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In a letter dated May 15, 1998, to the Clerk of the Appellate Courts, respondent Robert C. Wooton, of Kansas City, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1997 Kan. Ct. R. Annot. 232).
On March 6,1998, this court indefinitely suspended respondent from the practice of law for numerous violations of the Model Rules of Professional Conduct. In re Wooton, 264 Kan. 283, 955 P.2d 1239 (1998).
At the time respondent surrendered his license, there was a complaint being investigated by the office of the Disciplinary Administrator which contained allegations of lack of diligence, failure to communicate with a client, failure to return unearned retainers, and failure to return a client’s files upon discharge.
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 Robert C. Wooton be and he is hereby disbarred from the practice of law in 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 Robert C. Wooton from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1997 Kan. Ct. R. Annot. 235).
Dated this 5th day of June, 1998. | [
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The opinion of the court was delivered by
Lockett, J.:
A motorist was stopped for speeding. After a police officer had information necessary to issue a citation, he questioned the motorist about drug usage and requested permission to search his pickup truck. The motorist denied the officer permission to search the truck. The officer informed the motorist that because he did not consent to a search, a drug-sniffing dog would be brought to the scene. If the dog sniffed drugs, the vehicle would then be searched without the motorist’s consent. The motorist then capitulated and agreed to a search. The district court suppressed evidence found during the search, and the State appealed.
The facts are undisputed. The Yates Center police officer videotaped the encounter when Victor Mitchell was stopped for speeding. At 10:36 p.m. on June 26, 1997, Mitchell was stopped for travelling 59 mph in a 45 mph zone. Mitchell had his 13-year-old daughter with him who was visiting for the summer and had been with her father for 2 days.
While Mitchell was retrieving his driver’s license and auto insurance information, the officer looked through Mitchell’s window with a flashlight. The officer then told Mitchell to follow him to the rear of the truck. During the suppression hearing the officer testified he was “investigating something above and beyond the fact that the vehicle had been stopped for speeding.” While waiting for information from the dispatcher regarding Mitchell’s driver’s license, the officer began questioning Mitchell.
The officer asked Mitchell if he had ever been arrested. Four minutes after the stop, the dispatcher indicated that Mitchell’s license was valid and there were no outstanding warrants. The officer then showed Mitchell the radar display. Instead of writing a traffic citation, the officer began to question Mitchell about prior drug offenses. Mitchell admitted that he had in the past smoked marijuana. The officer asked whether Mitchell still smoked marijuana. When Mitchell denied doing so, the officer asked Mitchell if he was transporting any illegal drugs. Mitchell said no. The officer stated, “Having that in mind, you wouldn’t mind giving me permission to search the vehicle, then would you?”
Mitchell refused to give the officer permission to search the truck. The officer then informed Mitchell he would call for the drug-sniffing dog and if the dog “hits” on the truck, the officer would search Mitchell’s vehicle without permission. He continued, “The process would be a lot easier if you’ve got something, you’ve got your daughter with you.” Mitchell finally admitted he had some joints and agreed to retrieve them for the officer. The officer took possession of the alleged marijuana, informed Mitchell of his Miranda rights, and searched the truck. All of this took place in 13 minutes. Mitchell produced the marijuana to the officer approximately 7 minutes after being stopped.
Mitchell was charged with felony possession of marijuana. After Mitchell’s arrest, the officer took the daughter into custody and back to the police station to arrange for her transportation back to her mother.
Mitchell moved to suppress the marijuana and all statements made during the stop. At the conclusion of the suppression hearing, the district judge granted Mitchell’s motion to suppress.
The judge’s decision was made during Mitchell’s cross-examination of the State’s first witness based upon the videotape of the stop. Mitchell’s counsel had asked the police officer whether he was investigating other crimes during the stop. The officer responded that he was. The county attorney objected, stating, “Your Honor, I’m going to object. You’ve got the video. I don’t know what more you can need. Whatever his thought process was is not material to a suppression. Even if he thought die person was in custody, that ain’t the case law test.” The district judge responded, “Well, I’m usually not the kind that wants to cut something artificially short, but if you want to use the test as being the tape, I’ll grant the Motion to Suppress.” The timing of the district judge’s ruling and tire explicit statement indicate the district judge ruled the officer did not have any cause to continue Mitchell’s detention longer than necessary to write a traffic citation.
The State filed an interlocutory appeal, claiming (1) the district court erred in finding the officer exceeded his authority in detaining and questioning Mitchell during a routine traffic stop; (2) the taint of an illegal search was removed by Mitchell’s voluntary statement and consent; (3) there was no violation of Miranda; (4) Mitchell’s consent to search the vehicle was free and voluntary; (5) Mitchell’s incriminating statement was voluntary; and (6) Mitchell or his vehicle was not illegally seized.
We accepted the case pursuant to K.S.A. 20-3018(c).
DISCUSSION:
An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Vandiver, 257 Kan. 53, Syl. ¶ 5, 891 P.2d 350 (1995); see generally State v. Griffin, 246 Kan. 320, 787 P.2d 701 (1990) (general discussion of suppression of evidence and State’s interlocutory appeal from adverse rulings).
“A traffic stop is a seizure within die meaning of die Fourth Amendment, ‘even diough the puipose of the stop is limited and the resulting detention quite brief.’ [Citation omitted.] An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. We therefore analyze such stops under die principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To determine'the reasonableness of an investigative detention, we make a dual inquiiy, asking first ‘whether the officer’s action was justified at its inception,’ and second ‘whether it was reasonably related in scope to the circumstances which justified die interference in die first place.’ [Citations omitted.]” United States v. Botero-Ospina 71 F.3d 783, 786 (10th Cir. 1995).
The State argues that the officer’s questioning of Mitchell lasted only 5Vz minutes. Of that time, 3 minutes and 50 seconds were spent obtaining driver’s license information from dispatch. An additional 20 seconds was spent showing Mitchell the radar speed readout. According to the State, this left “the officer approximately one minute and twenty seconds to write out the speeding citation.” Consequently, defendant was stopped no longer than it would normally take to issue a citation.
However, a review of the videotape shows that the officer was not writing a citation during the time Mitchell was stopped. Instead, after the officer had obtained sufficient information to issue the traffic citation, he questioned Mitchell .about whether he used or was carrying marijuana. Additionally, the officer informed Mitchell that if he did not consent to a search, Mitchell would be detained until a drug-sniffing dog arrived and if the dog detected drugs in Mitchell’s vehicle, the officer would then search the vehicle regardless of Mitchell’s consent.
Both the State and Mitchell rely upon United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993), and United States v. Walker, 933 F.2d 812 (10th Cir. 1991). Therefore, a review of these cases is appropriate. In Shabazz, defendant was stopped for speeding. There was a passenger in the car. The officers asked Shabazz to come to the rear of the vehicle with his driver’s license. While one officer was running Shabazz’ driver’s license, he questioned Shabazz. The other officer questioned the passenger, Parker. Parker seemed nervous. The officers then compared notes and discovered the two individuals had given conflicting stories regarding their recent whereabouts. Based on all of this information, the officers sought consent to search the automobile. Parker, who owned the automobile, consented to the search. The search seized a significant amount of crack and cocaine.
In reviewing the district court’s denial of Shabazz’ motion to suppress, the Shabazz court analyzed whether the stop exceeded what is permissible under the Fourth Amendment. The Shabazz court recognized that the United States Supreme Court has used Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), to analyze cases where individuals were stopped for traffic violations. The Shabazz court observed that under Terry, the judicial inquiry into the reasonableness of a search or seizure is whether it was reasonably related in scope to the circumstances which justified the interference in the first place. 993 F.2d at 435.
Shabazz had argued that by questioning him and Parker about their whereabouts, the officers violated the second prong of the test; specifically, the questioning exceeded the reasonable scope of the stop’s original purpose. For this assertion, Shabazz relied upon United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988). There, a policeman, after concluding Guzman’s registration and driver’s license were in order, did not write a citation or give a warning. Rather, the officer began questioning the driver as to his travel. The Guzman court stated an officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime. 864 F.2d at 1519.
The Shabazz court stated that police officers could question those they stopped for traffic violations on matters unrelated to the stop because Terry concerns the scope of lawful detention or seizures, not police questioning where there is no unlawful seizure. 993 F.2d at 436. As an example, the Shabazz court used a hypothetical where the police stopped a man for suspicion of carrying a gun. It noted that after patting the man down and finding no gun, the police could not then question him about an unrelated crime. “This is not because the questioning itself is unlawful, but because at that point suspicion of weapons possession has evaporated and no longer justifies further detention.” 993 F.2d at 436.
The Shabazz court determined the stop of the defendant was not a violation of the Terry doctrine because the questioning took place while the officers were waiting for the driver’s license check to be completed by dispatch. Therefore, the length of Shabazz’ detention was unaffected by the questioning. 993 F.2d at 437.
In United States v. Walker, 933 F.2d 812, Walker was stopped for speeding. Prior to getting out of his car, the police officer ran a National Crime Information Center check and determined that the car had not been stolen. The officer then approached Walker’s car and asked for his driver’s license. While holding Walker’s license and registration, the officer asked Walker a number of questions. Walker answered the questions. While retaining possession of Walker’s license and registration, the police officer asked permission to search Walker’s car. At this point, the officer had not begun to write a citation or warning for speeding. Walker’s consent to the search resulted in the officer discovering 86 kilograms of cocaine in the vehicle. The district court suppressed the evidence seized.
The government argued that the questioning and consent were consensual and that consensual encounters are not governed by the Fourth Amendment. The Walker court considered whether the search of the car was justified by the defendant’s consent to the search. The Walker court noted that the 10th Circuit had frequently held the Fourth Amendment ban on unreasonable searches does not prohibit asking questions of an individual during a consensual encounter. 933 F.2d at 817. However, under the cirqumstances, Walker was not free to leave. Therefore, the resulting search was not consensual. The Walker court affirmed the district court’s suppression of the cocaine because the defendant had produced sufficient proof showing he was entitled to operate the car such that no reasonable suspicion of criminal activity arose. 933 F.2d at 816.
Here, after receiving information that Mitchell was authorized to drive and the vehicle was his, the officer did not write a citation or issue a warning. Instead, the officer continued to question Mitchell about things that were wholly unrelated to the stop. It was at the conclusion of the questioning that the officer sought consent to search Mitchell’s vehicle. Unlike the defendants in Shabazz and Walker, Mitchell refused to consent to the search. The officer then told Mitchell that he (the officer) would get a drug-sniffing dog and if the dog “hit” on the car, he would search regardless of whether Mitchell consented.
It is difficult to understand why the State believes Walker and Shabazz support its position. Both cases stand for the proposition that during the time it takes to insure the driver has no warrants and the car is not stolen, the officer may question the person pulled over. Similarly, both cases prohibit detention lasting longer than is required for the above. Here, as in Walker, the police officer continued the interrogation after he had the information he needed for the stop. These facts are even more compelling than those in Walker because, after Mitchell had refused the officer’s consent to search, the officer threatened to call for a drug-sniffing dog in an attempt to coerce Mitchell to consent to the search.
The State asserts that Mitchell was detained only a few minutes before he admitted to the officer there was marijuana in the vehicle; thus, the detention was not unreasonable. However, this argument was rejected in United States v. Guzman, 864 F.2d 1512. The Guzman court wrote:
“The Government stresses that this traffic stop took less than fifteen minutes. As the Supreme Court made clear in United States v. Sharpe, 470 U.S. 675, 685-87, 105 S. Ct. 1568, 1574-76, 84 L. Ed. 2d 605 (1985), the basis for and the circumstances surrounding the stop, rather than an arbitrary time limit, govern the stop’s permissible length. Although the stop in this case may well have been of short duration, it nevertheless unreasonably extended beyond the length necessary for its only legitimate purpose — the issuance of a warning or citation for a seat belt violation.” 864 F.2d at 1519 n.8.
Under the reasoning of Shabazz, Guzman, and Walker, there is no doubt that the detention here violated Mitchell’s Fourth Amendment rights to be free from unlawful seizures.
The State next argues that even if Mitchell had been illegally seized, the voluntariness of his statement and his consent removed the taint of the illegal seizure. In support of this argument the State asserts: “The fact that the Defendant may have surrendered when he should have stood his ground, does not make his admission to the existence of the joints any less voluntary.”
