendants claimed damages for a breach of this warranty.
The errors alleged are quite numerous, and many of them groundless, for the reason that no proper exceptions were saved. This also applies to the instructions of the court, which are complained of, and which in our judgment contain error; but the record fails to show any exceptions taken thereto, except what is contained in a motion for a new trial, and that is not a sufficient objection upon which we can review the instructions of the court. After a careful examination of the entire record, we are forced to the conclusion that the jury were prejudiced against the plaintiffs, and through passion or prejudice returned the verdict they did; but the motion for a new trial is not broad enough to raise that question. Where a record shows error in the instructions, and the verdict is given under the influence of passion or prejudice, it will be examined very carefully for errors, although no proper exceptions are saved to the instructions, aud passion and prejudice are not assigned as grounds for a new trial.
Under the written warrauty and terms of sale it was the duty of the defendants to notify the local agent in writing, and also the plaintiffs at Davenport, Iowa,;if the machine failed to do good work. This they attempted to comply with by giving a verbal notice to the local agent and requesting him to write to the plaintiffs, which he testifies he did do. Afterward an agent came and examined the machine, but there was a conflict of evidence as to whether he came in compliance with the request of the letter written by the local agent, or by the direction of the plaintiffs alone, and therefore we are forced to the conclusion that plaintiffs may have waived such written notice. By the terms of the contract, however, the defendants, in case the machine failed to do good work and was not remedied by the plaintiffs when requested so to do, were to return the thresher to the place where they received it. On this question there was no dispute, and as to the attempt to comply with this requirement there is no conflict. On the second day after they received the machine they did notify the local agent verbally that the machine was not giving satisfaction, and requested him to inform the company of that fact. They then said, “If the machine does not do good work we will have to return it.” This was the only offer made either to the local agent or to the company to return the machine, and there is no waiver of this duty shown in this record. It is true the local agent said, “ I have no authority to receive the machine back.” At that time they had no right to return the machine under the contract, and he had no right to receive it at that time. They were required to first give notice to the local agent and to the company, and then allow a reasonable time in which to have it put in order, and then if it failed to do good work, it was their duty to return it, and either receive a new machine or their notes in return. This they never attempted to do. The record shows that the agent who went out to examine the machine some six weeks or two months after the machine had been sold, and perhaps longer, while attempting to regulate the machine, in conversation with the defendants, they said to him, “If the machine don’t do better work we won’t pay for it,” and he remarked that if it did not do good work “you won’t have to pay for it,” or “we will not demand payment,” and this they say was an offer to return the machine.
Again, in 1883, when the note sued on was sent to an attorney for collection, and he went out to make the collection, the defendants told him he could take the machine. Plaintiffs had a chattel mortgage on the machine and the attorney had the note and mortgage in his possession for collection, and he told them that if he took the machine he would take the same by reason of the lien created by the mortgage, and not' otherwise. This is the only pretense on the part of the defendants of the return of the machine, and we think they entirely failed to establish that as a fact. They were bound to return the machine, or offer to return the machine, to somebody that had a right to receive it, and if by the acts of the plaintiffs they were prevented from returning it, then of course they would be relieved of that duty; but no such excuse has been shown by them, and their evidence entirely fails to show that defense. In addition to this, the record discloses this further fact, that they continued to use the machine during the threshing season of 1882. In October, when the first note became due, they paid it without protest. In January, 1883, they wrote a letter to the plaintiffs for publication, in which they stated that the machine was a good one, one of the best they had known for years. In the summer of 1883 they sold the machine to other parties, and informed the plaintiffs of that fact, directing plaintiffs to send the note due in October, 1883, for collection, and stating that the parties to whom they had sold the machine would pay the interest and renew the note, and that if such purchasers did not pay the interest they themselves would pay it. The machine was used by the parties to whom sold during the greater part of the threshing season of 1883. Taking these facts in connection with the other evidence in the case, we think that before the defendants could recover they would have to show a very strong defense to the notes, and a good right to recover damages, in all of which we think they have failed.
It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This case was commenced before a justice of the peace, then appealed to the district court, tried there before a jury at the November term, 1886, a verdict returned, and a judgment'rendered in favor of the defendant below, the defendant in error here. The plaintiff in error brought the action to recover damages on a breach of warranty on the sale of millet seed. He claimed that the defendant in error sold him one hundred and sixty-five bushels of millet seed at forty cents per bushel, and warranted the seed to be sound, that it would grow when planted, and that the same had been fully tested and found to be good; that he was a retail dealer in seeds, and bought this millet seed to supply his customers; that he sold it to many persons; that they planted the seed under favorable conditions, and that it failed to produce; that the usual and customary profit was ten cents per bushel; that his reputation and standing as a business man and dealer in seeds had been damaged, and his business impaired, by the sale of this unproductive seed.
At the trial there was a very decided conflict of evidence, as to whether there was a warranty, and as to whether the seed was good or bad. There were very positive declarations by several witnesses on both sides, and consequently we cannot disturb the verdict of the jury and the judgment of the court below, on the ground that the case was not decided in accordance with the weight of evidence. We are urged to reverse the judgment of the court below because of some objectionable phrases in the instructions, and because it is claimed that they do not embody the law governing such cases. Another cause of reversal is alleged in the exclusion of certain evidence.
We are aware that the real quarrel here is because of the verdict of the jury, and hence every criticism that can be made is to be found in the record. The remark of the court to the jury that the plaintiff in error “seeks to recover damages on one of two propositions” of which the counsel complain, is not a prejudicial one, but it seems to us to be beneficial to the plaintiff in error. Under the pleadings there is but one claim of damages, and that is for a breach of the warranty; but the instruction would prevent the jury to find another one, if they could. The court stated the law correctly as to the burden of proof, the preponderance of the evidence, and the inevitable result' that must follow if the evidence is equally balanced. We do not see that undue weight was given these rules, or that there was such prejudicial vigor of repetition as to obscure other issues and make them too prominent. It was a case in which there was an actual necessity that a jury should distinctly understand and implicitly observe these rules. There was such a conflict of evidence, both on the question of warranty, as well as quality of the millet seed, that a verdict either way was a reflection on the witnesses of the losing side, and in cases of this character it was the duty of the court to make the jury understand that if the plaintiff was entitled to recover, he must have the weight or preponderance of evidence in his favor. On the evidence introduced, the j ury might have found that- the millet seed was good, and as there were no special interrogatories asked, or special findings, returned, we cannot determine whether the general verdict in favor of the defendant in error was based upon their belief that the millet seed was good, or that there was no special warranty of the seed. In either event there is evidence to sustain the verdict, and in view of this fact, all the errors alleged are immaterial.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was commenced in the district court of Greenwood county on the 17th day of March, 1887, by E. Winter & Bro., a partnership composed of E. Winter and S. Winter, to recover on a certain promissory note, executed on the 12th day of November, 1885, for $300, payable to the order of Z. S. Welborn, twelve months after the date thereof, with interest at the rate of 7 per cent, per annum from date until paid, and attorney’s fees, signed by L. E. Beamer and L. O. Beamer. This note was secured by a mortgage on real estate in the city of Eureka. It was alleged that Winter & Bro. are the owners and holders of said note for a valuable consideration, and that the sa'rne is due and unpaid; that O. Colburn has and holds a first and prior mortgage on said real estate; that J. H. Lampe purchased said real estate since the execution of the mortgage made to secure the note sued upon, but' took the same subject to the mortgage of the plaintiffs, and assumed and became responsible for its payment; that one Louis G. Porter claims to have some interest in.said real estate, unknown to the pleader, and prays judgment against L. E. and L. O. Beamer and J. H. Lampe, for the amount of the note, interest, and costs, and for a foreclosure of the mortgage.
The defendants, L. E. and L. O. Beamer, answer, claiming a payment on the note of $21 to the plaintiffs on the -day of November, 1886, by Porter. A. W. Hart and James Enterkine became parties defendant on their own application, and were substituted for Lampe and Porter, and filed their answer, claiming to be the owners, both legally and equitably, of said real estate, and that no other persons have any interest therein, except the defendant Colburn, and the mortgagee, Z. S. Welborn; that the plaintiffs are not the owners and holders of said note, and have no interest in the same; that the said note and mortgage are the property of the payee named in said note. The plaintiffs replied, denying this answer. At the trial, the plaintiffs admitted that they had received one year’s interest on said note, amounting to $21.
The important question in this case arises on this state of facts: Mrs. Z. S. Welborn, the payee of the note sued upon, being indebted, and having removed from the county, left the note with Ira P. Nye, with instructions to sell the note and mortgage and remit her the proceeds. Actions having been commenced before a justice of the peace by creditors of'Mrs. Welborn, a process of garnishment was served on Nye, who answered, admitting possession of the note and mortgage; and by order of the court they were delivered up and sold at public sale as the property of Mrs. Welborn. The plaintiffs below purchased the note and mortgage at a constable’s sale. The justice who issued the writ of garnishment lived in the township, and had his place of business in the city. He stated that most of the time he kept one or more of his dockets in the city; that at the time the action of Evans v. Welborn was commenced, the papers were issued and the judgment rendered at his house. Mr. Nye swore to his answer in garnishment in the city, but he delivered the note and mortgage to the justice on the street. Mr. Evans was sworn to his bill of particulars at his office in the city. The evidence amounts to this: the papers were issued and the judgment rendered in the township; the bill of particulars was sworn to, and also the.answer of the garnishee, in the city. The order of sale of the note and mortgage was directed to and delivered to a constable of the township, but the sale took place in the city. The return of sale was made and the proceeds of sale paid by the purchaser in the township. It is now claimed by the plaintiffs in error, that by reason of these certain acts having been performed by the justice of the peace outside of the limits of the township in which he was elected, the judgment and proceedings in the case in which Nye was garnished, and the note delivered and sold, were without authority of law, and a nullity. It is insisted that this case is to be controlled by the decisions of this court in the cases of Phillips v. Thralls, 26 Kas. 780; and Wilcox v. Johnson, 34 id. 655; Rld. Co. v. Rice, 36 id. 593.
The notice of sale posted by the constable of Eureka township fixed the place of sale within the limits of the city of Eureka, and the sale actually took place at or near the Eureka bank, within the city. This renders the sale void, as the note and mortgage passed into the custody of the law in the township of Eureka, and the sale ought to have taken place in the township. (Comp. Laws of 1885, ch. 81, §§47, 146.)
This court has very recently said in the case of Paulsen v. Hall, 39 Kas. 365: “The law requires that all property sold under process issued by a justice of the peace shall be advertised and sold in the township where it is seized;” and if sold in a township other than that in which it was seized, the sale is void.
This note and mortgage were delivered to Esq. Griffith, as a justice of the peace of the township of Eureka; therefore the seizure was in the township, and not in the city. If the seizure of the officer must be a manual one, then the constable took possession of the note and mortgage in the township. As they were delivered to him and ordered sold by the justice of the peace in the township, we think, the sale being void, that the defendants in error had no title to the note and mortgage, and hence the judgment must be reversed. It is there fore recommended that the judgment be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an appeal to the district court of Dickinson county from an award of damages for the appropriation of a right-of-way for the Chicago, Kansas & Western Railroad through certain lots and land of Isaac Grovier. The commissioners appointed by the judge of the district court assessed damages to real estate described in the report as belonging to Grovier in the sum of $2,010, and for taking a right-of-way through two lots described in their report as probably being owned by S. H. Simar they awarded damages in the sum of $155. The defendant, not being satisfied with the award, appealed, and the two lots last named were mentioned by the defendant in his appeal bond and in the transcript, which were filed in the district court. At the trial, which was had in the district court with a jury, Grovier was awarded the sum of $5,490 as damages.
The railroad company contends that the court erred in the admission of testimony and in the charge given to the jury. A portion of Grovier’s land through which the railroad was surveyed and built had been platted as an addition to the town of Hope, and the plat had been filed with the register of deeds. In testifying, Grovier and some other of the witnesses used the plat to explain their testimony. Objection was made to its use, the plaintiff in error claiming that the map of the company, filed in the office of the county clerk, was the best and controlling evidence of the location of route of the proposed railroad and the land condemned for right-of-way. The map of the company is not the only evidence of these facts. Indeed, the map and profile required by § 48 of the act concerning corporations are no part of the condemnation proceedings, and may not be filed at the time when such proceedings are had. They are required to be made and filed before the construction of the railroad is begun, but not before the right-of-way is obtained. (Gulf Rld. Co. v. Shepard, 9 Kas. 647.) Whatever view might be taken of this testimony, there is nothing in the objection of the railroad company, for the reason that there was no real controversy between the parties in respect to the location of the railroad or of the land appropriated for a right-of-way. The correctness of the map used, which was the official one filed in the office of the register of deeds, was not questioned, and it was only used for the purpose of explaining and making clear the testimony given by the witnesses.
It is further claimed that as lots 10 and 11 in block 1 were designated in the report of the commissioners as the property of Simar, Grovier is thereby precluded from taking an appeal from the award made for their appropriation. The mere act of the commissioners in designating who are the probable owners of the land which they condemn, can have no such effect. Under our statute the owners are not made parties to the condemnation proceeding by name, nor are they served with personal notice. The notice is given by publication, and in that notice the names of the owners are not required to be given. (Gulf Rld. Co. v. Shepard, supra.) When that publication is made, all owners whose lands may be condemned must take notice, and if dissatisfied with the award when it is made, they can, and to protect their interest should, take an appeal, regardless of whether or not they are designated as owners in the report.. It is the duty of the commissioners, so far as possible, to ascertain the names of the owners of each tract or lot of land condemned, and so describe them in the report which they make; or, if a lot or tract belongs to different owners, they should appraise the value and assess the damage of each of such owner’s interest. If they are unable to learn the names of the owners of each lot or tract, or the names of the owners of each interest in the same, they should so state in their report. The failure of the commissioners, however, to ascertain and designate the owners, whether it occurs from ignorance, inad- ... ° vertence, or inability, will not prevent the real owner of any parcel of real estate or interest in the same from availing himself of the remedy of appeal. In the present case, through a mistake, Simar was designated in the report as the “probable name of owner” of lots 10 and 11 in block 1, when as a matter of fact he had no interest whatever in them. Grovier was the exclusive owner of the lots, and took an appeal from the award made for their appropriation by specifically mentioning them in the appeal bond which he filed.
Some objection is made to the testimony given by Grovier, that he was the owner of these lots. If there had been an actual dispute as to the title, more strictness of proof would have been necessary; but no such dispute exists. The lots formed a part of an addition to the town of Hope, which all agree had been platted by Grovier as owner; and the plat of the same had been filed in the office of the register of deeds, and this was prima fade evidence of ownership. (C. B. U. P. Rld. Co. v. Andrews, ante, p. 370; same case, 21 Pac. Rep. 276.) The evidence was that he had never sold the lots, and no tesf¿mony disputing his ownership was offered. Under the circumstances, the statement that he was the owner of the lots is not a good ground of complaint.
Testimony was offered of damage to lots no part of which was taken for the right-of-way, and the court reserved the question of its admissibility upon a motion to strike out, and ■finally excluded the testimony entirely. In charging the jury the court started to instruct as to the liability of the company for injury to such lots by the appropriation of other lots, but finally concluded that the question was not in the case, and expressly directed the jury not to take into consideration any damage done to lots not touched by the railroad. The railroad company has no reason to complain of these rulings. There was testimony admitted, however, which was incompetent and prejudicial. Over the objection of the plaintiff in error, witnesses were allowed to state that portions of lots 8 and 12 in block 1 were appropriated for a right-of-way, and they also gave the value of the same; and damages for the appropriation of these are doubtless included in the verdict. Erom the report of the commissioners which is included in the record, neither of these lots was condemned or intended to be appropriated by these proceedings. No mention is made of either in the report nor in the appeal bond. The appeal is from the decision or award made by the commissioners, and the trial of the appeal is only a revision of the action that the commissioners have taken. They only condemn such property as the party initiating the proceedings desires shall be condemned, and points out to them for that purpose; and their report is the only evidence of the action they take. It is important to both the owner and the railroad company that the property taken by the condemnation proceedings should be clearly defined and known, and hence the report of the commissioners must state fully and precisely the extent of the appropriation. Any property not included in the report will not be affected by the proceeding. i o An award is made as to each distinct lot or quarter-section of land, and if several lots or tracts are owned by the same person he may appeal from an award on one lot or tract and allow that made as to others to stand undisturbed. This could be accomplished by the appeal bond which he executes and the pleadings which he may file after the appeal is taken; but in this case the property in question was not included in either the report or appeal bond, and was therefore not the subject of inquiry on this appeal. In Reisner v. Union Depot and Rld. Co., 27 Kas. 389, it is said:
“The appeal was from the determination of the commissioners as to the value of the land taken, and for all other damages connected with the appropriation of the portion of the lot so condemned. Beyond the limit of what was condemned the company had no right whatever; and if it has used other portions of the lot of plaintiff, it is not a matter of inquiry upon an appeal from the condemnation. If the company has taken possession of any part of the lot beyond that which has been condemned, it is a trespasser thereon, and an action of ejectment may be prosecuted for its recovery, or an action for damages may be maintained for all wrongful acts done outside of the right-of-way acquired by the condemnation.”
See also The State v. Armell, 8 Kas. 288.
If the lots in question were actually condemned, but inadvertently omitted from the transcript of the report filed in the court, or inadvertently omitted from the appeal bond, the defect could have been cured by amendment or the filing of a pleading; but if there was such omission, no correction was made. In the state in which we find the record, the appropriation of these lots was not in issue, and the testimony concerning their appropriation was unwarranted.
The special findings of the jury show that damages were allowed for the taking of the lots which were not involved in this appeal, but it is impossible to ascertain therefrom the amount awarded for the appropriation of such lots, and hence there must be a reversal.
The other matters complained of require no attention.
The cause will be remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought by Isaac A. Gardner against the Kansas Protective Union on a policy of insurance, issued in the form of a certificate of membership, on the life of Elizabeth A. Gardner, and payable to her husband, Isaac A. Gardner. The application for insurance, or membership, was made on the 23d day of June, 1884; on that day the applicant paid E. H. Baird, the agent of the Protective Union, eight dollars; the policy or certificate of membership was issued on the 16th day of July, but was not delivered until July 18th or 20th; Mrs. Elizabeth A. Gardner died on the 25th day of July, 1884; and on the 21st day of August, 1884, proofs of her death were made out and presented to the Protective Union. This action was commenced on the 24th day of June, 1885 — about eleven months after the death of the assured; and the petition declared the policy or certificate as a simple contract of insurance, and asked judgment upon the policy or certificate for the amount named therein. The answer contained a general denial, and also set up a provision of the policy or certificate, by which it was provided that if there should be any concealment, misrepresentations or false statements made in the application on which the policy or certificate issued, the policy or certificate should be null and void. The answer further alleged that at the time of her application Mrs. Gardner had a violent cough, defective lungs, and was afflicted with the disease of consumption, and that she concealed all of this from the insurance company and its agents.
The plaintiff in reply denied the allegations of the answer, and alleged that his wife at the time of her application had concealed nothing, and made no false representations; but that a short time prior to her application she had given birth to a child; that she had not fully recovered her general strength; that her confinement and sickness were mentioned and talked about to E. H. Baird, the agent; that he informed her that a confinement, or giving birth to a child was not considered a sickness or disease which could in any manner affect her application or insurance; and therefore, on account of the advice and statements of the agent, her answers contained in the application did not refer to her confinement or sickness in giving birth to her child. The application upon which the policy or certificate was issued, contained, among other things, the following questions and answers:
“Q,. Are you now in sound health? A. Yes.
“ Q. Are you subject to cough, difficulty in breathing or palpitation ? A. No.
“Q. Have you ever had hemorrhage of the luDgs or spitting of blood ? A. No.
“ Q,. Have you ever had, or have you now, consumption ? A. No.
“Q,. Are you now subject to or affected by any other infirmity ? A. No.
“Q,. Have you been attended by a physician during the last five years ? A. No.”
The case was tried by the court with a jury; a general verdict was rendered in favor of the plaintiff for $2,000; the jury also found, and returned special findings of fact. Subsequently, the trial court rendered judgment upon the verdict and findings. The Protective Union, defendant below, excepted, and brings the case here.
I. The policy or certificate contains the following provisions :
“The said Union does hereby promise and agree to pay, at its office, in the city of Topeka, in lawful money of the United States, the sum of two thousand dollars, to Isaac A. Gardner or his executors, administrators, or assigns, within sixty days from the close of the quarter in which satisfactory proofs of the death, during the continuance of this certificate, of the above-named member, are received. It is provided, however, that the sum to be thus paid is conditioned upon the assessment made therefor, and shall in no case exceed seventy-five per centum of the amount received thereon.”
Under these provisions it is contended that the policy or certificate sued on does not permit recovery of any sum when loss occurs except by assessments to be made upon the members, and the sum to be recovered in no case to exceed seventy-five per cent, of the amount received on the assessments. It is therefore urged that the plaintiff must aver and prove the number of members belonging to the Protective Union at the death of the assured, the amount of the assessments made on the members therefor, and also what seventy-five per cent, of the assessments received would amount to. This objection to any recovery was presented, and decided adversely in Protect ive Union v. Whitt, 36 Kas. 760. The policy or certificate required the Union to pay the amount due thereon within sixty days from the close of the quarter in which proofs of the death of the assured were received. The close of the quarter after the reception of proofs of the death was September 1, 1884, and by the terms of the policy the amount thereon became due within sixty days after September 1, 1884. This action was not brought until on the 24th of June, 1885. The answer contained no allegations as to want of funds, or as to what the assessments if made would have realized. It is not contended that any assessment has ever been made. On the other hand, the Union alleges that the claim is not a valid one, and for that reason refuses to pay. No attempt was made upon the trial by the Union to show that any assessment had been made, or that if an assessment had been made it would not have realized $2,000. (See Protective Union v. Whitt, 36 Kas. 760; Life Ass’n v. Lemke, 40 Kas. 142; 19 Pac. Rep. 337; Lueder’s Ex’rs v. Insurance Co., 4 McCr. 149.)
II. It is claimed as the jury found in their special findings that the assured at the time of her application had a cough and had been recently attended by a physician, that therefore the Union was entitled to judgment, notwithstanding the general verdict. All the findings of the jury must be construed together and harmonized, if possible; in this view, they fully sustain the verdict. Among the findings of the jury are the following:
“ Q,. Did the assured have a cough during the months of January, February, March, April, or' May, prior to making her application? A. Yes, slight, but not serious.
“ Q,. Did she have a cough at the time of making her application? A. Yes, slight, but not serious.
“ Q,. Had she been attended by a physician at any time during the five years prior to the time of making her application ? A. No, only at confinement.
“Q, If so, about when? A. The 24th of May, 1884.
“ Q,. By what physician ? A. Dr. Truhart.
“Q,. Was she in sound health at the time she made her application? A. Yes.
“ Q,. Of what disease did she die ? A. Congestive chills.”
If the evidence of the plaintiff below is to be credited, the assured made no false statement in regard to any matter which was material to the risk, nor did she omit to make known any fact relative to her health, or circumstances affecting the interest of the Union. She informed the agent who accepted her application and wrote down her answers to the questions therein, or his conclusions from her answex-s, that she had just given birth to a child; that she was weak from confinement, and that she had some cough. Clearly, the assured can only be bound by the answers she made; she is not responsible for the conclusions or omissions of the agent. He informed her that her confinement was not considered a sickness or disease, and that women who were px’egnant were subject, more or less, to a cough; therefore the failure of the application to show that the assured had a cough, that she had been sick in giving birth to a child, and had been attended by a physician' during her confinement, was wholly the fault or neglect of the agent. If all the answers of the assured were not written down as she gave them, she is not responsible. (Sullivan v. Insurance Co., 34 Kas. 170; Lueder’s Ex’rs v. Insurance Co., 4 McCr. 149.)
III. The instructions of the court on the answers of Mrs. Gardner in her application, concerning her cough, and the non-attendance of a physician, may be properly criticised, but the findirigs of the jury rendered these instructions harmless error, if any was committed.
IV. There was no ex’ror in the action of the trial court in overruling the application for a change of venue. The affidavits presented in support of the application alleged “That the defendant could not have a fair and impartial trial in the district court, on account of the bias and prejudice of the judge thereof against the defendant.” There were no facts or circumstances proved by affidavits or other extrinsic testimony showing that there existed any prejudice whatever on the part of the judge against the defendant. Unless prejudice clearly appears, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence óf the grounds alleged. (City of Emporia v. Volmer, 12 Kas. 622; The State v. Knadler, 40 id. 359; same case, 19 Pac. Rep. 923.)
Y. The other alleged errors have been examined and considered, but nothing appears therein prejudicial to the rights of the unsuccessful party.
YI. The plaintiff below consents, on account of the provision in the policy or certificate that no recovery “can exceed seventy-five per centum of the amount received upon an assessment,” that $500 of the judgment may be remitted.
Therefore the judgment of the district court, with this remitment, will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an uncontested attorney disciplinary proceeding involving Donna M. Dill, an attorney licensed to practice law in Kansas. Respondent’s last registered address with the Appellate Courts of Kansas is: 10976 Benson, Suite 380, Overland Park, KS 66210. It was later determined that the respondent’s correct address is 4344 Goodson Way, Rohnert Park, CA 94927-1347. Respondent was sent a copy of the formal complaint at the California address, and a letter was received from the respondent dated May 21, 1992, acknowledging receipt of the complaint. Respondent, however, did not respond to the allegations of the complaint.
The complaint consisted of two counts:
COUNT I
Donna M. Dill was retained by Laura M. Podolanko to represent her in a divorce action, In the Matter of the Marriage of Laura M. Podolanko and John J. Podolanko, Case No. 91-D-7, filed January 22, 1991, in the District Court of Jefferson County, Kansas. A trial was held on June 12, 1991. On July 2, 1991, a Journal Entry and Final Decree of Divorce was filed. Ms. Dill agreed to file a motion for reconsideration. Under K.S.A. 60-259(f), such a motion must be filed within 10 days after entry of judgment. Ms. Dill told Ms. Podolanko she had filed the motion.
On July 31, 1991, Ms. Podolanko contacted the Clerk of the District Court and learned the motion for reconsideration had not been filed. Ms. Podolanko then contacted Ms. Dill. Ms. Dill indicated to Ms. Podolanko that she had not filed the motion for reconsideration. Ms. Dill indicated to the client that she had decided to file a different motion which could be filed within 30 days. On August 2, 1991, Ms. Dill'filed a motion for modification, reconsideration, and hearing.
On August 14, 1991, Ms. Podolanko’s former husband filed a motion in opposition to petitioner’s request for modification, reconsideration, and hearing. Ms. Podolanko wished to file a response to the motion in opposition and prepared a written document which she delivered to Ms. Dill requesting that Ms. Dill make any necessary changes in form and/or content and file the response with the court. Ms. Dill agreed to perform this service. When Ms. Podolanko later inquired, Ms. Dill told her the response had been filed. A review of the court file indicated that no such response was filed.
A hearing was held on October 22, 1991. The judge denied the motion for reconsideration due, in part, to its being filed out of time.
COUNT II
Subsequent to the divorce, Ms. Podolanko’s former husband filed a motion for authority to sell the marital residence at a private sale and requested an expedited hearing. Ms. Podolanko opposed that motion and on her behalf Ms. Dill filed a response. The court ordered that the property be appraised and the cost of the appraisal equally divided between the parties. W. J. Stephenson, Jr., appraised the property. Ms. Podolanko gave a check to Mr. Stephenson in the amount of $200 but, prior to the check being cashed, stopped payment on it.
To collect the fee for his services, Mr. Stephenson filed suit in an action captioned W. J. Stephenson, Jr. v. Laura A. Podolanko, Case No. 91-C-73, in the district court of Jefferson County, Kansas. Ms. Podolanko was served on October 12, 1991, and took the summons and the petition to Ms. Dill. Ms. Dill agreed to contact Mr. Stephenson’s attorney, Michael Gibbens, to attempt to settle the matter. When she was unable to reach Mr. Gibbens by the answer date, she agreed to file an answer and continue her attempts at settlement.
Ms. Dill failed to file the answer, and a default judgment was entered against her client. Thereafter, Mr. Gibbens garnished Ms. Podolanko’s bank account. The sum of $300 was withheld by the bank pursuant to the order of garnishment. Ms. Podolanko learned of this action when her bank account was overdrawn. Ms. Podolanko contacted Ms. Dill, who indicated she had filed the. answer and would contact Mr. Gibbens to determine what had happened.
After Ms. Dill discussed the case with Mr. Gibbens, an agreement was reached, and Gibbens transmitted an order for release as garnishee to the court. A satisfaction of judgment was signed thereafter.
A hearing on the complaint was held on August 27, 1990. Although notice of the hearing had been sent to respondent’s Kansas and California addresses, respondent failed to appear at the hearing either in person or by counsel.
After hearing testimony, the hearing panel concluded there was clear and convincing evidence that the respondent had violated the following rules:
1) MRPC 1.3 (1992 Kan. Ct. R. Annot. 248), in that respondent failed to act with reasonable diligence and promptness in representing a client.
2) MRPC 1.4 (1992 Kan. Ct. R. Annot. 251), in that respondent failed to keep a client reasonably informed about the status of a legal matter, and failed to promptly comply with reasonable requests for information from a client.
Prior to making its recommendation, the panel inquired whether there was any known evidence of aggravating or mitigating circumstances.
The Deputy Disciplinary Administrator presented evidence that one prior complaint had been filed against the respondent, resulting in an informal admonition by the Board for Discipline of Attorneys dated November 1, 1990.
There was no other evidence of aggravating or mitigating circumstances.
In its report, the hearing panel expressed concern about respondent’s failure to respond to the complaint. The hearing panel recommended that respondent be suspended from the practice of law for one year.
The members of this court agree with the recommendation of the hearing panel.
It Is Therefore By The Court Ordered that Donna M. Dill be suspended from the practice of law in Kansas for a period of one year, and she is hereby ordered to pay the cost of this proceeding forthwith and to comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that this order of suspension be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Gregory Raymond Harkness, from his conviction of four counts of aggravated kidnapping, three counts of rape, one count of aggravated sodomy, and three counts of aggravated assault.
The three separate incidents out of which the charges arose took place on the 2nd, 4th, and 5th of June, 1981. Harkness was convicted in 1982 and committed to Lamed State Security Hospital. He was returned to the trial court and sentenced in January 1991. This appeal followed.
The primary issue at trial was whether Harkness was insane. On appeal Harkness argues he was not mentally competent to stand trial or at the sentencing; the evidence was insufficient for the jury to find he was sane; Instruction No. 10 impermissibly shifted the burden of proof to the defendant; the trial court erred in excluding from evidence letters written by Harkness between the dates of the crime and trial; and the three counts of aggravated assault are multiplicitous with his convictions for aggravated kidnapping.
At the time of trial, the four female victims ranged in age from 14 to 20 years of age. Harkness was 19 years of age. He had a lengthy history of mental illness that included multiple hospitalizations.
The defendant did not dispute he committed the acts. His explanation was that God told him to commit the acts. The facts will be set forth only as necessary in discussing the various issues.
I. COMPETENCY AT TRIAL AND SENTENCING
Harkness argues the trial court abused its discretion in determining he was competent to stand trial and to be sentenced. The defendant claims that, because of this abuse of discretion, he was deprived of his liberty without due process under the Fourteenth Amendment to the United States Constitution.
A defendant is incompetent to stand trial if, because of mental illness or defect, that individual is unable “[t]o understand the nature and purpose of the proceedings against him [or her]” or “to make or assist in making his [or her] defense.” K.S.A. 22-3301(1). In State v. Holloway, 219 Kan. 245, 254, 547 P.2d 741 (1976), we stated that our incompetency standard is in accord with Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960). According to the Dusky Court, the “ ‘test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” 362 U.S. 402. Additionally, K.S.A. 22-3302(1) provides:
“At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination, of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, ■ the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.”
“On appeal, the reviewing court’s inquiry on a trial court’s determination that a defendant is competent to stand trial is whether the trial court abused its discretion.” State v. Perkins, 248 Kan. 760, Syl. ¶ 4, 811 P.2d 1142 (1991). “ ‘Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.’ [Citation omitted.]” State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992).
On July 15, 1981, the trial court granted the defendant’s motion for a psychiatric evaluation to determine his competency to stand trial and ordered the defendant committed to the Lamed State Security Hospital. On September 4, 1981, the trial court mled that Harkness was not competent to stand trial. The court indicated its ruling was based upon Lamed’s report “that on occasions Mr. Harkness was unable to maintain a coherent conversation, was hallucinating, appeared to be confused, somewhat disoriented and bewildered, schizophrenic paranoid with acute exacerbation. Concentration was dismpted, attention span inadequate.” The court ordered his return to Lamed for “continued treatment and pharmaceutical assistance.” The defendant’s competency was to be reevaluated within three months. On December 3, 1981, the trial court mled that Harkness was competent to stand trial. According to the court, this time the report from Lamed concluded that Harkness “had been restored to capacity” and was able to “participate in the preparation of his defense and the assistance of counsel in his defense.”
The reports upon which the trial court based its December 1981 ruling are not part of the record on appeal. Therefore, it is impossible to determine whether the trial court abused its discretion in so ruling. “An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.” State v. Edwards, 250 Kan. 320, Syl. ¶ 7, 826 P.2d 1355 (1992).
Additionally, Harkness raises for the first time on appeal the issue of whether there should have been a third evaluation of his competency to stand trial. The defendant was in receipt of the report upon which the trial court based its December 1981 ruling. He lodged no objection to the report or to the trial court’s ruling and presented no evidence to rebut the report’s conclusions. Harkness did not ask for a redetermination of competency at any time throughout the trial. He did not raise any due process concerns to the trial court. “Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review.” State v. Walker, 244 Kan. 275, Syl. ¶ 6, 768 P.2d 290 (1989).
Harkness is arguing that, based upon the trial court’s knowledge and observations, the trial court, sua sponte, should have ordered a new competency determination. See K.S.A. 22-3302(1). He contends there was ample evidence for the trial court to make a finding of incompetency and the court abused its discretion in failing to do so. The defendant advances several reasons to support his argument: his extensive prior psychiatric history; his behavior at arraignment and at trial during a discussion about readback testimony; and, most importantly according to the defendant, because he was on psychotropic medication, his competency was synthetically produced and, as such, should be invalid. Psychotropic has been defined as “affecting the mind, denoting drugs used in the treatment of mental illnesses.” Stedman’s Medical Dictionary 1288 (25th ed. 1990).
The defendant’s parents testified about his prior psychiatric history. Harkness had been in and out of counseling and mental facilities as well as on and off medication from the time he was an adolescent until committing these crimes in June 1981. He began experiencing problems in junior high: His grades began to drop; he was picked up on different occasions for using marijuana, drinking beer, and stealing a bicycle; he began getting into physical fights with other children; he began lying to his parents; and he became belligerent and refused to follow orders. He eventually dropped out of high school.
According to his parents, Harkness began hearing voices. In response to these voices, on one occasion he walked about his parents’ house with a loaded shotgun, which caused his parents to remove all guns from the house. He thought people were watching him and could hear what he was thinking. The defendant eventually believed the voices he heard were either God or Satan. He developed a pattern of going outside and praying at the top of his voice, sometimes on the roof of the house in the middle of the night. His mother referred to it as “raving and hollering to God” to “forgive him for being a faggot.” He generally was unable to hold a job for more than two or three days. His parents refused, based upon medical advice, to let him drive their car unless one of them was with him because he was unable to concentrate for any length of time.
Considerable expert and lay testimony was presented concerning the defendant’s mental health and his prior psychiatric history. A defendant is not incompetent to stand trial simply because that individual has received or needs psychiatric treatment. Van Dusen v. State, 197 Kan. 718, 725-26, 421 P.2d 197 (1966).
With regard to his behavior, Harkness emphasizes that, at his arraignment, he attacked a female court reporter in a courtroom full of people. The defendant also points to his behavior after the jury requested a readback of the two experts’ testimony. Defense counsel questioned the defendant about whether he wanted to be present at the readback or whether he wanted to waive his right to be present. The record reflects that Harkness was confused about his options and the ramifications of each and that he had a difficult time making a choice. The defendant also emphasizes defense counsel’s response to his question about what he would be doing if he was present for the readback. Defense counsel said: “Sitting there at the counsel table, just like you have been sitting all week, twiddling your thumbs while [the court reporter] reads.” Harkness maintains this underscores the fact he was incapable of assisting in his own defense.
The trial court also had the opportunity to observe Harkness’ conduct, attitude, and demeanor at trial. It must be presumed the trial court considered all of this and did not find the defendant’s competency wanting. Attacking a court reporter, showing confusion, having difficulty making decisions, and twiddling one’s thumbs are not necessarily signs of incompetency. There are other plausible explanations.
“It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on its own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion.” Van Dusen, 197 Kan. 718, Syl. ¶ 6.
We cannot say the trial court abused its discretion in failing to order a third evaluation of Harkness’ competency or to find the defendant incompetent to stand trial because of his psychiatric history or behavior at trial.
Harkness contends that, because he was on psychotropic medication, his competency was synthetically produced and, as such, should be invalid. The defendant argues competency should be based upon an accused’s natural, undrugged state. His argument should not be confused with issues involving compelled competency, in which a defendant is or has been compelled to take medication against his or her will. See U.S. v. Charters, 863 F.2d 302 (4th Cir. 1988) (en banc), cert. denied 494 U.S. 1016 (1990); Perlin, Are Courts Competent to Decide Competency Questions?: Stripping the Facade from United States v. Charters, 38 Kan. L. Rev. 957 (1990). Compelled competency is not an issue in this appeal.
Although the defendant cites no authority to support his argument, commentators have addressed the issue. One commentator contends two issues arise if a defendant is under the influence of antipsychotic drugs: Is the defendant competent? Can a medicated defendant receive a fair trial? The commentator suggests a trial court should consider whether the defendant is suffering from side effects because of the medication and whether such side effects will prejudice the jury. A court also should consider if the defendant’s appearance prejudices the jury. Note, Antipsychotic Drugs and the Incompetent Defendant: A Perspective on the Treatment and Prosecution of Incompetent Defendants, 47 Wash. & Lee L. Rev. 1059 (1990); see Fentiman, Whose Right is it Anyway?: Rethinking Competency to Stand Trial in Light of the Synthetically Sane Insanity Defendant, 40 U. Miami L. Rev. 1109 (1986). Another commentator contends a defendant synthetically restored to competency should not be presumed incompetent because the defendant is on medication. Instead, upon the defendant’s return to court, the trial court should individually determine this defendant’s competence. Winick, Psychotropic Medication and Competence to Stand Trial, 1977 Am. B. Found. Research J. 769, 815. See generally Wilkinson & Rob erts, Defendant’s Competency to Stand Trial, 40 Am. Jur. Proof of Facts 2d 171 §§ 1-25 (1984).
Here, Harkness did not raise the issue to the trial court. Therefore, the trial court was not requested to make findings such as those just discussed. Furthermore, the use of psychoactive drugs to treat mentally ill persons and to restore competence is widespread. Winick, at 771. We hold a defendant is not per se incompetent because he or she has been restored synthetically to competency through the use of psychotropic or other medication. Cf Holloway, 219 Kan. at 254 (“the use of narcotics does not per se render a defendant incompetent to stand trial”). To hold otherwise would cause unjust results. For instance, this defendant, and countless others with the same defect who are convicted of a felony requiring a 1-5 year sentence, could be confined in a mental institution for life because they might never be competent to be sentenced without being on medicine. It would be inhumane to deny the use of the medicine.
Additionally, the statutory definition of competence does not preclude the use of psychotropic medication to restore the defendant’s ability to understand the proceedings against him or her or to make or assist in making his or her defense. The trial court did not abuse its discretion in finding Harkness competent to stand trial even though the defendant was taking psychotropic medication.
With regard to sentencing, on June 28, 1982, the trial court, pursuant to K.S.A. 22-3430 and K.S.A. 22-3431, ordered the defendant committed to Lamed until further order of the court. In November 1990, the trial court determined, based upon reports generated by the staff at Lamed and pursuant to K.S.A. 22-3431, that Harkness should be released from Lamed and sentenced. The defendant was sentenced on January 2, 1991.
K.S.A. 22-3430 authorizes a trial court, in lieu of imprisonment, to commit a defendant to a state mental institution if the defendant “is in need of psychiatric care and treatment and [if] such treatment may materially aid in his rehabilitation and [if] the defendant and society [are] not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment.” K.S.A. 22-3431 provides, in pertinent part:
“Whenever it appears to the chief medical officer of the institution to which a person has been committed under K.S.A. 22-3430 and amendments thereto, that such person is not dangerous to self or others and that such person will not be improved by further detention in such institution, such person shall be returned to the court where convicted and shall be sentenced, committed, granted probation, assigned to a community cprrectional services program or discharged as the court deems best under the circumstance.”
Harkness contends the trial court abused its discretion in sentencing him because the reports from the Lamed staff indicated he was dangerous to others. He argues K.S.A. 22-3431 requires that, before he is sentenced, it must be determined he “is not dangerous to self or others and that [he] will not be improved by further detention in such institution.”
The October 23, 1990, letter to the trial court from Dr. G.W. Getz, clinical director at Lamed, stated:
“Mr. Harkness has been cared for and treated, and his case was reviewed in a Forensic Staff Conference on September 12, 1990. The diagnoses of his condition were established as Schizophrenia, Paranoid, Chronic; Alcohol Abuse, in full remission; Cannabis Abuse, in full remission; and Psychoactive Substance Abuse Not Otherwise Specified.
“It is the opinion of the professional staff at State Security Hospital that Mr. Harkness has received maximum benefit from treatment in this facility. Since the provisions of K.S.A. 22-3430 are designed to allow convicted criminal defendants to receive needed psychiatric treatment in lieu of imprisonment, such defendant should only remain at State Security Hospital for as long as further psychiatric treatment may be of reasonable benefit. State v. Smith, 3 Kan. App. 2d 179 (1979).
“Although the prediction of future human behavior can never be a matter of certainty, the staff concluded that Mr. Harkness is dangerous to others in the community due to the nature of the crimes committed.
“Because Mr. Harkness is seen as dangerous to others, it is recommended that you now consider having him sent to Lansing Correctional Facility where he will be kept apart from society for the time being. Eventually Mr. Harkness should be considered for a sex offenders treatment program, and such a program is not available at State Security Hospital at the present time.”
Harkness argues reliance upon State v. Smith, 3 Kan. App. 2d 179, 591 P.2d 1098 (1979), is erroneous because the holding in Smith is contrary to the language of K.S.A. 22-3431. The defendant in Smith was committed to Lamed upon conviction of fe lonious assault and criminal damage to property. Two years later, the clinical director at Lamed informed the trial court
“ ‘that Mr. Smith is not amenable to psychiatric treatment, that continued detention at State Security Hospital will not materially contribute to his rehabilitation, that he is a potentially dangerous person, that the Kansas State Penitentiary is the most suitable place for an individual with his particular behavior pattern, and that he is ready to be returned to your court for further legal disposition.’ ” 3 Kan. App. 2d at 179-80.
In construing K.S.A. 22-3431, the Court of Appeals held:
“K.S.A. 22-3431 provides but one method whereby a person committed under 22-3430 may be returned to the court for further appropriate disposition. That statute does not preclude further orders of the court of jurisdiction with respect to the disposition to be made of defendant.”
“Where the chief medical officer of an institution is unable to report that defendant is not dangerous to himself or others and that he would not be improved by further detention, but does indicate that defendant is not amenable to psychiatric treatment and that continued detention would not materially contribute to his rehabilitation, the trial court in which defendant was convicted is authorized to direct the return of defendant for sentencing.”
“The district court in which a defendant is convicted and thereafter committed under the provisions of K.S.A. 22-3430 retains jurisdiction over the defendant, and may by its further order inquire into the merits of continued commitment for psychiatric care and treatment. If defendant is not found to be amenable to such care and treatment, that court may sentence or make such other provisions for defendant as provided by law and as may be warranted by the facts and circumstances disclosed. In doing so, the court must exercise the same discretion as in directing the initial commitment.” 3 Kan. App. 2d 179, Syl. ¶¶ 1-3.
For our purposes, the language of the 1979 version of K.S.A. 22-3431 construed by the Smith court and the version applicable to this case is identical.
If the legislature disagreed with the Court of Appeals’ interpretation of K.S.A. 22-3431, the legislature has had 13 years to amend the statute accordingly and has not done so. It is obvious from the clinical director’s letter that Lamed relies upon this case in determining when to recommend that a defendant is ready to be sentenced. From a policy viewpoint, it makes little sense to keep a convicted defendant at a state security hospital after it has been determined the defendant will no longer benefit from the available treatment. Harkness offers no persuasive reason for this court to overrule Smith. The trial court did not abuse its discretion in sentencing the defendant rather than continuing his commitment even though Lamed determined he was dangerous to others.
The defendant again argues that, because his restoration to competence was induced through the use of psychotropic medication, the trial court abused its discretion in finding him competent for sentencing. We reject that argument for the same reasons stated concerning Harkness’ competence to stand trial.
II. SANITY WHEN CRIMES COMMITTED
Harkness contends the evidence was insufficient for a jury to find beyond a reasonable doubt that he was sane at the time the crimes were committed. At trial, his sole defense was insanity.
Kansas follows the M’Naghten test. “Under the M’Naghten test for criminal insanity, a defendant is to be held not criminally responsible where he does not know the nature and quality of his act or where he does not know right from wrong with respect to that act.” State v. Baker, 249 Kan. 431, Syl. ¶ 10, 819 P.2d 1173 (1991). The jury was instructed accordingly.
The standard of review for insufficient evidence claims is well established:
“When the sufficiency of evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Baker, 249 Kan. 431, Syl. ¶ 11.
With regard to the burden of proof in a sanity case, we have stated:
‘[T]he state is not required in the first instance to introduce evidence to prove sanity, for the law presumes that all persons are sane, and this presumption of sanity takes the place of evidence in the first instance. It answers for evidence of sanity on the part of the state. But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted. . . . [The defendant] is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant.’ ” ’ [Citations omitted.]” Baker, 249 Kan. at 450-51.
The evidence was conflicting whether Harkness was sane when the crimes were committed in June 1981. The State presented evidence from Dr. Charles Donaldson Glazzard, a psychiatrist in private practice; from the victims; and from police officers. The defense presented testimony from Harkness’ parents and from Dr. William V. McKnelly, an associate professor in psychiatry at the University of Kansas Medical Center. A jury may consider the testimony of both expert and lay witnesses on the issue of insanity. Baker, 249 Kan. 431, Syl. ¶ 12.
Dr. Glazzard, after examining the police reports and medical records from the various hospitals at which the defendant had been treated, as well as interviewing the defendant, concluded that Harkness knew the difference between right and wrong. The doctor gave the following reasons for his conclusion:
“History reveals from the medical records, and from Mr. Harkness specifically, that the concept of right and wrong was known by him as he was growing up.
“Mr. Harkness recalls being told by parents, and being disciplined if he went against what he was told, about the difference between right and wrong when he was young, a youngster.
“At the time of the events, Mr. Harkness feels that he was under the pressure of God telling him to do certain things.
“At the same time he stated that he had been told earlier by God, when he was at K.U. Medical Center, to do those things, literally to commit rape, but didn’t want to do it because he was afraid then of what might happen to him, essentially saying that was not right to do that.
“On this occasion he apparently waited two weeks after having heard the voice again to tell him to do the rapes, because at the times he might have approached a girl, there were too many people around, he was afraid of being caught.
“[T]he fear of being caught suggested that knowing that what he was about to do was wrong and that it might lead to punishment for him.
“[F]rom the records, from the police records, and from our communication, Mr. Harkness took precautions to avoid being seen while driving to the areas where he was, during the act, the alleged act.
“And Mr. Harkness allegedly ran away following the event or the incidents. He apparently concealed his gun, according to the records.
“One of the girls apparently screamed and Mr. Harkness covered her mouth to prevent her from screaming.
“Mr. Harkness said, when I asked him more directly about the incidents that, quote, ‘I knew it was wrong, but I was told to do it, or I might go to hell.’ Unquote.
“Lamed records, in terms of knowing the difference between right and wrong, having to do with feeling guilty, for example, about certain acts, suggests that he was aware of the difference between right and wrong, saying, one, Tm guilty. I don’t know why, I just did it. I wouldn’t call myself crazy, I just wanted to do it.’
“And later on demonstrated guilt feelings on the part of previously sexual activities, knowing the difference in his mind between right and wrong.
“And in the psychological testing August 19, 20, [1981] when asked if he knew that rape was illegal, he said, ‘Yes, I like to touch girls and look at them.’ ”
Dr. Glazzard acknowledged the defendant was suffering from mental illness, the most recent diagnosis at Lamed being schizophrenia, which the doctor described as “a split between thoughts and feelings.” According to Dr. Glazzard, the fact that Harkness had been diagnosed as schizophrenic did not mean that he, per se, was unable to distinguish between right and wrong.
One of the victims, T.K., testified that, during the approximately two and one-half hours she was with Harkness, his conversation was responsive and appropriate. She never saw any indication the defendant did not know what he was doing. She believed that he knew the difference between right and wrong and that he knew what he was doing was wrong because he lied about his name, concealed the gun, lied about where they were going, blindfolded her so she could not look at him, and ran away. The State emphasizes that the testimony of all the victims indicated the defendant was “lucid, conversant and plan or goal-directed in his behavior toward them.”
One of the officers searching for the suspect testified that as he was driving in his vehicle he saw Harkness walking along the shoulder of the road. The officer had been given a physical and clothing description of the suspect. When the officer slowed down, the defendant ran. The officer shouted for Harkness to stop; however, the defendant paid no attention. Shortly thereafter, Harkness pointed a gun in the officer’s direction. The officer fired at the defendant, but missed. Although Harkness escaped then, he was arrested shortly thereafter.
Harkness’ father testified that he did not believe his son knew right from wrong part of the time and that the only time he believed his son could control his actions was if his son was on his medication. The defendant’s mother testified that her son was not taking his medication on June 2, 1981. She also said she did not believe her son knew the difference between right and wrong because he was following what he thought were God’s orders. When she questioned him about what had happened prior to his being sent to Lamed for evaluation, he told her, “God told me to do it.”
Dr. McKnelly testified that through the years he has been asked, usually by the State, many hundreds of times to determine whether a defendant was insane. He said that in only 5 to 10 cases did he believe a defendant was insane. According to the doctor, Harkness is an incurable schizophrenic and “will not know the difference between right and wrong now or in the foreseeable future, unless he is medicated, and even then it’s equivocal.” Dr. McKnelly stated, “He’s as crazy as they come.” The doctor acknowledged that, prior to interviewing the defendant personally, he thought it highly unlikely, based upon the medical records, that the defendant knew the difference between right and wrong.
Harkness argues the key to whether he could understand the nature and quality of his acts was whether he was medicated sufficiently at the time the crimes were committed to overcome the hallucinations from which he suffered. He relies upon the testimony of his witnesses, particularly Dr. McKnelly, to argue the evidence was insufficient for a jury to find him sane. The defendant’s argument fails to take into account the testimony of the State’s witnesses. In essence, he is arguing credibility of the witnesses. It is not a function of this court to judge credibility.
After reviewing all the evidence, there is substantial evidence, viewed in the light most favorable to the prosecution, for a rational factfinder to conclude that Harkness knew the difference between right and wrong and was not insane at the time of committing these offenses.
III. PRESUMPTION OF INTENT INSTRUCTION
Over the defendant’s objection, the trial court gave the following presumption of intent instruction:
“Instruction No. 10
■ “It is reasonable to presume that a person ordinarily intends the natural and probable consequences of his knowing acts. The jury may draw the inference that the defendant intended all of the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from such intentional act or conscious omission.
“Any such inference drawn must be considered along with the other evidence in the case in determining whether the State has met the burden to prove every element of the offense beyond a reasonable doubt and that the defendant possessed the required criminal intent. This burden never shifts to the defendant.”
The trial court noted that Instruction No. 10 was one of the “stock instructions,” based upon PIK Crim. 2d 54.01 (1992 Supp.). Instruction No. 10 was not based upon PIK Crim. 2d 54.01 (1992 Supp.) and is wide of the mark. The defendant maintained the instruction would confuse the jury on the issue of intent.
On appeal, Harkness argues Instruction No. 10 shifted the burden of proof to him because the instruction created a compulsory, rather than permissive, inference. He points out Instruction No. 10 did not follow the approved language of PIK Crim. 2d 54.01 (1992 Supp.), which provided:
“Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the .other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
One significant difference, according to Harkness, is that Instruction No. 10 contained the language, “Any such inference drawn must be considered.” He maintains the use of the word must made the inference compulsory, not permissive. The defendant claims further proof is that Instruction No. 10 failed to include the following language, “You may accept or reject” the inference, found in the PIK instruction. He maintains that, because the instruction did not allow the jury to choose whether to accept or reject the inference, the inference became a “mandatory rebuttable presumption.” He claims this “mandatory rebuttable presumption” undermined his insanity defense because it juxtaposed the concept of voluntary intent with the concept of insanity with out explaining that the two concepts are not necessarily mutually exclusive.
In State v. DeVries, 13 Kan. App. 2d 609, 613-14, 780 P.2d 1118 (1989), the Court of Appeals summarized the law in this area, stating:
“The State is required by the Due Process Clause of the Fourteenth Amendment to prove, beyond a reasonable doubt, every element necessary to constitute the crime with which an accused is charged. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Under this principle, evidentiary presumptions cannot be included in the jury instructions if they have the effect of relieving the State of its burden of proof beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). In order to decide whether such an instruction is unconstitutional, a court must decide whether the instruction creates a mandatory or rebuttable presumption or merely a permissive inference. Francis v. Franklin, 471 U.S. 307, 313-14, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985).
“A presumption may be either mandatory or rebuttable. A mandatory presumption removes the presumed element from the case once the State has proven the predicate facts giving rise to the presumption. That is, once the State proves certain facts, a jury must infer intent from such facts and the accused cannot rebut the inferences. 471 U.S. at 314.
“A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the accused persuades the jury otherwise. That is, once the State proves certain facts, the jury must infer intent from those facts, unless the accused proves otherwise. Both types of presumptions are unconstitutional if they relieve the State of its burden of persuasion on an element of an offense or if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Francis v. Franklin, 471 U.S. at 314; Sandstrom v. Montana, 442 U.S. at 517-18.
“By contrast, an instruction containing a permissive inference does not relieve the State of its burden because it still requires the State to convince the jury that an element, such as intent, should be inferred based on the facts proved. Francis v. Franklin, 471 U.S. at 314.
“The standard for reviewing an instruction such as the one in the instant case' is whether a reasonable juror could have understood the instruction as a ‘presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.’ 471 U.S. at 316. If a reasonable juror could have understood the instruction in the present case as shifting the burden of proof on intent to the defendant once the State proved the defendant committed certain voluntary acts, the instruction is unconstitutional. 471 U.S. at 316.
“The allegedly unconstitutional instruction must be read and interpreted in light of all the instructions given, since other instructions might cure the defective language in the instruction. 471 U.S. at 315. General instructions on the presumption of the defendant’s innocence or the State’s burden of persuasion, however, do not remedy an erroneous instruction containing a conclusive or rebuttable presumption on an essential element. 471 U.S. at 319-20.”
See State v. Green, 245 Kan. 398, 410, 781 P.2d 678 (1989).
The defendant has misinterpreted the instruction, which states, “The jury may draw the inference,” and if it does, “such inference drawn must be considered along with the other evidence in the case.” (Emphasis added.) Although the instruction could have been worded better, it did not create a mandatory or rebuttable presumption. Confusion, if any existed, was clarified by the final sentence of Instruction No. 10, which states: “This burden never shifts to the defendant.” This sentence was taken verbatim from PIK Crim. 2d 54.01 (1992 Supp.). Furthermore, Instruction No. 8 informed the jury that the State has the burden of proof and that the defendant is not required to prove his innocence. Additionally, the jury was instructed to construe all instructions together and to apply them as a whole to the evidence. A reasonable juror would not have interpreted Instruction No. 10 as shifting the burden of proof on intent to Harkness once the State proved he committed certain voluntary actions. The instruction is not unconstitutional.
Harkness also contends Instruction No. 10 permitted jurors to override the insanity defense because the instruction referred to “standing in like circumstances and possessing like knowledge.” He uses this language as proof the jury instructions, as a whole, emphasized physical actions over state of mind. The defendant claims that, as a result, the jury could convict him despite conclusive evidence that he was insane.
As discussed in the previous issue, the evidence was not conclusive the defendant was incapable of distinguishing right from wrong at the time of committing the crimes. Additionally, the jury was instructed it “may draw the inference that the defendant intended all of the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from such intentional act or conscious omission.” (Emphasis added.) The jury was not required to make the inference. The defendant’s arguments are not persuasive.
IV. LETTERS HARKNESS HAD WRITTEN
Harkness contends the trial court erred in refusing to admit Defense Exhibit “H” into evidence. This exhibit consisted of letters the defendant wrote to his family while he was at Larned for an evaluation of his competency to stand trial. The letters covered a period of time from the first of August until the first of December 1981. Defense counsel asked to make a proffer, which the trial court granted, and to leave the letters with the court reporter for the purpose of appeal. The record before us does not show a proffer was made, and the letters are not part of the record.
The State’s initial objection to the letters was on the grounds of hearsay. Harkness argued that the letters were not being offered to show the truth of the matter, but to show his mental state. The trial court withheld its ruling, allowing the State to review the letters. The State subsequently objected to the letters on hearsay and relevancy grounds. In response, Harkness contended that the letters had some probative value concerning his state of mind. The trial court sustained the State’s objection, reasoning the letters were immaterial because it was the defendant’s state of mind at the time of committing the offenses, not his subsequent condition, that was important in determining whether the M’Naghten test was satisfied.
On appeal, Harkness argues the letters were relevant because they were offered to show his “clearing mental state . . . after the administration of psychotropic medication, and by inference, [his] mental state when not medicated.” “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” K.S.A. 60-40I(b). The defendant contends the material fact the defense sought to prove was that in his unmedicated state he was unable to distinguish between right and wrong. He argues that, because the trial court refused to admit the letters into evidence, he was unable to present his defense.
In discussing relevancy, we have stated: “To render evidence of collateral facts competent, there must be some natural, necessary, or logical connection between them and the inference or result they are designed to establish.” State v. Friberg, 252 Kan. 141, Syl. ¶ 6, 843 P.2d 218 (1992). Harkness failed to establish that connection. When he attempted to proffer the letters, he only argued that the letters were being offered to show his state of mind. He did not elaborate. The defendant argued for the first time in his post-trial motion for a new trial, which was denied, that the letters were being offered “for the purpose of showing the confusion that existed in [his] mind early on when he went down to the hospital, and how that seemed to clear up as his medication took hold.” Furthermore, when Harkness attempted to enter the letters into evidence, there was no specific mention that he was receiving psychotropic medication during his stay at Lamed. The record on appeal does not indicate if the defendant was receiving psychotropic medication when he wrote the letters and, if so, how much medication he had received when he wrote such letters. The record on appeal also is vague concerning when Harkness last took his medication prior to committing the crimes. His mother testified that he told her on June 2, 1981, that he was not taking medication. June 2, 1981, is the date of the first kidnapping and attack. It is not known when he last took the medication, how long the drug stays in the system, and if he took medication on the dates the other crimes were committed.
In State v. Garcia, 233 Kan. 589, Syl. ¶ 5, 664 P.2d 1343 (1983), this court held that evidence of the defendant’s behavior subsequent to the commission of the alleged crimes is relevant to the insanity issue only if such evidence assists in determining the defendant’s mental condition at the time the alleged crimes were committed. In Garcia, the defendant wanted to admit into evidence videotapes of an interview between him and his expert witness, a clinical psychologist. At a hearing on whether to admit the tapes, the psychologist said that he relied upon the tapes, in part, in reaching his conclusion that the defendant did not know the difference between right and wrong at the time the crimes were committed and that the tapes would be useful in explaining his diagnosis and conclusions to the jury.
This court upheld the trial court’s refusal to admit the tapes, reasoning:
“Here the videotapes were offered by the [defendant] to support [the psychologist’s] opinion concerning the [defendant’s] mental condition at the time the crimes were committed. It is highly possible that the jury would be misled by the evidence and misuse it in considering the issue of insanity on the night in question, rather than limiting its use to support the basis of [the psychologist’s] opinion. Furthermore, . . . the jury does not possess the training, skill or experience to analyze the behavior of the [defendant] exhibited during the interview and interpret from it his mental condition at the time the crimes were committed. The strong possibility of misuse of the evidence by the jury outweighs whatever probative value the evidence may have had in lending support to [the psychologist’s] conclusions. In addition, the admission of this evidence would have placed before the jury the issue of the validity of the expert’s conclusions and would have required them to evaluate whether, based upon that evidence, those conclusions were proper. This the jury was not qualified to do.” Garcia, 233 Kan. at 601.
Harkness attempts to distinguish the instant case from Garcia, contending that the same concerns are not present here. He focuses upon only one of the concerns discussed in Garcia, that being that the jury might mistake the defendant’s state of mind as evidenced on the videotapes for his state of mind at the time the crimes were committed. Harkness argues that the letters were offered to show how the medication improved his state of mind, not to show “aberrant behavior.” The defendant also claims the letters are more reliable than the Garcia videotapes because the letters were not elicited for examination purposes.
We find Harkness’ contention unpersuasive. There is just as much possibility the letters would have misled the jury in this case as the videotapes would have misled the Garcia jury. The jury could have mistaken Harkness’ state of mind at the time of writing the letters for his state of mind at the time of committing the crimes. The jury would have been placed in the inappropriate position of collaterally evaluating the validity of the experts’ conclusions. The jury lacked the expertise to interpret the letters in relationship to the defendant’s state of mind at the time the crimes were committed.
“Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules.” Friberg, 252 Kan. 141, Syl. ¶ 5. Here, the trial court did not abuse its discretion in refusing to admit the letters into evidence.
V. MULTIPLICITY
Harkness argues that his convictions for the aggravated assault of M.P., M.F., and T.K. are multiplicitous with his convictions for the aggravated kidnapping of the same three victims. He claims the convictions are multiplicitous because the State relied upon the same act, that of threatening each victim with his gun, to supply the “threat” element for each crime.
“Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous . . . when the offenses occur at different times and in different places.”
“A test for determining whether a continuous transaction results in the commission of but a single offense is whether separate and distinct prohibited acts, made punishable by law, have been committed. A single motive for a series of acts does not necessarily result in a single crime.” State v. Woods, 250 Kan. 109, Syl. ¶¶ 6, 7, 825 P.2d 514, cert. denied _ U.S. _, 121 L. Ed. 2d 100 (1992).
To convict the defendant of aggravated assault, the jury was instructed the State had to prove that Harkness intentionally threatened bodily harm to the victim, that he had the apparent ability to cause such bodily harm, that his conduct resulted in the victim being in immediate apprehension of bodily harm, that he used a deadly weapon, and that the crime occurred on a specific date. To convict the defendant of aggravated kidnapping, the jury was instructed the State had to prove that Harkness took the victim by force or threat, that it was done with the intent to hold the victim to facilitate flight or the commission of any crime, that bodily harm was inflicted, and that the crime occurred on a specific date.
With regard to M.P., the defendant walked up to her car window, pointed a gun at her, and told her to move over. M.P. testified that she was frightened. A jury could find that at this point the crime of aggravated assault upon M.P. was complete. Harkness then entered M.P.’s car and assumed control of the vehicle by driving it. He drove away from the location of the aggravated assault. While he was driving around, he kept his gun pointed at M.P. A jury could find that Harkness took M.P. by force or threat by commandeering her vehicle or by keeping the gun pointed at her while he was driving. In addition, when Harkness and M.P. reached the scene where the rape occurred, Harkness parked the car in a driveway in front of a vacant house. He left the keys in the car and went to the rear of the house. M.P. started the car and tried to leave. Unfortunately, the car became stuck and she was recaptured. She then was taken from the car and raped. In State v. James, 216 Kan. 235, 531 P.2d 70 (1975), a young woman forcibly was dragged from her car and then escaped. She quickly was recaptured and raped. This court held the assault and battery in dragging her from the car was separate from the rape and not multiplicitous. The element of taking M.P. by force or threat for the aggravated kidnapping charge and the threat element for the aggravated assault charge occurred at different times and in different places. The convictions are not multiplicitous.
For the same reason, the defendant’s argument fails with regard to the convictions for the aggravated assault and the aggravated kidnapping of M.F. As with M.P., the aggravated assault was complete before Harkness entered the vehicle. M.F. was a passenger in a parked car. Harkness approached the vehicle from the passenger side and held a pistol to M.F.’s head. He subsequently opened the car door and sat in the back seat. Unlike the situation with M.P., the defendant did not drive the car. He forced the driver, D.A.F., at gunpoint to drive to a deserted wooded area, where he eventually attacked both women. There was a break of some 15 minutes during which M.F. was far enough away from Harkness that she could neither see nor hear him. Harkness then forcibly took the two women back to the car and ultimately released them in town. We are satisfied that separate acts of force were used and that the charges are not multiplicitous. The element of taking M.F. by force or threat for the aggravated kidnapping charge and the threat element for the aggravated assault charge occurred at different times and in different places.
The aggravated assault of T.K. is a different matter. In her case, the testimony was that she voluntarily had given Harkness a ride. T.K. had no reason to suspect anything was wrong until Harkness pulled a gun. When the gun first appeared, T.K. was driving south on 1-35 near 75th Street in Johnson County, Kansas. T.K. was directed to and did drive directly to the place where she shortly thereafter was raped. The defendant then forced T.K. to return to the car. Harkness drove and had started back to town when he was involved in a minor traffic accident. He fled and subsequently was captured.
In State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064 (1979), the defendant was convicted of aggravated assault and kidnapping. This court reversed his aggravated assault conviction because a single continuing act of force could not form the basis for both crimes. Our result relied upon State v. Lassley, 218 Kan. 758, 761-62, 545 P.2d 383 (1976), in which this court previously had stated:
“Both the kidnapping and rape charges required proof of the element of force. In each instance the force was supplied by evidence of the conduct of defendant in ordering the victim to do acts under the implied threat of harm. The fact defendant had a knife in his hand was significant in establishing the force element of both crimes. This same act of force cannot also provide the basis for the charge of aggravated assault. . . . The conduct of defendant in the instant case constitutes a single continuous transaction in which two separate and distinct offenses were committed. The act cited by the prosecution as constituting the offense of aggravated assault was part of the act of kidnapping and a prelude to the act of rape. In sum, this case presents a situation where there was a continuous act of force on the part of defendant. The act which was relied on for the charges of rape and kidnapping cannot also be used to provide the basis of a separate offense. We hold therefore that the trial court erred in refusing to dismiss the charge of aggravated assault.”
In Lassley, a young woman was baby-sitting when the defendant entered the home, forced her outside at knife point and subsequently took her to some nearby shrubs and raped her. In Racey, after the victim had allowed Racey to enter her car, he pulled a gun. The victim was directed from the city of Pittsburg to a location near the Kansas-Missouri border, and the victim was rescued while the car was parked at that location.
The Racey case is nearly identical to the facts of the crimes against T.K. The same act of force was used in the aggravated assault and kidnapping charge and that act of force was continuous and unbroken. For the reasons stated in Lassley and Racey, we conclude the conviction for the aggravated assault of T.K. (Count X) should be reversed.
Here, the trial judge sentenced Harkness to four life terms on the four kidnapping counts. Three of the life terms are concurrent to each other and consecutive to the fourth life term. The remaining seven counts, which includes Count X, all run concurrent to the fourth life sentence. Thus, reversing Count X (aggravated assault) will have no effect on Harkness’ sentence and the trial judge can vacate the sentence on Count X without Harkness being present.
Affirmed in part, reversed in part, and remanded with directions to vacate the sentence imposed on Count X. | [
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Per Curiam:
This is an attorney disciplinary proceeding involving Timothy P. Wood, an attorney licensed to practice law in Kansas.
The formal complaint consisted of three counts which allege that respondent had violated MRPC 1.3 (1992 Kan. Ct. R. Annot. 248) in failing to act with reasonable diligence and promptness in representing a client; MRPC 1.4 (1992 Kan. Ct. R. Annot. 251) in failing to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; and Supreme Court Rule 207 (1992 Kan. Ct. R. Annot. 160) in failing to aid the Board for Discipline of Attorneys and the Disciplinary Administrator in investigations concerning complaints of misconduct and to communicate to the Disciplinary Administrator any information he may have affecting such matters.
A panel hearing on the complaint was held on December 1, 1992. Although notice of the hearing had been sent to respondent’s last registered address in Wichita, Kansas, respondent failed to appear at the hearing either in person or by counsel. The Disciplinary Administrator’s exhibits were accepted into evidence. Three witnesses appeared on behalf of the Disciplinary Administrator’s office. They were Edward Spencer, Carol Johnson, and Tom Basinger. There was no evidence presented on behalf of the respondent.
Thereafter, the hearing panel made the following relevant findings of fact:
The respondent is currently suspended from the practice of law for a period of one year, with the petition requirements of Rule 219 (1992 Kan. Ct. R. Annot. 180). See In re Wood, 251 Kan. 832, 840 P.2d 519 (1992).
Reports of the attorneys appointed to investigate the three claims reflect that the respondent did not in any way cooperate in their respective investigations.
Regarding Count I, Edward Spencer testified that the respondent accepted payment for handling a child support matter. The matter involved the filing of an agreed order for payment of past due support and adjusted child support. The parties gave respondent all necessary information, and he did not file the order.
Mr. Spencer requested, on numerous occasions, that Mr. Wood give him his file. The respondent did not provide the file to Mr. Spencer.
With regard to Count II, the respondent accepted a fee from Carol Johnson to file a Chapter 7 bankruptcy on her behalf. The bankruptcy petition was signed by Ms. Johnson in the respondent’s office on May 21, 1991, but it was not filed by the respondent until July 30, 1991. During the time between the signing of the bankruptcy petition and the filing of the bankruptcy petition, a judgment creditor filed a garnishment against Ms. Johnson’s employer. Ms. Johnson, upon the advice of the respondent, took the garnishment to respondent’s office and delivered it to him. The respondent assured her that everything would be taken care of. A judgment was entered against her employer as the garnishee defendant and a garnishment of her employer’s funds ensued.
The respondent did not return Ms. Johnson’s numerous phone calls and avoided her calls.
With regard to Count III, the respondent was retained by Tom Basinger to file a Chapter 13 bankruptcy. Mr. Basinger paid respondent $220 to begin this work. On or about April 15, 1992, the petition was completed. Mr. Basinger attempted to contact the respondent on numerous occasions after signing the bankruptcy petition to inquire as to whether the bankruptcy had been filed and the stay entered to require Mr. Basinger’s creditors to halt their collection efforts. The respondent did not return Mr. Basinger s frequent phone calls. The respondent finally met with Mr. Basinger, after Mr. Basinger had waited in respondent’s office for 4 hours, on June 22,. 1992. At this time, the respondent told Mr. Basinger the bankruptcy petition had not been filed. Mr. Basinger told the respondent that he was going to report him to the State Board for Discipline of Attorneys. The respondent told Mr. Basinger that if he would agree not to report him, he would do the bankruptcy for free.
The bankruptcy was filed on June 23, 1992. Mr. Basinger requested that the respondent give him his file. The respondent indicated that he did not have his file at that time. The file was not provided to Mr. Basinger.
Another attorney completed the bankruptcy.
The hearing panel found by clear and convincing evidence that the respondent (1) had failed to cooperate in the investigation of each of these three matters, (2) had not communicated properly with any of the three complainants, (3) was dilatory in making the appropriate court filings on behalf of each of the three complainants, and (4) had failed to conclude work for which he was retained.
The hearing panel concluded there was clear and convincing evidence that the respondent had violated MRPC 1.3, MRPC 1.4, and Supreme Court Rule 207.
There was no evidence presented in mitigation. The hearing panel concluded the evidence in aggravation was overwhelming. It Cited respondent’s current suspension from the practice of law and that respondent had in all ways and at all times failed to cooperate in the investigation of the pending matters. It found respondent had shown a pattern of not communicating with clients and not being diligent in his handling of their matters.
Based upon these findings and conclusions, the hearing panel recommended that the respondent be disbarred from the practice of law in the State of Kansas.
We agree with the recommendation of the hearing panel.
It Is Therefore Ordered that Timothy P. Wood be disbarred from the practice of law in Kansas and that he shall comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that costs be assessed to respondent and that respondent pay the costs of this proceeding forthwith.
It Is Further Ordered that this order of disbarment be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Six, J.:
This driver’s license suspension case concerns a sobriety checkpoint vehicle stop. The first impression single issue is whether a Kansas statute authorizing such a stop is a prerequisite to the stop’s validity?
Anthony Byer Davis, who was stopped at a sobriety checkpoint, refused a breath test. His driving privileges were administratively suspended for one year under K.S.A. 8-1001, et seq. (the “implied consent” statute).
Davis sought judicial review of the suspension. The district court vacated the suspension, reasoning that specific legislative authorization is a prerequisite to a valid stop. The Kansas Department of Revenue (KDR) appeals.
Our jurisdiction arises from the grant of a motion to transfer from the Court of Appeals under K.S.A. 20-3017 and Rule 8.02 (1992 Kan. Ct. R. Annot. 40).
The standard of review is unlimited because the issue involves the selection, interpretation, and application of a question of law. See Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1992).
We find the sobriety checkpoint stop lawful and reverse the trial court. Specific legislative authorization is not a prerequisite to the validity of sobriety checkpoint stops.
Facts
A sobriety checkpoint was conducted in April 1991, in Lea-wood, Kansas, between 11:00 p.m. and 2:00 a.m., as a joint effort of the police, the sheriff, and the highway patrol. The.checkpoint was established according to the factors announced in State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174 (1983) (the checkpoint in the present case also complied with the guidelines of an attorney general opinion and a department of transportation manual). Supervisors from the sheriff s office observed the operation to ensure safety and compliance with the Deskins factors.
Police officers stopped 255 motorists. Seven DUI arrests were made. Six alcohol breathalyzer tests were administered and two refusals occurred (including that of Davis). The average detention time for motorists who were not held further for testing was 30.9 seconds.
At trial, Davis confirmed that he and his friend had split a “couple of pitchers of beer” about an hour before the stop. Although the trial judge held the stop invalid, he determined that the checkpoint satisified the Deskins factors and “was properly conducted ... so as to preclude the exercise of unbridled discretion by the officers involved.”
Is Specific Statutory Authority Required To Stop A Vehicle At A Sobriety Checkpoint?
The trial judge began his analysis of the statutory prerequisite issue by noting that “[t]he stop of a motorist at a DUI checkpoint must be both authorized by the legislature and conducted in a constitutional manner.” He concluded that there was no constitutional infirmity with respect to the conduct of the DUI checkpoint.
The stop of Davis’ car was determined to be unlawful because there is no specific statutory authority in Kansas authorizing sobriety checkpoint stops. The trial judge characterized the issue as one of first impression in Kansas; consequently, three cases from other states were relied upon to craft his decision: Nelson v. Lane, 304 Or. 97, 743 P.2d 692 (1987); Comm. v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); and Pimental v. Department of Transportation, 561 A.2d 1348 (R.I. 1989).
The three sister state decisions are not controlling on the case at bar. In Pimental, a divided Rhode Island Supreme Court held that DUI checkpoints operate without probable cause or reasonable suspicion and, even if valid under the federal Constitution, violate the Rhode Island Constitution.
We have reasoned that the Kansas Constitution Bill of Rights § 15 provides the same protection as the Fourth Amendment to the United States Constitution. State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963).
The Pimental court observed that states supporting the constitutionality of roadblocks usually find that drunk driving problems outweigh privacy interests, citing Deskins. However, the court held the Rhode Island constitution grants greater protection from searches and seizures of this nature. 561 A.2d at 1352-53. The dissent in Pimental endorsed the Deskins rationale that checkpoint regulation, with strict standards, can properly balance the interests of public welfare against the individual’s constitutionally mandated right to privacy. 561 A.2d at 1353-55.
In Tarbert, the second case cited by the trial judge, a divided Pennsylvania court determined that sobriety checkpoints were prohibited by a statute then in effect which permitted police officers to stop motorists only when they had articulable and reasonable grounds to suspect a violation of motor vehicle laws. The legislative background of the Pennsylvania vehicular stop statute may, in part, explain Tarbert’s conclusion that the statute was a limitation upon police authority. The Pennsylvania statute in question did not originate as a codification of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The statutory basis for the Tarbert decision is not applicable in the case at bar. Chief Justice Nix, in Tarbert, implied that in the absence of Pennsylvania’s legislative activity, the checkpoint would probably have been upheld, based upon “the full [panoply] of police power . . . available.” 517 Pa. at 296-97, n.2.
Nelson, the third case relied on by the trial judge, was resolved by interpreting the Oregon Constitution. Chief Justice Peterson dissented, citing Deskins and arguing that proper restrictions could adequately protect the public’s right to privacy. 304 Or. at 112, 118-19, 128-29. Nelson is a civil case, in which the plaintiff sought damages against the law enforcement officers who conducted a sobriety checkpoint. The plaintiff in Nelson was stopped but not arrested. The Oregon court was forced to rationalize its holding in Nelson with its prior holding in State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980), cert. denied 451 U.S. 972 (1981). Tourtillott upheld game law violation checkpoint stops absent authorizing statutes. The Tourtillott court declined to determine the unraised question of whether the absence of an authorizing statute prohibited the use of checkpoint stops.
We do not find the triad of authorities relied on by the trial court persuasive.
Deskins and Sitz, The Controlling Cases
Two cases resolve the issue before us. In State v. Deskins, 234 Kan. 529, we determined that sobriety checkpoints could be constitutional under the United States Constitution Fourth Amendment and the Kansas Constitution Bill of Rights § 15. Thirteen factors were found relevant in balancing State interests against intrusion upon individual rights. The Deskins factors were followed in the case at bar.
The United States Supreme Court in Michigan State Police Dept. v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990), resolved the question of the constitutionality of sobriety checkpoints under the Fourth Amendment. The Sitz court held that Michigan’s interest in preventing drunken driving outweighs the degree of intrusion on the individual motorists who are briefly stopped. 496 U.S. at 455. Sitz recognized a distinction between a Terry stop and a systematic roadside checkpoint stop. Such a checkpoint stop was found to be constitutional and falls outside the Terry analysis. Sitz rests on a branch of Fourth Amendment jurisprudence in which the Court employs a balancing test to evaluate the constitutionality of various police stop situations. See, e.g., Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979) (conviction under Texas law of defendant who refused to identify himself when stopped by the police violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity); United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) (upholding checkpoints for detecting illegal aliens).
The trial judge in the case at bar analyzed Kansas statutory authority for a checkpoint stop. K.S.A. 1991 Supp. 22-2402(1) was advanced as the controlling statute.
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”
The trial judge characterized K.S.A. 1991 Supp. 22-2402(1) as an exclusionary rule.
K.S.A. 1991 Supp. 22-2402 is “commonly referred to as the stop and frisk statute.” State v. Hamilton, 222 Kan. 341, 344, 564 P.2d 536 (1977). We have stated that the statute is a codification of Terry v. Ohio. State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 (1991).
The fact that evidence may be suppressed when the statute is applicable and is violated does not compel a determination that the statute applies in all stop situations. In the case at bar, the statute is not applicable. “Stop and frisk” statutes were enacted to apply to situations where individual motorists are stopped based upon a particularized reasonable suspicion of criminal activity. Roadblock stops according to a plan embodying explicit, neutral limitations on the conduct of individual officers are in a separate category. The initial inquiry should be, “Does the statute apply?” If the stop and frisk statute does not apply, then any exclusionary effect, with regard to violations of that statute, is irrelevant.
The stop and frisk statute provides objective guidance for the determination of the constitutionality of police conduct within the context of the investigatory stop and frisk. The history of the statute neither supports a claim that it governs all types of police contact with citizens nor a claim that it functions as a general exclusionary rule. We reason that all specifics of police enforcement methods need not be legislated.
Davis misreads two cases as supporting his exclusionary rule view. State v. McKeown, 249 Kan. at 514, and State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987), aff’d 242 Kan. 803, 751 P.2d 1041 (1988). Neither McKeown nor Kirby supports Davis’ claim. Kirby discusses K.S.A. 22-2402 as a codification of the Terry “stop and frisk” standard. 12 Kan. App. 2d at 352. Kirby involved the probable cause stop of an individual driving a truck and the subsequent search of that truck. McKeown recited the Kirby analysis and concluded that substantial evidence supported the trial court’s suppression of evidence obtained as a result of an auto stop search. 249 Kan. at 514. Like Kirby, McKeown involved the stop of a specific pickup truck, not a random stop at a Deskins roadside checkpoint.
KDR argues that State v. Garcia & Bell, 210 Kan. 806, 504 P.2d 172 (1972), a parking meter theft case, controls the case at bar. The police in Garcia <b Bell, after observing suspicious activity around some parking meters, stopped the suspects and ultimately searched a car which was at the scene. Garcia and Bell claimed that the evidence obtained was the result of an illegal search and seizure. We reasoned: “[Ojur own statute [K.S.A. 1971 Supp. 22-2501] was intended only to furnish guidelines to officers and courts as to one method of making a valid, warrantless search. We hold that it does not prohibit other warrantless searches which comport with the constitutional requirement of reasonableness.” 210 Kan. at 811.
Garcia & Bell teaches that legislation in one area concerning warrantless searches does not act to forbid all other types of search activity. Interpretation of K.S.A. 1991 Supp. 22-2402(1), as a general exclusionary rule, goes beyond the plain meaning of the statute and is contrary to the interpretive approach expressed in Garcia & Bell.
Other jurisdictions have upheld the validity of checkpoint stops in the absence of explicit statutory authority, Ingersoll v. Palmer, 43 Cal. 3d 1321, 241 Cal. Rptr. 42, 743 P.2d 1299 (1987); Orr v. People, 803 P.2d 509, 512 (Colo. 1990); People v. Estrada, 68 Ill. App. 3d 272, 386 N.E.2d 128, cert. denied 444 U.S. 968 (1979).
Sobriety checkpoints are an exercise of generally authorized police powers. The DUI checkpoint cases represent another line of warrantless stops which can take place in accordance with the enforcement of DUI legislation. Deskins was decided in 1983. The legislature has had ample opportunity, if it so desired, to either alter Deskins by establishing the prerequisite of specific statutory authority or to prohibit sobriety checkpoint use. (We note legislative action on: [1] vehicle mechanical condition “spot inspection” by the Kansas Highway Patrol, K.S.A. 8-1759 and [2] vehicle stops by uniformed highway patrol members for safety as well as equipment compliance, K.S.A. 8-1759a.)
Reversed. The driving privilege suspension order is reinstated. | [
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|
The opinion of the court was delivered by
Six, J.:
This is a family law first-impression case concerning a claim of visitation rights by an unrelated third party. Dianne Hofmann appeals the dismissal of her petition to allow visitation with a four-year-old minor, Senator J. Christopher Hood. Dianne asserts standing under the grandparent visitation statute, K.S.A. 38-129. She also advocates the creation of a common-law right of visitation for third parties when two conditions are met: (1) Visitation is in the child’s best interests, and (2) there has been a substantial relationship between the child and the third party seeking visitation. Dianne is not related to Christopher by blood or marriage. She is not a grandparent. She was Christopher’s day care provider. Dianne seeks a court order enforcing visitation with Christopher against the wishes of Christopher’s mother. The trial court granted the mother’s motion to dismiss.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals upon our own motion).
Our scope of review limits the area we may question when a motion to dismiss has been granted. See Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992). In the case at bar, we look to the well-pleaded facts of Dianne’s petition. We assume that (1) visitation with Dianne would be in Christophers best interests and (2) a substantial relationship exists between Christopher and Dianne.
Our standard of review, i.e., the legal scale we use in weighing the sufficiency of her claim, is unlimited when we are reviewing a conclusion of law. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). (We note that neither party complied with Supreme Court Rules 6.02 or 6.03 [1992 Kan. Ct. R. Annot. 25, 26], concerning citation to the record in briefs.)
We find no error and affirm.
Dianne’s Contentions
K.S.A. 38-129 provides:
“(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent has been established.”
Dianne alleges: (1) Christopher is an unmarried minor; (2) visitation with Dianne would be in Christopher’s best interests; (3) there is a substantial relationship between Christopher and Dianne; (4) the “grandparent like” relationship is based on the fact that Christopher is a half brother to Dianne’s grandson, Johnnie (Rhonda, Christopher’s mother, is also Johnnie’s mother. Dianne’s son, who is Johnnie’s father, was once married to Rhonda). In the alternative, Dianne alleges that the action is an original one based on a common-law right of visitation between a minor and a third party. She argues that this common-law right is supported by statutes and case law from other states and on the fact that in Kansas, interested third'parties are notified of a child in need of care (CINC) action.
Rhonda’s motion to dismiss asserted (1) Dianne is not a grandparent and (2) Dianne has conceded that Kansas does not rec ognize a common-law third-party visitation right. The trial court was unwilling to either extend the term “grandparent” in K.S.A. 38-129 to include “grandparent like” or to recognize a common-law right of visitation.