This argument was not raised at the trial court level. “[A] new legal theory may not be asserted for the first time on appeal or raised in a reply brief.” Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 455, 912 P.2d 729 (1996) (citing Sharp v. State, 245 Kan. 749, 753, 783 P.2d 343 [1989], cert. denied 498 U.S. 822 [1990]),
A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime. Here, the officer had no reasonable suspicion that Mitchell had drugs or a suspicion of any crime other than the traffic infraction. Mitchell was entitled to operate the vehicle and to proceed on his way, without being subject to further detention for additional questioning.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Ronald D. Barta of Salina, Kansas, an attorney licensed to practice law in the state of Kansas. The hearing panel found violations of MRPC 1.15 (1997 Kan. Ct. R. Annot. 316) (Safekeeping of Property) and MRPC 1.5(b) (1997 Kan. Ct. R. Annot. 289) (Failure to Communicate on Fees). The panel recommended that respondent be suspended from the practice of law for 1 year. Respondent has filed no exceptions to die findings or conclusions of the panel, but requests imposition of less severe discipline.
The facts may be summarized as follows. For many years, respondent represented Mr. and Mrs. William Just, Oklahoma residents, in connection with several lawsuits concerning a Manhattan, Kansas, residential property. In March 1993, the Justs delivered $20,000 to respondent to hold for them and make bank payments as they came due. Respondent placed the funds in his trust account. In multiple transactions over a period of time, respondent took funds from the account to pay his attorney fees, expenses claimed incurred in the Just representation, and payment of a bank loan on respondent’s law building. The bank payments the Justs authorized were remitted in a timely manner, but on one occasion respondent had to place $1,700 of his own funds in the account to cover an overdraft.
This matter came to the attention of the Disciplinary Administrator through a complaint filed by a former secretary of respondent who was unhappy with respondent’s handling of her legal affairs. (The panel found insufficient evidence to support the secretary’s claims of wrongdoing relative to her affairs.)
The panel specifically found:
“13. In March of 1996, Respondent Barta drove to Yukon, Oklahoma, the residence of the Justs and advised Mr. & Mrs. Just that he had paid his firm attorney fees out of their trust funds without their authorization in the total sum of $10,074.00. Respondent apologized to the Justs and advised them that he would see that all payments that were due the Sylvan State Bank were paid and that his fees for the handling of ten lawsuits over an eleven year period would be paid out of the proceeds when the sale of the residential property in Manhattan was made. The Justs have never filed a complaint against Mr. Barta and respondent’s handling of the trust funds [has] never cost the Justs any loss.
“18. Respondent testified at the August 18,1997 hearing [and] admitted using the funds in the firm trust account to cover operating expenses and attorney's fees which he subsequently realized was not the proper thing to do. He testified that he had not had a fee agreement with the Justs all the years that he had been representing them, neither written nor oral and that was one of his reasons for his trip to Yukon, Oklahoma in March of 1996 (which was after the complaint had been filed and investigation started), to apologize to the Justs, to advise them that he had taken fees out of their trust funds, to assure them that he would see that any payments made on the bank loan with the Sylvan State Bank would be made and that ultimately his fees would be paid out of proceeds from the sale of the house in Manhattan.”
The panel applied the ABA Standards on aggravation and mitigation. Aggravating factors included three prior contacts with the Disciplinary Administrator’s office which resulted in informal admonition. One of the three arose from “sloppy handling of his trust account.” The panel further found a pattern of misconduct and multiple offenses to the extent several improper withdrawals of the Justs’ funds occurred over a period of time. The panel further found respondent “cooperated with the investigator [and] has acknowledged the wrongfulness of his taking fees and expenses out of the Just funds without having a fee agreement.”
We have reviewed the record and conclude the panel’s factual findings and conclusions of law are supported by clear and con vincing evidence. We agree with the following analysis by the panel:
“The panel examined the ABA Standards 4.1 Failure to Preserve the Client’s Property and particularly 4.12 which advises suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with a client’s property and causes injury or potential injury to a client. In this case Respondent should have known that it was improper for him to take fees out of the Just trust money without their consent or knowledge and Respondent has admitted that he committed a wrong. It is also inappropriate that the Respondent relied upon his office help to know the status of his trust account and in failing to require that the trust account be reconciled promptly. In this particular case, no injury was caused but there was a potential to cause injury by the Respondent handling of the Just trust funds.”
An attorney’s improper handling of a client’s property is an extremely serious ethical violation. The panel noted respondent’s caseload is 180 to 200 cases, primarily consisting of personal injury and workers compensation cases. His trust account, accordingly, has many entries. Respondent, apparently, made no effort to reconcile the trust account. At the time of oral argument before this court, respondent’s counsel urged us to give respondent the opportunity to prove he has his “house in order.”
A minority of the court would accept the panel’s recommendation and suspend the respondent from the practice of law for a period of 1 year. The majority of the court is willing to give respondent the opportunity his counsel requests and concludes that the imposition of discipline should be suspended for a period not to exceed 2 years under the following conditions:
The Disciplinary Administrator is directed forthwith to provide respondent with a written statement setting forth specific requirements whereby respondent is to make monthly submissions to the Disciplinary Administrator’s office of all trust account activity, bank statements, and such additional information as may be requested. An audit of the account at respondent’s expense should be required at least at the end of the first year, but may be required earlier if circumstances warrant. If respondent should fail to comply with all requirements, and/or further ethical violations surface, the Disciplinary Administrator is directed to seek the issuance of a show cause order to respondent as to why discipline should not be summarily imposed.
It Is So Ordered.
It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of the proceedings be assessed to respondent. | [
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Per Curiam:
This is an original uncontested proceeding in discipline.
The formal complaint charged respondent, Lisa Ann Nathanson, a/k/a Lisa Ann Tarlowe, with violating the following Kansas Rules of Professional Conduct (KRPC): KRPC 3.1 (meritorious claims and contentions) (2004 Kan. Ct. R. Annot. 438), KRPC 3.3 (candor toward the tribunal) (2004 Kan. Ct. R. Annot. 444), KRPC 4.1 (truthfulness in statements to others) (2004 Kan. Ct. R. Annot. 460), KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) (2004 Kan. Ct. R. Annot. 485), and KRPC 8.4(d) (engaging in conduct prejudicial to administration of justice) (2004 Kan. Ct. R. Annot. 485). The hearing panel found clear and convincing evidence that Nathanson violated these rules.
The Disciplinary Administrator filed one formal complaint based on two cases, Nos. DA8528 and DA8580. The Disciplinary Administrator’s office sent a copy of the formal complaint and notice of hearing to Nathanson’s last registered mailing address by regular mail and by certified mail. The documents sent by certified mail were returned unsigned. Nathanson failed to appear at the December 16, 2004, disciplinary hearing.
“In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]’’ In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).
The following summarizes the hearing panel’s pertinent findings of fact:
Respondent Lisa Ann Nathanson is an attorney at law, Kansas Attorney Registration No. 10759. Her last registration address with the Clerk of the Appellate Courts of Kansas was in Kansas City, Missouri. Nathanson was admitted to the practice of law in Kansas on September 12, 1980. On October 20, 2000, this Court issued an order suspending Nathanson’s Kansas license to practice law because of her failure to pay her 2000 annual continuing legal education fee. She failed to take appropriate steps to remedy the deficiency, and her license remains suspended.
At the time of her suspension, Nathanson was a staff attorney for the American Civil Liberties Union of Kansas and Western Missouri (ACLU). Despite her suspension, Nathanson remained in that capacity until March 26, 2002, when the ACLU terminated her employment.
While suspended, Nathanson practiced law in the courts of Kansas. On October 6, 2000, before her license was suspended, she filed a Motion of the Gender Public Advocacy Coalition and the-American Civil Liberties Union of Kansas and Western Missouri for Leave to File Brief of Amici Curiae in Support of Plaintiff-Appellant with the Kansas Court of Appeals in In re Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001). Thereafter, on November 13, 2000, despite having her license suspended, Nathanson filed another motion in that case. Then, on September 26, 2001, she filed a brief in the Kansas Court of Appeals in State v. Limon, 32 Kan. App. 2d 369, 83 P.3d 229 (2004).
DA8528
In November or December 2001, the office of the Honorable Catherine A. Walter, a United States Magistrate Judge for the Dis trict of Kansas, contacted Nathanson at her office at the ACLU and discussed the possibility of appointing her to represent Johnathan Bafford in a federal cause of action. Nathanson informed the court that she and Kevin Loeffler could be appointed to represent Bafford, that Loeffler was a volunteer ACLU attorney, and that Loeffler would be using the ACLU office in Kansas City, Missouri. Before appointing Nathanson, Judge Walter discovered Nathanson was not registered to practice in the United States District Court for the District of Kansas. As a result, the judge appointed Loeffler to represent Bafford on December 5, 2001. The court forwarded a copy of the order to the address provided by Nathanson, the ACLU’s Kansas City, Missouri, office.
Despite what Nathanson had told the federal court, Loeffler had not volunteered to serve as an attorney for the ACLU in connection with the Bafford matter. On December 26, 2001, without Loeffler’s knowledge or agreement, Nathanson filed a Request for Extension of Time to File Supplemental Response on Bafford’s behalf. The motion appeared to be signed by Loeffler. However, Loeffler did not sign the pleading. Instead, Nathanson signed Loeffler’s name without his knowledge.
On January 8, 2002, Bafford contacted the federal court and asked that new counsel be appointed for him because Loeffler had not yet contacted him. Loeffler had not contacted Bafford, because he remained unaware that he had been appointed.
On January 14, 2002, Nathanson filed Plaintiff s Supplemental Response to Defendant’s Motion for Summary Judgment. The next day, Nathanson filed a Motion for Leave to File Corrected Pleading and Plaintiff s Corrected Supplemental Response to Defendants’ Motion for Summary Judgment. The response, the motion, and the supplemental response appeared to have Loeffler’s signature on them. However, Loeffler did not sign the pleadings. Nathanson, again, had signed Loeffler’s name without his knowledge.
On January 29, 2002, Nathanson contacted Loeffler, asking him to appear by telephone at a conference and to inform the federal court that he would visit Bafford in prison. The telephone conference took place on January 30, 2002, and Loeffler explained to the court and opposing counsel that he first learned of his appointment on January 29,2002, that he had not signed any pleadings, and that Nathanson had prepared the pleadings and signed his name without his knowledge. The court subsequently issued an order permitting Loeffler to withdraw from the appointment.
On February 2, 2002, Nathanson wrote to Judge Walter. Her letter included the following paragraph:
“In the past, I was usually appointed as counsel along with the volunteer attorney, but now I act only as an administrative legal director for this ACLU, and I no longer practice law (this change was made due to this office’s financial [in]ability to purchase professional liability insurance, as a result of which I will be leaving this position at the end of March and moving to Florida to practice psychology rather than law, and I still maintain my Missouri and Florida licenses to practice law, but not my Kansas license).”
In late February 2002, Judge Walter filed a complaint regarding Nathanson. On March 19, 2002, the Disciplinary Administrator wrote to Nathanson, notifying her that Judge Walter filed a complaint against her and directing her to file a written response to the initial complaint within 10 days. The next day, Nathanson faxed a letter to the Disciplinary Administrator. It appears that the same letter was also sent to the disciplinary authorities in Missouri and Florida. At that time, Nathanson was not aware that Judge Walter had filed a complaint. However, she provided her version of some of the relevant facts.
In her letter, despite what she told Judge Walter in her letter of February 2, 2002, Nathanson informed the disciplinary authorities that she took the District of Columbia bar examination and that she believed she had been admitted to the Missouri and Florida bars through reciprocity. Nathanson, however, was not a member of the District of Columbia bar. She also included the following in her letter:
“I have also been battling a malignant brain tumor for the past couple of years, and I have been on medical leave for a total of over 9 months during that period. And the fact that I began suffering some cognitive impairment from the tumor a couple of years ago, I would have had to malee the hard decision to stop practicing law at about that time anyway.
“Now I am leaving the ACLU for good due to my illness. I have a couple more fund-raising appearances that I should be able to handle, but at the end of this month my husband will be driving me to Charles W. Gerstenberg Hospice Center, 5300 East Avenue, West Palm Beach, Florida 33407.”
David L. Wood, Special Investigator for the Disciplinary Administrator s office, attempted to contact respondent at the hospice center. Staff at the hospice center informed Wood that they did not have a patient by that name in their facility.
On April 4, 2002, Nathanson wrote to Carol Green, Clerk of the Kansas Appellate Courts. In her letter, Nathanson indicated that she wished to permanently surrender her license to practice law in Kansas. In that letter, Nathanson indicated that, as of April 13, 2002, her address would be Hospice Atlanta, 1244 Park Vista Drive, Atlanta, Georgia, 30319. At that time, respondent also indicated that she had changed her name to Lisa Tarlowe.
On April 15, 2002, Wood contacted Hospice Atlanta to determine whether Nathanson was a patient at the facility. The staff at the Hospice Atlanta informed him that no one with respondent’s name had been a patient at the facility and no one with respondent’s name had made application to be a patient at the hospice. Each time Wood has called the hospice looking for Nathanson, he has been told she has not been and is not a patient at the facility.
In May 2002, a “Mr. Simpson” received an electronic message, purportedly sent by Micah Gold. Micah Gold appeared to hold' himself out as an attorney in Georgia. According to the message, Nathanson died on April 27, 2002, at Hospice Atlanta. Wood, again, contacted Hospice Atlanta. The staff again informed him that no one by respondent’s name had been a patient at Hospice Atlanta and that no one by respondent’s name died at the facility on April 27, 2002. Wood subsequently contacted the attorney registration authorities in Georgia and learned that no one by the name of Micah Gold was registered as an attorney in Georgia.
DA8580
Beginning in June 2000, Nathanson rented an apartment from AMLI Management Company. At some point, she moved out of the apartment. A letter purporting to be from Loeffler writing on behalf of Nathanson was sent to the “Managing Agent,” along with the door key and mailbox key. Loeffler did not write or send the letter; nor did he give Nathanson authorization to write the letter in his name or to sign his name.
On February 28, 2002, L. Donald Huelson, attorney for AMLI Management Company, filed suit against Nathanson for monies owed under the apartment lease. Nathanson was served with the summons and petition at the ACLU of Kansas and Western Missouri on March 7, 2002.
An “Answer and Counterclaim” purportedly from Loeffler was filed on Nathanson’s behalf. Loeffler had not agreed to represent Nathanson and had not prepared, signed, or filed the pleading. Instead, Nathanson prepared the answer and counterclaim, forged Loeffler’s signature, and filed it. Nathanson falsely alleged the following:
“6. Moreover, while Defendant would not have pursued this cause of action against Plaintiff had this action not been filed against her, she hereby brings this counterclaim for injuries she suffered when she was raped in the apartment rented to her by Plaintiff on May 3, 2001, as a result of a security problem that she had reported to management and asked to have repaired two days earlier. Should this matter proceed to discovery, Defendant will produce a copy of the written complaint she filed with the apartment manager about the fact that the lock on her sliding glass door was broken. Defendant will also produce a copy of a work order slip she received in response. Defendant will also produce a copy of the police report that was filed in response to the attack upon her, and which verifies that the attacker entered through the unrepaired sliding glass door. Defendant seeks compensation for the contribution of Plaintiffs negligence to her injuries, in an amount to be determined later.”
After receiving the answer and counterclaim, Huelson investigated the allegations contained in the counterclaim. He was unable to find any records or other evidence to substantiate any report of a security problem, any complaint regarding the sliding glass door, or any record of a rape being reported. In addition, no repair work order had been issued by AMLI. Huelson filed a response and answer and forwarded a copy to Loeffler. Loeffler then called Huelson and explained that he was not representing Nathanson. Loeffler requested and received from Huelson a copy of the letter and pleading that included his name and signature. After reviewing both, Loeffler wrote to Huelson and told him that he was not Nathanson’s attorney and that he did not write, send, or review the letter or pleading. This prompted Huelson to file a Motion to Strike Answer and Counterclaim and for Default Judgment, which the district court granted. The district court found that Loeffler did not sign the answer and counterclaim and that Nathanson failed to sign the pleading after being given notice of the motion to strike.
The hearing panel arrived at the following conclusions of law:
The Disciplinary Administrator complied with Supreme Court Rule 215 (2004 Kan. Ct. R. Annot. 292), which states that “[s]ervice upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail.” Nathanson was afforded the required notice.
The formal complaint alleged that Nathanson violated KRPC 3.1, KRPC 3.3, KRPC 4.1, and KRPC 8.4.
KRPC 3.1 requires in pertinent part that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” 2004 Kan. Ct. R. Annot. 438. Nathanson violated KRPC 3.1 by filing a frivolous claim in the answer and counterclaim in the AMLI Management case and by filing a false counterclaim in that suit.
KRPC 3.3(a)(1) states that lawyers shall not “knowingly make a false statement of material fact or law to a tribunal.” 2004 Kan. Ct. R. Annot. 444. Nathanson violated KRPC 3.3(a)(1) when she filed a false counterclaim in the AMLI Management case.
KRPC 4.1(a) states that in the course of representing a client “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” 2004 Kan. Ct. R. Annot. 460. Nathanson violated KRPC 4.1(a) by knowingly providing false statements of material fact to a third person when she filed a false counterclaim in the AMLI Management case, when she signed Loeffler s name to pleadings, and when she forwarded a letter to Huelson that appeared to be from Loeffler.
KRPC 8.4 states in pertinent part:
“It is professional misconduct for a lawyer to: ... . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice.” 2004 Kan. Ct. R. Annot. 485.
Nathanson repeatedly violated KRPC 8.4(c) when she prepared, fraudulently signed, and filed pleadings and correspondence that appeared to be from Loeffler. She violated KRPC 8.4(d) when she filed pleadings that purported to be prepared and filed by Loeffler when they were not. Because of Nathanson’s misconduct, opposing counsel had to file additional paperwork, the federal court had to appoint another attorney to represent Bafford, and cases were delayed.
Regarding its recommended discipline, the panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) (Standards):
“Duty Violated. The Respondent violated her duty to the legal profession to maintain personal integrity.
“Mental State. The Respondent knowingly violated her duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual damage to Mr. Bafford, to AMLI Management Company, and to the reputation of lawyers generally.”
The panel found the following aggravating factors:
“Dishonest or Selfish Motive. Clearly, the Respondent’s misconduct was motivated by dishonesty and selfishness. It was dishonest and selfish for the Respondent to repeatedly misrepresent the truth.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by repeatedly preparing and signing pleadings using Mr. Loeffler’s name. As such, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 3.1, KRPC 3.3(a)(1), KRPC 4.1(a), KRPC 8.4(c) and KRPC 8.4(d). As such, the Respondent committed multiple offenses.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Respondent certainly engaged in other deceptive practices when she informed the Special Investigator for the Disciplinary Administrator’s office and the Clerk of the Appellate Courts that she could be found at Hospice Atlanta.
“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 a period of twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time [she] engaged in the misconduct.”
The panel considered as a mitigating circumstance the fact that Nathanson has not previously been disciplined.
The panel also considered Standard 6.11, which states:
“Disbarment is generally appropriate when a lawyer, with the intent to deceivé the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.”
The panel recommended disbarment and noted that in April 2002, in a letter to the Clerk of the Appellate Courts, Nathanson requested she be allowed to surrender her license to practice law. Nathanson’s misconduct was established by substantial, clear, convincing, and satisfactory evidence.
We adopt and affirm the findings of fact made and the conclusions of law drawn by the hearing panel. Further, we agree with the panel’s recommended discipline of disbarment.
It Is Therefore Ordered that Lisa Ann Nathanson a/k/a Lisa Ann Tarlowe be and she is hereby disbarred from the practice of law in the state of Kansas, that her privilege to practice law in the state of Kansas is revoked, and that the Clerk of the Appellate Courts of Kansas strike the name of Lisa Ann Nathanson a/k/a Lisa Ann Tarlowe from the roll of attorneys licensed to practice in the state of Kansas.
It Is Further Ordered that this order shall be published in the official Kansas reports, that the costs herein be assessed to the respondent, and that the respondent forthwith comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
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|
The opinion of the court was delivered by
Beier, J.:
CIG Field Services Company (CIG) appeals from a decision by the Board of Tax Appeals (BOTA), which upheld the Department of Revenue’s valuations and assessments for tax years 1997 to 2003. CIG contends that Kansas’ statutory differentiation between the tax treatment for interstate and intercounty gas gathering systems on the one hand and intracounty gas gathering systems on the other violates the federal Commerce Clause and the federal and state Equal Protection Clauses.
During the tax years in question, appellant CIG owned and operated certain natural gas gathering systems in Kansas. Those systems crossed the state line into Oklahoma and Colorado. The Property Valuation Division of the Kansas Department of Revenue (PVD) therefore valued and assessed CIG’s property as public utility property at 33 percent of its fair market value, pursuant to K.S.A. 79-5a01 and K.S.A. 79-1439(b)(2)(C). Intercounty gas gathering systems also meet the statutory definition of “public utility” under K.S.A. 79-5a01 and are valued in the same manner and assessed by the PVD at the same tax rate as interstate gas gathering systems.
In contrast, intracounty gathering systems do not meet the definition of “public utility” under K.S.A. 79-5a01. Their property is classified instead as “commercial and industrial” property. Such property is depreciated on a 7-year, straight-line basis to a floor of 20 percent of its original cost and assessed by the county appraiser at 25 percent of its calculated depreciated value, pursuant to K.S.A. 79-1439(b)(2)(E).
None of the above facts has been in dispute. The parties also stipulated before BOTA that Kansas Corporation Commission licensing and regulation of gas gatherers is the same regardless of tax classification.
Other evidence before BOTA was conflicting, including the expert testimony on whether interstate and intercounty gas gath ering systems were competitive with or otherwise similarly situated to intrastate gas gathering systems.
Richard Heltzel, ad valorem tax manager, indicated that, hypothetically, if the Kansas property taxes on CIG’s property are higher than the taxes on comparable property owned by a similarly situated intracounty facility, “[t]he end result would be increase in costs of doing business and probably put the locally assessed gatherer at a competitive advantage I would think.”
Dr. David Dismukes, CIG’s consulting economist, examined the nature of natural gas gathering in Kansas to determine the competitive structure of the industry. He concluded that, although there is some moderate concentration of ownership in the market, Kansas is “well within a competitive market structure for gathering services” whether the companies involved are intercounty, intracounty, or interstate. In addition, Dismukes agreed there was “heads-up” competition between intracounty gathering systems and CIG and opined they were similarly situated. He observed, for example, that in Haskell County, Kansas, there are some intracounty transmission pipelines in “very close proximity if not laying right on top of’ CIG’s line. Dismukes said these lines could either be connecting or close enough in proximity to pull “leases or wells or other volumes” from those areas.
Dismukes gave no specific examples to support the theory that the intracounty systems gained a competitive edge through differential valuation and assessment. In addition, Dismukes conceded that a low-volume producer might not have the same economic opportunities as a large-volume producer.
Glenn Smith, a private consultant retained by the Department of Revenue and a former Chief of Pipeline Safety for the Kansas Corporation Commission, testified that intracounty gas gathering systems generally gather gas from marginal wells. Further, both Smith and Robert Badenoch, Bureau Chief for State Appraised Properties, indicated that intracounty systems generally are not directly connected to a transmission pipeline because intracounty systems do not have the necessary pressure. According to Smith, intracounty systems are “short segments of pipe which interconnect with other gathering systems through which the gas is moved.” Generally intracounty gas gathering systems are connected to intercounty systems.
Smith disagreed with Dismukes’ conclusions that interstate and intercounty systems are competitive with and similarly situated to intracounty systems. He concluded that intracounty systems are customers, not competitors, of intercounty systems, because most natural gas transported by intracounty systems also is transported by interstate or intercounty systems for a fee.
The BOTA Decision
The BOTA majority ultimately found that the cumulative appraised value for CIG property for 1997 to 2003 was approximately $11 million higher than it would have been if CIG were an intracounty gas gathering system and its property classified as commercial or industrial rather than public utility. The corresponding higher tax impact was approximately $900,000.