Creation of a Common-Law Right
Dianne asserts that other jurisdictions have allowed third-party visitation with minor children. Specifically, she argues that grandparents have been allowed to assert an independent visitation claim. She relies on Roberts v. Ward, 126 N.H. 388, 493 A.2d 478 (1985). In Ward, the New Hampshire Supreme Court reasoned that the legislature authorized grandparent visitation rights in marital dissolution cases involving the traditional two-parent family; consequently, it made little sense not to recognize a similar right in a nontraditional family. The Ward court used its parens patriae power to decide whether visitation with grandparents, to whom close personal attachments had been made, would be in the best interests of the child. 126 N.H. at 391-93. Ward cannot be read as a justification for the invocation of our parens patriae power to grant relief to Dianne, who is not a grandparent. Dianne has not cited any case factually similar to the case at bar that supports her claim. Our independent research has failed to locate such a case.
As one author explained:
“Courts can only assert themselves if a parent: asks for determination of paternity; wants to end the marriage; dies; or
has abused, neglected, or endangered the child.
“There is no mechanism for a third party to intervene in the relationships of an intact family that has not subjected itself to judicial intervention or failed society’s minimal requirements for adequate parenting.” Morris, Grandparents, Uncles, Aunts, Cousins, Friends: How is the court to decide which relationships will continueP, 12 Family Advocate 11 (Fall 1989).
Dianne next argues that stepparent case law from other jurisdictions advances her contentions in support of visitation. Dianne’s argument erodes her claim. K.S.A. 1992 Supp. 60-1616(b) gives a trial court discretion to grant stepparents, as well as grandparents, visitation rights in connection with a divorce action. The cases cited by Dianne all deal with a situation in which a stepparent sought visitation in connection with either a divorce or the death of a biological parent. In fact, in Collins v. Gilbreath, 403 N.E.2d 921 (Ind. App. 1980), the court limited its holding: “Nor do we intend to open the door and permit the granting of visitation rights to a myriad of unrelated third persons, including grandparents, who happen to feel affection for a child.” 403 N.E.2d at 923-24.
Dianne concludes by asserting that a decisional trend is developing which allows some form of third-party visitation. According to Dianne, we should follow the trend. We decline the invitation to judicially create a right of unrelated third-party visitation. The Kansas Legislature has granted visitation rights to grandparents and stepparents but has not spoken with regard to other unrelated third parties. K.S.A. 38-129 does not grant standing to an unrelated third party who claims to be “grandparent like.”
Dianne observes that Kansas allows nonparents a right to be considered for placement in a CINC proceeding (K.S.A. 1992 Supp. 38-1563[d][l]). She asserts that the CINC proceeding is significant because it: (1) allows a nonrelative to be considered for custody placement; (2) cites the best interests of the child standard for nonrelative placements; and (3) uses the phrase “close emotional tie,” which is nearly the same as “substantial relationship.” Dianne believes that the statutory elements involved in a CINC action can be extended to the case at bar. We do not agree. CINC proceedings are not relevant. K.S.A. 1992 Supp. 38-1563(d)(l) only applies in situations where the child is at risk of being harmed. A CINC action is a civil action brought by the State to make certain a child is placed in a stable home environment. The case at bar does not involve a child in need of care.
Parents have a constitutionally protected right to determine how their children will be raised. See Santosky v. Kramer, 455 U. S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Rhonda clearly has the right to determine how Christopher will be raised, absent justified state intrusion. The legislature must decide if and when intrusion into the protected family unit, in the form of third party visitation, is justified by a legitimate state interest. “There are no inherent rights of third parties to have custody or guard ianship of a child.” Victor, When Third Parties Come First— Asserting the Custodial Rights of Nonparents, 12 Family Advocate 8, 9 (Fall 1989). A similar analysis applies in the visitation context.
We recognize that there are policy and value rationales which support a third-party visitation claim. The nature of the family structure in this country has evolved significantly during the past 50 years. Statistics which signal a change in the family structure have been noted.
“This phenomenon about who we were — the intact nuclear family during the first seven decades of this century — and what we have become in the last two decades — the “blended family’ — is a subject of everyday life which now faces virtually every American. We are either stepchildren, stepsiblings, stepmothers, stepfathers, stepgrandparents, or inends, relatives, or fellow employees of someone who is part of a blended family. There is no escaping the twenty-first century family. ‘We. . . all have to work toward changing our internal maps of what a family should be.’ ” Buser, Introduction: The First Generation of Stepchildren, 25 Fam. L. Q. 1, 2 (1991).
The evolving nature of the parental unit in our society acknowledges that an unrelated third party may act as the child’s psychological parent. The realities of modern life mean that individuals like Dianne may end up caring for a child for weeks, months, or even years, and then have the natural parents take the child back and, for whatever reason, abruptly end a relationship that is important to the child. It could be the only stable relationship the child has known. However, even if the importance of furthering the relationship is conceded, we must consider whether it is for this court or for the legislature to establish an unrelated third-party visitation right.
Additional policy implications may weigh against the creation of such a right. If a day care provider can be granted visitation rights, then other parties, such as friends of parents, may also file visitation petitions. Consequently, recognition of the right arguably could result in an increase in the intrusion by courts into family life. In fact, an unrelated third party could abuse the procedure, using the court system to harass parents. The lack of family connection as a limitation on standing could invite increased litigation in the family law area.
We have considered all of the other contentions advanced by Dianne and conclude that they are without merit. We will not create a new common-law right of third-party visitation. The legislature is the forum to entertain sociological and policy considerations bearing on the well-being of children in our state. Any expansion of visitation rights to unrelated third parties ought to originate with the legislature.
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|
The opinion of the court was delivered by
Holmes, C.J.:
Randy E. Snodgrass appeals from his convictions by a jury of aggravated kidnapping (K.S.A. 21-3421), rape (K.S.A. 21-3502), aggravated sodomy (K.S.A. 21-3506), and aggravated assault (K.S.A. 21-3410). The issues on appeal involve the admission in evidence of the defendant’s statement to police and the denial by the trial court of a request for a continuance so that the defendant could obtain DNA testing. We affirm.
On November 1, 1990, at approximately 11:50 a.m., T.H. left her parents’ home in Lawrence to attend an employee luncheon banquet. She placed her two-week-old daughter in her car and, while preparing to get in the driver’s side, heard Randy E. Snodgrass call her name. She recognized him as the son of a woman who lived across the street from her parents. Snodgrass told T.H. that his mother had fallen in the house and asked for her help. T.H. hesitated but then followed Snodgrass into the house. When she realized that Snodgrass’ mother was not in the house, T.H. attempted to leave but was knocked to the floor and attacked. T.H. testified that Snodgrass jumped on top of her, pulled a knife from his back pocket, and held it against her throat. He forced her into a bedroom, ripped off her clothing, forced her to perform oral sex, and raped her. He also struck her several times. Upon allowing T.H. to leave he threatened to kill her family if she told anyone what had happened.
Later that day, T.H. reported the incident to her gynecologist, who, sent her to Lawrence Memorial Hospital. At the hospital, a. sexual assault collection kit was performed, and a police officer questioned T.H. about the incident. During the questioning, T.H. named and described her attacker and gave the officer the address of the defendant’s parents’ house where the incident occurred.
At 9:00 a.m. on November 2, 1990, Detectives David Davis and David Reavis proceeded to the address given by T.H. and at approximately 9:50 a.m. found the defendant hiding in a crawl space under the house. As the defendant emerged from the crawl space, Detective Davis drew his gun and pointed it at Snodgrass. Detective Davis testified that, based on the initial report of the assault and rape, he had reason to believe the defendant was possibly dangerous and armed with a knife. Detective Davis then placed Snodgrass under arrest and took him to the Law Enforcement Center (LEC) for interrogation. At 10:10 a.m. Snodgrass was advised of his Miranda rights. Snodgrass stated he understood his rights and agreed to waive them. He was then questioned about the alleged crimes. Additional facts will be set forth as required for consideration of the issues raised on appeal.
In his first issue, the defendant asserts that the trial court erred in not suppressing the defendant’s statement given to the Lawrence police. In that statement defendant admitted he had forcibly raped and sodomized T.H.
Prior to trial, defense counsel filed a motion to suppress defendant’s confession on the grounds that the confession was not the product of defendant’s free and uncoerced will. Additionally, defense counsel maintained that the defendant was under the influence of alcohol and/or drugs and thus incapable of making a free and voluntary decision to waive his constitutional right to remain silent. Defense counsel also maintained defendant’s mental state rendered him unable to freely and voluntarily waive his constitutional rights.
On January 2, 1991, the trial court held a Jackson v. Denno suppression hearing to determine whether the defendant’s confession was made voluntarily. The trial court, after reviewing all the evidence presented, found defendant’s statements were voluntarily made after being advised of his rights, understanding his rights, and waiving his rights. At the suppression hearing Detective Davis testified on behalf of the State, while the defendant presented testimony from Detective Reavis, Dallas Murphy, and the defendant.
Detective Davis testified that when Snodgrass emerged from the crawl space, his voice was clear and distinct. Thereafter, the defendant seemed somewhat shaky and was assistéd by the detectives in walking to the police car after the arrest and in walking into the LEC. After his arrival at the LEC, the defendant began talking in soft tones, but answered questions in a thoughtful manner, usually taking a considerable length of time before answering. Detective Davis testified that the defendant did not appear to be under the influence of alcohol or drugs, his speech' was clear and coherent throughout the majority of the interview, he responded to questions thoughtfully, and he had no problems responding to specific questions; Detective Davis testified he had no problems understanding the defendant’s answers. Davis further testified that upon arrival at the LEC, the defendant was advised of his Miranda rights at 10:10 a.m., which was prior to any interrogation about the alleged crimes. After being read the Miranda rights the defendant responded in the affirmative when asked if he understood his rights and if he was willing to waive them and talk to the detectives. The defendant never asked for an attorney and at no time invoked his right to remain silent. During the interview the defendant asked for cigarettes and, after receiving a Coca-Cola and cigarettes, he confessed to the assault, sodomy, and rape. The interview concluded at 12:20 p.m., having lasted less than two and one-half hours.
On cross-examination, Detective Davis testified that he had no prior knowledge that the defendant may have suffered any mental problems, that he did not inquire from the defendant about any prior psychological treatment or hospitalization he may have had, and that he was not aware that defendant had spent 9 or 10 years at Lamed State Security Hospital. Detective Davis did not conclude that the defendant was suffering from a mental illness.
The defense called Detective Reavis, one of the arresting and interrogating officers, as a witness. Reavis testified that when the officers first came into contact with the defendant he was shaking and needed help to get into the LEC and that he was nervous and somewhat incoherent but calmed down and was coherent during most of the interview. Reavis further testified no inquiry was made during the interview about the mental history or condition of the defendant and that Reavis had no knowledge of any mental illness suffered by the defendant or other members of defendant’s family. On cross-examination, Reavis testified the defendant had settled down at the time he was advised of his constitutional rights, that defendant' seemed to understand his rights and the questions propounded to him and that he gave logical, rational responses to the questions. Reavis testified he saw no indication that the defendant might be intoxicated or under the influence of drugs or alcohol. He further testified the defendant was not threatened or coerced in any way and that no. promises were made to the defendant.
Dallas Murphy, the Douglas County jail administrator for the sheriffs office, was also called as a witness for the defendant. He testified he saw the defendant twice on November 2, 1990, at the LEC and the jail. The first time, the defendant was being escorted down the hall by Detective Davis and another officer. The officers had the defendant by the arms and the defendant was walking in a bent over, shuffling manner. Later, at about 3:00 p.m., Murphy observed the defendant when he was booked into the jail by another officer. Defendant was still shuffling along, appeared to be depressed, and mumbled when he spoke. On cross-examination, Murphy testified his encounters with the defendant were brief, he was not present during the interrogation of the defendant, he did not book the defendant into the jail, and he had not engaged the defendant in extended conversation.
The defendant testified in his own behalf and stated he remembered very little about the arrest or the proceedings that took place at the LEC. He did testify that when ,he left New Mexico on October 31, he drank some whiskey and while hitchhiking to Oklahoma City on his way to Lawrence he was given some pills, probably speed, by a driver who picked him up. He then testified at some length about his history of mental illness, his treatment in various hospitals, and his drug and alcohol abuse. On cross-examination, he admitted he had not been threatened by the officers and that no promises were made to him.
Following argument by counsel, the trial court found that the statement given by the defendant was “voluntarily made after being advised of his rights, understanding his rights, and waiving his rights, and agreeing to visit with the interrogator.” The motion to suppress the defendant’s statement was denied and at trial Detective Davis testified at length about the contents of the statements made by the defendant.
At the outset we note that the defendant did not seriously assert in oral argument before this court, or in his brief, that he was under the influence of alcohol or drugs at the time his statement was taken by the Lawrence police. A review of the record reveals no substantial or credible evidence of any such impairment, and we deem that argument to have been abandoned.
Defendant’s initial argument is twofold. First, the defendant argues that his confession was not voluntary but instead was the result of “an inherently coercive situation acting upon his mental illness.” Specifically, defendant contends the police intimidated him during the arrest and interrogation and coerced his confession, in violation of the Due Process Clause of the Fourteenth Amendment. Second, defendant claims that he did not knowingly and intelligently waive his Miranda rights and that the trial court erred in failing to make a specific finding of a knowing and intelligent waiver.
The standard of review in determining whether a defendant’s statement was freely, voluntarily, and knowingly given was recently set forth in State v. Clemons, 251 Kan. 473, Syl. ¶ 2, 836 P.2d 1147 (1992), where we stated:
“When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused; determines the statement was freely, voluntarily, and knowingly given; and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. State v. Zuniga, 237 Kan. 788, Syl. ¶ 3, 703 P.2d 805 (1985).”
Defendant, in a rambling brief that deals rather loosely with the facts, appears to contend that his arrest at gunpoint coupled with his mental problems resulted in his statement being coerced and involuntary. We find nothing unwarranted or coercive, in the legal sense, about defendant’s arrest at gunpoint. Detectives Davis and Reavis had information, prior to the apprehension and arrest of defendant, that he might be armed with a large knife and was potentially dangerous. The officers were following proper precautionary procedures in initially arresting defendant at gunpoint. As soon as the defendant emerged from the crawl space and was handcuffed, the weapons were returned to their holsters and not used again. Additionally, there is absolutely no evidence of any coercion prior to and during the interrogation at the LEC.
Both the defendant and the State agree that coercive police or State activity is a necessary predicate to a finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Both cite Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986), for this proposition. In Colorado v. Connelly, Connelly approached a police officer and confessed to a murder. The police officer advised Connelly of his Miranda rights, which Connelly stated he understood. At the police station, Connelly gave a detailed description of the murder and took two officers to the location of the crime. The next day, however, Connelly became disoriented and stated for the first time that “voices” had told him to come to Denver to confess to a murder. A psychiatrist examining Connelly concluded that Connelly, in confessing to the murder, was following what he believed to be the voice of God. The psychiatrist testified that, in his expert opinion, Connelly’s confession was not voluntary because Connelly was suffering from “command hallucinations” that interfered with his “volitional abilities; that is, his ability to make free and rational choices.” 479 U.S. at 161.
The Colorado trial court suppressed Connelly’s statements to the police on the basis that they were an involuntary confession. The Colorado Supreme Court affirmed. The United States Supreme Court held, however, that the Fifth and Fourteenth amendments did not require the suppression of Connelly’s statements. The Supreme Court reasoned that nothing in the record of Connelly’s case gave any indication that the confession was extracted as the result of police coercion or overreaching. 479 U.S. at 165. Without some showing of police overreaching, the due process clause did not require the exclusion of Connelly’s confession, because “[a]bsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” 479 U.S. at 164.
The Court then went on to state:
“Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the ‘voluntariness’ cal cuius. [Citation omitted.] But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’ ” 479 U.S. at 164.
The United States Supreme Court explained:
“[Suppressing respondent’s statements would serve absolutely no purpose in. enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. [Citation omitted.] Only if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained.” 479 U.S. at 166.
In State v. William, 248 Kan. 389, 807 P.2d 1292, cert. denied 116 L. Ed. 2d 89 (1991), this court reviewed at length the standard and factors to be considered in determining whether a confession or statement is voluntary. In William, the defendant was convicted of first-degree murder in connection with the death of a nine-year-old boy. The facts are set forth in great detail in the opinion and need not be repeated here. Suffice it to say William contended that his mental condition, in combination with the facts surrounding his interrogation, rendered his confession involuntary.
This court in William stated the following precepts of law:
“A confession must be voluntary to be admissible. A person’s mental capacity is relevant in determining whether a confession was voluntary. Culombe v. Connecticut, 367 U.S. 568, 602-03, 6 L. Ed. 2d 1037, 81 S.Ct. 1860 (1961). In determining whether a confession is voluntary, a court is to look at the totality of circumstances. Fikes v. Alabama, 352 U.S. 191, 197, 1 L. Ed. 2d 246, 77 S. Ct. 282, reh. denied 352 U.S. 1019 (1957). This court follows that standard. See State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986).” 248 Kan. at 406.
William cited Colorado v. Connelly for the propositions that a defendant’s mental condition is only one factor used in the determination of voluntariness, and, that for the confession to be a violation of the Due Process Clause of the Fourteenth Amendment, the confession must be linked to some coercive activity of the State. 248 Kan. at 408. There is nothing in the evidence in the record now before us which would indicate any coercion by the Lawrence police.
State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990), enumerates several factors which a court may consider in determining whether, under the totality of the circumstances, a confession is voluntary:
“Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Following State v. Prince, 227 Kan. 137, Syl. ¶ 4, 605 P.2d 563 (1980).”
These factors were applied by this court in William, and have recently been recognized in State v. Clemons, 251 Kan. 473, Syl. ¶ 1.
Under the William and Prince factors, the question to be determined is whether, under the totality of the circumstances, there was substantial competent evidence to support the trial court’s finding that the defendant’s confession and statement were voluntary. We have already determined that there was no coercion by the police officers either at the time of arrest or during the interrogation that would render the statement constitutionally inadmissible. As previously stated, the interrogation lasted less than two and one-half hours. The record reflects that the defendant was 29 years old; had the equivalent of a high school diploma; and, despite his mental problems, clearly understood and answered the questions propounded to him. The defendant made no request to “communicate with the outside world” and there is no indication such a request would have been denied. When requested, the defendant was furnished cigarettes and a soft drink. When the Prince factors are applied to the facts of this case, there is no indication that the defendant’s confession was anything other than voluntary.
In Kansas we have recognized that a statement may be involuntary, and thus inadmissible, even without State coercion if the defendant is found to be insane under the M’Naghten test. See State v. Boan, 235 Kan. 800, 804, 686 P.2d 160 (1984). While the defendant does claim that he suffered mental illness, which is borne out by his lengthy history and hospitalizations, he makes no claim that he was insane under the M’Naughten test of insanity at the time of his confession. In fact, after being examined by one or more experts, he abandoned his claim of insanity as a defense prior to trial.
At the close of the suppression hearing, the trial court stated:
“The evidence that we have here really, even from the testimony of the defendant, does not indicate to me anyway that his statements were not voluntary. The substance of his statements here today under oath were basically that he doesn’t remember a lot that occurred during that hearing or during that period of time when he was first arrested. It is true that at one time after his arrest, he was acting somewhat incoherent by the testimony of at least one officer . . . but regardless of his particular physical actions, both in the courtroom and as indicated by the testimony, the testimony is fairly clear that he was given his rights and he was given those rights after he had been given a Coca-Cola to drink and after he had been given cigarettes, which apparently he had requested, and he seemed to calm down, and then his rights were read to him and he seemed to be coherent.
“From all the evidence presented, the Court finds that his statements were voluntarily made after being advised of his rights, and waiving his rights and agreeing to visit with the interrogator. Therefore, his Motion to Suppress is denied.”
In his ruling at the end of the suppression hearing, the trial judge erroneously stated that defendant had been given his Miranda rights “after he had been given a Coca-Cola to drink and after he had been given cigarettes.” From the record it is clear that the defendant was actually advised of his constitutional rights at the start of the interrogation rather than later on. The defendant seizes upon this factual misstatement to assert that the court’s decision implies the defendant was not calm and coherent at the time of the Miranda warnings and prior to receiving the Coke and cigarettes and, therefore, the court committed plain error requiring reversal. We do not find the evidence supports such a conclusion. When the totality of the circumstances is considered, there is abundant substantial evidence supporting the trial court’s finding. The statement of the defendant was voluntarily, knowingly, and intelligently given, and the finding that the defendant waived his constitutional rights is supported by substantial competent evidence. We have considered all of the convoluted arguments of the defendant on the issue of the admission of the defendant’s statement and find them to be without merit.
Defendant next argues that the trial court abused its discretion in not granting the defendant a continuance so as to allow the defendant time to obtain DNA testing.
On March 25, 1991, the trial court held a hearing wherein defense counsel requested, for the first time, that the trial court grant a continuance and allow the defendant to pursue DNA testing of certain samples of body fluids collected during the rape investigation. This request was made two days before the jury trial was scheduled to begin. Defense counsel’s explanation for the delayed request was that he had only become aware one week earlier of a hospital lab report, which showed the presence of semen in the victim’s vaginal fluids. Defendant argued that because the KBI test results were inconclusive, the defendant needed the DNA testing performed to exclude him as a possible donor. He further argued that the DNA results were necessary to impeach the credibility of the victim. The defendant maintained that he did not have sex with the victim, that the victim had previously testified that at the time of the attack she had not had sexual relations since the birth of her child only two weeks earlier, and that the test results might have a bearing on the victim’s credibility as a witness.
On March 26, 1991, both sides made additional arguments to the trial court regarding the need for DNA testing. The trial court noted that the request for DNA testing could have been raised much earlier because the defendant knew of the existence of the rape kit evidence. The trial court also was concerned about a number of uncertainties, including who would pay for the test and whether there was anything that could be examined. Finally, the trial court was concerned with the fact that the case had been continued previously to obtain tests pursuant to defendant’s insanity defense and with the fact that defendant was requesting the continuance only two days before trial. Earlier, the case had been scheduled for trial on February 27, 1991. The day before that trial date, the defendant sought and obtained a continuance for the purpose of obtaining an additional examination regarding his insanity defense. The insanity defense was subsequently abandoned.
Defendant claims that the trial court erred in failing to grant a continuance. State v. McDonald, 250 Kan. 73, 80, 824 P.2d 941 (1992), states:
“K.S.A. 22-3401 provides in part: ‘Continuances may be granted to either party for good cause shown.’ In a criminal case, the granting or denial of a continuance rests in the sound discretion of the trial court. The ruling of the trial court will not be disturbed on appeal absent a showing of an abuse of discretion and a showing of prejudice to the substantial rights of the defendant. State v. Dunn, 243 Kan. 414, 427, 758 P.2d 718 (1988). Discretion is abused only where no reasonable person would take the view adopted by the trial court. State v. Haislip, 237 Kan. 461, 471, 701 P.2d 909 (1985).”
It should be noted that the only ground upon which defendant requested the continuance was to allow for DNA testing. Defense counsel had ample opportunity to request DNA testing long prior to two days before trial. Defense counsel’s decision to wait to request any testing until after receiving the results of the State’s KBI lab results was defense counsel’s own doing. Defendant cannot complain of the consequences of his own actions or inactions.
The trial court had already granted one continuance requested by defendant on the eve of trial. Under the circumstances of this case, it cannot be said that no reasonable person would take the view adopted by the trial judge here. The trial court did not abuse its discretion in refusing to grant the continuance.
Defendant also argues that the trial court abused its discretion in not ordering a DNA test. He contends that the trial court’s refusal to order the DNA testing and to provide funds for such testing interfered with his Fourteenth Amendment right to a fair opportunity to present a defense.
K.S.A. 22-4508 provides, in relevant part:
“An attorney other than a public defender who acts as counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in the defendant’s case may request them in an ex parte application addressed to the district court where the action is pending. Upon finding, after appropriate inquiry in the ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the district court shall authorize counsel to obtain the services on behalf of the defendant. . . . [T]he district court shall determine reasonable compensation for the services and approve payment . . . . ”
State v. Haislip, 237 Kan. 461, 484, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985), sets forth the appropriate standard of review:
“In this state, the granting or denial of a motion to provide funds for investigative services to counsel for an indigent defendant in a criminal prosecution is a matter which rests within the sound discretion of the trial court. K.S.A. 1984 Supp. 22-4508; State v. Frames, 213 Kan. 113, 515 P.2d 751 (1973). The trial court’s ruling will not be disturbed in the absence of a showing that the exercise of its power of discretion has been abused to the extent that a defendant’s substantial rights have been prejudiced.”
See State v. Reynolds, 230 Kan. 532, 534-35, 639 P.2d 461 (1982).
Defendant relies upon State v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991), where this court considered the question whether DNA profiling evidence met the test for admissibility of a new scientific principle as enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In holding that DNA evidence has gained general acceptance in the scientific community and involves scientifically established techniques so as to meet the criteria for admissibility under the Frye standard, 248 Kan. 238, the court did not speak to whether a criminal defendant is entitled to have the testing performed. Deppish simply did not deal with the question of a suspect’s right to obtain last-minute scientific testing at the State’s cost. Indeed, neither this court nor the United States Supreme Court has held that a criminal defendant has an unqualified right to DNA testing.
By defense counsel’s own statements, it appears that DNA testing would have required a minimum of four to eight months and could possibly take as much as one to two years. When it is considered that defendant’s confession was properly admissible, it appears defendant’s request was nothing more than a delaying tactic and fishing expedition. No prejudice to the defendant has been shown, nor has an abuse of discretion been shown on this issue.
We have carefully considered the entire record in light of the-issues and arguments propounded by the defendant and find them to be without merit.
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|
Per Curiam:
A formal disciplinary complaint was brought against David W. Carson on May 23, 1990, in connection with his financial and legal dealings with a client, Thelma L. (Sue) Phillips. This discipline case is the second appearance of Carson before us as a result of his relationships with Phillips. In Phillips v. Carson, 240 Kan. 462, 731 P.2d 820 (1987) (Carson I), the trial court entered summary judgment against Carson, finding that he had been professionally negligent. In Carson 1, we stated, in affirming summary judgment: “We agree with the trial court that Carson’s extensive breaches of the Code of Professional Responsibility proximately cased injury to his client, and that she sustained substantial actual damages.” 240 Kan. at 478.
As to the complaint in this disciplinary case, a hearing panel of the Kansas Board for Discipline of Attorneys (the panel) unanimously determined that Carson violated:
DR 1-102(A)(1) and (6) (1992 Kan. Ct. R. Annot. 189):
“A lawyer shall not: (1) Violate a Disciplinary Rule. ... (6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
DR 5-101(A) (1992 Kan. Ct. R. Annot. 209):
“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.”
DR 5-104(A) (1992 Kan. Ct. R. Annot. 210):
“A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.”
DR 6-101(A)(3) (1992 Kan. Ct. R. Annot. 214):
“A lawyer shall not: ... (3) Neglect a legal matter entrusted to him.”
DR 7-101(A)(l) and (3) (1992 Kan. Ct. R. Annot. 219):
“A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. . . . “(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).”
and DR 7-102(A)(8) (1992 Kan. Ct. R. Annot. 219):
“In his representation of a client, a lawyer shall not: ... (8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.”
The panel considered evidence in mitigation and unanimously recommended that Carson be disciplined by suspension from the practice of law for a period of two years pursuant to Supreme Court Rule 203(a)(2) (1992 Kan. Ct. R. Annot. 153). Carson has filed exceptions to both the findings and the discipline recommended.
We have examined the record and find substantial competent evidence to support the findings of fact and conclusions of law of the panel, which we unanimously adopt.
“FINDINGS OF FACT
“The panel unanimously concludes that there is clear and convincing evidence to establish the following findings of fact:
“1. Respondent is an attorney at law. . . .
“2. On March 28, 1984, Thelma L. (Sue) Phillips commenced civil litigation against Respondent in the District Court of Johnson County, Kansas, in the case of Thelma L. Phillips v. David W. Carson, et al., Case No. 129,377. Mrs. Phillips was granted judgment against the Respondent in the amount of $378,107.45 plus interest from May 9, 1985, at the statutory rate. The lawsuit against the Respondent was based upon his allegedly negligent handling of legal duties associated with personal loans which the Respondent obtained from Mrs. Phillips, a client and friend. The Honorable Lewis C. Smith, Judge of the District Court of Johnson County, Kansas, entered summary judgment for Mrs. Phillips against the Respondent on September 2, 1985.
“3. Respondent appealed the granting of summary judgment against him. The Kansas Supreme Court affirmed the ruling against Respondent in the case of Phillips v. Carson, 240 Kan. 462, 731 P.2d 820 (1987). In the decision of the Court authored by Justice Robert H. Miller, the Kansas Supreme Court held that Respondent’s ‘extensive breaches of the Code of Professional Responsibility proximately caused injury to his client, and that she sustained substantial actual damages.’ 240 Kan. at 478.
“4. The findings of the Kansas Supreme Court as set forth in the case of Phillips v. Carson, 240 Kan. 462, 731 P.2d 820 (1987), are adopted in their entirety and incorporated by reference as if fully set forth in this Report.
“CONCLUSIONS OF LAW
“Respondent’s actions with respect to the handling of legal matters on behalf of Thelma L. (Sue) Phillips do amount to a violation of [the Canons previously referenced].”
A majority of the court disagrees with the panel’s discipline recommendation. Suspension from the practice of law for a period of one year under Rule 203(a)(2) is the discipline imposed by a majority of the court.
The issues are: (1) Was Supreme Court Rule 202 (1992 Kan. Ct. R. Annot. 152) properly applied; (2) was Carson’s motion to dismiss erroneously denied; (3) were the Disciplinary Administrator’s exhibits (Phillips’ affidavit and her suggested findings submitted to the trial court in Carson I) properly admitted into evidence; (4) did delay in filing the complaint and bringing the matter to hearing prejudice Carson, making the imposition of discipline inequitable; (5) did the evidence presented meet the clear and convincing standard, which is required for a finding of attorney misconduct; (6) should a new hearing before a different disciplinary panel have been ordered following one member’s recusal; (7) would the imposition of discipline violate Carson’s rights secured by the federal Bankruptcy Code and the Supremacy Clause of the United States Constitution; and (8) is the discipline recommended by the panel more harsh than justified by the facts?
Facts
The Disciplinary Administrator’s Office claimed that the hearing panel should look at Carson 1 and apply our Rule 202. Among other things, Rule 202 states: “All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to their validity. The burden shall be on the respondent to disprove the findings made in the civil judgment.” Carson objected to the use of Rule 202. The panel made no explicit statement in the final hearing report regarding its decision as to the applicability of Rule 202. However, the panel unanimously adopted the findings of Carson I in their entirety and incorporated them by reference in the final hearing report. In Carson I, we observed that Carson had not challenged “any of the facts relating to his conduct and business and professional relationship with Mrs. Phillips” or “the accuracy of the 29 paragraphs of findings of fact included within the trial court’s order.” 240 Kan. at 473. The findings in Carson I explain the factual details of Carson’s dealings with Phillips. 240 Kan. at 467-70 (the reader is referred to Carson I for a fuller understanding of the Carson-Phillips, attorney-client, borrower-lender, mortgagor-mortgagee relationships). Other findings of fact appear in the panel’s final report.
Carson filed a response during the investigation of the complaint. The first hearing was conducted on October 30, 1990, before a disciplinary panel appointed by the Chair of the Kansas Board for Discipline of Attorneys (KBDA). The panel members were Robert E. Nugent, III, Ann L. Hoover, and Michael J. Grady, Chair.
The Disciplinary Administrator called Mark Gunnison as a witness. Gunnison is a member of the law firm (McDowell, Rice and Smith, Chartered) that filed the attorney malpractice suit for Phillips against Carson. Phillips was called to testify during the presentation of Carson’s evidence. She indicated that she had nothing to do with the disciplinary proceeding and had never wanted such an action to occur. At the time of her testimony before the panel, Phillips, due to health problems, was under the guardianship of her brother. Phillips also stated that at the time she made the first loan to Carson, she felt free to consult another attorney and that no one had ever suggested that she should not do so.
Carson testified that he did not solicit Phillips, his client, for the $200,000 loan. He only told her that he was having a terrible time financially, and she asked him if he wanted a loan. Carson also stated that he did not feel it was necessary to tell Phillips to see another attorney because he knew that she was acquainted with many lawyers with whom she could discuss the loan transaction. He testified that he never discouraged Phillips from contacting another attorney about the transaction. Carson also stated that he did not believe he was acting as Phillips’ lawyer in any of the loan transactions. (A second loan was for $70,000.)
Carson testified that the mortgage on the Wyandotte County property was not recorded because he did not have the money to do so. He further testified that it was his feeling that the failure to record the mortgage was not significant because he had no intention of placing any mortgages in front of Phillips’ mort gage. Carson expressed his belief that he had done all he could to protect the mortgage. When cross-examined, Carson admitted that he gave no advice to Phillips regarding obtaining an independent title examination or appraisal of the property.
The Chair, at the completion of respondent’s evidence, admitted the evidence Carson had objected to and denied the motion to dismiss filed by Carson. Carson requested that the panel take judicial notice of In re Estate of Phillips, 4 Kan. App. 2d 256, 604 P.2d 747, rev. denied 227 Kan. 927 (1980), and moved for the admission into evidence of three depositions, including that of Phillips’ close friend, Patricia H. Higgins. The evidence was admitted. Carson then moved for the admission of a court reporter statement and deposition of Phillips. The Disciplinary Administrator objected. The Chair announced, and the panel concurred, that the proposed evidence should not substitute for or supplement the live testimony. Admission of the court reporter statement and Phillips’ deposition was denied. Higgins, in her deposition, stated that Phillips had discussed with her over the telephone the circumstances surrounding Phillips’ loan to Carson. Higgins told Phillips that when someone has a second mortgage they have to pay off the first in order to “realize.” She indicated that she believed Phillips understood this fact. Higgins also indicated that she believed the loans were strictly personal and would have been made even if Carson had not been acting as Phillips’ attorney.
The panel agreed to accept correspondence in mitigation and the hearing was adjourned. The issues were taken under advisement. On November 2, 1990, Michael Grady advised the parties that, unknown to him, one of his law partners had written a legal opinion for the attorneys representing Phillips during the pendency of Carson I. At Carson’s request, Grady recused himself, advising the parties by letter dated December 5, 1990, that no consensus or decisions were reached by the panel following the October 30, 1990, hearing.
On December 21, 1990, Mary K. Babcock was appointed to replace Grady. The Chair of the KBDA directed that a transcript of the hearing be furnished to Babcock for her to study and directed that: (1) the panel confer with the view towards completing the panel report; (2) if the original panel members, Hoover and Nugent, agreed regarding the findings and recommendations, a rehearing of all the evidence on the charges would not be required (if the remaining original panel members disagreed, then a rehearing would be necessary); and (3) the panel was not precluded from receiving, as it deemed appropriate, evidence in mitigation if misconduct was found.
On January 14, 1991, the panel convened in Wichita. The panel unanimously found that Carson had violated the disciplinary rules. The parties were advised the panel would receive evidence in mitigation at a subsequent hearing, if Carson so desired. Carson requested such a hearing, which was held on February 25, 1991, in Topeka. Carson objected to the procedure, contending that he should be allowed a rehearing on all of the charges. The panel overruled the objection. The hearing proceeded with the presentation of mitigating evidence. Additional mitigating evidence was furnished to; the panel, by agreement of the parties, after the hearing. The Disciplinary Administrator informed the panel of the private censure and informal admonition which Carson had received on July. 14, 1989,. in a matter unrelated to Phillips.. .
Carson offered three exhibits, including two letters from people formerly on the Kansas City Kansas Junior College Board of Trustees which indicate that in 1984 the Junior College was willing to purchase the land that secured Phillips’ mortgage for a price high enough to have paid all. the mortgages on the property. Carson argued that the two letters supplied mitigating evidence on the question of injury mentioned in the ABA Standards for Imposing Lawyer Sanctions. The third exhibit is a statement by Phillips prepared after the . first hearing in this action. The Disciplinary Administrator’s objection to the three exhibits was sustained.
Phillips testified at the mitigation hearing on Carson’s behalf. She stated , that Carson “is one of the best friends my husband and I ever had, and I don’t want to see any harm come to him, none at all.” Carson testified that “at no time did [he] ever intend to in any way damage Mrs. Phillips.” He stated that he did, in fact, “regret extremely what has happened.” Regarding the recording of the mortgage, Carson indicated that he believed “that as far as the Recording Acts were concerned, as long as I didn’t place a — put another mortgage in or try to sell a property or do anything, that as far — her mortgage still stayed in place.” He testified that “[he] tried to protect [Phillips].” He further stated that “this has been a very traumatic experience, as you can all imagine, all the way down the line. I have two stress-related illnesses that have derived from it. One is a triple bypass, which I had in May of 1989, and the other is diabetes. . . . [T]his whole matter has hung over me and hung over me.” Carson admitted that he should have recorded the mortgage. He also replied, when questioned as to whether he would take the loan from Phillips today, that he would not do so. He noted that the loan “was a mistake on my part. A serious mistake, even though this lady came in and proffered the money. If she were to do that, no I would — under no circumstances would I accept the loan. Although at the time I did not feel that there was anything illegal about it, I wouldn’t take the loan, no way.” Carson went on to remark that, in his mind, there was “no question that [his] financial circumstances at that time had something to do with [his] accepting the loan.”
The final hearing report was filed on March 19, 1992. The panel dismissed a claimed violation of Canon 9 finding no evidence that Carson violated Canon 9 (1992 Kan. Ct. R. Annot. 231).
Standard of Review
In State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971), we explained that we have a “duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered.” In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board “is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.” See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).
Rule 202
Carson argues that even though the panel did not expressly rule on the application of Rule 202, the panel’s report indicates that the rule was used to raise an improper presumption as to the validity of our findings in Carson I. The Disciplinary Administrator responds that the panel never invoked Rule 202, so the burden of proof did not shift to Carson. The panel, in its findings of fact, simply adopted our Carson I findings in their entirety. Additionally, the Disciplinary Administrator points out that he did not exclusively rely on Carson I in presenting the case. Documents from Carson I and the testimony of Mark Gunnison were presented. The Disciplinary Administrator notes that the panel’s report explicitly concluded that the case had been proved by clear and convincing evidence. The panel’s report makes no mention of shifting the burden to Carson or that Carson had not overcome the burden that would have been placed on him by Rule 202.
The panel report does not indicate that Rule 202 was relied upon. The disciplinary case did not solely consist of the judgment in Carson I. The actual facts surrounding the Phillips loan transactions have never been in dispute. A presumption has not been used improperly as evidence. Prior findings of fact in Carson I, which were based on evidence, function as evidence in the disciplinary matter. Additionally, Carson did not show that the burden of proof was shifted by the panel. We observe, however, even if Rule 202 had been implicitly followed and the burden had been shifted to Carson to disprove the findings made in Carson I, it would have been entirely consistent with the language of the rule. Carson has not advanced a persuasive argument for the invalidity or impropriety of Rule 202. The validity of Rule 202 is upheld.
Carson’s Motion to Dismiss
Carson argues that charges of attorney misconduct must, according to Rule 211(f) (1992 Kan. Ct. R. Annot. 167), be established by clear and convincing evidence. He reasons that the clear and convincing requirement is greater than the level of proof required in an ordinary civil action, citing In re Ratner, 194 Kan. 362, 366, 399 P.2d 865 (1965). According to Carson, clear and convincing evidence refers to a quality of proof. Carson asserts that Phillips’ Carson I affidavit failed the credibility test. He also says that Gunnison’s testimony before the panel fails the “distinctly remembered” test because it was marked by expressions such as “believed”, “he thought,” and “don’t know” or “don’t recall.” Carson does not give specific references to this testimony. The Disciplinary Administrator contends that Carson’s argument assumes that the only evidence presented by the Disciplinary Administrator was Carson I. Additional evidence was presented. The Disciplinary Administrator emphasizes that the findings of fact made in Carson I were not disputed or challenged by Carson. According to the Disciplinary Administrator, undisputed and unchallenged facts meet any burden of proof.
We have repeatedly said that “[t]he standard of proof to warrant a finding of attorney misconduct requires that the charge be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]” In re Smith, 243 Kan. 584, 585, 757 P.2d 324 (1988). This requirement stems, at least in part, from the fact that a judgment against an attorney may deprive him or her of a good reputation or even a means of livelihood. In re Ratner, 194 Kan. at 366. The panel’s report explained that the panel was “persuaded by clear and convincing evidence.” Carson does not dispute the events surrounding his dealings with Phillips. The panel properly denied Carson’s motion to dismiss. A review of the record endorses the panel’s “clear and convincing” findings.
The Carson I Exhibits
Phillips’ Carson I affidavit described the loan transaction. Phillips’ Carson I suggested findings of fact and the affidavit were admitted over Carson’s objection at the disciplinary hearing. Carson argues that Phillips’ affidavit is inadmissible hearsay. He states that the only hearsay exception he believes applies is K.S.A. 1991 Supp. 60-460(a), previous statements of persons present. Regarding the Carson I suggested findings, Carson asserts that they were hearsay and nothing more than the opinions of Phillips’ lawyers. Carson reasons that the Carson I exhibits were prejudicial because they constituted the only direct factual evidence before the panel. According to Carson, Phillips’ suggested findings from Carson I were also prejudicial because they lack specific references to the record. The Disciplinary Administrator argues that both exhibits were a part of the official record in Carson I. Consequently, both exhibits were relevant. Additionally, Carson did not object to the petition filed in Carson I which contained the same information as Phillips’ Carson I affidavit. Carson had an opportunity to examine Phillips regarding the Carson I exhibits at the disciplinary hearing because she was present and testified.
Our Rule 211(d) (formal hearing) states that “[t]he hearing shall be governed by the Rules of Evidence as set forth in the Code of Civil Procedure.” We hold that the panel has the authority to take notice of relevant court records. This authority is implicitly granted in Rule 202, which provides in part, “civil judgments shall be prima facie evidence of the findings made therein . . . .” Rule 202 would be meaningless if records from prior civil judgment cases were not admissible in disciplinary proceedings. Carson has not presented a compelling argument as to why he was prejudiced by the admission of the two Carson I exhibits.
Delay
Carson alleges that this case has been marked by delay. We agree. Approximately 10 years lapsed between the time of the first loan to Carson from his client Phillips and the disciplinary panel report. We do not condone the delay, on the contrary, we are perplexed by it. Carson argues that between the time of the loan and the disciplinary hearing, Phillips had become incapacitated and, consequently, was placed under a guardianship. He says that although Phillips “had fought back and was able to testify, she was not the person she had been prior to her illness.” Carson asserts that Phillips’ lack of capacity was harmful to his case. Carson also points out that “[w]hile no statute of limitations is applicable to disciplinary actions, charges may become so stale that it would be inequitable to act upon them.” Carson says that he promptly responded to requests by the Disciplinary Administrator’s Office. He argues that the delay violated his fundamental rights and, consequently, the disciplinary action should be dismissed.
The Disciplinary Administrator explains the chronology of events. The delay occurred primarily during the investigation. According to the Disciplinary Administrator, for delay to justify dismissal in a disciplinary action, some prejudice to the party asserting the delay defense must be shown. The Disciplinary Administrator argues that the delay may actually have benefited Carson because the testimony by Phillips at the disciplinary hearing occurred after the two had reconciled. He maintains that Carson failed to prove any prejudice due to Phillips’ loss of capacity. He argues that delay does not justify the dismissal of the case because the overriding purpose of a disciplinary proceeding is the protection of the public, and that the disciplinary rules do not include any type of statute of limitations. See In re Matney, 241 Kan. 783, 792, 740 P.2d 598 (1987).
While in some instances a delay in the proceedings may justify the dismissal of disciplinary actions, there must be a showing of prejudice to the party asserting such delay as a defense. Matney, 241 Kan. at 792. Although this case is unlike Matney in that Matney himself was a primary source of the delay, Carson has failed to convincingly show how his case was prejudiced. Carson I serves as a major basis for the instant disciplinary proceeding. The evidence presented in Carson I was not stale. The factual basis for the disciplinary proceeding was preserved when the memory of the witnesses was still fresh. Additionally, Carson alleges without an accompanying precise explanation, that delay violated his fundamental rights.
The Clear and Convincing Standard
Carson alleges that the findings of the disciplinary panel were not supported by clear and convincing evidence. He states that he did not have a chance to contest the accuracy of the findings of fact in Carson I which were adopted by the panel. He asserts that circumstances which existed at the time of Carson I prevented him from challenging the facts. Carson argues that the Carson I summary judgment should not have been granted. He states that clear and convincing evidence does not exist in the disciplinary action despite the fact that we upheld summary judgment in Carson I.
There is sufficient substantial evidence, of a clear and convincing. nature, to support findings that Carson violated the rules identified by the panel. The hearing panel explicitly stated that it was basing its judgment upon clear and convincing evidence.
Should a New Hearing Before a Different Panel Have Been Ordered Following One Member’s Recusal?
Rule 211(a) states that formal disciplinary hearings “shall be conducted by a panel of three attorneys.” Carson argues that the intent of this rule is “to ensure a just result in disciplinary cases by calling on the collective wisdom and experience of three panel members.” Carson’s premise is that the decision-making process among the panel is dialectical. He asserts: “A single astute and articulate fact finder can show his [or her] fellow factfinders that their position is fallacious and cause them to change their vote.” He views a factfinder who has not actually heard the testimony as being at a disadvantage. Additionally, Carson points out that our rules neither make any provision for a hearing by less than three panel members, nor provide for reading the transcript in lieu of a hearing.
The Disciplinary Administrator emphasizes that no consensus or decision had been reached at the time Grady recused himself. The Chair of the KBDA required that there be a rehearing if the original panel members were in disagreement on the findings and recommendations. When the panel convened in January 1991, it made a unanimous finding that Carson had violated the disciplinary rules.
The Disciplinary Administrator underscores our Rule 224(d) (1992 Kan. Ct. R. Annot. 186), which states that if a procedural variation is to justify dismissal of a disciplinary action, a respondent must show actual prejudice by clear and convincing evidence. The Disciplinary Administrator argues that Carson did not prove that prejudice occurred. We agree. Babcock, who replaced Grady, had an opportunity to read the entire transcript and to review exhibits. This was not a case where the panel was required to assess the credibility of witnesses. The Phillips-Carson multifaceted relationship detailed in Carson I was admitted to by Carson. No actual prejudice has been shown.
The Bankruptcy Code and The Supremacy Clause
Carson implies that the disciplinary action was brought about “directly by reason” of his seeking protection under the federal bankruptcy code. He suggests that the instant action violates both his rights under the Bankruptcy Code and under the Supremacy Clause (Art. 6, cl. 2) of the United States Constitution. Carson’s argument as flawed. Carson appears to claim that he was singled out for prosecution in the disciplinary case because he had not paid a debt. Carson’s ethical transgressions preceded his filing for bankruptcy. Carson’s bankruptcy/Supremacy Clause argument is not persuasive.
The Discipline Recommended by the Panel
Carson observes that we have set out the mitigating factors to be considered in determining the nature and extent of discipline for a breach of professional responsibility:
“(1) Whether restitution has been made; (2) previous violations or the absence thereof; (3) previous good character and reputation in the community; (4) the present or past attitude -of the attorney as shown by his cooperation during the hearing and acknowledgement of the transgression; (5) letters from clients, friends and lawyers in support of the character and general reputation of the attorney; and (6) any statement by the complainant expressing satisfaction with any restitution made and requesting no discipline.” State v. Scott, 230 Kan. 564, 572, 639 P.2d 1131 (1982).
Another factor, the “personal misfortunes of the attorney if such misfortunes have contributed to violation of the code of professional responsibility,” was added to the list in State v. Martin, 231 Kan. 481, 486, 646 P.2d 459 (1982). Carson asserts that disciplinary panels and courts look to the ABA Standards for Imposing Lawyer Sanctions (1991) in determining the appropriate discipline. Carson argues that his conduct should be covered by ABA Standard § 4.33 (Reprimand) or 4.34 (Admonition).
Carson addresses aggravating or mitigating circumstances. He states that the panel mentioned prior discipline as an aggravation factor. According to Carson, “[t]he prior discipline’ was imposed in July 1989 concerning conduct of an entirely different character that occurred long after the incidents involved in this case. According to Carson, “[t]here was prior discipline’ in this case, but only because the case moved so slow.”
Carson points to a variety of mitigating factors: (1) personal, financial problems; (2) timely, good faith effort to make restitution in the form of the appeal of the bankruptcy court’s order avoiding Phillips’ mortgage; (3) full and free disclosure to discipline investigators and total cooperation; (4) good character and reputation attested to by many letters; (5) the proceedings have been a severe ordeal, hanging over his head since the time the initial complaint was filed in 1985; and (6) interim rehabilitation — he is not likely to do this again.
In response to the panel’s claim that it “was deeply troubled by respondent’s obvious lack of remorse and unwillingness to admit his own wrongdoing,” Carson states:
“Any party who defends against a charge in the genuine belief that he is not guilty is subject to the criticism that he is unwilling to admit his wrongdoing. However, the willingness or unwillingness to admit wrongdoing is not dispositive on the question of remorse. . . . [H]e expressed his extreme regret about what happened.”
Carson asserts that “he recognizes that taking the loan was a serious mistake.” Consequently, Carson believes that the discipline in this case should not exceed a reprimand. The panel took into consideration the magnitude of the violations and was disturbed by the fact that the disciplinary rules were violated by a “very experienced attorney who should have known better.” The panel did not believe that either the payment Phillips received from Carson’s malpractice carrier or the apparent reconciliation by Phillips with Carson prior to the time of the hearing rectified Carson’s behavior.
According to the Disciplinary Administrator, Carson’s conduct “is covered by ABA Standard 4.0, Violations of Duties Owed to Clients. Specifically, ABA Standard 4.3, Failure to Avoid Conflicts of Interest, and ABA Standard 4.4, Lack of Diligence” apply to the instant case. The Disciplinary Administrator emphasizes that we held in Carson 1 that Carson “breached his duties with respect to his client by failing to advise Mrs. Phillips of the legal ramifications of the loan transactions, in failing to advise her of the legal consequences of the changes in security, and in failing to recommend that she secure independent counsel. [Carson I, 240 Kan.] at 478.” According to the Disciplinary Administrator, Carson’s conduct fits in the category described in ABA Standard 4.31: “Disbarment is generally appropriate when a lawyer, without the informed consent of client(s): (a) engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client.” Additionally, the Disciplinary Administrator indicates that Carson’s failure to record the mortgage is covered by ABA Standard 4.4, Lack of Diligence. We agree with the characterization of Carson’s conduct advanced by the Disciplinary Administrator.
It Is Therefore Ordered that David W. Carson be and he is hereby suspended from the practice of law in the State of Kansas for a period of one year.
It Is Further Ordered that David W. Carson shall forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
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|
Ter Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Charles K. Pomeroy, of Topeka, an attorney admitted to the practice of law in Kansas.
This action arises out of the conduct of Charles K. Pomeroy in his handling of the estate of Dale L. Pence. The formal complaint alleged violations of Model Rules of Professional Conduct 1.4 (Communication) (1992 Kan. Ct. R. Annot. 251); 4.1 (Truthfulness in Statements to Others) (1992 Kan. Ct. R. Annot. 308); 8.4(b) (Committing a Criminal Act that Reflects Adversely on the Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer in Other Respects); 8.4(c) (Engaging in Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation); 8.4(d) (Engaging in Conduct that is Prejudicial to the Administration of Justice); and 8.4(g) (Engaging in Conduct that Adversely Reflects on the Lawyer’s Fitness to Practice Law) (1992 Kan. Ct. R. Annot. 328).
The matter was heard before a panel appointed by the Chairman of the Kansas Board for Discipline of Attorneys. The parties stipulated to the following facts:
“1. Charles K. Pomeroy is an attorney at law, practicing at 935 SW Western, Topeka, Kansas 66606.
“2. Dale L. Pence died on November 8, 1991, leaving a Last Will and Testament naming Charles K. Pomeroy as the Executor.
“3. On November 22, 1991, the heirs of Mr. Pence, including two daughters, Denise Gillenwater and Janice Sims, met with Mr. Pomeroy. Mr. Pomeroy was given various documents, bills and a savings account pass book from Capitol Federal Savings and Loan. He directed the heirs to forward Mr. Pence’s bills to him for payment.
“4. On December 20, 1991, Ms. Gillenwater paid her father’s bills, including utility bills, insurance premiums and real estate taxes, which had been forwarded to Mr. Pomeroy, but had not been paid.
“5. On January 3, 1992, Ms. Gillenwater called the Shawnee County Probate Court and learned that the Petition for Probate was filed on December 26, 1991, Case No. 91 P 524.
“6. On January 4, 1992, Ms. Gillenwater received a year end statement from Capitol Federal Savings and Loan, which showed that Mr. Pence’s balance in his savings account of $17,923.66 had been withdrawn on December 24, 1991.
“7. On January 6, 1992, Ms. Gillenwater and Ms. Sims went to Capitol Federal where they were shown a copy of Letters Testamentary that Mr. Pomeroy had presented as authority to withdraw the funds. The Letters Testamentary bore Case No. 91 P 891 and the signature of Judge Frank Yeoman, and was file-stamped December 20. The year was not legible.
“8. Judge Yeoman had not issued Letters Testamentary to Mr. Pomeroy nor had he signed the document presented by Mr. Pomeroy to Capitol Federal. The document presented to Capitol Federal had not been filed with the Court.
“9. On January 6, 1992, Ms. Gillenwater and Ms. Sims received copies of pleadings filed in Case No. 91 P 524, including a Notice of Hearing for January 23, 1992. The Respondent, Charles Pomeroy, also contacted them personally, principally to obtain waivers of the hearing.
“10. The heirs retained attorney Danton C. Hejtmanek to represent them at this hearing and to oppose the appointment of Mr. Pomeroy as Executor. At the' hearing on January 23, 1992, Ms. Gillenwater was appointed Executrix.
“11. The funds withdrawn from Capitol Federal on December 24, 1991, were deposited by Mr. Pomeroy on that same day into a bank account át Bank IV, in. Topeka, in the name of Dale L. Pence Estate.
“12. On January 8, 1992, a representative from Capitol Federal called the Respondent, Charles Pomeroy, to inform him that they needed a certified copy of the Letters Testamentary or the money needed to be returned.
“13. On January 9, 1992, the amount of the original withdrawal from Capitol Federal ($17,923.66) was withdrawn from Bank IV and returned to Capitol Federal. The money withdrawn from Bank IV was done so with a check from the estate account opened at Bank IV on December 24, 1991. All interest accruing on the Bank IV account from December 24, 1991, to January 1, 1992, was returned. The only deposits to the Bank IV account were by the Respondent, Charles Pomeroy, to cover the amount of the filing fee for opening the estate and the costs of the checks.
“14. The Respondent, Charles Pomeroy, was charged with one count of making a false writing (D felony) and one count of forgery (E felony) in the case styled The State of Kansas v. Charles K. Pomeroy, Case No. 92 CR 498, in the District Court of Shawnee County, Kansas. On May 14, 1992, Mr. Pomeroy entered a plea of ‘no contest’ to one count of forgery and the State dismissed the remaining count of making a false writing. The Court accepted the plea of ‘no contest.’ ”
Before the hearing panel, respondent generally admitted to a lack of communication with his client, Ms. Gillenwater, but specifically denied that Ms. Gillenwater left two messages on his answering machine during the week of December 9, 1991.
Based upon all evidence presented, the panel found by clear and convincing evidence that respondent violated MRPC 1.4, 4.1, and 8.4(b), (c), (d), and (g). The panel recommended that respondent be suspended from the practice of law for two years, and, if respondent is permitted to return to the practice of law after suspension, that his law practice be supervised by another attorney for three years.
Respondent filed his exceptions to the final hearing report of the panel, contending that the panel’s conclusion of law with respect to violation of MRPC 1.4 (Communication) was not supported by the evidence. He contended that the evidence was insufficient to establish that he failed to keep his client reasonably informed about the status of the case. Additionally, respondent took exception to the recommended discipline.
After hearing arguments of counsel and the statement of respondent, and after considering the briefs filed and the entire record, we conclude that there is sufficient evidence based on the stipulated facts and additional facts presented at the hearing to support the panel’s determination that respondent violated MRPC 1.4, 4.1, and 8.4(b), (c), (d), and (g).
Respondent takes issue with the recommended discipline, suggesting that a more appropriate discipline would be to place him on probation under the supervision of another Kansas attorney instead of suspending his license for a period of two years. Respondent argues that his actions of forging a district judge’s signature and withdrawing estate funds from Capitol Federal were a direct result of his state of depression. According to respondent, because of his depression, he felt compelled to get something done on the estate that day. According to his statement and testimony, when he found the courthouse closed on December 24, 1991, he returned to his office in frustration and proceeded, in an exercise of extremely poor judgment, to “dummy-up” a set of Letters Testamentary so that he could withdraw funds and begin the administration of the decedent’s estate.
We note respondent’s sincerity. His statement to this court, as well as his counsel’s statement, suggests that respondent’s actions in the forgery were acts of desperation resulting from a state of extreme depression. Nevertheless, respondent mishandled client funds by creating a false court order to effectuate a transfer of money. This conduct was criminal and arose directly out of his practice of law.
Before the hearing panel, the respondent sought a recommendation of discipline short of disbarment. Respondent’s counsel argued for “a period of definite suspension of six months,” recommending that respondent “complete a treatment program for depression.” No plan of probation was presented to the panel nor was one considered by the panel.
Contrary to the position he asserted before the hearing panel on July 8, 1992, respondent now contends that any suspension imposed by this court would be too harsh and that over the past seven months, by continuation of his treatment for depression, respondent is now well enough to practice law under the supervision of another Kansas attorney.
Respondent contends that his wrongful act did not harm society, that he has good qualities, and that both he and society will be better off by allowing him to practice law. His attorney argues that the key consideration should be that respondent has resolved his problems.
No doubt respondent would be well served were this court to place him on probation under the supervision of a Kansas attorney. Our responsibility, however, involves not only what would be in the best interests of respondent but also what serves the best interests of the legal profession and the citizens of this state.
Respondent argues that we have granted probation or public censure in similar cases. In re Linn, 245 Kan. 570, 781 P.2d 738 (1989); In re Black, 247 Kan. 664, 801 P.2d 1319 (1990); In re Evans, 248 Kan. 176, 804 P.2d 344 (1991); In re Stephens, 248 Kan. 186, 804 P.2d 1005 (1991); In re Keil, 248 Kan. 629, 809 P.2d 531 (1991); In re McKenna, 249 Kan. 215, 813 P.2d 929 (1991); In re Heaven, 249 Kan. 224, 813 P.2d 928 (1991); In re Copeland, 250 Kan. 283, 823 P.2d 802 (1992); In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992). According to his argument, we have granted probation or public censure because of a desire to salvage lawyers where they “lacked dishonest or selfish motives,” where their conduct did not harm their clients and “most importantly, [where] each of the attorneys involved tended to have mitigating circumstances such as an alcohol or drug problem, or a psychological or emotional problem impairing them at the time of the ethical violations.”
It would serve no useful purpose to outline the facts in each of the above cases. Our review of the disciplinary proceedings cited by respondent reveals that none of the above cases involved a finding that the criminal conduct arose from the attorney’s practice of law or that the criminal conduct affected the attorney’s ability to practice law. In re Kershner involves the only cited case where a Kansas attorney was convicted of a felony and not suspended or disbarred. We note respondent Gary Kershner was not engaged in the practice of law at the time of his felonious act and his conduct did not arise out of the attorney-client relationship. One final factor distinguishes this case from all others cited by respondent. This case involves a violation of MRPC 4.1 (Truthfulness in Statements to Others).
Perhaps a more analogous case is In re Schmidt, 246 Kan. 178, 787 P.2d 1201 (1990). In 1983, Nancy J. Schmidt voluntarily surrendered her certificate to practice law in Kansas as a result of (1) forging a deceased’s signature to his will, (2) forging the signatures of witnesses to the will, (3) notarizing the forged signatures, (4) offering the forged will for probate, (5) transporting witnesses to testify on deposition in support of the will, and (6) attempting to settle the matter in order to avoid detection. We accepted her surrender of license and her certificate to practice law was voided. In re Schmidt, 233 Kan. 724, 665 P.2d 1108 (1983).
Schmidt was charged with the crime of making a false writing in violation of K.S.A. 21-3711; she entered into a diversion agreement. Upon successful completion of her diversion agreement, Schmidt applied for reinstatement. Upon hearing and recommendation of a panel of the Board for Discipline of Attorneys, her petition for reinstatement was denied.
While there are differences between Schmidt and respondent’s case, both involve criminal acts directly involved with the practice of law. Schmidt’s actions, not unlike respondent’s actions, were directed toward the wishes of her deceased client. Both involved felonious conduct interfering with the administration of justice, false swearing, misrepresentation, fraud, and acts adversely reflecting on the lawyer’s fitness to practice law.
The ABA Standards for Imposing Lawyer Sanctions 5.0 (1986) addresses recommended sanctions for violations of duties owed to the public. ABA Standard 5.1 provides that “the following sanctions are generally appropriate in cases involving commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation.” Disbarment generally is appropriate when
“(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; ... or
“(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” (ABA Standard 5.11)
The Introduction to ABA Standard 5.0 states:
“The most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies. The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct.”
Respondent was charged with violations of K.S.A. 21-3710 (forgery) and K.S.A. 21-3711 (making a false writing). He entered a plea of no contest to forgery and the State dismissed the count of making a false writing.
K.S.A. 21-3710 provides:
“(1) Forgery is knowingly and with intent to defraud:
(a) Making, altering or endorsing any written instrument in such a manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such real person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority; or
(b) Issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed; or
(c) Possessing, with intent to issue or deliver, any such written instrument knowing it to have been thus made, altered or endorsed.
(2) Forgery is a class E felony.”
Respondent engaged in serious criminal conduct involving dishonesty, fraud, deceit, false swearing, and misrepresentation. His actions in forging a district judge’s signature in order to withdraw funds from decedent’s account, although not for his own gain, involved the intentional interference with the administration of justice.
The public expects a lawyer to be honest. Respondent was dishonest. The public expects a lawyer to abide by the law. Respondent committed a felony — forgery in the discharge of his duties as an officer of the court. Public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct. The conduct of respondent is conduct for which disbarment generally is appropriate.
The hearing panel does not recommend disbarment. Before making its recommendation to this court, the panel found the following factors in mitigation:
“1. The Respondent lacked a dishonest or selfish motive;
“2. The Respondent’s personal or emotional problems during the time in question;
“3. The Respondent’s actions to prevent financial damage to his clients and to rectify his misconduct;
“4. The present and past attitude of the Respondent as shown by his cooperation during the hearing and his full and free acknowledgement of his prior transgressions;
“5. The letters from clients, friends and lawyers in support of the Respondent;
“6. The Respondent’s interim counseling and therapy in pursuit of rehabilitation;
“7. The imposition of other criminal penalties and sanctions with regard to the Respondent’s transgressions; [and]
“8. The Respondent’s remorse.”
The panel noted that Judge Yeoman did not appear and testify in support of the respondent and that Denise Gillenwater, who was present, did not express her satisfaction with restitution, but specifically requested the panel to impose discipline on the respondent. The court has considered all of the above, as well as the additional matters in mitigation in the form of a diagnostic interview report and letter concerning respondent from Dr. William S. Logan, Director, Department of Law and Psychiatry, Menninger Clinic.
We, like the panel, also have before us matters in aggravation involving four separate informal admonitions of respondent imposed by the Kansas Board for Discipline of Attorneys. The first complaint was received October 21, 1988, based on a violation of diligence, communication, and failure to cooperate which arose out of respondent’s handling of a small estate. An informal admonition was imposed on February 15, 1989.
A second letter of complaint, dated October 27, 1988, involved a violation of competence, diligence, communication, and lack of cooperation. This case arose from respondent’s handling of two codicils to a last will and testament. An informal admonition was imposed on February 15, 1989.
A third letter of complaint was dated January 18, 1990. Investigation revealed that respondent violated MRPC 1.15(b) (1992 Kan. Ct. R. Annot. 281), which requires prompt notification of receipt of funds and delivery of those funds to the client. At the time, respondent was acting as an escrow agent on a contract to purchase property. Informal admonition was imposed October 19, 1990.
Finally, a fourth letter of complaint was dated July 12, 1990. Respondent received an informal admonition, imposed on November 28, 1990, for a lack of communication arising from a landlord/tenant action he was handling.
The panel recommended a definite period of suspension. We have no hesitation in rejecting respondent’s request for probation and believe, based upon the hearing and record, that indefinite suspension from the practice of law is the appropriate discipline.
It Is Therefore Ordered that respondent, Charles K. Pomeroy, be indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that any time after the expiration of three years’ suspension, respondent may apply for reinstatement under Supreme Court Rule 219 (1992 Kan. Ct. R. Annot. 180).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to the respondent. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a legal malpractice action brought by the potential beneficiaries of an inter vivos trust created by Charles Pizel, now deceased, against defendant attorneys B. E. Whalen and Eugene P. Zuspann. Trial by jury was had and judgment was entered in favor of the defendant. Plaintiffs appeal therefrom.
In 1962, attorney Eugene P. Zuspann prepared an inter vivos trust for Charles Pizel, a single man. Initially, the three trustees thereof were the settlor and two of his nephews, Allen and Wilfred Pizel. The deed transferring Charles’ real estate to the trust was not recorded. Contemporaneously with the preparation and execution of the trust, Zuspann drew and Charles executed a will. In the early 1970’s, Zuspann turned over the handling of Charles’ affairs to his law partner, B. E. Whalen. In 1972, Charles mentioned to Whalen that his nephews Allen, Wilfred, and Her bert Pizel were the trustees. Whalen then looked up the trust instrument and advised Charles that Herbert was not involved therein.
At Charles’ request, the trust was amended to substitute Herbert for Charles as a trustee immediately and to add Herbert as a beneficiary thereof after Charles’ death. A new deed was prepared for the real estate. The same was not then recorded, as Charles instructed he wanted the trust kept secret until after his death because he was concerned over the reaction certain nieces and nephews would have who were. not included in the trust provisions.
Concerned over Charles’ failing physical and mental condition, Whalen, in the fall of 1976, wrote the three trustee nephews to schedule an appointment with him to discuss the trust and Charles’ affairs. The trustees did not respond. Charles died in April 1979. Whalen then had the deed recorded. In August 1980, suit was filed by heirs under the will of Charles who did not benefit from the trust against the three surviving trustees. The district court held the trust was invalid on the basis no valid trust was created as the trustees never accepted the property or exercised control thereover. This judgment was affirmed by the Court of Appeals in Pizel v. Pizel, 7 Kan. App. 2d 388, 643 P.2d 1094, rev. denied 231 Kan. 801 (1982).
In 1984, the three nephews named as trustees brought the action herein (in their individual capacities) against attorneys Zuspann and Whalen seeking damages for having created a nonviable inter vivos trust which deprived them of what they would have received as beneficiaries thereunder. Summary judgment was entered in favor of Zuspann. Trial by jury was had as to Whalen, the remaining defendant, under comparative negligence princi-; pies. Fault was assessed as follows:
Allen Pizel 12%
Herbert Pizel 12%
Wilfred Pizel 11%
Charles Pizel 25%
Eugene Zuspann 5%
B. E. Whalen 35%
Damages were determined to be $204,550. Judgment for $71,592.50 was entered against Whalen, who appealed therefrom.
On appeal, we held, inter alia, that summary judgment was improperly entered in favor of Zuspann and remanded the case for a new trial. Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990). On remand, the case was tried on contributory negligence principles. Through a number of amendments, Wilfred, then deceased, was deleted as a plaintiff and children and grandchildren of Herbert and Allen were added as plaintiffs. The jury found in favor of the defendant attorneys on the breach of contract claim. Additionally, the jury found no negligence-causing injury relative to Zuspann. The jury then found Whalen had been negligent. The jury then found Charles, Allen, and Herbert had each been contributorily negligent. The trial court had instructed the jury that any contributory negligence found would be imputed to all plaintiffs and bar recovery. Accordingly, zero damages were assessed. The plaintiffs appealed from this judgment. At oral argument herein, the plaintiffs’ motion to dismiss the appeal as to attorney Zuspann was granted, and so he is no longer a party hereto.
Additional facts are set forth in the Pizel v. Pizel and Pizel v. Zuspann opinions. The above summary is sufficient for our purposes herein except as may be supplemented as necessary for the discussion of particular issues.
CONTRIBUTORY NEGLIGENCE
For their first issue on appeal, plaintiffs contend the district court erred in permitting the jury to consider contributory negligence herein.
Before proceeding, it is appropriate to explain the shift from comparative fault to contributory negligence which occurred between the first and second trials herein. In the motion for rehearing and clarification filed in Pizel v. Zuspann, complaint was made relative to the case having been tried on comparative fault rather than contributory negligence principles. In the modification of the opinion (247 Kan. 699), we stated:
“We next address the defendants’ argument that judgment should be entered for the defendants based upon the plaintiffs’ contributory negligence.
“In Federal Savings & Loan Ins. Corp. v. Huff, 237 Kan. 873, 704 P.2d 372 (1985), this court held that the comparative fault statute, K.S.A. 60-258a, does not apply to actions for economic damages. Following this decision, the legislature amended K.S.A. 60-258a to specifically include claims for economic loss. This amendment became effective July 1, 1987. See K.S.A. 1989 Supp. 60-258a. In Wichita Fed’l Savings & Loan Ass’n v. Black, 245 Kan. 523, 781 P.2d 707 (1989), this court concluded that the amendment to the comparative fault statute adding economic loss was not retroactive. Because comparative fault is a substantive defense, the court held that the 1987 amendment to K.S.A. 60-258a, overruling Huff, was not applicable to the action before it. 245 Kan. at 544.
“In our original opinion, we reversed the trial court’s order granting summary judgment to Zuspann prior to trial. Because the trial court’s action was erroneous, this court was required to grant a new trial to the appellants. 247 Kan. at 77. The effect of our ruling was to return the parties to the positions they were in at the time the trial court improperly granted summary judgment. See Bartlett v. Davis Corporation, 219 Kan. 148, 153, 547 P.2d 800 (1976). This case was tried on comparative fault principles. Because contributory negligence was never raised before the trial court and, in fact, was never raised on appeal, it will not be considered for the first time on this motion. Although on remand the parties are not precluded from raising this issue, comparative fault principles control in this appeal.” 247 Kan. at 701.
In the issue on appeal, no claim of error is made relative to the shift from comparative fault to contributory negligence. Rather, the complaint is that there was insufficient evidence to justify a contributory negligence instruction. The particular claims of contributory negligence submitted to the jury in the court’s instructions were as follows:
“a. Charles Pizel failed to follow his attorney’s advice and treat the land as in trust for 17 years.
“b. Allen Pizel failed to read the trust agreement and amendment and failed to manage the trust property until after Charles Pizel’s death,
“c. Herbert Pizel failed to manage the trust property until after Charles Pizel’s death.”
For reasons set forth in the next issue, we decline to discuss the contributory negligence of Charles Pizel in this issue.
In Schenck v. Thompson, 201 Kan. 608, 612, 443 P.2d 298 (1968), we stated:
“Ordinarily, the existence of contributory negligence is a question of fact, it being for the jury to determine from the circumstances of each particular case whether the conduct of a party was such as would be expected of a reasonably prudent person. Only when the plaintiff’s conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person, may the question of contributory negligence be taken from the jury and determined by the court. In ascertaining whether as a matter of law plaintiff is contributorily negligent, precluding recovery, the evidence and all inferences that may reasonably be drawn therefrom must be accepted as true and considered in the light most favorable to the plaintiff. If the facts viewed in that manner be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. This is true, although the evidence is weak and inconclusive. [Citations omitted.]”
The above citation is approaching the issue from the angle of whether or not the contributory negligence determination should be taken from the jury and held to exist as a matter of law, which is why the evidence is to be examined in the light most favorable to the plaintiffs. Where the question is whether or not contributory negligence should be submitted to the jury as opposed to being dropped from the issues in the case, it follows that the evidence, must be considered in the light most favorable to the defendant asserting same as a defense.
By virtue of the circumstances herein, more is involved in determining contributory negligence than just what transpired between Herbert and Whalen or Allen and Whalen. When the trust was initially set up, Zuspann was dealing with Allen. Also, Zuspann was a defendant at trial, asserting contributory negligence of Allen and Herbert. Additionally, it must be borne in mind that the plaintiffs’ claimed damages were the result of the trust being declared invalid in Pizel v. Pizel. Accordingly, any part Herbert and Allen played in the Pizel v. Pizel case which contributed to the unfavorable results is a factor herein.
We must now look at the evidence most favorable to claims of contributory negligence on the part of Allen and Herbert.
ALLEN PIZEL
Zuspann testified he explained to Allen Pizel the responsibilities of trustees and explained that the trust provided how they could deal with the property as trustees.
Allen admitted that when he signed the trust document and the trust amendment, he did not thoroughly read the document. Moreover, Allen did not read the entire trust instrument until after Charles had died. Allen never told Zuspann that he did not understand the trust, and he never asked for an appointment for the trust to be explained.
Allen admitted that he testified in Pizel v. Pizel that he did not do any acts as trustee. Additionally, he stated that Whalen explained the trust amendment when it was signed.
Allen did not think his duties as trustee started until after Charles passed away. In a previous deposition, Allen said he probably did not do anything as a trustee until the moment of Charles’ death.
Zuspann’s expert witness, Donald Horttor, stated that Allen’s conduct in failing to read the Charles Pizel Revocable Trust until after Charles died, which was 17 years after he signed the trust document, constituted negligence.
HERBERT PIZEL
Herbert Pizel stated that he did not understand the terms of the trust, he never told Zuspann he did not understand the trust, and he did not know if he asked Whalen to explain the terms of the trust to him or not. Herbert understood that he signed the trust as a trustee. He stated that he read the amendment to the trust a hundred times, but still did not know what it said.
Zuspann’s expert witness, Donald Horttor, testified it was his opinion that Herbert owed a duty to either understand the trust instrument, get somebody to explain it to him so he could understand it, or resign.
Additionally, Whalen’s expert witness, Professor John Kuether, opined that the declarations made by Allen, Herbert, and Wilfred in Pizel v. Pizel, wherein they denied there was a present trust and that they were trustees, were incredibly damaging and considered by the Court of Appeals when the trust was held invalid. Kuether pointed out that Judge Willoughby (trial judge in Pizel v. Pizel) cited the trustees’ denials and their inactions in determining that there was not a valid trust.
Professor Kuether stated that trustees should read the trust document and, furthermore, have a duty to understand the terms on which they are accepting the trust property. If a trustee cannot find a satisfactory explanation of the terms of the trust, he cannot fulfill his duties as trustee, and he has a duty to resign as trustee.
We also note that the trust instrument and the amendment are, on their face, important-appearing legal documents. Allen’s and Herbert’s signatures were notarized. Even a cursory reading of either instrument should reveal that significant duties are being imposed upon the trustees.
Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order t6 protect himself from harm. Cruse v. Dole, 155 Kan. 292, Syl. ¶ 1, 124 P.2d 470 (1942). The standard of care, diligence, and skill required of a trustee in the administration of the trust estate is that of the prudent man. K.S.A. 58-1202(c) provides:
“Unless the instrument expressly states otherwise the prudent man rule, as expressed in K.S.A. 17-5004, shall apply as the standard for the exercise of the powers conferred upon a trustee by the uniform trustees’ powers act.”
K.S.A. 17-5004(a)(l) provides:
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.”
We conclude there was sufficient evidence to warrant the district court’s submission of the question of contributory negligence on the part of Allen and Herbert Pizel to the jury.
IMPUTATION OF CONTRIBUTORY NEGLIGENCE
For their next issue, plaintiffs contend it was error for the trial court to instruct the jury that any contributory negligence found on behalf of Charles, Allen, or Herbert Pizel was imputed to all plaintiffs and would bar any recovery herein.
In Pizel v. Zuspann, 247 Kan. 54, we discussed the propriety of imputing negligence herein and rejected it, stating:
“Whalen next argues that the negligence of his client, Charles, should be imputed to the appellants. The trial court rejected defendants’ requested instruction on this theory. Although recognizing that the general rule is that the negligent acts of third persons will not be imputed to a plaintiff to bar recovery, Restatement (Second) of Torts § 485 (1964), Whalen argues that the exception to this general rule for a joint enterprise should be applied to the facts in this case.
“Four basic elements are needed to establish a joint venture that imposes vicarious liability: (1) an agreement; (2) a common purpose; (3) a community of interest; and (4) an equal right to a voice accompanied by an equal right of control over the instrumentality. Scott v. McGaugh, 211 Kan. 323, 327, 506 P.2d 1155 (1973).
“In Schmidt v. Martin, 212 Kan. 373, 375-76, 510 P.2d 1244 (1973), this court recognized that the doctrine of imputed negligence has been highly criticized. The court pointed out that the doctrine has been rejected in five recognized relationships in Kansas: (1) parent and child; (2) husband and wife; (3) driver and passenger; (4) owner of vehicle and driver; and (5) bailor and bailee. The court has approved and accepted the doctrine when applied in two special relationships: master-servant and joint enterprise. 212 Kan. at 376. In Schmidt, the court had to decide whether to Impute the negligence of a custodian of a child to the child’s parents as a matter of law based solely on that relationship. 212 Kan. at 376. The court rejected its application, holding that the negligence of a third party in caring for a child at the request of the parent is not, as a matter of law, imputed to the parent. The court pointed out that the only logical basis for the imputation of the negligence of one person to another is the right of the latter to control the acts of the former. 212 Kan. at 378.
“In Lightner v. Frank, 240 Kan. 21, 24-27, 727 P.2d 430 (1986), this court once again addressed the issue of imputed negligence. This was a wrongful death action by the children of a married couple involved in an extensive farming operation. The wife was driving at the time of the automobile crash. The question was whether her negligence could be imputed to her husband. This court concluded that the record was completely lacking in any testimony that an agreement or understanding existed between the husband and wife to the effect that the husband had a right to control the wife’s operation of the automobile.
“The four basic elements necessary to establish a joint venture to impose vicarious liability do not exist here. Whalen argues that the trust was an agreement between appellants and Charles. The trust, however, was created by the unilateral actions of Charles. Although Allen, Wilfred, and Herb agreed to act as trustees, the creation and continuation of the trust was solely within the power and conduct of Charles. Certainly no prior agreement or understanding existed among the parties to create the -trust; therefore, the first requirement necessary to establish a joint venture is not shown.
“The court here instructed the jury to compare the faults of the parties. The jury apportioned fault as follows:
Allen Pizel 12%
12% Herbert Pizel
11% Wilfred Pizel
25% Charles Pizel
5% Eugene Zuspann
35% B.E. Whalen
If Whalen’s argument was accepted and the fault of Allen and Herb as well as Charles was imputed to each other, then the total fault of appellants would be 60%. Under the comparative fault principles adopted in Kansas, because the fault of those parties is greater than 50%, no judgment would have been entered against Whalen. See Pape v. Kansas Power & Light Co., 231 Kan. 441, 448-49, 647 P.2d 320 (1982). Because Whalen has not established that the trust here should be treated as a joint venture, however, this argument must be rejected. The trial court’s instructions on comparative fault, which did not impute the negligence of the appellants to each other and Charles, were correct.” 247 Kan. at 70-72.
The fact that, on remand, trial was had upon contributory negligence principles rather than on the basis of comparative fault does not alter what we said in the Pizel v. Zuspann opinion on this subject. The shift in the negligence principles had no bearing on our conclusion that no joint venture was involved herein and that imputation of negligence was inappropriate.
It was, accordingly, error to submit the matter of contributory negligence on the part of Charles Pizel to the jury. The only purpose of such a determination would be in connection with imputing it to other plaintiffs to bar their recovery.
Further, we hold that, based on our earlier decision herein, it was error to instruct the jury that the contributory negligence of Allen or Herbert could be imputed to each other to bar recovery.
The question then becomes what effect do these errors have herein? We conclude they do not require reversal of the judgment for the following reasons. Allen and Herbert Pizel were each found to be contributorily negligent. Each was thus barred from any recovery by his own contributory negligence without any imputation of contributory negligence.
This conclusion leaves what might be perceived as a dangling end. The instructions and verdict form reflect any contributory negligence should be imputed to “all plaintiffs.” In addition to Allen and Herbert, various children and grandchildren of each were named as plaintiffs. However, it is not asserted that such children or grandchildren have any greater or different rights herein than does their respective father or grandfather (Allen or Herbert). It is clear that throughout this case on remand, and in this appeal, that the offspring of Allen and Herbert were considered as, essentially, riding in sidecars to the claims of their respective progenitor and that the success of Allen or Herbert was essential to their claims. Thus, the parties have, on remand, continually treated this as a two-plaintiff case (Allen and Herbert).
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, J.:
Frank E. Sage brought an action in the district court of Pawnee county against the railroad company to recover damages for the loss of a stallion that was shipped by him from Kansas City, Mo., to Earned, Kas., and which is alleged to have died from injuries inflicted by the railroad company. It is alleged that the animal was a four-year-old thoroughbred stallion, of the value of $2,000, and it was delivered to the railroad company for shipment over its line on May 10, 1887, under an ordinary stock contract, which required the safe transportation and delivery of the animal at Earned, Kas.; but it is averred that the animal was stowed away in an ordinary box car, which was closed up in such a way that the animal became partially suffocated and unable to stand steadily upon his feet, and thereby was plunged and thrown against the sides and ends of the car in which he was being transported, and thereby bruised and injured, from which injuries he died before he was delivered to the owner. At the trial the jury found that the company had failed to furnish a proper car for the transportation of the animal, and in failing to properly ventilate the car which was furnished. By their general verdict, they awarded damages to the plaintiff below in the sum of $1,340.46.
The railroad company complains, and first assigns as error the overruling of a motion to suppress certain depositions which are alleged to have been taken without legal notice to the company. The depositions of three important witnesses, who testified with reference to the condition of the horse at the time the shipment was made, were taken in Kansas City, upon a notice served upon the station agent at Lamed, Kas. It was shown that the agent upon whom the notice was served had no authority from the defendant to receive or accept notice of the taking of depositions, , nor to receive or accept service of any notice in any case pending, except such authority as is conferred by the statutes of the state. The notice given does not comply with the requirements of the code, and is not sufficient. Section 352 of the code provides that —
“Prior to the taking of any deposition, ... a written notice . . . shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of residence. The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service.”
This statute provides for a notice to be served upon the adverse party, where such party is a natural person, or upon his “agent or attorney of record.” It manifestly does not contemplate that it may be served upon any attorney or any agent of a party who may be found in any part of the state, and who may have no connection with the litigation, but it evidently must be served upon some one authorized to represent the adverse party in the action, as shown by the record. It surely does not mean an agent living in a remote part of the state, who has been employed for another purpose, who has no knowledge of or authority in the case, and who could not in many instances, under the limited time prescribed by the statute, communicate with the adverse party, so that he might have sufficient time for preparation, and to attend upon the taking of the deposition. The right to make service of the taking of a deposition upon a station agent seems to be based largely upon § 68a of the code of civil procedure, which provides that “every railroad company or corporation . . . is hereby required to designate some person residing in each county into which its railroad line . . .- may or' does run, or in which its business is transacted, on whom all process and notices, issued by any court of record or justice-of the peace of such county, may be served.” And § 68c provides that if such corporation fails to designate some person in the manner prescribed, that then “such process” may be served upon any freight agent, ticket agent or station keeper of the corporation in the county.
It is contended that a notice to take depositions is a process or notice, within the meaning of the foregoing provisions. It will be observed, however, that service upon such agents is limited to “all process and notices issued by any court,” and as a notice to take depositions is not issued by or from the court, it is not governed by this provision. That such a notice is not process within the meaning of the statute last quoted, and that a notice upon the agent of the corporation is insufficient, was long ago determined, in Railway Co. v. Thacher, 17 Kas. 92. It was there held that the notice of an attorney’s lien could not be made upon a person in charge of the depot in the county where the action was pending, and that a service made upon such person was not binding upon the company. It was decided that the statute relating to the service of process upon the agents of railroad and stage corporations “applies only to process strictly so called, or at least does not apply to notices like the one in question, a notice prepared and served by the party, and not issued by or upon the order or at the instance of the court. There is therefore no statute authorizing the service of such a notice upon this agent of the corporation, and it is not a matter at all within the scope of his-duties. Hence, neither by statute nor upon general principles-is the corporation bound by the notice thus given.” So, here,, the notice to take depositions is not a process or notice to be issued by the court; and hence the company was not legally •served with notice, and the court committed error in permitting the testimony which was taken without the presence of counsel for the company and without opportunity of cross-examination to be read in evidence.
Only one other matter requires consideration. A witness was asked whether the car furnished by the company was in a proper condition to ship a horse • in hot weather, and over the objection of the defendant he was permitted to answer that the car was not a proper one for the safe transportation of the animal. In the opinion of the writer, the question whether the car was in a proper condition was one to be determined by the jury, which required no special training or experience to decide, and hence the opinion of the witness was inadmissible. The practice of shipping animals by rail is so common, and the kind of cars used and necessary for their safe shipment is so generally known, that the opinion of an expert as to what constitutes a proper car for such purpose is not needed. All the facts about the condition of the car upon which the opinion of the witness was founded could be made intelligible to the jury, so that they could draw a correct conclusion as readily as the witness. But if the question was one which required special study, knowledge, and skill, and upon which the opinion of an expert was admissible, the testimony of this witness should not have been received. He had not shown himself to be competent, or to have any special skill or experience with reference to the shipment of animals. He was an ordinary employé of a livery stable in Kansas City, and although he stated that he was an expert in the matter, no testimony was offered of any experience or training which would make his opinion of any value as to the condition of the cars in which stock might be safely shipped.