The BOTA majority stated the following among its paragraphs of “ANALYSIS AND FACTUAL CONCLUSIONS”:
“[18] ....
....
(b) The Taxpayer introduced evidence demonstrating that as an interstate gas gathering company, [it is] adversely affected by the different tax treatment accorded intra-county gas gathering companies under K.S.A. 79-5a01. . . . Taxpayer has made a showing that it was unfavorably affected visa-vis a higher tax impact.
(c) In many significant respects, the Taxpayer is similarly situated with intracounty gas gathering companies.
(i) According to a witness for the Department, because most intra-county gas gathering systems interconnect with an inter-county/interstate gas gathering system, ‘virtually all’ of the natural gas produced in Kansas is transported by inter-county/interstate gas gathering systems .... This would tend to acknowledge that most gas gathering systems in Kansas are similarly situated.
(ii) [N]atural gas gathering systems are not regulated differently by the KCC based on mileage of pipe; volumes of throughput; the number of wells connected to particular systems; or their geographic location .... There are no functional differences between a natural gas gathering system located and operating in a single county and one that crosses state lines .... Furthermore, natural gas systems are not required to seek KCC approval to serve particular wells or geographic areas ....
(iii) As acknowledged by ... a witness for the Department, whether gathering systems cross either county or state lines is more a product of where producing wells may be located (i.e., a matter of ‘happenstance’) than a matter of design . . . . As further embellished by a witness for the Taxpayer, all such systems — whether single county, multi-county or interstate — consist of pipes collecting natural gas and moving it from the wellhead to more centralized locations such as processing plants or pipelines. . . .
(iv) With regard to the degree of competition within the natural gas gathering business in Kansas, according to a witness for the Department, there is virtually no competition within the natural gas gathering business in Kansas because: (i) gas gathering services are existent to handle all producing wells; (ii) the construction of new facilities when existing gas gathering contracts expire is expensive and not cost effective . . . ; and (iii) there is little evidence of gas gatherers losing customers to other gas gatherers ... . However, according to a witness for the Taxpayer, although small gas gathering companies have some barriers to entry into the Kansas gas gathering market, which include capital requirements and management . . . , there are a number of alternatives available to the purchasers of natural gas gathering services (i.e., producers) in the Kansas natural gas gathering market. These alternatives include: (1) purchasing gathering services from an inter-county-interstate provider; (2) purchasing gathering services from an intercounty/intrastate provider; (3) purchasing gathering services from an intra-county provider; or (4) self providing those gathering services.
The Department’s claim that intra-county systems are customers and not competitors with interstate systems fails to recognize one of the most basic, and fundamental conditions of competition in all infrastructure industries (pipelines, power transmission, telecommunications) over the past 20 years: open access and interconnectivity into physical infrastructure systems. In the case of natural gas gathering and transmission systems, the open season/open access requirement of [Federal Energy Regulatory Commission] Order 636 [requiring interstate pipelines to “unbundle” transportation and sales and provide transportation to buyers from other sources] is a key component of pipeline transmission competition ....
There are various degrees of market competitiveness depending upon whether the market structure is monopoly, oligopoly, monopolistic competition, or pure competition .... Of these four broad market structure classifications, only one form of market structure entirely precludes all competition — a monopoly market structure. In a monopoly, there is only one firm and the firm is the market. However, the other three market structures represent, to varying degrees, some form of competí tíon.
In response to questioning from the Department’s counsel regarding competitive factors affecting natural gas gatherers, . . . a witness for the Taxpayer . . . testified that he was aware of several instances where producers had changed natural gas gatherers and that contracts between producers and gatherers are generally short term, with some contracts having a duration of five years or less ....
In 1997, the four largest gas-gathering companies in Kansas ... accounted for 72% of all pipeline connections in Kansas .... By the end of calendar year 2002, the four largest gas-gathering companies in Kansas .. . accounted for 67% of the well connections in Kansas. . . . This apparent loss by the four largest gas-gathering companies in Kansas of approximately 7% of the Kansas well/pipeline connections to smaller gas gatherers would tend to indicate increasing competition and declining concentration for such connections among Kansas gas gatherers from 1997 through 2002.
[I]ntra-county systems account for 12% of the total natural gas volume in Kansas, while the inter-county systems account for 88% to 89% of the volume .... [A]t the end of calendar year 2002, the four largest gas gathering companies in Kansas . . . accounted for 67.5% of the total gathering volume in 2002 .... Therefore, the other 32 inter-county systems accounted for only 21% of the total volume in the state, an average of less than 2/3 of 1% of the total volume per system. Consequently, the vast majority (nearly 90%) of the inter — county operators are responsible for relatively small volumes of natural gas, much like the intracounty operators. Thus, the inter-county systems are generally similarly situated to the intra-county systems.
....
(d) . . . .
(i) [T]he method of valuing and assessing single county natural gas gathering systems is not contingent upon and does not differ as a result of: the geographic location of such systems; the rural or urban character of the counties where such natural gas gathering systems are located; the economic characteristics of such counties; the throughput volumes of such gathering systems; the length of such systems; the number of wells connected to such systems; the financial size or strength of such system owners; or, the number of employees utilized in operating such systems. [Citations omitted.]”
Based on all of its findings and conclusions, the BOTA majority decided interstate and intercounty gas gathering systems were competitive with intracounty systems:
“In sum, the. record establishes that natural gas gathering systems in Kansas, whether single-county, multi-county or interstate, operate in a relatively competitive market environment and may compete with one another. As an interstate natural gas gatherer, the Taxpayer frequently competes in the same market with some multi-county and single-county natural gas gathering systems.”
The majority also characterized the Kansas statutory scheme as “discriminatory” and unsupported by any rational basis, but it recognized that it was not free to find K.S.A. 79-5a01 unconstitutional.
“[I]n order for this Board to make any determination regarding whether such discriminatory taxation contravenes the Commerce Clause of the United States Constitution and/or the Equal Protection Clauses of tire United States and Kansas Constitutions, the Board would be required to opine about the constitutionality of K.S.A. 79-5a01. As noted herein, it is not within the purview of the Board’s authority to render such conclusions. Accordingly, the Board must conclude that the Department’s valuation and assessment of the Taxpayer’s property in Kansas should be sustained in its entirety for all the years at issue herein.”
In a concurring and dissenting opinion, BOTA Chair David L. Patton disagreed with the majority’s finding that CIG and other interstate and intercounty gas gathering systems were competitive with or similarly situated to intracounty systems.
Patton focused on testimony distinguishing the types of wells served by the various gas gathering systems and detailing the economic disincentives for interstate and intercounty systems to build lines to marginal wells. He also emphasized CIG’s greater access to investment, distant markets, capital markets, and “economics of scale,” when compared with intracounty gatherers; and he read Smith’s testimony to say that there was “virtually no competition within the gas gathering business in Kansas.” In particular, he stressed that there was “no evidence . . . that the Taxpayer has ever lost a contract to an intra-county gas gathering company” and “no evidence . . . that the Taxpayer has ever lost revenue or business opportunities because of any tax differences between inter-county/interstate gas gathering systems and intra-county gas gathering systems.”
Patton also perceived several possible state interests that could qualify as rational bases for the differential tax treatment at issue: an interest in assuring gas gathering services for marginal wells, an interest in retaining small businesses within individual counties, an interest in protecting the tax bases of individual counties, and an interest in fostering the creation of jobs in nonmetropolitan areas. He finally concluded that the differential tax treatment was not “part of a legislative scheme designed to discriminate against inter-county/interstate gas gathering systems in favor of intra-county gas gathering systems” and that it did not result in “intentional systematic unequal treatment.”
The Governing Statutes
K.S.A. 79-5a01 provides:
“(a) As used in this act, the terms ‘public utility’ or ‘public utilities’ shall mean every individual, company, corporation, association of persons, lessees or receivers that now or hereafter are in control, manage or operate a business of:
....
(4) transporting or distributing to, from, through or in this state natural gas, oil or other commodities in pipes or pipelines, or engaging primarily in the business of storing natural gas in an underground formation;
....
“(b) The terms ‘public utility’ or ‘public utilities’ shall not include:
....
(2) any individual, company, corporation, association of persons, lessee or receiver owning or operating an oil or natural gas production gathering line which is situated within one county in this state and does not cross any state boundary line.” (Emphasis added.)
K.S.A. 79-1439 assigns assessment rates according to a property’s classification. It provides in pertinent part:
“(a) All real and tangible personal property which is subject to general ad valorem taxation shall be appraised uniformly and equally as to class and, unless otherwise specified herein, shall be appraised at its fair market value ....
“(b) Property shall be classified into the following classes and assessed at the percentage of value prescribed therefor:
....
(2) Personal property shall be classified into the following classes assessed at the percentage of value prescribed therefor:
....
(C) public utility tangible personal property including inventories thereof ... at 33%. As used in this paragraph, ‘public utility’ shall have the meaning ascribed thereto by K.S.A. 79-5a01, and amendments thereto;
....
(E) commercial and industrial machinery and equipment . . . , which, if its economic life is seven years or more, shall be valued at its retail cost when new less seven-year straight-line depreciation, or which, if its economic life is less than seven years, shall be valued at its retail cost when new less straight-line depreciation over its economic life, except that, the value so obtained for such property as long as it is being used shall not be less than 20% of the retail cost when new of such property at 25% . . . .”
Standards of Review
BOTA orders are subject to review under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. K.S.A. 77-621 sets out the scope and standard of review. The provisions potentially relevant to this case allow us to grant relief where:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; (2) the agency has acted beyond the jurisdiction conferred by any provision of law; ... (4) tire agency has erroneously interpreted or applied the law; . . . [or] (7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . K.S.A. 77-621(c).
In other words, our review of B OTA’s findings of fact is restricted to determining whether the findings are supported by substantial competent evidence. If so, the findings cannot be disregarded or contradicted on appeal. See In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 716, 79 P.3d 751 (2003).
Our review of BOTA’s conclusions of law is not so restricted, although we have recently reemphasized that “BOTA is a specialized agency and is considered to be the paramount taxing authority in this state. [Citation omitted.] BOTA is a specialized agency that exists to decide taxation issues. [Citation omitted.] Its decisions are given great weight and deference when it is acting in its area of expertise. [Citation omitted.]” In re Tax Appeal of Colorado Interstate Gas Co., 276 Kan. 672, 682-83, 79 P.3d 770 (2003). However, BOTA does not have the authority to decide the constitutionality of a statute, Zarda v. State, 250 Kan. 364, Syl. ¶ 3, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992); and the issue of whether a statute is constitutional is one of law. This court’s scope of review on issues of law is unlimited. U.S.D. 443 v. Kansas State Bd. of Education, 266 Kan. 75, 81-82, 966 P.2d 68 (1998).
The Federal Commerce Clause
CIG argues that K.S.A. 79-5a01 violates the Commerce Clause of the United States Constitution because its inclusion of interstate and intercounty natural gas gathering systems as public utilities results in their taxation at an assessed value and rate higher than those applied to intracounty natural gas gathering systems.
Historically the Commerce Clause has been interpreted
“ not only as authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.’ [Citation omitted.] This restrictive aspect has been referred to as the ‘dormant’ Commerce Clause. The dormant Commerce Clause prohibits states, unless authorized by Congress, from ‘attempting to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.’ [Citation omitted.]” Water District No. 1 v. Mission Hills Country Club, 265 Kan. 355, 365-66, 960 P.2d 239 (1998).
Discrimination under the Commerce Clause presupposes a comparison between similarly situated entities. CIG contends its property should be assessed and taxed at the same rate as intracounty gas gathering system property. Therefore, this court must consider the threshold question of whether the interstate and intercounty systems are similarly situated to intracounty systems.
In General Motors Corp. v. Tracy, 519 U.S. 278, 299-300, 136 L. Ed. 2d 761, 117 S. Ct. 811 (1997), the Supreme Court recognized the necessity of such an analysis in the context of allegedly competing entities providing different products. General Motors Corp. stated:
“This is so for the simple reason that the difference in products may mean that the different entities seroe different markets, and would continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or other regulatory differential would not serve the dormant Commerce Clause’s fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors.
....
“ . . . Thus, in the absence of actual or prospective competition between supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply.” (Emphasis added.) 519 U.S. at 299-300.
Accordingly, it is essential that interstate and intercounty systems such as CIG serve the same market as intracounty systems or that the statute’s discrimination affects the systems’ economic choices in competitive markets.
On this point, CIG contends, interstate and intercounty gas gathering systems operate in a competitive market with intracounty systems; and no evidence supports cost advantages for interstate or intercounty systems over intracounty systems. CIG further emphasizes that all of the gas gathering systems perform the same functions, transport natural gas from a lease or wellhead to a point of interconnection with a transmission line or processing facility, and are subject to the same regulation. See K.S.A. 2004 Supp. 55-150(d) (defining KCC-regulated gas gathering systems). It points to studies by the Federal Energy Regulatoiy Commission and the Federal Trade Commission, which were described by its expert witness, Dismukes, to confirm the existence of actual competition in the market in which it operates.
The PVD disputes CIG’s contention that lower taxes give intracounty systems a competitive edge. It asserts Dismukes could not cite a specific example to support CIG’s theory, and CIG did not introduce evidence that it had lost revenue because of its tax treatment. The PVD also contends intracounty systems are customers of CIG and other interstate or intercounty systems, not competitors, because intracounty systems generally must connect with intercounty/interstate systems to deliver gas to a transmission pipeline. This symbiotic relationship allows interstate and intercounty systems to avoid the cost of building lines to marginal wells, and each type of system thus “fulfills a niche in the natural gas market.”
In General Motors Corp., the plaintiff, a buyer of natural gas from an out-of-state marketer, sought refund of a use tax. General Motors challenged the exemption of local distribution companies from sales and use taxes on sellers of natural gas. The Supreme Court noted that the out-of-state marketers did not serve the local distributors’ core market of small, captive users, typified by resi dential consumers who wanted or needed to buy natural gas “bundled” with services and protections required by regulatory authorities. The Court further observed that, although the “captive” market was not geographically distinguished from the area served by the out-of-state marketers, it was defined economically by its component customers’ needs for bundled benefits. 519 U.S. at 301.
While recognizing a possibility of competition between the local distributors and the out-of-state marketers for the noncaptive market, the Supreme Court concluded: “[T]here is good reason to assume that any pricing changes that could result from eliminating the sales tax differential challenged here would be inadequate to create competition between [the local distributors] and marketers for the business of the utilities’ core home market.” 519 U.S. at 302. Thus the Supreme Court held the local distributors and the marketers were not similarly situated for purposes of dormant Commerce Clause analysis. 519 U.S. at 310. See also Alaska v. Arctic Maid, 366 U.S. 199, 204-05, 6 L. Ed. 2d 227, 81 S. Ct. 929 (1961) (holding lower business license on local fish processors raised no issue of discrimination against freezer ships; ships took catches south for canning, did not “compete with those who freeze fish for the retail market”); but see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 269, 82 L. Ed. 2d 200, 104 S. Ct. 3049 (1984) (holding Hawaii excise tax from which certain locally produced beverages exempt did not present “competitive threat” to other liquors; yet this fact not dispositive of whether competition existed between locally produced beverages and foreign beverages).
In this case, the BOTA majority resolved the issue of whether CIG and systems like it compete with intracounty systems and thus are similarly situated in CIG’s favor. Our review of the record persuades us that this issue of fact was contested through a classic battle of the experts. Because there was substantial competent evidence to support the BOTA majority’s finding, we are bound by it. It is not the job of this court to reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Steele v. Harrison, 220 Kan. 422, 423, 552 P.2d 957 (1976). The BOTA majority performed those functions. Its finding that CIG and in tracounty systems were competitive and thus similarly situated must stand.
We next consider whether K.S.A. 79-5a01’s differentiation between interstate and intercounty systems and intracounty systems passes a four-part test adopted by the United States Supreme Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (1977). If so, it does not violate the Commerce Clause; if it fails the test, it violates the Commerce Clause and must be struck down.
The Complete Auto test applied to state taxes subject to a Commerce Clause challenge requires: (1) “the tax [be] applied to an activity with a substantial nexus with” Kansas; (2) the tax be “fairly apportioned”; (3) the tax “not discriminate against interstate commerce”; and (4) the tax “fairly [relate] to tire services provided by” Kansas. 430 U.S. at 279. All four requirements must be met for the statute to pass constitutional muster.
The PVD, of course, argues the Kansas statute meets all four requirements of Complete Auto. CIG, in its reply brief, concedes the state tax at issue here meets the first, second, and fourth requirements of the test. Accordingly, the only requirement before this court is the third: whether K.S.A. 79-5a01 discriminates against interstate commerce. Kansas cases have not previously dealt with this third requirement.
The Complete Auto test’s requirements that a tax be fairly apportioned and not be discriminatory against interstate commerce are, at least in part, concerned with avoiding multiple taxation by more than one state. See Geja’s Cafe v. Metro. Pier & Expo. Auth., 153 Ill. 2d 239, 255, 606 N.E.2d 1212 (1992). The PVD cites 1 Hellerstein & Hellerstein, State Taxation, ¶ 4.12(2)(d), p. 4-61 (3d ed. 1998), for the proposition that “ ‘[i]t is only “multiple taxation of interstate operations” that offends the Commerce Clause.’ ” However, as CIG points out in its reply brief, the PVD took this statement out of context, as the Hellersteins were addressing whether a state may tax the full value of instrumentalities of interstate commerce, such as aircraft, that have not acquired a tax situs in other states. There are no multiple taxation issues in the present case because all of the taxed property is within Kansas’ borders.
In the Commerce Clause context, the term “discrimination” means “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99, 128 L. Ed. 2d 13, 114 S. Ct. 1345 (1994).
In Amerada Hess Corp. v. N.J. Taxation Div., 490 U.S. 66, 75, 104 L. Ed. 2d 58, 109 S. Ct. 1617 (1989), the Supreme Court set forth three factors to be evaluated to determine whether the third “discrimination” requirement of the Complete Auto test can be met. A state tax discriminates against interstate commerce if it (1) is facially discriminatory, (2) has a discriminatory intent, or (3) has the effect of unduly burdening interstate commerce. 490 U.S. at 75. If any one of these Amerada Hess factors is present, discrimination against interstate commerce is established under the third requirement of Complete Auto.
CIG does not contend that the Kansas tax assessment procedure has a discriminatory intent; therefore, there is no need to examine the second Amerada Hess factor. As a prelude to consideration of the first and third factors, we first note CIG’s citation to Professors Hellerstein for the proposition that “the Court has scrutinized claims that a tax discriminates against interstate commerce with considerable vigilance .... [Moreover,] it has invalidated discriminatory levies whether or not the discrimination is intentional.” 1 Hellerstein & Hellerstein, State Taxation, ¶ 4.13, p. 4-69.
Regarding the first Amerada Hess factor, CIG argues that the statute is facially discriminatory because its “public utility” definition excludes competing intracounty natural gas gathering systems. As a result, the intracounty systems receive significant tax benefits not available to interstate and intercounty systems. CIG cites Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 342, 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992), in which the Supreme Court concluded a tax law is discriminatory if it taxes a transaction more heavily when it crosses state lines than when it occurs entirely within a state. In addition, the Court in Oregon Waste Systems, 511 U.S. at 99, stated that state laws applying discriminatory re strictions on interstate commerce are “virtually per se invalid.” See also 1 Hellerstein & Hellerstein State Taxation, ¶ 4.13, p. 4-69 (“A tax that by its terms or operation imposes greater burdens on out-of-state goods, activities, or enterprises than on competing in-state goods, activities, or enterprises will be struck down as discriminatory under the Commerce Clause.”).
The PVD, for its part, directs our attention to Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 84 L. Ed. 1254, 60 S. Ct. 968 (1940), in which tire Supreme Court considered the constitutionality of a Tennessee ad valorem tax law. The law provided that the property of railroad and other public utility corporations was to be assessed for tax purposes at full cash value, while all other lands of property were to be assessed at less than cash value. In addition, property of public service corporations was to be assessed by the Railroad and the Public Utilities Commission, while all other property was to be assessed by local officials. For more than 40 years, local officials had valued property at far less than its true worth, while the Commission had assessed property at full value. The Supreme Court found no constitutional violation. The Nashville Court emphasized that states may “classify property for taxation; may set up different modes of assessment, valuation and collection; may tax some lands of property at higher rates than others; and . . . may treat . . . utilities with that separateness which their distinctive characteristics and functions in society make appropriate.” 310 U.S. at 368.
PVD’s reliance on this language is unpersuasive. It comes from the Supreme Court’s Equal Protection rather than Commerce Clause analysis.
The PVD also cites In re Tax Appeal of ANR Pipeline Co., 254 Kan. 534, 546-48, 866 P.2d 1060, cert. denied 513 U.S. 917 (1994), abrogation recognized by Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 24 P.3d 113 (2001). In ANR Pipeline, BOTA refused to grant the Pipeline’s request to have its property assessed on the same basis as railroad property. The federal Railroad Revitalization & Regulatory Reform Act of 1976 placed limitations on state taxation of railroad property. This court held that taxing railroads and pipelines differently did not violate the Commerce Clause or the Equal Protection Clause. 254 Kan. at 544-48. This Court noted that Kansas treated railroads and pipelines equally in its state constitution and its statutory definition of public utilities; Congress simply chose to favor railroads. 254 Kan. at 547.
CIG properly distinguishes ANR Pipeline, because Congress has not ordered preferential treatment of intracounty gas gathering pipelines in Kansas.
In this case, to the extent the statute is facially discriminatory against interstate commerce, it is imperfectly or incompletely so. Intercounty systems wholly contained within Kansas are taxed the same as interstate systems. Thus the Kansas tax does not necessarily exert pressure on interstate businesses to conduct more of their activities in the state.
CIG points out, however, that the Hellersteins have addressed the import of imperfection or incompleteness of discrimination on Commerce Clause analysis. They state:
“[I]f a tax favors certain in-state residents or interests while discriminating against many other in-state as well as out-of-state residents or interests, does it nevertheless violate tire Commerce Clause?
“The U.S. Supreme Court has answered this question in the affirmative, although not specifically in the context of a state tax. In Dean Milk Co. v. City of Madison, [340 U.S. 349, 354, 95 L. Ed 329, 71 S. Ct. 295 (1950)] the Court struck down a Madison, Wisconsin, ordinance barring the sale of milk not processed within five miles of the city. The Court found it immaterial’ that the ordinance discriminated equally against in-state milk processed outside the five-mile perimeter. The Court’s position is consistent with its more recent pronouncements that there is no ‘de minimis’ defense to discrimination and that it need not know ‘how unequal’ a tax is before concluding that it unconstitutionally discriminates.’ ” 1 Hellerstein & Hellerstein, State Taxation, ¶ 4.13(1A), p. S 4-8 (3d ed. 2004 Supp.).
In Dean Milk Co. v. Madison, 340 U.S. 349, 354, 95 L. Ed. 329, 71 S. Ct. 295 (1951), the Supreme Court found the ordinance “erect[ed] an economic barrier protecting a major local industry against competition from without the State.” The ban led to unjustified discrimination against interstate commerce, and the burden it produced exceeded any need to protect local health and safety; other “reasonable nondiscriminatory alternatives” were available, according to the Court. It simply did not matter that Wisconsin milk from outside the Madison area was subjected to “the same proscription as that moving in interstate commerce.” 340 U.S. at 354 n.4; cf. Brimmer v. Rebman, 138 U.S. 78, 83, 34 L. Ed. 862, 11 S. Ct. 213 (1891) (“ ‘a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute’ ”).
And, in the much more recent case of Fulton Corp. v. Faulkner, 516 U.S. 325, 133 L. Ed. 2d 796, 116 S. Ct. 848 (1996), the Supreme Court concluded that an “intangibles” tax facially discriminated against interstate commerce. The Court noted that the state secretary of revenue had argued the tax was so small in amount as to have no practical impact. This argument was explicitly rejected: “[W]e have never recognized a ‘de minimus’ defense to a charge of discriminatory taxation under the Commerce Clause.” 516 U.S. at 333 n.3.