For the .admission of improper testimony upon material issues, there must be another trial of the cause. The judgment of the district court will therefore be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action for malicious slander. W. M. Walker, a merchant in Sabetha, stated to several persons that Margaret R. Wickens had stolen shoes from his place of business. When she brought an action to recover damages for the alleged slander, he answered that the charge which he had made was true, and that she did commit larceny in taking the shoes. At the trial, the jury found that the charge of larceny made by Walker was untrue; that he was prompted by ill-will and bad intent toward Mrs. Wickens in uttering the slander, and had no grounds for believing the charge to be true; and that, at the time he charged her with stealing shoes, he did not actually believe she had done so. In the general verdict the damages were assessed at $250.
Some objections are made by Walker to the admission of testimony respecting the speaking of the slanderous words, but as he admitted the uttering of the words, and reiterated them in his answer, there is nothing substantial in these objections. He undertook to justify by showing that he not only gave publicity to the charge, but that she was actually guilty of the crime imputed to her. He signally failed in his defense, and although it is urged that the testimony does not warrant the action of the jury, we think it is sufficient to sustain both the special findings and verdict.
Some complaint is made as to the instructions, which, although voluminous, are in our opinion substantially correct. The jury were told that, if the defamatory words spoken were untrue, damage might be presumed without proof of actual damage; that the plaintiff would be entitled to at least nominal damages, and in addition thereto to such general damages as the evidence might show she had sustained. They were also advised that exemplary damages might be allowed, not exceeding the amount claimed by the plaintiff in her petition.
A criticism is made because the court did not make malice essential to the awarding of exemplary or punitive damages. The instruction with respect to exemplary damages is subject to criticism in this respect; but the jury have found that the imputation of crime was false; and further, that Walker was actuated by special ill-will and bad intent toward Mrs. Wick-ens in making the charge; and hence the omission becomes unimportant. The defamatory words used by Walker are actionable of themselves, and having asserted their truth in his answer, and reiterated the same upon the witness-stand at the trial, and being found to be false, the law implies malice. In such cases damages are not limited to the amount of actual pecuniary loss which the plaintiff is able to prove; but as a general rule, when, the falsity of such a charge is proved, it is sufficient to]warrant the jury in giving exemplary damages. It was the province of the jury to determine whether the slanderous charge and the circumstances surrounding it were of such a character as required the assessing of damages by way of punishment. There was testimony offered which, although contradicted, tended to show actual malice; and this, together with what was fairly implied from the falsity of the slanderous charge, is sufficient to sustain the special finding returned by the jury that Walker was actuated by malice. The jury were told that if the circumstances which came to Walker’s attention, connected with the taking of the shoes by Mrs. Wickens from his place of business, were such as to induce the belief which he expressed, and if in good faith he spoke the defamatory words believing them to be true, such fact might be considered by the jury in mitigation of any damages that the plaintiff had sustained. The giving of this instruction answers some of the objections made to the refusal of the instructions requested. In view of the fact that the slanderous charge was found to be false, and that the character and standing of Mrs. Wickens were well sustained by all or nearly all of the witnesses, the amount of damages awarded was moderate, and we think none of the exceptions urged by the plaintiff in error can be sustained. Miles v. Harrington, 8 Kas. 425; Hess v. Sparks, 44 id. 465, 471; Bergman v. Jones, 64 N. Y. 51; Hubbard v. Rutledge, 52 Miss. 581; Gilman v. Lowell, 24 Am. Dec. 96; Flagg v. Roberts, 67 Ill. 485; Newell, Defam. 329, 842; 13 Am. & Eng. Encyc. of Law, 432.
The ease appears to have been fairly submitted to the jury, and, there being testimony to sustain its findings and verdict, we find no sufficient reason for a reversal.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Stjrang, C.:
Action for the conversion of a stock of goods. George Haire, owner of a certain stock of goods, sold the same January 31, 1887, to Elizabeth J. Margason for $1,000, and took in payment therefor four promissory notes of $250 each, due in three, six, nine and twelve months thereafter, and, to secure the payment thereof, took a mortgage back on the goods sold, which was filed for record February 17, 1887. By the terms of the mortgage, it was stipulated that, until default, or until the mortgagee deemed himself insecure, the mortgagor was to continue in possession of said goods. February 5, 1887, while the mortgagor was still in possession of the goods, an execution in favor of Victor B. Buck & Co. against one William Margason was levied thereon, and they were advertised, and sold February 26 and 28, 1887. February 23, 1889, Haire, the plaintiff, commenced his action as mortgagee and assignee- of the mortgagor, to recover the value of the goods. Three defenses were interposed — general denial, statute of limitations, and fraud. A reply was filed, and trial by jury had, which returned a general verdict for the plaintiff in the sum of $1,450, and also made special findings, as follows :
“Q. 1. Did not the plaintiff, George Haire, demand of W. H. Beagle, deputy sheriff, the possession of the stock of goods under his mortgage on February 26, 1887? A. Yes.
“Q,. 2. Did said W. H. Beagle, deputy sheriff, refuse to give up the possession when so demanded by George Haire, mortgagee? A. Yes.”
“Q. 1. At what time did the sheriff, by his deputy, seize the goods in controversy and take them from the possession of the plaintiff, Mrs. E. Margason? A. February 5, 1887.
“ Q,. 2. At the time the sheriff seized the goods, were the goods the property of Mrs. E. Margason? A. Yes.
“Q,. 3. Was such seizure at the time it was made wrongful as to the plaintiff, George Haire? A. No.
“Q. 4. When was the mortgage under which Haire claimed recorded or filed for record? A. February 17, 1887.
“ Q. 5. What part of the goods in controversy was from the stock bought by the plaintiff at the mortgage sale of McKinney, Handley & Walker? A.. Don’t know.
“ Q,. 6. What part of the goods in controversy are of the goods bought by Wm. Margason in the name of E. J. Margason, after Haire bought the store at the chattel-mortgage sale? A. Don’t know.
“Q. 7. What was the market value of the goods seized by the defendant, Sheriff Miller or his deputy, at the time they were seized? A. Don’t know.
“Q,. 8. What was the value of the goods bought by Haire at the mortgage sale left in the store on the 31st day of January, 1887? A. Don’t know.
“Q,. 9. Are the plaintiff, George Haire, and Mrs. E. J. Margason, any relation? If so, what? A. George Haire son-in-law to Mrs. E. J. Margason.
“Q. 10. Also, what relation is E. J. Margason to William Margason? A. His wife.”
The defendants moved for judgment on the special findings in their favor, on the ground that the findings showed that the action was barred. This motion was sustained. The plaintiff moved for judgment on the verdict, which motion was overruled. He then moved to set aside the findings and verdict, which was denied, and also for new trial, which was overruled.
The only question in the case is, was the action barred by the statute? If the statute commenced to run against the claim of Haire from the date of the levy on the goods in the possession of the mortgagor, his right of action was barred with the expiration of two years from said 5th of February, 1887, and before his suit was begun, and the judgment of the court below should be affirmed. But if the statute did not commence to run against Haire until he demanded the goods from the officer having the levy thereon, on the 26th day of February, 1887, the statute had not fully run when his suit was brought, and the action was not barred, and the judgment should be reversed. By the terms of the mortgage from Mrs. Margason to Haire, she was to remain in possession and control of the goods until default in payment was made, or Haire deemed himself insecure. At the time of the levy upon the goods by the sheriff, no default had occurred, and Haire had not declared himself insecure. The mere levying of the execution upon the. goods constituted no trespass upon the rights of Haire. He was not in possession of the goods when the levy was made, nor had his right to possession accrued, because no default had been suffered, and he had not declared himself insecure. The levy invaded none of his rights. It affected only the rights of the mortgagor, Mrs. Margason. On the 26th of February, when the goods were about to be sold, and before they were sold, Haire elected to deem himself insecure, and demanded the possession of the goods from the party in possession thereof — the officer making the levy thereon. His right to the possession of the goods then accrued, and from thenceforward the action of the sheriff was such an invasion of his rights as to set the statute to running against him. In the case of Ament v. Greer, 37 Kas. 648, this court says: ¶
“Where the mortgagor of chattels has the right to the possession of the mortgaged property until default, and before the default an execution against him ana in favor of a third person is levied by an officer on the property, the levy attaches to and covers only the interest of the mortgagor, and the mortgagee, after default, has the right to take possession of the property as against the officer.”
(See, also, Rankine v. Greer, 38 Kas. 343; Easter v. Traylor, 41 id. 493.)
It is after default that the mortgagee has the right to take possession. And certainly the statute cannot commence to run against him until he has the right to the possession of the goods. The court in that case say:
“And in such a case, when the mortgagee after default demands the property from the officer, and the officer refuses to surrender the same, the mortgagee may then maintain an action of replevin against the officer for the recovery of the property.”
After default and demand for the goods, the mortgagee may maintain his action. Would he not have the full period of the statute after default in such a case in which to bring his action? There can be no doubt about it. And if the full statutory period after default in such a case, why not in this? Is there any difference in principle in this respect in an action of replevin and an action for the value of the goods? We do not understand that there is. Haire demanded the goods of the officer February 26, 1887, and the officer refused to surrender them. We think the statute commenced to. run at that time. The action was begun February 23, 1889, and was not therefore barred.
It is recommended that the judgment of the district court be reversed, and that judgment be entered in this court on the general verdict and the findings for the plaintiff for $1,450, and interest from June 24, 1889.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In July, 1896, the state board of equalization made an order increasing the value of all property in Geary' county for that year, except rail road property, ten per cent, of the amount returned by the city and township assessors; and at the same time the board apportioned to said county, as its proper proportion of state taxes, the sum of $9755.98, which order was transmitted by the state auditor to the county clerk. The board of county commissioners of Geary county did not, however, obey the order of the said board of equalization by raising the valuation of all property in the county except railroad property ten per cent., but simply raised the rate of taxation for state purposes on all property in that county except railroad property ten per cent., and made no change whatever in the returns made by the assessors of all the property in their county other than railroad property; so that the rate for state purposes in Geary county on all property except that of railroads for that year was fifty cents on each one hundred dollars in valuation, and on railroad property the rate for state purposes was forty-two and one-half cents on each one hundred dollars of valuation.
The railway company makes no claim that it is required to pay an unjust proportion of state taxes. The gravamen of its complaint is that the county board, in making its levies for local purposes, did not adopt the valuation fixed by the state board of equalization. The allegation in the petition concerning the action of the board of county commissioners and the county clerk is as follows :
“They neglected and refused to obey said order of the state board of equalization, and, instead of increasing the valuation of all said property, except railroad property, 10 per cent, as ordered by the state board of equalization, increased the rate of levy for state purposes upon all property 10 per cent., thereby making the rate for state purposes upon all property except railroad property 50 cents on each $100, and upon railroad property the rate for state purposes was by the county clerk of said county extended at 42i cents on each $100, and the valuation of railroad property as fixed by the state board of assessors remained unchanged, and the valuation of all other property in the county as returned by the township and city assessors remained unchanged, notwithstanding the order of the state board of equalization to increase the same 10 per cent., so that as to all taxes the plaintiff is assessed upon all its property at its true value in money, thereby making this plaintiff pay taxes upon a valuation of 10 per cent, higher than any other property is assessed for taxable purposes in said county, and thereby making it pay for school-district, township, city and county purposes 10 per cent, more taxes in proportion to the value of its property than is paid upon any other property in said county, which is an unjust discrimination.”
It is urged by the railway company that section 135 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, § 7360), requires a board of county commissioners to extend their levies upon the valuation as raised or lowered by the state board of equalization ; that there cannot be two different valuations for state purposes ; that there must be an equalization of values for all purposes, both state and local, and that the equalization of railroad property with other property by the state board of equalization is controlling for local, as well as for state, purposes. Said section reads :
“Whenever the valuation of any county is changed by the state board of equalization, the board of commissioners of such county are authorized to use the valuation so fixed by the said board as a basis in making their levies for all purposes.”
This language does not impose an obligation upon the board of commissioners to adopt the valuation of the state board, but merely confers a permissive right so to do. To hold otherwise would be ruling contrary to the plain reading of the statute. In 1883 this question was submitted to Mr. Justice Johnston, then attorney-general of the state, whose opinion is found in Public Documents, Kansas, 1883-’84, Report of Attorney-general, pages 76, 77, as follows :
“The action of the state board of equalization in increasing or decreasing the valuation of property assessed for taxation in the several counties of the state affects only the taxes required to be raised for state purposes. The main object of the state board is to adjust the valuation so that each county will bear its fair and equitable proportion of the state tax. The valuation as fixed by the state board is not controlling with the county commissioners. They are not required to use the valuation adopted by the state board as a basis in making their levy for the current expenses of the county, or for any purpose except state taxes. (Sec. 159, ch. 107, Comp. Laws.) As I understand it, the prevailing practice throughout the state is, that if the state board increases the valuation of property in a county, that valuation is used merely as a basis for apportioning the state tax required to be paid by such county, and the auditor of state thereupon reports and certifies, to the county clerk the amount charged against his county and required to be raised by it for state purposes. The county clerk upon receiving that report determines the rate per cent, necessary on the valuation fixed by the county board to raise the amount of state tax as fixed by the state board. If, for instance, in a county having a valuation returned at $5,000,000, and the levy for state taxes being four mills, there would be produced for state purposes the sum of $20,000. The state board, however, determines that the county in right and justice ought to contribute $25,000 for state purposes, and therefore it increases the valuation returned by such county such a per cent, as will afford the additional $5000. To that end the county clerk, upon receiving the report from the auditor, simply increases the rate one mill and extends a five-mill rate on the valuation fixed by the county board. This practice seems to be warranted by section 81 of the chapter on taxation. At any rate, the restriction upon the county commissioners that you mention relates only to the levy for current expenses. The basis upon which that levy is made is uniformly the valuation fixed by the .county board, and not the one fixed by the state board. The county commissioners have the option of taking the valuation fixed by the state board as a basis for making their levies for local purposes, but it is seldom, if ever, done. I would therefore hold that the valuation in your county as fixed by the county board being less than $5,000,000, and the board adopted that valuation for the purpose of making a levy of current expenses, may legally levy for such purpose one per cent, on the dollar of such valuation, notwithstanding the state board may for the purpose of apportioning the state tax have increased the valuation of the property beyond $5,000,000.”
The same construction was given this statute by Attorney-general Ives in 1891. (2 Pub. Doc. Kan. 1891-’92, Att.-Gen. Rep. 42.)
Before the expression of these views by the attorneys-general, this court, in Francis, Treas., v. A. T. & S.F. Rld. Co., 19 Kan. 303-315, said:
"Such a tribunal doubtless subserves a wise purpose in that it prevents any county from shirking its just proportion of the burdens of state government by grossly inadequate assessments.”
In C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781-790, 39 Pac. 1041, this language was used:
“The action of the state board of equalization does not result in a change in the amount of taxes any one would pay under levies for local purposes.”
We have been unable to find any express statutory authority which gives the state board of equalization power to control the valuation of county property for purposes other than state taxation. Section 132 of chapter 158 of the General Statutes of 1897 (Gen. Stat. 1899, § 7271), seems to lean against the authority of the state board to interfere with the valuation fixed by the local board of equalization. In said section the county clerk,, when he receives the report of the auditor, is directed to determine the rate per cent, necessary to raise the taxes required for state purposes as determined by the state board of equalization, and there is no provision making it the duty of the county clerk to determine any rate per cent, necessary to raise the taxes required for county purposes.
The court of appeals based its opinion upon the force of section 1 of article 11 of the constitution, which prescribes that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” The existence of two boards of equalization created by law, one endowed with power to equalize with reference to state taxes and the other clothed with like authority concerning local taxation, has not heretofore been considered as violative of this constitutional provision. In Gulf Railroad Co. v. Morris, 7 Kan. 210, 221, in treating of this subject, it was said :
“There is no provision allowing the county board of equalization to equalize the valuation of the real estate of a railroad company within each county, while there is a provision of law allowing the county board of équalization to equalize the valuation of other real estate. ... It will be seen that the counsel for the plaintiff misconstrues the constitution. The constitution does not require that the manner or mode of assessing and taxing property, or the manner or mode of collecting the taxes, shall be equal and uniform, but it simply requires that all property shall be assessed and taxed at an equal and uniform rate.
“This the legislature has provided for. All taxable property, real and personal, within this state must, ¡under the statutes, be assessed at its true value in money, and the taxes' levied upon such assessment must be at an equal and uniform rate. The state taxes, under the statutes, are equal and' uniform throughout the state, being levied on a uniform valuation, and fixed at a uniform rate on each dollar of valuation throughout the state; each county tax is equal and uniform in the same manner throughout the county; and the same may be said of the taxes of each township, district, city, and village ; and this is all that is required by the constitution.”
In Elevator Co. v. Stewart, 50 Kan. 378, 383, 32 Pac. 33, it was held that that section of the constitution quoted from requires merely that there be a uniform and equal rate of assessment and taxation only in each separate taxing district. And for the purposes of this case we may regard the state as one taxing district and Geary county as another.
The railway company has attempted, in drawing its petition in the court below, to bring its complaint within the case of C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039. But the facts here do not come up to the circumstances upon which the decision in that case was based. Upon the subject under consideration we have been furnished with copies of opinions rendered by the Plonorable L. Stillwell, judge of the seventh district, and the Honorable O. L. Moore, of the eighth district, in which they ably discuss the questions before us and arrive at the same conclusion. We have adopted much of their reasoning in the above opinion.
The judgment of the court of appeals will be reversed and the judgment of the district court affirmed. | [
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Error from Greenwood district court.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This case involves the validity of a license-tax sought to be enforced in the city of Oswego. An ordinance authorized the levy of a license tax upon merchants, manufacturers, banks and bankers, according to the average value of stock or capital in use by them. Where the average value of stock or capital did not exceed $200 the license tax was $5; where the average value was from $200 to $500 the tax was $10 ; where the value was from $500 to $1000 the tax was $15; from $1000 to $1500 the tax was $20; from $1500 to $2000 the tax was $25; and on all who had over $2000 of average value the tax was $30. The average value of stock or capital of each dealer was to be determined by the assessed value of such stock or capital as shown by the last assessment-roll. In case the stock or capital of a dealer did not appear upon the last assessment-roll, the average value was to be determined upon the basis of valuation adopted by the assessors in assessing property for taxation. The petitioner in the present case was a grocery merchant whose average value of stock, according to the last assessment-roll, was $100, on which he was required to pay a license-tax of $5. In the return it appears that another merchant engaged in the same business had a stock of the average value of $2700, the license tax on which was $30.
The petitioner argues that the tax is discriminating and unjust because he is charged a rate of $5 on a stock valuation of $100, while the other merchant is required to pay only $1.15 on each $100 of stock valuation ; and for this reason he insists that the ordinance is invalid. There is unquestioned power in the legislature to impose a license-tax on occupations, whether it be laid for regulation or purposes of revenue. This power may be delegated to municipal corporations, and the fact that it may be based on valuation does not make it a property tax nor invalidate the ordinance imposing it. Being a license-tax, the express constitutional restrictions as to equality and uniformity of rate do not apply, and the amount of the tax, as well as the method of imposing it, is left to legislative judgment and discretion. (City of Leavenworth v. Booth, 15 Kan. 634; Fretwell v. City of Troy, 18 id. 271; McGrath v. City of Newton, 29 id. 364; City of Newton v. Atchison, 31 id. 151, 1 Pac. 288; Tulloss v. City of Sedan, 31 id. 165, 1 Pac. 285; City of Cherokee v. Fox, 34 id. 16, 7 Pac. 625; City of Girard v. Bissell, 45 id. 66, 25 Pac. 232; In re Chipchase, Petitioner, 56 id. 357, 43 Pac. 264.)
We do not say that such discretion is absolutely unlimited. If the license-tax imposed were flagrantly unreasonable, unjust, and oppressive, courts might properly interfere; but we have no such case before us. The fact that the license-taxes are graduated by valuation, and that a dead-level rate is not imposed on each $100 of valuation, does not manifest an abuse of legislative discretion or an invalidity of method. (City of Newton v. Atchison, supra.) While it is true that the larger the business the greater the protection afforded, other considerations enter into the determination, and necessarily there must be some elasticity in fixing and applying any standard of taxation. No standard can be employed which will in all cases secure exact equality and justice, and justice and equality would not be secured in all cases if license-taxes were laid under a hard-and-fast rule of uniform rate upon valuation of the stock used in the.business taxed. The protection afforded and the cost of furnishing it cannot be accurately measured by such a standard. The plaintiff has a business stand which needs and receives protection the same as a merchant with a larger stock, and it is easy to see that the cost to the city affording such protection is not proportioned exactly to the stock of merchandise which each man may have in his business house. Indeed, the usual plan adopted in imposing license-taxes is to place all persons engaged in a particular occupation or pursuing a particular business in a single class, and to require the payment of a level rate on such occupation or business, without regard to the amount invested in the occupation or business or the resulting profits. (City of Cherokee v. Fox, 34 Kan. 16, 7 Pac. 625; Campbell v. City of Anthony, 40 id. 652, 20 Pac. 492; City of Girard v. Bissell, 45 id. 66, 25 Pac. 232.) Such standards, although they may work a hardship in some cases, are not for that reason condemned, and certainly the standard used in this case, which graduates the tax to a certain extent upon the stock or capital used in the business, cannot be held to be so unjust and oppressive as to invalidate the tax. A large discretion must be accorded the municipal authorities, who know the needs of the municipality, the extent of the protection afforded to persons carrying on business within its limits, and the cost of providing such protection, and courts should not interfere with that discretion except in cases of gross abuse.
The petitioner attacks a provision of the ordinance fixing a tax on gift enterprises, or the distribution of merchandise or articles in any other way than the regular or ordinary manner of buying and selling the same. The provision is contained in another section of the ordinance, and is a matter with which he has no concern. Even if it should be intex’preted as a license of an illegal business, and was therefore invalid, it would not necessarily defeat the provision of the ordinance imposing a tax upon the petitioner and others engaged in a legitimate business.
We discover no invalidity in the tax imposed upon the petitioner, and therefore he will be remanded. | [
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The opinion of the court was delivered by
Ellis, J. :
The contention of the appellant is that “the proceedings had in the absence of the defendant were a part of the trial and did not cease to be so because reenacted in his presence,” and he urges that section 213 of the criminal code (Gen. Stat. 1897, ch. 102, §213; Gen. Stat. 1899, §5457), which provides that “no person indicted or informed against for a felony can be tried unless he be personally present during the trial,” was violated. It is also insisted that error was committed by the giving of oral instructions to the jury, contrary to the provisions of section 234 of the criminal code (Gen. Stat. 1897, ch. 102, §234; Gen. Stat. 1899, §5489), which provides that “the judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.”
The proceedings in the absence of the defendant were such as ought never to have been conducted without his presence in court. It is quite certain, however, that he was not prejudiced by anything done before he was brought into court, for, before the jury were permitted to retire for further deliberation, the defendant’s absence was discovered, he was sent for, and upon his arrival the court cautioned the jury to disregard all that had occurred in his absence. It seems very clear that no right of the defendant can be considered as having been imperiled by that which transpired when the jury was first brought into court, for the reason that they were expressly directed by the trial judge to disregard it, and for the further reason that the jurors would certainly be most likely to remember, and, therefore, to act upon, the words last spoken to them by the court.
The learned counsel for the appellant relies chiefly, as to his first assignment of error, upon the case of The State v. Myrick, 38 Kan. 238, 16 Pac. 330, but in that case the trial court, in the absence of the defendant, gave written instructions “as to what constitutes manslaughter in the second and third degrees,” and also included “a phase of the law relating to assault and battery.” In the case at bar, the court in direct terms declined to give the jury any additional instructions, and, in any view which may be taken of the remarks made by the judge, we think the cases clearly distinguishable. The error committed by the court in conducting proceedings appertaining to the trial when the defendant was not personally present was cured by the admonition of the court and the repetition of all that had transpired, as above set forth. (State of Iowa v. Hutchinson, 95 Iowa, 566, 64 N. W. 610.)
The second assignment of error is far more difficult, and, in the estimation of the writer, involves very grave doubts, but a majority of the court are of opinion that, from the particular facts and circumstances of this case, prejudice to the rights of the defendant cannot be fairly deduced from the words employed by the trial judge. That a trial judge ought not to repeat a part of the instructions and tell the jury that the words mean just what they say, that he could not make them plainer, is not denied. That a judge should not give the jury oral directions to go back to the jury-room and endeavor, in a spirit of conciliation, to harmonize their views; that he should not direct the foreman to see that a ballot is taken every fifteen minutes; that they should not be informed that he intends to keep the jury until it has agreed upon a verdict, is admitted. -That the rights of the defendant would be jeopardized by any or all of these statements on the part of the court is a more doubtful proposition. In other words, prejudicial error will not be inferred from the mere fact that the trial judge made brief oral statements to the jury, but the court will look into the record for information, and will consider all that is said, and the circumstances under which the remarks complained of are made, before deciding to reverse a case therefor.
In the case of The State v. Potter, 15 Kan. 308, our statute requiring the charge to the jury to be in writing is compared to those of other states, and several decisions of other courts are cited. Mr. Justice Brewer, in the opinion, said :
“It will be noticed from this review that our statute is not so specific or minute in its restriction upon the action of the court as those of several other states. The language is general, and simply calls for a written charge, and requires it to be filed among the papers.”
The several propositions “ deduced from the authorities” by the learned judge (p. 320) are worthy of studious consideration. In that case the foreman of the jury asked the following question : “I ask whether a party could be an accessory, aider or abetter of another who committed the crime of manslaughter in the second degree ? ’ ’ Thereupon the court gave wri t-ten instructions, and stated orally to the jury the following :
“I mean by that, that makes him principal, and not accessory. There is no such thing, in my judgment, as accessory to this case. Those acts make him principal, and should be regarded by you as principal, and not accessory. He is either principal, or nothing.”
The court held that these oral statements did not constitute error, as they were made in direct response to a question propounded by the jury. We think that case presented stronger reasons for inferring prejudice to the defendant’s rights than does the one at bar. Besides, in that case there was no direction or caution given to the jury not to consider the oral statements, as there was in the one we are considering.
As to the advice given to the jury in regard to their conduct and the spirit in which they should act in their deliberations, the case presents an analogy to the case of Territory v. King, 6 Dak. 132, 50 N. W. 623. The third clause of the syllabus in that case is as follows :
“A jury having been out twenty-eight hours in a prosecution, for a felony, and having been brought in for further instructions, the court, after giving.the instructions, stated to them : ‘I think you will be able to arrive at a verdict in this case; the case has been twice tried, at a great deal of expense to this county, and it seems to me, gentlemen, that you ought to agree on a verdict.’ Held, that while' these remarks were objectionable, they would not warrant setting aside the verdict.”
In The State v. Garrett, 57 Kan. 132, 45 Pac. 93, the third clause of the syllabus reads as follows:
“An oral statement made by the judge to the jury after the case had been submitted to them, in which he admonished them that it was important that they should agree upon a verdict, and directed, their return to the jury-room to make another effort to that end, examined, and held not to constitute prejudicial error.”
In neither of the cases just cited was any effort made to cure the error committed by the court in giving the oral directions complained of, while, in this case, at the very close of the proceedings had in the presence of the defendant, and just before the jury retired for further deliberation, the court made the following statement:
“I do not desire or design to give you any additional instructions, and you are to remember these written instructions are your sole guide, and anything that may have been said contrary to them is n’t intended. What I have intended to do is simply to reiterate.”
We think that, under the circumstances of this case, it is fairly to be presumed that the jury gave heed to this final statement of the court, which certainly required them to follow the written instructions and be guided by them alone, and if they did do so, the words thus spoken would operate as a cure of former errors.
Therefore, in the opinion of this court, no prejudicial error was committed by the trial court, and its judgment will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J.:
This was an action brought by the defendant in error against the plaintiffs in error to enjoin the sale under execution of a tract of land. Judgment was rendered perpetually enjoining the sale and the defendants have prosecuted error to this court.
Summarized, the facts were that the plaintiff below, P. J. Simpson, or Miss Jessie Simpson, as she is sometimes designated in the record, became of age in 1883. After attaining her majority she continued to live with her father and mother as a member of the family, performing in it the ordinary household duties, but receiving no compensation therefor other than her maintenance. In 1891 her mother became ill, and died in about a year thereafter. During the mother’s illness the daughter, at the solicitation of her parents, agreed -to remain at home and take care of the household, the father promising, if she would do so, to pay her for her future labors and also for what she had, already done. To this she assented, and thereafter remained at home in charge of the household until her mother’s death, and thereafter until the events subsequently narrated. The mother at the time of her death owned 600 acres of land, but made no devise of it. At her death one-half of this land went to the husband and father, under the statute of descents and distributions; the other half to the children, of whom there were several, Miss Jessie being the oldest.
In 1894 the father, William Simpson, became indebted as surety for another to the State Bank of Port Scott. The indebtedness was not paid, and in 1896 judgment for the amount of it was recovered. A few months preceding the recovery of the judgment Simp son conveyed his half interest in the land which had belonged to his wife to the daughter, Miss Jessie, in fulfilment of the promise he had made to pay her for remaining at home, and for the household services rendered by her. In the meantime the State Bank had gone into the hands of a receiver, who, conceiving the conveyance from the father to the daughter to be without consideration and fraudulent, caused execution to be issued on the judgment and levied on the land. To enjoin the sale of the land upon the execution and levy, the action in the court below was brought. A jury was called to consider certain matters of fact in issue and to advise the court thereon, but not to render a general verdict. It was asked the following questions, and made the following answers :
“1. Ques. Were the deeds in question or either of them made by William Simpson to F. J. Simpson for the purpose of hindering, delaying or defrauding the receiver of the State Bank of Fort Scott? Ans. No.
“2. Q. Did F. J. Simpson receive said deeds or either of them with the purpose of aiding or assisting her father in hindering, delaying or defrauding said receiver ? A. No.
“3. Q,. Did F. J. Simpson, at or before the date of said deeds, have knowlege of the purpose of her father by making said deeds to hinder, delay or defraud his; creditors ? A. No.
“4. Q,. Did F.J. Simpson, at or before the date of said deeds, have the means or opportunity of ascertaining that it was the pu'rpose of her father in making said deeds'to hinder, delay or defraud his creditors? A. No.
“5. Q. What consideration, if any, did F. J. Simpson pay her father for the deeds in question ? A. By her labor.”
Upon the return of the above interrogatories and answers, the court, desiring to be further advised upon other matters in issue, of its own motion ordered a continuance of the case, and at the succeeding term submitted other questions to another jury, which, with the answers thereto, were as follows :
“1. Ques. What was the real estate conveyed to plaintiff worth? Ans. $3450.
“2. Q. What was the amount or value of the consideration which said plaintiff paid for the land so conveyed. A. $1500.”
The' court thereupon rendered judgment for the plaintiff “upon the pleadings, evidence, and answers of the jury to the special questions propounded to them.” Prom this judgment, as before stated, error has been prosecuted.
The first error assigned is the submission of issuable facts to two different juries. This method of practice has not been heretofore called to our attention nor have any cases in other states approving or disapproving it been cited to us. We are unable to perceive in it, alone, any prejudicial error. The case was one in equity. Neither of the parties was entitled to a jury. The court might have heard it without a jury. It was the common practice of the equity courts before the adoption of the code to take the advice of a jury as to difficult questions of fact, especially in cases involving charges of fraud, and the practice of doing so still prevails under the reformed procedure. However, in such cases the courts are not bound to rest their conclusions upon the findings of fact made by the jury but may disregard them wholly, if not consistent with their view of the evidence. It would seem to follow, therefore, that until the court feels sufficiently enlightened upon the meritorious issues of the case it may continue to ask the advice of jurors concerning them, and, unless it be shown that prejudice to a suitor has resulted from so doing, the bare fact that the court submitted some of the issuable facts to one jury and others to another one will not constitute reversible error. It may be remarked in this connection that the fact that the case was partially tried at one term of court and concluded at another one, while mentioned by plaintiffs in error as an incident of the proceedings, is not asserted to be in itself a ground of error. It is the fact that it was tried at different times — not that those times were different terms — of which complaint is made.
The plaintiffs in error objected in the court below to the sufficiency of the consideration for the deed to the land from the father to the daughter. This they did by objections to evidence, by requests for instructions to the jury which were not given, and objections to instructions which were given. In support of this claim of error they urge the familiar doctrine that a child, who after attaining majority continues to reside with the parents and to perform for them household or other labors, is presumed to do so as a member of the family, and is not entitled to payment therefor, to the prejudice of the parents’ creditors, unless it be shown that the services were performed in pursuance of a contract for compensation. That such is the rule will not be questioned, but under the facts of the case as specially found by the jury and approved by the court, and likewise as generally found by the court itself as to matters not specially submitted to the jury, the case of the young woman falls within the exception to the rule which allows compensation, and not within the general rule which disallows it; that is to say, there was an agreement by the father to pay the daughter for the services. As previously stated, before the recovery of the judgment upon which the execution in question was issued, and to induce the daughter to remain in the household and continue her services, the father promised to pay her not only for what labor she might thereafter perform but for what she had already performed since attaining her majority.
That a parent may compensate an adult child for remaining in the family and performing labor therein cannot be questioned. We think it never has been questioned. That after an adult child has performed services without an agreement for compensation, the parent, as an inducement to remain in the service of the family, may lawfully promise to pay for what before that time had been performed without an agreement cannot, as we think, be questioned. Of course in such last-mentioned case the agreement to pay for past services must not be a device to defraud creditors. It must be bona fide. If bona fide, the transaction is unassailable. In the case under consideration the court below found it to be bona fide, and it is therefore unassailable, because the consideration to pay for the past services was not the performance of those services, but it was the agreement to remain in further service. The facts in the case of Graves v. Davenport, 50 Fed. 881, were quite similar to the facts in this case, and in that the agreement between the parent and child was upheld. Other cases not entirely similar but sufficiently so to indicate the just rule are Howard v. Rynearson, 50 Mich. 307, 15 N. W. 486; Citizens’ State Bank v. Weston, 103 Iowa, 736, 72 N. W. 542.
Another assignment of error is that the judgment of the court below was contrary to the evidence. The argument under this assignment specialized some claimed contradictory evidence of the defendant and her witnesses, and some facts and circumstances supposed to be indicative of fraud, one of which was a disproportion between the value of plaintiff’s services and the value of the land deeded to her. As to all of these matters the plaintiffs in error are concluded by the findings of the jury and the court.
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Error from Cowley district court.
Affirmed. | [
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Error from Neosho district court.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an action brought on behalf of the state to recover on the interest coupons of municipal bonds issued by the county of Wichita, and it is the second time that the controversy has been before us for consideration. (The State v. Wichita County, 59 Kan. 512, 53 Pac. 478.) The bonds in issue are known as refunding bonds, authorized by chapter 163 of the Laws of 1891 (Gen. Stat. 1897, ch. 48, §§ 1, 3, 4; Gen. Stat. 1899, §§ 517, 519, 520), and purport to have been issued to refund bonds previously issued by the county in aid of the construction of two railroads. In 1887 the electors of the county voted bonds to aid in the construction of a railway of the Chicago, Kansas & Western Railroad Company, to the amount of $80,-000, and also of the railway of the Denver, Memphis & Atlantic Railroad Company, to the amount of $55,-000 ; and the county was to receive an equal amount of the capital stock of each company in exchange for the county bonds that were to be issued.
It was alleged, and testimony was offered to show, that the original bonds were not in fact issued to the railroad companies, but that, after the vote was taken and the railroads built, a dispute between the county and the railroad companies arose as to the issuance of the bonds. Finally a compromise was effected, in which the Chicago, Kansas & Western Railroad Company agreed to accept refunding bonds in the amount of $55,000, and the Denver, Memphis & Atlantic Railroad Company agreed to accept refunding bonds in the sum of $30,000. Instead of issuing the original bonds and then refunding them, the commissioners made a record reciting that the original bonds were issued and were in existence, and that upon a compromise being made the refunding bonds were issued to take them up.
The refunding bonds that were issued, and which are now in dispute, contained recitals that they were issued for the purpose of refunding the bonded in debtedn-ess of the county, in conformity to and in compliance with chapter 163 of the Laws of 1891 (Gen. Stat. 1897, ch. 48, §§1, 3, 4; Gen. Stat. 1899, §§ 517, 519, 520) ; that the bonded indebtedness refunded actually existed at the time of the passage of the said act of 1891; that proper evidence of such indebtedness for which the bonds were issued had been delivered up for cancelation; that the bonds so delivered up for cancelation had been issued and outstanding for more than two years before the order for refunding the same, and that all acts, conditions and tilings required by the said act of the legislature to be done precedent to the issuance of the bonds had been properly done and performed. In addition to this recital, a report was made by the board to the auditor of state showing that the refunding bonds had been issued in lieu of other existing bonds, and that the bonds for which the refunding bonds had been issued had been deliveréd up for cancelation and had been duly canceled, and had marked across the faces thereof, in plain manner, the words “Paid in full,” and also that an order had been made for the destruction of the surrendered bonds, describing them, and, in pursuance of the order, and in the open session of the board and in the presence thereof, the bonds funded were burned and destroyed. The auditor of state thereupon registered the refunding bonds in question, and indorsed on the back of them a certificate that they had been regularly and legally issued, according to the provisions of the Laws of 1891, and that the signatures attached thereto were genuine.
More than two years afterward the refunding bonds so issued and registered were purchased by the school-fund commissioners for the benefit of the permanent school fund, and for about four years thereafter the county regularly paid the interest, but afterward default was made and the attorney-general brought this action. It was developed on the trial and found by the court that the railroad bonds voted by the people of the county were not actually issued, and that the refunding bonds in question were not issued in lieu of other bonds; that no evidence of indebtedness of any character was surrendered for cancelation, and that no bonds or coupons were destroyed by the county commissioners at the time the refunding bonds were issued. It was also found that the refunding bonds issued were in excess of five per cent, of the total valuation of the taxable property of Wichita county. As will be observed, the recitals in the bonds are full and complete, and show that all of the conditions prerequisite to an issuance of the bonds had been complied with,.and that they were regularly and honestly issued by the proper officers of the county. Do these recitals, and the certificate of the officers that all of the facts necessary to the issue of the bonds existed and that all the requirements of the. law had been complied with, estop the county from denying the existence of the facts of the non-compliance with the requirements in ah action upon them by a bona fide holder ?
The general rule is that Individuals cannot by their representations induce others to purchase property or part with money and afterward deny the representations or repudiate the obligations assumed on the faith of their representations. In their dealings municipal and other corporations are held to the same rule of truth and honesty as individuals, and the innocent purchaser of municipal bonds has a right to assume that the officers representing the municipality are honest and that the statements made in the exercise of their authority are true. Business is transacted and justice administered upon the presumption that private citizens and public officials are honest and faithful, and the presumption continues until the contrary is shown. This presumption, together with the negotiable quality of municipal bonds and the conclusiveness of recitals in them, greatly facilitates their sale and exchange and largely increases their value. Of course, officers cannot issue municipal bonds unless the law vests them with power to issue such bonds, and where there is no power officers cannot by recitals merely bind the municipality or estop it to deny the 'truth of the recitals. The general rule is, however, that if under any state of facts and circumstances there is lawful power in the municipality and its officers to issue bonds, they may, by recitals in the bonds, estop the municipality to deny the existence of the prerequisite facts and circumstances recited, unless the law prescribes a particular test, such as a public record, for the determination of the existence of such facts and circumstances.
In behalf of the county, it is contended that whether bonds had been issued and outstanding for two years prior to the issuance of the funding bonds in controversy might have been ascertained from the records of the county clerk and auditor of state under certain general provisions of the statute. (Gen. Stat. 1897, ch. 46, §§ 13, 14; Gen. Stat. 1899, §§ 488, 489.) The act under which the refunding bonds were issued (Laws 1891, ch. 163 ; Gen. Stat. 1897, ch.48, §§ 1, 3, 4; Gen. Stat. 1899, §§517, 519, 520) does not limit the bonds to be refunded to those which may have been entered or registered by the county clerk or other officer. On the other hand, it expressly authorizes the funding of bonds which have been issued and out standing for more than two years, without reference to the registration. A bond is not invalid because it has not been registered, and there is no reason why unregistered bonds legally issued and which have been outstanding a sufficient length of time should not be refunded. Then, again, the refunding act itself under which the bonds in question were issued requires the county commissioners to ascertain and certify on the face of the bonds that they were issued under that act. (Gen. Stat. 1897, ch. 48, §2; Gen. Stat. 1899, § 518.) It thus appears that the act expressly authorizes recitals; and it goes still further, and provides that a public record shall be made of all bonds issued in pursuance of the act, not only with the county clerk but also with the auditor of state. The commissioners are required to make and forward to the auditor of state a certified statement of all the proceedings had by them in issuing the bonds, and that the bonds had been issued in all respects in conformity with the act, for certain indebtedness surrendered, distinctly describing the indebtedness surrendered and the bonds issued, and also that they had been duly registered, which statement is required to be signed by the officers signing the bonds and attested by the clerk. Thus we see that the act itself not only provided for recitals, but also for a record in the auditor’s office containing a detailed statement showing all important facts as to the debt refunded and the right and authority to refund, and all the steps taken in the matter of refunding. In this instance the statement was made and filed by the county commissioners, and the public record so made corresponded with and sustained the recitals in the bonds' in every particular a.nd showed that they were regularly and legally issued.
The county commissioners are the authorized agents of the county to control its business and financial concerns, and their statement made in pursuance of the statute was an assurance to the school-fund commissioners that the debt funded was a valid one, and that it was in the form of bonds which had been outstanding for more than two years before the time of refunding. In addition to their general authority the commissioners had specific power to refund bonded indebtedness. In the exercise of that power it devolved upon them to ascertain and determine that the debt offered to be refunded was bonded indebtedness, ;and, further, that such indebtedness had been outstanding for more than two years. It being incumbent on them to ascertain and determine these prerequisite facts, their decision, and the recitals by them as to the existence of such facts, and also that all conditions precedent had been complied with, are conclusive in favor of the bona fide holder.
These conclusions follow from a long line of decisions of the federal courts, including the United States supreme court, as to the conclusive effect of recitals in municipal bonds. Most of the cases involving this question are triable, and are in fact tried, in the federal courts, and, it being a subject of general jurisprudence which these courts determine for themselves independently of the rulings of the state courts, and which has been so frequently and fully considered, we are constrained to follow the rules established by the supreme court of the United States, whatever might have been our own views of some phases of the question if we had first been called upon to decide them. It is contended that there has been a departure from the rule in Sutliff v. Lake County Commissioners, 147 U. S. 230, 13 Sup. Ct. 318, 37 L. Ed. 145, and some of the language used in the opinion gives cause for the contention ; but the later cases, and especially Gunnison County Commissioners v. E. H. Rollins et al., 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689, in which the preceding cases are fully reviewed, leave no doubt of a purpose to adhere to the doctrine of the conclusiveness of recitals. The circuit court of the United States recently passed on the validity of refunding bonds of "Wichita county which were issued under exactly similar circumstances as those in controversy here, and were in fact a part of the same series. The validity of the bonds, and the right of a bona fide holder to recover on them, was decided upon the grounds asserted here, and we delayed the determination of this case a considerable time awaiting a decision by that court. A few weeks ago the case was decided from the bench by a unanimous court, and it was ruled that recitals wbre conclusive, and that the county was estopped to deny the facts recited.
Our conclusion from all the authorities is that, as against the state, the recitals on the face of the bonds estop the county from denying the truth of the same, and it is no defense that the debt refunded was not in fact bonded indebtedness, nor that the bonds certified to have been refunded were not outstanding more than two years before the time of the refunding. Among the authorities supporting our conclusion, we cite the following: Commissioners of Knox County, Indiana, v. Aspinwall et al., 21 How. (U. S.) 539, 16 L. Ed. 208; Town of Coloma v. Eaves, 92 U. S. 490, 23 L. Ed. 579; Orleans v. Platt, 99 U. S. 676, 25 L. Ed. 404; Hackett v. Ottawa, 99 id. 86, 25 L. Ed. 363; City of Cadillac v. Woonsocket Inst. for Savings, 58 Fed. 935, 7 C. C. A. 574, 16 U. S. App. 544; City of Huron v. Second Ward Sav. Bank, 86 Fed. 272, 30 C. C. A. 38, 49 L. R. A. 539; Board of Com’rs v. Ætna Ins. Co., 90 Fed. 222, 32 C. C. A. 535, 61 U. S. App. 41; National Life Ins. Co. v. Board of Education, 62 Fed. 778, 10 C. C. A. 637, 27 U. S. App. 244; Board of Com’rs v. Society for Savings, 101 Fed. 767, 41 C. C. A. 667; Hughes County v. Livingston, 104 Fed. 306, 43 C. C. A. 541; Clapp v. Otoe County, 104 Fed. 473; Chaffee County v. Potter, 142 U. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040; Evansville v. Dennett, 161 id. 434, 16 Sup. Ct. 613, 40 L. Ed. 760; Provident Trust Co. v. Mercer County, 170 id. 593, 18 Sup. Ct. 788, 42 L. Ed. 1156; Gunnison County v. Rollins, 173 id. 255, 19 Sup. Ct. 390, 43 L. Ed. 689.
There is a further contention that the refunding bonds issued were in excess of the amount which the county was authorized to issue ; but this question, like those that have been considered, was for the determination of the board, and, under the rule of the authorities, its certificate and recitals preclude an inquiry into those matters, as against a bona fide holder. Aside from that consideration, it -would appear that the indebtedness of the county was not increased by the act of refunding. For the purposes of this case it must be assumed that the debt refunded was a valid bonded indebtedness, and the refunding bonds issued, instead of increasing the debt of the county, actually compromised and diminished it. Besides, the provision of the statute under which the bonds were issued fixes the limitation, and manifestly it has no application to the bonds in controversy here. The limitation is found in section 2 of the act, and is as follows :
“That except for the refunding of outstanding bonds or matured coupons thereof or judgments thereon, no bonds of any class or description shall hereafter be issued where the total bonded indebtedness of such county or township would thereby exceed five per cent, of the assessment for taxation as shown by the last finding and determination of the proper board of equalization,” etc.
As will be observed, funding bonds and the coupons thereof, as well as judgments thereon, are excepted from the limitation, and, obviously, it was not the legislative purpose to prohibit the refunding of outstanding bonds, whether over or under the limitation. In effect, the legislature has declared that no bonds of any class or description other than outstanding bonds shall be issued where the total debt would exceed the limit fixed.
It follows that the judgment of the district court must be reversed and the cause remanded for further proceedings in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Doster, C. J.:
This is an appeal from a judgment of the district court of Hodgeman county sentencing the appellant for the crime of manslaughter in the fourth degree. The homicide occurred in Rush county. A trial was had in that county at the October term for 1898, which resulted in a conviction. From the judgment then pronounced an appeal was taken to this court, and it was reversed and a new trial ordered. (The State v. Start, 60 Kan. 256, 56 Pac. 15.) A trial was again had in Rush county at the October term, 1899, but the jury failed to agree. The record of this second trial, after reciting the impanelment of the jury, the trial of the case, and the submission of it to the jury,concludes-in the following language : “Thereafter, on the 14th day of October, 1899, the jury, not having agreed upon a verdict, was by the court discharged.” The record contains no statement indicating the reasons for the discharge of the jury other than the fact that they had not agreed on a verdict. A change of venue to Hodgeman county was taken. Rush and Hodgeman counties are in the same judicial district and are of course presided over by the same judge, and all the trials herein spoken of were had before him. The case was twice tried at the regular December, 1899, term of Hodgeman county. At each of these trials the defendant interposed a plea of former jeopardy. Demurrers to these pleas were sustained and the defendant ordered to trial. At both trials the jury disagreed and the case was ordered to be again heard at an adjourned term in January, 1900. At this adjourned session the defendant again interposed a plea of former jeopardy, reciting his trial at the previous October term in Rush county and the unauthorized discharge of the jury without a verdict. Upon the hearing of this plea, the’’attorneys for the state moved the court to correct the journal entry of the proceedings of the district court of Rush county so as to show legal reasons for the discharge of the jury in that county, and thereby to conform to what were claimed to have been the actual facts. This motion was sustained, and an amended journal entry of the proceedings in Rush county prepared and signed by the judge. This journal entry recited reasons sufficient in law for the discharge of the jury in Rush county. The plea of former jeopardy was thereupon overruled and a trial had, which resulted in the judgment of conviction before stated.
In The State v. Allen, 59 Kan. 758, 54 Pac. 1060, it was held:
“Where a defendant has been placed upon trial on a criminal charge and the jury is duly impaneled and sworn, the court cannot arbitrarily discharge the jury before a verdict is returned ; and a discharge in such case, unless an absolute necessity, and for reasons which are sufficient in law, will operate as an acquittal.
“The essential facts upon which the discharge is based, and the finding of the court thereon, must be entered of record, and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient grounds for discharge, the defendant cannot again be put on trial for the same offense.
“A record entry that the jury, not having agreed, is discharged, does not show inability to agree, or any necessity for a discharge.”
The facts of that case and of this one are identical in effect, and the records of the two cases are very nearly identical in language. No question is raised by the state in this case as to the controlling authority of the one cited. The record of the proceedings of the district court of Rush county at the October term for 1899, as first made up, utterly failed to show any sufficient reason for the discharge of the jury. Under the decision in The State v. Allen, supra, the defendant thereupon became entitled to a discharge from custody. The only question, therefore, is, Of what effect were the proceedings in Hodgeman county purporting to amend and correct the record of Rush county? Our decided judgment is that they were of no effect whatever. The constitution of the state declares that “the district courts shall have such juris diction in their respective districts as may be provided by law.” (Art. 3, § 6.) “The several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law.” (Art. 3, §16.) The statutes provide :
“There shall be in each county organized for judicial purposes, a district court, which shall be a court of record, and shall have general original jurisdiction over all matters, both civil and criminal, not otherwise provided by law,” etc. (Gen. Stat. 1897, ch. 85, § 1; Gen. Stat. 1899, §1879.)
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation or at chambers as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders,” etc. (Gen. Stat. 1897, ch. 85, §2; Gen. Stat. 1899, § 1880.)
The first of these statutes confers power on the courts in term time ; the second confers power on the judges at chambers. Elsewhere in the statute may be found provisions which, as to particular matters, confer power either on the court or on the judge, but none of them confers the power that in this case was exercised by the judge of the district court of Hodge-man county, either as a judge or as a court. It will be borne in mind that the order in question was made by the district court of Hodgeman county as to a case in the district court of Rush county, or rather as to a case which had been in the last-named county. Now, while these two counties are in the same judicial district, and the district courts of both of the counties are presided over by the same judge, yet they are not the same courts. They are separate and independent —as much so as though they were not in the same district. For convenience in the administration of justice the state is divided into districts, each district embracing the number of counties assigned to it, but the counties so assigned are, for all judicial purposes, in every sense of the word, independent of one another. The district court of Hodgeman county had, therefore, no jurisdiction whatever to make an order affecting a case in Rush county, or vacating or correcting the records of the district court of that county, merely because the judge of the two counties happened to be the same. To allow such power to be exercised would logically lead to the obliteration of all distinctions between the district courts of the different counties, and to lodge in the judge of the district the power to hold court for the entire district in such single county as he might choose.
Nor, viewing the judge making the order at his chambers, and the order as one made in the vacation of the district court at Rush county, can the authority exercised be upheld. However, the state does not claim that the order was made at chambers in vacation. If such claim were made, it would of necessity have to be brought within the terms of the final clause of section 2 of the statute above quoted, which reads : “And to grant or vacate all necessary interlocutory orders.” But the order in question, if interlocutory in any sense, was not so in the sense which justified the judge at chambers to make it. It was an order vacating the entry of one judgment and directing the entry of another, and such kind of order can only be made by the court. There are no statutory provisions conferring power upon the district courts to vacate or amend their orders and judgments which, by their terms, are made applicable in criminal cases, and, of course, no statutory power in the judges at chambers to make such vacation or amendment in such class of cases. If the power to vacate and amend orders in criminal cases exists, it is either inherent in the court or the judge, or is allowable under the terms of sections 568 et seq. of the code of civil procedure. (Gen. Stat. 1897, ch. 95, § 601; Gen. Stat. 1899, § 4862.) It may be that in respect to such matters the code of criminal procedure appropriates to itself the provisions of the code of civil procedure for the vacation or amendment of judgments and orders, but, if so, the power to vacate or amend must be exercised by the court and not by the judge, because the sections of the code of civil procedure referred to confer power on the court, not on the judge. It is probably true that, independently of the statute, power exists to vacate or revise the entry of judgments or orders, but, if so, it is the court, not the judge, which possesses the power. Wherever such power is discussed it is spoken of as belonging to the court, and never, as belonging to the judge. (1 Black, Judg. § 297.) Upon the other hand, the rule is that the powers of a judge at chambers are only such as have been conferred upon him by statute.
“The powers of judges at chambers are usually regulated by statute or rules of court, and the general doctrine is that all judicial business must be transacted in court, whether there be any express direction to that effect or not; and that such business as may be transacted out of court is exceptional and must find its express authority in statute.” (4 Encyc. Pl. & Pr. 837. See, also, In re Barnhouse, 60 Kan. 849, 58 Pac. 480.)
"When a law authorizes or contemplates the doing of a judicial act, it is and must be understood to mean that the court, in term time, may or must do it, and not the judge in vacation, unless expressly conferred by the words of the law.” (William S. Reyburn agt. Bassett and Brackett, McCahon, [Kan. Ter.] 86.)
That an order for the vacation or correction of a judgment is not an interlocutory order which may be 'made by the judge in vacation is sufficiently evidenced by the fact that the power to amend or vacate is limited to the courts, as such, by sections 568 et seq. of the civil code above cited. It -would be startlingly strange, indeed, to hold that, although the exercise of the power of vacation or amendment of judgments and orders in civil cases is limited to the courts in term time, yet the same power may be exercised in criminal cases by the judge, out of court, in vacation. It will be observed that it is not merely the power to vacate or modify judgments and orders, which, in fact have been rendered that, by the terms of section 568 of the civil code, is limited to courts, but it is also the power to vacate or amend judgments which have been irregularly, undesignedly or mistakenly entered which is likewise limited to courts, and thus by implication denied to judges. When an entry of judgment has been made, whether by mistake or otherwise, the court is bound to treat it as a judgment until it can be gotten rid of in the usual and formal way. There is no more power in the judge at chambers to vacate the entry of a judgment never rendered than there is to vacate the entry of one which in fact was rendered. In the case under consideration, a judgment was entered on the records of the district court of Rush county. That judgment, so it was claimed, was incorrect, irregularly obtained, or the entry of it was made by mistake of the clerk. Nevertheless it had to be treated, for the time being, as a judgment. It was the only evidence of the action of the court. It imported absolute verity, and was entitled to stand as a judgment until by proper proceedings it could be vacated or corrected. Hence, for the purpose of the power to vacate, no distinction can be drawn between a judgment and an entry purporting to be a judgment. For the purpose of the case we are considering, or any other like case, they are one and the same thing.
But we are not without authority upon the precise question. In the case of Devine v. The People, 100 Ill. 290, an order of court improvidently settling an erroneous bill of exceptions in a criminal case was made. Upon the discovery of that fact the judge who tried the case settled a supplemental bill of exceptions at his chambers in another county, so as to correct the errors of the original bill. The supreme court refused to consider the supplemental bill, saying:
“It is a well-recognized principle that judges can exercise no judicial functions in vacation except such as they are specially'authorized to do by statute. It is true the mere settling and signing of a bill of exceptions may not be the exercise of judicial power, yet, when once it is signed, sealed and filed in the proper office, it becomes as much a part of the record as an indictment or declaration when so filed, and, like other portions of the record, it imports a verity, and no plea or averment will be admitted which questions the truth of what it imports. If what purports to be a record has been so made up by the clerk or other official as to not speak the real facts, it must be amended so as to' conform to them, and this' can only be done by the court whose record is sought to be amended, and must, as a general rule, be done on due notice to all such as will be affected by the amendment. It would certainly be competent for the legislature to authorize judges to hear and determine questions of this character in vacation, but we are aware of no statute that authorizes them to do so.”
To the same effect are the cases of Ingram v. Belk et al., 2 Rich. Law (S. C.) 111; Garlington v. Cope land, 32 S. C. 58, 10 S. E. 616. Some contrary holdings have been made in Louisiana, but. they are not in harmony with any of the other authorities, and unless consonant with the rules of the civil law which prevail in that state are erroneous in principle. See, also, State v. Folke, 2 La. Ann. 744; Picard & Weil v. Prival, 35 id. 370.
But the order for the amendment of the record must be regarded as erroneous for another reason, which appears to us equally as conclusive as the one above given. Whether regarded as an order made by the district court of Hodgeman county, or by the judge of the district court of Rush county at his chambers' in Hodgeman county, the order was made as to a case which had no existence or status in Rush county, the county in which it was designed to operate. There was no case in Rush county. The case which at one time had been upon the docket in that county had been transferred to another county. After the transfer the case was pending in Hodgeman county, and wholly pending there, and the district court of Hodgeman county had jurisdiction over the defendant only in that county, but the order was made to operate upon the defendant as though he were still in Rush county. Neither the court nor the judge could make an order affecting the rights of the defendant except in the jurisdiction in which his case was triable, or rather could make no order operative within a jurisdiction in which he was not being held for trial. When the venue of a case has been changed from one county to another the court from which the order of removal is made loses jurisdiction over the case, and jurisdiction over it henceforth becomes lodged in the court to which the change has been made. There may be some exceptions to this as a general proposition, but in the main the rule as stated, must be considered as sound, because two courts cannot have jurisdiction at the same time over the same parties and the same subject-matter. A case declarative of the principle is Keen v. Schnedler, 92 Mo. 576, 2 S. W. 312. In that case it was held that a court to which the venue of a case had been changed had no jurisdiction to allow a bill of exceptions as to matters occurring in the court from which the removal had been made.
But, after all, the general principle applicable to this case is one that has been frequently decided in this state, and that is that a court has no power in vacation to render a judgment in a cause; In the case of In re Millington, Petitioner, 24 Kan. 214, it was ruled that judicial proceedings not had at a regular and valid term of the court are void. In the case of Earls v. Earls, 27 Kan. 538, it was held that a judgment of divorce could not be rendered in vacation in a case which had been tried at the preceding term. In the case of Cox v. The State, ex rel., 30 Kan. 202, 2 Pac. 155, it was held that where by operation of law a term of court in a certain county expired, in order to the commencement of a term in another county of the same district, a case on trial before a judge pro tem. in the first-mentioned county could not be concluded in that county after the expiration of the term there, and while the regular judge of the district was holding the other term in the other county. In the case of Packard v. Packard, 34 Kan. 53, 7 Pac. 628, an action for divorce and alimony had been tried in one county. A judgment granting the divorce was rendered before the close of the term, but the matter of alimony was taken under advisement and was determined after the term and in another county. It was held that that part of the judgment relating to alimony should be set aside and held for naught.
Our conclusion is that the order made in Hodgeman county correcting the journal entry of proceedings in Rush county was made without jurisdiction either in the court or the judge, and that it could not operate against the defendant’s plea of former jeopardy; and, inasmuch as no similar order can ever be made without the defendant’s consent, he is entitled to his discharge upon his plea. The judgment of the court below is therefore reversed, with directions for the appellant’s discharge. | [
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The opinión of the court was delivered by
Greene, J. :
In this state every action must be brought in the name of the real party in interest, except those provided for in section 28 of the code of civil procedure. (Gen. Stat. 1897, ch. 95, §22; Gen. Stat. 1899, §4272.) It is not claimed that this action was prosecuted by plaintiff in error under any of the provisions of the latter section, nor is it claimed that the plaintiff below was, at the time this action was comménced, the owner of the notes sued upon; but its contention is that it is the agent of the owners for suit and collection and in the possession of and the indorser of the notes, and, as such indorser, has a beneficial interest therein and may therefore maintain an action in its own name.
We think the plaintiff in error had no beneficial interest in the notes. The title thereto and the right to the proceeds thereof passed to Tootle, Lemon & Co. upon the indorsement and delivery by the payee, and Tootle, Lemon & Co. are entitled to the entire proceeds of these notes, and not the plaintiff in error. The plaintiff, by its pleading and statement, places the question of the ownership of the notes beyond controversy in Tootle, Lemon & Co. At the time this action was' commenced, by the admitted statement of of counsel, the plaintiff in error was the holder of the notes for collection. The question, then, is, Can an agent who holds paper for suit and collection only bring an action in his own name? We think not. He is not the real party in interest and has no beneficial interest in the paper.
The case of Armour Bros. Banking Co. v. Riley Co. Bank, 30 Kan. 164, 1 Pac. 506, was an action on a sight-draft, indorsed as follows : “Pay W. H.Wynants, Esq., cashier, or order, for account of the Riley County Bank, of Manhattan, Kan. J. K. Win chip, Cashier.” The court said: .“This is a restrictive indorsement, and that it operated to transfer the draft to the plaintiff only as agent for purposes of collection cannot be doubted.” It was held that the plaintiff had no property in -the draft and could not recover on it. In Ketcham v. Commission Co., 57 Kan. 773, 48 Pac. 29, the court said :
“Many authorities are cited to the effect that the indorsement of a negotiable promissory note, secured by mortgage, passes the title to the mortgage as well. This seems to be a well-settled rule of law. . . . In the absence of any special agreement, it has been held that the payee who has indorsed a note to a bank as collateral security cannot maintain replevin for property covered by a chattel mortgage securing the nove so indorsed; that the right of action is in the bank.”
The case of Cavanaugh v. Brodboll, 40 Neb. 875, 59 N. W. 517, approved by this court in Ketcham v. Commission Co., supra, was an action similar to the one at bar, and the court held :
“The payee of certain notes secured by a chattel mortgage indorsed and delivered the same to a bank as security for an indebtedness owing by him to it. During the time the bank so held said notes and chattel mortgage the said payee brought against a subsequent mortgagee of said, property, who had taken possession thereof, an action of replevin, basing his right to the possession of said property on the notes and mortgages he had assigned to the bank. ' Held, (l)that the indorsement and delivery of the note to the bank operated as an assignment to it of the mortgage which the notes were given to secure; (2) that said payee at the time he brought this action was not entitled to the immediate possession of the mortgaged property, and that his action was properly dismissed.”
In Hays v. Hathorn et al., 74 N. Y. 486, it was held “that, to entitle a party to maintain an action upon a promissory note, he must be the legal owner and have the right of possession of the instrument.” In Sherwood v. Roys, 14 Pick. (Mass.) 172, the court said -that “a person holding a promissory note as a trustee may bring an action upon it in his own name; but a person holding a note as a mere depositary and agent must bring an action upon it in the name of his principal.”
Pomeroy, in Remedies and Remedial Rights, 1st ed., sections 132 and 133, states the principle thus:
“It is now settled by a great preponderance of authority, although there is some conflict, that if the assignment, whether written or verbal, of any thing in action is absolute in its terms, so that by virtue thereof the entire apparent legal title vests in the assignee, any contemporaneous, collateral agreement by virtue of which he is to receive a part only of the proceeds, and is to account to the assignor or other person for the residue, or even is to thus account for the whole proceeds, or by virtue of which the absolute transfer is made conditional upon the fact of recovery, or by which his title is in any other similar manner partial or conditional, does not render him any the less the real party in interest.
“The mere parting with the possession of a note does not, however, constitute an assignment thereof, and the owner is the proper party to sue, although the instrument is in the hands of another person with whom it has been deposited.”
In speaking of “indorsement for collection,” Daniel, in Negotiable Instruments,4th ed., section 698d, says:
“Such an indorsement merely makes the indorsee agent for the indorser to collect the amount due,.but it has been held does not invest him with such title as to make him a proper party plaintiff in a suit.”
Authorities might be multiplied upon the proposition that one holding a negotiable promissory note for collection is not the owner, has no title to it, and cannot maintain an action in his own name. The plaintiff in this case was a mere agent holding the note for collection, the proceeds of. which it was bound to deliver over to its principals, Tootle, Lemon & Co., and cannot in this case maintain an action in its own name on the notes. To recover upon them it must sue in the name of its principals.
This brings us to the second alleged error. Did the court commit prejudicial error, as against plaintiff below, in overruling the applications of E. B. Curtis and Tootle, Lemon & Co. to intervene in this action? We think not. The plaintiff in error, having no'right to bring this suit, having no standing in court, cannot complain of the refusal of the court to permit other parties who claim to have an interest in the subject-matter of the litigation to intervene in the case.
Another question is presented in this case. The judgment of the court below was for the defendant for the return of the cattle, or, in case a return could not be had, for the value thereof, to wit, $6000. It was alleged in the petition of plaintiff in error that these cattle were worth thirty dollars per head, and that there were 200 head of them ; however, the sheriff in taking possession of the cattle, under his writ of replevin, only received 199, and those were delivered to plaintiff' in error. It therefore seems that the judgment of the court below should have been for the defendant for the return of 199 head of cattle, or their value, thirty dollars per head, and that the judgment which was
i rendered in the court below was for an amount thirty dollars greater than it should have been.
It is therefore ordered that the judgment of the court below be modified in this particular, and, as thus modified, is affirmed. | [
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Error from Rooks district court.
Dismissed. | [
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Per Curiam:
The question in this case relates to the effect on the homestead rights of a wife of an extension of the time of payment of a mortgage indebtedness on the homestead made by the husband alone, the legal title to the land being in his name. Was such an extension of time binding on the wife in respect to her homestead right, she not having been a party to it? Might she, upon the foreclosure of the mortgage, the time of payment of which had been thus extended, treat it as a new mortgage made without her consent, and might she also plead the statute of limitations to a foreclosure of it as though the time of payment had not been extended by her husband? The court of appeals held that the extended mortgage was void as to her, and that, conceiving it to be in effect the old mortgage, the statute of limitations was available as a defense to it. Our judgment accords with that of the court of appeals, though its reasons were not in all particulars what we might have given.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
It is not contended by counsel that plaintiff in error is entitled to recover in this action unless her conduct in going upon the railroad-crossing without looking for an approaching train can in some way be excused. They forcibly insist that she is excusable in that the railroad company, by its agents, negligently and wrongfully misled' and put her off her guard, and that, but for such negligence and wrongful acts, 'fehe would' not have gone upon the track. It is claimed that, being a young woman of only seventeen years, she should not be held to that strict accountability required of one of maturer years. It is further contended that, even if Bowhay was guilty of contributory negligence, such negligence was not imputable to her.
In Elliott on Railroads, section 1171, the principle involved in this first proposition is stated as follows :
“Where the employees of a railroad company, by negligence or wrongful acts, mislead a traveler and put him off his guard, the company may be liable, although the traveler may have done that which but for the wrongful or negligent acts of the company must have been considered negligence on his part. The negligence of the company will not, however, excuse the traveler for a failure to himself exercise ordinary-care.”
It is but ordinary care for one who is attempting to cross a railroad-track to look for an approaching train, and no negligence on the part of defendant in error would excuse the plaintiff in error from exercising such care. One attempting to cross a railroad-track must use his senses of sight and hearing and not rely entirely upon some rules, or supposed rules, of the company. The rules put in operation from time to time by a railroad company regulating the speed of its trains, the distance each shall run or the time or distance such trains shall remain apart are mere conveniences better to enable such company systematically -to carry on its business, and are not intended to be a warning or notice to the public that trains will not be run except on schedule time.
In T. W. & W. R. W. Co. v. Jones, 76 Ill. 311, 315, in speaking of irregular trains, the court used this language:
“There is nothing which can relieve a person from the duty of exercising due care and caution at a railroad-crossing. It is not always the case that trains are on time, as is well known; hence the pressing necessity of using vigilance, care and caution at all times.”
In Wilds v. The H. R. R. R. Co., 29 N. Y. 325, it was remarked that “no one can be secure against being met by an engine except by ascertaining by his own senses that no train is approaching in either direction within a distance which will endanger his safety.” In Wilcox v. Rome, Watertown & Og. R. R. Co., 39 N. Y. 358, 362, the court, in quoting this language, said:
“There is much force in. this suggestion; and it would, in my opinion, furnish a very imperfect and unsafe protection to a traveler to rely merely upon his knowledge of the time-table, or upon the fact that an unusual train had passed in an opposite direction, and, therefore, none other could be expected. The reason urged, I think, furnishes no sufficient excuse for the neglect of the deceased to use his faculties, and for neglecting to exercise a proper degree of vigilance and care.”
“Swiftly moving and irregular trains are to be expected at such crossings, and it is the duty of persons about to go upon them to look and listen for such trains, as well as for those upon time or which move slowly.” (Judson v. Great Northern Ry. Co., 63 Minn. 248, 65 N. W. 447.)
A traveler.should always approach a railway-crossing under apprehension that a train is liable to come at once, and, while he may presume that those in charge will obey the law by giving the signals, the law will nevertheless require that he obey the instincts of self-preservation and not thrust himself into a situation which, notwithstanding the failure of the company, he might have avoided by the careful use of- his senses.
“So that it seems that, though a person or traveler may know the usual time of the running of different trains, from the fact that they may know that a train has passed, and that another train will not be along for some time, according to their information or the time-table, it does not relieve him of the duty of observing care and prudence, or of using his fabulties when he approaches and attempts to cross a railroad-track. . . . He who fails to exercise this precaution, when there are no circumstances to disturb his judgment or impede his action at the time, is not using ordinary care.” (Durbin v. Oregon R. R. etc. Co., 17 Ore. 5, 11 Am. St. R. 778, 17 Pac. 5.)
“The fact that the train is behind time, and is running faster than usual at the crossing, does not excuse him from exercising the care and caution required of him when the train is running at its usual rate.” (The Cincinnati, Indianapolis, St. Louis & Chicago Ry. Co. v. Howard, 124 Ind. 280, 24 N. E. 892, 8 L. R. A. 593.)
We haye held that it is negligence per se for a railroad company to run its train over a crossing without sounding a whistle, but we have also held that this does not excuse one attempting to cross a track from listening and looking for approaching trains.
It is also contended that the plaintiff in error is excusable for not exercising ordinary care because of the fact that this train was running fifty miles per hour, an unusually high rate of speed, at this particular crossing. The only evidence on this point is the testimony of Geo. W. Veale, jr., who says he was on the train ; that it was running on its schedule time — about fifty miles an hour — when it passed this crossing. This road is considerably traveled, but no persons were there on this particular evening beside plaintiff in error and Mr. Bowhay.
Another contention of plaintiff in error on this point is that her attention was attracted to the outgoing freight-train which had just passed the crossing over which she wished to travel. We think in this there can be found no excuse whatever. This train threatened no danger ; it had passed the crossing over which she desired to go and was rapidly receding from sight. It must be true that an object which attracts the attention of one attempting to cross a railroad which will excuse him from looking and listening for an approaching train must be one that necessarily distracts his attention; it must be one that at least indicates danger or some risk; it must be an object or a condition that has a tendency to perplex or confuse him at a time when it is demanded of him that he exercise judgment and act promptly. Certainly the departure of the freight-train, attended with no unusual circumstances, was not sufficient to excuse one from exercising ordinary care when attempting to cross a railroad-track on a highway. The plaintiff in error knew that she was approaching a railroad-crossing’; she was compelled to stop for a passing freight-train. She made this stop 150 or 200 feet from the crossing. The evening was still, no wind blowing, and nothing to prevent her from hearing the approaching train except the noise of the departing freight-train. When within fifty feet of the crossing she could have seen this train 1300 feet away. From that time she neither looked nor listened.
It is contended by plaintiff in error that, if Bowhay was guilty of contributory negligence in driving upon the track without looking or listening for approaching trains, such negligence is not imputable to the plaintiff in error. The want of care which resulted in injury to the plaintiff in error is chargeable to her. They were both engaged in a common purpose, mutual pleasure. Her opportunity and ability to see and appreciate the danger were equal to his-; she was in no way relying upon him. It is true he furnished the vehicle and did the driving, but she seems to have acted independently of him. When they started from the point where they had stopped for the freight-train, she saw the track, knew they intended to cross it, appreciated the danger, and did not advise or suggest that they be more cautious, but did look for an approaching train, and was, in fact, the first to see it.
The case of Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, relied, upon by counsel for plaintiff in error, is easily distinguishable. In that case there was no charge made that Mrs. Telfer was guilty of contributory negligence. The only question was whether or not the contributory negligence of the husband was imputable to her. In this case, the direct charge is made that plaintiff in error was herself guilty of contributory negligence. In Donnelly v. Brooklyn City R. R. Co., 109 N. Y. 16, 22, 15 N. E. 733, the court, in speaking of the negligence of one who is riding with and accompanying the driver, said :
“We think the plaintiff was chargeable with the neglect of his comrade. He was conscious of the danger and apparently made no objection or effort to avoid it. He was engaged in a common employment with Mr. McNally. He had full control of his own actions, and, though on the safe track, did not object when, after telling McNally to turn out, they turned upon the dangerous track.”
In Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290, 293, 24 N. E. 449, the court said : “It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable.”
We think the demurrer to the evidence was properly sustained and the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was convicted of larceny from a freight-car and sentenced therefor to a term in the penitentiary. Omitting the formal parts, the information charged:
“That on the 19th day of November, 1898, in the county of Ottawa, state of Kansas, one A. N. Andrews did then and there unlawfully, feloniously take, steal and carry away the following goods and chattels, to wit: One sack of white sugar, of the value of $5; one sack of brown sugar, of the value of $5 ; three boxes of dried fruit, of the value of $5 each; one sack of prunes, of the value of $5 ; one sack of green coffee, of the value of $3.50 ; all of said goods and chattels then and there being the property of the Atchison, Topeka & Santa Fe Railway Company, a corporation, and said goods and chattels then and there being in a certain freight-car belonging to said railway company when so unlawfully, feloniously taken, stolen, and carried away.”
The evidence against the appellant was, for a large part, circumstantial in character. The only testimony not of such nature was that of the sheriff, who, in a conversation with the accused after his arrest, said to the prisoner, “I am surprised that you would mix up in a deal of this kind,” in answer to- which the latter said that what he had done was for the benefit of his family. No one saw the appellant commit the larceny. There was testimony, however, that after being away from home most of the night he returned with two sacks of sugar, a sack of prunes, some coffee, two boxes of raisins, and a box of currants and oranges. This property corresponded in description with goods consigned for shipment contained in a car of the Atchison Topeka & Santa Fe Railway Company on which the seal was broken and from which the goods were missing.
The court refused the following instruction on behalf of the defendant below:
“A few facts, or a multitude of facts proved, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the defendant committed the crime, but they must be inconsistent with any other rational conclusion.”
In this there was error. Applied to circumstantial evidence, the language of said instruction has been approved in Carl Horne v. The State of Kansas, 1 Kan. 42, and in The State v. Hunter, 50 Kan. 302, 32 Pac. 37.
It is not determinable whether the conviction resulted from the force of the direct or the circumstantial evidence, or by the combined strength of both. It was within the province of the jury to disregard the testimony of the sheriff and to base their verdict solely on the incriminating circumstances surrounding the accused. This being true, it was proper to furnish a guide to the jury to govern them in the consideration of the probative force of such circumstances as were shown, tending to establish the guilt of the defendant. (The State v. Kornstett, post, page 221, 61 Pac. 805.)
An objection was made to the information in that it failed to aver that the larceny was committed in a freight-car on a railway in this state. (Gen. Stat. 1897, ch. 100, § 84; Gen. Stat. 1899, § 2026.) It becomes immaterial, however, to consider this objection, for the reason that the information can be amended on another trial of the case.
The judgment of the court below will be reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Johnston, J.:
The appellant was a prosecuting witness in a criminal proceeding in which the defendant was acquitted, and the jury which tried the case found that the prosecution was instituted without probable cause. The costs in that case, amounting to $66.30, were adjudged against the appellant, of which he paid $33, and he was required to enter into a bond for the payment of the balance or stand committed until the costs were paid. To meet this requirement a bond was executed which purported to have been signed by George Konrade, but which is alleged to have been forged, and upon the filing of the same the appellant was released from custody. He attacks the sufficiency of the information because the instrument alleged to have been forged is not in the statutory form and is not valid for the purposes for which it was intended. The statute provides that when costs have been adjudged against prosecuting witnesses in cases like this one the justice “shall commit such complainant to jail until such costs be paid, unless he shall execute a bond to the state in double the amount thereof, with security satisfactory to the justice, that he will pay such judgment within thirty days after the date of its rendition.” (Gen. Stat. 1899, §5681; Gen. Stat. 1897, ch. 104, §22.)
The bond in question sufficiently describes the proceeding in which the costs were adjudged, and recites the payment of thirty-three dollars of the amount. The bond executed is for the exact amount of the unpaid costs and not in double the amount of the costs, as the statute prescribes. Because of this departure from the statutory requirement it is argued that the bond is invalid and forgery cannot be predicated on it. While the justice of the peace should have required a bond in double the amount of the unpaid costs, the fact that it was for a less amount is not a matter of which those signing it may complain, nor will it invalidate the instrument. If conditions other than those prescribed by statute were written in the bond, which made it more burdensome or imposed greater obligations on the signers than the statute prescribes, there would be good cause to complain. As the variance from the statutory re quirement lessens the liability of the signers, there is no room for the claim that the conditions imposed are more burdensome or that the instrument is thereby invalidated.
It is also contended that it is defective in not giving the date when the costs were adjudged. The bond was dated March 12, 1900, and the costs were required to be paid within thirty days from and after March 7, 1900. Inferentially, then, the judgment was rendered on March 7, 1900, as the statute requires that the complainant pay the judgment within thirty days after the date of its rendition. The recitals in the bond sufficiently show the identity of the judgment rendered, and the mere absence of a specific recital of the date of the rendition of the judgment will not invalidate the instrument, where the date inferentially appears and where the identity of the judgment is otherwise sufficiently shown. (Johnson v. Weatherwax, 9 Kan. 75; Tillson v. The State, 29 id. 452; Handy v. Land Co., 59 id. 395, 53 Pac. 67.)
The contention that the information is fatally defective because it does not definitely specify the person intended to be defrauded cannot be sustained. It alleges in substance that Stegman, with intent to defraud, forged the bond, which is set out in full, and which purports to be the act of George Konrade, whose name was signed to the bond; and that is followed by the averment that by the forged instrument a pecuniary demand and obligation were purported to be created. These averments point with sufficient certainty to Konrade as at least one of the persons intended to be defrauded. The instrument purports to create an obligation against him, and, as his name was feloniously forged to the instrument, the law implies that the forger intended to de fraud Mm. And the same might be said as to the state and the persons to whom the costs were due. (The State v. Foster, 30 Kan. 365, 2 Pac. 628; The State v. Lee, 32 id. 360, 4 Pac. 653.) The case last cited is directly in point, and the information which was there upheld appears to have been used as a pattern for the information in the present case.
Complaint is made of the admission of a bond signed by Konrade which was used as a basis for comparison with the signature alleged to have been forged. The rule is that writings which are used as a basis for comparison of handwritings must either be admitted to be genuine by the parties seeking to use them or at least clearly proved to be genuine. In the present case the writing introduced by way of comparison was not admitted to be correct, but Konrade testified that he signed the instrument, and there was no dispute or denial of his testimony. Under the circumstances the court was warranted in accepting the writing as genuine, and in admitting it as evidence, to be used as a standard of comparison. (The State v. Zimmerman, 47 Kan. 242, 27 Pac. 99; Gaunt v. Harkness, 53 id. 405, 36 Pac. 739.)
There is no merit in the objections made to the rulings on the instructions, and, as the case appears to have been fairly submitted to the jury upon sufficient evidence, the verdict and judgment must be upheld. | [
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The opinion of the court was delivered by
Ellis, J.:
The insurance policy in the New York Life Insurance Company had been paid up since 1874, and was the property of Eliza J. Price, the beneficiary named therein. The unconditional assignment to the bank of January 19, 1894, was void, because such bank could not have an insurable interest in the life of John M. Price. (Life Ins. Co. v. Sturges, 18 Kan. 93.)
Parol evidence was admissible for the purpose of showing that, although such assignment was absolute on its face, the real intent of the parties was that the insurance policy should be turned over to the bank under such assignment for the purpose of collateral security merely. To show such an intention, it was necessary to prove an agreement to that effect between the bank and the owner of the policy, Eliza J. Price, for there was no evidence in the case that John M. Price had authority to act as her agent in that behalf, and his agency could not be presumed from the mere fact that he was her husband. The only evidence in the record showing any agreement other than an unconditional assignment on the part of Mrs. Price is the stipulation bearing date May 21, 1897, and entered into some time after that date. That stipulation, if based upon a sufficient consideration, might be held to be a ratification of a former agreement which seems to have been entered into with John M. Price, to the effect that the bank should hold the policy as collateral security, subject, however, to the reservation that it should only be held as collateral security for the payment of whatever should be justly and legally due on the judgment rendered in action No. 7907, for such were the express terms of the stipulation.
The court holds in this case that at the time of the execution of such stipulation that judgment was extinguished; that the debt thereby evidenced had been merged in the judgment rendered later by the district court of Atchison county in action No. 7908, between the same parties. For the reasons for such decision and the authorities upon which the same is based, reference is hereby made to the opinion of Mr. Justice Greene in the case of Price v. Bank, ante, p. 735, 64 Pac. 637. The only consideration for such stipulation is the agreement on the part of the bank to forbear to issue execution on said judgment in No. 7907 for the period of ten-months from the date of its rendition. Because the judgment was extinguished, because it no longer existed, the plaintiff had no right to cause an execution to issue on it within ten months or at any other time. An agreement to forbear to do an act which a party has no legal right to do cannot constitute a sufficient consideration for a promise and undertaking on the part of another.
“In order to constitute forbearance a valuable consideration there must be a subsisting legal right in the claimant which he agrees to forbear, for if the claim be invalid or illegal the forbearance is ineffectual.” (6 A. & E. Encycí. of L., 2d ed., 742.)
See, also, Gould v. Armstrong, 2 Hall (N. Y.) 90; Chit. Contr. 35, 36; Bates v. Sandy, 27 Ill. App. 552 and cases cited; Haynes v. Thom, 8 Foster (N. H.) 386; May v. Coffin, 4 Mass. 341, 347; Warder & Al. v. Tucker, 7 Mass. 449; Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 724; Widiman v. Brown, 83 Mich. 241, 47 N. W. 231; Cowper v. Green, 7 Mees. & W. 633; Mc Donald v. Neilson, 2 Cow.(N. Y.) 140; Crosby v. Wood, 6 N. Y. 369; Cline & Co. v. Templeton, 78 Ky. 550; Schroeder v. Fink, 60 Md. 436; Gunning, v. Royal, 59 Miss. 45; Davisson v. Ford, 23 W. Va. 617; Appeal of Lukens, 193 Pa. St. 386, 13 L. R. A. 581, 22 Atl. 892.
In the case of Wade v. Simeon, 2 C. B. 548, the declaration averred that the plaintiff had brought an action, and in consideration of the new promise had forborne to prosecute the case thus commenced. The court held that the previous action could not have been maintained, and in the opinion said :
“In order to constitute a binding promise the plaintiff must show a good consideration ; something beneficial to the defendant or detrimental to the plaintiff. Detrimental to the plaintiff it cannot be, if he has no cause of action ; and beneficial to the defendant it cannot be ; for, in contemplation of law, the defense upon such an admitted state of facts must be successful.”
In the case of Graham v. Johnson, L. R. 8 Eq. 36, the defendant held a bond executed by the plaintiff which the latter was entitled to have canceled as being voluntary. At the plaintiff’s request the defendant forbore suit on the bond, the plaintiff agreeing to pay from an expected inheritance. It was held, nevertheless, that the plaintiff was entitled to a decree of cancelation and that the promise to pay the defendant was not binding. In rendering the opinion the court said:
“The question I have to consider is, whether, assuming, as I must assume, that the plaintiff when he made the promise was ignorant that the court of cháncery would restrain an action on the bond without requiring him to pay off what had been paid by Barlow to the obligee, his promise made in consideration of Barlow’s forbearance to sue is binding on him, I think it is not.”
And following, the court expressly held that, because the action could not have been maintained, the agreement to forbear would not be a consideration for a promise of the defendant to pay.
We have examined the cases of Callisher v. Bischoffscheim, L. R. 5 Q. B. 449, and Ockford v. Barelli and another, 25 L. T. (n. s.) 504, which are sometimes quoted as antagonizing, though they do not overrule Wade v. Simeon, supra, and Graham v. Johnson, supra. They were considered and decided as cases of compromise and are clearly distinguishable from the case at bar.
In N. H. Savings Bank v. Colcord, 15 N. H. 119, the court held that forbearance to sue is not a good consideration for a promise where there is no debt in existence.
In Gould v. Armstrong, supra, the court held: “A promise to forbear from prosecuting a suit which could not be maintained would, of course, be without consideration, and so not binding.”
In Chitty on Contracts, supra, the rule is laid down that, in order to render the agreement to forbear and the forbearance of a claim a sufficient consideration for a new promise, it is essential that the demand forborne should be sustainable at law or in equity, and the consideration will fail if the demand is without foundation.
In Haynes v. Thom, supra, the court held: “A promissory note, given to discharge a merely supposed liability or to avoid an ideal danger, which has no foundation in fact or in law, is without consideration.”
And in the same case the court said:
‘ ‘ If the note was given under a misapprehension of the defendant's liability, and with no valid consideration passing between the parties, he is not bound to pay it. An ideal danger, which has no foundation in fact or in law, can form no consideration for a note.”