Other United States Supreme Court decisions have included similar pronouncements. See Associated Industries of Mo. v. Lohman, 511 U.S. 641, 650, 128 L. Ed. 2d 639, 114 S. Ct. 1815 (1994) (“[A]ctual discrimination, wherever it is found, is impermissible, and the magnitude and scope of the discrimination have no bearing on the determinative question whether discrimination has occurred.”); C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 391, 128 L. Ed. 2d 399, 114 S. Ct. 1677 (1994) (flow control ordinance “no less discriminatory because in-state or in-town processors are also covered by the prohibition”); Maryland v. Louisiana, 451 U.S. 725, 760, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981) (“We need not know how unequal the [t]ax is before concluding that it unconstitutionally discriminates.”).
In view of these authorities, we have no hesitation in extending the rationale of the United States Supreme Court’s Dean Milk decision to this state tax case.
Like the sales preference of Dean Milk, which facially discriminated against all milk producers outside a 5-mile radius of Madison, Wisconsin, the tax we examine here benefits only a part of an industry located completely within the state. Other intrastate entities in the same industry — in Dean Milk, producers outside the protected city and environs but within Wisconsin, here, intercounty gas gathering systems within Kansas — are not benefitted. Put another way, there is no differential treatment of certain intrastate entities in comparison to entities in interstate commerce. But this imperfect discrimination is nevertheless discrimination. If there is no de minimis defense, we are compelled to conclude that the statute is facially discriminatory.
Even if we were to reach the opposite conclusion on the facial discrimination Amerada Hess factor, we would conclude the statute has the effect of unduly burdening interstate commerce. See Amerada Hess, 490 U.S. at 75. BOTA found that CIG paid approximately $900,000 more in taxes than it would have paid if it were an intracounty system. There is substantial competent evidence in the record to support this factual finding, and such an impact can hardly be characterized as de minimis or even minor. Our statute is not evenhanded, and its impact exceeds the merely incidental. Cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 30, 523 A. 2d 467 (1987).
We note that Massachusetts and California courts also have concluded that specific tax statutes or ordinances facially discriminated against or had an effect of unduly burdening interstate commerce in circumstances where the discrimination might be described as imperfect or incomplete.
In an advisory opinion, the Massachusetts Supreme Judicial Court concluded that legislation reducing a surcharge on motor vehicle rental contracts from $10 to $3 only for residents of a city violated the Commerce Clause. The Massachusetts court concluded the surcharge discriminated against out-of-state consumers, and its constitutional flaw was not cured by the fact that it also discriminated against many in-state consumers. Opinion of the Justices to the House of Representatives, 428 Mass. 1201, 1208, 702 N.E.2d 8 (1998).
In Union Oil Co. v. City of Los Angeles, 79 Cal. App. 4th 383, 94 Cal. Rptr. 2d 81 (2000), the California court considered a challenge to a Los Angeles tax ordinance, concluding it directly discriminated “against interstate and intercity taxpayers doing business in the City. A Los Angeles business paying the payroll tax in Los Angeles is exempt from the business license tax (L.A. Mun. Code, § 21.24), although the intercity or interstate business performing the same activity in the City must pay the business license tax.” 79 Cal. App. 4th at 388-89; see also General Motors Corp. v. City & County of San Francisco, 69 Cal. App. 4th 448, 81 Cal. Rptr. 2d 544 (1999) (holding business tax that differentiated between in-city manufacturers and out-of-city manufacturers violated Commerce Clause); General Motors Corp. v. City of Los Angeles, 35 Cal. App. 4th 1736, 42 Cal. Rptr. 2d 430 (1995) (holding business tax that differentiated between in-city manufacturers and out-of-city manufacturers violated Commerce Clause), abrogated on other grounds by Union Oil Co. of Cal. v. City of Los Angeles, 79 Cal. App. 4th 383, 94 Cal. Rptr. 2d 81 (2000).
Roth federal and state courts from many other jurisdictions have rejected assorted nontax measures on the basis of the Dean Milk rationale. See, e.g., Kentucky Power Co. v. Huelsmann, 352 F. Supp. 2d 777, 785-86 (E.D. Ky. 2005) (electricity curtailment priority statute; “[T]he fact that some Kentucky customers are not within the favored class under [the faw] does not change the constitutional analysis. Regulations that treat all out-of-staters in a disparate manner will be treated as discriminatory even though some in-staters are also adversely affected by the regulation.”); Lett v. Paymentech, Inc., 81 F. Supp. 2d 992, 999 (N.D. Cal. 1999) (statutes requiring contracts for commission-based sales employees lacking fixed place of business in California; “unreasonable burdens on interstate commerce cannot be saved by legislative enactments that also impose parallel burdens on intrastate commerce .... [T]he state’s ability to regulate interstate commerce, circumscribed in the Constitution, is not enhanced or affected by its regulation of intrastate commerce.”); Connecticut Carting Co. v. Town of East Lyme, 946 F. Supp. 152, 156 n.6 (D. Conn. 1995) (ordinance regulating waste collection and disposal; “The fact that the ordinance also increases the cost of doing business for in-state competing facilities ... is immaterial, as regulations are no less discriminatory because in-state businesses are also discriminated against.”); Sanifill, Inc. v. Kandiyohi County, 559 N.W.2d 111, 115 n.3 (Minn. App. 1997) (waste disposal fee ordinance; “The fact that intrastate as well as interstate commerce may be adversely affected ... is immaterial to the determination of whether [the measure] is discriminatory for Commerce Clause purposes.”); Homier Distrib. Co., v. City of Albany, 90 N.Y.2d 153, 159, 659 N.Y.S.2d 223, 681 N.E.2d 390 (1997) (city transient retailer tax; discriminatory character of law “not altered because its burden may also fall upon some local businesses”).
Because K.S.A. 79-5a01 is facially discriminatory and has the effect of unduly burdening interstate commerce under Amerada Hess, it discriminates under Complete Auto. We therefore hold that its differentiation between interstate and intercounty natural gas gathering systems on the one hand and intracounty systems on the other is unconstitutional under the federal Commerce Clause, and we must reverse BOTA’s decision because of its reliance on the statute. See K.S.A. 77-621(c)(1).
Equal Protection
CIG next argues that K.S.A. 79-5a01 violates the Equal Protection Clauses of the federal and state Constitutions. The Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Constitution provides virtually the same protection. See Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 609, 24 P.3d 113 (2001).
Because BOTA’s decision must be reversed under the Commerce Clause analysis above, we need not reach the merits of this constitutional issue. We choose to address it, however, because of CIG’s evident confusion about the appropriate level of scrutiny to be applied when equal protection challenges to state taxes reach the appellate courts and our desire to eliminate such confusion in future cases.
First, we note that we have previously stated:
“If similarly situated taxpayers receive disparate treatment, the one receiving the less favorable treatment may have been denied equal protection of the law even if the taxpayer receiving tire less favorable tax is taxed according to the law. [Citation omitted.] However, the taxpayer seeking to establish a violation of the Equal Protection Clause must demonstrate that his or her treatment is the result of a ‘deliberately adopted system’ which results in intentional systematic unequal treat ment. [Citation omitted.]” In re Tax Appeal of City of Wichita, 274 Kan. 915, 920, 59 P.3d 336 (2002).
Even if we assume that CIG could show that its treatment was the result of a deliberately adopted system which results in intentional unequal treatment, which it cannot, it would not be entitled to relief under the Equal Protection Clause.
Federal and Kansas courts have long delineated three levels of scrutiny in equal protection cases: (1) the rational basis test to determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose; (2) the heightened scrutiny test to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny test to determine whether a statutory classification is necessary to serve some compelling State interest. See Bair v. Peck, 248 Kan. 824, 830-31, 811 P.2d 1176 (1991).
PVD correctly recognizes the well-established rule that tax classifications such as the one before us need meet only the rational basis level of scrutiny to satisfy the Equal Protection Clause. General Motors Corp. v. Tracy, 519 U.S. 278, 311, 136 L. Ed. 2d 761, 117 S. Ct. 811 (1997). “ ‘[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.'” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 253, 930 P.2d 1 (1996) (quoting Madden v. Kentucky, 309 U.S. 83, 88, 84 L. Ed. 590, 60 S. Ct. 406 [1940]).
CIG nevertheless attempts to persuade us that heightened or possibly strict scrutiny should be applied to our examination of K.S.A. 79-5a01, because the tax classification is “suspect.” Heightened scrutiny applies to “quasi-suspect” classes. Only in cases involving strict scrutiny, applicable to “suspect classifications” or “fundamental interests,” is the presumption of constitutionality shifted and the burden placed on the party asserting constitutionality to show a compelling state interest. Farley v. Engelken, 241 Kan. 663, 668-70, 740 P.2d 1058 (1987).
CIG’s argument has no merit. Although strict scrutiny is mentioned in some of the cases cited by CIG, see Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 342-43, 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992); Hughes v. Oklahoma, 441 U.S. 322, 337, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979); and United States v. Carolene Products Co., 304 U.S. 144, 152 n.4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938), those cases deal with health and safety regulation under the Commerce Clause. They are not equal protection cases. Nothing in them dictates that we depart from precedent applying the rational basis test when taxation schemes come under equal protection challenge.
CIG also asserts in the alternative that, even if the rational basis test is applied, there is no valid purpose supporting the statute’s differentiation between interstate and intercounty systems and intracounty systems. It implies that the Kansas tax classification is arbitrary and emphasizes that the BOTA majority saw no evidence of the existence of a rational basis for the statute. Although we note the BOTA majority’s statement that “[n]o rational basis has been established in the evidentiary record,” we discount it as an erroneous interpretation or application of the law. See K.S.A. 77-621(c)(4).
No evidence of a particular actual legitimate purpose in legislative history or elsewhere is necessary for an enactment to survive rational basis scrutiny. Rather, an appellate court is free to consider whether any potential legitimate purpose exists. See Peden, 261 Kan. at 259-60 (upholding tax rate disparity between single and married taxpayers). In this case, we can imagine several, but it is enough to say that PVD has pointed out one that is entirely sufficient: When K.S.A. 79-5a01 was enacted in 1969, the legislature may have intended, among other things, to divide appraisal duties between the PVD and county appraisers, a valid purpose for the statute’s classification of interstate and intercounty systems as public utilities and its explicit exception of intrastate systems from that definition.
Once the correct level of scrutiny is applied to CIG’s equal protection claim, the statute survives application of the rational basis test and CIG’s claim fails.
Reversed and remanded for further proceedings consistent with this opinion.
Gernon, J., not participating.
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The opinion of the court was delivered by
McFarland, C.J.:
The Johnson County District Court convicted John M. Larson of driving under the influence, in violation of K.S.A. 1997 Supp. 8-1567(a). The district court subsequently granted defendant’s motion for arrest of judgment, finding that the State’s failure to plead the crime severity level in the amended complaint was fatal to the conviction.
The underlying facts show that on June 15, 1996, a Johnson county deputy sheriff arrested defendant, issuing a citation for driving under the influence. On the traffic citation, the officer alleged that defendant had violated “08-1567 A2,” and he marked the “Misdemeanor” box. Defendant was tried and convicted in traffic court and sentenced, as a first offender, to 120 days in the custody of the sheriff with a minimum of 48 hours served in jail. Additionally, he was fined $200 and ordered to pay court costs and fees. On October 31, 1996, defendant appealed this conviction to the district court.
On November 1, 1996, the State filed an amended complaint, charging defendant as follows:
“I, Jacquelyn E. Ulrich, Assistant District Attorney of said County, being duly sworn on oath state to the Court that on or about the 15th day of June, 1996, in the County of Johnson and State of Kansas,
JOHN M. LARSON
did then and there unlawfully operate or attempt to operate a vehicle: while under the influence of alcohol and/or drugs to a degree that rendered the person incapable to safely drive the vehicle; or in the alternative; with an alcohol concentration in his blood or breath of .08 or more, within 2 hours of operating the vehicle, in violation of K.S.A. 8-1567(a)(l)(2)(3)(4)(5).
/s/Jacquelyn E. Ulrich”
On February 3,1997, defendant was tried de novo in the district court and convicted of driving under the influence based on evidence that defendant had an alcohol concentration in his blood or breath of .08 or more within 2 hours of operating the vehicle. The sufficiency of such evidence is not at issue in this appeal. However, immediately after the court pronounced defendant guilty, defendant indicated that there was a lawful reason why he could not be sentenced. This was followed by a timely motion to arrest judgment, which contended: (1) The complaint was fatally defective because the State failed to include the crime severity level in the amended complaint; and (2) accordingly, the court did not have jurisdiction to convict him of the offense.