In Appeal of Lukens, supra, the supreme court of Pennsylvania held : “Abandonment of legal proceedings which are without merit is no consideration for the revocation of a valid and binding contract.” The case of Prout v. Pittsfield Fire District, 154 Mass. 450, 28 N. E. 679, was purely one of compromise. The court said : “The plaintiff's claim, whether on a final determination it might or might not be found to be valid, was sufficiently substantial to furnish a good consideration for the compromise.” In the same opinion it was remarked:
“The case of Palfrey v. Portland, Saco & Portsmouth Railroad, 4 Allen, 55, is to be distinguished on the ground that there it was plain that the plaintiff had no real claim to be compromised; and Wade v. Simeon, 2. C. B. 548, rests on the same ground.”
In Robinson v. Jewett, supra, it was decided that the performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a new promise. In Moon v. Martin, 122 Ind. 211, 23 N. E. 668, the court sustained a compromise of a suit actually commenced, and held that the discontinuance of the suit was a sufficient consideration for a promise to pay money. But in the same case the court held:
“A promise to give something for the compromise of a claim about which there is merely a dispute and controversy, and for which there is no legal foundation whatever, is not sufficient to sustain a suit at law. (Jarvis v. Sutton, 3 Ind. 289; United States Mortgage Co. v. Henderson, 111 id. 24, 12 N. E. 88, and cases cited ; Emery v. Royal, 117 id. 299, 20 N. E. 150, and cases cited.) ”
In Cline & Co. v. Templeton, supra, the court said:
“It is laid down, both in Parsons on Contracts and in Chitty on Contracts, that an agreement to forbear to prosecute a claim which is wholly and certainly unsustainable at law or in equity is no consideration for a promise. . . . This proposition appears to be so well established that further citation of authorities seems to iis unnecessary.”
In Schroeder v. Fink, supra, defendants’ father died owing plaintiff and the latter threatened suit. In consideration of his forbearance, defendants gave their note in compromise of the claim. The estate of de.ceased was insolvent and plaintiff could have no action against defendants. In the action upon the new note, the court held that there was no consideration for the new promise and that defendants could not be held liable to pay. In Gunning v. Royal, supra, it was held that “the existence of a dispute or controversy between parties is not a sufficient consideration to support a promise to pay money in settlement of it, where no valid demand for anything whatever exists in favor of the promisee.” In Davisson v. Ford, supra, the syllabus reads : “If there is no foundation for such claim of liability, then the promise made to settle this assumed liability has no sufficient consideration to sustain it and no suit can be based on such promise.” At page 627 the court said :
“But to make such consideration good it is not only necessary that the dispute should be one in which one party sets up that there was a liability on the other, but if it be assumed that such liability exists, when in fact or law there is no foundation for such liability, a promise made by the party who is thus claimed to be liable, but who clearly is not liable either in law or equity, would be a promise made on no valuable or sufficient consideration, and it could not be enforced bv suit.”
"As the consideration must have some value and reality, the assumption of a supposed danger or liability, which has no foundation in law or in fact, is not a valuable or sufficient consideration, nor is the performance of that which the party was under a previous valid legal obligation to do; and where one, through mistake of the law, acknowledges himself under an obligation which the law does not impose, he is not bound by such promise.” (1 Pars. Contr. 437.)
In the case at bar the bank did not stipulate to refrain from doing any act which it had a legal right to do. Mrs. Price, supposing herself liable to pay the judgment rendered in No. 7907, agreed to turn over to the bank the insurance policy in controversy in this case, with the understanding that the proceeds of such policy should be applied by the bank in satisfaction of such extinguished judgment. As the judgment itself had no legal existence the funds could not have been so applied. She acknowledged herself "under an obligation which the law does not impose,” for which reason she "is not bound by such promise.”
For these reasons the judgment of the district court will be reversed, and the case remanded, with directions to enter judgment in the court below in favor of Eliza J. Price and against the First National Bank of Atchison, Kansas, in accordance with this opinion. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action to recover damages for the breach of an alleged contract. On February 15, 1896, Armstrong & Kassebaum, commission merchants of Topeka, inserted an advertisement in a weekly newspaper, which, among other things, contained the following proposition:
“We. will pay 10-Jf cents net, Topeka, for all fresh eggs shipped us to arrive here by February 22. Acceptance of our bid with number of cases stated to be sent by February 20.”
On February 20, 1896, T. F. Seymour, a rival commission merchant of Topeka, sent the following note to Armstrong & Kassebaum in response to their proposition:
“I accept your offer in Merchants’ Journal, 10-J-cents, Topeka, for fresh eggs, and will ship you on O. R. I. & P. R. R. 450 cases freáh eggs, to arrive on' or before February 22. The eggs are all packed in new No. 2 whitewood cases, and I will accept fifteen cents each for them, or you can return them or new ones in place of them.”
On receipt of this note, Armstrong & Kassebaum at once notified Seymour that they would not accept the eggs on the terms proposed by him. Notwithstanding the refusal, Seymour procured a car and loaded it with eggs. Not having a sufficient number of cases to fill the car, he found two other commission merchants who were willing to cooperate with him, and who furnished 190 of the 450 cases, which were.loaded in Topeka, only a few hundred feet away from the place of business of' Armstrong & Kassebaum, sealed up, and then pushed a short distance over to their business house. They refused to receive the eggs, and Sey mour shipped them to Philadelphia, where they were sold for $391.83 less than they would have brought at the price named in Seymour’s note of acceptance. For this amount the present action was brought, and the plaintiff is entitled to recover, if the defendants’ offer on eggs was unconditionally accepted. At the trial a verdict was returned in favor of the defendants, and the result of the general finding is that the pretended acceptance of Seymour was not unconditional, and that no contract was, in fact, made between him and the defendants.
Did the negotiations between the parties result in a contract ? A contract may originate in an advertisement addressed to the public generally, and if the proposal be accepted by any one in good faith, without qualifications or conditions, the contract is complete. The fact that there was no.limit as to number or quantity of eggs in the offer did not prevent an acceptance. The number or quantity was left to the determination of the acceptor, and an unconditional acceptance naming any reasonable number or quantity is sufficient to convert the offer into a binding obligation. It is essential, however, that the minds of the contracting parties come to the point of agreement — that the offer and acceptance coincide; and if they do not correspond in every material respect there is no acceptance or completed contract. In our view, the so-called acceptance of the plaintiff is not absolute and unconditional. It affixed conditions not comprehended in the proposal, and there could be no agreement without the assent of the proposer to such conditions. It is true the plaintiff agreed to furnish eggs at 10£ cents per dozen, but his acceptance required the defendant to pay fifteen cents each for the cases in which the eggs were packed or to return the cases or new ones in place of them. It appears from the record that, according to the usages of the business, the cases go with the eggs.
One of the grounds of complaint is that the court erred in admitting testimony as to the sense in which the word “net” was used in the negotiations between the parties, and in submitting to the jury the question of whether the offer of the defendants was accepted. The plaintiff is hardly in a position to question the propriety of receiving evidence as to the meaning of the word “net,” used in the offer and acceptance. He was the first to open an inquiry and bring out testimony as to what was meant by the term when used in connection with the sale of eggs. Aside from that consideration, the term appears to have a meaning in connection with the business different from the ordinary meaning, and, in such case, evidence of the meaning given by usage of the trade or 'business is admissible. If persons carrying on a particular trade or business give to words or phrases a technical or peculiar meaning, they will be presumed to contract with reference to the usage, unless the contrary ap-_ pears. There was abundant evidence to show that the use of the word “net,” according to the usage of the business, includes the cases of eggs like the ones in question. The witnesses stated that it means a price clear to the purchaser without commissions, cartage, or any charge for the cases. The finding of the jury, in effect, was that it was understood and agreed that the cases went with and were included in the price quoted for the eggs, and the acceptance, therefore, did not correspond with the offer nor .complete the contract. We think that, under the circumstances, parol testimony of the sense in which the terms were used and as to what the parties intended by them was properly received, and that the "Court properly charged the jury as to the elements entering into a contract. (Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866.) Other of the instructions are criticized, but we find nothing substantial in any of the objections made, nor in any of the grounds assigned for reversal.
The judgments of the court of appeals and of the district court will be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action originally brought by S. K. Howe against the Armour Packing Company and George W. Tourtelotte, in one of the city courts of Kansas City, Kan., having the same jurisdiction formerly vested in justices of the peace. The proceeding was based on a verified complaint, in which it was alleged that, in December, 1895, the defendants unlawfully entered into certain premises (describing them), and had ever since had possession thereof by force ; that due notice was given defendants to leave the same, and that Howe was entitled to the possession thereof.
The bill of particulars of defendants, which was filed by way of answer, alleged that the title and boundaries of the real estate sought to be recovered were involved in the litigation, and moved the court to certify the case and all pleadings therein to the district court. Further answering, the defendants averred that they were the sole owners in fee simple of the land and in possession thereof, and that they held title as follows : (1) By good and sufficient deeds of conveyance from the former owners in fee simple; (2) by prescription arising from open, notorious, hostile and continuous possession as against the world for more than fifteen years ; (3) by accretion to land then and now in possession of and claimed and owned in fee simple by defendants. The answer was verified. Thereafter the following entry was made in the docket of the judge of the city court, before whom the action was pending:
"Now this day come the defendants and file their bill of particulars, by which it is shown that the title to real estate is in issue in this suit. It is therefore considered, ordered' and adjudged by the court that this cause be transferred and transmitted to the district court of Wyandotte county, Kansas, for trial.”
Thereafter a trial was had in the district court, resulting in a verdict and judgment for the plaintiff below, S. K. Howe. The Armour Packing Company comes here by proceedings in error, its codefendant below, Tourtelotte, having been dismissed from the case in the district court.
A question of jurisdiction is presented by the record, and, although there was no discussion of the subject either on oral argument or in briefs of counsel, it involves our authority to hear and determine the merits of the case, for which reason it cannot be ignored. It has been expressly decided that an action of forcible detainer or forcible entry and detainer is possessory merely, and does not involve the title to real estate except to the extent that evidence of title may be incidentally shown to support the claim of right of possession. In McClain v. Jones, 60 Kan. 639, 640, 57 Pac. 500, the court said :
“The thing in dispute in forcible detainer, and forcible entry and detainer, is not the title to the real estate but the mere right to its possession.' In such class of actions the title to the real estate is often involved, but it is involved as an incident only and not as the main subject of controversy.”. (See, also, Conaway v. Gore, 27 Kan. 122.)
In McNamara v. Culver, 22 Kan. 661, a forcible-detainer action commenced before a justice of the peace was certified to the district court on the filing of a sworn answer setting up title. It proceeded to judgment, but no question was raised as to the jurisdiction of the district court. The defendant claimed a second trial by right, as in cases of ejectment. This claim was denied, the court holding that a certification from the justice to the district court changes the forum but does not change the action ; that the same proof must be made in the latter as would have been required in the former court, and the same relief obtained.
If a dispute over the question of title cannot be tried and determined in such actions either in the district or justice’s court, and the same proof is required to support the issues in either tribunal, what good reason can be given for transferring a controversy involving the right of possession from the justice to the district court? Justices of the peace have original jurisdiction in forcible entry and detainer. (Gen j Stat. 1899, §5037; Gen. Stat. 1897, ch. 103, §20.)' Until 1870 the law provided that if, in an action commenced before a justice, it appeared to his satisfaction that the title or boundaries of land were in dispute, such action should be dismissed without prejudice. (Gen. Stat. 1868, ch. 81, § 7.) The statute now reads:
“If in any action commenced before a justice it appears to the satisfaction of the justice that the title or boundary of land is in dispute in such action, said action shall be stayed before said justice, and said justice shall within ten days thereafter certify said case and transmit all papers and process therein to the clerk of the district court of his county, and said case shall be docketed and thereafter proceeded with in the district court as if originally commenced therein.” (Gen. Stat. 1899, § 5042 ; Gen. Stat. 1897, ch. 103, § 26.)
Under our code, in cases of forcible entry and detainer, evidence is properly offered and received con cerning title or boundaries, not for tbe purpose of adjudicating upon tbe limits of such boundaries, or tbe validity of such title, but merely as an incident thereto showing the right of possession. If the question of title was in dispute and determinable in the case, then a judgment therein would be a link in the chain of title, which is not the case in actions of forcible entry and detainer^ It cannot be said that section 5042 of the General Statutes of 1899, above set out, is without force or application by reason of the fact that questions of title or boundaries cannot be determined in forcible-detainer cases. In actions for trespass on real estate, involving less than $100, the justice may take jurisdiction, under section 5041 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 103, § 23), and in such cases the title or boundary of land might come into dispute as a justification for the alleged trespass, in which event the controversy could lawfully be certified to the district court. It was the manifest intention that forcible entry and detainer proceedings should speedily terminate. They are summary in character. No continuance is allowed by the statute for a longer period than eight days without the giving of bond to the adverse party. The delay incident to actions where title is tried and adjudicated would tend to defeat the purposes for which the remedy is given. Section 5042, supra, has been borrowed and reenacted in Oklahoma, together with our procedure relating to actions of forcible entry and detainer. In the case of McDonald v. Stiles, 7 Okla. 327, 54 Pac. 487, the supreme court of that territory passed on this question and held as we do. We are quite clear that the district court acquires jurisdiction in such actions only by appeal or proceed ings in error from the judgment of the justice of the peace.
On the trial of the present action, the district court rightly instructed the jury that title to the land in controversy was not to be determined, but that the question was simply as to which of the parties had the right of possession at the time the suit was brought. We are fully convinced that the district court acted without jurisdiction of the subject-matter, and that its judgment is void. If that court was without power to hear and determine the cause, it follows that this court cannot do so upon proceedings in error. (Elliott, App. Proc. § 79, 470; Robertson v. The State, ex rel. Smith, 109 Ind. 79, 83, 10 N. E. 582, 584.) The court, in the case cited, further said:
"The only course which the court can rightfully pursue is to decline to speak in all cases where it cannot speak by the law. It is not a matter of choice ; it is a matter of duty. The duty is as solemn and imperative as any one among all the grave duties that rest upon the courts of the country. Nor ought the courts to give opinions which are in form judgments, but in reality mere phantomatic resemblances, since, in more ways than one, such a course is productive of evil.”
The proceedings in error will be dismissed. | [
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The opinion of the court was delivered by
Horton, C. J.:
E. D. Browne, the defendant below, signed the petition for the improvement of the road in question, but he did not intend that the petition should be presented to the board of county commissioners until it was signed by a majority of the resident land-holders. At the time he signed, there were 21 resident land-holders in the taxing district. Only five ever signed the petition which was presented. Browne did not present the petition. The various defects in the petition at the time it was presented, and the changes made in the subsequent proceedings, were not made with his knowledge or consent, and he had no knowledge thereof until after all the work was completed. The mere fact that he signed the petition will not have the effect of estopping him, under the circumstances of this case. Within the cases of Barker v. Comm’rs of Wyandotte Co., 45 Kas. 681, and Comm’rs of Wyandotte Co. v. Barker, 45 id. 699, the judgment of the .court of common pleas will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The judgment in this case must be reversed, upon the authority of K. C. W. & N. W. Rld. Co. v. Ryan, just decided. In this case, as in that, the trial judge was dissatisfied with the verdict of the jury and stated that it did not meet with his approval. He, however, said that he would “stand out of the way,” and then overruled the motion for a new trial. It was his duty to set the verdict aside and grant a new trial. Upon the trial, the railroad company asked the jury to be instructed as follows:
“The market value means' the fair value of the property as between one who wants to purchase and one who wants to sell, not what could be obtained for it under peculiar circumstances when a greater than its fair price could be obtained, nor its speculative value; not a value obtained from the necessities of another; nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer. It is what it would bring at a fair public sale when one party wanted to sell and the other to buy.”
This was refused. We think it should have been given, in order that the jury might clearly understand the proper definition of market value, or fair value of the property appropriated.
The judgment of the district court will be reversed, and the cause remanded for a new trial. 3 Suth. Dam. 462; Lawrence v. Boston, 119 Mass. 126.
All the Justices concurring. | [
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Opinion by
Green, C.:
On the 13fch day of February, 1892, E. G. Benedict filed his petition in the district court of Osborne county against Catherine Hutchinson and John C. Hutchinson, to foreclose two mortgages, amounting in the aggregate to $1,500, and each falling due July 1, 1891. The principal of each debt was evidenced by a note, in the usual form for farm loans, with coupons attached, fixing the interest upon the notes at 7 per cent, per annum. The notes and coupons bore interest at 12 per cent, per annum from maturity, payable semi-annually. The language of each one of the principal notes, with reference to the interest after maturity, reads as follows:
“ If any part of the principal and interest is not paid at maturity, it shall bear interest thereafter at the rate of 12 per cent, per annum, payable semi-annually, and if any interest remains unpaid 20 days after due, the principal shall become due and collectible at once without notice, at the option of the holder.”
The mortgages each contain the usual conditions, and, after reciting the rate of interest in the notes and coupons, have this further clause:
“But if default be made in such payment, or any part thereof, or the taxes, or if the insurance is not kept up thereon, then this conveyance shall become absolute, and the whole shall become due and payable at once, without notice, at the option of the holder, with 12 per cent, interest per annum from the date hereof.”
The,interest coupons were all paid except those maturing Julyl, 1891. The court below gave judgment for the amount of the notes, with 12 per cent, interest from date, less the interest coupons paid, in accordance with the condition in the mortgages.
It is urged by counsel for the plaintiffs in error that the mortgage clause providing for 12 per cent, interest from date should not be enforced, because it is in direct conflict with the condition in the notes, in providing a greater rate of interest than is specified in the notes. It will be observed that the condition in. each one of the notes provides that if any part of the principal or interest is not paid at maturity, it shall bear interest thereafter at the rate of 12 per cent. This clause must be construed to mean that both principal and interest were to bear interest after maturity at the rate of 12 per cent, per annum. This clause fixes the rate of interest after the maturity of the principal or any portion of the interest; there is nothing in either one of the notes which authorizes the computation of interest upon the principal from the date of the notes at the rate of 12 per cent. The question then presents itself as to which should govern, the plain letter of the notes or the condition in the mortgages. It has long since been settled by this court, and it is now the prevailing doctrine in this country, that the mortgage is merely an appurtenance to and security for the note. The latter is the evidence of the debt; it is the obligation of the debtor to pay a specified sum of money. The mortgage is given to secure the payment of the note, and is therefore only the mere incident following the debt. (Kurtz v. Sponable, 6 Kas. 395; Schmucker v. Sibert, 18 id. 104; Burhans v. Hutcheson, 25 id. 625.)
In the case of the Railway Co. v. Sprague, 103 U. S. 756, where there appeared to be a difference between the terms of certain bonds and the mortgage given to secure the payment of the former, the court held that the bonds being the principal thing, containing the obligation of the company, and the mortgage a mere security to insure the performance of that obligation, the terms of the bonds should control.
We think this decision of the supreme court of the United States and the decisions of this court settle the question, and the interest should be calculated in accordance with the terms' of the note, and the condition in the mortgages should not govern. It follows from this conclusion that the district court was in error in computing interest upon the entire debt at the rate of 12 per cent, per annum from the date of the notes. The plaintiff below should only have had judgment for the sum of $1,552.50, with interest from the 1st day of July, 1891, at the rate of 12 per cent, per annum, as stated in the notes and coupons.
It is recommended that the judgment be so modified.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action in ejectment, commenced March 23, 1888. The plaintiff claimed under a patent deed, which he introduced, and rested. The defendant claimed under a tax deed dated September 10, 1880. When this deed was offered in evidence, the plaintiff objected to its reception, for the reason that the deed was void, and void on its face. The objection was overruled and the deed received in evidence. Defendant rested. The plaintiff, by way of rebuttal, introduced the notice of tax sale upon which the deed was based and again rested. Judgment for the defendant. The plaintiff in error, plaintiff below, brings the case to this court, and asserts that the trial court erred in admitting the deed in evidence, for the reason that the deed was void because the tax-sale notice and the redemption notice were not sufficient.
The deed is good on its face. It was therefore not only admissible in evidence, but was prima facie proof of the regularity of all prior proceedings upon which it was based. (Gen. Stat. of 1889, ¶ 6991.) The contention of the plaintiff in error is, that the deed, being regular on its face, is prima facie evidence of the regularity of the proceedings upon which it is based, but not of the existence of such proceedings; and that the burden of showing the existence of such proceedings is upon him who claims under the tax title, and that, because the defendant did not show the existence of such proceedings, the court erred in giving him judgment in the case. This contention cannot be upheld. No such distinction as the one made by the plaintiff, between the existence and the regularity of the proceedings upon which a tax deed is based; exists in law. The statute which declares a taxs deed, regular on its face, prima fade proof of the regularity of the proceedings upon which it is based must be construed to mean, that such deed is prima fade proof of the existence as well as the regularity of the proceedings upon which it is based. A thing, the existence and regularity of which the law requires to accomplish a certain end, cannot be said to be regular until it exists. To protect the adverse party against the prima fade showing made by a tax deed, good on its face, the law furnishes an opportunity to rebut such proof by proving the non-existence of or want of regularity in the proceedings upon which a tax deed is based, except in those cases in which a tax deed has been of record for a period of five years or more. In the latter cases, under our statute, the title so conveyed has ripened into an absolute and indefeasible title, unless it can be shown that the taxes for which the land conveyed by the deed was sold had been paid or the land redeemed as provided by law. In this case, the plaintiff below introduced, by way of rebuttal, the tax-sale notice, and he now insists that, such notice rendered the sale of the land described in the tax deed void, and therefore the judgment should have been in his favor. In the first place, the irregularity in such notice does not render the sale void, but at most only voidable, in a proper proceeding for the purpose of setting it aside within the time prescribed by law. But, secondly, the tax deed upon its face showed it had been of record more than five years, and therefore, under our statute, it could not be attacked. The contention that the statute was not pleaded is not available. The statute provides only for a general denial in proceedings in ejectment. Under such plea, anything can be shown that tends to defeat the right of the plaintiff to the possession of the land.
It is recommended that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin for the recovery of two horses owned by W. T. Grimes. He claims to be entitled to the possession of the horses, and he avers that the First National Bank of Meade Center took possession of them without right, and is wrongfully detaining them from him. The bank admits the taking of the horses, but contends that it was entitled to their possession under and by virtue of a chattel mortgage given to secure the payment of a note for $178.40, which on its face drew interest at 12 per cent, per annum, executed by Grimes to the bank on December 10, 1887. The claim of Grimes was, that the debt for which security was given had been fully paid, although a renewal note for a portion of the debt was still outstanding against him. He further claims that he did not receive the amount of money mentioned on the face of the note, but that the bank charged a rate largely in excess of the legal interest, and included the same in the note. Several renewal notes were made, in each of which an illegal rate of interest was charged by the bank. The verdict of the jury was in favor of Grimes, and the bank complains of the rulings of the court in the admission of testimony and in the instructions given to the jury. The testimony objected to was that in relation to another horse which was included in the mortgage in question, and which had been taken and sold by O’Meara, the president of the bank, some time before the commencement of the present action. This testimony was manifestly introduced with a view of having the amount for which the horse was sold credited upon the note given by Grimes to the bank. It is contended that the testimony was incompetent, for the reason that it was not shown that O’Meara was acting for the bank, or that the horse was taken and sold in satisfaction of the indebtedness of Grimes to the bank. It appears, however, that O’Meara acted for the bank throughout; that this horse was included in the mortgage securing the debt of Grimes to the bank; and no reason is seen why Grimes was not entitled to a credit upon his debt for the value of the horse. But a full inquiry had been made in the early part of the trial with reference to this horse without objection, and even the plaintiff in error drew out much of the testimony with reference to the taking and appropriation of the horse. No objection was made to this testimony, nor any motion made to strike it out, and the objection which was made later in the trial was therefore immaterial.
It is next claimed that the court erred in charging the jury that—
“If you should find from the evidence in this case that the original note was renewed from time to time without making a new and separate contract, and that usurious interest was embraced in such renewal notes, then you are instructed that the mere renewal of the original note would not purge the transaction of usury, if you should in fact find that there was usury in the original note.”
It is contended by plaintiff in error that Grimes was not entitled to have the usurious interest applied in satisfaction of the principal of the debt, and Driesbach v. Bank, 104 U. S. 52, is cited as an authority against the instruction. An examination of the terms of the instruction, however, shows that it does not violate the rule stated in the case cited. As the plaintiff in error is a national bank, it is governed by the provisions of the national banking act relating to interest and usury, and not by the statutes of the state. The bank could not charge a higher rate of interest than was allowed by the aws of the state, and § 5198, of the Revised Statutes of the United States provides that—
“The taking, receiving, reserving or charging of a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate, of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred.”
Under this provision, a national bank which knowingly stipulates for usury upon a note to be paid in the future forfeits the entire. interest, and in an action upon the same can only recover the face of the note, less the interest charged or included therein. If the interest is charged and collected in advance, the person paying it, or his legal representatives, may, in an action in the nature of debt, recover twice the amount of interest paid. This penalty must be enforced in the manner provided in the act of congress, and resort cannot be had to any other mode or form of procedure. (National Bank v. Deering, 91 U. S. 29; Barnet v. National Bank, 98 id. 555; Driesbach v. National Bank, supra.) The plaintiff in error relies upon the case last cited, but that case determines only that usurious interest which has been paid to a national bank upon renewal of a series of notes cannot be set off and applied in satisfaction of the principal of the note. It simply holds that the penalty provided for the taking of usury cannot diminish or affect the principal, and that the remedy for the same must be enforced as the statute prescribes. It will be noticed that the decision is carefully limited to usury that has been paid, and has no reference to usury which is embraced in either an original or renewal note. When a national bank makes a loan and stipulates, in the note for usury, it can only recover the actual sum loaned, without interest. This is the position of the plaintiff in error in this case, and it is immaterial whether the usury was embraced in the original or renewal notes. In either event, the bank cannot recover the usurious interest promised to be paid and included therein. (Morse, Banks, 562, 564, 565; Ball, Banks, 194.)
The instruction referred to is the only one about which complaint is made, and in it we find no error.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Gkeen, C.:
On the 24th day of May, 1881, the plaintiffs in error in this case conveyed to H. J. Rushmer the south half of lots 3, 4, and 5, in block 6, in Lane’s first addition to the city of Lawrence, in Douglas county. By the terms of the deed, the grantors covenanted that they were then the lawful owners of the premises, and that the same were free and clear of all incumbrances, and that they would warrant and defend the same in the quiet and peaceable possession of the grantee, his heirs and assigns, against all persons lawfully claiming the same. The consideration expressed in the deed was $1,150, paid by the grantee to George W. E. Griffith for the grantors. The plaintiffs in error obtained the title to the property under foreclosure proceedings. At the time they foreclosed their mortgage, and for some time prior thereto, J. H. Gower, as trustee, held a mortgage, which was subsequent to the mortgage of the plaintiffs in error, upon the conveyed premises, together with other lands, for a large sum of money. • It seems that Gower was not made a party in the foreclosure suits brought by plaintiffs in error. Gower, as trustee, afterward brought an action to foreclose his mortgage, but did not make the plaintiffs in error parties in his suit. The plaintiffs in error obtained a judgment and decree of foreclosure on the 23d day of April, 1878; and Gower, as trustee, recovered a judgment and de cree of foreclosure on the 19th of November of the same year. On the 15th day of January, 1879, under an order of sale issued in the case of the plaintiffs in error,.the sheriff sold the property to them, and the sale was afterward confirmed, and a sheriff’s deed was executed for the premises. On the 25th day of June following, the property was sold by the sheriff under an order of sale issued in favor of Gower as trustee, which sale was duly confirmed, and a deed executed to Gower, as trustee. The plaintiffs in error took possession of the land upon the confirmation of the sale to them, and held the same until the execution of the deed by them to Rushmer, who took possession of the land under his deed, and continued in possession of the same until the 17th day of October, 1882, when he and his wife sold the premises to Ella Henley for $2,300. After the sale Gower died, and J. D. Bowersock was appointed and qualified as trustee, and Henley then discovered that Bowersock had a deed for the same property she had purchased from Rushmer, and refused to accept a deed and pay for the land until the title held by Bowersock was obtained; and, in order to obtain such title, it was necessary to pay Bowersock $700 for a quitclaim deed, that sum being the least amount he would accept for his interest. This sum was paid by Henley to Bowersock and deducted from the purchase-price.
This action was brought in the district court of Douglas county by the administrator of H. J. Rushmer against Gilbert & Gay, to recover the $700 which he alleges Rushmer paid to Bowersock through Henley to make the title to the real estate free and clear of all incumbrances, and to purchase the title which Bowersock, as trustee, had in the land at the time Gilbert & Gay deeded the land to Rushmer. Certain facts were agreed to by the parties in the trial of the case below, and the court found certain other facts, and rendered judgment in favor of the plaintiff below for the amount claimed in the petition. The plaintiffs in error bring the case to this court.
It is claimed that the court below erred in admitting the evidence of J. D. Bowersock, who was called as a witness for the plaintiff and asked, “Was $700 the least sum that you would take and make a deed to this property?” It is contended that what Bowersock was willing to take was wholly immaterial; that if Bowersock had a claim, the question at issue was whether the amount paid to remove the alleged incumbrance was a fair price for the interest acquired. It seems to be conceded by counsel for the defendant in error, that the amount which the covenantee would be authorized to pay to remove the incumbrance must be reasonable, and must be the least sum for which he could procure a discharge of such incumbrance. The controlling question in this case, then, is the competency and sufficiency of Bowersock’s testimony to establish the fact that the price paid by Rushmer was the fair and reasonable value of the outstanding title or incumbrance. The witness stated, in answer to the question: “ The amount which I accepted was a compromise, and was the least that I was willing to take at the time, in consideration of this deed, whatever the amount was — $650 or $700. I should say it was just $700.” There was no other evidence as to the value of Bowersock’s interest in the property. We think the court, in its fourth conclusion of law, adopted the true rule of construction when it said:
“When the premises are of such value that the covenantee can better afford to pay the amount required to discharge the incumbrance than to suffer a redemption and eviction, he is justified in doing so, and may recover the amount so paid, not exceeding the consideration; notwithstanding he recovered and retained an interest paramount to the incumbrance of greater value than the amount which he paid for the interest. It must appear, however, that the lamount was fairly paid, and that the incumbrance substantially affected the value of the property.”
We are of the opinion, however, that the evidence did not •establish the fact that the consideration paid was fair and reasonable. This, we think, was essential to éntitle the plain tiff below to recover more than nominal damages. The rule has been stated in Devlin on Deeds, § 919:
“ It does not follow that the price paid was the fair and reasonable value of the incumbrance. The covenantee is not entitled to the price that he has been compelled to pay or has seen proper to pay, but only to this amount when he has fairly and reasonably paid it. It accordingly results that he has the burden of showing this fact.”
It was said, in Anderson v. Knox, 20 Ala. 156, that such payment was an act done, in which the grantee and the party holding the paramount title were alone the actors; that the grantor was neither a party or privy to it; and that as to him “it was clearly res inter alias acta, and, according to the established rules of evidence, inadmissible to fix the amount with which he should be charged, but allowable only as a fact which, if connected with proof of fairness, would entitle the grantee to recover the sum paid.”
In Pate v. Mitchell, 23 Ark. 590, it was said:
“To recover more than nominal damages, the onus is on the grantee to show what the outstanding title was worth; the fact that he paid a certain sum for it is no evidence of its value.”
In Guthrie v. Russell, 46 Iowa, 269, the defendant, who held title by foreclosure of a mortgage, conveyed to plaintiff with covenant against incumbrance. A second mortgagee, who had not been made a party to the foreclosure suit, asserted his claim and the plaintiff paid money to extinguish it. In an action on the covenant, it was held that the measure of damage was not what the plaintiff actually paid to extinguish the incumbrance, but only what he reasonably ought to have paid.
As stated by counsel for plaintiffs in error, it appears from the agreed statement of facts that Gilbert & Gay recovered a judgment on the 23d day of April, 1878, for $1,175.25 and $23.25 costs. This judgment drew 12 per cent, interest. From the fifth finding of fact made by the court, it is established that Rushmer negotiated the sale to Henley, who paid to Bowersock $700 for his claim. It would have cost the latter to redeem the land from the plaintiffs in error the sum of $1,837.37. The value of the redemption, upon the theory that Bowersock would have the right to pay off the first mortgage, would only be $462.63. We cannot say, upon this view of the case, that the amount, $700, was a reasonable price for Bowersock’s interest.
It is urged by counsel for defendant in error that Griffith, who negotiated the sale of the land for Gilbert & Gay, had notice that Rushmer had to pay $700 to have his title made good, so he could effect a sale to Henley, and that he refused to do anything for himself or for the grantors in the deed to Rushmer; and it is argued from this state of facts that Gilbert & Gay’s agent knew of the amount that Rushmer was required to pay to remove the incumbrance, and that they refused to pay any such sum; that an opportunity was then given them to secure the outstanding title at a lower price than the sum asked by Bowersock, and the fact that they did not do so was evidence that they did not regard the amount charged as unreasonable. The answer to this contention is, that the burden was upon the plaintiff below to show in the first instance that what he paid was a fair and reasonable value of the incumbrance purchased. To hold the vendors upon the theory of counsel, notice should have been given to them to pay off the outstanding claim against the conveyed premises within a specified time; otherwise the purchaser would purchase same. This was not done. The evidence does not establish the fact that Griffith was the agent of the plaintiffs in error at the time Henley purchased the property. He testified that he was the agent of Gilbert & Gay to deliver the deed to Rushmer and get the money for them, and that was all the authority he had in this particular case.
We think the court erred in the admission of the evidence of Bowersock, as to what he received for his interest in the property covered by the deed from Gilbert & Gay to Rushmer, for the reason that such evidence was not supplemented with other testimony that such sum was a fair and reasonable value of his claim upon the conveyed premises, and that the findings and judgment of the court that such sum was fairly and reasonably paid are not supported by the evidence.
It is recommended that the judgment of the court be reversed, and a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on the official bond of a county treasurer. Judgment was for the defendants sustaining a demurrer to the petition of plaintiff:
The plaintiff in the action was the board of education of the city of Girard. The board seeks to recover damages against the county treasurer on his official bond because'the treasurer neglected to make the proper distribution of tax money to a general high-school fund, with the result that the board failed to receive as much money from the county treasurer as it was entitled to.
The petition alleged, first, the official capacity of the parties, and that defendant Jones entered upon the duties of the office of county treasurer on the second Tuesday in October, 1933, and served until the expiration of his term on the second Tuesday in October, 1935, and that on October 7, 1933, defendants gave an official bond, of which the condition was as follows:
“Now, therefore, the condition of this obligation is such that if the said Oliver T. Jones, and his deputy, and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if said Oliver T. Jones and his deputies shall pay according to law, all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by said board of commissioners or by any provision of law and shall deliver over to his successors in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to said office, then the above obligation to be void; otherwise to be in full force and effect.”
The petition then set out the duties of defendant Jones with reference to receiving and collecting taxes, and that plaintiff board of education was a taxing unit of Crawford county. The petition then alleged that defendant Jones, as county treasurer, on October 2, 1935, made distribution and allocation of taxes collected for the tax year 1934 to the various funds, accounts and distributees entitled thereto, including the general high-school fund (otherwise known as the community high-school tuition fund). The petition then alleged that in making this distribution to the general high-school fund defendant Jones neglected to credit, and allocate to that fund the amount of tax due and .owing from the county treasurer to it, in that he in making the allocation credited and allocated the sum of $48,368.05, when there was due it $56,994.24; that by reason of these facts plaintiff was deprived of the just and proper amount of its proportionate share of the fund, in that there was owing to plaintiff as its share $8,960, whereas, due to the neglect of defendant Jones, there was paid to plaintiff only $7,645.88, and plaintiff was deprived of the balance, being $1,314.12; that all these acts of defendant J ones were in violation of law and he did not faithfully and promptly perform the duties of his- office and did not render a just and true account of moneys received by him; that each of these acts occurred while the bond sued on was in effect and the moneys received by defendant Jones in his official capacity as county treasurer and which were wrongfully distributed by him were received subsequent to execution of the bond sued on; that Jones in violation of the duties imposed upon him by law failed to keep correct and accurate records of taxes collected by him; that by reason of these acts and omissions of defendant Jones plaintiff had been damaged in the sum of $1,314.12. Judgment was asked for that amount. A copy of the bond was attached. To this petition defendant Jones and the defendant insurance company each interposed a general demurrer on the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were both sustained. Hence this appeal.
It will be noted that the petition spoke of the duty of Jones to distribute certain of the taxes collected to the general high-school fund, and that in making this distribution he did not distribute the correct amount to this fund so that plaintiff failed to receive the amount to which it was entitled for the year in question.
Plaintiff points out first the language of the bond, which is in the words of G. S. 1935, 19-502, also G. S. 1935, 19-506, 19-507 and 19-508. These statutes provide what the duties of the county treasurer shall be with reference to paying out money, keeping books, making settlements with municipal organizations and making quarterly statements. It is the contention of plaintiff that the petition stated facts from which it must be concluded that Jones violated these sections, thereby causing a loss to plaintiff, and hence is liable on his bond.
The defendants make an argument that the petition shows on its face that the action was barred by the statute of limitations, and that in any event the action is not one that the plaintiff should be allowed to maintain.
We expressly refrain from passing any opinion as to the latter argument that the action is not one which the plaintiff should be permitted to maintain, but will consider the question of the statute of limitations.
This action was filed October 1, 1938. The tax levy in question was for 1934.
We must first notice the statute under which provision is made for the general high-school fund. These sections are, first, G. S. 1935, 72-2505a. This section provides that in certain counties the county superintendent and the county commissioners shall levy a tax for the purpose of creating a general high-school fund; that the tax shall be collected in the same manner as other taxes, and when collected the county treasurer shall pay to certain school districts according to the provisions of the act. G. S. 1935, 72-2505b, provides that tuition shall be paid by the county treasurer under the provisions of the act not later than March 1 and July 30' of each year. G. S. 1935, 72-2505c, provides for the principal of each high school making a report to the county superintendent of the actual daily attendance of each pupil who resided outside of his district but within the county, and for the principal of each community high school to make a report showing the actual daily attendance of each pupil attending his high school who lives in the county. G. S. 1935, 72-2505d, provides that the county superintendent shall certify to the county clerk and to the county treasurer on or before the 15th day of February of each year and on or before the first day of June of each year the actual daily attendance of those pupils in attendance at the various high schools of the county, and if the high school is other than a community high school the superintendent must certify only the actual daily attendance of those pupils who reside outside the bounds of districts maintaining four-year accredited high schools and within the county. G. S. 1935, 72-2505e, provides that if any pupil residing in certain counties and in a school district not maintaining a four-year accredited high school within these counties, the county treasurer shall pay to the treasurer of the district where the pupil attends, thirty-five cents a day or such proportion of thirty-five cents as the levy will permit for actual attendance of the pupils at that high school. This act further provides that the county treasurer shall pay to the board of trustees of community high schools the sum of thirty-five cents per day or such proportion of thirty-five cents as the levy will permit for each pupil living in the county in actual attendance at the community high schools coming under the provisions of this act. It will be noted that this act first provided for the raising of a fund by a levy and that this fund should be called a “general high-school fund.” The balance of the act provides for the determination of the amount of this fund that shall be paid out to the different school districts of the county. It should be noted that the act does not provide that this fund should be handled differently from any other tax money on the books and records of the county treasurer.
The theory of the cause of action brought by plaintiff is that defendant did not properly set up a general high-school fund so that when the time came to pay tuition, as provided in G. S. 1935, 72-2505a, there was not enough in the fund , to give plaintiff its proportionate share. On account of the argument that is made on the statute of limitations we must know when the cause of action accrued to plaintiff, since that will determine when the statute started running.
The petition does not allege that the plaintiff did any of the acts or made any of the reports that would entitle it to be paid tuition. On a general demurrer, however, we should accept the general allegations of the petition as complying with this necessity.
The statute is plain, however, as to just when this tuition is due. G. S. 1935, 72-2505b, provides that it shall be paid not later than March 1 and July 30 of each year. This is a direction to the county treasurer to pay this tuition on that date. It was' due then. It is the taxes for 1934 with which we are concerned. The first half of these taxes was due December 20, 1934, and the last half on June 20,1935. Since the statute provides that this tuition should be paid not later than March 1 and July 30 of each year the last date on which tuition out of the 1934 taxes was payable was the next date provided for in the statute after the final taxes for 1934 were paid. This would be July 30, 1935. The plaintiff could have maintained its action for the tuition for the school year 1934 at any time after July 30, 1935. The statute of limitations began to run against plaintiff’s cause of action on that date. This action was filed October 1, 1938.
Liability of the county treasurer contended for here is a liability created by statute. (See City of Leavenworth v. Hathorn, 144 Kan. 340.) Such an action can only be brought within three years of the time when it accrued. (See G. S. 1935, 60-306.) Hence this action was barred after July 30,1938.
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The opinion of the court was delivered by
Smith, J.:
This was an action to partition real estate in the first cause of action and for an accounting in the second cause of action. Judgment was for the plaintiff, decreeing a partition.. One of the defendants appeals.
The plaintiff, Laura Kolterman, was -a daughter of George W. Forrester. The defendants and intervener are other heirs of George W. Forrester. The plaintiff set out that George W. Forrester died intestate seized in fee of a lot in Wamego; that he was survived by this plaintiff, two other daughters and two sons, and the children of a deceased son, and by Amanda Forrester, his widow; that Amanda Forrester by antenuptial contract waived all her interest in any property of George W. Forrester, except a life estate in a certain piece of real property and that she had quitclaimed all her title in that property to plaintiff and was still living. The petition further alleged that plaintiff was the owner of the life interest, which was for the duration of the life of Amanda Forrester, the widow of George W. Forrester, and that the defendants, E. G. Forrester, S. W. Forrester, Cora Atkinson, and Martha Fox, each owned a one-sixth interest in the remainder. The petition then set out that defendants, Lydia Forrester, Aldene Forrester, Georgia Ellen Cottle and Bernadene Taylor, heirs of George W. Forrester, Jr., deceased, were together entitled to a one-sixth interest in the remainder. For a second cause of action the allegations of the first cause of action were referred to. The reasonable value of the property was set out and plaintiff alleged that E. G. Forrester, one of the defendants, had occupied the premises since the death of George W. Forrester; that plaintiff was entitled to the possession of the property and hence E. G. Forrester was indebted to plaintiff for rent in the amount of $2,300. In the prenuptial contract, which was attached to the petition, the rights of the parties were set out and George W. Forrester agreed that-Amanda, as his widow, should have a life estate in a five-acre tract of land at Peabody, the above tract to revert to the estate on the death -of Amanda. Attached to this contract was the following:
“I have changed the above contract by selling the Peabody property, that was to go to my intended wife, at that time Amanda Wood. She was willing that Peabody property be sold and that I give her instead lease on house and lot in Wamego, Kan. This includes lot No. 275 and buildings on same located in the original townsite of Wamego, Kan., under same terms as the above lease and contract.
“Given under my hand and seal this 22d day of November, 1923.
(Signed) “George W. Forrester.
“Witness: “Mrs. Cora Atkinson.”
A quitclaim deed attached to the petition was executed on January. 5, 1928, and conveyed all the interest of Amanda Forrester in the real estate in question, located in Wamego, to Laura Kolterman, the plaintiff in this case. Defendant E. G. Forrester demurred to the second cause of action. After this demurrer was argued, but before it was decided, plaintiff asked and was granted leave to dismiss her second cause of action. This was done. On December 1, 1937, E. G: Forrester filed his amended answer. This was first a general denial, except that he admitted the death of George W. Forrester and the relationship of the parties. He then alleged that in 1907 without intent to commit fraud he bought the property described in the petition and the adjoining property, paying $2,100 for it, took possession of it and had remained in possession ever since; that the title to the real estate was ■ taken in the name of George W. Forrester, pursuant to an agreement, and remained in his name during the remainder of his lifetime; that he never attempted to hold possession of it and held only the legal title; that during the time defendant had possession of the premises he made permanent improvements amounting to the sum of $1,200 and paid the taxes and special improvement assessments. He asked that his title be quieted and for such further relief that to the court should seem just and equitable. His wife filed an answer to the same general effect.
Cora Atkinson, one of the daughters, filed her separate answer and cross petition, in which she admitted all the allegations of the plaintiff's petition and stated that she was the administratrix of the estate of George W. Forrester; that the property sought to be partitioned was part of the estate; that she had no funds in her hands with which to pay the costs of the administration and that these costs amounted to $25. She asked judgment for that amount.
Martha Fox, another sister, filed an answer in which she admitted the allegations of the petition and asked that the property be partitioned.
Lydia Forrester, by herself and as executrix of the estate of George W. Forrester, Jr., a subsequently deceased son, Aldene Forrester, Georgia Ellen Cottle, and Bernadene Taylor, children of George W. Forrester, .Jr., filed an answer by way of a general denial except it admitted the death of George W. Forrester; that he died seized of the property in question, and that the prenuptial contract was executed and that the other children were entitled to a share in the real estate. They answered then and set out in more detail the allegations of the petition of plaintiff and that the parties filing the answer were joint owners of an undivided one-sixth interest in the property and that this should be set off to them and the land partitioned and that they receive their just share.
On the 17th day of June, 1938, Gerald Kolterman filed a motion for permission to intervene. He was given permission and filed an answer, stating that he held a judgment against S. W. Forrester, one of the defendants, for the sum of $598; that this judgment was a prior lien upon the interest S. W. Forrester had in his share of the real estate and asked that the property should be sold and the interest of George W. Forrester be applied on the payment of this judgment.
On December 11, 1937, Laura Kolterman filed her reply to the answer of E. G. Forrester. In this reply she denied that Forrester purchased the property in 1907 or that he ever furnished any part of the purchase price for the property. She further stated that during all the time that E. G. Forrester used and occupied the property it was by permission of George W. Forrester, and after the death of George W. Forrester by the permission of the owners of the life estate. The reply admitted that E. G. Forrester had made some repairs on the property, but stated that she did not know whether he had paid any taxes. She further stated that she had at that time and had been since the 5th day of January, 1928, the owner of a life estate in the property; that he had held and used it by her permission, since that time. H,e had never paid any rent; that a reasonable rental value was $25 a month; that she was entitled to the possession of the property and was also owner of an undivided one-sixth interest in the remainder after the expiration of the life estate and set out that Forrester wrongfully kept her out of possession. She prayed for a judgment holding that E. G. Forrester had occupied the property from the year 1907 until November, 1937, as a tenant at will and that his only interest in the property was a one-sixth interest in common with the other heirs and for an accounting and that he be ordered to surrender the property at once.
To this reply E. G. Forrester filed a motion to strike the part referring to an accounting. The court ruled on this motion. Evidently no journal entry was filed, but the court did order stricken' from the reply that part concerning the accounting, and the part of the prayer in reference thereto.
S. W. Forrester filed no pleading in the case and at the trial disclaimed any interest. With the pleadings thus drawn, the case was submitted to the trial court. That court found as a matter of fact that George W. Forrester died, as alleged, seized and possessed of an estate in fee simple of the property in question. The court further found that by prenuptial contract Amanda Forrester, his wife, waived all of the interest in the property except a life estate to begin on the death of George W. Forrester and to continue during her life; that on January 5, 1928, Amanda conveyed her interest in the property to Laura Kolterman, the plaintiff in this case; that Amanda was still alive at the time of the trial and was eighty-eight years old at that time. The court further found that Laura Kolterman, the plaintiff, was the owner of the life estate in an undivided five-sixths interest in the property during the life of Amanda Forrester. The court further found that the fee title to the property vested in the children of George W. Forrester, share and share alike, and one-sixth is now owned by the widow and the children of George W. Forrester, Jr., who died January 12, 1937, subject to the life estate, and to the payment of the debts and costs of administration of the estate of George W. Forrester, and George W. Forrester, Jr.; that the plaintiff was the owner in fee of an undivided one-sixth interest and the owner of a life estate in an undivided five-sixths interest in the property, subject to the payment of costs of expenses of the estate and was chargeable with the payment of unpaid taxes since June 1, 1926; that the defendants, E. G. Forrester and Nora Forrester, his wife, were wrongfully in possession of the property .and this property should be surrendered immediately to Laura Kolterman, plaintiff, who was entitled to immediate possession. The court further found that the other children owned an undivided one-sixth interest in the above property subject to the life estate of plaintiff for the life of and to the cost and expense of the administration of the estate of George W. Forrester; that S. W. Forrester was the owner of an undivided one-sixth interest subject to the life estate of plaintiff and to the payment of the cost and expense of the administration of the estate of the said George W. Forrester and to a judgment lien in rem in favor of Gerald Kolterman, intervener, in the amount of $598, with interest at six percent from the 9th day of June, 1938; that Cora Atkinson, as administratrix of the estate of George W. Forrester, was entitled to the sum of $25 out of the proceeds of the property. Judgment was rendered accordingly.
There were no requests on the part of any of the parties for additional findings or to strike out any findings that were made.
The first appeal to this court is from' a judgment and decision rendered March 9, 1939. This notice of appeal was served on May 20, 1939, and the amended notice of appeal on June 3, 1939. These notices were too late to be effective as an appeal from the judgment rendered March 9, 1939. (See G. S. 1939 Supp. 60-3309.) Notice of appeal was amended, however, so as to constitute an appeal from the order of April 4,1939, denying the motion for a new trial — hence the only points this court can consider are the points raised in that motion: abuse of discretion of the court; erroneous rulings of the trial court; that the decision was contrary to the evidence; newly discovered evidence; and that the decision was procured by the corruption of the party obtaining it.
The first point argued by defendant E. G. Forrester is that the judgment of the trial court was in part contrary to all the evidence for the reason that the undisputed evidence shows that he paid taxes and made improvements upon the property, entitling him to an accounting, which the trial court refused. The trouble with this argument, as far as defendant Forrester is concerned, is that he did everything he could in the trial court to prevent that court from ordering an accounting. In the first place, he filed a demurrer to the second cause of action. After this demurrer was argued and before the trial court ruled on it the plaintiff asked for and was given permission to dismiss this cause of action without prejudice. Soon thereafter defendant E. G. Forrester filed his answer. While he did make a statement in that answer that he had made special improvements upon the property and paid the taxes, in the prayer of his answer he did not ask for an accounting. He only asked that his title to the real estate in question be quieted. Before the issues were made up the plaintiff filed a reply to the answer of E. G. Forrester. In this reply she set up some matter with reference to the reasonable rental value of the property and stated that Forrester was indebted to her in that amount, less the reasonable value of the improvements and repairs. In her prayer she asked for an accounting. To this reply defendant E. G. Forrester filed a motion to strike the reference to the rental value and the part of the prayer that asked for an accounting. This motion was sustained and that part of the reply was stricken out. Thus, it is clear that due to the efforts of defendánt the issues were finally framed for the trial so as not to present the question of an accounting. No reference to an accounting was made in the findings, and no such findings were requested. There was some evidence as to the rental value of the property and as to the improvements that had been made, but it appears that this evidence was offered by the parties and received by the trial court as a circumstance bearing on the claim of E. G. Forrester that he had bought the property and it had always been his even though it stood in his father’s name. It is well settled that a party cannot take a position in the trial court which prevents a question from being presented to that court and then raise that question for the first time on appeal to this court. (See Meyer Sanitary Milk Co. v. Casualty Reciprocal Exchange, 145 Kan. 501, 66 P. 2d 619.)
The next argument of defendant E. G. Forrester is that the judgment is in part contrary to all the evidence for the reason that the undisputed testimony shows that he paid all the purchase price of the real estate, the title to which was taken in the name of his father, and showed that by agreement George W. Forrester held the legal title in trust for E. G. Forrester. It would add little to this opinion to set out the evidence in detail here. It is true that E. G. Forrester testified that he furnished the entire purchase price of this property. There were some circumstances, too, which tended to corroborate this. On the other hand, Amanda Forrester testified that after the death of her husband E. G. Forrester paid rent to her for three months. Just why he stopped paying does not appear from this record. The fact that he paid her any rent at all is a circumstance tending to discredit his story that the land was really his. Then he testified that he paid $2,100 for the property by giving a check for $600, dated October 7, 1907, and a note for $1,500. He did not produce the note. Later on the plaintiff showed that on the day he issued his $600 check he drew a sight draft on his father for that amount and deposited it in the Wamego bank. E. G. Forrester testified that in 1907 he was not in debt to his father and his father was not in debt to him. Under such circumstances, perhaps, the trial court did not believe the story told by him. If the court did not believe this story then there was very little evidence to prove the allegations of the answer. At any rate, we cannot hold that the undisputed testimony supported his story.' Defendant cites and relies on some authorities where a theory such as that advanced by him was upheld on very meager evidence. They are cases, however, where the trier of the facts had found in favor of that theory. We do not have such a case here.
The next argument of defendant is that the judgment was contrary to the evidence because it held that S. W. Forrester was the owner of an undivided one-sixth interest in the property. S. W. Forrester was the son of George W. Forrester. He filed no pleading, but testified to some conversations with his father which tended to corroborate the testimony of E. G. Forrester. If the judgment was correct as to the other children it is correct as to him. It will be remembered that Gerald Kolterman intervened in the action and asked for a lien on the share of S. W. Forrester on account of a judgment he held. It might have been this circumstance that influenced him to testify as he did. He could not disclaim or alienate any interest he might have to the detriment of his judgment creditor. At any rate, once it was decided that the other children were entitled to one-sixth interest it followed that S. W. Forrester was entitled to- the same interest.
The next argument of defendant is that the trial court erred in admitting over the objection of defendant E. G. Forrester the testimony of Robert Kolterman relative to conversations between the parties concerning an attempt to compromise their controversy. The record is not entirely clear as to who Robert Kolterman’ was, but apparently he was the husband of Laura Kolterman. With reference to a conversation between his wife and E. G. Forrester he testified as follows:
“A. My wife spoke to him about getting together and settling this estate. He said, ‘Get them together and I will deed you that forty.’
“Objected to and ask that it be stricken on the ground it is another compromise of this litigation, at the time they were trying to settle it up, although it was not actually in being at that time.
“Overruled.
“Q. Go ahead? A. My wife said to him, ‘You know that is hard to do; they won’t do that because they are not getting anything out of it.’ He said, ‘That will go good with your eight [eighty].’ Offered to deed for a quitclaim deed from the other heirs. He said, T will deed this to you if the rest will assign over their interest in the house to me.’ I said, T don’t want the forty.’ ”
It is the refusal to strike this bit of testimony which the defendant argues was error. This testimony was offered in rebuttal. E. G. Forrester had testified in his own behalf about some conversations he had had with Mrs. Kolterman. The testimony to which objection was made was with reference to the same conversation. It was admissible on that account, since Forrester himself had brought the conversation into the case. Under such circumstances it was not error to admit the above testimony.
The next argument is that the trial court erred in holding that the plaintiff was the owner of a life estate in the property. The basis of this argument is that the antenuptial contract referred to property in Peabody and that when the contract was changed to refer to the Wamego property G. W. Forrester and Amanda Forrester were married — hence there was no consideration for the contract with reference to the Wamego property. The fact is, however, that the consent of Amanda that the Peabody property should be sold was sufficient consideration for the new contract. We hold that Amanda had a life estate in the property upon the death of her husband and that this life estate was conveyed to Laura Kolterman by the quitclaim deed.
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The opinion of the court was delivered by
Dawson, C. J.:
The state, on the relation of the attorney general, and the city of Kansas City invoke our original jurisdiction in quo warranto to determine the legality of certain arrangements which the city and its governing officials propose to make with prospective tenants of the newly completed food terminal market. More precisely put, the city wants an authoritative decision on the question whether it may expend some portion of the rental income of the market to aid a number of wholesale commission merchants who must sustain certain extraordinary expenses and depreciation losses in order to enter into leasing contracts for large space units in the market.
The pleadings allege that the construction of the Kansas City Food Terminal Market is the culmination of years of effort on the part of the city to improve and put to use a tract of land donated in pre-statehood times to the town of Wyandotte, now Kansas City, for a public wharf on the west bank of the Missouri river and north of its confluence with the Kaw. Preceding chapters in the progress of this civic undertaking are recorded in our reports. (Kansas City v. Wyandotte County, 117 Kan. 141, 230 Pac. 79; State, ex rel., v. Kansas City, 140 Kan. 471, 37 P. 2d 18; Robertson v. Kansas City, 143 Kan. 726, 56 P. 2d 1032; State, ex rel., v. Kansas City, 149 Kan. 252, 86 P. 2d 476.) Other cases incidentally involving the wharf property and its accretions were Stark v. Meriwether, 98 Kan. 10, 157 Pac. 438; Id., 99 Kan. 650, 163 Pac. 152; State of Kansas v. Meriwether, 171 Fed. 39; Missouri v. Kansas, 213 U. S. 78, 53 L. Ed. 706.
The present action has arisen out of the passage of a resolution by the city government of Kansas City which reads:
“Resolution No. 11275
“Whereas, The Board of City Commissioners of the city of Kansas City, Kansas, by ordinance No. 30304, passed on the 6th day of December, 1938, approved by the mayor on December 6, 1938, and published in the official paper of Kansas City, Kansas, on December 8, 1938, adopted a uniform lease form for the leasing of wholesale units in the Kansas City Food Terminal, which said form provided, among other things, for a rental of fifty dollars ($50) per month per unit for the first three months, and one hundre.d fifty dollars ($150) per month per unit for each additional month thereafter; and
“Whereas, In connection with negotiations with prospective lessees for use of space in the new Kansas City Food Terminal, the city has found that certain costs would be incurred by some prospective tenants, due to rental obligations on present places of business and costs due to abandonment of equipment and facilities now located in, and the good will of said established place of business, and said prospective tenants, as a condition precedent to the acceptance of said leases, have asked the city to absorb a part of said costs; and
“Whereas, The city, after consideration, have found that in the initiation of the Kansas City Food Terminal project desirable tenants have' engagements and existing facilities that must be taken into consideration in securing the cooperation of such persons and the occupation by them of the facilities in the new terminal, and that it is the prudent and necessary thing to do in initiating the project and to secure the full cooperation of the dealer tenants necessary to obtain the fullest possible occupancy of the facilities: Now, therefore,
“Be it resolved . . . That the city of Kansas City, Kansas, proceed promptly to negotiate with each prospective lessee to determine upon the character and amount of such costs to be established by sworn statements of said prospective tenants and upon agreement with respect thereto to enter into leases with them for facilities in the Kansas City Food Terminal on such terms and conditions as to cash payments to said tenants or credits on future rentals, or,both, as the board of city commissioners of the city of Kansas City, Kansas, may determine to be necessary and proper expenses in connection with the establishment and operation of said Kansas City Food Terminal.
“Be it jurther resolved, That said board of city commissioners hereby request the attorney general of the state of Kansas to forthwith proceed in the nature of a quo warranto in the name of the state and against the city and its governing body to determine whether or not the city and its commissioners, in its proprietary capacity, have authority to pay such sums as are necessary in the discretion and sound judgment of the board of city commissioners to carry out, in the discretion of said board, such policies and transactions as may be to the best interest of said city in securing tenants for said Kansas City Food Terminal.
“Said attorney general is also requested to raise any and all other questions as he shall deem just and proper in the premises.
“Adopted by the board of commissioners this 16th day of December, 1939.”
Accordingly the attorney general’s petition alleges at length all the pertinent facts — the dedication of certain riparian lands at the junction of the Missouri and Kaw rivers for a public wharf, its improvement by the city, the construction of levees to protect it from floods, the construction of a grain elevator terminal dock and wharf, the construction of a mooring wharf, and the construction of a wholesale terminal fruit and vegetable market, and other improvements — the cost of which has been met by an issue of $3,000,000 revenue bonds and by a generous grant of funds from the federal government. Within the last few years the total expenditure of government funds and borrowed money on these improvements approximates $6,000,000.
The state alleges that the defendants are without authority to do what is now proposed in the resolution set out above — that no part of the rental income already collected can be thus expended, nor can abatements of prospective rents or credits thereon be extended to prospective tenants as an aid or inducement for them to become lessees of units of the market.
Attached to plaintiff’s petition are copies of city ordinances under which bonds to the amount of $3,000,000 have been issued payable out of the anticipated rental income of the city?s public levee and this new food terminal market. These bonds contain lengthy recitals as to the purposes of their issue, and also recite that—
“This bond and the interest hereon are payable solely from the money and revenue received by said city from the fees charged and rental received for the use of the property and facilities improved, constructed, reconstructed, repaired or otherwise improved by the proceeds, in whole or in part, of the revenue bonds of said city, issued or to be issued as aforesaid, and not from any other fund or source. This bond shall not be or constitute a general obligation of said city of Kansas City, Kansas.”
Defendants’ answer raises no issue of fact, but only pertinent issues of law. Defendants assert that they have lawful authority to do what is reasonable and necessary to insure the success of the market; that they are immediately confronted with an administrative problem of first importance, which is that of procuring responsible tenants to lease and occupy some thirteen of the largest rental units in the market; that without such tenancies and the rental income to be derived therefrom the financial objective of providing for the payment of the bonded debt incurred in constructing the market and its related facilities, as contemplated by the statute and by the defendant city, cannot be accomplished. Defendants further contend that what is proposed in resolution No. 11275 is an exercise of sound business sagacity and discretion on the part of defendants who are exclusively charged with the onerous responsibilities involved in this important civic undertaking.
Although most of the facilities of the terminal market are now completed and ready for occupancy, it is not yet possible to determine with accuracy what the income of the market and its related facilities will be. Expert accountants have calculated that it should produce a total gross income of $7,542,660 by the time the bond issue falls due. Out of that gross income the interest on that bond issue and the ordinary and contingent expenses of operating and maintaining the market must be met.
It is pleaded in defendants’ answer and explained in their brief that there are some thirteen responsible commission firms, “key men,” in the wholesale food, fruit and vegetable business in or near Kansas City, whom the defendants are particularly desirous of inducing to become tenants of the market. In their answer, defendants allege — •
“That said firms have offered to transfer their business to the Kansas City Food Terminal for the sum, of $111,850 cash and $30,700 credits on rent, or a total amount in cash, and rent of $142,550, which will net to said city from said thirteen firms alone, over the period of time that they offer for the initial period to lease, of $62,350. These firms will bring to the Kansas City Food Terminal the added benefit that will accrue from the attendance of their established customers upon the market, and because of the fact that they transact a total carload business averaging 7,500 cars a year, will give added prestige to the market and attract other tenants to such quarters as remain unleased after they move in.
“That these thirteen firms control and now have about fifty percent, or more, of the' unload business at Kansas City, and in addition to the quarters above referred to, said market terminal includes twenty-four other units now occupied and twenty units not yet completed which are being leased for allied food lines, wholesale cheese, meats, butter, poultry, eggs, fish, etc., seventy-five office rooms for brokers, seventy-two of which are now leased, a bank building, restaurant and retail stores for feed, drugs and farmers’ supplies under construction, also 428 farmers’ stalls, together with a cold-storage plant, grain elevator, terminal dock, railroad tracks, a public wharf on the river and filling station.
“Based on the facilities being fully occupied over the thirty-year period.for which the bonds have been issued, the aggregate total rentals at rates prescribed by the governing body will amount to $7,542,660 and the total expense of procuring these firms amounts to 1.9 percent of the gross rentals.”
Plaintiff’s motion for judgment concedes the accuracy of these alleged facts.
Counsel for the parties have sought assiduously to assist the court to reach a correct decision in this cause, of the importance of which to the city we are fully aware, as well as its importance to the bondholders, and likewise to the federal government whose grants in aid have brought this great municipal enterprise into existence. Various decisions of this court, mostly those reaching back to pioneer times in this state, are cited. (Whetstone v. Ottawa University, 13 Kan. 320; Town Co. v. Russell, 46 Kan. 382, 26 Pac. 715; Fulton v. Land Co., 47 Kan. 621, 28 Pac. 720; Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706.) These show how liberally this court was wont to deal with challenged exercises of corporate power by the early town companies to induce settlers to take up their abodes in the prospective cities, and to establish businesses therein, and to found colleges and other desirable institutions thereabout. However, in the case at bar it seems rather clear that the proper conclusion to be reached does not turn on a critical examination of analogous cases, but rather upon a study of the pertinent statute and the pertinent circumstances under which the defendants assume to act.
Our. general statutes contain various provisions authorizing the cities of this state to establish and maintain a public market and to provide equipment therefor. (G. S. 1935, 12-1301 et seq., 13-402, 13-1060 et seq.) But these provisions have little bearing on our instant case further than to note that the establishment, maintenance and regulation of a municipal public market is no new thing. In Attorney General v. Detroit, 71 Mich. 92, 100, 102, 103, 38 N. W. 714, it was said:
“Markets are as old as civilization, and public market places have in many countries been identified with the most important events in their history. . . .
“There are few cities in the United States that do not owe much of their business prosperity, and much of their enterprise, to the energy and thrift of citizens who began and have sometimes kept up their active career in the public markets. . . .
“There is not very much American law on the subject of markets. Their general conditions have so generally remained unchanged that the old usages have been followed without controversy. There are few, if any, popular institutions so universally retained, and few that have served a better purpose. The law, as found in the standard textbooks and digests of the older authorities, stands practically unaltered in any feature of public utility. See Bac. Abr. ‘Fairs and Markets’; Com. Dig. ‘Markets’; 1 Bl. Comm. 274; 3 Bl. Comm. 218; 2 Co. Inst. 220, c 31; Townend v. Woodruff, 5 Exch. 506; Toml. Law Dict. ‘Market’; Rex v. Burdett, 1 Ld. Raym. 149.”
The basic statute which confers and limits the powers of the de fendant city and its governing officials touching the subject matter of present concern is Laws 1933 (Special Session), ch. 43, as amended by Laws' 1937, ch. 135. (G. S. 1935, 13-1238 to 13-1243, 13-1245, and G. S. 1937 Supp. 13-1238, 13-1244.)
By this statute any city of 115,000 population or more (like Kansas City) is authorized to improve, construct or repair its public levees, docks, wharfs, river terminals, grain elevator terminal docks, and such storage, railroad and other facilities as will provide convenient access to adjacent navigable water transportation. To provide the wherewithal to pay for these improvements, the city is authorized to sell revenue bonds payable exclusively out of the income of the public levee and-its related facilities and improvements. The statute contemplates that the revenues out of which the bonds are to be paid are to be derived out of the rates and charges to be exacted by the city for the use of the services and facilities as outlined above — “which rates and charges so fixed shall be sufficient to pay all expenses of the city in connection therewith and cover the cost of operation and repairs, pay all interest charges upon all indebtedness created for the purpose of improving, constructing, reconstructing, repairing or improving of such public levee and the improvements and facilities thereon for which such revenue bonds were issued to so improve, construct, reconstruct or repair and to provide a sinking fund sufficient to pay off such indebtedness at maturity.” (G. S. 1935, 13-1242.) (Italics ours.)
Another section of the statute reads:
“The governing body of such city, is hereby empowered and authorized to enter into an agreement in writing with any person, firm or corporation to erect and construct on its public levee, improvements and facilities authorized and mentioned in this act and lease the same for a term of not to exceed ninety-nine years for such rental and upon such conditions as in the judgment of said governing body will be to the best interest of such city, provided the rent fixed by any such agreement and lease shall be sufficient to liquidate and pay all expenses of the city connected therewith and the principal and interest of all revenue bonds issued or to be issued to pay the full cost of such improvements and facilities so leased.” (G. S. 1935, 13-1243.) (Italics ours.)
Note that the statute says the governing body of the city may lease the market facilities upon such terms and conditions “as in the judgment of said governing body will be to the best interests of the city.” Under such a broad grant of statutory power, it would appear that what the city and its governing officials undertake to do would have to transcend all reasonable bounds of official discretion before a court would be justified in interfering.
Clearly the statute implies that it is the duty of defendants to make the market a success. To effect that object, it gives few explicit directions. . In only two matters does the statute particularize, (first) that neither the cost of constructing the market nor any of its incidents or concerns shall ever become a charge upon the city’s general revenue fund nor directly or indirectly a burden on the city’s taxpayers, and (second) that the city shall fix rates and charges for the use of the market at such figures as will pay the principal and interest of the bonded debt, and meet all pertinent expenses of the market. The rates and charges may be higher than this requisite minimum. Certainly the statute does not contemplate that when the bonded debt is liquidated the rates and charges must be reduced accordingly. The broad statutory mandate will continue to govern; the governing body will continue to exercise its discretion as to what “will be for the best interest of the city.”
The statute does not say that the rates and charges for every booth, stall, and rental unit shall be identical. Varying factors of size, location, and other circumstances would make such uniformity impracticable. On such matters the discretion vested in the governing body of the city is necessarily quite broad. If this public market had been called into existence by a corporation altogether separate from the city, but for precisely the same purposes (as was done when the legislature created a separate corporation for dealing with problems of flood control rather than impose such additional duties on the governing body of Kansas City or on the board of county commissioners), and if its board of directors should find their corporate enterprise stalled at its inception for want of tenants and had de.emed it expedient and necessary to expend certain of their corporate funds to aid and induce desirable tenants to enter into leasing contracts for space units in the market, surely their power to do so would pass unchallenged. Confronted with this precise problem, why may not the defendants do the like in the actual case before us?
It may be suggested that if defendants have such broad discretionary authority they or their successors in office may allow unfair discrimination or abatements of rent between tenants, or exercise favoritism in other respects. That, of course, is a possibility, but if the hands of public officials are to be judicially tied on that account, where the legislature itself has not seen fit to tie them, any official board or officer could be stopped by judicial interference. However, Kansas government is founded on the assumption that public officers and boards, great and small, will exercise their express and implied powers fairly and honestly. In Manufacturing Co. v. Hayes, 98 Kan. 269, 157 Pac. 1169, it was said:
“We believe the rule to be fundamental, not only in Kansas but throughout all states and countries where either the common or civil law prevails, that the acts of any official, not alone those of a magistrate, but of any official of any department of government, when within the general scope of his powers are presumed to have been regularly and lawfully done. This rule was crystallized into a maxim before law and rules of law were written in the English tongue. See the variations of the ancient maxim, ‘Omnia rite esse acta praesuvmntur,’ meaning all official acts are presumed to have been rightfully done, in 2 Bouvier’s Law Dictionary. The burden is on the party who assails their regularity.” (p. 270.)
It is quite true, as this court has often said, that public funds can only be disbursed as sanctioned by statute. And ordinarily such statutes specify not only how such funds may be expended but how they shall be raised, and how much shall be raised. Ordinarily the lawmakers’ chief solicitude is for the taxpayers and for the use of the public property constructed with the taxpayers’ money. We do not regard such cases as State, ex rel., v. City of Hiawatha, 127 Kan. 183, 272 Pac. 113 and citations, or State, ex rel., v. City of Lawrence, 150 Kan. 353, 92 P. 2d 31, as controlling or helpful. In the Hiawatha case it was too clear for cavil that the city’s memorial auditorium erected at the expense of the taxpayers was never intended to be used as a business enterprise. So, too, in the Lawrence case, the city not only lacked statutory authority to lease the armory it planned to build, but other pertinent statutes could not be harmonized with the city’s project challenged by the state. Here p.er contra, the terminal market and all the vast and costly improvements pertaining to it have been constructed in the hope and expectation of the legislature, the city, and the federal government, that they will eventuate as a permanently successful municipal enterprise.
This court has frequently recognized that there are two distinct phases of corporate capacity vested in the cities of this state — their strictly governmental capacity, in which they are to be concerned with the health, safety, and morals of the public as direct agencies of the state, and their quasi private or proprietary capacity, in which their corporate concerns are left largely to the city’s own determination. Familiar instances of the latter are the adventures of a city into municipal ownership of public utilities, such as water, gas and electric power plants. In the exercise of their proprietary prerogatives this court has said that the governing officials of a city may lawfully exercise their discretion and judgment in much the same way as is done by the directors of a private corporation or by the proprietor of a private business. Thus in State v. Water Co., 61 Kan. 547, 561, 60 Pac. 337, the validity of certain hydrant rental contracts between the city of Topeka and the privately owned corporate utility, The Topeka Water Company, was challenged. This court said:
“In the making of said contracts, evidenced by ordinances, the city was not exercising legislative or governmental powers, but quasi private power conferred by law, and in such matters it could exercise its business affairs governed by the same rules as apply to an individual or a private corporation. (1 Dill. Mun. Corp. § 27, and cases cited; Illinois Trust & Sav. Bank v. City of Arkansas City, 22 C. C. A. 171, 76 Fed. 271, 34 L. R. A. 518.)”
The same rule of law was reiterated in Hubbel v. South Hutchinson, 64 Kan. 645, 648, 68 Pac. 52; Water Co. v. Cherryvale, 65 Kan. 219, 228, 69 Pac. 176; State, ex rel., v. City of Coffeyville, 138 Kan. 909, 28 P. 2d 1032. See, also, Capital Gas & Electric Co. v. Boynton, 137 Kan. 717, 22 P. 2d 958, and cases cited therein; Kansas Gas & Electric Co. v. City of McPherson, 146 Kan. 614, 72 P. 2d 985.
In Child v. Board of Commrs. of Newark, 8 N. J. Misc. 597, 151 Atl. 203, a taxpayer brought suit to challenge the city’s authority to lease its public market for a term of fifty years at an aggregate rental of $20,000,000 and to pay a commission of $200,000 to the firm of real-estate dealers who negotiated the lease. In refusing to interfere, the supreme court of New Jersey said:
“The lease is highly advantageous to the city. It provides a large revenue and relieves the city of heavy maintenance charges. The value of the brokers’ services is not questioned nor the reasonableness of their commissions. The validity of the action of the city is challenged on the ground that it may not employ brokers, and further that the ordinance is invalid. ...
“It, therefore, seems that where a municipality has the power to lease lands it has the power to employ the necessary real-estate brokers. That the city acted wisely, and that the brokers secured an excellent result is not questioned. Land which had caused a loss to the city was converted into a large source of revenue. The services rendered by the brokers were strikingly similar to those rendered by architects who take from their store of knowledge a design for a beautiful and useful building and produce, by reason of their skill and initiative, a productive and useful property. . . .
“The brokerage commissions are to be paid out of the rents as they are paid in the first six annual installments. They are payable out of the rentals and not otherwise, and are hence not to be met from city funds.” (pp. 598, 599.)
In City of Oakland v. Williams, 206 Cal. 315, 274 Pac. 328, the board of harbor commissioners had contracted with a commission firm, Rosenberg Bros. & Co., engaged on a large scale in packing, processing and shipping dried fruits to domestic and foreign markets, by the terms of which the board was to build a $400,000 warehouse on a seven-acre tract of the state’s tidal lands held in trust by the city of Oakland. The parties concerned arranged a lawsuit to test its validity. In the instructive opinion of the California supreme court it was said:
“The importance of the development of the natural harbor and seaport advantages which the city of Oakland, situated on the easterly side of the San Francisco Bay, with direct and spacious connection with the Pacific Ocean, offers to the immense agricultural and commercial districts of northern and central California, is not questioned. It is admitted that said city and port is the terminus of three transcontinental railroads and one intrastate railroad. In addition to these transportation lines, an immense volume of agricultural, orchard, dairy and general farm and ranch products of the state and factory products from without, is also carried into said city by many public transportation companies and by private conveyances, destined for foreign shipment, but because of the lack of reasonable harbor development and improvements vessels of reasonable tonnage were unable to enter said harbor. .It is alleged, and not denied, that the declared policy on the part of the city of Oakland, which had been the subject of long public discussion, to adopt a comprehensive and concrete program of development has attracted and is still attracting manufacturers in all industrial lines to establish large factories and plants in said city and territory adjacent thereto, because of its favorable situs for the transportation of commerce to domestic and foreign ports and countries by both land and sea. Responding to this growing demand, the city of Oakland submitted the proposition of issuing bonds in the amount of $9,960,000 to be known as the Oakland harbor improvement bonds, to the electors of said city, which issue was duly approved May 18, 1926.
“The warehouse, now in course of completion pursuant to and under the lease contract made by said board with Rosenberg Bros. & Co., is built upon reclaimed tide and submerged lands which constitute a portion of the western waterfront of said city, . . .
“It is not claimed by intervenor that there was not then or that there was not at any time subsequent remaining sufficient unexpended and unapplied funds of said bond issue to pay the estimated expense of said lease contract or that the proceedings adopted by said city are in any way faulty, . . .
“The board, as a preliminary requisite, having found that it was necessary and convenient for the promotion and accommodation of shipping and commerce that said warehouse building be erected pursuant to the plan of harbor development adopted by it, and that it was consistent with the requirements of commerce and navigation that it be leased to a person or corporation shipping large cargoes of products and merchandise to foreign as well as domestic ports, accepted the bid of $34,598, annual rental, offered by Rosenberg Bros. & Co., a corporation, pursuant to said published notice of intention to lease said premises and awarded the lease to said corporation, . . .
“Intervenor assails certain provisions of the lease and seems to see in them a covert design on the part of the parties thereto to promote the private interests of Rosenberg Bros. & Co. rather than a purpose to aid the welfare of the harbor project. We have examined the provisions of the lease and it appears upon its face to be a fair attempt to execute the trust imposed upon the board by.the bond issue proposition and the charter amendment. The fact that certain provisions of the lease by which the parties make an effort to provide for a fair adjustment in case of failure to comply with certain covenants in the event that fortuitous circumstances should prevent a compliance therewith may also tend to create in the mind of the lessee a temptation to resort to equivocal conduct in an effort to gain an unfair advantage is not sufficient ground to support the conclusion that such a result was contemplated by the lessor or that the lessee would be influenced thereby. The lease appears to be reasonable and no difficulties will be encountered if the parties thereto are disposed to interpret it in the light of the circumstances in which it was executed and the purposes which both the lessor and lessee covenanted to promote. It is to be presumed that they will so act.
“The questions of the necessity for the improvements and the adoption of the method by which they will be accomplished are matters resting in the judgment of the governing body, and courts will not interfere with the exercise of its judgment unless it appears that its proposed plans are not only not the best that might be adopted, but that they are so inadequate and impracticable as to inevitably result in a waste of public funds. In other words, the judgment of the board as to the necessity for the construction of the building and the methods employed for its construction will not be disturbed except in cases where the exercise of judgment or discretion is shown to have been unquestionably abused.” (pp. 319, 321, 323, 325, 326.)
Coming to a conclusion in favor of city, the supreme court said:
“Questions of policy are not submitted to judicial determination, and the courts have no general authority of supervision over the exercise of discretion which under our system is reposed in the people or other departments of government. . . .
“ ‘With the wisdom of such legislation, and the soundness of the economic policy involved, we are not concerned. Whether it will result in ultimate good or harm, it is not within our province to inquire.’” (p. 333.)
In Wichita Gas Co. v. Public Service Comm., 126 Kan. 220, 268 Pac. 111, this court affirmed a judgment of the district court which forbade the public service commission, notwithstanding its broad supervisory powers over the affairs of public utilities, to disallow an expenditure of $66,000 expended by the gas company to get new business. In discussing this case we said:
“The evidence was, the company was faced with an alarming decrease in consumption of gas. The witnesses for the company and for the commission agreed financial success of the company depended on increasing consumption of gas. The new business expense was incurred in putting into effect a plan for increasing gas consumption which . . . has . . . been adopted by many public utilities. Fletcher thought the expenditure should be spread over a period of ten years. The commission now suggests a shorter period. The referee found the situation fairly indicated the expense would be a normal expense each year for several years. The commission^is not the company’s business manager. The company has a business manager of its own, who must be allowed good-faith exercise of Judgment, discretion, and initiative.”
See, also, Green v. Frazier, 253 U. S. 233, 240, 64 L. Ed. 878.
Time and space forbid the further elaboration of this interesting theme. The court holds that the matters proposed in the city’s resolution No. 11275 are the exclusive concern of the defendant city and its governing body, and should not be halted by judicial interference. Judgment should therefore be entered in favor of defendants. ^ It is so ordered.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on a life insurance policy. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed and contends there was no substantial competent evidence to sustain the verdict. ■ This was raised by a demurrer to the evidence and by various post-verdict motions.
In the petition, filed October 1,1937, plaintiff alleged that she was the administratrix of the estate of Andrew Lee Jackson; that on December 15, 1919, defendant issued to Andrew Lee Jackson a policy of insurance on his life for $445, the beneficiary designated therein being his executor or administrator; that all premiums under the policy have been paid; that more than ten years before the filing of the petition the insured disappeared and has not been heard of since; that plaintiff made inquiry to ascertain the whereabouts of insured, but was unable to find him; that defendant was notified of his disappearance and it made an effort to locate him, without avail, and that notwithstanding the fact that the insured is legally dead defendant refused to pay plaintiff the proceeds of the policy. Defendant’s answer contained a general denial, except that it admitted its corporate existence, and that it issued the policy sued on.
Plaintiff testified that she is a half-sister of the insured and the administratrix of his estate; that the premiums on the policy have been paid; that she last saw the insured in the fall of 1923 in Kansas City, on the Missouri side, where he was rooming at a hotel near Twelfth street; that she did'not know the people with whom he roomed; that before the time she last saw him he visited her “just every now and then; maybe once a week; maybe once every two weeks; something like that.” Plaintiff’s father was Gilbert Jackson, from whom her mother was divorced, and she then married Stewart Jackson, who is the' father of Evenhart Jackson and Andrew Lee Jackson, the insured. Plaintiff is about six years older than the insured. Her mother and Stewart Jackson raised all three of the children. Their home was near Sedalia, Mo. Plaintiff came to Kansas City from Sedalia in 1917. Stewart Jackson died and plaintiff’s mother and the two boys went to Kansas City, Mo., about 1919, or before. They left no near relatives at Sedalia. The insured had a grade-school education and could read and write readily. At Kansas City he got a job at a hotel as bus boy, and later worked at a delicatessen. The insured lived with his mother, who kept house for him, and worked until her death in May, 1923. He was very close to his mother and when she died he took a very dark outlook on life. He broke up housekeeping and went to live in a room at a hotel. Plaintiff did not know where the insured was working in 1925, nor for sure where he roomed. She did not know when he left Kansas City. The insured was a single man, so far as the plaintiff knew he was in good health, and she knew of no disease of any kind which he had. In 1933 plaintiff went to the company’s Kansas City, Kan., office and talked with the manager, told him of the disappearance of her brother, and he gave her a blank to execute before a notary public, which she did on December 21,1933. This statement is as follows:
“1. State full name of insured: Andrew Lee Jackson. Present age: 32. 2. Give the exact date of alleged disappearance: Disappeared in 1925. 3. Where and with whom did insured reside at time of disappearance? Lincoln Hotel, K. C. Mo., 13th and Woodland Ave. 4. What were the circumstances under which the insured disappeared? Give full particulars: Seemed to worry and brood over his mother’s death. 5. What effort was made to locate the insured? Give full particulars: All letters in possible attempts to locate him were returned undelivered. 6. How long after the disappearance was an effort made to locate the insured? Several months afterwards. 7. Were the police authorities notified? (If so, state when and result.) No. 8. Has the insured been seen or heard from since disappearance? Give particulars: No, except one letter about 3 weeks after disappearance which gave no address. 9. What was the physical and mental condition of the insured at time of disappearance? Good. . . .”
Later plaintiff received a copy of a letter written by defendant to the manager of its Kansas City district office on July 17, 1934, on the subject of the disappearance of Andrew Jackson, which was introduced in evidence. It reads:
“Again interview the claimant, and inform her that in view of the insured’s present age, the probability of life is stronger than that of death. Please make the offer again, informing her that if at any time, after she accepts our offer, she is able to furnish us with evidence of death of our insured, such death having occurred prior to the date of settlement, we will gladly reopen the case for a consideration of payment of the claim in full, less the amount received. . . .”
After the insured left Kansas City plaintiff received a letter from him, written from Gary, Ind., which had a return address on it. She answered this, but received no other mail from him. Plaintiff introduced a copy of a letter received by the state insurance department, written by defendant July 28, 1936, which was in reply to a letter of the department of July 14, pertaining to this policy and which contained the following:
“This person’s disappearance in June, 1925, was first brought to our attention on September 16, 1933, by our district office, who wrote us in behalf of Mrs. Mary White, sister of the insured. The matter was placed under thorough investigation and it was disclosed that the insured had in 1927 communicated with a brother, E'venhart Jackson, and that the insured was at that time residing in Chicago. The circumstances under which the insured disappeared did not in our opinion give rise to a presumption of death and we, therefore, offered to purchase the policy for its full reserve value of $55. This offer was refused in August, 1934. . . .
“The present reserve under the policy, assuming that the premiums are paid to date, is $65.35. We are instructing our manager to again offer the reserve to Mrs. White with the provision that the acceptance will not prejudice her right to reopen the case at a future date should evidence be disclosed that the insured died prior to the date of acceptance. . . .”
Hazel Roy, a witness for plaintiff, testified she became acquainted with the insured in 1917; that she saw him about once a week and was keeping company with him; that they started keeping company about 1918 or 1919 and continued until he left in the year 1923; that the last time she saw him was in Kansas City, Mo., in the fall of 1923. He was then living in a hotel across from Woodland, Kansas City, Mo. He had lived there about three or four months. Before that he had been living with his mother. The last place she knew of his being employed was for a private family as a chauffeur, where he had worked for about a year. Before that he worked in a grocery store. She had no falling out with him before he left Kansas City and knew of no particular reason for his leaving. About four or five months after he left Kansas City she received a letter from him, which she destroyed. It was written from a hotel in Chicago where he stayed. The letter said he was in Chicago and everything was fine. That is the only letter she received from him. About 1929 or 1930 she went to Chicago. She had a hotel address where he had lived there. She went to that address and he was not there. She went to a pool hall down the street from the hotel and could not find out anything there.
Evenhart Jackson, a witness for plaintiff, testified that he is a brother of Andrew Lee Jackson; that he last saw him about 1924 or 1925. At that time he was living at a hotel at Twelfth and Woodland, or it might have been at Twelfth and Euclid, Kansas City, Mo. He lived in that hotel about two or three years. He had lived with his mother until she died, and was with her at her last illness and attended her funeral. The witness and insured got along fine and were happy. They went to dances and to pool halls together, and saw each other every few days. After his mother died witness married and acquired a home of his own. His interests changed from what they had been before. Sometimes witness and his wife and insured would go to dances together. Insured actually Jived in a hotel on Euclid; he did not live on Woodland. He lived in a room at the hotel two or three years after their mother died, in 1923. When he left he took all his belongings, except a “chifforobe.” The witness finally fixed the date insured left Kansas City as in 1925.
“Q. Do you know of any reason for him leaving Kansas City at that time? A. No; I think he just got tired here, that is all I know for him leaving; that he just got tired of Kansas City and left, that is all I know. . . . Q. Do you know of your own knowledge any reason? A. No; he used to say that he would like to go East. I don’t know of any reason for him to go, but he said he would like to go East.”
The insured always spoke as if he wanted to go East, even while his mother was living. When the insured left, Indiana was his first destination. He first went to Gary, Ind., and then to South Bend, and then to Chicago. Witness did not receive any letter from him until he reached Chicago. The witness thought he went to Chicago because “he wanted to settle down.” The witness received the first letter from him from Chicago in 1925. It had been destroyed, but in it the insured said he liked it up there fine, was getting along fine, and wanted witness to come up there with him. The witness answered and told him he was getting along fine at that time at home. The witness later wrote the insured several letters; one of them was registered. None of them came back. He then wrote the chief of police at Chicago and asked for information concerning his brother and received a letter asking for a picture, which he sent, but never received any further information from the Chicago police department. Witness made inquiries concerning him at Kansas City of several folks that had been out with him, told them where he used to live there, that he had gone to Chicago and had not come back, and asked if they had seen him, and they said no. The witness received a letter or two from him from Chicago. In the last letter he said he liked it up there fine and wanted witness to come and see him. The witness wrote back that because he had his home here and his job that he would not be able to go up there and stay with him, and he never heard from insured after that.
Defendant’s demurrer to plaintiff’s evidence and its motion for an instructed verdict were overruled.
Answering special questions, the jury found that no inquiry had been made to locate insured at Sedalia, Mo., or at Gary or South Bend, Ind. That plaintiff personally made inquiry to locate insured by letter to Chicago and friends in Kansas City. That no investigation had been made of police records, or of court records, or of coroners’ records, or of records of burial, in any city or place. That the insured communicated with his brother in 1927. That the search made for insured thereafter was by Miss Roy in 1929 or 1930 by visit to a Chicago hotel and pool room, and by the insurance company from 1933 to 1937. That insured left Kansas City with the intention of changing his place of abode, and took with him all his personal effects, except a chifforobe. That the last known home or domicile of insured was a hotel in Chicago; that inquiry was made to locate him there by registered letter, other letters, and a personal visit. That plaintiff and her immediate relatives made investigation to locate insured by inquiry of his friends and associates at a hotel and pool hall in Chicago and friends in Kansas City; that they made no such inquiry of the immediate relatives of the insured; that they had correspondence concerning the whereabouts of insured, to hotel in 1927, and later to Chicago police department — date not certain — and from insurance company, July 17, 1934. That inquiries concerning the whereabouts of insured were made personally to Kansas City police department and by letter to Chicago police department. That there was a cessation of .correspondence from insured to. plaintiff and other relatives in Kansas City, who last heard from him in 1925 and 1927. That in connection with the investigation Miss Roy went to Chicago and inquired at a hotel and pool hall there.
Defendant moved to strike out the latter part of the jury’s answer which found that the insurance company had made an investigation from 1933 to 1937. While perhaps a minor point, we think the motion should have been sustained. We find no evidence in the record indicating the insurance company made any investigation of the whereabouts of the insured after its letter of July 17, 1934. Indeed, that indicates the investigation had been made in the fall of 1933, when it was discovered that the insured had communicated with his brother in 1927. Defendant also moved for judgment in its favor on the answers to the special questions notwithstanding the general verdict. Appellant’s principal contention, that the evidence was insufficient to sustain the verdict, inheres in its demurrer to plaintiff’s evidence and its motion for a directed verdict, and in its motion for judgment on the answers of the jury to the special questions. While the effect of our conclusion is that each of these should have been sustained, since the case was submitted to the jury and special questions answered, it may be less confusing to treat the motion for judgment on the special findings. We attach no special significance to the fact that the jury found there had been no inquiry to locate insured at Sedalia, Mo., or at Gary or South Bend, Ind. Other evidence indicates no immediate relatives were left in the vicinity of their old home near Sedalia and he was at.Gary and South Bend, Ind., but a short time. Neither do we place any special significance on the finding that the plaintiff made no inquiry of the immediate relatives of the insured, since the only immediate relatives disclosed by the evidence were plaintiff and the brother, Evenhart Jackson.
The jury found that the insured left Kansas City with the intention of changing his place of abode and took with him all his personal effects except a piece of furniture in his room, and there is no evidence that he later claimed that, or attempted to do anything with it. In such a situation, unavailing inquiries at Kansas City raised no presumption of the death of the insured. In 16 Am. Jur. 26 the rule is thus stated:
“If a person removes from his domicile to establish a home for himself in another state or country, at a place well known, such removal is a change of residence only, and absence from the former domicile does not raise a presumption of death.”
And in 17 C. J. 1170 it is said:
“. . . The absence of a person from his former place of residence for seven years does not raise a presumption of his death where it appears that he had moved to another place and there located. . . .”
In Renard v. Bennett, 76 Kan. 848, 93 Pac. 261, it was held:
“The removal of a person to another part of the country, or his mere absence from a former home, where he has been unheard of for seven years, does not create the presumption of death.” (Syl. J 2.)
It is clear from the record that plaintiff was a young man, about 25 years of age, unmarried, in good health, who for several years had contemplated going east from where he lived, and that he did in fact, as the jury found, leave Kansas City with the intention of changing his place of abode and making his home at some other place. He did go to Chicago, as his brother thought, “to settle down.” He was known to have been there approximately two years. During that time he had some correspondence with his brother at Kansas City. In the last letter he wrote his brother he urged the brother to come to Chicago to visit him. The brother wrote that he could not do so on account of his home and his work. The brother’s later letters to the insured were not returned, although one of them was registered. But they were not answered. This tends to show that the insured received the letters and did not care to keep up the correspondence further. Plaintiff received but one letter from him, and that was written from Gary, Ind., apparently soon after he left Kansas City. Miss Roy received but one letter from him, written from a hotel in Chicago four or five months after he had left Kansas City. She destroyed that letter, and the record does not show that she answered it. So, soon after he left Kansas City he had severed his correspondence relations with both the plaintiff and Miss Roy, and approximately two years later severed them with his brother. The jury was unable to locate the time when the insured’s brother wrote the Chicago police department. Their answer to one of the special questions would indicate that it was prior to the time the brother received the last letter the insured wrote him, but it was quite a perfunctory investigation at the best. It was not followed up, and there is nothing to indicate that the poliée department at Chicago made any serious effort to locate the insured. The visit of Miss Roy to the hotel and pool room in Chicago in 1929 or 1930 is of even less importance. In short, there is no evidence of any worth-while search or inquiry for the insured at Chicago.
The presumption of the continued life is strong, particularly in a young man, who was in good health, as was the insured in 1925, and it cannot be overcome by a presumption of death based upon a casual or superficial inquiry. (See Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797; Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100; 77 Kan. 401, 94 Pac. 788; Renard v. Bennett, supra; Caldwell v.-Modern Woodmen, 89 Kan. 11, 130 Pac. 642; Mackie v. United Workmen, 100 Kan. 345, 164 Pac. 263.) Appellee compares the evidence in this case with that of some of the cases above cited and argues that the evidence was sufficient to raise a prima facie presumption of death, and whether it was sufficient to overcome presumption of continued life was one of fact for the jury. We think the evidence far short of sustaining that view, particularly when it is limited, as it must be, to the inquiry made at Chicago, to which place the insured had removed and established his abode. We deem it unnecessary to quote at length the evidence from our prior decisions and compare that with the evidence here.
The judgment of the court below is reversed with directions to sustain defendant’s motion for judgment in its favor on the answers of the jury to special questions. | [
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The opinion of the court was delivere'd by
Hoch, J.:
The plaintiff asserts ownership of an interest in production from an oil well, and asks an accounting. Defendants are the landowners, the lessee who brought in the well and the company which has been buying the oil. All defendants filed demurrers to the petition. From an order sustaining all demurrers the plaintiff appeals.
The principal question presented is whether the plaintiff, who claims under a mineral deed conveying an undivided interest in the oil and gas under the west half of the described quarter section, is entitled to an interest in the oil being produced from a well located on the east half under a lease which covers the entire quarter section.
The petition alleged that the defendants, Fred D. Krug and Amelia Krug, owners of the described quarter section of land in Russell county, executed an oil and gas lease covering the entire quarter on February 12, 1929, which was duly recorded on March 13, 1929; that through mesne assignments, duly recorded, the defendant Charles D. Yankey became the holder of the lease on December 1, 1938; that on July 31, 1929 (more than four months after the recording of the lease) the Krugs, owners of the land, executed and delivered to C. A. Johnson a mineral deed, conveying for a term of ten years, and so long thereafter as oil of gas might be produced from said land, an undivided one-thirty-second interest in all of the oil and gas “in and under the west half” of the described quarter section and that in the deed the Krugs “reserved all rentals or bonus money that might be paid on any present or future lease on said lands”; that the mineral deed provided that “It is understood and agreed that there is no oil or gas lease covering said land at the present time” and that the grantees and their successors in interest should have an undivided one-fourth interest in the one-eighth royalty of oil and gas under any future lease and that the grantors “reserve the sole and absolute right to execute oil and gas leases covering the lands . . . • without the necessity or right of the grantee joining in such lease,” the intent being simply to convey to the grantee a one-thirty-second interest “carved out of the royalty interest reserved by the grantors under any future lease;” and that this mineral deed was recorded on August 1, 1929; that by mesne assignments the plaintiff became the holder of the mineral deed on October 28, 1936. Copies of the lease and mineral deed were attached and made a part of the petition.
The petition further alleged that the defendant Yankey drilled a well on the east half of the quarter section — “located at approximately the center of the northwest quarter of the southeast quarter” of the quarter section — about January 4, 1939, secured a commercial producer and that the defendant, the Cities Service Oil Corporation, had purchased the oil produced therefrom. . The petition further alleged that the covenants of the lease are indivisible and that—
“The lessors [meaning lessees] or those claiming under them have complied with the conditions and covenants in said lease with reference to exploration and development and cannot be compelled to further develop said premises for the benefit of the plaintiff herein”
and that the Krugs are now asserting that the interest of the plaintiff will expire on the 31st of July, 1939, and the other defendants have refused to recognize the rights of plaintiff and refused to pay him his part of the royalty.
As heretofore noted, the lease covering the quarter section was recorded several months prior to the mineral deed which conveyed an undivided one-thirty-second interest in the oil and gas under the west half of the quarter. Appellant does not contend that the mineral deed under which he claims conveyed any interest in the land on which the well is located, but contends that the well, located on the east half, has produced oil and gas “from the west half” of the quarter in which he has “a one-sixty-fourth undivided interest.” His argument is that since the lease covers the entire quarter the owners of the well and of the land on which the well is located are required to account to him for his interest in the oil under the west half. He claims not only under a general theory of law, but under a specific provision of thedease to which reference will later be made.
Some preliminary matters must first be noted. The petition, the mineral deed and the assignments present some inconsistencies, difficult, if not impossible to harmonize, but which require little attention in view of the conclusions hereinafter stated on the main issues. For instance, the mineral deed from the Krugs to Johnson,' given July 31, 1929, first conveyed “an undivided one-thirty-second interest in and to all of the oil and gas in and under” the west half of the quarter, while a later recital of the instrument was: “It is understood” that “by this instrument” the grantee “shall have an undivided one-fourth interest in the one-eighth royalty of oil and gas under any future lease on said lands.” Ownership of a one-thirty-second interest in the oil in place, is not equivalent to a one-thirty-second interest in the oil produced under a lease. (3 Summers on Oil and Gas, Per. ed., § 606.) Owners of minerals in ■place are only entitled to their proportionate share of the royalties due from any lessee. However, construing the instrument most favorably to appellant, it conveyed to Johnson, the original grantee, a one-thirty-second interest in the oil produced from the land under any subsequent lease. It must be noted, however, that “the land” referred to in the deed cannot refer to any land except the west half, since no reference is made to any interest in the east half. We come now to the assignments through which appellant claims. The assignment of Johnson to Mai on October 28, 1936, purported to convey one-half the interest which Johnson had received under the mineral deed. Under the interpretation heretofore stated this would give Mai a one-eighth interest in the royalty or a one-sixty-fourth interest in the oil produced from the west half. In this assignment it was specifically stated that the land was subject to the oil and gas lease now held by Yankey. When Mai assigned to Carlock, the appellant, on January 19, 1939, it was again recited that the land was under the lease so that whatever rights Johnson, the original grantee, might have had against the landowners for the untrue recital that there was no lease on the land, it would be difficult to see what rights the appellant has in that respect, since he holds under assignment which recites the existence of the lease. However, we are not here presented with any cause of action against the landowners based on misrepresentation in the mineral deed.
Further, it must be noted that we are not presented with any contention that the lessee is not properly developing the lease— that under its terms and the surrounding conditions a well should be put down on the west half of the quarter. On the contrary, the petition states that the “lessors” (evidently meaning lessee) have complied with all conditions of the lease and “cannot be compelled to further develop said premises for the benefit of the plaintiff herein.”
It is also well to make clear that appellant is making no claim based solely on drainage from the land in which he holds an interest. While, in effect, alleging drainage, he is claiming under the lease. It is well settled in Kansas that the owner of the land and those holding under him own all the oil produced from wells located on the land and that owners of adjoining tracts must protect themselves by development of their own land. (Prewett v. Van Pelt, 118 Kan. 571, 576, 235 Pac. 1059; Zinc Co. v. Freeman, 68 Kan. 691, 696, 75 Pac. 995.) While this so-called “rule of capture” has been quite generally followed (18 R. C. L. 1206-1208; 1 Thornton on Oil and Gas, 4th ed., p. 315) it has in more recent years been much criticized, in the light of present-day knowledge concerning the characteristics and underground movements of oil and gas (see 1 Summers on Oil and Gas, Per. ed., pp. 135-143) and has been subjected to many legislative and judicial limitations and modifications, particularly in connection with so-called proration laws and other conservation measures. Such limitations, however, require no present comment.
We are brought to the main issue. The question is whether in case land on which an oil and gas lease has been given is subsequently divided in ownership — either surface rights or mineral rights — the owners of the separate divisions or parcels have a right to share in any production later had, except the production from their own land. In other words, whether, in the absence of express grant, reservation or devise, they share in the royalty from oil produced on other subdivisions or parcels of the land covered by the lease. On this question we find a conflict of authority. Appellant concedes that under the majority doctrine oil production belongs solely to the owners of the well and of the land on which the well is located. The contrary view is supported by decisions of the courts of Pennsylvania, Kentucky and, perhaps, of California. (McIntire’s Adm’r. v. Bond, 227 Ky. 607, 13 S. W. 2d 772; Keystone Gas Co. v. Allen, 227 Ky. 801, 14 S. W. 2d 155; Cook v. Cook’s Adm’r., 261 Ky. 501, 88 S. W. 2d 27; Wettengel v. Gormley, 160 Pa. St. 559, 27 Atl. 934; Wettengel v. Gormley, 184 Pa. St. 354, 39 Atl. 934; Standard Oil Co. v. J. P. Mills Organization, 3 Cal. 2d 128, 43 P. 2d 797.)
The California case, Standard Oil Co. v. J. P. Mills Organization, supra, quotes with approval statements made in the dissenting opinion of Justice Poffenbarger in Musgrave v. Musgrave, 86 W. Va. 119, 103 S. W. 302, to the effect that royalty is not merely a return for the right to take oil from the land where the well is located, but that it also maintains the lessee’s right to carry his operations to other parts of the tract, precludes operation thereon by anyone except those claiming under the lease, and that apportionment of the royalty should be made to all owners of any part of the land included in the lease. That minority view, however, has not been adopted in this state. This court has held that “royalty” refers not to “oil in place” but to the “share in the oil and gas produced and paid as compensation for the right to drill and produce.” (Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Burden v. Gypsy Oil Co., 141 Kan. 147, 151, 40 P. 2d 463.)
Also cited in support of the minority view are the Texas cases of Gillette v. Mitchell, 214 S. W. 619; McRae v. Japhet, 269 S. W. 829; Stephenson v. Glass 276 S. W. 1110, and the West Virginia case of Campbell v. Lynch, 81 W. Va. 374, 94 S. E. 739; but the earlier Texas cases, supra, were overruled by the supreme court of Texas in the case of Japhet v. McRae, 276 S. W. 669, followed by Stephenson v. Glass, 115 Tex. 192, 279 S. W. 260; and the earlier West Virginia case, supra, was overruled in Gas Co. v. Ankrom, 83 W. Va. 81, 97 S. E. 593, and Musgrave v. Musgrave, supra.
In addition to Texas and West Virginia, other states holding that the owner of the subdivided tract is entitled to all of the royalties resulting from production on his parcel of land are Arkansas, Indiana, Ohio and Oklahoma. (Osborn v. Arkansas Ter. Oil & Gas Co., 103 Ark. 175, 180, 181, 146 S. W. 122; Fairbanks v. Warrum, 56 Ind. App. 337, 347, 104 N. E. 983; Natural Gas Co. v. Ullery, 68 Ohio St. 259, 271, 67 N. E. 494; Kimbley v. Luckey, 72 Okla. 217, 179 P. 2d 928; Pierce Oil Corporation v. Schact, 75 Okla. 101, 181 Pac. 731.) This question is extensively discussed in 3 Summers on Oil and Gas, Per. ed., pp. 517-533.
While admitting that the majority doctrine, as heretofore stated, would be fatal to his contention, appellant argues that “this is not the law now.” He contends that it has all been changed — “immediately after the decision of Galt v. Metscher, 103 Okla. 271, 229 Pac. 522”—by the inclusion in oil leases for the first time of the following provision:
“If said lessor owns a less interest in the above-described lands than the entire and undivided fee simple éstate therein, then the royalties and rentals herein provided for shall be paid the lessor only in the proportion which his interest bears to the whole and undivided fee.”
Appellant relies heavily upon the Oklahoma case of Gypsy Oil Co. v. Schonwald, 107 Okla. 253, 231 Pac. 864, in which it was held that one purchasing part of the land covered by a lease thereby ac quired an interest in the royalty on the whole acreage, prorated in the proportion that his parcel bore to the entire tract. The fatal weakness of the argument is, however, that the provision or covenant involved in the Gypsy Oil Co. case, supra, was not at all the same provision which appears in the instant lease. The determining clause in the Gypsy Oil Co. case, as well as in the case of Schrader v. Gypsy Oil Co., 38 N. M. 124, 28 P. 2d 885, and Eason v. Rosamond, 173 Okla. 10, 46 P. 2d 461, read as olliros:
“If the leased premises shall hereafter be owned in severalty or m separate tracts, the premises, nevertheless, shall be developed and operated as one lease and all royalties accruing hereunder shall be treated as an entirety and shall be divided among and paid to such separate owners in the proportion that the acreage owned by each such separate owner bears to the entire leased acreage.” (Eason v. Rosamond, supra, syl. ¶ 1.)
Such a provision has been called an “entirety clause.” It is being frequently inserted in present-day leases to avoid the hardship that may sometimes arise under the majority rule heretofore stated and to provide, when the lease is made, that the lessee shall develop the original tract as a unit and apportion royalties among the owners of separate tracts in case the original tract is subdivided. This question of division of royalties between transferees of portions of land subject to the lease where the lease contains an express provision for apportionment is fully discussed in 3 Summers on Oil and Gas, Per. ed., pp. 533-535, and many cases are there cited. The provision in the instant case relied upon is not such an “entirety clause.” It has long been a usual provision commonly carried in oil and gas leases, and its obvious purpose is merely to provide that if it develops subsequent to the lease, that the lessor did not in fact have full title to the tract, he should receive royalties only in the proportion which his interest bears to the full title. The provision has no reference to any future subdividing of the original tract. This is clear not only from the wording itself, but is further indicated by the fact that leases which now include the new “entirety clause” ordinarily still retain the old provision upon which appellant relies.
It follows from the conclusions already stated that the demurrers to plaintiff’s petition were properly sustained.
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|
The opinion of the court was delivered by
Wedell, J.:
This was an action against the principal and surety on a bond given pursuant to an order of this court. The bond was given by the Home Cab Company, principal, and Mary A. Huffman, surety, in order to perfect an appeal from the decision of this court to the supreme court of the United States in the case of Home Cab Co. v. City of Wichita, 140 Kan. 451, 36 P. 2d 1012. Following the dismissal of the appeal in the supreme court of the United States, the city of Wichita recovered damages in the instant action on the bond, and only the surety has appealed.
The damages recovered consisted of license fees alleged to be due to the city from the cab company for the operation of taxicabs in the city of Wichita, in the sum of $4,830, together with interest on specific portions of the total amount which were claimed to be due December 28, 1934, January 1, 1935, and July 12, 1935. Recovery for specific amounts due on each of the dates mentioned was sought and obtained under three separate causes of action. The specific amounts claimed to be due on the respective dates will be discussed later under the subject of damages.
In view of the contentions of the parties a narrative of events, culminating in the execution of the appeal bond, becomes necessary. On May 10, 1933, the Home Cab Company, to which we shall refer as the cab company, instituted an injunction suit against the city of Wichita to restrain the city from enforcing ordinances enacted for the purpose of regulating taxicabs operating within that city. The particular provisions of ordinances involved in that lawsuit pertained to the filing of liability insurance policies with the city by owners and operators of taxicabs and a provision requiring the payment of license fees. When the cab company instituted its suit, it obtained an ex parte order restraining and enjoining the city from enforcing any of the provisions of the ordinances involved “until further order of this' court, or until this matter is set for hearing by this court on the application for a permanent injunction.” It was also ordered that plaintiff enter into a bond with the defendants in the sum of $1,500, with good and sufficient sureties, conditioned that the plaintiff would pay all damages that the city, its agents, servants and employees might sustain, or if it be adjudged that the restraining order or temporary injunction was wrongfully issued. A $1,500 bond was posted in compliance with the order. The injunction order remained in-full force and effect, without further action, until the' trial of the case on its merits, September 8,1933. The case was held under advisement until April 9, 1934. Theretofore and on January 22, 1934, the city filed a motion to require the cab company to furnish the insurance provided by ordinances or to post collateral by reason of the fact the cab company was not financially responsible in case of accident. In compliance with an agreement of the parties, the court ordered the cab company to comply with the insurance requirement of pertinent ordinances pending the final determination of their validity or, in lieu thereof, to provide bond. On April 9, 1934, eleven months after the city was first enjoined from enforcing its ordinances, the trial court rendered final judgment in the injunction suit. It dissolved the so-called temporary restraining order, and refused a permanent injunction.
Pursuant to the provisions of G. S. 1935, 60-3331, which provides for appeals’in attachment and injunction matters, the court ordered that plaintiff be given ten days from the date of judgment to perfect its appeal, and that the order setting aside the temporary injunction be suspended during that time and pending the appeal, in the event an appeal be taken. In the journal entry of judgment the trial court referred to the injunction order as a temporary restraining order. From that judgment the cab company perfected an appeal to this court. The city appeared in this court and moved that the restraining order be dissolved, pending the final determination of the appeal on its merits. In support of its motion, it showed that the ordinances were being violated by taxicab drivers and that by reason of the restraining orders obtained by this plaintiff and other cab companies, the ordinances had not been in force and effect for a period of over eighteen months. Our attention was directed to the fact that the principal issues involved in the appeal in the instant case had been determined by this court in the former case of Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545. The court heard arguments of counsel for the - respective parties and dissolved the injunction in all respects except as to the license fee. It then ordered that the question of the license fee be assigned for hearing on the 3d day of October, 1934. On that date the appeal was presented on its merits, and on November 3, 1934, this court affirmed the decision of the district court. (Home Cab Co. v. City of Wichita, supra.) In that decision this court called attention to the fact that the question concerning the validity of the license fee had been determined in the case of Peoples Taxicab Co. v. City of Wichita, supra. We likewise stated that the question of the sufficiency of plaintiff’s interest in the operation of taxicabs to bring the instant suit had been determined in the case of Peoples Taxicab Co. v. City of Wichita, supra. The Home Cab Company desired to perfect an appeal to the supreme court of the United States. After the petition for rehearing in the Home Cab Company case had been denied, this court entered an order withholding the sending of the mandate to the district court, upon request of the cab company, pending its appeal. The city requested that this court fix the time for the appeal and that it fix the amount of the appeal bond, in order to adequately protect the city. A showing was made by the city relative to the amount alleged to be due and unpaid for license fees and that the cab company was not financially responsible-for and could not pay the amount due and unpaid for license fees; that the injunction bond in the sum of $1,500 w-as wholly inadequate to cover license fees for the year 1933; that unless this court required the cab company to post its appeal bond before-the end of the year 1934, the city would have no means of recovering the license fees for the year 1934. The city requested that the cab' company be required to post a supersedeas bond covering the damages and costs for not less than $11,000. The cab company replied-by a motion stating it had no objection to this court’s fixing a reasonable amount for a supersedeas bond to cover damages, costs and expenses which the city might incur by reason of the appeal to the supreme court of the United States, and requested thirty days from the date of the order fixing the amount of the bond in which to secure sureties thereon and to file the bond for the approval of this court. It did, however, state that in its opinion a supersedeas bond in the sum of $4,000 would be adequate. The cab company based its estimate as to the sufficiency of a bond in the sum of $4,000, in part, upon the amounts that, in its judgment, would be due for license fees, in the event it was finally determined the city could collect license fees under the ordinances. Pursuant to the motions of the city and cab company and upon due consideration, this court directed the cab company to furnish and file with the clerk of this court, on or before December 20, 1934, a bond in the sum of $11,000, “conditioned, that appellant will pay to the appellee all damages and costs that might accrue to the appellee by reason of the granting of this order.” (Italics inserted.)
The cab company filed the following bond:
SUPERSEDEAS BOND
“Know all men by these presents, that we, The Home Cab Company, as principal obligor, and Mrs. Mary A. Huffman of Wichita, Sedgwick county, Kansas, as surety, are held and firmly bound unto the city of Wichita, Kansas, in the sum of eleven thousand dollars ($11,000) to be paid to the said city of Wichita, Kansas, to which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally by these presents.
“Whereas, the above-named appellant and principal obligor, The Home Cab Company, a corporation, intends to and is prosecuting an appeal to the supreme court of the United States of America to reverse a final judgment, order and decision made and entered in the above case on December 14, 1934, denying a petition for rehearing of a decision in the above-entitled matter in which an opinion was rendered and filed on or about the 3d day of November, 1934.
“Now, therefore, the conditions of this obligation are such that if the above-named principal obligor shall prosecute its said appeal to effect and answer all costs and damages if it shall not make good its plea and shall pay all costs and damages that shall be adjudged against them on account of said appeal and/or on account of the said principal Obligor failing to remit said final judgment of said the supreme court of Kansas, and shall abide the orders of this court and of the supreme court of the United States of America, then this obligation shall be void, otherwise same shall be and remain in full force and effect.”
The qualifying affidavit of the surety, together with a list of her property, valued at $25,000,. was attached to the bond. The appeal to the supreme court of the. .United States was dismissed on April 29, 1935, for want of a properly presented federal question, and for want of a substantial federal question.- (Home Cab Co. v. City of Wichita, 295 U. S. 716, 79 L. Ed. 1672.) The instant action on the bond was filed July 12, 1935. An amended petition was filed March 11, 1936.
Is the surety liable in damages for unpaid license fees on taxicabs, which fees the city was restrained and enjoined from collecting by virtue of the injunction suit? That suit was filed May 10, 1933.
Appellant contends the order originally made on May 10, 1933, was not a temporary injunction. It urges that order was nothing more than a restraining order, which had completely spent its force when it was dissolved April 9, 1934, the date of final judgment in the injunction suit. Relative to the nature of that- order, the cab company directs our attention to the fact that in a portion of the journal entry of final judgment, the trial court struck out the word “injunction” and substituted the word “restraining,” thereby indicating its interpretation of the order. It is true that this court, will consider the intention of the trial court in making the order. (In re Luttgerding, 83 Kan. 205, 110 Pac. 95.) We are, however, also obliged to consider the order itself and its ultimate effect upon the party restrained, irrespective of the name by which it may be designated. The effect of an order is not determined by the name ascribed thereto. This order of May 10, 1933, was not made effective to a definite date in the near future nor until a hearing might be had for a temporary injunction. It was made effective until the matter was set for a hearing for a permanent injunction, or until the further order of the court. A bond was posted to cover damages and costs. No date was ever fixed for the-hearing of a motion for a temporary injunction, nor was such hearing ever held. The only hearing thereafter, touching the question of the ordinance provisions for payment of license fees, was on the date the injunction suit was tried on its merits, April 8, 1933. The decision was then taken under advisement and the restraint continued in effect, without any further order, until the permanent injunction was refused, April 9, 1934. The city was therefore effectually restrained from collecting the license fees, by virtue of the order of May 10, 1933, for a total period of eleven months. In Newbern v. Service Pipe Line and Mining Co., 126 Kan. 76, 78, 267 Pac. 29, it was said:
“Generally speaking, it is said that a restraining order is effective only until an application for an injunction can be heard, and usually only for a short time, while a temporary injunction is effective until the trial of the action in which it is issued. (State v. Johnston, 78 Kan. 615, 97 Pac. 796; State v. Werner, 80 Kan. '222, 101 Pac. 1004.) Sometimes the effect of the order determines the classification to which it should belong. (In re Sharp, 87 Kan. 504, 124 Pac. 532; City oj Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858.)”
In State v. Johnston, 78 Kan. 615, 97 Pac. 790, it was held:
“While often used synonymously, the terms ‘temporary injunction’ and ‘restraining order’ are property distinguished as follow: A restraining order is effective only until an application for an injunction shall be heard; a temporary injunction is a restraining order effective until the trial of the action in which it is issued. The effect, and not the name by which an order may be called, determines to which of the classes it property belongs.” (Syl. ¶[ 1.)
In Bowman v. Hopper, 125 Kan. 680, 265 Pac. 743, it was aptly said:
“While a restraining order does not technically operate as a temporary injunction (except for the briefest practical time, to be followed up with a hear ing for a temporary injunction), yet by neglect of the party who procured the restraining order to follow it up or by reason of inaction on the part of the court itself, the restraining order may become, in effect, a temporary injunction, which it appears to have done in the case at bar.” (p. 682.)
Under the circumstances in the instant case, the order of May 10, 1933, had all the effect of a temporary injunction until rendition of the final judgment in the injunction suit. It might also be noted that if only a restraining order was dissolved the cab company would have had no right of appeal because an appeal from a mere restraining order does not lie.' (Crawford v. Firmin, 143 Kan. 794, 57 P. 2d 465.) When the district court dissolved the temporary injunction, it stayed the order of dissolution as provided by G. S. 1935, 60-3331, which provides for appeals in attachment and injunction matters, but does not include rulings dissolving restraining orders. (Crawford v. Firmin, supra, p. 797.) The injunction was therefore effective, under the order made pursuant to the statute, for a period of ten days within which the cab company could perfect its appeal and until a final decision was reached on appeal. The city was, therefore, effectually restrained from collecting the license fees until the motion for a rehearing on the decision of this court was denied, December 14, 1934. That, however, did not end the restraint of the city. It was not yet permitted to collect the license fees. In order to further continue the effect of the original injunction order, the cab company appealed to the supreme court of the United.States.
Appellant insists the bond it posted in this court did not revive the original injunction order. The bond it posted in order to perfect its appeal from the decision of this court continued the effect of the injunction. The question now is, whether the surety can escape the consequences of the injunction.
Appellant further contends the bond it posted was not a supersedeas bond. The contention is not well taken. The bond which it posted, as a necessary step in its appeal, was intended to prevent and did prevent the city from collecting the license fees. The bond covered not only costs, but damages as well. The order of this court, directing the execution of the bond, required that the cab company make itself liable, not only for costs of the appeal, but for all damages resulting by reason of the order of this court. In its appeal, the cab company conformed to the provisions of 28 U. S. C. A., § 869 for the filing of supersedeas bonds. That statute reads:
“Bond- in Error and on Appeal. Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by' direction of any department of the government, take good and sufficient security that, the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.” (Italics inserted.)
Appellant also contends it was merely prosecuting an injunction suit, that the bond was not conditioned for the payment- of license fees, that no damages were adjudged against it in the injunction suit, that no money judgment of any kind was rendered against it, and that there was nothing for it to remit. It therefore contends neither the principal obligor nor the surety was liable for license fees in a suit on the bond. That the purpose and intent in fixing the amount of the bond at $11,000 was to protect the city in the collection of its license fees and the costs and expenses of the appeal cannot be doubted, in view of the undisputed facts which culminated in the execution and posting of the bond. But let us first examine the bond itself. Are its conditions as limited and restricted as contended by the cab company? For greater clarity we shall separately state the conditions therein contained. The bond provided:
“Now, therefore, the conditions of the obligation are such that—
“(1) If the above-named principal obligor shall prosecute its said appeal to effect, and
“(2) answer all costs and damages if it shall [not] make good its plea, and
“(3) shall pay all costs and damages that shall be adjudged against them on account of said appeal, and/or
“(4) on account of the said principal obligor failing to remit said final judgment of said the supreme .court of Kansas, and
“(5) shall abide the orders of this court and' of the supreme court of the United States of America, then this obligation shall be void, otherwise same shall be and remain in full force and effect.”
It is true there was no money judgment to remit license fees under condition No. 4. Under condition No. 3, the principal and surety bound themselves to pay all costs and damages “that shall be adjudged against them on account of said appeal.” Condition No. 3 does not appear to be restricted to damages which might be adjudged against the principal and surety in the injunction suit alone. But, in the instant case, we need not determine whether liability for loss of license fees, by reason of the injunction, could be predicated on condition No. 3. Under condition No. 2, the principal and surety bound themselves to pay, not only costs on appeal, but all damages in the event the principal did not make good its plea. The principal did not make good its plea and it and the surety became liable for damages. By reference to the bond heretofore set out, it will be noted the word “not” was inadvertently omitted in condition No. 2, between the words “shall” and “make.” It is obvious the omission of the word “not” renders condition No. 2 meaningless. Where an omission in a bond has that effect, the word may be supplied, if by reference to the whole instrument the intention of the parties can be ascertained by doing so. (8 Am. Jur., Bonds, § 37.) We think the terms of the instant bond, when read in its entirety, clearly disclose the omission of the word “not” was a mere oversight. We have no hesitancy in supplying such an omission when to do so makes the instrument conform to the evident intention of the parties.
What-damages did the parties intend the bond should cover? We ■think any doubt on that subject which may result from a construction or interpretation of the letter of the bond is completely resolved by the facts and circumstances surrounding its execution. Those facts and circumstances have' been narrated. They compel the conclusion a bond in the sum of $11,000 was required by this court for the express purpose of protecting the city in the collection of license fees, in the event the cab company should; not make good its plea. Those facts further clearly disclose the cab company made the bond 'fully understanding its purpose and intent. In 8 Am. Jur., 722, Bonds, § 37, the rule is stated as follows:
“In construing an instrument under seal, although the courts generally adhere closely to the letter, the prevailing rule allows a court to place itself in .the position of the contracting parties and to consider, in view of all the facts and circumstances surrounding the execution of the instrument, what the parties intended. In the event the intention of the parties is manifest, such intent must control in the interpretation of the instrument, regardless of inapt expressions or mere technical rules of construction. It is proper to consider the state of the parties and the property at the time the bond was given, and determine from that instrument in its entirety and the whole condition, the purpose for which it was given, without rejecting any word, if consistent effect can be given to it. Thus, an omission in the bond which renders it meaningless may be supplied by reference to the whole instrument whereby the intention of the parties can be thus ascertained. Similarly, where by error the con■dition in the bond is so drawn as to lack definite meaning, it may be read in the light of the evident intention of the parties.”
In Kendall v. Black, 99 Kan. 101, 160 Pac. 1015, it was said:
“We think the .trial court was correct in holding that the bond made each " defendant liable for the default of the other. It is to be construed in the light of the circumstances in which it was given, so as to effectuate its purpose. (5 Cyc. 753 ; 4 R. C. L. 56.)” (p. 102.)
In Westervelt v. Mohrenstecher, 76 Fed. 118, it was said:
“No one denies that the law favors sureties, that doubts of the extent of their liability are to be resolved in their favor, and that the burden of proof is upon the obligee to establish their liability upon their bond. But, after all is said, a bond is nothing but a contract. It is written evidence of the meeting of the minds of the parties to it,-and, subject to the rules favoring sureties to which we have referred, it must be construed by the established canons for the interpretation of contracts. The rule for the construction of contracts which prevails over all others is that the court may put- itself in the place of the contracting parties; may consider, in view of all the facts and circumstances surrounding them at the time of the execution of the instrument, what they” intended by the terms of their contract, and when their intention is manifest it must control in the interpretation of the instrument, regardless of inapt expressions, or more technical rules of construction. (Accumulator Co. v. Dubuque St. By. Co., 27 U. S. App. 364, 372, 12 C. C. A. 37, 41, 42, and 64 Fed. 70, 74.)” (p. 121.)
In the instant case Mary A. Huffman was a compensated surety. In the case of Farmer v. Rutherford, 136 Kan. 298,15 P. 2d 474, the rule is stated thus:
“The appellant is a compensated surety, and the rule is well established in this court that a bond will be construed favorably to the bonded, if such construction is consistent with the object for which the bond was made. (State v. Construction Co., 91 Kan. 74, 136 Pac. 905; Bank v. Colton, 102 Kan. 365, 170 Pac. 992; Centerville State Bank v. National Surety Co<., 134 Kan. 858, 8 P. 2d 361.)” (Italics ours.) (p. 304.)
See, also, 4 R. C. L. 56, Bonds, § 17'; 11 C. J. S. 419, Bonds, § 40; Elmendorf v. Lansing, 5 Cow. (N. Y.) 468, 470; Wing v. Rogers, 17 N. Y. Supp. 153; Sonneborn v. Libbey et al., 102 N. Y. 539, 550-551; American Ex. Nat. Bank v. Goubert, 210 N. Y. 421, 426.
Appellant next, contends the district court made a specific finding that the cab drivers, by.virtue of their particular relationship to the cab company, were independent contractors. It asserts that since there was no appeal by the city from that finding, the city is boúnd thereby. Appellant therefore contends if the city had any cause of action for -license fees it was against the cab drivers and not against the cab company. We do not construe that one particular finding to mean that the cab company was not operating a taxicab business. We expressly held this very cab company had a sufficient interest in the taxicab business to institute the injunction suit against the city. (Home Cab Co. v. City of Wichita, supra.) The same decision was reached in a former case. ■(Peoples Taxicab Co. v. City of Wichita, supra.) The cab company in its suit enjoined the city from enforcing the ordinances, not only against it, but also against the taxicab drivers, in conjunction with whom the cab company was conducting its taxicab business. In the petition, by virtue of which it obtained the injunction, it expressly alleged it had authority to carry on the business of operating taxicabs and automobiles for hire and everything necessary or incidental thereto. The injunction it obtained restrained the city from enforcing its ordinances against it or any of its agents, servants or employees, and from in any manner interfering with it or its agents, servants or employees in the operation of its taxicab business in the city of Wichita. It was responsible for the injunction and for the damages which flowed therefrom.
It is finally urged the judgment is erroneous as to the amount of damages recoverable under the respective causes of action. The findings of fact, upon which the conclusions of law were based, are supported by substantial evidence. That is true as to the ordinances and the amendments thereof, which the city was enjoined from enforcing. The findings touching the number of cabs and the license fees due for each cab are likewise supported by substantial evidence. Nothing occurred in the trial on that feature of the case which prejudiced any substantial right of the defendant.
Authorities on the various aspects of this case, cited in the exhaustive briefs of counsel for appellant, have received our careful consideration. We are satisfied the judgment of the trial court was correct and should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff and three other clerical assistants in the office of the county clerk filed small bills for compensation for overtime employment. The board of county commissioners rejected their claims. They sued, then assigned all their claims to one of their number, and' by agreement and consent of parties the proceedings were tried and decided as a single action. The district court gave judgment for defendant.
That judgment was rendered on March 6, 1939. Three months later plaintiff served and filed a notice of appeal, which reads:
"notice op appeal
“To: The Board of County Commissioners of Saline County, Kansas, and C. L. Clark and David Ritchie, its attorneys:
“Please take notice that the plaintiff, Ed Eikelberger, for himself and as the owner and holder of claims of D. it. Barekman, E. W. Cruse, Glenn Peterson, and A. J. McCraner, does appeal to the supreme court of the state of Kansas, from the judgments, orders and decisions of the above-entitled court, made and entered in the above-entitled action on the 6th day of March, 1939, rendering judgment in favor of the defendant and against the plaintiff, and overruling separate motion of this plaintiff for a new trial of the above action.
“Dated this 6th day of June, 1939.”
"Service of copy of appeal acknowledged this 6th day of June, 1939.
C. L. Clark, County Attorney.
“Filed June 7, 1939.
O. H. Ford, Clerk District Court, Case No. 15475.”
The statute governing the time within which an appeal to the supreme court from a judgment of the district court must be perfected is “two months from the date of the judgment or order from which the appeal is taken.” (G. S. 1939 Supp. 60-3309.) In the instant case no appeal was attempted to be perfected for three months. This was too late. In such a situation, this court is without jurisdiction to consider it. In Morell v. Massa, 1 Kan. 224, decided in 1862, it was held that the supreme court cannot enlarge the time fixed by statute within which proceedings in error or appeal may be effected.' Down through the years the legislature has repeatedly reduced the time within which an appeal may be taken, and our many decisions show, without exception, that this court has governed its procedure accordingly. (Rodenberg v. Rodenberg, 149 Kan. 142, 143, 86 P. 2d 580.) In Hartzell v. Magee, 60 Kan. 646, 57 Pac. 502, it was said:
“Parties to a proceeding in error cannot by voluntary appearance, or even by agreement, confer upon an appellate court power to hear and determine a proceeding brought after the expiration of the time limited therefor.” (Syl. If 2.)
There is a statement in plaintiff’s abstract that the trial court overruled “appellant’s motion for a new trial” on April 8, 1938. What were the grounds of that motion are not shown; no journal entry of judgment concerning it is submitted; the only matters appealed are “the judgments, orders and decisions, . . . made and entered ... on the 6th day of March, 1939.”
There is no specification of error of any sort in the record; and in the circumstances no judicial leniency toward irregularities of appellate procedure would permit us to hold that any ruling of the trial court adverse to appellant has been appealed in time to confer jurisdiction on this court to review it.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action in which defendant was charged with forging the signature, that is, the endorsement of the name of the payee on each of four checks, and with uttering three of them. The defendant, Howard B. Maxwell, was convicted on all seven counts and the sentences were made to run concurrently. He appeals from the conviction on each count.
Defendant, at the times in question, was the chief deputy clerk, and Pal E. Bush was the clerk of the district court of Wyandotte county. The regular form check of the clerk of the district court was employed in each instance. In the upper and left side of the check appeared in bold type the name of “Pal E. Bush.” Immediately thereunder and in smaller type next appeared the words “Clerk of the District Court.” Under those words, in somewhat smaller type, appeared the words “Wyandotte county, Kansas.” In the lower right-hand corner the signature arrangement for the maker of the check was as follows:
“Pal E. Bush,
Clerk of the District Court
By..............................................”
Across the extreme left end and on the face of the check appeared the following: “This check is issued in full payment of account shown hereon and payee accepts it as such by endorsement hereof.”
Immediately under that statement, lines were drawn on which were to be inserted the case number out of which the particular check was issued and the nature of the check, that is, whether for refund, award, judgment, etc.
The names of the payees on the four checks, the endorsement of which defendant was charged with forging, were “Henry Caldwell,” “'Henry Klamm,” “Mary E. Jackson or Mary E. Jacksen” and “Sylvia Reimer.” The count which charged uttering of the Jackson or Jacksen check was ordered stricken from the amended information on the motion of the defendant to quash that information.
The statement of a few additional facts, not intended as a full statement of the evidence, but only to assist the reader in obtaining a better general understanding of the background of the charges, will be helpful. Appellant served as chief deputy clerk continuously from January, 1933, to May 26,1937, when he was arrested. There was evidence that during that period only the clerk, Pal E. Bush, and appellant were authorized to sign checks disbursing money out of the funds in the official custody of the clerk. It was also a custom of the office to accommodate payees of official checks issued out of the clerk’s office by O. K.’ing the checks in order that they might be cashed in the office of the county treasurer. In such cases of accommodation the person approving the check placed on the back thereof the letters “O. K.” and his name or initials. The cashier in the treasurer’s office did not cash checks which did not bear such identifying and approving signatures.
One of the cases pending in the district court of Wyandotte county during the period in question was case No. 32575-A, Alber et al. v. City of Kansas City, Kan., commonly known as the Fairfax sewer-tax case. One of the plaintiffs in that case was J. Henry Caldwell. After the trial of that case there had been paid into the clerk’s hands, to the credit of Caldwell, the sum of money out of which Caldwell was entitled to receive payment of $12.13 and $29.14, respectively. These amounts had been paid to his attorney in December of 1934 and January of 1935. There was no additional money due to Caldwell. On February 15, 1936, one of the checks involved in the instant case was drawn on the account of the clerk, bearing the case number, payable to Henry Caldwell, in the amount of $228.87. That check was signed by the appellant, “Howard B. Maxwell, Dpy.” That check was endorsed “Henry Caldwell” by the appellant and was O. K.’d by Margaret Reiling, clerk in the office of the clerk of the district court, who cashed the check in the county treasurer’s office and gave the money to appellant.
There was also pending in the district court a state highway condemnation case bearing No. 49281-A. One of the owners of property affected by that action was Henry Klamm. ■ On October 14, 1935, a check was made payable to him and Grace Klamm, his wife, in the total amount due him, in the sum of $141. On March 27, 1936; another check in the amount of $141, bearing the proper case number, and payable to Henry Klamm, was drawn on the account of the clerk of the district court. It was likewise signed by appellant as follows: “Howard B. Maxwell, Dpy.” That check bears an endorsement purporting to be that of Henry Klamm as payee, and the notation thereunder of “O.K. H. B. M.” The check was cashed at the office of the county treasurer. The endorsement was not in the handwriting of Henry Klamm. It was the opinion of J. G. Shearman, handwriting expert, that the endorsement was written by the appellant.
There was also pending in the district court case No. 50703-A, another state highway condemnation case. At no place in the records pertaining to that case does anyone named Jackson or Jacksen appear. The appraiser’s report, which discloses the names of all persons owning or having an interest in the tracts of land involved, shows no person by the name of Jackson or Jacksen as an owner or lien owner. On June 19, 1936, a check was executed, signed “Pal E. Bush,” bearing the proper case number, payable to Mary E. Jackson or Mary E. Jacksen, in the amount of $193.45. On the reverse side of the check there appears the signature or endorsement of “Mary E. Jackson” or “Mary E. Jacksen,” and the notation “O. K. H. B. M.” The check was cashed in the county treasurer’s office. It was the opinion of J. C. Shearman, handwriting expert, that appellant wrote the endorsement.
There was likewise pending in the district court a case entitled “Sylvia Rieman v. The Ottawa Transfer and Storage Company, No. 52153-A. On April 17, 1937, the defendant paid the judgment against it by a check made payable to Williamson, Cubbison & Vaughan, in the amount of $546.50. A receipt was given for that check by Blake A. Williamson, one of plaintiff’s attorneys. No other person was entitled to receive any money by reason of the judgment in that case. On April 22, 1937, five days after the payment of that judgment, appellant signed a check, bearing the proper case number, payable to “Sylvia Reimer,” in the amount of $546.50. The check bears the purported signature or endorsement of the payee, “Sylvia Reimer,” and the notation “O. K. H. B. Maxwell.” A state’s witness by the name of Wash Brown, then a cashier in the county treasurer’s office, testified, in substance, that appellant had presented the check to him late in the evening and that he (Brown) did not have sufficient cash on hand to pay the entire amount of the check, but that he gave appellant $50 at that time and that the next morning appellant returned to the treasurer’s office and received the remaining $496.50.
The signature or endorsement of the name of the payee on the “Jackson” or “Jacksen” forgery count presents a question touching the forgery of the name of a fictitious person. The contention of the state is, that there was no person by the name of Mary E. Jackson or Mary E. Jacksen involved in the highway condemnation case. That question will be treated later. It is also the contention of the state that there was no person by the name of Sylvia Reimer involved in the case against the Ottawa Transfer and Storage Company. It will suffice, at this time, to say that neither Henry Caldwell, Henry Klamm nor Sylvia Rieman had ever authorized appellant to sign their names as endorsers on any checks. We may also state now that in the regular course of handling the business of the clerk’s office all payments out of the clerk’s funds were recorded by entries upon the proper appearance docket pages and that the appearance docket discloses no entries showing the payment of money by means of anjr of the checks bearing the alleged forged endorsements.
Appellant contends the amended information was bad for duplicity. The information charged defendant did “falsely make, forge and counterfeit a certain false and forged writing, signature and endorsement purporting to be the writing, signature and endorsement of” each of the people in the four checks involved. The uttering counts charged defendant with passing, uttering and publishing as true, a certain forged and counterfeit writing, signature and endorsement of one ■ — -•. Appellant contends the information is bad for duplicity because it charges the defendant with making, with forging and with counterfeiting. The contention is not well taken, (1 Brill’s Cyclopedia Criminal Law 989, § 587; State v. Murphy, 17 R. I. 698, 704-705; United States v. Howell, 11 Wall. [78 U. S.] 432, 20 L. Ed. 195; State v. Hewes, 60 Kan. 765, 57 Pac. 959; State v. Johnson, 85 Kan. 54, 116 Pac. 210; State v. Finney, 141 Kan. 12, 29, 40 P. 2d 411. See, also, State v. Carr, 151 Kan. 36, 48, 98 P. 2d 393.)
It is further urged defendant could not tell whether he was charged with forging the face of the check, the signature of the payee, or the endorsement, or all three. The contention is too technical. We think it was sufficiently clear from the information as a whole that the writing or signature complained of was the endorsement of the name of the payees on the respective checks. In addition to the language above quoted, the state set forth in the information the endorsement and the notations contained on the reverse side of the check. It is true the face of the check was likewise set out in full. That appears to have been done in order that it might clearly appear from the instrument itself that the name of the endorsee appearing on the reverse side of the check was the same as the name of the payee which appeared on the face of the check. The fact the face of the check also revealed or tended to reveal other facts did not prevent the state from incorporating the face of the check in the information.
Appellant insists his counsel was unduly restricted in examining the jurors on their voir dire. He desired to ascertain the political and religious faith of the jurors. Pal E. Bush, the clerk of the district court and a state’s witness, was a Catholic and appellant, was a Protestant. Shortages had appeared in the office of the clerk of the district court in the sum of approximately $2,000, which Bush had paid to the county during the process of an audit of his office accounts. Appellant asserts he was entitled to ascertain the facts concerning the religious or political faith of the jurors, in order to determine whether he would exercise his right of peremptory challenge. In support of the right to interrogate jurors in order to determine whether a peremptory challenge will be exercised, appellant relies upon decisions from some other jurisdictions and upon the case of Swift v. Platte, 68 Kan. 1, 72 Pac. 271. Upon a rehearing in that case the right to interrogate jurors for the purpose of ascertaining the existence of bias or prejudice, with a view of exercising the right of peremptory challenge, was recognized, but it was held the extent of such examination must be left largely to the discretion of the trial court. It was therefore held that unless an abuse of discretion is clearly shown, this court will not interfere. (Swift v. Platte, 68 Kan. 10, 74 Pac. 635.) In the instant case counsel for defendant was permitted to inquire, in substance, whether, for any political or religious reason, the juror felt he could not serve as a fair and impartial juror, or whether, by reason of his religion or politics, he could not give this defendant a fair and impartial trial. It nowhere appears from the record on motion for a new trial or otherwise, nor is it now contended the right of peremptory challenge would have been exercised if the proposed interrogatories had been permitted. Complaint concerning the ruling does not appear in the specifications of error. It does not affirmatively appear the attention of the trial court was directed to the complaint on motion for a new trial. It is not now contended the ruling prejudiced or in reality affected any substantial right of the defendant. G. S. 1935, 62-1718, provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
See, also, State v. Finney, 141 Kan. 12, 30, 40 P. 2d 411. In view of the record, the complaint does not constitute ground for reversal.
It is urged the judgment should be set aside for the reason appellant was not present at all stages of the trial. Before the second trial began, appellant lodged a motion to quash the amended information and a plea in abatement. The arguments thereon were heard in the chambers of the trial court. Appellant, a young lawyer, was at liberty on bail and remained in the courtroom. The formal rulings on the motion and plea were made in the courtroom and in his presence. Later in the course of the trial, an argument was heard in chambers concerning the competency of evidence elicited on cross-examination of a state’s witness by counsel for appellant. The evidence had been admitted the previous day. The trial court, during this conference, concluded it had improperly admitted the evidence. In the course of that argument the court observed appellant had not come into his chambers and promptly requested that he be brought in. The former proceedings of that conference were then read to appellant. The court also inquired of counsel for appellant whether he desired to have his offers of exhibits read to the appellant. Counsel for appellant said he did not desire to have them read. Appellant did not ask to have them read. The formal ruling on the question then in controversy was likewise made in the courtroom and in the presence of the appellant. Section 10 of our bill of rights provides :
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; . . .”
G. S. 1935, 62-1411, reads:
“No person indicted or informed against for a felony can be tried unless he be personally present during the trial; nor can any person indicted or informed against for any other offense be tried unless he be present, either personally or by his counsel.”
Appellant was charged with a felony and we are reminded the hearing on a motion to quash an information in a prosecution for a felony is a part of the trial and that a defendant must be personally present in court at such hearing. (State v. Clifton, 57 Kan. 448, 46 Pac. 715.) In that case the motion was argued while the defendant was in confinement in the county jail. In the instant case appellant was at liberty on bail. Nothing prevented him from accompanying his counsel for the conferences in chambers. There is not the slightest evidence he was not allowed to be present by the court or that he was otherwise prevented from entering the conferences at any and all times. It is also contended counsel could not waive the right of the defendant to be present. (State v. Myrick, 38 Kan. 238, 16 Pac. 330.) In that case the court gave additional instructions to the jury while the defendant was under confinement in jail. In State v. Fry, 131 Kan. 277, 291 Pac. 782, it was said:
“The second assignment of error is for the abuse of discretion in permitting the trial to proceed in the absence of the defendant. The record shows that the court interrupted the progress of the trial to inquire of the counsel for the defendant if he had sent the defendant out of the courtroom, and if he was raising any objection on that account. The attorney answered he was raising no objection and that he had sent him out to call his witnesses. The defendant was at liberty on his bond and could go out and in at his pleasure, and where a defendant voluntarily leaves the courtroom during the trial it will not nullify the proceedings nor impair the validity of the verdict. (State v. Thurston, 77 Kan. 522, 94 Pac. 1011; State v. Bland, 91 Kan. 160, 136 Pac. 947.)” (p. 278.)
The fundamental issue here, however, is not only one of waiver by appellant’s counsel, but a question of appellant’s own waiver of his right to be present at the hearings. That a defendant may waive his right to be present by failure to take advantage of the privilege, when at liberty on bond, is well established. A few of the circumstances under which the rule has been applied are illustrated in State v. Adams, 20 Kan. 311; State v. Way, 76 Kan. 928, 93 Pac. 159; State v. Thurston, 77 Kan. 522, 94 Pac. 1011; State v. Stratton, 103 Kan. 226, 173 Pac. 300; State v. Fry, supra; State v. Zakoura, 145 Kan. 804, 813, 68 P. 2d 11. It is suggested only counsel for the respective parties were requested to come into the court’s private chambers and that the door into his chambers was thereafter closed. All lawyers know how such invitations by the trial court are made. Manifestly, the attorneys were the persons to participate in the ac tual argument. There was, however, nothing in the invitation which even remotely indicated, or which reasonably could be construed to indicate, that appellant was not to be present. The conduct of the court when it observed appellant was absent completely refutes any other interpretation of his invitations to make the arguments in chambers. Neither the bill of rights nor the statute requires that a defendant be compelled to attend. The door was never locked. The attorneys went in and out of the chambers at will. Appellant might have done likewise. Although appellant had not entered the conference in which the competency of evidence was involved, the court offered to have all that transpired in that conference read to him. That was not deemed necessary by appellant’s counsel nor, apparently, by the appellant himself. The offer was not accepted by appellant and it was rejected by his counsel. In our opinion, neither the bill of rights nor the statute requires the granting of a new trial upon this complaint.
It is also urged the cross-examination of certain of the state’s witnesses was unduly restricted. In some instances the cross-examination was entirely outside the direct examination and the objections were properly sustained. In some instances the question in controversy was the proper extent of cross-examination. That question always rests in the sound discretion of the trial court. Unless it clearly appears the discretion has been abused and that the substantial rights of the complaining party have been prejudicially affected, a court of review will not interfere. It may be said that in a few instances somewhat greater latitude of cross-examination might have been permitted without constituting reversible error. Oil the other hand, it does not follow necessarily that a somewhat restricted cross-examination in those instances constituted an abuse of discretion or reversible error. We are satisfied reversible error was not committed in this regard. We shall, however, pause to note in particular a complaint concerning the alleged restricted cross-examination of the witness, J. C. Shearman, a handwriting expert and a state’s witness. In order to test the capacity of that witness as an expert it was sought to first introduce on cross-examination, as a basis for comparison by the expert, handwritings which were not in evidence in the instant case and which were not, in the instant case, admitted to be or clearly proven to be the handwriting of the appellant. The state objected on the ground it was not proper cross-examination and, further, that if permitted, it would give rise to proof of purely collateral issues which would extend the trial interminably on collateral issues and tend to confuse, rather than clarify, the particular issues involved in the instant charges. It must be conceded that the latitude permitted as to cross-examination of handwriting experts has been and is a perplexing one. That the decisions of the various states are in a hopeless state of confusion cannot be doubted. (4 Wigmore on Evidence, 2d ed., 270.) In Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739, this court said:
“Probably there is hardly any rule as to the introduction of evidence on which courts express a greater diversity of opinion than that relating to the proof of handwriting by comparison.” (p. 409.)
We are now, however, concerned only with the rule in force in this state. In the Gaunt case it was held:
“On the trial of an action on a promissory note, where the principal issue is as to the genuineness of the defendant’s signature thereto, it is error to permit the defendant to present to plaintiff’s witnesses, who are called to testify as experts, false signatures to notes, prepared for the purpose of testing the ability of the witnesses to detect a forgery, and to cross-examine such witnesses as to such false signatures, and thereafter to introduce such signatures in evidence and prove by another witness the fact that he wrote them himself.
“The rule that writings to be used as a basis for the comparison of hand-writings must be admitted to be genuine by the party against whom they are sought to be used, or at least clearly proven to be so, applies as well to writings used on the cross-examination of witnesses as on the direct.” (Syl. lili 1, 2.)
In State v. Snyder, 67 Kan. 801, 74 Pac. 231, this court, upon authority of the Gaunt case, swpra, held :
“On a trial for selling intoxicating liquor contrary to law, a witness for the state who has testified to purchases of beer from the defendant, which he drank, cannot be asked, upon cross-examination, to drink from a bottle of strange liquor proffered him and then to state if such liquor is of the same kind as that he had previously purchased.”
In Underwood v. Quantic, 85 Kan. 111, 116 Pac. 361, it was held:
“At the trial the plaintiff called a number of expert witnesses who testified that in their opinion the signature in dispute was genuine. Held, error to permit the witnesses on cross-examination to be asked their opinion as to the genuineness of several purported signatures of the same person, and afterward to permit testimony to be offered showing that some of the purported signatures were false.” (Sjd. IT 2.)
The Connecticut court, in State v. Griswold, 67 Conn. 290, held:
“Experts called to testify as to their opinion of the handwriting of disputed documents when compared with admitted or proved standards, cannot be cross- examined as to other writings of -unknown authorship, not pertinent to the case, merely to test their ability as experts.”
In M’Arthur v. Citizens’ Bank of Norfolk, Va., 223 Fed. 1004, it was said:
“It is insisted that the court below erred in refusing to permit the defendants to test the ability as an expert in handwriting of the plaintiff’s witness Ramsey, by submitting to him both genuine and imitated signatures of the defendants and asking him to pick out those that were genuine and those that were spurious.
“It would be sufficient to sustain the refusal as a matter of discretion under the circumstances existing at that stage of the trial. . . .
“But we are also of opinion that the evidence was properly excluded as incompetent. We are satisfied that the law is well settled, or at least that the clear weight of authority is to the effect, that a witness in a case like this is permitted to compare the disputed signature only with other signatures which are admitted or proven to be genuine. This question has been thoroughly discussed by the supreme court of North Carolina in a recent opinion which sustains fully the ruling here under consideration. Fourth National Bank of Fayetteville, appellant, v. Adam McArthur et al., (N. C.) 84 S. E. 39, August term, 1914. Other authorities-to the same purport are: Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; People v. Patrick, 182 N. Y. 176, 74 N. E. 843; Wilmington Savings Bank v. Waste, 76 Vt. 331; Bacon v. Williams, 13 Gray (Mass.) 525; Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739, 42 Am. St. Rep. 297; Andrews v. Hayden, 88 Ky. 455, 11 S. W. 428; State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227.” (p. 1008.)
Appellant further urges some of the endorsements on checks concerning which he proposed to cross-examine the witness were introduced in the former trial of this action and were admitted or proved to be the handwriting of appellant and that this witness had testified the endorsements were the handwriting of appellant. That fact, if true, did not make them a proper subject of cross-examination in the instant case. They were no part of the direct examination of any witness in the instant case. We think the trial court properly sustained the objections to the cross-examination.
It is asserted the motion to discharge appellant on all counts should have been sustained at the conclusion of the state’s evidence. The motion should have been sustained on the count which charged uttering of the Jackson, or Jacksen, check. That count had been ordered stricken from the amended information at the beginning of the instant trial and had no further place in this lawsuit. Just why that count continued to remain in the amended information, and a part of this lawsuit, does not appear. At any rate, no conviction should have been had on that' count and the trial court is directed to eliminate it from its judgment and sentence.
Appellant contends the judgment and sentence cannot stand as to the count which charged uttering of the Klamm check. The contention is based on the fact that a motion to discharge appellant on that count had been sustained in the former trial at the conclusion of the state’s evidence. It appears such a motion was sustained in the former trial. The count again appeared in the amended information in the instant case. Counsel for appellant moved to strike the count which charged uttering of the Jackson, or Jacksen, check but, for some reason not apparent, did not move to strike the count which charged uttering of the Klamm check. The reading of the amended information was waived in the instant case and appellant joined issues on the charges therein contained by entering thereto his plea of not guilty. He proceeded to trial on that count. No objection was ever made to his being tried on that count. The jury rendered a verdict of guilty thereon. The first contention of former jeopardy and that appellant previously had been discharged on that count was made after the motion for a new trial had been filed on November 8, 1939. The only complaint made was on motion in arrest of judgment filed December 4, 1939. The motion for a new trial was overruled December 6, 1939. We are advised the motion in arrest of judgment is-still pending. The immunity from second jeopardy granted by the constitution to one accused of crime is a personal privilege which may be waived and which- appellant did waive in the instant case. (State v. White, 71 Kan. 356, 80 Pac. 589; State v. Ford, 117 Kan. 735, 232 Pac. 1023.) In the Ford case it was said:
“Moreover, a motion in arrest of judgment can raise -but two questions, neither of which is here involved — whether the court has jurisdiction and whether the information states a public offense. (The State v. Yargus, 112 Kan. 450, 211 Pac. 121.) The defense of second jeopardy may be waived, and is waived by the defendant's going to trial on the merits without urging it, taking the chance of a favorable verdict. (The State v. White, 71 Kan. 356, 80 Pac. 589; see, also, 16 C. J. 1254).” (p. 736.)
In the White case it was stated:
“Failing to interpose an objection to entering upon a second trial, he must be held to have waived the right to do so and must abide the result that he invited. (The State v. Durein, 70 Kan. 1, 78 Pac. 152.)
“ ‘To allow a defendant, as was done in this case, to sit idly by during the progress of his trial, and then upon conviction set up, upon motion in arrest of judgment, or for a new trial, a special defense that he could have raised at the very inception of the trial, would be to sanction a practice which might well be termed trifling with the court.’ (People v. Bennett, 114 Cal. 56, 58, 45 Pac. 1013.)” (p. 360.)
It will serve no useful purpose to narrate in detail the testimony touching, each of the other counts. That evidence has been carefully scrutinized and we are satisfied that in view of the admissions made, the evidence introduced, together with reasonable inferences which the jury had a right to draw therefrom, constituted sufficient evidence to sustain the conviction on each of the forgery counts and on the two remaining counts of uttering.
Touching the forgery counts, it is well to bear in mind the provision of G. S. 1935, 62-1418, which reads:
“In any criminal prosecution for forgery where the charge includes the falsely making and forging of a signature of another person to any written instrument, proof that such signature is not in the handwriting of the person whose signature it purports to be shall be prima facie evidence that the signing of such name was unauthorized and is a forgery.”
In State v. Earley, 119 Kan. 446, 239 Pac. 981, it was held:
“Possession of a forged instrument by one who utters or seeks to utter it, or otherwise to realize on it or profit by it, without a reasonable explanation of how the possessor acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission.” (Syl. 113.)
(See, also, State v. Phares, 120 Kan. 172, 174, 243 Pac. 266; State v. Lovell, 132 Kan. 759, 761, 297 Pac. 685; State v. Brown, 145 Kan. 247, 250, 65 P. 2d 333.) In the instant case there was no reasonable explanation which satisfied the jury as to how appellant acquired possession of these checks. In addition, there was both direct and strong circumstantial evidence he forged the endorsements. Admissions of appellant, together with direct evidence and reasonable inferences which the jury had a right to draw therefrom, support the verdict of guilty on the charges of uttering.
Appellant contends the testimony as to certain forgery counts was insufficient unless the testimony of one expert witness on handwriting is sufficient to convict. Appellant insists three experts are required to sustain a conviction. (G. S. 1935, 62-1427.) The difficulty 'with that contention is, there was substantial testimony in addition to that of the handwriting expert that the endorsements were forged by appellant. Where such additional testimony exists, the statute requiring three experts does not apply. (State v. Leatherwood, 129 Kan. 686, 284 Pac. 402, and cases therein cited.) The circumstantial evidence, alone, upon the subject of forging the endorsements was perhaps as convincing as any direct testimony. Appellant’s official capacity, his connection with the checks, his approval thereof for cashing in the office of the county treasurer when no amounts were due to the payees thereof, and the fact he had one of them cashed and the money paid directly to himself were all proper circumstances for the consideration of the jury in determining appellant’s guilt, both as to forging and uttering. It was also the province of the jurors to compare the handwritings introduced in evidence and to exercise their own judgment concerning the genuineness of the endorsements in order to determine whether appellant forged the endorsements. (Joseph v. National Bank, 17 Kan. 256; State v. Uhls, 121 Kan. 587, 249 Pac. 597.)
It is further contended the court erred in permitting the county attorney to cross-examine his own witness, Wash Brown, concerning the testimony of that witness on the former trial without first making a serious attempt to elicit from the witness the testimony desired. • The contention is not well taken. In the instant case the witness had already materially weakened the effect of important testimony he had given during the former trial. The same trial judge had heard the testimony of that witness in the former trial. The surprise of counsel for the state was obvious. By reason of that surprise, he asked leave of court to cross-examine the witness. The request was granted, and properly so. (State v. Olthoff, 141 Kan. 70, 85, 40 P. 2d 384.)
Appellant contends the amended information did not allege that Jackson, or Jacksen, and Sylvia Reimer were fictitious persons, that there was no evidence they were fictitious persons, and that it constituted error to instruct on the subject of fictitious persons. The evidence disclosed there were no cases pending in the district court involving those persons and that there was no account on which checks could have been executed to them. It was apparent on the face of the checks they had been executed and endorsed with the purpose and intent to defraud. As to the Sylvia Reimer check, it was admitted that if Sylvia Reimer were called as a witness she would testify that she had not authorized the endorsement. The record of the clerk’s office also revealed she previously had been paid in full. In the condemnation case, there appeared as owners of land the names of Ernest Jacks and-Jacks, his wife, but the records dis closed no one by the name of Jackson or Jacksen. The records did disclose the Jacks account previously had been paid in full. The state had no way of knowing definitely whether the names of these payees were intended to be fictitious or whether they were intended to represent persons whose names appeared in connection with cases which previously had been pending. No motion was made by appellant to require the state to elect upon which theory it was proceeding. We think, under the circumstances of this particular case, the state was not required to prove and the jury was not bound to believe beyond a reasonable doubt that there were no such persons in the world as Mary E. Jackson or Mary E. Jacksen or Sylvia Reimer. We think the facts developed constituted prima facie evidence of the fictitious character of the checks, and under that evidence the state was not required to show lack of authority to endorse those two checks. (People v. Gordon, 13 Cal. App. 678, 685, 110 Pac. 469; People v. Terrill, 133 Cal. 120, 128, 65 Pac. 303; People v. Sharp, 53 Mich. 523, 525, 19 N. W. 168.) The trial court instructed upon the theory of both genuine and fictitious endorsements and advised the jury that in the event they found the names of the payees of the checks to be fictitious it was not incumbent upon the state to prove want of authority to endorse. The instruction was proper. While the record discloses a general objection to all instructions given, we are unable to find that the particular objection now urged was specifically called to the attention of the trial court, either during the trial or on motion for a new trial. In view of the record, appellant’s contention cannot be sustained.
Complaint is made concerning other instructions given and the refusal to give certain requested instructions. We find no reversible error in the instructions given or in the refusal to give those requested.
The judgment of the trial court will be affirmed, except as to the count which charged uttering of the Jackson or Jacksen check. As to that count the judgment and sentence is ordered modified in accordance with the views herein expressed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
The appellee, assignee of a large number of claimants, brought this action against the board of county commissioners of Cherokee county. The claims assigned were for salaries, expenses for various county officers, services ;and equipment for the county, election expenses, etc., all arising during the fiscal year 1938. The court granted permission to the appellants, the three railroad companies, as taxpayers, to intervene, as defendants in the action. Plaintiff recovered judgment and this appeal followed.
In the petition of appellee it was alleged that during the year 1938 certain county officers and various other claimants presented their claims to the board of county commissioners; that the claims were duly examined and audited and were found to be just, true and proper claims against the county, but that the claims were disal-; lowed by the board for the reason there was no money in the county general fund for the year 1938 to pay such claims, and that under the date of April 10, 1939, the various claimants assigned their claims to the plaintiff Shouse for collection. The plaintiff asked judgment for $14,285.48 with interest.
The answer of the board of county commissioners was a general denial.
The appellants, the railroad companies, as taxpayers, were granted' permission to intervene, and by order of the court were made defendants in the action. Separate answers were filed by the appellants.
The appellant, the Missouri-Kansas-Texas Railroad Company,in its answer, after a general denial, set forth the assessed valuation of its property in the county and the taxes paid to the county in 1938; that its property at substantially the same valuation would be subject to assessment and taxation for the year 1939.
The answer alleged that in 1937 the county commissioners of the county adopted and published a budget for the year 1938, including a general fund itemized in twenty-nine separate budgeted items, aggregating $72,191.98; that in due time the county commissioners levied an assessment on the property of the county to raise the-amount so budgeted at the maximum rate permitted by law, to wit: 1.9 mills; and secured from the State Tax Commission permission to issue a twenty-five percent additional levy, and a further additional authority for emergency warrants to the extent of twenty-five percent of the amount produced by the maximum levy; that the total rate levied by the county commissioners for the general fund for the year 1938 on the taxable property of Cherokee county was approximately 2.85 mills; that the county received in revenues from various taxation sources the amount of $72,760.97 for its general' fund, sufficient to pay the budgeted items of its general fund; but, notwithstanding the fact that the board received sufficient funds and cash with which it could pay all items of its general fund budget, the board violated the statutes of Kansas, and its legal duty in the premises, and attempted to incur obligations for services and materials not budgeted, and paid on such obligations large sums of money in excess of the budgeted items, and diverted and shifted from one budgeted item to another in such a way that funds were dissipated and were not available for the payment of claims properly assigned to a budgeted item, and knowingly and intentionally incurred obligations in excess of the power and authority created by statute.
Defendant further alleged that while the total amount of the budgeted items in the Cherokee county general fund for 1938 was $72,191.98, the board attempted to incur obligations in the sum of $87,199.24, which was $15,007.26 in excess of any amount authorized by the laws of Kansas, and for which taxes in Cherokee county were assessed; that the county received for the general fund the amount of $72,760.97, and disbursed all of the money, leaving outstanding claims on the first day of January, 1939, against the county in the sum of $14,438.27; that the deficit of the county affairs in the general fund at the beginning of 1938 was $5,620.40; but that due to the improvident and unlawful acts of the board, the deficit was increased during the year by the sum of $8,817.87, amounting at the end of the year to $14,438.27.
The answer alleged that the board wholly disregarded the amount of the budget, illegally incurred obligations, paid out excessive amounts, shifted funds from one budgeted item to another and paid claims for the year 1937 out of the 1938 funds.
In view of the agreed statement of facts hereinafter set out, a more detailed recital of the allegations in the answer is not necessary to present the issues in the case.
Separate answers of the other appellants were filed, being in substance the same as the answer of the Missouri-Kansas-Texas Railroad Company above outlined.
The case was tried on the pleadings and the agreed statement of facts.
It was agreed that the assignment of the claims to plaintiff were signed by the various claimants and were in due form, that the claims were duly audited and presented to the board of county commissioners and were found to be proper claims against the county; that all the claims and charges were against the county general fund; that payment of the claims was refused by the board for lack of funds in the county general fund; that after the assignment to plaintiff the claims were again presented to the board and payment was again refused for the same reason. The population of the county and the value of the tangible and intangible property therein, also the assessed value of the property and the taxes paid by appellants were agreed to and set out.
The agreement stated that in the year 1937 the county commissioners adopted and published the budget of the county for the year 1938, aggregating the sum of $72,191.98.
The agreed statement recites:
“10. That the contracts and indebtedness created for general maintenance and expense of Cherokee county for the year 1938 were not authorized by a vote of the electors of said county, and no vote was had in said county authorizing an increased levy to provide for the general expenses of said county for the year 1938; nor has provision been made for payment by the issuance of bonds as provided by law; nor has the State Tax Commission granted to Cherokee county a special dispensation exempting said county from the provisions of sections 12 to 20, both inclusive, of chapter 319, Session Laws of Kansas, 1933; nor were any expenditures made for municipally owned and operated utilities; but, said board of county commissioners did, prior to making the levy in 1937 for the taxes of 1938, secure, under section 79-1969, G. S. 1935, from the State Tax Commission permission to fix, and did fix, a levy of twenty-five percent in excess of the statutory limitation; that said board of county commissioners further secured from the State Tax Commission authority to issue, and did issue, under section 79-1967, G. S. 1935, emergency warrants for general maintenance expenses to the amount of twenty-five percent in excess of that which could be raised in said county by using the rates limited by law, and levied on the taxable property of said county a rate of approximately 2.85 mills to provide for its general expenses for the fiscal and calendar year of 1938.”
The agreed statement recites that the board in May, 1939, wrote the various claimants stating that their claims against the county had been disallowed and advising an assignment of their claims to Shouse so that he could reduce the claims to judgment; that the expenses incurred — except those authorized by statute — by the various officers and agents of the county with the knowledge and consent of the board were, at the time made, deemed necessary by the board; that at the time the claims were incurred, and the claims accrued against the county, there were no funds available for the payment of such claims.
By paragraph 15 of the agreed statement it is recited that certain obligations for the year 1937 were paid from the 1938 revenues, leaving several of the funds available for the budgeted items short; and by paragraph' 16 it appears that certain 1938 warrants were paid out of some item fund other than the item fund to which they were chargeable; that there was a total of $9,712.82 in warrants paid out of some item fund other than the item fund to which such amounts were chargeable.
The agreed statement shows that the total amount of due and unpaid bills for the year 1938 to be paid out of the county general fund is $14,741.56; that there was enough revenue allocated to each budgeted item of the general fund to pay for the amount of the indebtedness budgeted.
Paragraph 21 of the agreed statement sets out the expenses incurred in 1938 in excess of the revenue depleted as a result of the payment of the 1937 obligations. Paragraph 22 shows that there was a total of unpaid claims for the year 1938 of $14,741.56, and further that there was a total of $568.99 in claims paid in excess of the budget, making a total of $15,310.55 of claims based on indebtedness incurred by the board in excess of the 1938 budget. Under paragraph 23 of the agreed statement it appears that the total cash available during 1938 in the county general fund was $78,309.14; that $78,364.92 in warrants was paid in the year 1938, and that included therein was $5,620.40 for 1937 claims and warrants and a further payment of $3,367.19 made on 1937 claims by banks;'that the cash deficit on the general fund on January 1,1938, was $149.05 and on December 31,1938, was $204.83. It was further agreed that the appellants as taxpayers in the county would have to pay a proportionate share of any taxes due and payable as a result of a judgment in favor of the appellee.
The agreed statement of facts was the only evidence offered by the appellee. The court overruled a demurrer to the evidence, and a motion for judgment on the stipulated facts and evidence, and entered judgment for the appellee. A motion for a new trial was filed and overruled. On this appeal error is specified in overruling the motions set out above.
Appellants assert the claims sued on are illegal and void. This . contention demands an examination of our pertinent statutes.
The cash-basis law (G. S. 1935, 10-1101 to 10-1122), the budget law (G. S. 1935, 79-2925 to 79-2937) and the tax-limitation law (G. S. 1935, 79-1945 to 79-1970) were enacted at the same session of the legislature. They have a common basic purpose and must be construed together. (State, ex rel., v. Republic County Comm’rs, 148 Kan. 376, 82 P. 2d 84.)
These statutes are to be applied in the case before us in the light .of the facts disclosed by the record. A budget for the year 1938 was duly adopted, setting up a general fund with classified items on forms provided by the state tax commission. The total amount of the budget for the general fund was $72,191.28. rThe total cash collected and available for the payment of the general fund obligations was $78,309.14. Thus the funds were ample to meet the various items of the general fund budget.
From the agreed statement of facts admitted in evidence it appears that certain obligations for the year 1937 were paid from the 1938 revenues, leaving several of the funds available for the budgeted items short; that certain 1938 warrants were paid out of some item fund other than the fund to which under the budget they were chargeable; that other obligations were incurred in excess of the depleted revenues so that there was a total of unpaid claims for the year 1938 of $14,741.56.
In this state of affairs we look first to the provisions of the budget law.
Under G. S. 1935, 79-2927, the governing body of each taxing subdivision or municipality is required to make in writing on forms prescribed by the state tax commission “a budget properly itemized and classified by funds.” The budget must set out “in parallel columns all amounts and, items included and to be expended for the ensuing budget year.” -
Under 79-2928 a financial statement is to be prepared in connection with the budget which “shall show the condition of each fund.”
Under 79-2930 the levy shall not raise an amount in excess of that required by the budget nor exceed the maximum levies prescribed by law.
Under 79-2934 the budget as approved and filed “shall hereafter be declared to be an appropriation for each individual fund, and the appropriation thus made shall not be used for any other purpose.”
Section 79-2935 provides:
“It shall sbe unlawful for the governing body of any taxing subdivision or municipality in any fiscal year to create an indebtedness in any manner, for any purpose or to approve, allow, issue, sign, attest or register any claim warrant, or other evidence of indebtedness or payment after the total unpaid indebtedness plus the warrants issued against that fund shall equal or exceed the amount provided in the budget to be spent from that fund for that budget year. Any indebtedness contracted or incurred by the governing body or any officer or officers of such taxing subdivision or municipality in excess of said amount or amounts shall be void as against such taxing subdivision or municipality: . .
The theory of the budget law is plain. The budget must be properly itemized and classified by funds — the levy must be made according to the various items in the budget as published, and when filed-shall operate as an appropriation for each individual fund. The revenues are to be itemized and classified by funds, and are thus earmarked for a particular purpose. When so segregated the statute declares the funds “shall not be used for any other purpose.” In effect the revenues so itemized and classified become a trust fund to be applied to the purpose for which it was allocated.
In the face of the explicit language of the budget law, it would be difficult to justify the action of the board in diverting the funds in the 1938 budget to the liquidation of the outstanding obligations of the year 1937, or in issuing warrants on one fund to pay any other items or obligations.
Appellee contends the claims sued on are valid. It is asserted that section 10-1113 of the cash-basis law only condemns an action “creating an indebtedness in excess,” etc., and that similar language is used in section 10-1114 of the cash-basis law, and in section 79-2935 of the budget law. The contention is that the claims sued on were not created or incurred by the board of county commissioners, but arise by force of the statutes of the state; that the claims sued on are of two types — those of a statutory nature and those of a quasi-statutory nature. Appellee argues that those expenditures involved in the operation of county government which are directly and expressly provided for by statute, such as salaries of officers, deputies, clerks and stenographers, feeding county prisoners, expenses of the district court, vital statistics, primary and general elections, justice and constable fees in state cases, legal printing, county auditing, official bonds, probate court expenses, etc., are pure statutory obligations. That those expenditures which of necessity arise out of a function of county government which is required to be performed by state law, but for which exact manner of payment no provision is made, are quasi-statutory obligations. They are unavoidably necessary to discharge a required function. In this class is placed all necessary jail expense, necessary courthouse expenses and expense necessary in operation of sheriff’s office.
Appellee quotes the various statutes of the state which provide for the payment of the.salaries of the county officials and the various other items listed, and contends that these statutory and quasi-statutory expenses were not created by the county board, but were created by the various statutes, and therefore do not fall under either the cash-basis law or the budget law. Appellee contends that any other construction would cause a breakdown and utterly paralyze the fundamental functions of the county government.
We are unable to agree with these contentions. ' '
The board of county commissioners has no authority to pay claims or obligations of any kind except as authorized by the law of the state. The budget is an estimate of the revenues and expenditures for the ensuing year and is made up of items of expenditures to be made — all authorized by law. If we delete from the budget all obligations that arise by force of our statutes, it would be difficult to find any field whatever for the operation of the budget law.
It must follow that the theory of the appellee, that neither the cash-basis law nor the budget law applies to obligations that arise by force of a statute, is untenable.
In State, ex rel., v. Board of Education, 137 Kan. 451, 21 P. 2d 295, the purpose of the cash-basis law was stated:
“The act pertains to the indebtedness of subdivisions of the state authorized by law to raise money by taxation and to expend the money so raised in performing their respective governmental functions. Broadly speaking, it is designed to have such governmental units operate their respective functions on a cash basis — not to spend money they do not have or incur obligations they cannot meet promptly. Some of them, for one reason or another, had not been doing that, but had conducted their business somewhat on a credit basis. In some, proper books had not been kept, or sufficient publicity given, so that its citizens could know its financial status. It was thought waste, extravagance and an undue burden on taxpayers resulted from such methods of doing business, and the legislature deemed it prudent to change such practices and put all such governmental units on a cash basis. . . .” (p. 452.)
The purpose of the cash-basis law and the budget law is to prevent a deficit in the funds of the municipality at the end of the fiscal year. To effectuate that purpose the budget is to be carefully made, and the estimate of expenditures therein specified is to be faithfully observed. To that end a duty is imposed on the board to keep account of all claims allowed, allocating each claim to its respective budgeted item or fund; to keep a check on the obligations allowed, seeing that no budgeted item is overdrawn. Under section 79-2934 the appropriation for each individual fund as set forth in the budget “shall not be used for any other purpose.” The board therefor^ was without authority to borrow from one budgeted item to pay for items not budgeted, or which should have been budgeted in- some other item. Under the budget law each of the budgeted items is separate and distinct — in effect a trust- fund earmarked for a particular purpose. Clearly it is contrary to the letter and spirit of the law for the board to borrow from one item fund to pay the obligations chargeable to another item fund, or to pay an obligation not budgeted at all. Under sections 10-1113 and 10-1114, it is declared unlawful to pay any order, warrant, etc., “in excess of the amount of the funds actually on hand in the treasury at the time for such purpose.”
The action of the board in paying the 1937 obligations out of the 1938 budget funds, finds no justification in the statutes. If the payment of claims not included in the budget is to be held within the power of the board, there is nothing to prevent the board from using all moneys on hand for the payment of any indebtedness, thus defeating the purpose both of the budget law and of the cash-basis law. For if the revenues allocated to the specific items in the budget may be used to pay obligations not in the budget, and the unpaid items in the budget are to stand as valid obligations, the board is permitted- to do indirectly what it cannot do directly. It would defeat the very purpose of the cash-basis and budget laws.
We think the claims sued on are unenforceable in this action under the statutes quoted. The judgment is reversed. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Kenneth L. Friberg, from his convictions of aggravated assault on a law enforcement officer and aggravated battery against a law enforce ment officer, contrary to K.S.A. 21-3411 and K.S.A. 21-3415. The defendant received a controlling sentence of 20 years to life.