On March 17,1997, relying on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), the district court issued a memorandum decision granting defendant’s motion, setting aside the judgment, and dismissing the complaint.
On March 26, 1997, the State filed a motion to reconsider, arguing that it had never attempted to prosecute defendant for anything other than the minimum crime severity level, a class B misdemeanor; therefore, the error was not prejudicial and the complaint was not fatally defective.
On April 17, 1997, the district court issued a memorandum decision denying the State’s motion to reconsider, concluding, in part:
“8. Does leaving the criminal classification off the complaint mean the court has no jurisdiction as defendant asserts? The Supreme Court has found that lack of an element in the charge affects jurisdiction. The court would lack subject matter jurisdiction and the conviction would be void. State v. Shofler, 9 Kan. App. 2d 696 (1984). But Masterson is clear that the criminal classification is required but not an element of the offense of DUI.
“9. The State urges that because it only seeks to sentence the defendant for the lowest level of DUI offense, a class B misdemeanor, the defendant is not prejudiced by the omission. Defendant certainly would have known that under K.S.A. 8-1567 he was charged with at least a class B misdemeanor and subject to at least the penalties set forth for a first offense DUI.
“10. The court therefore finds that the complaint in this case was defective because it did not contain the criminal classification charged. The court further finds that the failure to allege the criminal severity classification is jurisdictional and the conviction of the defendant should be set aside as void.”
The State appealed pursuant to K.S.A. 22-3602(b). Defendant filed no appellate brief.
This case involves a question of law, and our standard of review is unlimited. See Masterson, 261 Kan. at 161; State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
Defendant was charged and convicted under K.S.A. 1997 Supp. 8-1567, which provides, in part:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
“(2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
“(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months’ imprisonment, or in the court’s discretion 100 hours of public service, and fined not less than $200 nor more than $500. . .
“(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. . . .
“(f) On the third or a subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,000 nor more than $2,500. . . .”
K.S.A. 1997 Supp. 22-3201 outlines the requirements of a formal complaint:
“(a) Prosecutions in the district court shall be upon complaint, indictment or information.
“(b) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense. An indictment shall be signed by the presiding juror of the grand jury. An information shall be signed by the county attorney, the attorney general or any legally appointed assistant or deputy of either. A complaint shall be signed by some person with knowledge of the facts. Allegations made in one count may be incorporated by reference in another count. The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule and regulation or other provisions of law which the defendant is alleged to have violated. Error in the citation or its omission shall be not [sic] ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.
“(c) When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.”
We are now confronted with the question of whether the State’s failure to allege the crime severity level in a complaint is fatal to a valid conviction.
In Masterson, 261 Kan. 158, the defendant was also convicted of driving under the influence in violation of K.S.A. 1995 Supp. 8-1567. There, the complaint had initially alleged the severity level as “ ‘[K.S.A.] 8-1567 Class A or B misdemeanor or Severity Level 9 Felony, to be determined at sentencing.’ ” 261 Kan. at 159-60. At the bond hearing, the judge asked if the State would be trying an A misdemeanor, B misdemeanor, or severity level 9 felony offense. When the State responded that it would be trying a B misdemeanor, the complaint was amended by crossing out “ ‘A’ ” and “ ‘Severity Level 9 Felony, to be determined at sentencing.’ ” 261 Kan. at 160. Masterson was convicted of driving under the influence. Later, at sentencing, the State requested that Masterson be sentenced as a second offender. The district court denied the request and sentenced Masterson as a first offender. The State appealed.
On appeal, the State argued that K.S.A. 22-3201 does not require that the State give a defendant notice of the severity level of the driving under the influence offense being charged under 8-1567 and that the level of offense is only important at the time of sentencing. We disagreed. We first noted that K.S.A. 22-3201(c) directs that the complaint allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale. While we concluded that the inclusion of the crime classifications in subsections (d), (e), and (f) does not make prior driving under the influence convictions elements of the offense of driving under the influence, we also stated that “[the defendant] should have the right to know before trial the severity level of the crime being charged.” 261 Kan. at 164. Does this language in Masterson mean that a failure to allege the crime severity level in the complaint is fatal to a valid conviction? We think not; however, we do find that this language in Masterson requires some clarification.
In Masterson, defendant was convicted on a complaint alleging a crime severity level of a B misdemeanor. At the sentencing hearing, the State sought to have the defendant sentenced for an A misdemeanor, which would result in “upping the ante” after conviction. The result in Masterson was a determination that, under such circumstance, the trial court was correct in sentencing the defendant as a B misdemeanant.
In the case before us the amended complaint was silent as to the crime severity level. The amended complaint was dismissed after conviction, but prior to sentencing. The State contends it had no intention of seeking sentencing for a level other than a B misdemeanor. There is no evidence of any contrary intent. Indeed, this position is consistent with defendant’s prior conviction and sentencing in this same case in traffic court. In summary, no attempt to “up the ante” after conviction is involved in the case herein.
As noted in Masterson, the crime severity level is not an essential element of driving under the influence. The State’s failure to include a crime severity level in the amended complaint does not render the conviction void. Rather, it restricts the sentence to that appropriate to a B misdemeanor, the lowest crime severity level for the offense of driving under the influence. The language in Masterson is hereby clarified accordingly. The district court’s order arresting judgment is reversed, and the case is remanded for sentencing consistent with this opinion.
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The opinion of the court was delivered by
Per Curiam:
Defendant, Earnest W. Overton, appeals his convictions for aggravated indecent liberties and rape. Overton asserts the district court: (1) lacked jurisdiction to prosecute him because the statute of limitations had run; (2) erroneously admitted K.S.A. 60-455 evidence; (3) erroneously allowed the jury to use transcripts of recorded phone conversations during deliberations; (4) failed to question jurors regarding a remark made by a spectator; (5) improperly allowed the prosecutor to question the defendant’s wife regarding a privileged communication; and (6) failed to apply the proper sentencing guidelines.
Overton worked as an eighth-grade science teacher at a middle school in Sedgwick County. Overton separately befriended three female 14-year-old students, G.B., T.R., and A.D. Each of the girls confided in Overton about her problems at home and babysat for Overton’s children. Several years after the girls had graduated from middle school, each alleged that Overton had kissed and separately fondled each of them at school and raped each of them in his home.
Overton was charged with rape and aggravated indecent liberties with each girl. The charges pertaining to A.D. were dismissed at the preliminary examination because the statute of limitations had run. At trial, a jury convicted Overton of rape and aggravated indecent liberties with G.B. and acquitted him of the charges related to T.R.
Overton appealed his convictions and his sentence. The Court of Appeals affirmed Overton’s convictions and sentences in an unpublished opinion filed December 5, 2003. This court granted Overton’s petition of review.
Jurisdiction to Prosecute
Overton asserts that his convictions must be reversed because the district court lacked jurisdiction to prosecute him. Overton claims that the State failed to commence prosecution for the crimes of which he was convicted within the statute of limitations when it did not prepare and deliver an arrest warrant to the sheriff for execution. An appellate court has the right to determine if a district court has jurisdiction of the matter appealed. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
To support his argument, Overton points out that K.S.A. 2004 Supp. 21-3106(11) provides in part:
“A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.”
Overton then asserts that State v. Washington, 12 Kan. App. 2d 634, 752 P.2d 1084, rev. denied 243 Kan. 781 (1988), interpreted 21-3106 and held that if the delay in executing a warrant is unreasonable, the delay shall be included in determining whether a prosecution was commenced within the statute of limitations. Overton argues that if a nonserved warrant defeats the statute of limitations in Washington, the failure to issue a warrant is also fatal.
First, we note that Overton’s reliance on Washington is misplaced. The basis for the Washington decision was failure to timely serve a warrant that had been issued within the statute of limitations. Here, there was never a warrant issued for Overton’s arrest because he was arrested by an officer who had probable cause to believe Overton had committed a crime. A complaint was filed, and Overton’s first appearance was held prior to the expiration of the statute of limitations of the crimes charged in this case. Therefore, Washington does not apply.
The determination of whether the State properly commenced its prosecution of Overton requires a review of criminal procedure statutes. The criminal procedure statutes are set forth in Chapter 22 of the Kansas Statutes Annotated and are referred to as the Kansas Code of Criminal Procedure (Code). K.S.A. 22-2101 et seq. The Code governs the proceedings in all criminal cases in the district courts and “shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” K.S.A. 22-2102; K.S.A. 22-2103.
After an investigation, a Wichita detective arrested Overton on July 6, 2001, for rape and aggravated indecent liberties for his acts with G.B. That arrest was without a warrant and was based on probable cause pursuant to K.S.A. 22-2401(c)(1). After his arrest, Overton was booked into jail; posted bond; was released on July 9, 2001; and was ordered to appear on a day certain. On July 12, 2001, the State filed a “Complaint/Information,” charging Overton with rape and indecent liberties with G.B. The case number for the charges regarding G.B. is 01CR1633. Overton does not claim that his arrest without a warrant in that case was illegal.
On July 13, 2001, while on bond in this case, Overton was arrested for charges of rape and indecent liberties with T.R. A complaint on T.R.’s charges was later filed as case number 01CR1800. Overton remained in the custody of the sheriff for the second group of charges until July 17, 2001.
On July 16, 2001, while still in custody for the T.R. charges, Overton made his first appearance in case number 01CR1633 for the charges related to G.B. Overton appeared with retained counsel. The complaint regarding G.B.’s charges was served on the defendant. The court again released Overton on his bond for the 01CR1633 charges by G.B. and ordered him to appear on July 30, 2001, for a prehminary hearing. Because Overton’s first appearance on the 01CR1633 charges occurred while he was in custody on the subsequent charges, the court did not issue a warrant or summons on the 01CR1633 charges.
Under the circumstances of this case, the district court’s procedure comports with the purpose of the Code. The issuance of a warrant or summons for the arrest of a defendant already in custody on other charges is not required by the Code.
Although K.S.A. 22-2302(1) requires a magistrate to issue a warrant or a summons after determining that there is probable cause supporting a complaint, the issuance of a warrant or summons is not required for commencing a prosecution pursuant to K.S.A. 22-2301(1). K.S.A. 2004 Supp. 22-2401(c)(1) provides that a law enforcement officer can arrest a person when the officer has probable cause to believe that the person has committed or is committing a felony. Once an arrest has been made without a warrant, the person arrested must be taken before the nearest available magistrate without unnecessary delay and a complaint filed forthwith. K.S.A. 2004 Supp. 22-2901(1). The accused maybe released on bond after his or her first appearance before a magistrate, pending a preliminaiy examination or trial. K.S.A. 2004 Supp. 22-2802(1). In this case, Overton was arrested by a peace officer without a warrant because the officer had information that Overton had committed a felony.
We note that a complaint is a “written statement under oath of the essential facts constituting a crime.” K.S.A. 22-2202(8). K.S.A. 22-2301(a) states that a prosecution is commenced when the complaint is filed. K.S.A. 22-2301(1) specifically provides:
“Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. A copy of the complaint shall forthwith be supplied to the county attorney of the county and a copy thereof shall be furnished to the defendant or said defendant’s attorney upon request.”
The purpose for issuing a warrant or summons is to provide the accused with actual notice of the charge or charges against him or her and to insure that the accused appears before the court for further proceedings. See K.S.A. 22-2304 (form of warrant or summons). Both of those goals were accomplished when, as required by his bond, Overton voluntarily appeared for his first appearance without a warrant or summons being issued in this case. Overton has failed to show a violation of the Code or any prejudice resulting from the court’s failure to issue a warrant or summons.
Admission of K.S.A. 60-455 Evidence
Next, Overton argues that the trial court erroneously admitted the testimony of A.D. in violation of K.S.A. 60-455. Although evidence of prior crimes and other civil wrongs is inadmissible to prove a person’s propensity to commit crime, thereby implying that he or she committed the crime at issue, K.S.A. 60-455 allows the admission of such evidence when that evidence is relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before evidence of prior crimes may be admitted pursuant to K.S.A. 60-455, three requirements must be met. “First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its po tential prejudice.” State v. McHenry, 276 Kan. 513, 519, 78 P.3d 403 (2003).