He claims error in the trial court’s refusal to instruct on diminished capacity and in evidentiary rulings.
The defendant, his girlfriend, and their baby were on their way from Missouri to Montana when they became lost in Overland Park, Kansas. The defendant was driving. His girlfriend was in the front passenger seat and the baby was in the back seat. It was approximately 2:30 a.m.
Overland Park Police Officer David Moore noticed the defendant’s vehicle being driven on Metcalf Avenue with a headlight and a taillight out and with no license plate light. Moore followed the vehicle, which subsequently turned east on 83rd Street. The defendant was driving below the speed limit, sometimes as slow as 10 miles an hour. The defendant pulled into a bus lane in front of the old Broadmoor Junior High School without signaling, slowed down even further, and then pulled back onto 83rd Street without signaling.
After the defendant turned left on Lamar, Moore, using the public address system, instructed the defendant to pull over. The officer also turned on his siren and flashing lights.
Before exiting his patrol car, Officer Moore turned on the spotlight and aimed it at the back of the driver’s head. Moore then walked over to the driver’s side of the vehicle. When he looked inside the vehicle, he saw the driver holding a rifle across his chest. Moore made eye contact with the driver, whom Moore identified as the defendant, Kenneth L. Friberg. Friberg then shot the officer in the jaw. After being shot, he stepped backwards, lost his balance, and fell. Friberg drove off, and Moore radioed for assistance.
Officer Tony Maddex responded. In the 7500 block of Lamar, Maddex saw a vehicle matching the description of the vehicle driven by Friberg and activated his flashing lights and siren. Friberg turned into a cul-de-sac south of 75th Street and turned off the car’s lights. Friberg went to the left, Maddex to the right, and the two vehicles, both moving slowly, ended up facing each other. The officer turned his spotlight on the vehicle and subsequently identified the-driver as Kenneth L. Friberg. About the time Maddex noticed that Friberg had a rifle pointed out the window, the defendant accelerated toward the officer. Maddex laid across the front seat of his car as Friberg drove past, but the rifle was not fired. This incident is the basis of the aggravated assault on a law enforcement officer. The officer resumed his pursuit; however, he eventually lost sight of the defendant’s vehicle.
A few hours later, the police located the vehicle backed into a parking place at a condominium complex in Mission, Kansas. Three rifles were found inside the vehicle. The police also eventually located and arrested Friberg.
En route to and after arriving at the police station, Friberg told police officers that he grabbed a rifle, stuck it out his window, and twice fired in the general direction of the officer. He also said he was epileptic, subject to seizures, and on medication, specifically Dilantin and Phenobarbital, which he had not taken for two or three days. The defendant subsequently complained of feeling dizzy. Med-Act was called, and Friberg was treated. Friberg later told the police that his passenger, not he, had shot the officer. The next day, Friberg told police that he had shot the officer and that he had shifted the blame to the passenger because he was scared.
1. Diminished Capacity
With regard to aggravated battery against a law enforcement officer, Friberg argues the trial court erroneously refused to instruct the jury on diminished capacity. “[Ejvidence of diminished capacity is admissible for the limited purpose of negating specific intent.” State v. Maas, 242 Kan. 44, 52, 744 P.2d 1222 (1987). Aggravated battery against a law enforcement officer is a specific intent crime. State v. Ferris, 222 Kan. 515, 517, 565 P.2d 275 (1977).
The defendant requested the instruction on diminished capacity that was approved in State v. Maas, 242 Kan. at 52-53.
The trial judge refused to give the requested instruction on diminished capacity, stating:
“I listened in vain for testimony that would tie the defendant’s conduct factually with the concept and causal factor of diminished mental capacity. It is the Court’s opinion it simply was not there and that the doctors would not commit themselves to that concept or that causal relationship that the Court views as a condition precedent to that instruction being employed or given.”
Friberg contends there was sufficient expert testimony concerning his organic brain dysfunction to support such an instruction. Three experts testified. Leif Leaf, Ph.D., a psychologist specializing in neuropsychology, and Dorsey Dysart, a medical doctor specializing in neurology and psychiatry, testified for the defense. The State called Gerald Vandenberg, Ph.D., a clinical and forensic psychologist, as a rebuttal witness.
Dr. Leaf described the defendant as having “a reduced or lowered intellectual functioning and capacity” consistent with an organic brain dysfunction. This dysfunction commonly results in antisocial behavior and affects control, judgment, and impulsivity. Specifically, the doctor testified that Friberg had problems with his memory, with problem solving, and with evaluating new situations; that Friberg had limited insight; and that Friberg suffered from antisocial personality disorder, or a conscience deficit. Dr. Leaf acknowledged that Friberg’s problem was not that he did not know what was going on around him; the problem was his inability to control his actions.
Dr. Dysart determined Friberg had an organic personality disorder, a frontal lobe dysfunction, and a borderline antisocial personality. The doctor concluded the defendant had brain damage. Dr. Dysart said that because of frustration and anxiety, Friberg could have lost some of his capacity to reason and, therefore, resorted to violence. According to the doctor, Friberg was not psychotic, experiencing unreality, or suffering from a mental disease or defect that made him unable to appreciate the wrongfulness of his act; however, the defendant’s “appreciation of reality could have been diminished if he was overstimulated by all the stress that he was under.” The following exchange took place during the cross-examination of Dr. Dysart:
“Q. [Y]ou are not trying to tell this jury that those things affected him shooting that policeman that night; correct?
A. I am saying they are eligible. They could have.
Q. You are not telling us that they did though; right?
A. No.
Q. Because you don’t know?
A. Right.
Q. As a matter of fact, Doctor, you said in your report that, and I’m going to quote here, ‘It is the opinion of this examiner that Mr. Friberg does not suffer from a severe mental disease or defect that would make him unable to appreciate the nature and quality of the wrongfulness of the act in question.’ Is that correct?
A. Correct.
Q. In other words, when the policeman was walking up to him, you are saying that he’s going to recognize that person as a policeman?
A. Absolutely.
Q. He is going to recognize this as a firearm; correct?
A. Correct.
Q. And if he points -that gun and pulls that trigger, he’s going to know that for what it is; correct?
A. Should.
Q. What you are saying is that these problems if, in fact, they came into play, affected his reasoning?
A. They could have.
Q. In other words, his ability to make the right decision; right?
A. Correct.
Q. Which the prisons are full, as we both know, of people that can’t do that; right?
A. Right.”
Dr. Vandenberg disagreed with Dr. Dysart’s findings. Dr. Vandenberg testified that Friberg was not brain damaged, but did have some brain dysfunction, which the doctor explained as involving lags in information processing. Dr. Vandenberg stated that such dysfunction does not affect an individual’s ability to make a decision or to comprehend what is happening around him or her. The doctor concluded that Friberg’s behavior could be attributed to antisocial personality disorder.
According to the defendant, the standard of review is whether there was evidence, even if slight, to support the giving of an instruction. That is an overbroad statement; however, the standard with regard to diminished capacity is different in any event. A “trial court is not required to give an instruction on diminished capacity.” State v. Wilburn, 249 Kan. 678, Syl. ¶ 4, 822 P.2d 609 (1991). Whether to instruct the jury on diminished capacity is a matter of trial court discretion. See, e.g., State v. DeMoss, 244 Kan. 387, 392, 770 P.2d 441 (1989); Maas, 242 Kan. at 52; State v. Jackson, 238 Kan. 793, 798, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986). As recently as 1991, this court declined to change that standard. State v. Cady, 248 Kan. 743, 748-49, 811 P.2d 1130 (1991).
In Wilburn, 249 Kan. at 686, the most recent case to address diminished capacity, this court summarized:
“[T]he criminal law concept of diminished capacity requires the presence of a mental disease or defect not amounting to legal insanity which a jury may consider in determining whether the defendant has the specific intent required for the crime charged. Mere personality characteristics such as poor impulse control, a short temper, frustration, feelings of dependency, ‘snapping,’ lack of concern for the rights of other people, etc., do not constitute a mental disease or defect bringing the doctrine of diminished capacity into play.
“Under the facts before us, evidence of diminished capacity was lacking. Evidence that defendant became frustrated over his marital problems, lost control, snapped, etc., go to personality characteristics and reactions to events rather than any underlying mental disease or defect. Even had evidence of diminished capacity been presented, the giving of an instruction thereon is not required and is a matter of trial court discretion. ” (Emphasis added.)
Based upon the expert testimony discussed previously, a reasonable person could agree with the trial court’s refusal to instruct the jury on diminished capacity. Thus, the trial court did not abuse its discretion.
Friberg also contends that failure to instruct the jury on diminished capacity denied him the opportunity to present a complete defense, which violated his due process rights. This court addressed and rejected that argument in State v. Cady:
“Cady was not deprived of his right to present his claim of diminished capacity to the jury. He presented the testimony of his expert witness and had the opportunity to cross-examine the State’s witnesses. The defendant was not restricted in his closing argument to the jury. Cady merely failed to convince the jury of his diminished capacity.” 248 Kan. at 749.
The same can be said in the instant case. Friberg presented the testimony of his expert witnesses and cross-examined the State’s witness. The defendant was not restricted in his closing argument to the jury, other than by the evidence presented at trial. Fri-berg’s due process rights were not violated.
2. Evidence
The defendant’s second argument is tied closely to his first argument. Friberg argues that the trial court erred in limiting his presentation of evidence concerning childhood beatings and other background information because such evidence was foundation for evidence concerning his diagnosed organic brain dysfunction. The defendant claims that the trial court’s actions denied him the opportunity to present a complete defense and, as a result, violated his due process rights.
With regard to the admissibility of evidence, this court has established the following principles.
“Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. [Citations omitted.]
“Relevant evidence is defined as ‘evidence having any tendency in reason to prove any material fact.’ [Citations omitted.] The determination of relevancy is a matter of logic and experience, not a matter of law. [Citation omitted.] In State v. Brown, 217 Kan. 595, 599, 538 P.2d 631 (1975), it was said:
‘In discussing relevancy, we have frequently said that to be admissible in the trial of a case evidence must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. [Citations omitted.]’ ” State v. Nemechek, 223 Kan. 766, 769-70, 576 P.2d 682 (1978).
See State v. Wagner, 248 Kan. 240, 243-44, 807 P.2d 139 (1991); State v. Walker, 239 Kan. 635, Syl. ¶ 5, 722 P.2d 556 (1986).
Prior to the start of the trial, the State orally moved for a motion in limine, requesting that Friberg make a proffer of evidence relating to the defendant’s diminished capacity defense. The trial court ruled that the defendant was not required to provide the State with a summary of his diminished capacity evidence. Additionally, the court ordered the defense to limit testimony of the defendant’s expert witnesses to those issues relevant to or bearing upon diminished capacity.
During opening arguments, defense counsel told the jury that as a child, Friberg had been beaten by his father and that those beatings had caused head injuries. The State objected. The trial court cautioned defense counsel that the jury would be instructed to disregard such evidence unless defense experts testified “that these beatings had a direct effect upon organic brain dysfunction or upon the diminished capacity.” Prior to the testimony of defense experts, the State requested that the trial court remind defense counsel of its previous ruling. In response, Friberg maintained family and background evidence was foundation for the experts’ testimony. The trial court upheld its previous ruling, stating:
“[BJeference to beatings as a child, to being raised in foster homes, to other issues which are obviously collateral to the issues in this case have no bearing and are inappropriate unless the doctor is going to testily that those things somehow have a causal effect on a diminished capacity.”
Dr. Leaf then testified that factors inducing organic brain dysfunction included substance abuse, blows to the head causing edema or subdural hematoma that cause swelling to the head, or seizures or strokes that cause “strains in brain function.” When asked if he had determined what brought about the dysfunction in the defendant, Dr. Leaf stated:
“Well, in his self-report he did indicate that he has had several incidents of head injuries and his history and his social — psychosocial history would seem to also support that he’s had several incidents of substance abuse as well as head injuries.”
In conjunction with his diagnosis of organic personality disorder, Dr. Dysart mentioned that the defendant experienced social problems in childhood.
The State contends that the experts’ testimony shows that the allegedly excluded evidence was presented. The defendant seems to argue that he wanted to present more detailed information regarding childhood beatings, foster homes, etc. Sufficient evidence concerning the alleged childhood beatings was presented to allow the jury to consider the impact of such upon his claim of diminished capacity. There is no merit to the defendant’s argument that he was not allowed to present a complete defense.
In addition, the trial court did not abuse its discretion in its ruling. The trial court gave Friberg the opportunity to establish a “natural, necessary or logical connection” between the beatings the defendant said he received as a child and his claim of diminished capacity at the time of the shooting. Because Friberg failed to establish that connection with any specificity, a reasonable person could agree with the trial court’s evidentiary rulings. Thus, the trial court did not abuse its discretion.
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|
The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State on a question reserved pursuant to K.S.A. 22-3602(b)(3).
On November 3, 1991, Tyrone Marshall was stopped for speeding by a Kansas highway patrolman operating in Geary County. A drivers license check on Marshall’s Louisiana license revealed that the license had been suspended. Marshall was charged with speeding (K.S.A. 8-1336[a][3]) and driving while his license was suspended (K.S.A. 8-262[a][l]). The Geary County Attorney’s Office requested specific license information from Louisiana, including the record, order of suspension, and proof of mailing of the order to defendant. Louisiana complied by sending a packet of information. Included therein was a record showing the license had been suspended pursuant to the Nonresident Violator Compact (Compact) (La. Rev. Stat. Ann. Tit. 32 § 1441 et seq. [West 1989]). In Kansas the Compact is found at K.S.A. 8-1219. Louisiana suspended the license based upon a report from Illinois that defendant had failed to appear on a speeding charge.
The case was called for trial before a district magistrate judge on December 16, 1991. Only the driving while license suspended charge was contested. Defendant was convicted on both charges but appealed only the driving while license suspended charge to the district court.
The trial before the district court was held on February 18, 1992. The parties stipulated to the following facts: (1) Prior to the date in the complaint, the State of Louisiana suspended the defendant’s driver’s license; (2) the defendant drove his vehicle in Geary County, Kansas, on the date alleged; (3) the State had requested a certified driver’s record including proof of mailing to defendant of the order of suspension; and (4) the packet received from Louisiana contained no certificate of mailing of the suspension order to the defendant. The court held that the lack of proof of mailing was a fatal deficiency in the State’s case and entered its order of acquittal. The State appeals, on a question reserved, from the court’s order relative to the need for the State to prove mailing of the Louisiana order to the defendant.
In State v. Price, 247 Kan. 100, 103-04, 795 P.2d 57 (1990), we held:
“Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court. Appeals on questions reserved have generally been accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. Conversely, we have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Hudon, 243 Kan. 725, 726, 763 P.2d 611 (1988).”
We are satisfied that the issue presented herein meets the criteria warranting review.
The notice in question was issued by the State of Louisiana Department of Public Safety and Corrections and states:
“DATE OF THIS NOTICE 05/11/91 OID/011624/001
“OFFICIAL NOTIFICATION ON WITHDRAWAL OF DRIVING PRIVILEGES
“MARSHALL TYRONE
6432 EADS ST
NEW ORLEANS LA 70122
“LICENSE NO. 005569772 CITATION NUMBER 0000905111 VIOLATION OUT OF STATE AFFIDAVITS VIOLATION DATE 12/20/90 COURT ILLINOIS
“THIS STATE FORMALLY ENTERED INTO THE NON-RESIDENT VIOLATOR’S COMPACT AS PROVIDED BY R.S.32:1441 THROUGH R.S.32:1446, EFFECTIVE JANUARY 1, 1976.
“THIS OFFICE HAS BEEN NOTIFIED BY A MEMBER STATE THAT YOU FAILED TO APPEAR IN THE CLERK OF THE CIRCUIT CT. BOX 116, MOUND CITY, IL 62063 (618) 784-9300 (VIOLATION: SPEEDING) SEQ #1 AS REQUIRED BY LAW.
“IF FOR SOME REASON THE INFORMATION FROM THIS STATE IS INCORRECT, YOU HAVE 30 DAYS FROM THE DATE OF THIS NOTICE BEFORE SUSPENSION OF YOUR OPERATOR’S LICENSE IS IMPOSED, TO FURNISH THIS OFFICE WITH WRITTEN EVIDENCE FROM THE ABOVE MENTIONED COURT THAT YOU APPEARED OR A LETTER OF CLEARANCE FROM THE ABOVE STATE’S LICENSING AUTHORITY OR REQUEST AN ADMINISTRATIVE HEARING IF INFORMAL RESOLUTION CANNOT BE MADE IN THIS MATTER. THIS HEARING REQUEST MUST BE MADE IN WRITING TO THIS OFFICE AND MAY INVOLVE ADMINISTRATIVE COSTS TO YOU.
“AFTER COMPLYING, YOU MUST REMIT A $60.00 REINSTATEMENT FEE MADE PAYABLE TO THE OFFICE OF MOTOR VEHICLES IN THE FORM OF A CASHIER’S CHECK, CERTIFIED CHECK OR MONEY ORDER. PLEASE DO NOT SEND CASH OR PERSONAL CHECKS.
“FAILURE TO COMPLY WITH THE ABOVE WILL RESULT IN ENFORCEMENT ACTION.”
Defendant contends the district court was correct in holding that the State was required to prove that Louisiana sent this notice to him. The State argues that although it requested proof of mailing, the fact Louisiana did not provide same is not fatal to its case. Further, the State argues the attested notice is prima facie evidence of its having been mailed to the defendant.
We have not previously had this issue before us, and neither of the parties’ briefs nor our research has disclosed any cases from other jurisdictions determining this precise issue.
In State v. Moffett, 240 Kan. 406, 728 P.2d 1330 (1986), and State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), we discussed the notice requirements of K.S.A. 8-255(b) when the State of Kansas suspends a Kansas driver’s license. Such cases are inapplicable herein. The Compact was not involved in either case. Further, we are not concerned herein with the suspension of a Kansas driver’s license or Kansas procedures for taking such action.
Of more significance is State v. Hudon, 243 Kan. 725, 763 P.2d 611 (1988). In Hudon, defendant had a Kansas driver’s license. Defendant’s failure to appear for a Missouri speeding citation resulted in Kansas being notified thereof by Missouri pursuant to the Compact of which both states were members. Kansas then suspended Hudon’s driving privileges pursuant to K.S.A. 8-1219 “until Ticket is satisfied.” Hudon was subsequently arrested in Johnson County for DUI and other charges, including driving on a suspended license. The district court acquitted Hudon on the driving while license suspended charge on the basis the division of motor vehicles could not suspend Hudon’s driver’s license for more than one year by virtue of the language contained in K.S.A. 1987 Supp. 8-256(a), and that the no-date-certain period of suspension was violative of the specifically designated period of suspension requirement of K.S.A. 8-1474 (Ensley).
In entering its judgment of acquittal in Hudon, the district court relied upon City of Overland Park v. Rice, 222 Kan. 693, 567 P.2d 1382 (1977), wherein we reversed a driving while license suspended conviction because the period of suspension in the suspension order did not have specific beginning and ending dates as required by K.S.A. 1972 Supp. 8-234(r) (repealed L. 1975, ch. 36, § 33).
We noted that the district court’s reliance on Rice was misplaced as the Compact was not involved therein. We then held:
“The whole purpose of the Compact is to compel the nonresident violator to make his or her peace with the issuing jurisdiction by paying the fine or contesting the action to a final resolution. The Compact is codified in K.S.A. 8-1219, and K.S.A. 8-1219 is specifically excepted from the one-year maximum suspension of driver’s licenses contained in K.S.A. 1987 Supp. 8-256(a).
“Section (a) of Article IV of the Compact mandates that the period of suspension shall run ‘until satisfactory evidence of compliance with the terms of the traffic citation has been furnished to the home jurisdiction licensing authority.’ Clearly, the burden is on the motorist to provide the evidence of compliance necessary to end the suspension. Reading K.S.A. 8-1219 and 8-1474 together, the legislative intent, consistent with the purposes of the Compact, is that the period of suspension in Compact cases shall be specifically designated as running from the date of suspension until satisfactory evidence of compliance is presented. The period of suspension imposed by the division of motor vehicles herein was clearly within its statutory authority, and the trial court erred in holding otherwise.” 243 Kan. at 728-29.
The license involved herein was issued by the State of Louisiana, and the license was subsequently suspended by the issuing state under authority of the Compact as a result of defendant’s failure to appear on an Illinois speeding charge.
The attested documents submitted by Louisiana are regular on their face. They show Illinois and Louisiana are both members of the Compact. The Illinois documents attached thereto show a legitimate basis for triggering the Compact provisions for license suspension in Louisiana. The Official Notification on Withdrawal of Driving Privileges appears to be legally sufficient under the Compact. It was addressed to defendant at the address shown on the Illinois complaint. Defendant argues, and the district court found, the State of Kansas had to prove Louisiana did, in fact, mail the notice to defendant in order to convict the defendant for driving in Kansas on a suspended license. We do not agree. Such an interpretation would defeat the purpose of the Compact which is to force nonresident violators to make their peace with the issuing state.
The license check herein revealed the Louisiana license presented to the arresting officer had been suspended by its issuer. The documents submitted by Louisiana to the Geary County Attorney’s Office established the suspension. To require the Geary County Attorney to prove the whole procedure employed in the suspension would nullify the purpose of the Compact. Kansas is in no position to conduct an independent investigation as to such matters as Louisiana’s actual mailing of the notice, defendant’s proper mailing address for a notice of suspension, etc. Full faith and credit must be afforded the acts of Louisiana herein. Defendant must make his peace with Louisiana.
We conclude the district court erred in holding that the State’s case was fatally defective for failure to introduce a certificate of mailing showing the notice of suspension had, in fact, been mailed to the defendant by the State of Louisiana.
The State’s appeal on the question reserved is sustained. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by Ted Veatch, plaintiff,- from the trial court’s dismissal of his legal malpractice action against the defendant, Terry Beck, who represented Veatch in the un-, derlying disability action. The appeal was transferred on motion from the Court of Appeals to this court, pursuant to K.S.A. 20-3018(c).
On February 27, 1986, Beck filed an action on behalf of Veatch in Shawnee County, Kansas (disability action). Veatch claimed that he has been continuously totally disabled since September 17, 1980, and that he is entitled to disability benefits from KPERS using that date as the onset of his disability. Summary judgment was entered against Veatch on the ground that the action was time barred. The trial court identified December 16, 1985, as the cutoff date.
Beck, on behalf of Veatch, appealed the judgment. The Court of Appeals affirmed in an unpublished per curiam opinion pursuant to Rule 7.042(d) and (e) (1992 Kan. Ct. R. Annot. 35). Petition for review was denied by this court.
Veatch filed the present action in Shawnee County seeking damages from Beck (malpractice action). The action was dismissed on the ground that Veatch failed to state a cause of action against Beck because the disability action was filed timely, notwithstanding the previous judgment to the contrary in the disability case.
The sole question on appeal is whether the district court erred in dismissing Veatch’s malpractice action. Because matters outside the pleadings, including the insurance policy and the judgment in the disability action, were considered by the district court, the court’s disposition will be treated as an entry of summary judgment. See K.S.A. 1992 Supp. 60-212(b). If the parties stipulate to the facts, appellate review of an entry of summary judgment is de novo. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 829 P.2d 907 (1992).
Veatch’s position is this: First, the judgment entered against him in the disability action is controlling in the present malpractice action and is not susceptible to collateral attack. Second, the judgment entered against him in the disability action is correct. Third, even if the judgment entered against him in the disability action is incorrect, the malpractice action should not have been dismissed because there remain genuine issues of material fact concerning negligence and causation for Beck’s failure to file within the shortest possible time and to provide appropriate arguments and authorities in the trial court or on appeal.
Beck responds that, in this malpractice action, the court is not bound by the judgment in the disability action. He claims that even if the court normally would be bound by the decision in the underlying suit, in this case the court should not be bound because that decision was wrong in that he timely filed the disability action on behalf of Veatch. Beck argues that, if the erroneous judgment controls in the malpractice action, he could be held liable for negligence that he did not commit.
In the disability action, the trial court filed a memorandum decision and order granting the motion of KPERS for summary judgment. The court reasoned that Veatch’s cause of action accrued when his proof of loss was due, 90 days after he became disabled. That date was December 16, 1980. Legal action had to be filed within five years. Thus, the action filed on February 27, 1986, was filed after the limitations period expired on December 16, 1985.
The Court of Appeals affirmed. Its per curiam unpublished opinion states in full:
“After submission of briefs and oral argument on the appeal the court determines that no reversible error of law appears. The opinion, findings of fact, and conclusions of law of the trial court adequately explain the decision. The trial court did not abuse its discretion. Accordingly, we affirm under Rule 7.042(d) and (e) (1988 Kan. Ct. R. Annot. 34).
Supreme Court Rule 7.04 (1992 Kan. Ct. R. Annot. 33, 35) provides that an unpublished opinion has no precedential value “except to support a claim of res judicata, collateral estoppel, or law of the case.” (Emphasis added.)
In the present action, the trial court reasoned that Veatch’s cause of action accrued, according to the disability insurance policy, when his proof of loss was due 300 days after he became disabled. In other respects the reasoning matched that of the disability action court.
The discrepancy springs from the disability action court using one phrase and the malpractice action court using another from the “Written Proof of Loss” provision of the policy. The provision states:
“WRITTEN PROOF OF LOSS
Written proof of loss must be furnished to the Company at its Home Office within 90 days after the termination of the period for which claim is made with respect to any loss for which this section provides any payment contingent upon continuing loss and within 90 days after the date of loss for which claim is made with respect to any other loss.”
The disability action court thought the proof of loss was due 90 days after the loss, and in this action the trial court thought otherwise.
Beck has been involved at every stage. He represented Veatch when the courts concluded that the disability claim was time barred. Beck crafted the arguments in response to which these determinations were made. At the trial court level, he argued in the disability action that “the statute of limitations did not begin to run until there was a breach of contract” and that the breach occurred when KPERS denied the claim on June 30, 1981. This is not the argument he makes in the present case. He failed to bring the legal theory and what he now regards as the controlling authority, Goff v. Aetna Life and Casualty Company, Inc., 1 Kan. App. 2d 171, 563 P.2d 1073 (1977), to the attention of the trial court in the disability action. Beck failed to formulate an argument that was consistent with the provisions of the policy he had been retained to enforce.
In the disability action, Beck filed an eight-page brief with the Court of Appeals that cites Goff for the proposition that the limitations period for an action on installment benefits must be calculated with regard to the due dates of each installment and each corresponding proof of loss. This argument is fine as far as it goes, but it fails to provide the key to the disposition of Veatch’s claim. It fails even to note the lower court used.the wrong phrase from the “Written Proof of Loss” provision. Nor did Beck point out that Goff equates, loss due to continuing disability with loss for which payment is contingent upon continuing loss.
Beck’s position is that the judgment in the disability action should be reexamined because it is incorrect and allowing it to stand exposes him to liability for negligence he did not commit. He argues that “an error-by the attorney is a necessary ingredient in any legal malpractice action.”
An overburdened Court of Appeals panel disposed of the original disability case pursuant to Rule 7.042 and did not set forth that Beck, failed to adequately raise to the trial court those issues upon which he relied on appeal. The rule is well established that a point not raised and presented to the trial court cannot be raised for the first time at the appellate level. State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986).
After the Court of Appeals affirmed the trial court in the original case, Beck filed a two and one-half page petition for review with this court. The petition contained one page of legal argument that did not set forth clearly the issues presented in the malpractice action. This court is well aware of the .fundamental rule that a party cannot raise a point for the first time on appeal. We denied review.
Having failed to raise, the point at trial, it;-could not be raised on appeal; thus, the. trial court erred in allowing Beck to use a point he failed to use in the disability case as a defense in the malpractice action. Having so concluded, we need not address whether the trial court. ;and Court of Appeals .erred in the disability case.
Our reversal does not necessarily mean liability on Beck’s part. The merits of Veatch’s malpractice claim depend on a determination of the. merits of his underlying disability claim. If Veatch is not entitled to benefits for reasons independent of the statute of limitations problem, Beck’s conduct will not be a cause of Veatch’s loss.
Reversed.
Davis, J., not participating. | [
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On March 5, 1993, respondent Wesley M. Norwood, attorney registration No. 04960, of Lawrence, Kansas, an attorney admitted to practice law in the State of Kansas, was disciplined by indefinite suspension from the practice of law for violation of MRPC 1.7 (1992 Kan. Ct. R. Annot. 261), 1.8(a) (1992 Kan. Ct. R. Annot. 265), 1.15(d)(2)(iii) and (iv) (1992 Kan. Ct. R. Annot. 281), and 8.4(a) and (g) (1992 Kan. Ct. R. Annot. 328), in connection with his financial dealings with two of his clients. In re Norwood, 252 Kan. 711, 847 P.2d 1314 (1993).
In a letter dated and filed April 5, 1993, to the Clerk of the Appellate Courts, respondent voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1992 Kan. Ct. R. Annot. 175).
This court, having examined the files of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Wesley M. Norwood be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Wesley M. Norwood from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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|
The opinion of the court was delivered by
Six, J.:
The primary issue addressed in this criminal case is whether the evidence was sufficient to sustain a conviction of rape. Two additional issues, i.e., the admission of a knife and tattoo book into evidence and the failure to instruct on involuntary intoxication, are also considered.
Our jurisdiction is under K.S.A. 1991 Supp. 22-3601(b)(l) (a direct appeal when a maximum sentence of life imprisonment has been imposed).
The standard of review on sufficiency of the evidence is whether, after, review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Bailey, 251 Kan. 156, 163, 834 P.2d 342 (1992). The standard on admissibility of physical evidence is trial court discretion, determined on the basis of relevance to the defendant and the crime charged. State v. Ji, 251 Kan. 3, 15, 832 P.2d 1176 (1992).
We apply a clearly erroneous standard in reviewing the failure to give an involuntary intoxication instruction, absent a request for the instruction. The failure to instruct is clearly erroneous only if we reach a firm conviction that there was a real possibility the jury would have returned a different verdict if the instruction had been given. State v. Perez, 251 Kan. 736, Syl. ¶ 4, 840 P.2d 1118 (1992).
We find no error and affirm.
Facts
Cooper was charged with rape (K.S.A. 21-3502) and aggravated criminal sodomy (K.S.A. 21-3506[c]). He was convicted of rape but acquitted on the sodomy charge. We detail the factual situation because the sufficiency of the evidence is at issue.
The Wichita police received a 7:00 a.m. call from Brenda Lake, who told Officer Hipps that she believed N.H., a friend with whom she had been partying, was in danger. Lake’s concern arose because of the way Cooper (the defendant) had acted at the party. Lake and the police were unable to locate N.H. The police also received a call the same morning from a Coastal Mart employee regarding an “intoxicated subject that wanted to turn himself in.” Officer Hiser arrived at Coastal Mart, located Cooper, and inquired if there was anything he could do to help. Cooper replied that Hiser could “take him in.” Cooper “didn’t know why,” but he thought he had done something wrong. Cooper told Hiser that he had been beaten up in a fight at a party. Hiser indicated that Cooper appeared to be intoxicated.
Officer Novacek also was called to the Coastal Mart. Novacek testified that Cooper told Officer Hiser and her to either leave or take him to jail, that Cooper had a strong odor of alcohol, and that he was having a hard time keeping his eyes open and his head up. From Coastal Mart, Cooper directed Novacek to the location of the party, stating, “ ‘[Tjhat’s the house.’ ” Cooper told Novacek that a friend he had “done time with,” Jimmy Pottorff, lived in the house and was asleep. Cooper then let Officers Novacek and Hiser into the house.
Officer Novacek testified that when in the house she observed, among other things, several beer cans in the living room area. She indicated that Cooper looked at the living room floor and said, “Oh look. Here’s her watch.” Cooper also told the officers that there had been two women present at the party and that he had been putting a tattoo on one named N.H.
Cooper was taken to his home by the police. He asked Novacek to come back and pick him up if she found out what had happened because he was sure he had done something but could not remember what. The police returned to Pottorff’s home around 10:00 a.m. the same day. Pottorff invited the officers to look around. An officer noticed a knife laying on the counter in the kitchen and asked Pottorff if it was his. Pottorff replied that he had never seen it and requested the officer to take it. The officer refused.
Officer Stopka took a sexual assault report from N.H. at her home on the same morning. Stopka testified that N.H. had seemed upset and confused and that N.H. had difficulty remembering what had happened.
Stopka testified that N.H. had bruises on her face, neck, and around her eyes, scratches on her arms, and a cut on the webbing of her right index finger. The skin on her wrists appeared to have been “kicked back like maybe something had been tied across or scraped across there.” N.H.’s fingernail on her ring finger was broken above the quick.
Officer Stopka received a business card with Cooper’s name on it from N.H.’s husband. The husband said that the person named on the card had raped his wife. N.H. told Stopka that she and a girlfriend named Brenda Lake had gone out drinking at some local bars the night before. Stopka testified that N.H. related the following:
“A. She said that she went to the Revolution West and was sitting at a table with some unknown people, I don’t know who they were, she didn’t either. Brenda. She was talking about having a motorcycle painted. An individual, Mr. Cooper, told her that he would be interested in painting a motorcycle. She then told me that she drove him to his residence, where he wanted to get a portfolio of some of the work that he had done. She said that she dropped him off and she drove herself back to the Revolution West. He then met her there with his vehicle. And she said while they were in the parking lot, I think they were starting to walk back to the club, is what she told me, and she felt him grab her by the arms and pull her hands behind her. She didn’t know if she had been handcuffed or tied, she just felt that her hands had been restrained by, you know, handcuffs or some type of rope or something. She then said that she was beaten and taken into the truck. And I believe she blacked out, is what she told me. On the way back to the residence, she woke up. Mr. Cooper wanted her to perform oral sex and she refused, and she was hit a few times. Back at the residence, she was taken out of the truck, drug across the yard and into the residence. Once inside the residence, she would black out occasionally from being beaten, and when she would wake up, she would be either having her — being raped vaginally or anally. And at one point, she woke up, she was getting a tattoo on her right buttocks. And at approximately about three o’clock, she said she woke up, there wasn’t anybody in the residence that she saw. She went outside, found her vehicle, and drove home.”
According to Stopka, N.H. also indicated that Cooper had tattooed her against her will and that he had threatened to kill her with a knife.
Police officers took N.H.’s panties and the undershirt that she had been wearing from her truck. A partial retrieval of evidence for the KBI rape kit was performed on N.H. by a registered nurse at St. Francis Hospital. The nurse testified concerning the bruises and abrasions on N.H.’s body. The nurse also stated that she had been in contact with many victims of sexual assault and that N.H.’s behavior was consistent with behavior she previously had observed.
The doctor who treated N.H. in the emergency room described her bruises. The color indicated that the bruises had occurred within the past 24 hours. The doctor stated that N.H. had part of a new tattoo on her right buttock which appeared to be the major source of her pain. A bruise on N.H.’s inner right thigh was noted. The doctor discovered a new tampon that had been inserted that morning as well as another that had been forced deep into N.H.’s vagina. The doctor testified that: (1) N.H.’s speech was slurred, (2) her breath smelled of alcohol, (3) she said that she may have passed out from drinking too much alcohol, and (4) there was no physical sign of injury to the vagina or rectum. The tests collected for the rape , kit failed to reveal any spermatozoa or seminal material.
Pottorif testified that he had seen Cooper at Frankie’s, Lounge around midnight and that at about 2:00 a.m.. he had invited Cooper and others over to his house to have a drink. Pottorff told the police that his friend Rick and a couple of girls had been drinking at the bar and at his house. He testified that N.H. went into the bathroom and came out wrapped in a bed sheet. He stated that she then laid on the living room floor for the tattoo. Pottorff recalled that one of the women was named Lake. He stated that he was sick, vomited, and then went to bed.
The Wichita police visited Pottorff’s house a third time in order to obtain crime scene evidence. Officer Hiser obtained a waiver to search the house and discovered a pair of women’s panties just inside the kitchen door. Detective Fullerton, a crime scene investigator for the Wichita police, took photographs of N.H.’s injuries. These photos were admitted into evidence. Detective Fullerton also collected a broken fingernail from the-living room floor at Pottorff’s house. He discovered a sheet, white blouse, jeans, and a white bra.
At trial, N.H. testified that she met her friend Lake at a club called Vappers. N.H. had two or three beers and then left in her pickup truck with Lake. They arrived at Revolution West around 8:00 p.m. where they met N.H.’s husband and a couple of friends. Cooper was displaying his tattoo book. N.H. looked at the book because she wanted another tattoo. N.H. and Cooper agreed that he would tattoo her later in the evening.
Around midnight, after an evening of “bar hopping,” N,H. left with Lake and followed Cooper to Pottorff’s house. The. group at the house included N.H., Lake, Cooper, Pottorff, and another couple. Pottorff fixed everyone a drink. Sometime that evening N.H. and Lake took Cooper to his house to pick up his tattoo equipment. N.H. testified that she went to the bathroom to put a sheet around her so she could have her buttock tattooed. N.H. then laid face down on the floor. Cooper started giving her the tattoo.
N.H. stated that Lake and the other couple left at some point in the evening. Pottorff was drunk, sick, and passed out in his bedroom. According to N.H., after everyone else had left, Cooper removed the sheet and told her that he was going to rape her. He did not use the word “rape” but rather told her that if she would let him “do it” he would let her go. N.H. said that she and Cooper struggled as he beat her. The struggle moved into the kitchen where the two “slugged” each other. N.H. testified that her hands were restrained at some point but that she was eventually able to free them. Next, Cooper pushed N.H. into a refrigerator and something fell, hitting her in the head and knocking her out. N.H. awoke face-up on the floor with Cooper, naked, on her stomach. She stated that Cooper “was wanting me to suck on him.” N.H. tried to claw him with her fingernails. Cooper hit her in the chest. He then choked her and poured peach schnapps down her throat. She said that she could not breathe and, consequently, passed out.
According to N.H., the next thing she remembered was Cooper telling her that if she would “let him do it” he would let her go. She was now laying face down with Cooper on her back. She indicated that they struggled again and that Cooper had vaginal and anal intercourse with her before he knocked her out. Cooper had not ejaculated and she did not know whether he had an erection.
N.H. testified that when she woke up the house was quiet. She did not see anyone. The next thing she knew she was at home. She did not remember “much of anything” that occurred that morning, including her interview with Officer Stopka. She did remember that her watch and earrings were missing. At trial, N.H. indicated that she was wearing the watch she had retrieved from police property. She explained that the watch clasp had broken when the watch was ripped off her wrist.
At trial, Lake testified that she met N.H. at Devil’s Den. They moved on to Revolution West, where they saw N.H’s husband and met Cooper. According to Lake, Cooper drove them to another club. The three returned to Revolution West. N.H. and Lake moved on to Frankie’s Club where they again saw Cooper. They then went to Pottorff’s house, where N.H. made arrangements for the tattoo. Lake testified that N.H. entered the bathroom, put a sheet around herself, and returned to the living room where Cooper started giving her the tattoo. Lake stayed at Pottorff’s house until four or five a.m., when she left to prepare for work. She called the police because she was conceméd for N.H.’s safety.
N.H.’s husband testified that he remembered meeting Cooper at Revolution West. He said he went home around 9:00 p.m. He stated that he became worried when N.H. was not home the next morning. He called home until he reached her. She was “real upset and crying.”
Cooper did not testify at trial. Defense counsel objected to the admission of two pieces of evidence which are relevant to the issues on appeal: a knife and a tattoo book. Defense counsel neither objected to the proposed instructions nor requested additional ones.
The Sufficiency of the Evidence
The State, to sustain a rape conviction under K.S.A. 21-3502, must prove that (1) Cooper had sexual intercourse with N.H. and (2) sexual intercourse was committed without the consent of N.H. when she was overcome by force or fear.
Cooper asserts that the State’s case is based upon the uncorroborated and inconsistent testimony of N.H., the victim. Consequently, he relies on State v. Matlock, 233 Kan. 1, 3-4, 660 P.2d 945 (1983) (conviction of rape reversed because no rational factfinder could have believed the uncorroborated testimony of the prosecutrix).
Cooper applies the Matlock rationale to the facts in the case at bar and concludes that sexual intercourse between Cooper and N.H. was not proved beyond a reasonable doubt. Cooper focuses upon the medical testimony discussed above and observes that: “The only other evidence was the testimony of N.H., who gave two stories of the events leading up to the sexual assault which were totally contradictory.”
Cooper also takes issue with the element of the crime of rape which requires the victim to be overcome by force or fear. He states:
“Despite N.H.’s claim that she vigorously resisted Mr. Cooper’s alleged sexual assault, there was no medical evidence of an injury to her vaginal or anal openings which would be indicative of nonconsensual intercourse. Likewise, while N.H. claimed she was first knocked unconscious when something fell off the refrigerator and hit her on the head, no lumps or serious bruises were found on N.H.’s head, and no heavy objects were found on the kitchen floor. While N.H. allegedly sustained scratches and bruises and a broken fingernail, it is a difficult inference to make that after hours of struggle to save one’s life and honor only such minor injuries would be inflicted.”
Cooper urges us to follow the Matlock path and reverse the conviction. The State contends: “[Ajlthough N.H.’s testimony was somewhat inconsistent with what she told police immediately after the rape, she was distraught and incoherent. At the time of trial, N.H. had no recollection of the morning following the rape.” Additionally, the State argues that testimonial inconsistencies are to be weighed by the jury, not by this court. The State reasons that the victim in Matlock (the defendant’s stepdaughter) did not file a complaint until 15 months after the alleged rape occurred. The prosecutor’s case in Matlock consisted solely of the victim’s testimony. Consequently, the State argues, in the case at bar, that Matlock is distinguishable. We agree. N.H.’s testimony was corroborated by physical evidence, witness testimony, and Cooper’s own statements.
The evidence, when interpreted in the light most favorable to the prosecution, supports the conclusion that a rational factfinder could have found Cooper guilty beyond a reasonable doubt. The common-law rule that testimony of the prosecutrix alone can be sufficient to sustain a rape conviction without further corroboration as long as the evidence is clear and convincing and is not so incredible and improbable as to defy belief has not been modified. See Matlock, 233 Kan. at 3. The function of weighing the evidence and passing on credibility belongs to the jury, not to us. A verdict secured on substantial competent evidence will not be disturbed on appellate review. State v. Holt, 221 Kan. 696, 700-01, 561 P.2d 435 (1977).
Matlock does not control the case at bar.
The Knife and the Tattoo Book
Cooper relies on K.S.A. 60-445 (a judge may exclude evidence if the probative value is substantially outweighed by the risk that admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered).
Relevancy and materiality are matters within the sound discretion of the trial court. We will not disturb an evidentiary ruling unless there is a clear showing of abuse of discretion. State v. Abu-Isba, 235 Kan. 851, 857-58, 685 P.2d 856 (1984). Cooper carries the abuse of discretion burden. Discretion is abused only where no reasonable person would take the view adopted by the trial court. State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989).
When a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, the object should be admitted for such weight and effect as the jury sees fit to give it, unless it is clearly irrelevant. State v. Ji, 251 Kan. 3, 15, 832 P.2d 1176 (1992). Cooper argues that the jury was prejudiced by the admission of the knife found at Pottorff’s house. According to Cooper, the knife created a presumption that it was in his possession while the alleged rape occurred. Cooper reasons that the knife lacked probative value because it had never been linked to him by any eyewitness or by scientific evidence. Therefore, he asserts, its admission resulted in jury prejudice and reversible error.
N.H. had told the police the morning after the alleged rape that Cooper had threatened to kill her and that he had a knife. The knife did not belong to Pottorff. (He did not know to whom it belonged.)
The State argues that the knife was relevant to the element of rape which requires the victim to have been overcome by force or fear. At trial, the following exchange took place:
“[Defense Counsel]: Your Honor, I don’t see the relevance [of admitting the knife]. It’s not at all — I mean, in [N.H.’s] testimony she mentioned nothing about it, and I think it’s just another exhibit which basically says nothing about the case and it’s not relevant. It should not be admitted.
“[Prosecutor]: Your Honor, I believe Officer Stopka testified yesterday that in his conversation with Brenda Lake she had been threatened and there was a knife involved. This knife was found at the scene of the alleged assault, and it was not identified by the owner of the property; therefore, I think it is relevant.
“[Defense Counsel]: Also add, Your Honor, that the knife has not been linked to Mr. Cooper in any respect.
“THE COURT: I will admit it. Objection overruled.”
The characterization of the trial objection advanced by Cooper on appeal is incorrect. Cooper asserts that “[djefense counsel objected because the admission of the knife would cause prejudice which out weighed any probative value.” The objection at trial only concerned the relevance of the knife. The specific grounds for an objection must be given at trial to preserve an issue for appeal. K.S.A. 60-404. The court did not have an opportunity to rule on the question of prejudice. The knife was relevant. We find no abuse of discretion in admitting the knife.
Cooper claims that the admission of the tattoo drawing book prejudiced the jury. He contends the book was prejudicial because it showed samples of drawings of nude women, Nazi symbols, and satanic-type figures. He argues that the tattoo book had no evidentiary value to prove or disprove that the crime of rape had been committed by Cooper. The State counters by observing that Cooper objected to the book’s admission at trial based on relevance, not on prejudice. At trial, Cooper never claimed the book was prejudicial because some of the designs were violent or sexually explicit.
The tattoo book, the State contends, was not offered to prove Cooper raped N.H. In fact, the State argues, the tattoo book was relevant because it corroborated the testimony of N.H., Lake, and N.H’s husband regarding the events on the evening in question. We agree.
Based upon the objection at trial, the tattoo book admission issue is not properly before us on appeal. However, our discussion of the issue indicates Cooper has not shown abuse of discretion.
Involuntary Intoxication Instruction
K.S.A. 21-3208 states:
“(1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntary produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.”
Cooper emphasizes that Officer Novacek stated that Cooper claimed to have drunk a six-pack of beer and that Cooper felt like “someone had put something in his beer, perhaps a barbiturate or something, because he doesn’t remember beer affecting him that way. ” (Emphasis added.) Cooper contends that evidence that he may have unknowingly been drugged by another person is precisely the type of conduct which constitutes involuntary intoxication. See State v. Palacio, 221 Kan. 394, 559 P.2d 804 (1977).
Cooper did not request an involuntary intoxication instruction. The issue before us is whether the failure to give the instruction was clearly erroneous. He argues that clear error occurred. Cooper observes that it is plausible in light of his unusual conduct in calling the police that the jury may have concluded he was not capable of forming the general intent necessary to commit rape.
The State contends that the trial court had no duty to instruct on involuntary intoxication. “In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence.” State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987).
Cooper’s “morning after” surmise that “someone had put something in his beer, perhaps a barbiturate,” is not sufficient to support his newly asserted theory on appeal that his intoxication was involuntary. The evidence was overwhelming that Cooper reeked of alcohol the morning following the encounter with N.H. Cooper had been drinking alcohol all the previous evening. Before intoxication may be said to be “involuntary” a defendant must show an irresistible force, which is something much more than a strong urge or “compulsion” to drink. State v. Lilley, 231 Kan. 694, 697, 647 P.2d 1323 (1982). There was no proof that Cooper was compelled to drink by an irresistible force. The involuntary intoxication argument is only supported by the conjecture Cooper advances on appeal. Cooper has not provided a persuasive argument that the jury would have returned a different verdict had the instruction been given. The trial court’s failure to so instruct the jury was not clearly erroneous.
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|
The opinion of the court was delivered by
Holmes, C.J.:
Travis E. Phillips appeals from his conviction of one count of first-degree premeditated murder (K.S.A. 1992 Supp. 21-3401) and from his sentence of life imprisonment with a mandatory term of imprisonment of 40 years (K.S.A. 1992 Supp. 21-4624 et seq.). We affirm.
In the early evening of August 2, 1991, Allen Sims, Michelle Conlin, and the defendant were drinking beer and playing cards at the Conlin residence. The three went to Benton’s Cafe, a Salina tavern, about 10:30 or 11:00 p.m. and continued drinking. Sometime after 2:00 a.m., on the morning of August 3, Vicki Fillerman, Steve Asbom, and Rock Sullivan arrived at Benton’s Cafe and met up with the defendant. The defendant and Sullivan did not know each other, but the defendant was acquainted with Fillerman and Asborn. Thereafter, the defendant, Sullivan, Fillerman, and Asbom left to smoke some marijuana at a shed behind Benton’s Cafe. When Sullivan leaned over to retrieve something he had dropped, the defendant kicked Sullivan in the head, knocking him backwards onto the ground. The defendant continued to kick and stomp Sullivan until Sullivan was dead. Following a jury trial, the defendant was found guilty of first-degree premeditated murder.
Following the defendant’s conviction the district court held a separate sentencing proceeding, pursuant to K.S.A. 1992 Supp. 21-4624 et seq., to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years (commonly referred to as the “hard 40“). The jury found that he should and the defendant was sentenced pursuant to the hard 40 statutes. Additional facts will be developed as we consider the various issues raised by the defendant on appeal.
The first issue asserted on appeal is that the evidence was insufficient to support the defendant’s conviction of premeditated first-degree murder. In State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992), we set forth the standard of review when an appellate court considers a claim that the evidence is insufficient to support a criminal conviction. In Evans we held:
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
K.S.A. 1992 Supp. 21-3401 provides in pertinent part:
“(a) Murder in the first degree is premeditated murder ....
“(b) As used in this section, premeditated murder’ means the killing of a human being committed maliciously, willfully, deliberately and with premeditation.”
In a prosecution for premeditated first-degree murder, the law does not require that premeditation and deliberation be established by direct evidence; it may be established by circumstantial evidence. In State v. Buie, 223 Kan. 594, 575 P.2d 555 (1978), we discussed the evidence necessary to establish premeditation. This court stated:
“Proof of premeditation as an element in first-degree murder was considered by this court in two recent cases. (State v. Henson, 221 Kan. 635, 562 P.2d 51 [1977]; State v. Hamilton, [216 Kan. 559, 534 P.2d 226 (1975)]). Those two cases hold that the element of premeditation, essential to first-degree murder, is not to be inferred from use of a deadly weapon alone, but if, in addition, other circumstances are shown, such as lack of provocation, the defendant’s conduct before and after the killing or the dealing of lethal blows after the deceased was rendered helpless, the evidence may be sufficient to support an inference of deliberation and premeditation. Our problem in this case is to determine whether the evidence in the record before us is sufficient to establish a deliberate and premeditated killing. In a prosecution for murder the law does not presume or imply the existence of premeditation and deliberation from any state of circumstances, but it is not necessary that they be established directly. Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such case, the jury has the right to make the inference. (Craft v. State, 3 Kan. 450 [1866].)” 223 Kan. at 597.
The record in the present case discloses a number of factual circumstances from which the jury could have reasonably inferred the existence of deliberation and premeditation. There was no evidence whatsoever of provocation. The evidence indicated that the defendant and Sullivan did not know each other before that night, and there had been no problems between them before going to the shed. There was no evidence that the defendant received even the slightest wound during the fight. The record also reveals that the defendant dealt a number of lethal blows after Sullivan was rendered helpless. No cuts or marks were found on the defendant. Defendant’s first kick caused Sullivan to fall backward 6 to 12 inches. The defendant told officers that while Sullivan was lying on the ground, he kicked Sullivan 20 times and possibly more- At no time was Sullivan able to fight back or fend off the blows. The force of defendant’s blows caused Sullivan to suffer severe bruising, soft tissue hemorrhaging, a broken nose, broken teeth, and extensive hemorrhaging within his scalp. The initial kick by the defendant was described by Asbom as similar to a football player kicking a field goal. The defendant was 19 years old, stood 6 feet 2 inches tall and weighed 185 pounds, while Sullivan was approximately 5 feet 6 inches tall and weighed only 130 to 140 pounds. After the first kick knocked Sullivan on his back, he lay on the ground and attempted to protect his face and head with his arms, while the defendant continued kicking and stomping him. The defendant’s conduct before the killing also supports the jury’s finding of premeditation. Vicki Fillerman testified that the defendant told her he was going to kick Sullivan in the head. Steve Asbom testified the defendant told him on the way to the shed that he was going to “fuck somebody up.”
A careful review of the record discloses the evidence presented at trial was sufficient to allow a reasonable factfinder to conclude that the killing was done willfully, deliberately, maliciously, and with premeditation. The evidence was sufficient to support a verdict of murder in the first degree.
Defendant’s next issue on appeal is that the jury erred during the sentencing stage of the trial in finding that the aggravating circumstances outweighed the mitigating circumstances and therefore the imposition of the hard 40 sentence was not justified.
K.S.A. 1992 Supp. 21-4624 sets forth in detail the procedure to be followed in determining whether a hard 40 sentence shall be imposed. Generally, the statute requires a separate sentencing proceeding before the trial jury. K.S.A. 1992 Supp. 21-4624(3) specifically provides: “In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 1992 Supp. 21-4625 and amendments thereto and any mitigating circumstances.” K.S.A. 1992 Supp. 21-4625 sets forth eight aggravating circumstances that may be considered by the jury. In the present case the only aggravating circumstance submitted to the jury was 21-4625 (6) which provides: “The defendant committed the crime in an especially heinous, atrocious or cruel manner.”
K.S.A. 1992 Supp. 21-4626 sets forth the mitigating factors which may be considered and reads:
“Mitigating circumstances shall include, but are not limited to, the following:
(X) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(3) The victim was a participant in or consented to the defendant’s conduct.
(4) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
(5) The defendant acted under extreme distress or under the substantial domination of another person.
(6) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
(7) The age of the defendant at the time of the crime.
(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by the victim.”
The parties presented evidence and argument to the jury at the sentencing proceeding, and the jury was instructed by the trial court as provided by the hard 40 statutes. The trial court instructed the jury on the mitigating factors, pursuant to K.S.A. 1992 Supp. 21-4626, as follows:
“The defendant contends mitigating circumstances shown by the evidence presented at trial or during this proceeding include but are not limited to the following:
a. The young age of the defendant at the time of the crime;
b. The intoxication of the defendant at the time of the crime;
c. The immaturity of the defendant at the time of the crime;
d. The capacity of the defendant to appreciate the criminality of the defendant’s conduct or . to conform the defendant’s conduct to the requirements of law was substantially impaired;
e. The defendant cooperated with the police;
f. The defendant’s prior family history that would reasonably be expected to contribute to the defendant’s criminal conduct;
g. Any other factors which you, the jury, feel mitigate against the sentence of 40 years without the possibility of parole.”
The jury determined that the defendant “committed the crime in an especially heinous, atrocious or cruel manner,” K.S.A. 1992 Supp. 21-4625(6), and that this aggravating circumstance outweighed the mitigating circumstances presented by the defendant.
The jury stated in its sentencing verdict:
“The defendant committed the crime in an especially heinous, atrocious, and cruel manner.
“This crime was exceptional because the defendant didn’t know the victim and there was no known provocation for his actions.
“This crime was heinous because the defendant kicked and stomped the defenseless victim beyond recognition.
“This crime was cruel because of the defendant’s utter indifference and lack of compassion for his incapacitated victim.”
The defendant asserts that, while there is evidence to support the aggravating factor, the mitigating factors outweigh the evidence of the aggravating factor.
The defendant appears to argue that, because there was only one aggravating factor and six mitigating factors presented to the jury for its consideration, the sheer number of mitigating factors should outweigh the sole aggravating factor. K.S.A. 1992 Supp. 21-4624(5) provides in part:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 1992 Supp. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating cir cumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 1992 Supp. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law.”
K.S.A. 1992 Supp. 21-4628 requires a sentence of life imprisonment without eligibility for parole until the expiration of 40 years.
Defendant’s argument is not persuasive. The statutes do not impose a balancing test based upon the number of aggravating factors versus mitigating factors; one aggravating factor can be so compelling as to outweigh several mitigating factors. K.S.A. 1992 Supp. 21-4624(5) provides that the jury need only find beyond a reasonable doubt that one or more of the aggravating circumstances exist, and that the existence of such aggravating circumstance or circumstances is not outweighed by the mitigating circumstances.
K.S.A. 1992 Supp. 21-4627 provides for automatic review by the Supreme Court of all hard 40 sentences. Subsection (3) of the statute requires this court to make certain determinations and states in part:
“(3) With regard to the sentence, the court shall determine:
(b) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.”
A similar argument was presented in the recent case of State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992). In Bailey, this court reviewed the evidence presented in the case and held that the evidence of three aggravating factors found to be present by the jury supported the finding of aggravated circumstances, and that the mitigating circumstances were insufficient to outweigh the aggravating circumstances. 251 Kan. at 177-78. The defendant here seeks to distinguish that case by arguing that in Bailey there were three aggravating circumstances, whereas in the present case there is only one. This distinction, in light of the express language of K.S.A. 1992 Supp. 21-4624(5), is without merit. Moreover, Bailey noted that the court would have affirmed the sentence even if only one of the aggravating circumstances would have been found valid. 251 Kan. at 178.
The facts surrounding this brutal, senseless murder were set forth earlier in this opinion and need not be repeated in detail. We have examined the photographs of the victim which were admitted in evidence and they reveal as vicious and brutal a beating as we have ever seen. Defendant admits that he kicked or stomped Sullivan at least 20 times, at a time when Sullivan had no means of adequately defending himself. There was no motive for the killing. Defendant did not even know the victim and certainly there was no provocation for the attack. A review of all the evidence presented in this case supports the jury’s finding of an aggravating circumstance and supports the jury’s determination that any mitigating circumstances were insufficient to outweigh the aggravating factor.
The next issue asserted by the defendant is that his Sixth Amendment right to an impartial jury was violated by the admission of evidence of the defendant’s lack of remorse.
Prior to trial the court heard arguments on a motion in limine filed by the defendant seeking to exclude at trial any reference to defendant’s lack of remorse after the killing. Defense counsel argued that any evidence regarding the defendant’s lack of remorse should be excluded because there existed the chance that the evidence would be improperly considered by the jury at the sentencing stage. Defense counsel argued that lack of remorse is not one of the eight aggravating factors that the jury is allowed to consider pursuant to K.S.A. 1992 Supp. 21-4625. The trial court denied defense counsel’s motion in limine and reasoned that evidence of defendant’s lack of remorse was relevant to show defendant’s state of mind prior to and during the murder, namely, whether the killing was done with malice, an element necessary to prove premeditated first-degree murder.
At trial, the prosecutor questioned Detective Gerald Shaft about statements the defendant made to him about the murder. Defense counsel timely objected to the questioning and repeated the reasoning he had invoked at the hearing on the motion in limine. The trial court overruled the objection. Detective Shaft then testified that, when he asked the defendant why he was upset that he had killed Sullivan, the defendant “said that he was upset because he was in more trouble with the police.”
Later in the trial, the prosecutor questioned Detective Mike Marshall. Detective Marshall testified that the defendant “said that he was upset because he thought that he was going to get in trouble again by the police department.” Defense counsel did not object to this testimony.
In closing arguments, the prosecution argued that defendant’s statements to the detectives indicated lack of remorse. Defense counsel did not object to this argument.
“ ‘When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.’ ” State v. Hall, 246 Kan. 728, 739, 793 P.2d 737 (1990) (quoting Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 [1985]). Although defense counsel timely objected to the testimony of Detective Shaft, he made no objection during the testimony of Detective Marshall, nor did he assert any objection during the prosecutor’s remarks in closing arguments. The objection defense counsel made to the questioning of Detective Shaft was not a continuing objection. Defendant has failed to preserve this issue for appeal, at least as to the testimony of Detective Marshall and counsel’s closing arguments.
In addition, we have carefully considered the record on appeal, and even if the testimony had been objected to we would conclude that there was no abuse of discretion by the trial court in admitting the testimony of the detectives. There has been no showing that the evidence which was admitted at trial, as a part of the State’s case in proving the elements of the crime charged, was improperly considered by the jury during the sentencing proceedings. We conclude the issue lacks merit.
As his next issue, the defendant asserts that the aggravating factor set forth in K.S.A. 1992 Supp. 21-4625(6) is unconstitutionally vague. The statute reads:
“The defendant committed the crime in an especially heinous, atrocious or cruel manner.”
At the sentencing proceeding, the jury was provided with the following instruction explaining this aggravating factor:
“An especially heinous, atrocious or cruel homicide is one which is accompanied by such additional acts as to set the premeditated murder apart from the norm of premeditated murders.
“In determining whether the State has met its burden to prove beyond a reasonable doubt the existence of the alleged aggravating circumstance, you are instructed that the following words have the following meanings:
‘Especially’ means exceptional.
‘Heinous’ means extremely wicked or shockingly evil.
‘Atrocious’ means outrageously wicked and vile.
‘Cruel’ means designed to inflict a high degree of pain; or utter indifference to, or enjoyment of, the suffering of others; or pitiless.”
This court has recently considered the question whether the aggravating factor found in K.S.A. 1992 Supp. 21-4625(6) is unconstitutionally vague. In State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992), we held a similar instruction to the one given in this case was sufficient and that K.S.A. 1992 Supp. 21-4625(6), when read in conjunction with the instruction given, was not unconstitutionally vague. The instruction approved in Bailey was based upon an instruction approved by the Oklahoma Court of Criminal Appeals in Foster v. State, 779 P.2d 591 (Okla. Crim. 1989). In Foster an identical aggravating factor was attacked as being unconstitutionally vague based upon Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988), wherein similar statutory language was considered in a death penalty case. Defendant asserts that in Bailey we failed to consider additional wording in the Foster instruction which was not included in the Bailey instruction, and therefore our decision in Bailey is fatally flawed.
While counsel for defendant is correct in his assertion that we did not include the complete instruction from Foster in our discussion in Bailey we conclude that, under the procedural facts here, the issue is not properly before the court in this appeal. The trial court reviewed the proposed instruction at length with counsel and defendant affirmatively approved the instruction as given. In the recent case of State v. Deavers, 252 Kan. 149, Syl. ¶ 4, 843 P.2d 695 (1992), we again stated the familiar rule when we held:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.”
After reviewing the entire record we cannot conclude that there “is a real possibility the jury would have returned a different verdict” on the issue of the hard 40 sentence even if the additional instruction from Foster, asserted now for the first time, had been given. Bailey was recently followed in State v. Walker, 252 Kan. 279, 845 P.2d 1 (1993).
There is another compelling reason why the issue lacks merit or further review. The instruction given, and now contended to be insufficient, is the identical instruction requested by the defendant at trial. “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989); State v. Salton, 238 Kan. 835, Syl. ¶ 1, 715 P.2d 412 (1986). Even if we assume that Bailey’s reliance bn Foster may merit reconsideration by this court, the issue is not properly before the court in this appeal. This issue' of the defendant lacks merit.
Defendant’s final issue on appeal is that the trial court committed error in failing to allow defense counsel to voir dire the jury prior to the penalty phase of the trial to ascertain whether the jurors remained impartial after viewing the trial evidence. It is the defendant’s contention that a second voir dire is the only way to guarantee the defendant a fair trial by an impartial jury.
K.S.A. 1992 Supp. 21-4624(2) provides in pertinent part:
“Except as provided in K.S.A. 1992 Supp. 21-4622 and 21-4623 and amendments thereto, upon conviction or adjudication of guilt of a defendant of murder in the first degree based upon the finding of premeditated murder, the court upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a mandatory term of imprisonment of 40 years shall be imposed. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such special jury.”
This court recently considered the same issue in State v. Bailey, 251 Kan. 156. There, the defendant argued a second voir dire was authorized by 21-4624(2). After quoting the statute; this court stated:
“The statute clearly contemplates that sentencing proceedings shall be before the trial jury with alternate jurors being substituted when necessary. It is only when this is not possible that a new jury is impaneled. Jury selection procedures, including voir dire, come into play only if a new jury is to be impaneled.
“In the case before us, a new jury was not impaneled. The trial jury heard the sentencing proceeding. We find this issue to be without merit.” 251 Kan. at 169-70.
In short, Bailey held that where the trial jury serves as the jury in the sentencing proceeding, K.S.A. 1992 Supp. 21-4624(2) does not authorize a second voir dire following conviction and prior to the sentencing proceeding.
The two cases relied upon by defendant, Stroud v. United States, 251 U.S. 15, 64 L. Ed. 2d 103, 40 S. Ct. 50 (1919), reh. denied 251 U.S. 380 (1920), and Crawford v. Bounds, 395 F.2d 297 (4th Cir. 1968), do not support defendant’s contention that a second voir dire was. required. The voir dire at issue in those cases occurred before trial; neither case involved the issue whether the defendant was entitled to a second voir dire of the jury before sentencing.
In the present case, the defendant had an opportunity for full voir dire of all prospective jurors during selection of the trial jury. No special jury was ever impaneled. Under such circumstance, defendant’s right to a fair trial by an impartial jury has not been infringed upon. Defendant’s contention is without merit.
The judgment and sentence are affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The amount of the plaintiff’s recovery in this case in the court below was, as will be seen from the verdict, the special findings and the judgment of the.court below, the amount of the depreciation in value of the plaintiff’s land caused by the permanent taking and appropriation by the rail road company, for railroad purposes, of a portion of such land; and nothing was recovered for the value of the land actually taken, or for any trespasses or other wrongs of a temporary character committed upon the land. The judgment was for $1,500, which was intended to be compensation only for the depreciation in value of the plaintiff’s land caused by the construction and operation of the railroad. The first alleged error is as follows:
“The court erred in permitting the plaintiff to amend her petition by changing her cause of action from a trespass, and substituting therefor a cause of action for compensation for the taking and appropriation of a strip of land.”
What the plaintiff’s original cause or causes of action was or were, we cannot tell, for no copy of her original petition is contained in the record brought to this court. Probably, however, from a report of the case as it was tried upon the original petition, and as found in 36 Kas. 45, et seq., and also as indicated by a motion of the plaintiff in error, defendant below, filed in the district court after the case was returned from the supreme court to that court and now found in the record, it might be inferred that such original petition contained allegations sufficient to authorize a recovery for damages resulting from either a permanent taking and appropriation of a portion of the plaintiff’s land or for trespasses committed thereon. A portion of the original petition is contained in 36 Kas. 46, 47; and the judge of this court, in delivering the opinion of the court, used the following among other language with respect to such original petition:
“She (the defendant in error, plaintiff below) now says that she elected to bring her action for a permanent appropriation and injury, and tried the case upon that theory; and probably the allegations of the petition may be regarded as sufficient to accomplish that purpose.” (36 Kas. 49.)
The said motion reads as follows:
“Comes now the defendant, and by leave of the court moves the court to require the plaintiff to amend her petition filed in the said cause and make the same more definite and certain in the following respects, to wit: To show the nature of her action, by alleging whether the same is for a permanent appropriation of the land described in said petition or for trespass thereon.”
The defendant in error, plaihtiff below, in response to this motion, filed an amended petition, stating a cause of action, possibly both for permanently taking and appropriating a portion of her lánd for railroad purposes, and also for trespasses thereon, though it is not clear that the petition stated a cause of action for a permanent taking and appropriation of a portion of the plaintiff’s land. Afterward, the plaintiff, with leave of the court, filed a second amended petition, the one now in question, stating a cause of action for a permanent taking and appropriation of a portion of her land, and also causes of action for trespasses upon such land.
We cannot say that the court below erred in permitting the plaintiff to file her second amended petition. Probably all the petitions filed by her stated substantially the same facts, and probably no one of them as to the facts stated was a great departure from the preceding one or ones; and it is the facts stated which constitute the cause of action. A prayer for relief never constitutes a part of the cause of action. Under the allegations of the original petition, the plaintiff probably had a right to prove a permanent appropriation by the railroad company of a portion of her land, and to recover damages for the permanent appropriation thereof; and the original trial was conducted upon that theory, as is shown in 36 Kas. 48, et seq. Under the allegations of the second petition, which was the first amended petition, it is more questionable. The facts stated are probably sufficient, but the prayer for relief is indefinite. Under the allegations of the third petition, which was the second amended petition, and the one now in dispute, there can nQ Under all the facts and circumstances of this case, we cannot say that the court below committed any error in permitting the aforesaid amendment.
The next alleged error is as follows:
“ The plaintiff cannot recover compensation for a permanent appropriation, because, first, the railroad company does not and has not occupied with its tracks any land belonging to plaintiff; second, because, before the. filing of the amended petition, the land was condemned by the city as a street, and the occupation of the street by the railroad company was legalized by ordinance.”
It is true that the railroad tracks do not occupy any portion of the plaintiff’s land, but these tracks were constructed upon an embankment which extends over and upon the plaintiff’s premises, and occupies a portion thereof of about 8 feet in width by 450 feet in length; and if the railroad is to be considered a permanent thing, which undoubtedly it is, then the use of this strip of the- plaintiff’s land by the railroad company by occupying it for embankment purposes must also, in the nature of things, be considered as a permanent use thereof, and as a permanent taking and appropriation thereof. There are some facts connected with this case which ought to have been shown, but which are not shown, or at best are not definitely shown. It would seem, however, from the pleadings, the evidence, and the findings of the jury, that the principal facts are substantially as follows: The land now in question belonged originally to A. J. Greenway. In 1872, he sold and intended to convey it to the plaintiff, Mrs. Feehheimer, but through a mutual mistake of the parties in describing the land in the deed of conveyance it was not conveyed. Mrs. Fechheimer, however, took the actual possession of the land and continued to hold the same until the railroad company deprived her thereof, in August or September, 1883. The land was of course hers when the railroad company took the possession thereof, notwithstanding the mistake made in the deed of conveyance. How soon after the time when the railroad company took the possession of the land the plaintiff commenced this action is not shown. The action may have been commenced early in August, 1883. On August 6, 1883, proceedings for the condemnation of the land for the extension of Orme street, a public street in the city of Wichita, were commenced by such city, and the appraisers for that purpose filed their report on September 3, 1883.
It does not appear that Mrs. Fechheimer ever had any notice of these proceedings, or that she ever received any compensation under them for any portion of her land. There were also other irregularities in these proceedings which it is not necessary to mention. On October 4, 1883, Greenway, in order to correct his prior intended conveyance of the property to Mrs. Fechheimer, executed to her a quitclaim deed for the property. On December 26, 1887, the city of Wichita gave to the railroad company the privilege of occupying Orme street in such city. The railroad company, however, had already been occupying the plaintiff’s land for more than four years. On October 25, 1888, the plaintiff filed her second amended petition. Now, it is not shown that the extension or opening of Orme street was legal or valid as against the plaintiff; but still, if it was, the defendant did not obtain any right to occupy this extension until December 26, 1887. The strip taken by the railroad company was 8 feet wide by 450 feet long; and the plaintiff below claims that this was never any part of Orme street, even if Orme street was ever legally extended and opened. In her counsel’s brief it is said, among other things, as follows:
“It is not necessary to consider whether Orme street was opened by the city; for the company occupied a portion of the land of plaintiff beyond the limits of Orme street as finally opened.”
We cannot say that this claim of the plaintiff below, defendant in error, is not true; but even if it were not true, still, under the facts of this case, we could not say that Orme street was legally extended or opened, or, if legally extended and opened, that it was so extended and opened before the commencement of this action; and we cannot sustain this claim of the plaintiff in error.
It is further claimed, that the court below erred in the admission of evidence, and in giving certain instructions to the jury; but the claim of error in these respects is founded principally upon the further claim that the railroad company did not occupy any portion of the plaintiff’s land, which, as a fact, is not true. The railroad company did, as a fact, occupy a portion of the plaintiff’s land, and therefore these claims must be considered as untenable. This fact gives the plaintiff the right to recover damages as for a permanent taking and appropriation of a portion of her property. She may recover for the depreciation in the value of her property caused by the permanent taking and appropriation of a portion thereof.
It is further claimed by the plaintiff in error, under the title “misconduct of the jury,” that the court below erred in refusing to grant to the defendant below a new trial. The facts upon which this supposed “misconduct of the jury” is founded are as follows : The jury were permitted to view the premises where the railroad was constructed across the plaintiff’s land; and, while there and at the plaintiff’s residence, she hauded to the bailiff a box of cigars, and he distributed them to such of the jurors as chose to accept them. The detailed facts as shown by the evidence are as follows: Mrs. Fechheimer and her husband resided upon the land. He was a dealer in cigars. While the case was pending in the court below, and before the trial, there was an uncertainty as to when it would be called for trial, and Fechheimer asked the bailiff to inform him with respect thereto, and the bailiff agreed that he would do so, and Fechheimer agreed that he would give to the bailiff a box of cigars. While the bailiff was conducting the jury from the court-room to the premises, some of the jurors suggested that they ought to have cigars, and he informed them that he would furnish them with cigars when he reached the plaintiff’s house. Reaching the plaintiff’s house, and finding no male person about the premises, he requested Mrs. Fechheimer to give him the cigars, which she did. He then distributed a portion of the cigars, and handed the box back to her, and one or more of the jurors afterward took one or more of the remaining cigars from the box while she held it. He stated to the jurors at the time it was his treat. During all this time not one word was said about the case, and nothing further was said or done that might in the least have influenced the jury concerning the ease; and the testimony of the only jurors who testified in the case tends to show that the jury was not influenced by anything that was said or done at that time. No one at the time thought of there being any impropriety in the transaction, or of its having any influence upon the jury.
Now while the giving of cigars by a party to a jury or to any member thereof during the progress of a trial is always improper and generally reprehensible, yet, unless such conduct may have influenced the jury in some manner, it shonld not destroy their - verdict afterward rendered. In this case nearly all the evidence concerning this matter was in parol, and it was heard by the judge of the trial court, who heard all the testimony given during the whole progress of the case; and evidently, he did not believe that the transaction with reference to these cigars had any influence upon the verdict of the jury, and we think it should not have had any such influence; and therefore, with some hesitanancy and some reluctance, we must say that we cannot hold that the court below erred in overruling the defendant’s motion for a new trial founded upon this ground.
After a careful examination of this entire ease and of all the points presented by counsel for the plaintiff in error, we are of the opinion that no substantial error was committed by the court below, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Stra.ng, C.:
Action on a benefit certificate issued by the defendant company to Charles Swenson, whereby the said company agreed to pay to Nancy Swenson, wife of the assured, 75 per cent, of one full assessment collected from all the members of the association. Summons was first issued and directed to the superintendent of insurance, and by him returned. A second summons was issued and served on V. Brown, a person who in the record is designated both as local collector and as local secretary. A motion was made to set aside the service, upon the grounds, first, that the service upon the superintendent of insurance was unavailing, because the company had not complied with the insurance law of Kansas in relation to non-resident companies, and was not eligible to do business in the state of Kansas at the time of the service, and was not soliciting any new business in the state at that time; and, second, that service of summons upon V. Brown was not binding upon the company because he was not an agent of the company, and held no such relation to the company as justified service upon him. Upon the hearing of this motion a large amount of testimony was introduced, but after hearing the evidence and arguments of counsel the motion was overruled. An answer and reply were then filed, and the case went to trial before the court and a jury. A verdict was returned for the plaintiff for $2,215.44, the full amount named in the certificate, with interest. Motion for new trial was overruled.
May 7, 1887, a certificate for $1,000 was issued by the company to Swenson, the defendant in error being named as beneficiary therein. This certificate was afterward surrendered, and a new one issued in lieu of it for $2,000, under a provision in the by-laws of the company whereby a person holding a certificate may have it increased from $1,000 to $2,000. The company says that there are two methods of making such change: First, by a surrender of the existing certificate, and making a new application; second, by surrendering the existing certificate, and paying the fees and dues from the date of such certificate on the basis of a $2,000 certificate, in which case the increased certificate will bear the same date as the original certificate, giving the assured the benefit of the reserve fund from that date, and rendering him liable for all intermediate fees and assessments. It is claimed by the company that the increase from $1,000 to $2,000 in this case was secured under the latter method, and that the assured was liable for assessments 28 and 29, made June 14, 1887, and July 12 following, although the company does not claim the increased certificate was issued until July 9, 1887, aud the defendant in error claims it was not issued until about July 25, 1887, and not delivered to Swenson until about the last week in August, 1887.
One Collins, who had been the regular agent for the company at El Dorado, secured the increase of insurance for Swenson. At the time he took the old certificate from Swenson, July 5, 1887, to take it with him to the home office to have it increased, Swenson paid him $10 to pay on increased certificate. July 12, following, Collins wrote a letter to defen lant in error, saying he had the policy on her husband fixed for $2,000, but that she would have to send him $5 more that he had had to pay the company to get it, and promising to send the policy as soon as she sent the $5. * She sent the $5 the last of July, and did not receive the certificate until the last week in August, just before her husband’s death, which occurred September 7,
The plaintiff in error claims that the court erred in overruling its motion to set aside the service of summons. We think, however, that the service of summons upon V. Brown can be sustained under ¶ 4152, General Statutes of 1889. Brown was at least the agent of the company at El Dorado for the purpose of representing it in making collections of dues and assessments from members of the company holding certificates therein, and receipting for the same. He signed receipts as local secretary; that is, he designated himself as local secretary of the plaintiff company. In his testimony he said he was collection agent for the company at El Dorado. In the notices of assessments sent out from the home office, he is referred to both as local secretary and as branch secretary cf the company. He also signed one of the papers in evidence as secretary of the local board. Mr. Halbert, secretary of the company, in his testimony on the trial, referred to Brown both as local collector and as local secretary of the company. Blank receipts were sent from the home office of the company to Brown, to be countersigned by him, as local or branch secretary, and delivered to members on payment of their assessments. And Brown was the only person in Butler county, where the case was tried, in any way authorized to represent the company. The company says it was not taking, at the date of service, and had not been for a long time, any new memberships in Kansas, and that it had no agent for that purpose in the state. However, it was still assessing members in the state and collecting the assessments here, and to that extent doing business here. We do not think it could do any business here through an agency for that purpose, even the settlement of their old business, without at the same time being here for the purpose of service. If the company thought it proper and to its interest to have a local secretary or secretary of a local branch of said company here to do business for it, even to the extent of collecting and receipting assessments and forwarding them to the home office, we think, in the absence of any other officer or agent of the company upon whom service could be had in the county, that service upon him is good under our statute.
The plaintiff contends that the case should be reversed because the membership of the deceased had lapsed for nonpayment of assessments before he died. A provision of the charter, and also of the by-laws of the company, provides that if assessments are not paid within 30 days after notice thereof, the membership in said company shall lapse, and all rights under the certificate therein shall be forfeited. Assessment 28 was made June 14, 1887, and 29 was made July 12 following. The member died September 7 thereafter.
Plaintiff alleges that the only evidence in the case upon the subject shows that none of assessment 29 was ever paid, and that only one-half of assessment 28 was paid, and that, therefore, the verdict should have been for the defendant below. The full sum of money that the company was entitled founder both certificates at the death of the member was, for membership fees, $10; annual dues, $2; advance assessment on both certificates, $1.34; and $1.34 as payment on each of the assessments 28 and 29 — or $16.02. The record shows payments by Swenson and wife on said certificates as follows: As per receipt of Collins, signed as agent, May 20, 1887, $6.67; receipt of Halbert, countersigned by Brown, July 2, 1887, 67 cents; payment to Collins when he took the old certificate to Iowa to have it increased, July 5, $10; and subsequent payment to Collins, last of July, of $5, which, in his letter of July 12, from Green, Iowa, where he was at the timé acting as agent for the company, he said he had had to pay to the company to get the certificate increased; in all, $22.34 — $6.32 more than the company was entitled to. These figures show that, instead of the member being delinquent at the time of his death on assessments 28 and 29, he had not only paid in full all fees, dues, and assessments, but had paid in advance, and had paid $6.32 more than the company was entitled to at the date of his death, and for which he was entitled to credit on the company’s books. The company does not dispute any of these payments, but seeks to dispose of those made to Collins by saying he was not its agent, and had not been for more than a year at the time he solicited Swenson to become a member of plaintiff company by taking out a benefit certificate therein. Yet the company accepted the application for the $1,000 certificate, together with the fees, dues, and advance assessments, and issued the certificate. Afterward, at the request of Collins, and upon payment by him of $1.67, which Mr. Halbert, secretary of the company, says in his evidence was all that was required to be paid to secure the increased certificate, it issued the increased certificate and accepted the surrender of the original.
The company seems to have been willing to recognize this man Collins as its representative when securing business which it accepted, but wanted to repudiate his acts in receiving payment of fees, dues and assessments on such business. This will not do. When it accepted applications solicited by Collins and issued certificates thereon, it thereby ratified and was bound not only by his act in soliciting the business, but by his act in receiving the money paid him by the applicant thereon for fees, dues, and assessments. At the time Collins received the surrender of the $1,000 certificate from Swenson for the purpose of having it increased to $2,000 he also received from him $10 to pay fees, dues and assessments thereon. And when he turned the $1,000 certificate over to the company and requested it to issue the increased certificate he had Swenson’s $10 in his pocket. The company accepted the surrender of the old certificate, and issued the new one for the increased amount. The $10 of Swenson’s money at that time in the possession of Collins was sufficient, with the $6.67 paid when the first certificate was obtained, to pay all fees, dues and assessments on both certificates, incluiing assessments 28 and 29. We hold that, in accepting the surrender of the first certificate and issuing the one for the increased amount, it not only ratified Collins’s act in so soliciting the increased insurance, but also his act in receiving payment from Swenson for all fees, dues, and assessments. And it makes no difference that Collins did not pay all the money over to the company at the time he turned over the old certificate and requested the issuance of the increased one.
After surrendering the $1,000 certificate to the company, Collins immediately commenced work, as the admitted agent of the company, at Green, Iowa, where he was representing the company when he wrote the letter on the 12th of July, demanding of Mrs. Swenson $5 more, that he said in his letter he had had to pay the company to secure the increased certificate, and where he was still representing the company the last of July or first of August, when he received the $5 demanded, and closed up the transaction by sending to Swenson the increased certificate. There can be no question about the company’s liability so far as this payment is concerned, because it admits Collins was its agent at that time. We think the company is bound by all the payments made to Collins. This being true, the member at the. time of his death was not delinquent, and the company was liable on the certificate. It follows, from the view this court takes of the relation Collins sustained to the company in connection with the certificate sued on, that it is not true that all the evidence in the record on the subject of payment of assessments 28 and 29 shows that they were never paid, but that on the contrary there is plenty of evidence showing that they were paid, and that therefore the case should not be reversed for the reason given in the second assignment of error.
The plaintiff also claims that the case should be reversed because, as it says, the jury ignored the instruction of the court as to the burden of the issues and the measure of damages. Plaintiff says the court instructed the jury that, to entitle the plaintiff to a verdict —
“She must prove by a preponderance of the evidence all of the material allegations of her petition, including the amount, if anything, she may be entitled to recover, and the measure of damages, if you find for her, is the proceeds of one full assessment that you may find from the evidence, collected from all members of the association up to the date of the death of said Charles Swenson.”
It is said that such instruction was the law of the case so far as the jury were concerned; and, unless there was evidence showing how much could be collected on one full assessment, the jury should have brought in a verdict for the plaintiff for nominal damages only, even though they found the other issues in favor of the defendant in error. It is true that the instructions of the court are, to the jury trying the case, the law of the case. But where the trial court instructs the jury in relation to a question that is not at issue in the case, and the jury fail to regard it, such error is not material, because the instructions of the court should be confined to the questions at issue in the case. In this case the amount to be recovered by the plaintiff below was never at issue in the case. There is nothing in the pleadings that raises the question, and on the trial no evidence was offered on the subject except that which appears in the certificate sued on. The case was not tried on the theory that some amount might be due the plaintiff below from the company, but on the theory that nothing was due from the company, because the membership had lapsed during the life-time of the deceased, and all rights under the certificate were forfeited before his death. The plaintiff below, under the pleadings, claimed the full amount of the certificate, while the defendant below denied any liability thereon, and that was the only issue tried by the jury. The evidence shows there never was any assessment to pay this loss. The instruction of the court to the jury touching the amount to be recovered, or the measure of damages, was wholly uncalled for and should not have been given, but, so far as this plaintiff is concerned, the instruction being in its favor, may be treated as immaterial, and the error of the jury in ignoring the instruction as immaterial.
But the plaintiff in error says there is nothing in the case to show how much the plaintiff below was entitled to recover. And we find nothing in the record to show except the certificate. The making and delivering of the certificate sued on was not denied by the company; if, therefore, the company wanted to show that there was any sum less than the full amount of said certificate due the plaintiff below, it should have offered evidence showing what the proceeds of an assessment were. The certificate being in evidence, the plaintiff could recover without proving demand on the company to make assessments, or showing that assessments were made, or the amount of an assessment, if made. (Protective Union v. Whitt, 36 Kas. 760.)
In the absence of any proof on the part of the company showing the amount of an assessment, the presumption in favor of the beneficiary was, that an assessment would pay the full amount named in the certificate.
Finding no error in the record, we 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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By the Court,
Kingman, J.
The defendant in error filed his petition in the District Court against the plaintiff in error, averring that he had made deposits with them as bankers, between the 19th of June 1858, and' the 23d of April 1859, of various sums, amounting in the aggregate to $12,792, with the agreement that he, Smith, was to have the privilege of drawing on them at any time to the full amount deposited, with the right at' any time to demand a settlement and withdraw whatever balance' was due him. That he had so drawn all the- amount except $1,228.12, which was still due him; also avering demand and refusal to pay the same.
The answer admits all the allegations of the petition except the amount deposited, and the balance due. It admits that there was an undrawn balance of $135.66, and. that on the 30th day of May 1859, che sheriff of Leavenworth County levied on said sum of money as the property of the plaintiff by virtue of an execution in which Lyman Scott was- plaintiff, and at the same time the sheriff took the money into possession.
In May 1862, a trial in the case at bar was had, and Smith recovered a verdict of $160.
During the progress of the trial the defendants having read a judgment with execution thereon in favor of Lyman Scott and against the piaintiff, Smith, and Harvey. Defendants also offered to read in evidence the sheriffs return, as follows: “ By virtue of the within writ of execution, I did on the 30th day of May 1859, levy on one hundred and thirty-five dollars and sixty-five cents in money; also a lot of merchandise as per inventory attached. Satisfied in full.” The Court sustained an objection to the reading of the sheriff’s return.
Defendants then offered to prove that the money mentioned in said return was the money owing from said plaintiff, and that defendants paid the same to the sheriff', he then holding the said execution which was in full force and unsatisfied, and that the sum so paid was applied in part liquidation of the judgment of Scott w. Smith, which the Court would not allow.
Defendants then moved the Court for leave to so amend their answer as to show the above facts which the Court refused. To these several rulings the defendants excepted, and seek to reverse the. judgment in this Court.
We do not feel justified in disturbing tlie judgment of the Court below. The answer of defendants shows the account between the parties; plainly showing in an hundred entries that the deposits were general, and leaving with Smith no right to any specific pieces of money; only a right to a specific amount. This also appears from the petition and is not controverted. Therefore there was no specific money in the hands of the defendants of which Smith was the owner and on which a levy could be made. {See Turner v. Fendall, 1 Cranch, 45). This being so, the Court under the pleadings did right in not allowing the sheriff’s return to be read. The proof subsequently offered, is open to the same objection. The defendants did not-bring themselves within the provisions of Sec. 475 of the Code, even if the amendment allowing such proof had been permitted. The amendment changed substantially and materially the defense, and therefore was properly rejected under Sec. 147 of the Code.
The judgment of the Court below is affirmed.
All the justices concurring. | [
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By the Oov/rt,
Bailey, J.-
The defendant, Roy, was indícte'd at the September tend, 1-863, Of the District Court for Donophan County, for1 the murder of one Abner Ryan. At the December term Of the same Court, he was tried, and the jury found a Verdict of manslaughter in the third degree, and assessed' the punishment at three years confinement to hard labor.
Motions were made for a new trial, and -for arrest of judgment, which Were overruled by the Court, and1 judgment rendered upon the verdict.
The bill of exceptions presents for the consideration of this Court two questions, to-wit:
1. Did the Court err in holding ¥m. Kirby a competent juror \
2. Did the Court err in holding that the defendant could be found guilty of manslaughter ?
Section 184 of the code'provides, that “ It shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue of any material fact to be tried; but if it appear that such opinion is founded only on rumor, and not such as to prejudice Or bias the mind of the juror, he may be sworn.”
Kirby stated upon his vovr dvre that he had heard' of the ease, but had not formed or expressed cm opvtlion as to the guilt or innocence of the defendant; that he resided about six miles from where the alleged' killing was committed; and that shortly after the occurrence, one Mrs. Benjamin gave him a detailed statement of the facts of the killing, which made such an impression on his mind that he could at that time detail said statement—-three months after it took place.
If the statement of the juror is to be accepted as true, be bad neither formed nor expressed an opinion upon the issue in this case. The only circumstance tending to disqualify him from serving, seems to be, that he had listened to a statement of alleged facts in regard to the homicide, from a certain woman, and that he remembered that statement. Does it follow that he was prejudiced or biased by the statement, because he remembered it ? We cannot think so, in the face of his positive statement upon oath that he had formed no opinion. It does not appear that Mrs. Benjamin had any connection whatever with the transaction, and her statements to Kirby must, we think, be considered as mere “ rumor.”
If no person were to be deemed a competent juror who had listened to statements more or less detailed from a woman, or had read such statements in a newspaper, we apprehend that it might frequently result in a complete failure of justice, from the extreme difficulty of finding jurors. This Court can not hold as a matter of law that a person summoned as a juror is disqualified to sit as juror in a criminal case from the mere fact that he has listened to statements from his neighbors purporting to be a detail of the occurrence, which is all that appears in this case. Authorities on this point are too numerous to leave any doubt of the competency of the juror.
Was it competent for the jury, under an indictment for murder, to return a valid verdict for manslaughter in the third degree ?
Section 108 of the Code of Criminal Procedure provides that in all other cases, (see See. 107) the defendant may be found guilty of an offense, the commission of which is necessarily included in that with which he is charged in the indictment.
By our statute, murder in the first degree is wilful, deliberate and premeditated killing a Jiumcm being. Murder in the second degree is killing a human being pur posely and maliciously, Avithout deliberation and premeditation. Manslaughter in the third degree, is defined to be the killing another in the heat of passion, without a design to effect death, by a dangerous weapon, &c. Crimes and Punishment Act, See. 13.
Manifestly the charge of murder would necessarily include the crime of manslaughter as-here defined;
The substantive offense in either case is the wrongful killing of a human being, and the- varying circumstances and concomitants attending the act determine whether the act amounts to murder in the first or second degree, or manslaughter in one of the four degrees defined by the statute.
• The indictment gives formal notice to the accused of the charge, against which he is required to defend himself, which in the case at bar was the killing of Abner Ryan, which act he is alleged to have done, unlawfully, wilfully, pui'posely and of his malice aforethought, by'assaulting him with a knife, and the jury under the instructions of the Court found him guilty of killing Ryan, in the. heat of passion, without a design to effect death, by a dangerous weapon, and that the killing was not justifiable.
The offense of Avhich the jury convicted him was clearly included in the indictment, and the verdict is well supported by it.
Appeal dismissed.
All the justices concurring. | [
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By the Court,
Kingman, <L
This' is a petition in error brought to reverse a judgment of the District Court of Douglas County.
The suit was brought by the defendant in error, Charles L. Thompson, to obtain a money judgment and a foreclosure of a mortgage given to secure the payment of a note given by T. H. Cierno to Hamilton G. Eant or order, and by Fant assigned to Thompson. This note and mortgage were dated March 9, 1858. Young was made a defendant as claiming some interest in the land.
Young answers setting up a subsequent mortgage by Clemo and wife of tbe premises to him, and a foreclosure sale and deed to bimself under such mortgage; and further, that the mortgage to himself was made in good faith for a valuable consideration, and without any notice of any pre-existing or prior lien or incumbrance on the mortgaged premises, but that the mortgage by Clemo to Fant was in the form of an absolute deed of conveyance, and that a defeasance was at the same time executed by Fant to Clemo to the effect that on the payment by Clemo to Fant of the money due on the note, that Fant should re-convey the premises to Clemo. That the absolute deed of conveyance from Clemo to Fant was duly recorded, b.ut that the defeasance was not recorded.
To the answer of the defendant Young, Thompson filed a general demurrer, setting up as a ground of objection that the answer did not state facts sufficient to constitute a defense to the plaintiff’s petition. This demurrer was sustained, but at a subsequent day of the term and before the trial the order sustaining the demurrer was so modified as to show that the Court only decided that the answer is insufficient to postpone the plaintiffs right in the mortgaged premises, and make it subject to the claim of the defendant Young. But the answer is allowed to stand as a statement of the interest of Young in the premises, as subsequent mortgagee.
The Court on the final hearing, gave judgment in favor of plaintiffs for the full amount claimed in his petition, and ordered the mortgaged premises to be sold and the proceeds arising from the sale to be applied in satisfaction of Thompson’s claim.
It is claimed that the Court below erred in sustaining the demurrer and in the assessment of the amount due from Clemo to Thompson. The ruling of the Court on the demurrer in the shape which was finally given to it, raises the question whether the recording of the deed without the defeasance was such a registration under the law as to give to defendant in error a prior lien on the premises. If it was, then the ruling of the Court though somewhat irregular, still was the application of the true principles of the law of the case, and we have no doubt on this point.
The deed from Clemo to Fant was absolute on its face, purported to convey the whole estate of Clemo to Fant. It was prior to that of Young and was duly recorded before Young obtained any interest in the land. It was constructive notice to all that Clemo had parted with his title to the land. Upon what principle then can Young complain that the estate is subject to redemption ? The deed seemed absolute, but when the whole transaction is developed it makes it a mortgage, and gives Young some further rights than he had before.
It gives him a possible chance to secure his debt, while without the defeasance there would be none. The recording of the defeasance was the duty of Clemo; he had it in his possession; it could not be recorded or controlled by Fant or his assignee. It protected only the rights of Clemo, not those of Fant. If when Young bought he believed it was an absolute deed he had no title to acquire from Clemo. If he knew it was a mortgage then he must yield to the acknowledged priority of Thompson’s lien. It is impossible to see how he could have been injured by the non-recording of the defeasance.
This question has been settled in Iowa in the case of Clemons vs. Elder, 12 Iowa, 274, holding the recording of the defeasance not necessary in a case exactly similar to this. The authorities cited turn upon the peculiar phraseology of the recording statutes different from those in force here when these instruments were executed.
This Court in the case of Dudley vs. Reynolds, has already passed upon the law involved in the second assignment of error. We see no cause for reversing the reasoning in that case, and do mot doubt its application ■ to the present one. In considering that case we bad the benefit of the argument of the learned counsel for the plaintiff in error in this cause. We think the Court below ruled correctly in the assessment of the amount due.
The decision of the Court below is affirmed.
Bailey J., concurring, Cobb C. J., having decided the cause in the Court below, declined to sit in the case. | [
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By the Court,
Kingman J.
This is an information in the nature of a quo-warmnto filed by the Attorney General of the State, upon the relation of John H. Watson, inquiring of the respondent, Nelson Cobb, by what authority he holds and exercises the office of Chief Justice of this State.
The facts are agreed upon, and are as follows:
Thomas Ewing, jr., was duly elected Chief Justice for six years, from January 29th, 1861, and having been commissioned and sworn in, entered upon the duties of his office.
James H. Lane, (a senator of the United States from the State of Kansas,) was on the-day of-, 1862, appointed by the Secretary of War, a Recruiting Commissioner.
On the-day of-, 1862, and more than thirty days prior to the general election of 1862, said Lane appointed Thomas Ewing, jr., an assistant recruiting commissioner, and said Ewing immediately and more than thirty days prior to such election, entered actively upon the work of raising recruits for the volunteer service of the United States.
The members of the 11th Regiment Kansas Yolunteers, prior to the 15th of September, held an election, and certain persons were voted for by the members of said regiment, and those persons receiving the highest number of votes for the respective offices, were declared elected. In this way, said regiment elected its company officers. Afterwards, the persons so claimed to be elected company officers, voted for a colonel, and Thomas Ewing, jr., received the highest number of votes for that office, and the per sons so elected company officers afterwards received commissions from the Governor of Kansas, according to their rank and grade. On the 35th of September, 1862, Lane, by letter of that date, appointed Ewing colonel of said regiment, and Judge Ewing immediately thereupon, entered upon the duties of the office of colonel .qf the 11th Regiment Kansas Volunteers. h’’
And the same day, Ewing, was by the mustering officer for the District of Kansas, upon said letter of appointment and the endorsements thereon, mustered into the service of the United States as colonel of said regiment, and at once entered upon the discharge of the duties of that office, and was recognized as colonel by the officers of the District of Kansas, and the army of the frontier.
Judge Ewing did not resign the office of Chief Justice, (unless the facts herein stated constitute a resignation,) until the 20th day of October, 1862, and on the 28th day of November, 1862, his written resignation was received by Gov. Robinson.
No commission as colonel was issued to Judge Ewing until Nov. 28, 1862, nor had he any authority to act as colonel other than his eTection as aforesaid, and his appointment by - Lane, and his being mustered into the United States service as colonel of the 11th Regiment of Kansas Volunteers.
On the 5th day of November, 1862, a letter was addressed to Col. Ewing by Edwin M. Stanton, Secretary of War, stating that Ewing had been by the President appointed colonel of the said 11th regiment, to rank as such from the 9th day of November, 1862.
At the general election in 1862, John EL Watson received more than a majority of all the votes cast for Chief Justice.
The Board of State Canvassers which assembled on the 22d day of December, 1862, did not canvass the votes for Chief Justice, but the State officers elected in 1862, who. by law compose the Board of Canvassers, did on the 24th of January with all the forms prescribed by the statute, canvass the votes and declare “Watson elected Chief Justice.
There was no proclamation in regard to an election for Chief Justice to be held on said 4th day of November, 1862.
On the 28th of December, 1862, Gov. Robinson appointed and commissioned Nelson Cobb as Chief Justice in due form of law, to fill the vacancy occasioned by the retirement of Judge Ewing. Afterwards Cobb qualified by taking the oath of office, has ever since and still is, acting as Chief Justice.
The commission issued to Judge Ewing as colonel as aforesaid, was dated November the 28th, by which he wras to rank as colonel as aforesaid, from Sept. 1st, 1862.
Upon this statement of facts, the relator claims,
1st. That more than thirty days prior to the general election in 1862, Mr. Ewing who was the Chief Justice, and whose term was unexpired, accepted and held an office under the authority of the United States, and that such acceptance and holding was under the constitution -of this State, a vacation of the office of Chief Justice.
2d. That a vacancy having thus occurred undérthe constitution and laws of this State, it should have been filled at the general election in 1862, and as the relator received a majority of all the votes cast at such election for Chief Justice, that therefore he is entitled to the office and to the interposition of this Court to oust the respondent.
The respondent holds the office by virtue of an appointment by the governor of the State, and claims
1st. That without regard to the time when the vacancy occurred there is no constitutional authority for holding an election to fill such vacancy,—that it could be filled only by appointment by the governor, and
2d. That the vacancy did not occur more than thirty days prior to the general election of 1862, and that there fore under any construction of the constitution, no election could be held for filling the office.
Although technically, this is-a proceeding between the State and the respondent, yet practically, under the provisions of our statute, it is instituted for the purpose of trying the right to this office between the relator and the respondent, and unless under the facts and the law, the relator can make good his title, then he is not.entitled to the judgment of this Court in his favor.
The record and the argument present two questions for consideration:
1st. Is there any constitutional and legal authority for filling a vacancy in a judicial office by election, and
2d. Did a vacancy occur in the office of Chief Justice more than thirty days prior to the general election in 1862.
If either of these propositions is answered in the negative, then the relator is not entitled to the office he claims.
If it should appear that there is-no sufficient authority for filling a vacancy in a judicial office by election, then any inquiry as to the time when. the vacancy occurred in this case, will be unnecessary. We will therefore first see what is the law for filling vacancies in judicial offices.
The constitution provides for the filling of its judicial offices by election, and that “ in case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” Seo. 11, Art. 3. The general principle is that the judiciary are elective. The exception made to meet possible necessities, is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election that occurs more than thirty days after the vacancy shall have happened. Thus showing that it was the intention to limit the exceptional method of selecting the judiciary so far as w’as consistent with a deliberate exercise of the mode of filling the office by the usual mode of election.
It is claimed that the term regular election means the election held at the proper time for filling the next regular term of the particular office vacant.
If this is the meaning of that phrase in that connection, then it is an end to this controversy, for then the right of the respondent to hold the office under the appointment of the governor until the expiration of the full term for which Mr. Ewing was elected can not be doubted.
The term regular election is used in the constitution in this instance only. The general election is defined by Sec. 2, Art. 4, as the annual fall- election, and it is the use of the word regular instead of general that has given rise to most of the difficulty on this point.
The constitution has provided that one class of its judiciary—that is, justices of the peace shall be elected at the township elections in March by declaring justices of the peace to be township officers. No definite time is fixed for the election of the other portions of the judiciary, but it may well be inferred that it was intended they should be elected at the general election at the same time as other district and State officers. This is the view taken by the Legislature, and' they have provided accordingly in the law.
To have used the word general in designating the election at which the gubernatorial appointment should expire, would have produced" confusion by making the appointee to the office of justice of the peace hold till the November election while his successor could only be elected at the March election. This inconvenience was avoided by using the word regular instead of general, which had received a definite meaning. The word regular means conformable to an established rule, law, or principle, and the exact literal signification of the phrase “ next regular election,” is the next election held conformable to established rule or law.
The constitution provides for two such elections in each year,—one in March and one in November,, Each of them are regulár elections because each is in conformity with the established rule laid down in the constitution. At the March election justices of the peace are to bo chosen; at the November election judges of the district and justices of the Supreme Court are to be chosen. So that the next regular election is the one next occurring at which the particular class of judicial officers is tó be chosen.
To give to the clause the construction claimed by the respondent, would be not only violently to change the whole structure of the section by making the word regular describe the term for which the officer was elected instead of the election at which the appointment .expires by limitation, but it makes all that part of the section after the words regular election, meaningless, for the words “ that shall occur more than thirty days after such vacancy shall have happened,” neither add to nor limit-the meaning of the clause should it receive the interpretation claimed.
It is one of the-fundamental canons of interpretation that if possible a law shall be so construed as to give to each part some meaning, and this' rule would be violated by giving the clause such a construction as would give no meaning to the latter part of it.
By giving however to the word regular its just meaning as above indicated, the last part of the clause has full and due weight, by extending the limitation not to the next regular election only, but to the one that shall occur more than thirty days after the vacancy shall have happened.
We think it plain that the -true meaning of this clause of the section is to limit the time for which the appointment of the governor is to run, which in the case before us is to the next general election, occurring more than thirty days after the happening of the vacancy.
In this we are happy to agree with the executive and legislative branches of tho government, each of which have acted on the same construction of .the clause we have given to it.
The constitution makes no positive provision for an election to lili a vacancy in a judicial office, but as we have seen, it is expressly limited to the time for which the governor can appoint. The mode of filling the vacancy then after the appointment expires, will be found by implication, or looked for in such legislation as may have been based on Section 19, Article 2d of the constitution, which gives the legislature power to provide for the filling of all vacancies not otherwise provided for in the constitution. J3y virtue of this power the Legislature has provided that such vacancies shall be filled at the proper time, by election. Seo. 39, page 500, Qomp. Laws.
This brings us to the second question.
Did a vacancy occur in the office of Chief Justice more than thirty days prior to the general election in 1862 ?
To determine this question requires an examination of the constitutional provisions aifecting the case. The last cifrase of Section 13, Article 3 of the constitution, is as follows:
“And such justices or judges shall receive no fees or perquisites, nor hold any other office, of profit or trust under the authority of the State or United States, during the term of office for which said justices and judges shall be elected, nor practice law in any of the courts of the State during their continuance in office.”
It is clear that it is not the intention of this provision to prescribe rules by which the existence of a vacancy in any of the judicial offices named is to be ascertained. Even after a removal from or resignation of office, the justices and judges named are still plainly and unequivocally bound by the constitutional inhibition until the expiration of the term for which they were elected. The disqualification attaches to the individual and not to the incumbent of the office. The object sought to be accomplished by this provision, is that our high judicial officers may be removed as far as possible from the temptation to use the power and influence of their positions and authority for their own advancement. To prevent their minds from being distracted from their legitimate duties by ambitious hopes and struggles for preferment, to raise them above those political and partisan contests so unbecoming the desired purity, impartiality and calmness of the judicial character. Its effect is to prevent the acceptance of any. other office by a judge or justice the term of whose judicial office has not expired, and to render such acceptance void. The entire scope and object of this provision are so widely different from those applicable to members of the .Legislature or to executive offices as to clearly show by a comparison. Section 5, Article 2, uses this language:
“ If any person after his election to the Legislature be elected or appointed to any office under the United States, his acceptance thereof shall vacate his seat.”
Section 10, Article 1, is as follows:
“No member of Congress or officer of the State or of the United States, shall hold the office of governor except as herein provided.”
One can not examine these several provisions without perceiving at once that the purpose of the judiciary clause is to prevent a vacancy by the acceptance, or holding of any other office during the term for which the incumbent was elected, while the purpose of the provision for, the Legislative and executive offices is to create a vacancy in case of their acceptance of certain specified classes of offices.
If the governor of the State while in office be elected as one of the justices of the Supreme Court, his acceptance of the latter position would vacate at once the former; but if one of the justices of the Supreme Court should be elected governor for a term, any part of which was included in the term for which he was elected justice, he would be held ineligible to the office of governor, and if he should intrude into the office, would be subject to ouster by judicial proceedings. In such a case in proceeding against such per son, the showing that he was elected to and was acting in that office would be no defence, because the constitution absolutely prohibits him from holding that office, and the attempted defense would be based upon a palpable violation of a fundamental law of the State.
His title .and right to the office of justice would not be directly affected by his acceptance of the office of governor. He would still remain in his judicial office because the acceptance of the other office would be'illegal, void and of no effect.
The ineligibility of the “justices and'judges” attaches to them as individuals, and not merely in office, and extends not only while they hold office, but during the term for which they are elected.
Nor is the principle changed when the office emanates from another authority. The constitutional inhibition remains the same. It is still the law which governs the courts of this State—an unchanging and unbending rule from which there is no.escape.
■ It is true that as a government the State of Kansas has no control over the eligibility or qualifications of officers of the United States. If one of the judges of the State accepts an office under the United States and that government permits him to perform its duties and receive its emoluments, it is a matter over which the tribunals of the State have no control; but when the legal question is properly presented, it becomes their duty to declare the law, and that law is not changed by the want of power to follow its violation into another jurisdiction. It still remains the fundamental law of this State, governing its courts and furnishing the rule for its guidance.
While we cannot interfere with the tenure of office which the United States may prescribe for its officers, it is clearly within our province to declare what effect the acceptance of such an office will have on the tenure of an officer of this State, and when that is declared by the constitution, courts Lave no other duty than to apply in cases properly before them.
Yiolation of law by an officer or misconduct in office do not of themselves work a vacation of office though they may be causes for removal.
Taking fees is prohibited to judges; yet the taking of a fee by a judge would not vacate his office, though it would be a good ground for his removal.
We think, therefore, that it is manifest that this constitutional provision does not provide for a vacancy or in anyway prescribe a rule for the ascertainment of one. Now, is there any other clause in the constitution bearing upon the question as it is presented ? And as it is only in that instrument that the tenure of the judicial office can be found, we reach the conclusion that the mere acceptance of an office under the United States does not of itself vacate the office of judge.
If, however, our reasoning oh 'this point should fail in convincing any mind, an inquiry into.the question of fact disclosed in the record, will lead to the same conclusion so far as the final disposition of this caseis- concerned. That is that under any view of the law, Judge Ewing had accepted no office under the United States previous to the 26th day of October, 1862.
Ilis resignation on that day shows that up to that time he considered himself as holding the office of chief justice, and as not having previously by any act of his resigned the office either by doing so expressly or by implication.
Did he in law hold an office under the United States ?
An office in this country can only be created by law.
A deputy recruiting commissioner under Janies H. Lane is not an officer known to or recognized by either State or national laws.
The appointment by Mr. Lane, “ recruiting commissioner,” of a colonel in the volunteer service of the United States, is without the shadow of warrant of law.
The regiment was not raised under the militia laws of this State,, and the pretended election of Judge Ewing by the company officers, was a proceeding not known to the law, and a mere nullity.
The effect of mustering Judge Ewing into the service of the United States, could not be to make him an officer of the United States. If so, it would be in the power of a mustering officer to create officers without the intervention of the President, or any other legally constituted appointing power.
It is apparent therefore, that none of the alleged facts from which it is claimed that Judge Ewing held the office of colonel, had any legal effect whatever.
An officer is defined as “ one who is lawfully invested with an office.”
Judge Ewing could not accept an office wffiich wnts not tendered to him by some- authority having the legal right to make such tender.
In contemplation of law he could not become an officer by his own acts or on his own motion. If he was an officer he was .legally entitled to hold and enjoy the office. Yet after the appointment and mustering in of Judge Ewing, and after he had entered upon the discharge of his military duties, if the President or Governor had exercised the power conferred upon them by law and appointed another man to the office of colonel of the 11th regiment, the person so holding the commission, would have been clearly entitled to the office.
The letter of the Secretary of War of the date of 5th November, 1862, notifying Judge Ewing that he had been appointed colonel to rank as such from the 9th day of October, is conclusive evidence of the fact that the President by no act of his had appointed him colonel prior to the 5th November, and of the further fact'that neither the President or Secretary of War intended to recognize him as colonel prior to the 9th day of October.
If ho was an officer prior to that time his appointment at that timé was a nullity.
We do not propose to inquire into the responsibilities and rights of a person exercising the duties of an office without sufficient authority. Such a discussion is foreign to the questions involved in this case and would be useless.
Sufficient is shown that up to a period less than thirty days prior to the general election in 1862, Judge Ewing did not rightfully and by virtue of any competent authority hold an office under the United States.
Wherefore judgment is given for the defendant in this case, and against the informant John H. Watson for costs*. | [
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By the Oourt,
Bailey, J.
In this action which was brought in the Court below to recover of the jilaintiffs in error the amount of a promissory note given as part of the consideration for ten acres of land adjacent to the City of Leavenworth; the principal reliance on the part of the defense, was an alleged mistake of the parties to tifié sale. The land actually conveyed being different from and of far less value than that showm to the plaintiffs in error before the purchase, and which they supposed they were purchasing.
The jury under the instructions of the Court, found, among other things:
1st. That Stille was mistakep.
2d. That John II. McDowell, the agont of the vendor, in making the sale to Stille, was mistaken, but that,
3d. Andrew J. Isacks, the vendor, was not mistaken.
The charge of the Court to the jury on this part of the case was as follows:
“ The main question, or the one about which there is the most controversy, is the question of mistake, and in regard to this question, I say to you, that before you can find that there was a mistake on the part of either of the parties, you must be satisfied of that fact beyond a reasonable doubt.”
The counsel for defendants, (now plaintiffs in error,) excepted to this charge and bring their petition in error to this Court.
It is well settled that mistakes of the kind alleged by plaintiffs in error may be corrected on sufficient proof; hence the only question that can arise upon this point is as to the suffici&ncy of the proof, and upon this point the authorities are well agreed, if not as to the precise language, yet as to the effect and substance of the rule.. In the case of Gillespie v. Moon, Chancellor Kent, after a full and careful review of the previous decisions, concludes by saying:
“ The cases all concur in the strictness and difficulty of the proof, but still they all admit it to be competent, and the only question is, “ Does it satisfy the mind of the Court ?” Gillespie v. Moon, 2 John. Chancery Cases, 585.
And in the subsequent case of Lyman v. the .IT. S. Insurance Co., the' learned Chancellor, says : “ The cases which treat of this head of equity jurisdiction, require the mistake to be made out in the most clear and decided manner, and to the entire satisfaction of the Court.” Id. 632. See also same oase II Johnson R. 313.
Such in effect and in language slightly varied, is the rule laid down in the most carefully considered cases under this head, and 't is obvious that the rule as given to the jury by the Court below is in terms different and considerably more stringent.
The language u.seil in the charge' of the Court can only be strictly applicable to cases arising under the criminal code, and has as yet no judicial sanction as applied to civil practice.
As the conclusion we have arrived at upon this point will involve the necessity of a new trial, we deem it proper to advert briefly to one other ruling of the judge who tried this cause, touching the offer to rescind the contract.
The Court charged “ that in order to constitute an offer to rescind the contract the defendant must at the time have tendered a deed, but that if he simply verbally offered to deed hack the lots without at the same time tendering such deed, it was not in law an offer to rescind.”
"We conceive the rule of law on this point to he, that the averment, of an offer to rescind would be established by proof that the opposite party had prevented or dispensed with a formal tender of a deed.
New trial granted.
All the justices concurring. | [
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By the Court,
Kingman, J.
Various issues were made up in this case, and a jury being waived were tried by the Court. The finding of the Court was general, to which the plaintiff in error excepted and brings the case to this Court for revision. There was no motion for a new trial, no exceptions to the proceedings other than the one to the finding of the Court. We do not think the case comes to us in such a manner as will authorize us to determine that the decision of the Court below was erroneous.
The Code provides, Sec. 291, that, “ upon the trial of questions of fact by the Court, it shall not be necessary for the Court to state its finding except generally for the plaintiff or defendant unless one of the parties request it with a view of excepting to the decision of the Court upon the questions of law involved in the trial, in which case the Court shall. state in writing the conclusions of fact found separately from the conclusions of law.”
This provision was necessary to meet the changes made by the Code as to the manner of trial and the mode of presenting the testimony in a case. When issues of fact and law are both settled by the same trier, it is absolutely indis pensable that the facts found should be separately stated in order that it may be made apparent whether there is a misapplication of the law to those facts.
It is only errors apparent upon the record, that this Court take cognizance of, and those are errors of law. We can not retry the case upon its merits. In this case if we should come to a conclusion that the evidence as we understand it and the proper applications of law, might bring us to a different conclusion from that of the Court below, it would be a retrial of the whole cause, not a review of alleged errors of law. In the former chancery practice this was a consistent course to pursue by appellate tribunals, because the evidence on which the chancellor acted was all reduced to writing, and the same facts in the same fullness of detail were presented to the revisory tribunal as were acted upon by the chancellor, but the Code authorizes oral testimony in all cases. If it were then to allow an appeal and re-trial of the cause upon the evidence as presented by a bill of exceptions, the Appellate Court would try the cause without the benefit of seeing the witness, of judging of his credibility by his intelligence or his manner, which might show to the Court below such- evident bias as greatly to weaken his testimony. If the Code allowed such a course the Appellate Court would be much more likely to commit error than to correct it. The Code is not open to this charge. The section we have quoted clearly points out the course that must he taken if either party desires to except to the decision of the Court upon a question of law. Sec. 10, Ohio State, 691.
The plaintiff in error not having done so in this, case, has not put his case in such a condition that we can determine whether an error of law has been committed or not, the decision of the Court below mugt be affirmed,
All the justices concurring. | [
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By the Oov/rt,
Cobb C. J".
Armstrong commenced his suit in chancery against Walker and several others, in the late District Court of the Second Judicial District of the Territory, before the enactment of the Code of Civil Procedure, praying an injunction to restrain the defendants from encroaching upon a ferry franchise claimed by him under an Act of the Legis. lature of the Territory of Kansas.
The cause was continued from time to time until after the Code took effect, and after that time an amended bill was filed, an answer thereto filed by Walker, to which Armstrong replied, and the case having been disposed of as to the other defendants, the issues between Armstrong and Walker were tried before the District Court of the first Judicial District of the State, sitting in Wyandotte County. A decree rendered pursuant to the prayer of the bill, perpetually enjoining Walker, which decree is brought here by petition in error for review.
The allegations of error in the petition are:
1st. That the facts set forth in the petition in the case-below, are not sufficient in law to maintain the action.
2d. That the finding of the Court was not sustained by sufficient evidence.
3d. • The Court erred in admitting parole testimony concerning the filing of the bond.
4th. The Court erred in admitting any testimony concerning the filing of the bond.
5th. The decision was contrary to the law of the land.
By Section 613 of the Code of Civil procedure of 1858, it is declared that the provisions of this Code do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment or decree in all respects as if it had not been adopted.
But the provisions of this Code shall apply after judg-ment, order, or decree heretofore or hereafter rendered to the proceedings to enforce, vacate, modify or reverse it, except as provided in Section 645. This cause must therefore be treated as a suit in Chancery and governed in the District Coui’t, as to pleadings and practice by the rules applicable to chancery suits in this Territory prior to the talcing effect of the Code.
Under these rules we will consider the errors alleged in the petition.
1st. Are the facts set forth in the petition (more properly the amended bill,) sufficient in law to maintain the suit?
The bill states in substance that Armstrong is owner in fee of the land on both sides the river at the point where he claims his ferry franchise. That the Legislature of the Territory of Kansas by a statute passed in the year 1855, granted him the exclusive right to keep a public ferry at said point for fifteen years, with a right of landing extending two miles from the mouth of the river. That he gave a bond duly approved of as in said Act required, and that the defendants claim and exercise the right of ferrying passengers within the limits of his franchise, and receive pay therefor, and are constantly interrupting his rights in said ferry.
"Without the alleged franchise the acts complained of in the bill would be mere acts of trespass upon the real estate of Armstrong, and no such danger of irreparable injury appears as to require the interference of the Court by injunction. See Ross v. Page, 6 Ohio, 116.
The right to such relief, therefore, rests upon the alleged franchise.
An injunction is the appropriate remedy to protect a party in the enjoyment of a ferry franchise against continuous encroachments. Such continuous encroachments constitute a private nuisance which courts of equity will ‘abate by injunction. Tbe jurisdiction rests on tbe firm and satisfactory ground of its necessity to av-pid a ruinous multiplicity of suits, and to give adequate protection to the plaintiff’s property in bis francbise. See Livingston v. Van Inger, 9 Johns., 507; Croton Turnpike Compamy v. Ryder et al., 1 J. Or Rep., 611; 3 Kent, 458.
But to be entitled to sucb remedy tbe plaintiff must bave perfected bis right by first filling all obligations imposed upon him by tbe Act granting the-franchise as conditions precedent to bis right of exclusive ferriage, and bave placed himself'in a condition-to furnish to tbe public tbe facilities which tbe franchise was designed to secure; for while it is doubtless true as argued by tbe counsel for the defendants in error, that a francbise can be avoided only by tbe sovereignty by which it was granted, it is equally true that no francbise exists until 'all sucb conditions precedent, either express or implied, bave been performed.
' In this case tbe bill of complaint shows a legislative grant of an exclusive ferry privilege without any express obligations imposed upon Armstrong tbe grantee. There is, however, an implied obligation imposed upon tbe gran-fee of a ferry francbise by bis acceptance of tbe grant, to furnish the necessary means of transit for travelers. His privileges are granted for tbe benefit of tbe traveling public, and until be is prepared to serve them be has acquired no right to prohibit others from doing so.
There is no allegation in this bill that the plaintiff below has prepared tbe means for transporting passengers and freight, and is offering his services to tbe public as ferryman, or in other words that be has established a ferry, and we think tbe bill defective in that respect. -
Counsel bave called tbe attention of tbe Court, to tbe Statute, under which tbe francbise is claimed containing a provision that Armstrong shall execute a bond conditioned that he will comply with all tbe conditions and provisions of tbe apt.
Section four of said act provided for the filing of such bond with the tribunal transacting county business, and its approval by them, and Section five provides that until such tribunal shall be organized, said Silas Armstrong, his heirs or assigns, may be allowed to proceed under tins act, by filing said bond with the Secretary of the Territory. See Laws of 1855, pp 195-6, Sections 4-5. Section five is equivalent, to an express declaration that Armstrong shall not proceed under the act till the bond is filed and admits of no doubt that such bond must be filed before he can have any exclusive right of ferriage by virtue of the act.
But these provisions are not included in the bill, and therefore in determining whether the bill is good in law cannot be considered. The question is the same as that which arises upon a general demurrer, and is to be determined by the language of the bill only. If the Statute given in evidence differs from the one stated in the bill, 'that faet does not show a defect in the bill but a variance between the pleading and proof.
The objection of the plaintiff' in error, that the bill does not" show that sections two, three and six have'been complied with by Armstrong may be answered in ’the same way. It does not appear that there are any such sections," and consequently the bill can not be bad in law for not showing compliance with them. And had the act in question been pleaded in extenso, we think it would not have been necessary to plead performance to Sections two, three and six farther than to show as above indicated, that he had established, and was running a ferry pursuant, to the act.
■The Statute having given to all persons aggrieved by a violation by Armstrong of any of the provisions of those Sections a right of action upon the bond- provided for in the fourth Section for damages', and the State having the right to avoid the franchise for the same cause, (See People v. Thompson, 21 Wend. 285,) such violation will not justify the running of a rival ferry, {See Colton v. Houston, 4 B. Monroe, 288,) nor deprive the complainant of his equitable remedy, to restrain the running of - such ferry. In a case of gross and continued violation of the duty imposed by the Statute, the Court might, perhaps, refuse the injunction, and leave the owner of the franchise to his remedy at law. Rut in such case the complainant having shown the vesting of his title to the franchise, such subsequent breach of duty would be matter of defense, to be pleaded and proved by the defendant. We think there is no defect of substance in the bill, except the one above mentioned.
That defect would have been fatal on demurrer, but the attention of the Court below does not appear to have been called to the defect; and proof of the matter so omitted in the pleading was given without objection, and a decree will not be reversed for a fault in pleading, not brought to the notice of the Court below, where it appears that the defect in pleading, is supplied in the proof. See New York Central Insurance Co., v. National Protection Insurance Co., 14 N. Y., 85 ; Belknap v. Sealey id. 145 ; 3 E. JD. Smith, 280.
We proceed therefore to inquire. Is the evidence sufficient to sustain the decree ?
The bill of exceptions purports to contain all the evidence given on the trial, but does not contain the private Statute under which Armstrong claims his franchise, nor show that any proof of the existence of .such Statute was given. The Court, probably regarded the case as governed by the Code, and took judicial notice of the Statute pursuant to Section 133, of that act. By the former common law and chancery practice and pleading, it was necessary to plead and prove a private Statute as fully as a contract, between individuals. But by Section one of Chapter sixty-eight, Page 342 of the laws of 1855, which íb applicable to this case, it is provided that printed Stat ute books of the Territory shall be evidence of the private acts, therein contained. This act, facilitates but does not dispense with the proof of private Statutes, and the one in-question should have been proved by the production of the Statute book in Court, and the bill of exception should have shown that it was so proved, and what it contained.
By the record then, it appears that the leading fact in the case, the passage of the Statute granting the franchise, is wholly without proof to sustain it. But the counsel on both sides have referred us to the Statute, and argued the cause on the assumption that the Court would take judicial notice of it, doubtless regarding the case as one governed by the Code.
Whether under these circumstances the Court should take notice of the existence of the Statute and give it the same effect as if proved in the Court below, and the proof incorporated in the record, or should govern itself by the record, the view taken of other questions renders it unnecessary to decide; and we waive the discussion of the point and proceed to consider the objection to the evidence for insufficiency raised by the counsel upon the argument.
Under the statute in question, we have already observed that the filing of the bond required by section four is a condition precedent to the vesting of the franchise in Armstrong, and it follows necessarily that to make out a case for an injunction, such filing must be proved. The only evidence on that subject was the testimony of Armstrong himself, who testified that he filed a bond with the County tribunal of Leavenworth County, and that .its amount was two thousand dollars, but he did not know what was the condition of the bond and gave no further information in regard to it.
There was no proof whatever that the bond was conditioned as required by the Act in question, and therein the proof was defective, and the decree on that point not sustained by sufficient evidence.
The plaintiff claims that Armstrong failed to prove title to the land on the north side of the river.
Armstrong proved that he,was in possession of a portion of the north bank of the river, having prepared a landing there, and was claiming under a deed from Brown and wife.
That was jprvtna facie evidence of title. But the question of title other than possession, does not arise here. We have already held that Armstrong can not succeed in this case by virtue of title to the landing, but must succeed if at all, by virtue of his legislative grant of a ferry franchise. There is nothing in that Act requiring him to own the landings, and while he is in possession of them, and therefore in condition to land his passengers, his title to the land, is matter of indifference both to the public and the plaintiff.
This much Upon the evidence in support of the claim of Armstrong.
Walker claims to have a ferry right derived from the Wyandotte Indians, and existing prior to the legislative grant to Armstrong, aud- therefore entitled to preference. Eor the purpose of settling the law .of the case as far as joracti cable, we will consider that claim as it appears in Walker’s answer and the evidence.
By the treaty between the United States and the Wyandottes made .January 31st, 1855, by which the Wyandotte Nation, ceded their lands in the forks of the Missouri and Kansas Rivers to tíre United States, to be divided and conveyed to the individual members of the tribe, it was agreed that. “ four acres at and adjoining the Wyandotte .ferry, .across and near the mouth of the Kansas River, shall also be reserved, and together with the rights of the Wyandottes.in said ferry, shall be sold to the highest'bidder among the Wyandotte people, and the proceeds of sale paid over to the Wyandottes. On the payment of the purchase money in full, a good and sufficient title to be secured and conveyed to the purchaser by patent from the United States.”
On the 15th September 1856, such sale was made to Walker, the plaintiff, and on the 16th September 1861, a patent was issued by the United States to him pursuant to the treaty.
What right in the ferry had the Wyandottes at the time of the treaty to be so transferred ?
They were then running a ferry from the land so conveyed (which lies below and contiguous to the landing of Arfnstrong,) across the river and landing on land now owned by Armstrong, but then owned by the United States.
They were the owners of the ferry landing used by them on the north side of the river, and of the boats and fixtures for running the ferry, but there is no evidence of any right in them to a landing on the south side unless the landing was the mouth of a public highway.
Without examining whether it was so—or the question raised by Armstrong’s counsel whether a ferry-boat may be landed at the mouth of a public highway without the consent of the owner of the soil—but for the purpose of the argument concede both these propositions to the plaintiff, and it will then appear that the Wyandottes had such right, but the same right that all other persons had to land there, and none other; and such right would continue until by the Legislature an exclusive right of ferrying at that point was granted to another, and his right perfected by performance on his part, and no longer. An exclusive ferry right prohibits competitors from landing their boats in the highway or upon their own soil within the limits covered by the franchise, as fully as elsewhere.
The Wyandottes then had no right of ferriage good against a franchise granted by the Legislature, and it is hardly necessary to say, that Walker could get by his purchase from them no greater rights than they had to sell.
And it is equally manifest that the United States acting in aid of the Wyandottes in transferring their property to a purchaser, and conveying in the clearest terms only “the rights of the Wyandottes in said ferry,” did not thereby convey to Walker any interest or easement in their oivn land, afterwards conveyed to Armstrong. Parole evidence of the filing of the bonds required by the ferry charter was inadmissible. The bond should have been produced, or a case made for giving secondary evidence of its contents. But the exception appearing upon the records is too general to be available. It does not show on what ground Walker objected to the reception of the evidence. It might be on the ground that it was not the best evidence, or it might be on other and untenable grounds.
Had this objection been placed on the ground that the bond was the best evidence, it might have been obviated by production of the bond andva decaree will not be reversed for an error which might have been obviated by making the proper objection in the Court below. See Merrill v. Leander et. al. 6 N. Y. 168; 1 Cow. 87.
The point made in the petition in error, that the Court erred in admitting any evidence concerning the filing of the bond, is of the same character. Had counsel stated when he made the objection as he now argues that the alligation of the bill in regard to filing the bond was insufficient, the Court might have allowed an amendment if it was deemed necessary.
We have already seen that the evidence given of the filing of the bond was insufficient, the decree must therefore be reversed with costs to the plaintiff, and the cause be remanded for the allowance of such amendment of pleadings as may be deemed proper and consistent with the laws of chancery practice in force when the suit was commenced and a new trial.
Order entered accordingly.
All the justices concurring. | [
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JBy the Court,
Crozier, O. J.
One Mary Miller brought a suit in replevin before John S. Lucklin, a justice of the peace, against George Reedy, the plaintiff in error, for the recovery of a sorrel mare. The writ' was served and the property delivered to Mrs. Miller, who executed a bond in the ordinary form, with Gift and Taught, the defendants in error, as her sureties. Mrs. Miller failed to prosecute her action, and judgment was rendered against her for one hundred dollars and costs; upon which judgment execution was issued and returned, “ no goods.” Suit was then brought by Eeedy before E. 0. Manning, a justice of the peace, against Mrs. Miller, Gift and Taught, upon the replevin bond. A very full bill of particulars was filed by Eeedy, setting out the foregoing facts. Mrs. Miller was not served. Gift and Taught filed a motion to dismiss, setting out,
1st. There was no judgment in the action of replevin, because the justice who pretended to render the judgment had not filed a bond ’ with a revenue stamp upon it, nor was there a revenue stamp upon his oath of office.
2d. The constable who served the writ was not a constable, having failed to file a bond and oath of office with revenue stamps thereon.
3d. No order of delivery was issued by the justice.
4th. The execution against Mrs. Miller was returned within thirty days.
5th. Mrs. M. had interest in property belonging to estate of her deceased husband.
6th. The action was not tried at the right time.
7th, No revenue stamp upon the certificate showing when the constable received the wilt.
This motion was sustained, the cause dismissed and judgment rendered against Eeedy for costs. Eeedy thereupon appealed to the District Court. He filed a petition, counting upon the bond and setting out the replevin, the execution of the bond, the judgment, execution and return of “ no goods ” of Mrs. Miller, and asking judgment against her and Gift and Taught, for one hundred dollars and interest, at ten per cent, from June 1st, 1863. This petition was filed Sept. 3d, 1863. On that day a summons was issued which was served on Gift and Taught by the Sheriff. On the 3d of October, Gift alid Taught filed an answer setting out the same matters contained in their motion before the justice to dismiss; and on the same day filed a motion to dismiss the appeal on ■ the grounds, 1st. There was no judgment below from which an appeal coiffd lie. 2d. The petition does not state facts sufficient to constitute a cause of action on appeal, and 3d. The transcript of the justice was defective in substance and form. Reedy, Oct. 15th, filed reply denying the allegations of the answer. At the succeeding term of the District Court the appeal Was dismissed and a judgment rendered against the plaintiff for costs, to which plaintiff excepted. This petition in error is brought to reverse that judgment.
"Was the judgment of Justice Manning such an one as could be appealed from %
The plaintiff, had filed a very full bill of particulars. The defendant’s motion set up many things which did not appear upon the face of the papers, any one of which if sufficient for a dismissal, was sufficient as a plea in bar, and could not properly be tried without proof, and if sustained by proof, would be a complete bar to another suit for the same cause of action.
We are bound to presume that the magistrate had sufficient proof to warrant the judgment he rendered. Such being the case, it must necessarily have been a trial upon the merits, no matter what it may have been called. It may have been regarded as á motion to dismiss, but it was in fact and effect a trial of the cause of action, and the judgment, although upon its face a judgment of dismissal, is a judgment upon the merits. It finally disposes of the cause of action set out in the bill of particulars, and would be a complete answer to another suit upon that cause of action.
The second ground for dismissal is equally untenable. The petition may not be a good one; and if it be not this would be no ground for dismissing an appeal. It might be a good ground for demurrer, that it did not state facts sufficient to constitute a cause of action, but such never could be a good ground for dismissing an appeal.
The way to obviate the third objection, if -it existed as a matter of fact, was by suggesting a diminution of the record of the justice, and ‘getting an order requiring the magistrate to send up a perfect record of his joroceedings.
Ve thinlc, therefore, that the Court erred in dismissing the appeal. But there is another view of the case which seems to have escaped the observation of Court and counsel. The judgment that was rendered seems to have been regarded as a final disposition of the case. "When the petition was filed, there was, if its allegations be true, a subj sisting right of action.on the bond of which the District Court had original jurisdiction. In legal effect an origin^ al suit had been brought upon that bond; the defendants were in Court by the service of a summons, and had answered, setting up new matter to which there was a reply, ~Was the order of dismissal intended to take this casé with it ? Undoubtedly so, as all parties seem to have regarded the dismissal, not as a dismissal of the appeal alone, but of the whole case. Notwithstanding the judgment, technically considered, the plaintiff had a right to proceed with the case made up by the pleadings. The dismissal of the appeal would not have prevented a judgment in his favor unless pleaded. It was not pleaded.
But the plaintiff has a right to the reversal of the judg•ment of dismissal on the ground that it imposed all the costs of the appeal upon him; and Sec. 526 of the Code as amended, gives us the power to do it.
Judgment reversed.
All the Justices concurring. | [
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By the Court,
Crozier, C. J.
The case in which the judgment sought to be reversed was rendered, was an action for the possession of specific real property. The possession of the defendant below was admitted, the title being the only matter in controversy. To maintain the action it was necessary for. the plaintiff below to show title in itself. ' In this class of cases the plaintiff must recover, if at all, upon a paramount title; and whatever may have been the title of the defendant in possession, unless the plaintiff could show a better one, it must fail in the proceeding.
What then, was the title of the plaintiff? • The Act of Congress of January 29th, 1861, admitting the State of Kansas into the Union, by a provision in the third section, granted to the State for the use of schools, sections sixteen and thirty-six in each township of public lands, except where they or either of them had been “ sold or otherwise disposed of.” The land in controversy in this case, being part of section thirty-six, -was by that provision vested in the State, unless before the passage of the act the land had been “ sold' or otherwise disposed of.” This phrase evidently refers to a sale, or other disposition of the lands by the United States. It was claimed by the defendant that the selection and occupancy of a town site which the agreed statement of facts shows were made before the survey of the lands, was, under the provisions of the joint resolution of March 3d, 1857, (Stat. at Large, Vol. 11, page 25J,) such a disposition thereof as was contemplated by the third section of the act of admission. This claim is clearly untenable. The agreed statement shows that the public sales of the body of lands in which the land in dispute is included were made in September 1859. The agreed statement shows also, that the defendant had acquired no title whatever from the United States in pursuance of the selection and occupancy of said lands as a town site, prior to that time. The selection and occupancy of the lands before the survey thereof, gave the occupant no rights whatever, unless that were followed by a purchase from the United States prior to the public sale of the body of lands in which they were included. There is no pretence that any attempt was made prior to September 1859, or at any other time to pre-empt or purchase the lands from the United States. It must necessarily follow that the selection and occupancy as a town site shown by the agreed statement of facts, would not have prevented the title from vesting in the State under the act of admission; and it would follow that the State might maintain this action if there were no other obstacle in the way. This brings us to the title acquired by the purchase from the Territory.
If the parties under whom the defendant claims acquired no title by the purchase from the Territory, the plaintiff ought to recover; but if that sale was legal,—if the Territory had the power to sell, then the defendant must succeed. It may have been very bad policy to sell that portion of section thirty-six, in township five, of range twenty, in which the lot in controversy is situate at the time the sale was made, for the sum of two dollars and fifty cents per acre. The history of the country shows that it was then worth much more than that price. It was a part of the site of the then second city in the Territory,—a city eligibly located geographically, and withal reasonably ambitious. Had the land been sold at public auction it would probably have brought at least four times the price fixed upon it. But these considerations can not affect the title of the purchaser if the Territory had the power to sell. . However much posterity may regret the imprudence of the then ruling powers, they must reconcile themselves to the consequences of Their legal acts.
The object of the act of May 30th, 1851, was to define the boundaries of, and establish municipal governments within the territories of Nebraska and Kansas. All the necessary machinery for such a government was provided, —a legislature to enact laws, courts to administer them, and an executive to execute them. In inaugurating, managing and perfecting their domestic polity, the people were omnipotent, except in so far as they were restrained by the ■ constitution and laws of the United States. They might lawfully provide for the protection of themselves and of their property. They could establish county, township, and city governments. They could regulate the alienation and acquisition of property. In short, the power of the Legislature extended to all rightful subjects of legislation consistent with the constitution of the United States, and the provisions • of the act organizing the Territory. This grant certainly included the power to establish schools. They are rightful subjects of legislation. The people who would inhabit the Territory would migrate, mainly, from States where schools had been established by law, and the very terms of the organizing act contemplate the establishment of “schools in the Territory.” In the argument, the power of the Legislature to establish schools was not questioned.
The power of establishing schools being conferred, and the law-giver expecting á disposition among the future inhabitants of the Territory to avail themselves of that power, it was eminently just' and proper that they should be aided in their efforts in 'that direction to the same extent that the people of the States had been aided. The power of Congress was ample, and 'had been exercised in many' instances. No • good reason can be given for aiding the educational interests of the people of a State, which with equal force will not apply to those of the people of a Territory. They are all citizens of the same nation, acknowledge the same sovereignty, and are parts of the same people. The fact that the gratuity must in one case be administered by the authorities of a State, and in the other by those of a Territory, is no good reason why the people who in both instances are the real benoficaries, should in the latter be left to their own undivided efforts.
Considering, then, the object to which these lands were to be applied, it could not be regarded as a strange proceeding on the part of Congress, that it had placed their management under the control of the territorial authorities. Did Congress do so ?
The thirty-fourth section of the Organic Act is in these words:
“ Sec. 34. When the lands in said Territory shall be surveyed under the direction of the government of the-United States, preparatory to bringing the same into market, sections number sixteen and thirty-six in each township shall be and the same are hereby reserved for the purpose of being applied to the use of schools in said Territory, and in the States and Territories to be hereafter erected out of the same.”
As has already been observed the objects of this act were, so far as the Territory of Kansas is concerned, the fixing of the boundaries thereof and establishing a government therein. It contains no provision for the sale or other disposition of the public lands therein. Another act upon that subject was passed at the same session. Section 5 of this latter act is substantially a copy of section 34 above quoted. It must be apparent that something more than a mere reservation from sale was contemplated by section 34; and upon its construction the rights of the parties must depend.
It is well settled that no particular words are necessary to constitute a grant, especially for public uses; and we are fully satisfied from the authorities that section 34 amounted to a grant of the lands therein described, to the people of the Territory, for the irse of schools,—a dedication—an appropriation thereof for that object. Chotard v. Pope, 12 Wheat., 590; Rutherford, v. Greene's heirs, 2 Wheah, 198; City of Cincinnati v. White's Lessee, 9 Peters, 240; New Orleans v. the United States, 10 Peters, 713; Trustees of Vincennes University v. the State of Indiana, 14 How., 268.
The object of the provision was to furnish the basis of a perpetual fund for the benefit of the people who should inhabit the country constituting the Territory, and they were authorized to make the lands available for the use of schools during the existence of the territorial government. The language is “for the purpose of being applied to the use of schools in said Territory How could they be applied to the use of schools “in said Territory” if the people were to have no control of them until a State should be erected and admitted into the Union ?
Having found that section 34 amounts to a grant, that the people of the Territory were the beneficiaries and that the lands might be made available during the territorial existence, what was the proper authority to administer the trust?
A sale of these lands or at least a portion of them must have been contemplated. In a sparsely settled country it could not have been reasonably expected that they could be leased. Lands being abundant and cheap, persons desiring to till the soil could easily procure the fee simple in broad acres upon which to expend their labors in the way of improvements. The only way of making the lands available was by their sale. To accomplish this, certain rules and regulations were necessary. - The manner of the sale, the form of conveyance, the officer to execute the same, the person to receive the purchase money must be pointed out. Who so competent to do these things as the people who were the beneficiaries, acting through their Legislature ? The fund being a common one, in the whole and each part of which, the people had a joint interest, that authority which extended over the whole people was the proper one to administer the trust. Practically there was no other authority to administer it.
The manner of making the lands available was entrusted to the discretion of the Legislature; and as there was no other manner of doing so than by their sale, that was the means adopted.
But it is objected that no title could pass under the sale ordered by the Legislature, because an illegal application of the proceeds was directed. The proceeds were, by the act of the Legislature applied to the use of schools in the township in which the lands sold might be situated, when the grant contemplated a common fund. This state of things would not defeat the title of the purchaser. He could take the legal title although not bound to see the purchase money properly applied. If the purchase money were properly applied by the trustee it might be that the lands would be subject to a. charge for the amount of the value thereof fixed by the Legislature, but the purchaser would have the title nevertheless.
"We think, therefore, that the defendant at the-time of the commencement of the suit in the Court below, had the legal title to'the lands in controversy, and was entitled to the possession thereof.
The judgment will be affirmed.
All the justices concurring. ’ | [
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By the Court,
Kingman, J.
On the 23d day of January, 1860, Luther M. Carter, the defendant in error, instituted suit in Shawnee County against the plaintiffs in error, on nineteen separate bonds amounting in the aggregate to $2,913, of which bonds amounting to $171.00 were dated the 6th day of October, 1856, and bonds amounting to $1,071.00 were dated the 27th day of November, 1856.
These bonds were each signed by William O. Yager, Probate Judge, E. Hoogland, County Commissioner, and Duke W. Hunter, Superintendent of Public Buildings, and sealed and delivered in presence of the Clerk of the Board of Commissioners of Shawnee County, and although made payable at different times, each bears interest from date at the rate of ten per cent, per annum.
These bonds professed to bind the County of Shawnee for their payment. They were given in fulfillment of an agreement made on the 6th day of October, 1855, between the defendant in error, and Duke W. Hunter, Superintendent of Public Buildings for Shawnee County, for furnishing materials and finishing the Court House in Tecumseh, (brick work, lathing and plastering and painting excepted,) which agreement was approved by the Board on the same day, and made the payment for the work, payable by installments.
The suit was transferred by change of venue from Shawnee County, to Donglass, and on the 8th day of May, A. D. 1862, a trial was had, wRich resulted in a verdict and judgment for the defendant in error, against the plaintiff in error, for the sum of $4,657.05 and the costs of suit.
Yarious questions were raised upon the pleadings, and in the course of the trial, which were not argued by the counsel and will not be considered by the Court, as the conclusion we have reached on the main point and the one which was presented in the argument renders an examination of the others unnecessary.
The important question to be settled, is one raised on the instructions of the Court to the jury, and is in fact, whether the county of Shawnee is liable on these bonds. And the consideration of this question involves the examination of principles of great difficulty and delicacy.
After the bonds were issued, to-wit: on the 17th day of January, 1857, the Legislature of the Territory passed an act approving and confirming these bonds and declaring them valid and binding upon the county. Laws 1857, page 50.
In settling the question whether the county is liable on these bonds, it will be necessary to examine first whether they were valid in their inception and execution by the law then existing ? If they were the whole case is disposed of, if not then it remains to see what is the effect of the act of 1857.
The first inquiry then is as to the law in force when the contract was made and the bonds sued on were executed.
The general financial affairs of the county were entrusted to a Board of Commissioners with power to levy and collect taxes, build bridges, and open and keep in repair roads and highways and provide by erection or otherwise public buildings necessary for the county, and have the control and management of the property and effects of the county.
These commissioners were elected by the Territorial Legislature and their powers were very extensive, and with no check upon the indiscreet and ruinous exercise of those powers, save in the limitation prescribed as to the extent of the tax which they might levy. Not receiving their position from the people, they were not responsible to them, nor were they accountable to any other tribunal for the exercise of their discretion. The use or abuse of their power had .but one check, they could not impose a tax exceeding the amount of .Territorial taxes levied in each county for Territorial purposes.
As long as they confined themselves within the limits of the law, they were not responsible for the discretion 'with which they exercised that power. It was within the scope of their authority to contract for the erection of county buildings greatly larger and more costly than the wants of the community would justify, and impose a debt upon the county for the payment therefor, which would be onerous and oppressive, and yet the Courts had no authority to interfere. It is not our duty nor within our province to inquire whether the Court House in Tecumseh was required by the wants of the people, nor whether the burthen imposed upon the county by its erection was onerous or not, ours is the much more limited duty of ascertaining whether that burthen was imposed by competent authority in the manner prescribed by law.
The county is a political subdivision of the State acting as a corporation with certain specified powers, and acting through its officers in a certain prescribed way pointed out by law. These officers are the agents of the county, acting for it in all those matters confided to them by law, each in his appropriate and prescribed line of duties—and many, if not most of the duties entrusted to them are not only pointed out by the law, but the very mode of performing them is laid down with accuracy and precision. When so laid down there is no discretion in the officers as to the manner in which they are to act. In that respect they are ministerial officers and bound to observe the limitations imposed upon them by the law, agents who can not act in any but the prescribed way, and this rule loses nothing of its force when we remember that these agents were at the time these bonds were executed, not agents created by the principle that was to be bound, but by the Territory through its Legislature.
. “ It is a general rule,” says the Supreme Court of Iowa, “ that when the Statutes confer the special ministerial au- “ thority, the exercise of which may effect the rights of “ property, or incur a municipal liability it shall be strictly “ observed and that any material departure will vitiate the “ proceedings.” 12 Iowa, 153.
And to this effect is the general tenor of the authorities cited by counsel for plaintiff in error. While the Board of County Commissioners had great power and almost limitless discretion in plunging the county in debt, yet the manner in which this could be done, being prescribed by the Statute, must be observed.
The law then in force, provided [pages 212 213, Stat., 1855 ¡j, that when payments upon contracts for the erection of public buildings shall be by installments, the tribunal transacting county business, shall upon the certificate of the Superintendent of public buildings that a due proprotion of the work has been completed and executed according to contract, order a warrant upon the County Treasurer fo;- such amount as may be due upon the contract, payable out of the building fund, or any money in the Treasury not otherwise appropriated, as the tribunal may order.
This Statute prescribed the mode in which the installments should be paid; the only mode known to the law. The Board of Commissioners only were authorized to order money to be drawn from the treasury, and they could do it only by a warrant on the County Treasurer. They had no power to bind the county by bonds, and herein was the only safe guard which the Legislature had left the people against oppressive burthens which might in the end ruin them with excessive taxation. When there was no money in the treasury to pay the warrants, if extravagant and speculative outlays for buildings were attempted, the measure would defeat itself because the warrants would be of so little value that cupidity itself would fail of a desirable object of investment in becoming the owner of such warrants. They would be so discredited as to become valueless in market, and the temptation to involve the county removed. The accumulation of debt would cease from the inability of the county officers to carry on projected improvements on a credit. Poor as was this barrier against extravagant or visionary contracts, it is one which would be likely in a new country to arrest the evil before it had reached the point of ruin, and the anxiety to ad yan.ee local interests at the general expense would receive a check for the want of means. If, however, the Board could substitute for warrants, bonds bearing a high rate of interest, it would furnish an investment that might tempt men to take contracts for the erection of such buildings for the county as might suit the Board, at ruinous prices, and rely upon making up tor the present want of availa-bility,- by the high prices and high rate of interest obtained in the end. For if the Board, by the substitution of bonds for warrants, could stipulate for ten per cent, on the same principle, they might make it fifty, and thus induce contractors to take the risk of the debt being indefinitely postponed on account of the corresponding benefits that might be realized.
These bonds were not in any sense warrants. A warrant is an order by which the drawer authorizes one person to pay a particular sum of money. The Board alone were authorized to draw these warrants on the treasury, and that for audited claims only. They bore no interest of themselves, and on these warrants alone was the County Treasurer authorized to pay any money. By warrants alone were the Board authorized to create evidences of indebtedness. The bonds differed in substance as well as in form from warrants. They bore interest from date. They bore a higher rate of interest than the law allowed on warrants even after presentation. They were not drawn on the Treasurer, did not authorize him to pay out any money, and in no respect do they conform to the provisions of the law for evidencing the indebtedness of the county. In these, and perhaps other respects, the bonds differed from the only mode authorized by law for binding the county, and upon well settled principles were therefore void.
Dwarris in his treatise on Statutes, lays down this rule: “ As a maxim it is generally true that if an affirmative Statute direct a thing to be done in a certain manner, that thing shall not even though there are no negative words be done in any other manner,” and this rule appears to be established on well considered principles, supported by a long train of authorities. Applying this rule to the case before us, and it will leave no doubt that the bonds in their creation were void. They might as well have been executed by the Sheriff and Treasurer as by the Board. The former officers had as much authority to execute them as the latter, and they would have been as valid in one case as in the other.
It remains to examine what was the effect of the act of the Legislature of 1857. ' The first section simply ratifies and confirms all contracts theretofore made by the Probate Judge and County Commissioners of Shawnee County for the erection of a Court House, and has nothing to do' with this case, as the contract in this case was made with the Superintendent of Public Buildiúgs.
The second section declares that “ the bonds or other evidences of indebtedness heretofore issued by said Probate Judge and County Commissioners for, or on account of the construction of said Court House, are hereby declared valid and binding.”
It is urged on the one side that this act is clearly and fairly within the scope of the legislative power, and makes the bonds binding on the county, and on the other side, that it is a usurpation on the part of the Legislature of judicial authority, and therefore as void as the bonds them-' selves.
This presents a question which has much embarrassed Courts.*
The Organic Act defines as sharply, as is done by most of the State Constitutions, the limits of legislative power as extending to all rightful subjects of legislation, with certain specified limitation, while all the judicial authority is entrusted to the Courts.
While it is clear enough that under the Organic Act, as well as in most State Constitutions, the distribution of power among the different branches of government'seems plain and obvious, yet there .is still the great difficulty of ascertaining exactly what is a rightful exercise of legislative power.,
. Ch. J. Marshall said (6 Cranch, 136,) “ How fa/r the power of giving the law may involve every other power, in-cases where the Constitution is silent, never has been, and perhaps never can be definitely stated.”
. And Comstock, J., in delivering the opinion of the Court of Appeals in the case of Wynehamer v. The Peojjle, 3d Neman, 392, in speaking on this subject, says : “ I am
reluctant to enter on this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief.”
Similar expressions are to be found in almost every decision where the question has been raised, and Courts have contented themselves with settling the precise case before them, rather than to lay down any general rule.
It will not therefore be considered as claiming too much modesty in this Court, if it shrink from attempting to lay down the line which separates legislative from judical duties and functions. It cannot be doubted that there are many cases in which the Legislature may with propriety exercise powers which partake of a judicial character, as when they “ furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or by supplying defects or curing informalities in the proceedings of coiu-ts or of public officers, acting within the scope of their authority; they give effect to acts to which there was the express or implied assent of the parties interested.”
Such acts it seems from all the authorities it is competent for the Legislature to do, and there are many cases when such legislation would not only be valid but would operate with a most beneficial and salutary effect. And the courts in some of the States have gone great lengths in sustaining such legislation. The learned counsel for the defendant in error has cited a large class of cases of this character, but none we think that go so far as this Court is invoked to do in this case.
Those of the Supreme Court of Massachusetts, which go as far or farther than any in this matter, are not reasoned by the very able Court which rendered them, and the decisions were only reached by a divided Court, and the principles on which they were founded are questioned in later decisions. In Denny v. Mattoon, 2d Allen, 385, the Court says : “ when necessary it may be proper to reconsider them with care.” The principle of the decision just cited, may be referred to as authority directly sustaining the conclusion we have arrived at in .this case.
All the cases cited from the Federal Courts having any bearing on this case, are expressly decided on the ground that they do not conflict with the provisions of the Constitution of the United States, and the question we are examining is excluded from their consideration. We do not propose to comment at length upon the authorities.
Mr. Sedgwick in his treatise, after examining the various decisions, deduces from them as guides to some extent, certain rules of which the second is as follows:
“ That a statute which dispenses in favor of some particular individual, with the general rules governing similar cases, does not come within the rightful attributes of legislative power, and is notto be regarded as a law.” Page l'TU
We have examined with much care and diligence such authorities as were accessible to us, and think this rule is fairly deduced from them, although great contrariety is observable. In some cases which seem to be the best considered and best sustained by reason, the strict division of the powers of government has been enforced, and as the subject is more discussed and better understood, it is as the author just cited remarks, obvious that there is a strong and increasing disposition on the part of the judiciary to restrain the Legislature from the invasion of pri vate rights to which the haste of our law-making operations frequently tends. . Apply the ruje above quoted to the case before us, and it is apparent that the Act of 1851 cannot be regarded as a law, for it retroactively disposes in favor of a particular individual, with the general rules governing similar cases, to the manifest injury of other parties. The county could not by any implication be held to have consented to the increased burthen. She had no officers authorized to signify such assent. The Legislature assumed to decide without the parties being before it.
The act differs from those retrospective laws which are frequently passed supplying defects and curing informalities in the proceedings of officers and tribunals acting within the scope of their authority.. The County Commissioners were not acting within the scope of their authority in issuing these bonds. They did not conform to the law only in an irregular way, but they broke down the barriers which the law had raised in a very regular way, and their acts in the premises were void, not for want of any formality or regularity or mistake as to time or otherwise, but for want of power under the law.
The defendant had his lights. The law pointed them out. He- was entitled (if' to any thing,) to his warrants, and must bide his time for their payment under the limited power of taxation conferred on the Board. He preferred bonds with a higher rate of interest, trusting to the healing power of subsequent legislation. He had as much right and power to bind the county in the execution of these bonds as the Board -had. If he had made these bonds, the Legislature would have had as much power to make them valid by an act declaring them binding upon’ the county as it had in the present case. Let such a power be once recognized, and within what bounds will the exercise of it be limited ? The Legislature undertook to make a law for this case, affecting and changing rights and imposing burthens contrary to previously established law, so that the act if valid has all the force of a judgment though in violation of the principles upon which judgments are rendered. If the act is a law there is no evading it, even could it be proven that none of the work had been doné, or that it had been previously paid for, or that the contract had been procured by fraudulent collusion between the ofhcersmaking it and the contractor. Courts are estopped from an incpiiry into the facts by the act itself, if it have any force in this case. We cite these results from the act, not as having any existence in this case, but to show the consequences which would residt from upholding the power of a Legislature to exercise such authority.
We think, therefore, that the act so far as it pretended to affect these bonds, is void, and the instruction of the Court below being otherwise, was erroneous.
The judgment of the District Courtis reversed, and the case remanded for a new'trial.
All the justices concurring. | [
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By the Court,
Orozie, C. T.
The record before us presents a novel state of things. Judgment was rendered against McBride, and the cause continued as to Lyon and his wife, for service—both of whom appear to have been served with the summons that was issued, and the attorney who represents the plaintiff in error here, as the attorney in the Court below of defendants Lyon, undertook to except to fhe rendition of the judgment against McBride. That is, for the purposes of a foreclosure they were not in Court, but for the purpose of excepting to the judgment against McBride they were in Court. The oral argument at the bar has not convinced us of the consistency of these positions. But it is not important in the view we take of the case, that they be reconciled.
There does not seem to have been any attempt to render a judgment which should effect the rights of the Lyons. For the purposes of the judgment they do not appear to have been regarded as in Court, and if they had been in Court we are at a loss to discover by what right they could except to the judgment against McBride.
He only could except to it. If it is excepted to, the exception must be regarded as his act; and his appearance for that purpose cured any defect in the notice. But if it is not to be regarded as his exception, then there is no exception; and it is doubtful whether we can look into the record.
However this may be, we have no hesitation in saying that the record presents nothing erroneous that We can take cognizance of in the present aspect of the case. The law has been in all respects substantially complied with,—indeed the very letter of the statute has been pursued.
The affidavit lays a sufficient foundation for the publication, and the notice contains all the statutory requisites, The proof of publication is not before us, there being no bill of exceptions showing what it was. The Court below was satisfied with the proof that was made, and we cannot presume that it was insufficient, whether the petition stated facts sufficient to constitute a cause of action is not a question we can loot into, until it be first presented to the Court below.
Judgment affirmed.
All the justices concurring. | [
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By the Court,
Kingman, J.
The facts of the case were agreed upon leaving for the Court to decide the single question, whether the session held by the Senate when it tried' and pronounced judgment in the case, was a legal and constitutional one.
This is denied on two grounds.
1st. There is no power in the Senate to set for the purpose of trying impeaclúnents when the House is not in session.
2d. If such power exists, the adjournment of the Senate to the 1st Monday in June was without consent of the House, and void; and if valid, was annulled by the subsequent concurrent resolution adjourning the Legislature, sme die.
By constitutional provision all impeachment cases are to be tried by the Senate; but as to when the Senate shall set for that purpose or how the trial shall be conducted the constitution is silent except in declaring that the Senators when sitting for that purpose shall be sworn; that the concurrence of two-thirds of the Senators elected is necessary to a conviction, and a limitation as to the extent of the punishment.
In the absence of express provisions..it is presumed that the common law “ will regulate, interpret, and control the powers and duties of the Court of Impeachment,” but this rule, applicable only to the trial and proceedings, affords no guide in determining the question as to the organization of the Court, for in this State the tribunal that tries, as well as the body that prefers the accusation, are entirely unknown to the common law, and if there is such a general resemblance of our legislative assembly to the Parliament of Great Britain, as to be easily noticed, the points of dissimilarity are still more apparent and striking. And this, not only in the organization and general powers of the two bodies, but even in this matter of impeachment.
By our law the House of Representatives alone can prefer charges of impeachment; by the common law of Parliament, not only the Commons, but a Peer or the Attorney General at the suit of the King may prefer articles of impeachment. [Com. Dig. V. 238.)
In prosecutions by the Commons upon an impeachment, it belongs to the Commons to demand judgment, (Com. Dig. V. 211,) and the House of Commons have a right to be present whether they appoint managers or not, that every member may satisfy his conscience whether- he will give his vote to demand judgment. (Strafford's Case, 2 Commons Jowmal, 105-108.)
This right of the Commons to be present in cases where the impeachment was presented by them grows out of the assumed right of the Commons to arrest the prosecution by refusing to demand judgment, even after the person impeached has been found guilty. Such power has never been exercised or claimed in this country by the House exhibiting the accusation, and would be utterly subversive of the independent jurisdiction of the Senate as a Court of Impeachment, by subjecting the judgments of the Senate to the review of the House before they would be of any force or effect.
The reason of the usage or right of attendance upon the trial by the Commons having failed, the rule itself ceases, as vre have adopted no more of the common law in this State than is adapted to our situation and applicable to our institutions. The laws of this State, however, by express provision, have empowered the Senate, when sitting as a Court for the trial of impeachments, to hold sessions after the adjournment of the Legislature, and whatever may have been the rule of common law, it was perfectly competent for this Legislature to prescribe a different rule unless prohibited by the constitution, and we look in vain for any such provision, either express or implied. Nor is there in that instrument any inhibition of the session of one branch of the Legislature when the other is not in session. There is a fixed time when both Houses shall meet, a limitation of the power of one House to adjourn for a longer period than two days without the consent of the other, and in case of disagreement, the Governor may adjourn them.
If it be admitted, as claimed, that when acting in their legislative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though distributed, and the parts can only act in unison, and neither the reason nor principle would apjfiy to this case. But the principle contended for cannot be admitted. If at the commencement of the regular session of the Legislature, the Senate, for any cause, should fail for weeks to organize, there can bo no doubt that it would be perfectly competent for the House to perfect its organization, appoint its committees, and initiate legislation. In such case, if after its organization the Senate should pass an Act that had, previous to its organization passed the House in the prescribed constitutional form, would' not such bo a valid law ? The case before the Court presents much stronger reasons why the separate action of one body may be valid in the absence or non-organization of the other, for the Senate acts entirely in a judicial capacity. Its action is independent of the House; and as we have seen, there is no reason why the House should be present or in session, and in the absence of constitutional inhibition we can perceive no reason why the Senate, with the consent of the House, may not adjourn to any period during their term of office, and not beyond the regular meeting of tlie Legislature, whether the House be in session or not. If at such adjourned session its acts were confined, as in this case, to duties in which they were entirely independent of the House or any action it might talco, those acts would be valid aud conclusive.
Another view of this point in tho case will illustrate and strengthen the conclusion. Had the constitution conferred the power of trying impeachments upon any other tribunal than the Senate, and named no time for the trial, and fixed no limits for adjournment, no one would have the hardihood to deny that both these matters might be regulated by law.
In this State the Legislature has given express power to the Senate, when organized and sitting as a court for the trial of any impeachment, to adjourn from time to time and hold a session after the adjournment of the Legislature.
Such a law is clearly within the province of the Legislature to enact, but would of course be limited by the last clause of Sec. 10, Art. 2 of the constitution, so that such adjournments can only be made by consent of the House. The law may well be taken as the clearly manifested consent of the House that passed it, that the then Senate might adjourn and hold sessions after the Legislature, but not as the consent of any subsequent House that such sessions may bo held.
But it is denied that the House ever gave its consent to the adjournment of the Senate till June.
So much of the action of the tvro Houses in the premises as is necessary to understand this point, is as follows, as shown in the agreed facts of the case:
On the 26th of February, A. D. 1862, in the House, Mr. Plumb offered the following resolution, which was adopted :
“ JSesolved, That the Board of managers on the part of the House be instructed to move that the first Monday in June be set apart for tbe trial of the cases of impeachment against the State officers.”
' On the 27th of February, Mr. Anderson by consent, offered the following resolution, which was adopted:
“ Whereas, It has come to the knowledge of this House that there are material and important witnesses, on the part of the prosecution of the impeachments now pending before the Senate, in "Washington, to-wit; James C. Stone, S. C. Pomeroy, George W. Collamore and Martin F. Conway, and that D. H. Wier, Chas. Chadwick and James H. Lane, have left this city since the initiation of these prosecutions, and the House is unable at present to ascertain where the said Lane, Wier and Chadwick are at this time : and
Whereas, These prosecutions nor neither of them can be conducted with effect without the testimony of said witnesses, and the said witnesses are material and important for said prosecutions without whose evidence this House cannot safely proceed to trial; therefore, be it
Resolved, That the Board of managers-be requested to present this preamble and resolution to the Senate and, ask that the trial of these impeachments be postponed until such time as in the opinion of .the Board will enable said managers to procure the testimony of said witness.”
And on the 28th February, in the Senate sitting as a Court of Impeachment, the following proceedings were had:
Hon. S. A. Stinson on the part of the managers submitted the following motion:
“We move that the Court do now adjourn to the first Monday in June next, at 11 o’clock, A. M., which motion prevailed.
Also-an Act which was introduced into the House on the 21st February and was finally passed by both Houses on the 1st day of March, providing:
“ That the Senate of the State of Kansas when organized. and sitting as a Court for the trial of any impeachment brought by the House of Representatives, shall have power to adjourn from time to time, and hold sessions after the adjournment of the Legislature.”
These different acts of each House and of both Houses of the Legislature relating to the same subject matter, are both to be taken together.
The passage of the resolution by the House on the 26th of February, asking the Senate to set the trial for the 1st Monday in June, and the adjournment of the Senate sitting as a Court till that time cannot be viewed in any other light than as the consent of the House, previously given, to such an adjournment.
The constitution prohibits the adjournment of one House for more than two days without the consent of the other, but does not point out how or when that consent shall be given. It would be difficult to conceive of a stronger manner of giving that consent than by previous request, reiterated, as in this case, that it be done. But to avoid all cavil the law above quoted was passed the next day, and was in the most solemn manner and with all the forms of legislation, a declaration of the consent of that House, that the then Senate might adjourn at its pleasme and hold sessions after the adjournment of the Legislature. It is essential to the validity of a contract that each of all the parties tó it should give his assent to its terms. Yet few contracts upheld and enforced by the Courts present so strong and varied evidence of the assent of the parties as this case does of the consent of the House to the adjournment of the Senate till the first Monday in June.
But it is insisted that the concurrent resolution adjourning the Legislature sine die on the 6th day of March, 1862, dissolved both branches of the Legislature finally, and they could not be convened again save by an exercise of executive power. It is evident that each branch of the Legislature considered this resolution with reference to the previous adjournment of the Senate sitting as a Court of Impeachment, and the law which had just been enacted; and this is the plain sense and clear legal import of the several acts. The Senate, sitting as a Court, having adjourned its sessions as such, to the 1st Monday in June, united with the House in a concurrent resolution to terminate their Legislative sittings by an adjournment sine die on the 6th of March. This is all that the language of the resolution would indicate and all that was intended; and the meeting of the Senate as a Court in June was not in conflict with it, and it must be so held.
All the Justices concurring; Ewing, C. J., Rally and Kingman on the bench. | [
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By the Court,
JBailey J.
At the February Term of said Court in 1863, .an indictment was found against Millar, the appellant for shooting with intent to kill one George Stigers, and at the next June Term of said Court, a trial was had and a verdict of guilty rendered by the jury, fixing the punishment at two years hard labor.
Motions to quash, for a new trial and in arrest of judgment were made by the defendant’s counsel and overruled by the Court, and the defendant sentenced to two years hard labor im the penitentiary.
It is claimed for the appellant, that the record should show affirmatively that the indictment was returned into Court by the Grand' Jury.
The record does in fact show that the Grand Jury, in a body came into Court, and through their, foreman, presented to the Court, six bills of indictment, each endorsed a true bill and signed by the foreman.
Afterwards the'record shows the following entry: “ Record of indictment, February Term, 1863, Be it remembered, that at a session of the Criminal. Court of Leavenworth county, at the February Term of said Court, begun, and held in the City of Leavenworth, in the county aforesaid, commencing on Monday, the second day of February, A. D. 1863, the Grand Jury of the State of Kansas, in, and for the County of Leavenworth, duly empannelled, sworn and charged to enquire within, and for said county, at said Term on the fourth day of Fedruary, A. D. 1863, through their foreman, H. B. Keller, Esq., presented to the Court sundry bills of indictment, which $,re in words and figures following, viz: among other- in dictments, so recorded is the following, to-wit: Then follows the indictment against . Millar.
It will be readily seen that the objection as stated] is invalid since the record does show affirmatively the return of the indictment into Court by the Grand Jury. But the real scope of the objection seems to be, that the appellant was tried upon a copy of the indictment, as found on record, and not upon the original bill signed by the foreman.
Conceding this to have been the fact, it would have been proper to show by affidavit, that the original bill had been lost or destoryed; but the omission to file such an affidavit, or to place it upon the record if filed, would, we apprehend be merely a “technical error or defect” within the meaning of Sec. 276 of the Criminal Code, and must therefore be disregarded.
It is further objected, that the verdict of the jury should have stated the degree of the offence of which they found the defendant guilty.
To this objection, it is sufficient to remark, that the indictment is founded upon Sec. 32, of the “Act relating to Crimes and Punishments,” and the Act makes no distinction as to the degree of the offense.
A motion to quash the indictment was. made, and the reason assigned, was, that the indictment does not state facts sufficient to constitute a public offence; but upon examination, we have been unable to perceive the force or justice of the objection. The indictment seems to us to be “ direct and certain as to the party and the offence charged ” as required by the Statute. {Grim. Pro. See. 90.)
The defendant’s counsel requested the Court to charge the jury as follows, viz: That if the jury have a reasonable doubt, whether the offence was committed on the Delaware reserve, or on the North side of the line of said reserve, in this, the County of Leavenworth, they should acquit the defendant, “ which instruction the Coiut refused to give, and the defendant excepts.”
The limits of the County of Leavenworth, as of other counties of this State, are 4efine<I by the Statute of the State, and the lands known as the Delaware reserve, are so far as tlie administration of justice to persons not belonging to the Delaware nation or tribe is concerned, form an integral part of the counties within whose boundaries they are included. This point was discussed and settled in the United States Circuit Court, for the District of Kansas, at the last Term of said Court, in the case of the United States v. Ward.
The Court charged the jury, “ that the allegation on purpose and of malice aforethought” in the indictment, must be established beyond a reasonable fioubt, the same as any other allegation or material fact. This purpose need not be conceived any length of time before the act, nor need the malice aforethought exist days or hours before; it is sufficient, if just, before the act was committed, the defendant conceived the purpose of killing Stigers. He did it then “ on purpose and with malice aforethought.” To which charge the defendant excepted.
This language we conceive might have been justly and properly-used to the jury in connection with other instructions concerning the nature of the offence, and the proper and legal proofs of its commission, and as the bill of exceptions does not purport to give the whole of the charge, and does in fact give no more than the words excepted to, ■we are utterly unable to decide whether it was in fact given with the porper additions and qualifications or not. The presumption must be in the absence of proof to the contrary, that it was so given; it was at the option of the defendant’s counsel to have embodied the whole of the instructions of the Court to the jury in the bill of exceptions, together with the testimony from which the Court might have seen the illegality or insufficiency of sueh instructions, and the omission to do so, strengthens the presumption which the law applies in their absence.
The only remaining exception, is, that tbe prisoner was sentenced to two years hard labor, “m the Penitentiary of tbe State of Kansas.”
Tbe prisoner’s counsel allege tbat there is no “ Penitentiary in tbe State of Kansas,” and no Statute authorizing punishment by confinement at bard labor in such Penitentiary. Wo remark upon this point, first, tbat tbe terra penitedtiary is an English word in common use, to signify a prison or place of punishment, and tbat it is so used in our Statutes. Thus in tbe act relating to Crimes and Punishments “Sec. 169. If any person confined in the Peniientiarg for any term less than life shall escape from such prison or from tbe custody of tbe officers, be shall be liable to tbe punishment imposed for breaking tbe prisons”— and second: Tbe Constitution and laws of tbe State make express provision, for a State Penitentiary. See Constitution of Kansas, Art. VII, Seo. 2, Laws of Kansas, First Session 1861, pp. 28-9.
'We think tbe sentence was not invalidated by tbe use'of the' words complained of; but tbat those words are to be understood to mean tbe place of punishment in which convicts sentenced to confinement and bard labor, are confined by authority of law.
The judgment is affirmed at tbe cost of tbe appellee.
All tbe justices concurring. | [
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By the Court,
Kingman, J.
The plaintiffs in error were sued on the bond of Fuller as County Treasurer, on which the other plaintiffs in error, were sureties. The petition is long and very full, setting out the bond and a settlement with Fuller by the Board of County Commissioners, showing the amount found due-and unpaid.
The answer contains first, a general denial of all the allegations of the petition; second, denying any indebtedness ; and third, a set off of moneys due from the county to defendant Fuller. A demurrer was sustained to the third cause of defense, and no exception was taken to the judgment of the Court on the demurrer.
Of the many points set up in the petition in error and argued before the Court, but three appear from the record.
The first is, that the petition doife not state facts sufficient to constitute a cause of action. As no specific defect was pointed out, we shall content ourselves with expressing the opinion that the petition is sufficient. As it covers eleven pages of legal cap, it is hardly necessary to copy it in order that it may be seen to be good.
The second error claimed is rejecting testimony. The plaintiffs introduced the record of the settlement which contains in full the account made out at the time the settlement was made, and this is all the evidence the record shows. Defendants on their part offered to prove by defendant Fuller that certain items of the account were not correct or just, which the Court would not permit, holding that the settlement had become and was a record, and that the same could not be disproved by parole under the pleadings in the case.
There may be much cause to doubt whether the settlement by being spread upon the record had become such a record that it could not be disproved. On this point no opinion is expressed. But the testimony offered was clearly inadmissible under the pleadings; it supported no issue made in the case.
Defendants were sued on a bond, a default was alleged and a settlement of the accounts, and on this settlement required by law the claim for the amount due rested.
•The bill of exceptions states that the plaintiffs introduced the' record to maintain the issues on their part. The only issue they could be used to maintain was to show a settlement; and because the settlement contained the items of the account aB presented and made part .of the settlement, it does not follow that without raising any issue as to the correctness of the settlement, the defendant could be allowed to go behind it by his proof. If that eourse could be pursued at all, it could only be 'done on a state of pleadings that made it proper. If the answer had set up as a ground of defense that the settlement made with the Board was incorrect and contained errors, then only would the testimony have been pertinent to the issue made. But this was not done. The petition avers a settlement as the law required. This, the defendants denied, and this was the issue on this point, and the Court properly ruled out the evidence.
The third error alleged is the refusal of the Court to give the following instructions, at the instance of the defendant:
“ That the plaintiffs can not recover on the bond here sued on for those items of amounts charged to the Treasurer of Jackson County prior to the execution of the bond by the defendants.
'' “ That the plaintiffs must prove, in order to recover, that every item of the account accrued after the signing of the bond, and if they have failed to establish that fact, the jury is' bound to exclude the item of amounts.”
These the Court refused, but gave the following:
“That if the jury believe from the evidence that any portion of the indebtedness as charged in the plaintiffs petion went into the hands of the defendant, Albert Puller, as Treasurer of Jackson County, before the execution of the bond, and the Treasurer had not made default thereto, then they must exclude those items from the amount so demanded. by the plaintiff in his petition, and that if the jury believe from the evidence that the money so received as former Treasurer came into his hands, as Treasurer, after the execution of the bond, then they must find these items for the plaintiff.”
It appears from the petition that the bond was given on the 21st day of September 1858, and the settlement of the items of account filed as part of the settlement, with the petition, show some items of account charged before that time. The record is silent as to the proof in regard to these items. Certainly the Board of County Commissioners had no right to hold the sureties in the Treasurer’s bond as bound for any moneys received by the Treasurer before the execution of the bond, but it may well have been that the taxes of 1856 and 1851 charged to him, were balance of taxes for those years that properly and legally came into his hands for collection, and for which he was bound to account, and for which also, his sureties were responsible. Erom the smallness of the amounts charged in each year this seems probable. In such a state of proof, which is all the record discloses, the defendants were not entitled .to the instructions asked, nor were they under the issues raised by the pleadings as has been already shown.
If 'these reasons are not sufficient for rejecting the instructions asked, there are two others that will undoubtedly be deemed satisfactory. The first is, that taken literally, neither of them is good law. It can hardly be necessary to repeat • that if the treasurer actually received the items charged after the bond was given, that plaintiff could recover them on the bond even if they happen to be dated prior thereto, and yet defendants asked the Court to say that items charged before the date of the bond could not be recovered without regard to whether they came into his hands before or after the bond was given;
The second clause of the instruction asked and refused requires the plaintiff to prove that every item of account accrued after the signing of the bond, in order to recover, and if they have failed to establish that fact, the jury is bound to exclude the item of amounts. "What the last clause of this paragraph means, we may guess—it can never be known. The first part is not law. Another reason for refusing these instructions is, that all that is apparent law or reason, is included in the instructions that were given.
Judgment affirmed.
All the justices concurring.
Crozier, C. J., Bailey, J., and Kingman, J., on the bench. | [
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By the Court,
Kingman J.
The defendant in error brought suit to recover possession of a part of the tract of land reserved to the half-breeds of the Kansas tribe of Indians, by the 6th Section of the treaty of June 3d, 1825.
It was admitted on the trial that the plaintiff below was one of the reservees mentioned in that section, and that the premises sought to be recovered in the action were part and parcel of the special tract so reserved to the plaintiff by said treaty, and that said plaintiff was in possession of said premises on the 14th day of August, 1860.
The defendant below, (plaintiff in error,) then produced in Court and offered to read in evidence a deed from the plaintiff below, to the defendant, conveying to the defendant the premises in controversy. The deed bore date August 14-th, 1860, and was properly acknowledged on that day.
Plaintiff objected to the reading of the deed, and the objection was sustained.
The only question presented in this case is, whether the Court erred in refusing to permit the deed to be read.
Congress, in legislating upon these lands by Act of May 26th, 1860, had declared in the first section, “ That all the title, interest and estate of the United States is hereby vested in the said reservees, who are now living, to the j.and reserved, set apart and allotted to them respectively by the sixth Article of said treaty.”
The second section provides further:
“ That in case any of the reservees now living, or the heirs of any deceased reservees, shall not desire to reside upon or occupy the lands to which such reservees or such heirs are entitled by the provisions of this Act, the Secretary of the Interior, when requested by them or either of them so to do, is hereby authorized to sell such lands belonging to those so requesting him, for the benefit of such reservees or such heirs.”
The third section provides:
“ That the proceeds of the land, the sale of which is provided for by this Act, shall be paid to the parties entitled thereto, or applied by the Secretary of the Interior for their benefit in such manner as he may think most advantageous to their interest.”
This was the law in force at the time the deed effered was made, and its construction presents no great ¡ difficulty.
The treaty of 1825 and the Act of cession of May 1860, were intended to give to the plaintiff the full and complete title to the land in controversy. But Congress in the exercise of a guardian care over the interests of this race, and knowing how liable they would be to become the prey of their more covetous neighbors, made such provision in the same law as they deemed would be likely to secure to the reservees the benefit of the lands ceded to them. If they retained possession and made improvements, they and theirs got the benefit of their labors. If they did not desire to occupy and own the lands, then the Secretary of the Interior, at their request, was authorized to sell the same and either pay over the proceeds to the parties entitled thereto or otherwise apply the same for their benefit, as in his discretion might seem best. So that the benefit of it inured to the reservee for whom it was sold. It is evident that Congress 'intended by the Act of cession to pass the land to the reservees with such restrictions as would prevent the property from being squandered, or the reservees made the victims of the cupidity and adroitness of their more civilized neighbors.
Having designated the particular mode in which the reservees could dispose of their lands, and the guardianship which should be exercised over the disposition of the proceeds, in the same law which ceded the lands, can a sale and conveyance made in any other way be valid ? If so, then it was in the power of the reservees to entirely defeat the beneficial provisions engrafted into the law for their protection. The barriers erected by the law to protect and guard the interests of the reservees, would fail of their purpose. The restrictions which entered into- and formed part of the grant, would be entirely avoided.
¥e think that any other conveyance than one made as prescribed by the act of Congress quoted would violate important and essential provisions of that law and would therefore be invalid and void.
By joint resolutions of Congress, of July 17th, 1862, the second and third Sections of the law of 1860 were re pealed—thus removing the restrictions upon the alienation of the property. The first Section of the law being a grant eonld not be repealed, and no attempt is made to do so.
But this removal of the restriction can by no means be construed to make a void conveyance valid. The deed from Victoria Smith to Stevens was therefore properly rejected.
Judgment below affirmed.
All the justices concurring. | [
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jBy the Court,
Kingman J.
This action was brought by Heman M. Pratt, the plaintiff in error in the District Court of Douglas County, against Chapin J. Miller and others, on a note and mortgage given by Miller to plaintiff. The other defendants alleged in the petition to have an interest in the mortgaged premises, did not appear. Miller set up in his defence that he was at the time of the execution of the mortgage sued on, a married man, having a wife then and still living, that he resided upon and occupied as a homestead the premises mortgaged, with his wife and family, and that the mortgage is void because the mortgage was not signed and executed by his, defendant’s wife, and that the mortgage was not given to secure the payment of the purchase inoney. The Court held the mortgage void and gave the plaintiff judgment for his money.
There was no question raised on the pleadings. There is no Bill of Exceptions showing the evidence. Nothing but the petition, answer and judgment. These all appear regular, and the presumption is that the judgment was tendered on sufficient and competent testimony.
The judgment is therefore affirmed.
All the justices concurring. | [
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By the Cmrí,
JKingman, J.
The defendants were indicted in Shawnee County for a violatipnpf the law “ to restrain dram shops and taverns and regulate, the sale of intoxicating liquors.” ■
A motion was made to- quash the indictment on two grounds.
1st. That the indictment does not charge that the offense was not committed within the limits of an incorporated city'containing one thousand inhabitants.
2d. The statute on which'the indictment is founded, is unconstitutional.
The motion was sustained and the indictment quashed. The State brings the case to this Court for revision.
The first of the causes assigned as grounds for quashing the indictment, must be held insufficient.
The law on.this point is plain and is well stated in Archibald’s Criminal Practice and- Pleading, page 118, as follows: “If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant or the subjóct of 'the indictment does not arise within the. exception. If, however, the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is in that case matter of defense for the other party and need not be negatived in the pleading.”
The exception contained in Section 15, page 489, Comp. Laws, as to incorporated cities is evidently not one of those necessary to be negatived in the indictment under the rules above cited. We do not feel inclined to sanction rules of pleading more stringent than those in use under the common law practice.
The second ground is, that the law on which it is founded is in conflict with the first clause of Sec. 17, Art. 2d of the Constitution, prescribing “ that all laws of a general nature shall have a uniform operation throughout the State.”
That this clause of the section has the effect to abrogate all laws passed by the Territorial Legislature of a general nature to which there were exceptions.
The law is admitted to be a general law, and by its terms has not a uniform operation throughout the State, its provisions not being in force in certain parts of the State, which are excepted from its operations.
A literal construction of this clause of the constitution would, instead of abrogating a law passed before the constitution took effect, extend its provisions to the excepted portions of the State. It in no way, by its terms can be held to repeal any law. It only declares that a general law shall have a uniform operation. But this construction,, although a literal one, of the clause taken by itself is too absurd and too disastrous in its consequences to be worthy of consideration.
This clause is but part of one of twenty-eight sections of which all the others have direct reference to future legislative proceedings under the constitution. This is also, true of the latter part of this section seventeen, which provides that “in all cases where a general law can be made appli cable no special law shall be enacted. The whole article is devoted to prescribing rules for and defining the duties and powers of legislative bodies under the constitution, and it is not conceivable that this part of a section only was intended to have the retro-active effect of abrogating so large a portion of our laws as would be done by the construction given to it by the Court below.
In Ohio in the case of Abyer v. The State, 10 Ohio S., 589, the Supreme Court held that a clause in the constitution of that State, identical with the one under consideration, did not act on the laws already passed, but only on those enacted after the adoption of the constitution. That decision had been made before our constitution was adopted and may well have been considered by the framers of that instrument as deciding the construction of the language, in the section. See also, 8 Indiana Reports, 258, where the identical point is decided in the same way. We think it clear .that the clause taken in its connection with • the whole article was intended only to apply to laws passed under the constitution, and was not intended to affect the laws already in existence, and that the District Court in ruling otherwise erred.
The judgment of the Court below is reversed and the cause remanded for further proceedings.
All the justices concurring. | [
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By the Court,
Kingman J.
The plaintiff in error foreclosed a mortgage against Headley & Carr, sued out an order of sale and became the pui-chaaer at the Sheriff’s sale of the N£ of lot 9 in the City of Atchison, and moved the Court for a confirmation of the sale.
The defendants objected to the confirmation. They had a judgment and execution levied on the lot older than Chaliss’ mortgage, and had become the purchaser of the same under their execution.
The Court confirmed the sale of some other property sold under Challiss’ mortgage, but refused to confirm the sale to the NJ- of lot 9.
It was admitted on the trial of the motion, and was so ound by the Court that all the proceedings had under the order of sale were regular and in conformity with the law.
This admission by the parties and finding by the Court, .settles this case. It was the duty of the Court to confirm the sale. The motion to confirm is founded upon Section M9 of the Code, and the whole duty of the Court on such motion is to see that the proceedings of the officer have been in conformity with the law. On such a motion the Court cannot go behind the execution nor receive any evidence except as to the regularity of the proceedings. This is apparent from the Section itself, and has been decided by this Court in the case of Koehler v. Ball, where authorities are cited.
The Court undertook to do more, to settle the title to the property on a motion without pleadings. This was error. Eor this reason the order of the Court in the premises is reversed, and the cause remanded to the District Court of Atchison County for confirmation, leaving the parties to try their rights by regular proceedings.
Eor the reasons given for not affirming the action of the Court below, we abstain from indicating any opinion on the other points argued by the counsel in this case, and on which they invoked the judgment of this Court.
AH the justices concurring. | [
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By the Court,
Kingman, J.
In this case after the jury had been empanneled and the plaintiff had introduced all his testimony, the defendant moved the Court to non-suit the plaintiff on account of an entire failure of proof, which motion was sustained, to which the plaintiff excepted and brings the case to this Court on that point alone. All the evidence in the case is spread upon the record.
The only provisions of the Code authorizing a case to be dismissed, are to be found in Section 382. In all but the five enumerated cases, the decision must be on the merits. The Court is no where in the Code authorized to dismiss a suit upon the application of the defendant for want of sufficient proof, or even in the absence of proof to sustain the plaintiff’s claim.
The object of the Code was undoubtedly to put an end to litigation, by requiring a decision of the case upon its merits after it is gone into, unless dismissed by the plaintiff. If there is a total failure of proof on the part of the plaintiff on any point essential to his recovery in the action, the Court should so instruct the jury, or so decide, if the trial be by the Court, and thus put an end to the controversy.
If the plaintiff has been disappointed in his proof he may dismiss and show his rights to prosecute in another action.
In granting a judgment of non-suit against the wishes of the plaintiff, the Court erred. But it is not every error that is cause of reversal. Section 305 provides that no exception shall be regarded unless it is material aud prejudi cial to the substantial rights of the party excepting.
If the record shows that the plaintiff was not injured by the action of the Court,'nor his rights prejudiced thereby, then the case will not be reversed by reason of the error of the Court helow, for it is one of those' exceptions that must be disregarded. The record shows that plaintiff relied on a purchase under execution for his title to the property in controversy, which execution was against M. C. Dickey, and on whose property it was levied, but in producing his proof entirely failed to show any service of process on Dickey in the suit wherein the judgment was rendered on which the execution was issued.
A want of service of summons rendered the judgment void, and any sale or purchase under it entirely null. On this point, which was essential to the plaintiff’s recovery, his proof entirely and wholly failed. When he announced that he was through with his evidence, had the Court given proper instructions to the jury, they would have been bound to find for the defendant. In what then are the plaintiff’s rights' prejudiced, that a judgment was entered which, instead of being a bar to his claim, dismisses his suit with full right to bring another suit for the same cause of action ? Instead of being prejudicial, the error may be a benefit to him.
The case will not, therefore, be reversed at his instance.
All the justices concurring. | [
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By the Court,
Kingman, J".
This action in the Court below was brought .to restrain by injunction the collection of a tax of one per cent, upon the real estate of the plaintiffs in the City of Atchison, levied to pay the interest on certain bonds issued by the authority of the city for certain railroad stock, and a tax of one per cent, for the improvement of streets and alleys in addition to one per cent, levied for general city revenue, and paid by plaintiffs, on the ground that the city had no power to impose such taxes. A judgment was rendered for the defendants below, which is brought here for review.
Section 11 of the charter of the City of Atchison (Private Lems of 1858,- p. IK), provides: “ That the Mayor and Board of Councilmen shall have power by ordinance to levy and collect taxes not exceeding one per centum upon real and personal property within the city, and upon property, lands, lots, interests or shares held, owned or claimed by any person or persons, company, firm, association or corporate body, whether the title of the United States thereto be extinguished or not, upon the assessed value thereof, and all moneys on hand or on' deposit, bills of exchange, bonds, notes and other securities held upon solvent persons or corporations, over and above the just debts or liabilities of the owner or holder thereof.- To levy and collect a poll tax, not exceeding one dollar per annum,' upon every free male person over twenty-one and under fifty-five years of age. To levy and collect special tax on the holders of the lots in every street, lane, alley or avenue, according to their respective fronts owned by them, for the purpose of grading and improving the same, for curbing and paving the sidewalks and lighting such .street, lane, avenue or alley. To levy and collect a tax on dogs,’ not exceeding five dollars each, per annum.” And then proceeds to grant power to license and tax certain occupations, t&c., but grants no further power to tax.property, ’
By the 4th section of an act amendatory of said charter, passed Eeb. 11th, 1859, it is provided that, “ The Mayor and Council shall be authorized to levy a tax upon all real estate, lot or lots lying upon any street or alley for the grading, paving or macadamizing thereof, either' by the front foot or the assessed value thereof.”
These provisions contain all the powers of taxation expressly granted to the City of Atchison by its charter. It will be seen that, the charter first confers the power of general taxation to the amount of one per centum upon real and personal property, and then proceeds to authorize the levy of a special tax on the holders of the lots in every street, lane, alley or avenue for the improvement of such streets, &c.
The language of the section clearly grants the power of taxation upon any or all, the different streets, &c., as distinct taxation districts, and is therefore clearly intended, not as a pgrt of the general tax of one per cent., but as additional to such general tax.
Tlie amendment above cited authorizes such tax to be levied by the front foot of the property taxed, or the assessed value thereof. And by the agreed statement of facts upon which this cause was tried, it appears that the assessment of tax for street improvements was upon the assessed value of the property abutting on the streets, and in strict, conformity with the charter of the city as amended.
• But it is claimed that the Legislature could not confer upon the city the- right to impose such tax.
As. the charter, was passed and the tax levied during the existence of the territorial, government, the powers of the Legislature are to be sought in the “ Organic Act.”
The 24th section of that act provides ■“ That the legislative power of the, Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act. But no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the property of residents.”
This provision conferred upon the Territory all the legislative power of a Stato government, unrestricted by its constitution except in the particulars above stated.
The granting of municipal powers, including powers of local taxation, for the improvement of streets and other purposes, to cities and villages is an ordinary act of legislation in immemorial use, and probably exercised by every State and Territory in the Union, and no Court that we are aware of has ever pronounced such legislation void.
Whether a Legislature could authorize a municipal corporation to assess' property for street improvements, not according to the value, but according to the supposed benefit to accrue from the improvement to the property taxed, has sometimes been questioned, though generally, if not uniformly, such legislation has been sustained. But the. tax under consideration involves no such question. It was assessed according to value upon the property abutting the street to be improved, and differs from ordinary taxation only in being levied upon streets instead of larger districts. It is quite analagous in principle to the method of assessment of highway labor by districts in use in this and many other States. It is not taking private property for public use without just compensation, but a method of distributing among the citizens the public biu-then of improving the streets. We think the assessment for improving streets was valid.
Section five of the act above cited amendatory of the charter, authorizes the sale of land for taxes, and we therefore see no grounds for restraining the collection in that manner of the tax under consideration.
The tax for the payment of interest on railroad bonds was for the payment of bonds issued under Section 30 of the city charter, which reads as- follows: “ That the City of Atchison as hereby incorporated, shall have power to subscribe for stock in any railroad company proposing to build a railroad leading to or from said City of Atchison in Kansas Territory,-or opposite to said city on the bank of the Missouri River, in the State of Missouri, provided that the stock subscribed for, and not actually paid in, shall not at. any time exceed two hundred thousand dollars, and provided that said city shall not subscribe- for more than one hundred thousand dollars of such stock in any one year, provided also that said city shall not subseribe-for. any such stock at any time until a proposition for thus subscribing shall have been submitted to a vote of the qualified voters in said city, and if a majority of the .votes polled approve of the proposition the stock may be subscribed, otherwise it shall not be.” , •
It is argued for the plaintiff that this section confers no authority to issue such bonds on the grounds: first, that the Legislature had no power to authorize the city to take railroad stock; and second, that the law requiring the.proposition to subscribe to be submitted to .the people for their approval, the subscription was void for that reason, within the principle of Barto v. Himrod, (8 N. Y., 483,) and kindred cases.
Ye will consider these points in their order.
"We have already seen that the Legislature which passed the charter in question, was invested with all the powers of a State Legislature, without any constitutional restriction affecting the question under consideration, and. we. see no reason to doubt that the legislative power óf a State extends to the creation of municipal corporations, and granting them such powers, not in conflict with th.e organic law of the. State or nation, as the Legislature shall deem wise, relating to the public interests of the Territory included within the bounds of such corporation.
( The apparent object of the Legislature in granting to the City of Atchison, the power to subscribe for railroad stock and raising a tax to pay for it, and of the city in exercising such power was by railroad connections to build up the material interests of that city. This was a legitimate object for public effort, and whether the policy adopted to effect it was wise or unwise, just or unjust, were questions addressed to the sound discretion of the Legislature, but in no degree affecting its power.
Does the provision for submitting the question for subscribing stock to a popular vote of the city invalidate the law?
The case of Barto v. Ilimrod, (4 Seld.. 483,) and other cases cited by the plaintiff upon this point are cases in which a proposed law affecting the whole State was submitted to the voters of the whole State to determine whether it should become a law. But the action complained of in this case is merely the submission of local questions of expenditure and taxation to the voters of the corporation which is to bear the expense and receive the benefits of it. If the Legislature might authorize the city to take railroad stock, it could make no difference with the legality of' the act whether the question of subscribing for such stock were submitted to the whole body of corpora-tors or to their representatives. If the one would be a delegation of legislative power the other would be equally so; the second question is merged in the first, and the authorities sustaining the first will also sustain the second.
The case of the Bank of Borne in the New York Court of Appeals, (18 N. Y., 38,) was an action for interest due upon a bond of the corporation issued for railroad stock, pursuant to an act of the Legislature authorizing the corporation to take stock in a railroad, terminating at that village, and to issue bonds therefor, but providing that no subscription to the stock' should be made nor bonds issued “ under the act until it had been approved by two-thirds of all the electors who shall have paid a tax on personal or real estate in said'village, whose names shall appear regrn larly on the last village assessment roll in which “ the vote is taken.” The Court held that the Legislature had the power to authorize, the village to subscribe for the stock and issue its bonds, and that the submission of the question of making the subscription to the people, did not invalidate the act. After distinguishing ihr.t case as we have this from the case of Barto v. ITimrcd previously decided in the same Court, the learned judge delivering the ojfinion, proceeds to say : “ The ease is therefore in substance only a submission to a vote of the parties interested, of the question whether or not they choose that the municipal corporation should subscribe "to the railroad; in other words the Legislature did not compel the village to subscribe, Ifut creating by law the necessary machinery left it to the taxpayers to determine the matter.”
The case of the Cincinnati, Zanesville and Willmington railroad v. The Commissioners of Clinton County, (1st Ohio State, 77,) involved the same points, with the difference only that the tax was assessed upon a county instead of a municipal corporation, and the Supreme Court of that State in an elaborate opinion maintained the same doctrine. The case of the City of St. Louis v. J. H. Alexander, (23d Mo. Rep., 483,) involved the same questions, and the Supreme Court of Missouri decided them in the same way. Other cases of similar import might be cited from different States were it deemed necessary.
That the proposed railroad was to be built outside the Territory of Kansas, cannot effect the case. The first object of the legislation in question is not the benefit of the State at large but of the municipality to bear the expense of the improvement.
In the case of the City of St. Louis v. Alexander above cited, the city subscribed for stock in the Ohio and Mississippi railroad, a work entirely outside of the State of Missouri, and the transaction was as we have already observed, sustained by the Supreme Court of that State.
"We entertain no doubt that the City of Atchison had power to subscribe for railroad stock, and to issue bonds therefor pursuant to the provisions of its charter, and to pay the interest and principal of such bonds by a tax upon real and' personal property within the limits of the city, provided that the whole amount of taxation assessed upon such property by the city government did not exceed in amount the limits prescribed by the city charter.
The general taxing power of the city government is limited to one per centran upon the real and personal property within the city by the express language of the charter. And there is no provision in the charter for any special tax for railroad purposes. One per cent, having been levied for general revenue, what power then remained to assess one per cent, for interest on railroad bonds ?
It is argued that the power being given to subscribe for stock, the power to levy a tax to pay for such stock must be implied from its necessity. It would be better logic to say that the limitation on the power of taxation is and was intended to be a check upon the public expenditures of the city for .railroad stock, as well as other purposes. In the case of the City of Leavenworth v. Margaret Norton et al. (1 Kans. R., 432,) substantially the same question was presented, and this Court held that the power of taxation could not be so implied.
¥e entertain no doubt that the assessment of the tax in question was unauthorized by law, and therefore void. But inasmuch as the petition presents no sufficient grounds for an injunction, the remedy at law being clear and undoubted, the decision of the Court below must be sustained. | [
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The opinion of the court was delivered by
Larson, J.:
Raymond Willdnson filed this action after being fired from his management position at Shoney’s, Inc., and having his unemployment benefits challenged. Willdnson alleged claims for malicious prosecution, wrongful discharge, and negligent misrepresentation. A unanimous jury found in his favor, awarded a total of $533,271 in damages, and recommended the imposition of punitive damages. Shoney’s and National Employers’ Council, Inc. (NEC), which handled Shoney’s’ unemployment compensation claims, appeal numerous issues. Willdnson cross-appeals. We dismiss all the appeals for lack of jurisdiction.
Due to the manner in which we resolve this appeal, we need not dwell upon the underlying facts of this case as adduced at trial. Instead, we present the procedural facts controlling our determination that we lack jurisdiction.
Following the jury verdict in favor of Wilkinson and its recommendation to impose punitive damages, the trial court sua sponte raised the issue of an interlocutory appeal. The trial court clearly stated it was concerned about the existence of malice sufficient to support an award of punitive damages and it desired an appellate resolution of this matter prior to entering a punitive damages award.
Despite two requests to the trial court on the part of Wilkinson to reconsider its decision to reserve the question of punitive damages, the trial court expressly entered judgment on behalf of Willdnson and found there was no just reason for delay. The order of judgment authorized an interlocutory appeal of all issues.
The parties filed their notices of appeal and cross-appeal in the Court of Appeals as is permitted by K.S.A. 60-2102(a) from a final order granted under K.S.A. 60-254(b), but never requested or received permission to file an interlocutory appeal as required by Supreme Court Rule 4.01 (1997 Kan. Ct. R. Annot. 26). We granted Wilkinson’s request for transfer to this court pursuant to K.S.A. 20-3017.
Jurisdiction
Neither party to this appeal has raised the question of jurisdiction; however, an appellate court has a duty to question jurisdiction on its own motion. If the record reveals that we lack jurisdiction, we must dismiss the appeal. McDonald v. Hannigan, 262 Kan. 156, Syl. ¶ 1, 936 P.2d 262 (1997), clearly states:
“The right to appeal is entirely statutory and not a right contained in the United States or Kansas Constitutions; subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes.” 262 Kan. 156, Syl. ¶ 1.
Both parties now appear to rely upon the provisions of K.S.A. 60-254(b) to support appellate jurisdiction of this case. K.S.A. 60-2102(a)(4) permits the appellate jurisdiction of the Court of Appeals to be invoked as a matter of right from “[a] final decision in any action.” K.S.A. 60-254(b) allows a court to enter a final judgment on less than all the claims in a case and reads in part:
“(a) Definition. A judgment is the final determination of the rights of the parties in an action.
“(b) Judgment upon multiple claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
K.S.A. 60-254(b) is the same as Fed. R. Civ. Proc. 54(b). We follow the federal cases interpreting 54(b) certifications. Gillespie v. Seymour, 263 Kan. 650, 653, 952 P.2d 1313 (1998).
Unlike our recent decision in State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 941 P.2d 371 (1997), the trial court in the present case made explicit findings which satisfy the requirements of K.S.A. 60-254(b). The question remains, however, whether a trial court, by issuing an order in compliance with K.S.A. 60-254(b), may render an order final, and therefore appealable, which is not in fact final. We hold that it cannot.
In Gillespie, 263 Kan. at 652-53, we restated our standard of review of this issue. When determining the propriety of a certification under K.S.A. 60-254(b), we first scrutinize the trial court’s evaluation of the interrelationship of the multiple claims to decide as a matter of law whether the judgment is final. If the judgment is final, substantial deference should be given to the trial court’s discretionary decision as to whether there is no just reason for delay.
The precise issue before us was previously discussed in an early Court of Appeals decision, Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977). The procedural facts of Henderson are substantially similar to those before us in the present case. The trial court granted partial summary judgment to the defendant on all the plaintiffs’ claims and on some of the defendant’s counterclaims. Urging an interlocutory appeal, the trial court expressly reserved for later determination the defendant’s counterclaim for punitive damages and any further cross-claims for indemnity by one of the plaintiffs against the other.
The Court of Appeals dismissed the attempted appeal, ruling that the order was interlocutory and not appealable. Although no attempt had been made to comply with K.S.A. 60-254(b), the parties in Henderson argued the trial court had implicitly complied with the statute. The Court of Appeals first decided that no such implicit determination had been made, then went on to state that even if there had been compliance with K.S.A. 60-254(b), the appellate court would not have been bound thereby.
In support of this conclusion, the Henderson court pointed out that the various claims for actual and punitive damages alleged by the defendant in his counterclaim constitute but one legal right. “The fact that more than one element of damages is sought does not destroy the unity of the claim.” 1 Kan. App. 2d at 108.
Henderson then quoted from Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1976), regarding the applicability of Rule 54(b). Wetzel was a Title VII discrimina tion action (42 U.S.C. § 2000e et seq. [1972]) seeldng injunctive, compensatory, and punitive relief and attorney fees. The trial court granted summary judgment only as to liability and issued a Rule 54(b) certificate, The Supreme Court held:
“Rule 54(b) 'does not apply to a single claim action . . . . It is limited expressly to multiple claims actions in which ‘one or more but less than all’ of the multiple claims have been finally decided and are found otherwise to be ready for appeal.’ [Citation omitted.] Here, however, respondents set forth but a single claim .... They prayed for several different types of relief in the event that they sustained the allegations of their complaint . . . but their complaint advanced a single legal theory which was applied to only one set of facts. Thus, despite the fact that the District Court undoubtedly made the findings required under the Rule, Srad it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. § 1291.” 424 U.S. at 742-44.
The Henderson court declared that Wetzel demonstrates there could be no “final” judgment for the defendant’s actual damages while the issue of punitive damages was still undecided. 1 Kan. App. 2d at 108-09.
Henderson found Cinerama, Inc. v. Sweet Music, S.A., 482 F. 2d 66 (2d Cir. 1973), closely analogous to its factual situation. The trial court in Cinerama granted partial summary judgment on a defendant’s counterclaim, reserved the question of interest, and issued a Rule 54(b) certificate. The Second Circuit determined it had no jurisdiction, stating:
“It is settled that, in making the requisite determination and direction under F.R.Civ.P. 54(b), ‘[t]he District Court cannot, in the exercise of its discretion, treat as “final” that which is not “final” within the meaning of [28 U.S.C.] § 1291’ (emphasis in original) .... Sears, Roebuck & Co. v. Mackey [351 U.S. 427, 437],
“We see no basis for the apparent belief of the district court that it could sever the Bank’s claim for principal from its claim for prejudgment interest and render a ‘final’ judgment only for the former.” 482 F.2d at 69.
We r ecen tly upheld the rule expressed in Henderson in Gillespie, 263 Kan. at 650, where we found that certification under K.S.A. 60-254(b) was improper. We dismissed the attempted appeal on the grounds that the judgment did not involve a resolution of one of multiple claims and was not a final judgment. Gillespie, 263 Kan. at 655, quoted the following from a Kansas Law Review article: “ ‘Even if a section 254(b) certificate is issued, it is not binding on appeal; the trial court cannot thereby make an order final and therefore appealable, if it is not in fact final.’ ” Elliott, Survey of Kansas Law: Civil Procedure, 27 Kan. L. Rev. 185, 194 (1979) (citing Henderson, 1 Kan. App. 2d 103).
The rule that a final decision must be rendered on all inseparable claims before an appellate court may obtain jurisdiction pursuant to Rule 54(b) has continued to be upheld in more recent federal cases. See, e.g., General Acquisition, Inc., v. GenCORP, Inc., 23 F.3d 1022, 1027 (6th Cir. 1994) (ruling that determination under Rule 54[b] that a particular order ultimately disposes of a separable claim is a question of law requiring de novo review); Perera v. Siegel Trading Co., Inc., 951 F.2d 780, 786 (7th Cir. 1992) (“[T]he district court cannot expand this court’s appellate jurisdiction by simply entering a Rule 54[b] judgment. That is, a district court’s entiy of a Rule 54[b] judgment cannot transform an interlocutory decision into a final decision.”); Arizona St. Carpenters Pension Tr. Fund v. Miller, 938 F.2d 1038, 1039 (9th Cir. 1991) (“Even though a decision is certified under Rule 54(b), this court must make sure it is dealing with a final judgment before exercising its jurisdiction.”).
In Miller, the Ninth Circuit held that a dismissal of a claim of punitive damages while claims for compensatory damages remained pending was not a final, appealable order. The court declared:
“Here, it is clear that the count for punitive damages is not ‘separate and distinct’ from the remainder of the counts in the complaint, but is based on a single set of facts giving rise to a legal right of recovery under several different remedies. [Citation omitted.] We join the Third Circuit in holding that ‘[w]hen liability rests on the same transaction or series of transactions, a count for punitive damages, although of a different order than compensatoiy damages, does not constitute a separate claim under Rule 54(b).’ Sussex Drug [Products v. Kanasco, Ltd., 920 F.2d 1150, 1155 (3d Cir. 1990)].
“It is plain that the Trust Funds’ punitive damage count and their compensatory damage counts are ‘inextricably intertwined.’ ” 938 F.2d at 1040.
The reasoning of Henderson and the federal cases describing the proper limits of jurisdiction under Rule 54(b) is sound. Piecemeal appeals are undesirable and cannot be sanctioned by allowing a trial court to circumvent the finality requirement simply by granting certification under K.S.A. 60-254(b) to an interlocutory ruling, which otherwise would require permission from the Court of Appeals before an appeal could be taken. We continue to approve the holding of Henderson and rule that certification under K.S.A. 60-254(b) cannot render a judgment final, and therefore appealable, which is not in actuality final.
Having reached this conclusion, we also find that the claims in this case for compensatory and punitive damages are inseparable, as both rise from the same factual circumstances and are simply two different remedies. In defining a final judgment, we recently quoted from Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975), in Beyrle, 262 Kan. at 510: “ ‘ “No definition of ‘final decision’ is contained in the statute but this court has previously construed it to mean, ‘one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.’ [Citations omitted.]” ’ ”
The judgment below, which failed to determine the issue of punitive damages, did not dispose of the entire merits of the controversy and is not a final judgment for purposes of appeal. We lack appellate jurisdiction to determine the issues attempted to be raised by this appeal. The judgment entered below is interlocutory and subject to revision until a final judgment on all issues is entered.
We add as a final observation, as we did in Gillespie, 263 Kan. at 656, that should a future appeal be taken from a final judgment rendered in this case, a motion to utilize the present record and briefs, suitably supplemented, would be favorably received.
Appeal dismissed.
Six, J., not participating.
E. Newton Vickers, Senior Judge, assigned. | [
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Per Curiam:
This is an original, uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Gordon M. Rock, Jr., an attorney licensed to practice law in the state of Kansas whose last known business address is in Johnson County, Kansas.
The formal complaint filed by the Disciplinary Administrator alleged that Rock violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2004 Kan. Ct. R. Annot. 342) (competent representation), KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence and promptness), KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication with client), KRPC 1.15(a) (2004 Kan. Ct. R. Annot. 414) (safekeeping property), KRPC 1.15(b) (prompt delivery of funds or property), KRPC 1.16(d) (2004 Kan. Ct. R. Annot. 426) (termination of representation), KRPC 3.4 (2004 Kan. Ct. R. Annot. 449) (compliance with discovery requests), KRPC 8.1 (2004 Kan. Ct. R. Annot. 480) (cooperation in disciplinary investigations), KRPC 8.4(a) (2004 Kan. Ct. R. Annot. 485) (professional misconduct), KRPC 8.4(b) (committing a criminal act), KRPC 8.4(c) (dishonest, fraudulent, or deceitful conduct), KRPC 8.4(d) (conduct prejudicial to the administration of justice), KRPC 8.4(g) (conduct adversely reflecting on fitness to practice), and Supreme Court Rule 207 (2004 Kan. Ct. R. Annot. 261) (cooperation with Disciplinary Administrator).
The complaint was heard by a duly constituted hearing panel of the Kansas Board for Discipline of Attorneys on May 20, 2004. The respondent, Gordon M. Rock, Jr., although lawfully notified, failed to appear.
The hearing panel, after admitting exhibits and hearing testimony by seven witnesses, made the following findings of fact from the five different complainants, which are summarized as follows:
Monica Hayden-Carroll
In March 2001, Monica Hayden-Carroll retained Rock to bring a medical malpractice lawsuit against an orthopedic group that operated on her knee. Hayden-Carroll paid Rock approximately $1,150, including a filing fee, record copying fees, and an expert evaluation fee. Rock filed an action on behalf of Hayden-Carroll in the Johnson County District Court in August 2001. In March 2002, Rock advised Hayden-Carroll that she did not have a case and told her that he wanted to dismiss the case, investigate different options, and refile within 6 months. Although Hayden-Carroll repeatedly attempted to contact Rock and inquire about the status of her case, Rock failed to respond to any of Hayden-CarrolTs calls until July 2002. At that time, Rock informed Hayden-Carroll that she did not have a claim. Hayden-Carroll requested a copy of the medical expert’s report and the return of her records. Rock did not provide Hayden-Carroll with a copy of the medical expert’s report or return her medical records. In December 2002, this court issued a subpoena duces tecum to Rock requesting that he produce all of the files, memoranda, records, and documents regarding his representation of Hayden-Carroll. The Disciplinary Administrator’s office attempted to serve the subpoena but could not locate him. Rock failed to produce any of the documents requested, and Hayden-Carroll had to replace all of her medical records.
Owen Lecheler
Owen Lecheler hired Rock in February 2000 to represent Lecheler’s brother, Norbert, who lived in a nursing home because he had been paralyzed from the waist down in a car accident. Lecheler paid Rock $2,867.83 for medical records and an expert consultation. In November 2001, an insurance company offered to settle with Norbert for $500,000, but Rock advised Lecheler that the offer was insufficient and he should proceed with a lawsuit. Lecheler attempted to call Rock numerous times regarding the status of his brother s case, but Rock failed to respond until he met with Lecheler and Norbert in October 2002. At that time, Lecheler paid Rock $1200: $200 for the filing fee and $1000 for a video about Norbert’s life. Lecheler again attempted to contact Rock regarding the case but discovered that Rock had left his office. Rock failed to respond to any of Lecheler’s messages. Lecheler never received the video about Norbert’s life, and Rock failed to file an action for Norbert. Lecheler contacted another attorney to pursue Norbert’s case, but the status of any lawsuit is unknown. Although another attorney requested Norbert’s file, Rock has not returned any of Norbert’s medical records. The Client Protection Fund reimbursed Lecheler for the money he paid Rock for expenses.
Kathy White
Kathy White retained Rock in October 2001 to pursue a possible medical malpractice action arising from the death of her husband. White obtained the majority of her husband’s medical records and provided them to Rock. After several months passed, White began trying to contact Rock, but none of her calls were returned. Finally, in July 2002, White left a message with Rock stating that she would withdraw her case if she did not hear from him. Rock returned this message but could not advise White regarding her case. He requested 10 days to review the records. Rock called White as promised but requested more time to review the records. When Rock failed to call her as promised, White left a message stating that she was terminating his representation. She asked Rock to return her husband’s records, but Rock claimed to have lost them and never returned them. White was unable to determine that she had an actionable claim until after the statute of limitations passed.
Marsha Mendenhall
Marsha Mendenhall engaged Rock in June 2001 to pursue a medical malpractice claim. Rock filed a petition on Mendenhall’s behalf in August 2001, but later failed to designate an expert in accordance with the court’s discovery order. As a result, the de fendant filed a motion to dismiss in April 2002, and Mendenhall’s petition was dismissed. Mendenhall did not discover that her petition had been dismissed until June 2002, when she contacted the Wyandotte County District Court regarding her case. Mendenhall had left numerous messages for Rock from January 2002 until June 2002, but Rock never returned her calls. However, in October 2002, Rock contacted Mendenhall to ask if she wanted to refile her petition. Because she had contacted another attorney and continued to investigate her case, Mendenhall knew that she did not have a cause of action so she declined, but she requested that Rock return all of her personal records. Rock never returned Mendenhall’s records.
Gwendolyn G. Howard
Gwendolyn G. Howard retained Rock in July 2001 to represent her in collecting insurance proceeds and paying medical bills associated with injuries she received in a car accident. In August 2001, Rock received an insurance check from United States Automobile Association (USAA) made out to himself, Howard, and Howard’s husband. Howard and her husband endorsed the check with the understanding that Rock would use the money to pay her medical expenses before distributing the balance. In March 2002, one of Howard’s medical providers sued her for a delinquent bill. A year later, Rock appeared at a hearing regarding the lawsuit on Howard’s behalf and told her that he would take care of the matter. However, Rock failed to appear at the trial in June 2003, and Howard had to retain another attorney to represent her. Howard’s new attorney discovered that Rock had cashed the $50,000 USAA check in September 2001 without paying any of Howard’s medical bills or providing any proceeds to Howard. The Johnson County District Attorney’s office initiated a criminal investigation regarding Rock’s actions with Howard’s insurance proceeds. The Client Protection Fund reimbursed Howard for the $50,000 stolen by Rock.
The exhibits, testimony, and record further show that Rock failed to provide a written response to any of the initial complaints. Although the investigator sent numerous letters, made repeated phone calls, and visited Rock’s residence in an attempt to contact Rock, she only spoke with him on one occasion. During the conversation, Rock promised to provide a written response to one of the complaints but never complied with his promise. Rock also failed to respond to the formal complaint and failed to appear before the hearing panel.
The hearing panel concluded that Rock violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15(a), KRPC 1.15(b), KRPC 1.16(d), KRPC 3.4(d), KRPC 8.1, KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(g), and Supreme Court Rule 207, as alleged in the complaint. In addition, the hearing panel concluded that Rock violated Rule 211 (2004 Kan. Ct. R. Annot. 275) (answer to disciplinary complaint).
The hearing panel found the following aggravating and mitigating factors:
“Dishonest or Selfish Motive. The Respondent knowingly converted $50,000.00 that should have been paid to Mr. and Mrs. Howard, to Medicare, and to other medical providers. Because the Respondent knowingly converted $50,000.00, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“A Pattern of Misconduct. Included in this case are five complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. As such the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide written responses to the complaints. The Respondent never filed such responses. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Vulnerability of Victim. The Respondent’s clients were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1980. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Indifference to Malang Restitution. To date, the Respondent has made no effort to make restitution to any of his clients.
“Illegal Conduct, Including that Involving the.Use of Controlled Substances. When the Respondent knowingly converted the $50,000 belonging to Mr. and Mrs. Howard, the Respondent engaged in illegal conduct.
....
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.”
The hearing panel unanimously recommended that Rock be disbarred, relying on American Bar Association Standard 4.41 from the ABA Standards for Imposing Lawyer Sanctions (1999), which provides:
“Disbarment is generally appropriate when:
(a) a lawyer abandons tire practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.”
The hearing panel further suggested that Rock be required to make complete restitution to his clients and the Client Protection Fund before filing a petition for reinstatement. Finally, the hearing panel recommended that a copy of the final hearing report be forwarded to the attorney admissions’ offices and to die attorney discipline offices in California and Vermont, states in which it is believed that Rock has been living.
Rock failed to appear before this court either in person or through counsel, although lawfully notified of the setting of his disciplinary hearing. Because Rock did not file any exceptions to die hearing panel’s findings within 20 days, the hearing panel’s report is deemed to be admitted pursuant to Supreme Court Rule 212(c) and (d) (2004 Kan. Ct. R. Annot. 285).
The court, having considered the record and report of the hearing panel, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel. The court agrees that Rock’s misconduct requires disbarment.
It Is Therefore Ordered diat Gordon M. Rock, Jr., be and he is hereby disbarred from the practice of law in the state of Kansas, that his privilege to practice law in the state of Kansas is hereby revoked, and that the Clerk of the Appellate Courts of Kansas strike the name of Gordon M. Rock, Jr., from the roll of attorneys licensed in the state of Kansas.
It Is Further Ordered that Gordon M. Rock, Jr., be required to make complete restitution to each of his former clients and the Client Protection Fund before he may petition this court for reinstatement.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to Gordon M. Rock, Jr., and that Gordon M. Rock, Jr., forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
Gernon, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Peggy Smith was injured in an automobile accident and filed suit against Edward Williams, the other driver. During the litigation, plaintiff agreed to an independent medical examination by defendant’s medical expert. Plaintiff alleges that during the examination, she was asked personal and inappropriate questions and was sexually battered by the examining doctor. Plaintiff brought an action for negligence, misrepresentation, assault, battery, invasion of privacy, outrage, and violation of her right to informed consent. The district court granted the examining doctor summary judgment on the claims of informed consent, assault, battery, tort of outrage, and invasion of privacy. Plaintiff voluntarily dismissed her negligence and misrepresentation claims to pursue this appeal. We accepted jurisdiction pursuant to K.S.A. 20-3018(c).
The relevant facts are incorporated from the district court’s order granting summary judgment. Peggy Smith alleged she suffered head and neck injuries in an automobile accident on January 11, 1994, and filed an action against Edward Williams. Rather than requiring Williams’ attorney to obtain a court-ordered medical examination pursuant to K.S.A. 60-235, Smith’s attorney agreed his client would undergo an independent medical examination by Dr. Lauren Welch, a board-certified neurologist. The purpose of the independent medical examination was to determine the extent, if any, of Smith’s head and neck injuries.
During the examination at Dr. Welch’s office, while Smith and Dr. Welch were alone, Welch asked Smith a series of questions about her medical history. While taking Smith’s history, Dr, Welch would snap his fingers and tell her she was not answering fast enough. Numerous times Dr. Welch told Smith she was stupid or lying and she had better start cooperating or she would not receive her settlement.
Some of Welch’s questions had obvious medical relevance to a head and neck injury and other questions required a detailed statement of Smith’s sexual past. Although not a complete list, Dr. Welch asked Smith whether her parents and her sister were sexually active, whether Smith was having sex with someone else while dating her present boyfriend, what qualities about her boyfriend made her want to have sex with him, whether Smith had ever had sex with more than one person at a time, and whether she had ever had sex with her sister.
While asking Smith questions of a sexual nature, Dr. Welch told Smith numerous times that she had better answer his questions because he worked for the other side and a failure to answer would result in Smith not receiving a settlement in her personal injury action. Dr. Welch asked Smith if she knew what it meant to not “count your chickens before they hatch.” He stated it meant she had better not count on her settlement because she was not doing what he required.
After Dr. Welch obtained Smith’s medical history; he led her to an examination room where he threw a gown at Smith and told her to undress and put on the gown. Smith did. When Dr. Welch and his nurse entered the examination room, he untied the gown and exposed Smith’s breasts. Smith crossed her arms over her breasts. Welch grabbed Smith’s arms and moved them away from her breasts. Dr. Welch began to examine Smith’s breasts. Smith states it was unlike any other breast examination she had undergone previously. Smith asserted that Dr. Welch fondled her nipples and placed a cold stethoscope on them.
During the course of the examination, Smith repeatedly placed her hands over her breasts. Dr. Welch continually removed her hands from her breasts. Welch told Smith not to be a “baby” about the examination.
After examining Smith’s breasts, Dr. Welch moved his hands towards Smith’s abdomen. Smith covered her pubic region with her hands. As Welch’s hands reached Smith’s pubic area, he attempted to move Smith’s hands. At that point, Smith sat up and ended that portion of the examination.
Dr. Welch then placed his hands on the back of Smith’s head and started lifting. Smith complained that this was hurting her. Dr. Welch told her to “just take it, she would be fine.”
Smith settled her claim for the injuries to her head and neck. She then filed this action against Dr. Welch, claiming the examining physician had acted negligently; violated her right to informed consent; misrepresented the need for various aspects of the examination; and committed an assault, a battery, an outrageous act, and an invasion of her privacy.
Standard of Review
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
In a letter to Smith’s counsel, Smith’s expert, Dr. Janice M. Mullinix, wrote: “It is a departure from standard neurologic practice to do a breast examination or a gynecologic examination as part of assessment of head injury or of headaches. It is a further departure from standard neurologic practice to persuade a patient to consent to these procedures.”
After significant discovery, Dr. Welch filed a motion for summary judgment. The district court stated in its conclusions of law:
“20. That Dr. Janice Mullinix, who has been retained by Plaintiff’s counsel to provide expert testimony, is not disqualified as an expert because she has not performed independent medical examinations, but is not qualified legally to usurp the function of the Court in directing the scope of the examination. Accordingly, the relevance of her opinions is questionable.
“22. The nature and scope of questions about sexual activity is not within the province and understanding of laymen; rather, expert testimony is required on this issue. In light of the Plaintiff not having any expert testimony on this issue, any alleged tort relating to the nature and scope of the sexual questioning fails as a matter of law.
“23. Inasmuch as Plaintiff, by and through her counsel, consented to the examination, the invasion of privacy and assault and battery claims fail as a matter of law.
“25. The Plaintiff’s allegations, assuming the same to be true, would not cause a reasonable person to be outraged, and accordingly, the tort of outrage claim fails as a matter of law.”
The district court granted Dr. Welch partial summary judgment. Smith’s negligence and misrepresentation claims survived summary judgment. Smith voluntarily dismissed those claims without prejudice and appealed the grant of summary judgment. Our review is limited to Smith’s claims of assault, battery, outrageous conduct, and invasion of privacy.
K.S.A. 60-235 permits a party to seek an independent medical examination when a litigant places his or her medical condition at issue in the case. If the court determines an examination is needed, the conditions and scope of the examination are determined by the court. Because Smith agreed to an examination, there is no court order setting the conditions or scope of the examination. There is no evidence as to the agreement between counsel with respect to the conditions or scope of the medical examination except as stated in paragraph 5 of Smith’s petition, which alleges:
“5. Plaintiff was involved in a motor vehicle accident on January 11,1994, as a result of which she sustained injuries to her head and neck. As a result thereof plaintiff filed suit on May 6, 1994 in the Sedgwick County District Court (Case No. 94 C. 1323) to recover damages she sustained in said accident. In the course of said lawsuit, counsel for the defense requested that plaintiff submit to an independent medical examination. The examination was scheduled to be conducted by the defendant herein at his place of business.” (Emphasis added.)
Dr. Welch admitted these allegations in his answer; therefore, we conclude Dr. Welch’s examination was limited to a determination of Smith’s “injuries to her head and neck”
Expert Witness and Scope of Testimony
The district court found that the testimony of Smith’s expert witness, Dr. Mullinix, had litde relevance because a medical expert “is not qualified legally to usurp the function of the Court in directing the scope of the examinations.” The district judge’s conclusion is difficult to understand. Here, there was no court-ordered examination. Rather, the parties agreed to an examination to ascertain the extent of Smith’s head and neck injuries sustained in an automobile accident. Even if the district court had ordered an examination to ascertain the extent of Smith’s injuries, the scope of that examination would be limited to determining the extent of the head and neck injuries plaintiff suffered in the automobile accident. Judges are not experts on neurology; the testimony by Smith’s expert as to standard practice in that field is relevant. Simply stated, that is the issue to be determined in this case.
The district judge also found that the
“nature and scope of questions about sexual activity is not within the province and understanding of laymen; rather, expert testimony is required on this issue. In light of the Plaintiff not having any expert testimony on this issue, any alleged tort relating to the nature and scope of the sexual questioning fails as a matter of law.”
We are unable to find any Kansas authority that requires expert testimony on the subject of the nature and scope of sexual activity.
Amici Curiae
The Kansas Association of Defense Counsel (KADC) and the Kansas Trial Lawyers Association (KTLA) were permitted to file amicus curiae briefs. KADC noted that it is critical to the defense of personal injury actions that defendants be able to test and, where possible, challenge the nature and extent of a plaintiff’s alleged damages. It claims that recognition of a physician-patient relationship between plaintiff and an examining physician, or creation of negligence causes of action against such physicians, will necessarily have a chilling effect on the willingness of doctors to perform such examinations. Therefore, KADC contends, it is absolutely essential that the right of independent medical examinations be preserved.
KADC recognizes there should not be an absolute prohibition of claims alleging intentional torts committed by an examining physician. It notes that an examining physician does not have authority to sexually molest or intentionally inflict bodily harm on a person examined. KADC asserts that on the merits of this particular dispute, plaintiff has not established the necessary elements of sexual battery through expert testimony. It concludes that this court should not use this case to impose duties upon an examining physician that would allow negligence and malpractice claims to be asserted by persons injured during an independent medical examination who had never received or requested treatment from the examining doctor.
KTLA agrees that a claim for medical negligence requires proof of a physician-patient relationship and a breach of the duty created by that relationship. See Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994). On the other hand, it notes that a claim for assault, battery, or invasion of privacy requires no special duty. See, e.g., Taiwo v. Vu, 249 Kan. 585, 596, 822 P.2d 1024 (1991) (elements of civil assault stated). KTLA observes that the torts of battery and invasion of privacy similarly lack any requirement of a special relationship between the parties or duty by the defendant. See generally PIK Civ. 2d 14.02 (defining civil battery) and PIK Civ. 2d 14.61 (defining invasion of privacy). KTLA concludes that Dr. Welch’s argument that he cannot be liable for an intentional tort because there was no physician-patient relationship, or because his duty was to the defense counsel who hired him to conduct the medical examination, is a legal nonsequitur.
Smith’s Assertions
Smith admits she consented to an examination to ascertain the scope of her head and neck injuries. She asserts that Dr. Welch exceeded the scope of a medical examination for head and neck injuries. She argues that even if a breast examination were required, Welch did not conduct a medical exam; he groped and sexually fondled her.
A medical examination of the body of a person is a technical invasion of privacy, battery, or trespass, regardless of its result, unless the person or some authorized person consents to it. Younts v. St. Francis Hospital & School of Nursing, 205 Kan. 292, Syl. ¶ 2, 469 P.2d 330 (1970). Ordinarily, as applied to a surgical operation, the distinction “between an unauthorized operation amounting to assault and battery on the one hand, and negligence such as would constitute malpractice on the other, is that the former is intentional while the latter is unintentional.” Hershey v. Peake, 115 Kan. 562, Syl. ¶ 1, 223 Pac. 1113 (1924). The gravamen of a civil invasion of privacy, assault, battery, and sexual battery is grounded upon the actor’s intention to inflict injury. See Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964).
The remedy for an invasion of one’s right to privacy is a civil action. One’s right to privacy is invaded if another intentionally intrudes, physically or otherwise, upon one’s solitude or seclusion and if the intrusion would be highly offensive to an ordinary person. PIK Civ. 2d 14.61. It is also important to note that assault, battery, and sexual battery are intentional civil injuries and are also separate and distinct statutory crimes. “An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” Taiwo v. Vu, 249 Kan. 585, Syl. ¶ 7; see K.S.A. 21-3408. Battery is intentionally or recklessly causing bodily harm to another person or intentionally causing physical contact with another person when done in a rude, insulting, or angry manner. K.S.A. 21-3412. Sexual battery is the intentional touching of the person of another who is 16 or more years of age, who is not the spouse of the offender, and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another. K.S.A. 21-3517.
The Kansas Criminal Code, K.S.A. 21-3101 et seq., does not bar, suspend, or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based on conduct which the code makes punishable. K.S.A. 21-3103. Assault, battery, and sexual battery are statutory crimes; however, the civil injury caused by an assault, battery, or sexual battery is not merged in the crime in that the injured party has a civil right or remedy against the perpetrator of the crime.
Tort of Outrage
The tort of outrage has two threshold requirements that the trial court must determine: (1) whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by the plaintiff was of such extreme degree the law must intervene because the distress inflicted was so severe that no reasonable person should be expected to endure it. Taiwo v. Vu, 249 Kan. 585, Syl. ¶ 4.
To prove the tort of outrage, a litigant must show: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was extreme and severe. 249 Kan. at 592.
This court has previously reviewed outrage claims. The tort of outrage was recognized in Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974). There, Dawson, who had been unable to make car payments by reason of symptoms associated with multiple sclerosis, was called repeatedly by Associates’ employees who questioned her as to when she was going to make her payments. The calls became threatening, with Associates telling Dawson her credit would be ruined, and there were intimations that her parents’ business would be adversely affected because Associates did business with them. Associates also called Dawson’s parents, telling them the same thing. There were no allegations that Associates’ employees were rude or screamed or used name-calling. The calls caused Dawson’s symptoms to radically worsen due to increased stress.
Dawson filed an action alleging that the finance company intentionally harassed her by threatening to repossess her automobile, knowing that she had multiple sclerosis and was making a claim under an insurance policy to cover the loan payments. The trial court directed a verdict in favor of the finance company. Dawson appealed.
The Dawson court reversed the district court, holding that a creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm. 215 Kan. 814, Syl. ¶ 1.
In Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979), Kukal observed Wiehe threatening her husband with a pitchfork while ranting and raving at him. As a result of this experience, Kukal became severely depressed, her health became poor, she lost weight, and she cried a lot. Kukal recovered $10,000 for severe emotional distress from Wiehe as a result of her anguish.
The Wiehe court reversed the judgment, noting that Wiehe’s conduct, uncommendable though it was, was not “extreme and outrageous” because he did not touch Kukal’s husband. The Wiehe court found there was no evidence that Wiehe had any prior knowledge of Kukal’s susceptibility to mental distress, and, in fact, the evidence was that her mental and physical health had been good and she had evidenced no tendency toward mental or emotional distress or disease prior to the occurrence on December 1, 1973, or that Wiehe intended to cause harm to Kukal.
In Taiwo v. Vu, 249 Kan. 585, Vu lied to the police about Sherry and Obafemi Taiwo’s involvement in vandalism and accused Ob afemi Taiwo of battering her. The Taiwos filed a civil action against Vu, alleging assault, battery, false imprisonment, and intentional infliction of emotional distress (the tort of outrage). Thé jury awarded $20,000 to the Taiwos, and the trial judge assessed $3,000 in punitive damages. Vu appealed to the Court of Appeals. The Court of Appeals set aside the judgment and remanded for a new trial. Taiwo’s petition for review was granted. The Taiwo court observed that Vu had caused harm to the plaintiff and had abused the criminal justice system for her own purposes. The Taiwo court reversed the Court of Appeals, finding that where reasonable people did not agree on whether the conduct was outrageous, the question is one for the jury. The verdict in the district court was reinstated. 249 Kan. at 593.
Here, the district court held that the threshold requirement, a showing that the alleged conduct of Dr. Welch could reasonably be regarded as so extreme and outrageous as to permit recovery, was not met. In reaching this conclusion, the court did not recognize the distinction between the Wiehe court’s finding that the conduct alleged was not outrageous because there was no intent to harm the victim and the Taiwo court’s finding that Vu’s abuse of the criminal justice system and intentional harm to the plaintiffs was outrageous. Here, Dr. Welch is alleged to have intentionally committed criminal acts under the guise of performing an independent medical examination and to have caused mental distress to the plaintiff.
Dr. Welch's Argument
Dr. Welch presents several arguments in support of the district court’s grant of summary judgment. Dr. Welch first claims that as the examining physician, his duty was not to Smith, but to the entity that retained him to examine Smith. In support of this argument, Dr. Welch cites cases that conclude that a physician performing an independent medical examination has no duty to treat the person examined for illnesses or to diagnose illnesses. See Ervin v. American Guardian Life Assur., 376 Pa. Super. 132) 545 A.2d 354 (1988); Elia v. Erie Ins. Exchange, 398 Pa. Super. 433, 581 A.2d 209 (1990); Henkemeyer v. Boxall, 465 N.W.2d 437 (Minn. 1991).
These cases hold that no cause of action accrues when a physician, acting on behalf of the other party in litigation, failed to treat or to diagnose an illness in the opposing party examined. However, none of the cases cited by Dr. Welch discuss whether the physician conducting the independent medical examination may negligently or intentionally injure the person examined. See Wilson v. Winsett, 828 S.W.2d 231, 233 (Tex. App. 1992), which holds that in performing court-ordered examinations, the physician has a duty not to cause harm or injury to the examinee. Additionally, as noted previously by KTLA, whether Dr. Welch had a duty to Smith is irrelevant as to her intentional tort claims.
Dr. Welch’s second argument is that court-ordered or agreed-to examinations are appropriate even if they are invasive and potentially embarrassing to the examinee. We agree that a litigant cannot seek compensation for an injury and then refuse examination of the injury by the opposing party because that examination would be embarrassing to the injured party.
If a proper breast examination and an examination of Smith’s genitalia were appropriate in investigating and determining the extent of her head and neck injuries, the potentially embarrassing aspects of such an examination, while unfortunate, would be necessary. But Smith’s expert states that to determine a head or neck injury, an examination of a woman’s breasts or pubic region is not necessary or appropriate. In addition, Smith alleges Dr. Welch did not perform a proper examination of her breasts; he fondled them and attempted to fondle her pubic region. Whether this part of the examination was required or performed in the manner in which Smith alleges is the issue to be determined.
Dr. Welch’s final argument is that he had qualified immunity insulating him from liability for injuries caused during the examination by his negligent or intentional acts. The basis of this argument is the historical protection afforded parties and witnesses from liability for damages arising from their testimony during court proceedings. The problem with this argument is obvious. The immunity Welch asserts is directed to the testimony of the witness. If a witness testifying in open court leaped from the stand and battered the attorney questioning the witness, there is little doubt that there would be criminal and civil liability for the battery. Asking intensely personal questions during an examination or fondling Smith’s breasts and attempting to grope her genitalia does not fit within the parameters of this historical privilege.
Even though Smith’s claims are intentional torts, other courts have considered a physician’s liability for negligence during an independent medical examination. Greenberg v. Perkins, 845 P.2d 530 (Co. 1993), involved a physician performing an independent medical examination who prescribed further tests to ascertain the extent of Perkins’ injuries. Prior to the testing, Perkins told the physical therapist who was to perform the tests about previous back problems she had. Concerned that the testing would aggravate Perkins’ problems, the physical therapist called Dr. Greenberg to tell him of the concerns. Dr. Greenberg replied that the physical therapist should do the best she could. During the course of the tests, Perkins’ back problem was aggravated, ultimately requiring surgery to correct.
In determining the extent of Dr. Greenberg’s liability, the Colorado court analyzed a physician’s duty of care while performing independent medical examinations. The court noted:
“Many courts set forth a ‘general’ rule that in the absence of a physician-patient relationship a physician owes no duty to an examinee. [Citations omitted.] Many of these same courts, however, recognize a duty of care if the examining physician undertakes in some way to act on behalf of the examinee [citations omitted] or induces reasonable reliance by the person examined. [Citations omitted.] Some courts conclude that medical malpractice standards govern, and recognize a duty of care simply on the basis of the relationship created by the referral and examination. [Citations omitted.] Others agree but temper this conclusion by expressly limiting the scope of the duty to the functions the physician agrees to undertake. [Citations omitted.] Still others hold that the absence of a physician-patient relationship precludes a malpractice action, with the concomitant broad duty of care, but that an ordinary negligence action can be maintained in appropriate circumstances. [Citations omitted.] Some of these latter cases are based on the well recognized principle that a person who assumes to act must act with care. [Citations omitted.]” 845 P.2d at 535.
Regardless of the standard of care, the Colorado court noted “all courts that have considered the issue agree, under one form of analysis or another, that a physician owes a duty of care to a non- patient examinee to ‘conduct the examination in a manner not to cause harm to the person being examined.’ ” 845 P.2d at 535 (citing Rand v. Miller, 185 W.Va. 705, 707, 408 S.E.2d 655 [1991] [quoting Keene v. Wiggins, 69 Cal. App. 3d 308, 313, 138 Cal. Rptr. 3]).
Dr. Welch was retained by the defendant to perform an examination and determine the extent of a head and neck injury. Although the examination was not court-ordered, it was agreed to by the parties’ counsel. This agreement was in lieu of a court-ordered independent medical examination. Under either circumstance, Smith had every reason to believe she would be treated with dignity. She certainly had a right not to be criminally assaulted, battered, or sexually battered. If the allegations of such conduct are proven at trial, would an average person find a medical examination under those circumstances to be outrageous? Yes.
The parties also disagree whether a physician-patient relationship existed between Smith and Dr. Welch. A physician is obligated to his or her patient to use reasonable and ordinary care and diligence in the treatment of cases the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians. Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 3, 673 P.2d 86 (1983). The district court held the relationship between Smith and Dr. Welch was not an ordinaiy physician-patient relationship.
Was there a physician-patient relationship between Dr. Welch and Smith? No. Dr. Welch was not treating Smith or examining her to recommend a course of treatment. The physician was retained to provide an expert medical opinion on an issue involved in civil litigation. Under such circumstances, the traditional physician-patient relationship does not exist.
Does a physician performing an independent medical examination have a duty not to negligently injure the person examined? Yes. A physician performing an independent medical examination has a duty to use reasonable and ordinaiy care and diligence in the examination the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians. See Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 3. The examining physician has a duty not to negligently cause harm or injury to the person examined.
Is the duty of a physician not to injure the person being examined affected by the fact that physician was employed by a third party? No. The duty of a physician conducting an independent medical examination not to injure the person being examined is not affected by the fact that the physician was employed to conduct the examination by a third party and no contractual relationship existed between the physician and the person being examined. Malone v. University of Kansas Medical Center, 220 Kan. 371, 375, 552 P.2d 885 (1976).
A physician performing an independent medical examination is obligated to the person being examined to make a reasonable disclosure of pertinent facts and hazards within the physician’s knowledge relating to the proposed examination so that the person being examined may make an intelligent decision to consent or refuse the examination.
Is the physician-patient relationship necessary for an intentional tort claim asserted by the person being examined? No. As to the intentional tort claims of invasion of privacy, assault, battery, and sexual battery, it makes no difference whether a physician-patient relationship exists.
Did the district court err in granting summary judgment on Smith’s invasion of privacy, assault, battery, and sexual battery claims? Yes. Drawing inferences in favor of Smith, as required in reviewing a summary judgment, the facts alleged by Smith indicate that during the independent medical examination, Dr. Welch repeatedly grabbed Smith’s hands and moved them away from her breasts so he could grope and fondle her breasts, placed a cold stethoscope on her nipples, and attempted to touch her genitalia. The acts alleged that there was an intentional touching of the person of another who is not the spouse of the offender and who did not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another. The facts alleged, if proven at trial, establish invasion of privacy, assault, battery, and sexual battery and those claims, in the context of a medical examination, are outrageous. The district court erred in granting summary judgment.
Cross-appeal
Smith voluntarily dismissed without prejudice her negligence and misrepresentation claims. Yet Dr. Welch seeks to cross-appeal the district court’s denial of summary judgment on those claims. As Dr. Welch acknowledges, an appeal is appropriate only after a final judgment on all claims has been rendered. Bates & Son Construction Co. v. Berry, 217 Kan. 322, 324, 537 P.2d 189 (1975). Because there was no final judgment on Smith’s negligence and misrepresentation claims, we are without jurisdiction to determine Dr. Welch’s cross-appeal.
Reversed and remanded for further proceedings.
Larson, J., concurs in the result. | [
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The opinion of the court was delivered by
McFarland, C.J.:
In separate paternity actions involving different mothers, respondent was found to be the father of two minor children. Child support orders were entered in both cases pursuant to the Kansas Child Support Guidelines, Supreme Court Administrative Order No. 107 (1997 Kan. Ct. R. Annot. 89). Subsequently, respondent filed motions in both cases to abate all child support on the grounds he had been convicted of seven felonies involving a variety of drag crimes and was sentenced to serve a term of 188 months imprisonment.
The Kansas Department of Social and Rehabilitation Services (SRS) as assignee of both mothers defended against the motions, arguing reduction of child support would be contrary to the best interests of the children and that his incarceration was akin to voluntary unemployment and, thus, not a change in circumstance which would warrant modification. The district court entered orders modifying the child support obligations based upon respondent’s prison income. SRS appeals from said orders. The two cases have been consolidated on appeal.
In In re Marriage of Thurmond, 265 Kan. 715, 962 P.2d 1064 (1998), we held that, as a matter of law, the incarceration of a parent, standing alone, is not legal justification for the modification or suspension of the parent’s child support obligation previously determined under the Kansas Child Support Guidelines.'
The only pertinent difference between the facts in Thurmond and the cases before us is that Thurmond arose out of a divorce action, while the child support orders before us arose from paternity actions. All original orders were determined under the Kansas Child Support Guidelines. Does this distinction require a different result? We believe not.
Paternity actions are brought under the Kansas Parentage Act, K.S.A. 38-1110 et seq. Divorce actions are under Article 16 of Chapter 60 of the Kansas Statutes Annotated. K.S.A. 1997 Supp. 38-1121 and K.S.A. 1997 Supp. 60-1610 deal, inter alia, with determination of child support. As noted in dicta in State ex rel. Dix v. Plank, 14 Kan. App. 2d 12, 14, 780 P.2d 171 (1989), there are different factors to be considered in child support proceedings arising under each statute.
However, K.S.A. 20-165 provides:
“The supreme court shall adopt rules establishing guidelines for the amount of child support to be ordered in any action in this state including, but not limited to, K.S.A. 38-1121, 39-755 and 60-1610, and amendments thereto. In adopting such rules, the court shall consider the criteria in K.S.A. 38-1121.”
As we noted in Thurmond:
“The Kansas Supreme Court was given the mandate in K.S.A. 20-165 to adopt rules establishing guidelines for the amount of child support to be ordered in any action in this state and has done so. The Child Support Advisory Committee, appointed by the Supreme Court, reviews the statewide child support guidelines, solicits public input regarding the guidelines, and makes recommendations to address new federal mandates such as the Family Support Act of 1988 (Pub. L. No. 100-485,102 Stat. 2343 [codified in scattered sections of 42 U.S.C.]).
“The Kansas Child Support Guidelines are the basis for establishing and reviewing child support orders in the district courts in Kansas. Judges and hearing officers must follow the guidelines. Child support obligations are calculated by completing the Child Support Worksheets. Kansas Child Support Guidelines, §
I (1997 Kan. Ct. R. Annot. 89). Use of the guidelines is mandatory and failure to follow the guidelines is reversible error. In re Marriage of Schwein, 17 Kan. App. 2d 498, Syl. ¶ 5, 839 P.2d 541 (1992); In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶ 4, 809 P.2d 1251 (1991). Any deviation from the amount of child support determined by the use of the guidelines must be justified by written findings in the journal entry. Schwein, l7 Kan. App. 2d at 511; Schletzbaum, 15 Kan. App. 2d at 507. Failure to justify deviations by written findings is reversible error. In re Marriage of Emerson, 18 Kan. App. 2d 277, 279, 850 P.2d 942 (1993).” 265 Kan. at 716.
The guidelines make no distinction between the two types of action in fixing the initial obligation or in modifications ¿hereto. Obviously the guidelines are intended to and do have uniform application.
Our rationale in Thurmond for adoption of the no-justification rule applies equally to child support obligations which arise from paternity actions.
We therefore conclude that the rule adopted in Thurmond, a child support modification proceeding arising from a divorce action, applies equally to a child support modification proceeding arising from a paternity action.
Our holding herein may be summarized as follows: Where a parent is incarcerated in a correctional facility, the fact of incarceration, standing alone, is not legal justification for the suspension or modification of the parent’s child support obligation previously determined under the Kansas Child Support Guidelines, following Thurmond, 265 Kan. 715. This rule applies irrespective of whether the child support obligation arose from a divorce proceeding or a paternity action.
The judgment is reversed.
Allegrucci and Six, JJ., dissenting. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the trial court’s dismissal of two counts of reckless aggravated battery at the conclusion of the preliminary hearing. The defendant, Dalene Gail Huser, was bound over for trial on one count of driving under the influence (DUI) and one count of refusal to submit to a preliminary screening alcohol test. The State dismissed the two remaining counts of DUI and refusal to submit to an alcohol test and appealed the trial court’s ruling to this court.
At approximately 1:45 a.m. on August 18, 1996, the defendant was driving a vehicle near the Kansas State University campus in Manhattan. The bars were closing and a group of six people were crossing a street. Four of them had already crossed the street, and the last two were crossing when the car driven by the defendant struck them. The two pedestrians struck by the car were crossing the street at an angle and they were not in a marked crosswalk.
Both pedestrians testified that they did not see the defendant’s car until after it hit them. Evidence was presented that the pedestrians were two or three steps past the center line when they were struck. No skid or brake marks were left, and the defendant’s car traveled 1 to 3 feet after it struck the pedestrians. Ample evidence was introduced to bind the defendant over on the driving under the influence charge. In so holding, the trial court stated:
“So really the charge is recklessly causing this — these injuries by Mrs. Huser. Mr. Pottroff has provided the Court with his brief. In it [he] cites the definition from K.S.A. 21-3201c of reckless conduct. It reads reckless conduct is conduct done under circumstances that show a realization of the [imminence] of danger to the person of another, and a conscious . . . disregard of that danger. The terms gross negligence, culpable negligence, wanton negligence, and wantonness are included within the term of recklessness as used in this code. I think there is merit to Mr. Huser’s statement and his argument that we do not have evidence from the op eration of the vehicle or the vehicle of itself of — of reckless conduct in the handling and driving of the vehicle. And to find that there is probable cause to believe that this crime was committed from the facts presented to the Court, the Court would have to presume that Mrs. Huser was in fact intoxicated, and the fact that she was driving a vehicle in an intoxicated state would then equate into being reckless to be guilty of this offense. The Court does not make that jump and so the Court [implies [ that diere is not probable cause from the evidence presented that — that diere is — that the two offenses of reckless aggravated battery were committed, so the Court does find that there is not probable cause on those two offenses. We do have the driving under the influence charge and Count 4 of the refusal to submit to a preliminary alcohol screening test.”
Instead of proceeding to trial on the DUI charge and the preliminary breath test infraction, the State filed a motion to dismiss the remaining charges. The trial court granted this motion. With the dismissal of these charges, the trial court’s ruling was a final judgment, and the State appealed the trial court’s ruling to this court, pursuant to K.S.A. 22-3602.
Preliminary examinations are authorized by K.S.A. 22-2902. K.S.A. 22-2202(16) defines a preliminary examination as “ahearing before a magistrate on a complaint or information to determine [1] if a felony has been committed and [2] if there is probable cause to believe that the person charged committed it.”
Under step one, a judge may determine that a felony had been committed based on the evidence presented at the preliminary hearing if “there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed.” State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985). If a preliminary hearing judge determines a felony has been committed, then the judge must determine whether there is probable cause to believe that the person charged committed the crime. “In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Green, 237 Kan. 146, Syl. ¶ 3, 697 P.2d 1305 (1985).” State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995).
While the judge at a preliminary hearing must determine that there is some evidence to support a finding that a felony has been committed and that the person charged committed it, the evidence need not prove guilt beyond a reasonable doubt, only probable cause. Bockert, 257 Kan. at 492; State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). According to In re Mortimer, 192 Kan. 164, 166-67, 386 P.2d 261 (1963),
“[t]here is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. State v. Pfeifer, 109 Kan. 232, 233, 198 Pac. 927 [1921]; In re Danton, 108 Kan. 451, 195 Pac. 981 [1921].”
Furthermore, a judge at a preliminary hearing should not evaluate the prosecutor’s decision to file criminal charges against the defendant. The judge should not dismiss the case simply because the judge has determined that the State should not have prosecuted the case due to the remote or nonexistent possibility of a conviction. Bockert, 257 Kan. at 492 (citing State v. Puckett, 240 Kan. 393, Syl. ¶ 3, 729 P.2d 458 [1986]).
The trial court found that the State had failed to meet its burden of proof for establishing that a crime of reckless aggravated battery had been committed. In appeals by the prosecution from an order discharging the defendant for lack of probable cause, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. See Bockert, 257 Kan. at 492-93. This court is to conduct a de novo review of the evidence when considering the trial court’s probable cause finding. State v. Martinez, 255 Kan. 464, 465, 874 P.2d 617 (1994). Therefore, this court should not give deference to the trial court’s finding when it considers the evidence presented by the State and the defendant and evaluates the credibility and competency of the witnesses. The end result is that instead of one magistrate judge conducting a preliminary hearing, seven Supreme Court justices conduct a preliminary hearing on the record and issue an opinion that the State is free to ignore if it can produce additional evidence.
For the defendant to be held over for trial and tried for reckless aggravated battery as charged, pursuant to K.S.A. 21-3414(a)(2)(B), the trier of facts must find probable cause that the following elements existed and could be proved at trial: The defendant acted “[1] recklessly [2] causing bodily harm to another person [3] with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
From the testimony presented at the preliminary hearing, the trial court had probable cause to find that the victims had suffered bodily harm at the hands of the defendant. Further, the evidence presented at the preliminary hearing provided probable cause for the trial court to find that the manner in which the bodily harm was inflicted — being struck by a car — was a manner whereby great bodily harm, disfigurement, or death can be inflicted. However, the trial court found that there was no evidence to support a probable cause finding that the defendant caused such harm with her car recklessly. Thus, the trial court refused to bind the defendant over on these two charges of reckless aggravated battery.
“Reckless” is defined under K.S.A. 21-3201 as follows:
“(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness’ are included within the term ‘recklessness’ as used in this code.”
State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983), discusses the relationship between driving under the influence and reckless driving. In that case, the defendant was charged with speeding, failure to drive within marked lanes, reckless driving, and driving under the influence of alcohol or drugs. The defendant pled guilty to all charges except driving under the influence of alcohol or drugs. A trial date was set for this last charge. At that time, the defendant moved to dismiss the charge on double jeopardy grounds because he had been convicted previously of reckless driving, which he alleged was a lesser included offense of the DUI charged in the same complaint. The trial court agreed with the defendant and dismissed the DUI charge. The State successfully appealed to this court. 233 Kan. at 678-79. This court found that the trial court erred in barring the DUI prosecution based on the defendant’s previous conviction for reckless driving which was alleged in the same complaint and arising out of the same conduct. This court reversed the trial court and remanded the case for trial on the DUI charge. 233 Kan. at 684.
In so ruling, this court stated:
“Does the offense of driving under the influence of alcohol or drugs require proof of an additional element which is not necessary to prove reckless driving, and vice-versa? Under K.S.A. 8-1567(a) three things must be established to support a conviction for driving under the influence of alcohol or drugs: (1) that the defendant operated the vehicle; (2) that the defendant was under the influence of alcohol or drugs while operating the vehicle, and (3) that the operation took place within the jurisdiction of the court. See State v. Reeves, 233 Kan. 702, 664 P.2d 862 (1983); State v. Hall, 1 Kan. App. 2d 730, 731, 573 P.2d 635 (1977). In Reeves ‘under the influence of alcohol’ was defined to mean that the defendant’s mental or physical function was impaired by the consumption of alcohol to the extent that he was incapable of safely driving a vehicle. 233 Kan. at 704.
“K.S.A. 8-1566(a) provides:
“ ‘Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.’
“The gist of the proscribed conduct is driving a vehicle in reckless disregard for the safety of others. PIK Crim. 2d § 70.04 defines ‘reckless’ under K.S.A. 8-1566 to mean ‘driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is reckless disregard or complete indifference and unconcern for the probable consequences of such conduct.’
“The two offenses require different evidence for a conviction. To violate 8-1567 one needs only to operate a vehicle while his mental or physical capacity to function is impaired by alcohol or drugs to the extent he is no longer capable of safely driving the vehicle. It is unnecessary to prove, in addition, that the vehicle was driven in a reckless manner, although such driving may constitute circumstantial evidence the driver was under the influence of alcohol or drugs. On the other hand, to obtain a conviction for reckless driving under 8-1566 it is only necessary to establish that the vehicle was driven in willful or wanton disregard for the safety of others; in other words, under circumstances that show a realization of the imminence of danger and a reckless disregard or complete indifference for the probable consequences of such conduct. Proof is not required that the driver was under the influence of alcohol or drugs.
“An argument can be advanced that any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others. Under such reasoning any time a person was guilty of driving under the influence of alcohol or drugs he would also necessarily be guilty of reckless driving and therefore the offense of reckless driving would constitute a ‘crime necessarily proved if the crime charged were proved.' (K.S.A. 21-3107[2][d].) However, it is merely the driving of a vehicle while under the influence of alcohol or drugs which is proscribed by 8-1567. One does not need to swerve all over the road or drive through another’s yard to be guilty of driving under the influence of alcohol or drugs. While a person under the influence of alcohol may actually drive in a straight line in the proper lane of traffic down the street, although incapable of safely operating the vehicle in accordance with traffic regulations that may be encountered, a person guilty of reckless driving is able to safely control his vehicle but, in willful or wanton disregard for the safety of others, does not do so. It is evident that a person guilty of driving under the influence of alcohol is not necessarily guilty of driving in reckless disregard for the safety of others.
“This holding is in accord with authority from other jurisdictions. In 7A Am. Jur. 2d, Automobiles and Highway Traffic § 389, the general rule is stated:
“ ‘The offense of reckless driving is a distinct offense and is established by different evidence tha[n] the crime of driving while intoxicated or under the influence of intoxicating liquor, so that a conviction or acquittal of one offense will not bar prosecution for the other.’
“See also 22 C.J.S., Criminal Law § 295(2), p. 771; Rea v. Motors Ins. Corporation, 48 N.M. 9, 14, 144 P.2d 676 (1944); State v. Sisneros, 42 N.M. 500, 507, 82 P.2d 274 (1938); Akron v. Kline, 165 Ohio St. 322, 59 Ohio Op. 414, 135 N.E.2d 265 (1956); State v. Amaral, 109 R.I. 379, 382-83, 285 A.2d 783 (1972); Usary v. State, 172 Tenn 305, Syl. ¶ 10, 112 S.W.2d 7 (1938); McMillan v. State, 468 S.W.2d 444, 445 (Tex. Crim. 1971); Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336 (1952); State ex rel. Foley v. Yuse, 191 Wash. 1, 5, 70 P.2d 797 (1937). Cf. State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966).” 233 Kan. at 681-83.
Here, additional evidence, beyond evidence indicating the defendant was driving under the influence of alcohol, was necessary to create probable cause for recklessness so that the trial court could bind the defendant over on the reckless aggravated battery charges. Under Mourning, simply driving under the influence does not, standing alone, amount to reckless behavior. One’s behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. K.S.A. 21-3201(c) (defining reckless conduct). There was no evidence that this occurred here — no ev idence of weaving, speeding, or a failure to stop quickly after the accident occurred. The State did not submit enough evidence to support a probable cause finding that the defendant committed reckless aggravated battery by recklessly driving her car.
Prior to 1993, the appropriate charge in a case of this nature would have been vehicular battery, under K.S.A. 21-3405b. A conviction under that statute required a showing that the defendant unintentionally caused bodily harm to another while driving under the influence of alcohol, driving recklessly, or eluding an officer. However, this statute was repealed effective July 1,1993. L. 1992, ch. 298, § 97.
At the same time that K.S.A. 21-34Q5b was repealed, the legislature amended both the misdemeanor battery statute and the general aggravated battery statute to include reckless acts as well as intentional acts. L. 1992, ch. 298, § 11 and § 12. The legislative history of these amendments contains no specific discussion of the legislature’s intent regarding the inclusion of harm caused by driving under the influence. However, the State argues that the fact that these statutes were amended simultaneously creates a clear implication that the inclusion of reckless conduct in the new battery statutes was intended to replace the former vehicular battery statute.
In addition, the State points to the Summary of Legislation, p. 126 (June 1992), which provides:
“The crimes of battery and aggravated battery are expanded to include reckless acts. Previously, reckless acts causing bodily harm or great bodily harm were not adequately covered bylaw, e.g., drive by shootings into a house. Vehicular battery, under K.S.A. 21-3405b, is repealed under the rationale that this criminal act is covered under the revised battery statute under K.S.A. 21-3412.”
Thus, based on this language, the State claims that the legislature repealed the vehicular battery statute, believing that all forms of this crime were covered by the new aggravated battery statute.
Since a person could be convicted of vehicular battery prior to 1993 by unintentionally causing bodily harm to another while driving under the influence, regardless of independent or additional evidence of recklessness, the State claims a person can be convicted of reckless aggravated battery today based on this same conduct because the criminal acts punished by vehicular battery are now covered under the revised battery statutes.
The State is reading the Summary of Legislation too broadly. When the vehicular battery statute was in effect, it punished a defendant for unintentionally causing bodily harm to another while driving under the influence, or driving recklessly, or eluding an officer. It treated each of these types of driving as a different method to prove vehicular battery. It did not equate driving under the influence with reckless driving.
When the vehicular battery statute was repealed, the legislature enacted the misdemeanor battery statute and the aggravated battery statute to include reckless acts, not just intentional acts. Thus, unintentionally causing bodily harm to another by driving a car recklessly is now punishable under the aggravated battery statute. However, this statute continues to use the term reckless in the same manner in which it has been used previously — a realization of imminent danger to another person and a conscious and unjustifiable disregard of that danger. K.S.A. 21-3201(c). As such, driving under the influence of alcohol does not equal driving recklessly, without additional evidence of reckless conduct. It can be argued that merely driving under the influence of alcohol amounts to reckless behavior because one should realize the imminent danger that driving in an impaired condition places another person in. However, in Mourning, this court specifically rejected that argument. Thus, to convict the defendant of reckless aggravated battery, the State had to prove that she caused bodily harm to the victims by driving recklessly. Since the State did not introduce any independent evidence of the defendant’s recklessness, beyond evidence that she was driving under the influence of alcohol, the trial court properly did not bind the defendant over on the aggravated battery charges.
When the legislature repealed the vehicular battery statute in 1993, it knew that reckless driving did not equate to DUI because the Mourning case had been decided in 1983. Thus, the legislature knew that if it repealed a criminal statute which punished a defendant who caused bodily injury to a victim while driving under the influence of alcohol, this criminal act would not be covered by a statute which punishes recklessness without independent evidence that the drunk driver also drove recklessly. We hold that there was no probable cause to bind the defendant over on the reckless aggravated battery charges. The trial court properly dismissed these charges. The State’s appeal fails.
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