A.D. testified that while she was a student at the middle school, Overton befriended her, kissed her at school, groped her at his house, and eventually raped her at his house. Overton was initially charged with aggravated indecent liberties and rape for A.D.’s allegations. The State dismissed the charges because the 5-year statute of limitations had expired. Overton argues that A.D.’s testimony was admitted into evidence to show his propensity to commit the crimes charged and, therefore, violated K.S.A. 60-455. Upon appellate review, this court’s analysis is limited to determining whether the trial court properly admitted K.S.A. 60-455 evidence to show plan. See State v. Marquez, 222 Kan. 441, 447-48, 565 P.2d 245 (1977).
The State’s motion to admit evidence of Overton’s sexual conduct with A.D. requested that the evidence be admitted in this case to show plan. Prior to A.D.’s testimony, the trial court instructed the jury to consider A.D.’s testimony “solely for the purpose of proving [Overton’s] plan.” To support his claim that evidence regarding A.D. should not have been admitted, Overton raises several arguments. Overton’s first argues that there was no “definite project” or “structured design” connecting the alleged incidents with G.B. and A.D. because there was no causal connection between the two. Overton then asserts that A.D.’s credibility was unreliable and the prejudicial effect of the evidence outweighed its probative value. Overton further argues that the evidence does not prove the facts specified in the statute, as required by K.S.A. 60-455. Finally, Overton asserts that the trial court’s admission of evidence beyond the State’s proffer was in error. The State presented testimony of a high school counselor who observed Overton with A.D. while A.D. was attending high school. The State also presented testimony from the principal of the high school who reported Overton’s presence with A.D. at the high school to the principal of Truesdell Middle School, where Overton worked.
Relying on State v. Jones, 247 Kan. 537, 802 P.2d 533 (1990), and Marquez, 222 Kan. at 446, Overton claims that the evidence regarding A.D. was inadmissible because that evidence established no causal link between A.D.’s allegations and G.B.’s allegations to indicate a preexisting design, plan, or scheme to commit a rape or aggravated indecent liberties against G.B. We point out that this court addressed a similar argument in State v. Rucker, 267 Kan. 816, 828-29, 987 P.2d 1080 (1999). In Rucker, the defendant was charged with aggravated indecent liberties against his daughter. The State presented evidence that Rucker had committed similar acts against his other daughter. The Rucker court agreed that Marquez did not apply but then noted that the evidence could have been admitted to show modus operandi because the crimes, although unrelated, were strikingly similar. 267 Kan. at 828-29.
In reaching this conclusion, the Rucker court relied on State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), which had recognized two theories for admitting prior crimes or civil wrongs to prove plan. One of the theories, as argued by Overton, requires proof of a causal connection. The other theory.allows prior crimes evidence to be admitted to show modus operandi or the general method the defendant used to perpetrate similar but totally unrelated crimes. 267 Kan. at 828.
Overton fails to distinguish Rucker. Instead, he asserts that Damewood is direcdy at odds with Marquez and implies that this court should overrule Damewood and its progeny based on an article in Purinton “Call it a ‘Plan and A Defendant’s Prior (Similar) Sexual Misconduct Is In: The Disappearance of K.S.A. 60-455,” 70 J.K.B.A. 8 (2001). Other than this article, Overton fails to cite a statute or case to support overruling Damewood or other similar cases which allowed the introduction of evidence of other crimes or civil wrongs to show a defendant’s modus operandi.
We note that this court has authorized the use of such evidence pursuant to K.S.A. 60-455 for nearly 4 decades. In State v. Poulos, 196 Kan. 287, 291-92, 411 P.2d 689, cert. denied 385 U.S. 827 (1966), this court upheld the admission of evidence that tended to show Poulos’ method for stealing televisions from hotel rooms. The State introduced evidence that Poulos had offered a hotel clerk money for a passkey to hotel rooms nearly 2 years after the incidents for which the defendant was being tried. This evidence corroborated the codefendant’s testimony that Poulos gave him a pass key to steal televisions. The Poulos court stated: “This court has often held that evidence of independent similar offenses is admissible, under appropriate instruction as to the purpose for which it may be considered, where it tends to prove, among other things, intent, inclination, plan, scheme, method or system of operation.” 196 Kan. at 291-92.
Overton does not argue that the accusations involving A.D. are not strikingly similar to those involving G.B. Nevertheless, the State highlights the similarities between both accusations. Both A.D. and G.B. were 14 years old when Overton began talking with them at school. Both girls confided in Overton about their family problems at home. Overton complimented both girls and arranged to be alone with them at the school, where he kissed and fondled each of them. Overton also hired each of the girls as babysitters and used that opportunity to get them alone in his house. Both girls testified that Overton raped them on the bed in the master bedroom. As the State argues, these similarities are striking and clearly show Overton’s modus operandi or plan.
Overton next claims the probative value of that evidence is outweighed by its prejudicial effect because A.D.’s testimony lacked credibility. Essentially, Overton is asking the appellate court to reweigh the evidence and pass on the witness’ credibility. An appellate court does not weigh the evidence or determine the credibility of witnesses. That function is within the province of the trier of fact. On appeal by a defendant, all questions of credibility are resolved in favor of the State. State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
All evidence supporting the State’s charges is prejudicial to the defendant. However, under K.S.A. 60-455, if the prejudicial effect outweighs its probative value, the evidence is inadmissible. See McHenry, 276 Kan. at 519. Overton’s defense was to deny all of the charges and discredit G.B. We note that A.D.’s testimony corroborates G.B.’s testimony and directly counters Overton’s defense. Consequently, that evidence was probative.
Overton further attacks the admission of A.D.’s testimony on the basis that the evidence does not prove one of the facts specified in the rape statute. This argument misinterprets the case law for ap plying K.S.A. 60-455. To be admissible, evidence must prove one of the facts specified in K.S.A. 60-455, such as intent, plan, or absence of mistake or accident, not a fact of the crime charged. Rucker, 267 Kan. at 824-29. Contrary to Overton s claim, A.D.’s testimony shows the defendant’s plan, one of the requirements specified in K.S.A. 60-455. Proof of Overton’s plan was material and corroborated G.B.’s testimony in opposition to Overton’s general denial of the charges. Accordingly, this argument has no merit.
This court reviews the admission of A.D.’s testimony using an abuse of discretion standard. See McHenry, 276 Kan. at 519. Overton bears the burden of establishing that the trial court abused its discretion in admitting evidence under K.S.A. 60-455, and he has failed to demonstrate such an abuse in the admission of A.D.’s testimony. See Rucker, 267 Kan. at 823. A.D.’s testimony proves Overton’s plan, one of the facts specified in K.S.A. 60-455. Over-ton’s plan is a material fact that directly contradicts his defense and corroborates G.B.’s testimony. Likewise, the evidence is more probative than prejudicial. A.D.’s testimony survives the three-prong test required for K.S.A. 60-455 evidence. See McHenry, 276 Kan. at 519. The trial court did not err by admitting A.D.’s testimony.
Finally, Overton asserts that the trial court admitted evidence beyond the State’s proffer by including testimony from high school personnel who witnessed interactions between Overton and A.D. We note that Overton failed to object to the admission of the testimony of these witnesses. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. State v. Jamison, 269 Kan. 564, 569-70, 7 P.3d 1204 (2000). Overton has failed to preserve this argument.
Transcripts of Recorded Phone Conversation
For his third claim of error, Overton argues that the trial court erred when it allowed the juiy to use the transcript of the taped phone conversation between him and G.B. during its deliberations. While investigating G.B.’s allegations, Wichita detectives taped two telephone conversations between G.B. and Overton. These conversations were transcribed. At trial, the State played the taped conversations to the jury. In addition, the State provided the jurors with copies of the transcripts to use while they listened to the tapes.
Because copies of the transcripts were not admitted as evidence, the transcripts were not given to the jurors. During deliberations, the juiy requested use of the transcripts to “help with clearing up some of the muffle on the tape.” The trial court instructed the jurors “that the transcripts themselves are not evidence. They are simply a tool to assist you. If you believe that the transcript is different from what you hear on the tape, the tape itself is controlling,” then allowed the jury to use the transcripts during its deliberations.
Overton first argues that the tape is unintelligible in places and the transcript improperly inserts words. Specifically, Overton states that the transcript includes the passage, “Well you know I never raped you,” even though the tape stated, “Well you know I never fucked you.” This argument is not supported by the record. The tape does not use the word “fucked.”
We have previously stated that trial courts have wide discretion in determining whether to permit the jury to use transcripts as aids while listening to recordings. An appellate court reviews such a decision using an abuse of discretion standard. State v. Kraus, 271 Kan. 810, 812-15, 26 P.3d 636 (2001).
In Kraus, the trial court allowed the State to play a CD-ROM which contained the audio recording of a conversation and a typed transcript of the conversation that could be displayed simultaneously on a computer screen. The jury listened to the audio portion while the typed version was displayed on the wall. The trial court instructed the jury that only the recorded voices could be considered as evidence and not the transcript. Assimilating cases from other jurisdictions, the Kraus court established six requirements for allowing the use of a transcript as an aid for understanding an audio or videotape:
“(1) [T]he audiotaped conversation is difficult to understand; (2) tire transcript accurately reflects the conversation; (3) inaudible portions of the audiotaped conversation are recorded as ‘inaudible’ on the transcript; (4) the trial court instructs the jury that the audiotape is not evidence and that the evidence is the audio recording itself; (5) the jury is not allowed to take the transcript with them into the juiy room for deliberations; and (6) the transcript actually aids the jury in understanding the audiotaped conversation.” 271 Kan. at 814.
After applying these standards, the Kraus court upheld the jury’s use of the transcript while the tape was played in court. 271 Kan. at 815.
Here, the trial court went further and allowed the jury to use the transcript during deliberations. As a result, the trial court failed to follow the requirements set out by Kraus. We, therefore, must determine whether this error is harmless or whether it affirmatively prejudiced Overton’s substantial rights. See State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002).
When determining whether a trial error is harmless, the appellate court must scrutinize the issue in light of the whole record, not by isolating each error. State v. Abu-Fakher, 274 Kan. 584, 613, 56 P.3d 166 (2002). Overton has failed to demonstrate any prejudice resulting from the trial court’s decision to allow the juiy to use the transcript during deliberations. Accordingly, the trial court’s error is harmless.
Remark by Spectator
Overton argues that the juiy verdict is tainted by a spectator’s prejudicial comment overheard by the jurors. The trial judge heard a spectator in the hallway state: “He’ll get his judgment when the day comes,” or something to that effect, while some jurors were present. Overton requested an opportunity to question the jurors regarding the impact of the statement. The trial court denied Overton’s request.
Communication between jurors and third parties is broadly termed juror misconduct. Juror misconduct is not the basis for reversal, new trial, or mistrial unless it substantially prejudices a defendant’s rights. State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), rev’d on other grounds 260 Kan. 634, 923 P.2d 67 (1996); State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980). A trial court has discretion for determining whether to question jurors regarding such unauthorized comments. The party asserting prejudicial error bears the burden of establishing such error. Macomber, 244 Kan. at 407. Overton claims that he could not meet his burden of establishing jury prejudice because the trial court denied him the opportunity to question the jurors. This argument is similar to the Macomber court’s assessment of a similar claim.
In Macomber, the defendant was not allowed to question a juror who allegedly had a conversation with a witness. The Macomber court’s decision to affirm the trial court relied on the trial judge’s experience in observing the circumstances of the case and Macomber’s failure to take advantage of the opportunity to obtain jurors’ statements subsequent to his conviction to support his motion for a new trial. 244 Kan. at 408.
The same factors apply in this case. The trial judge personally heard the spectator’s remark and, as an experienced observer of the circumstances, was qualified to determine whether the remark would have prejudiced the jury. In addition, Overton should have included affidavits of jurors who overheard the spectator’s comment in his motion for a new trial and failed to do so.
Moreover, Overton fails to establish that any prejudice stemmed from the spectator’s comment. Overton was charged with rape and indecent liberties with both G.B. and T.R. The jury acquitted Overton of the charges related to T.R. This indicates that the jury’s verdict was based on the evidence rather than prejudice. Overton has failed to establish that his substantial rights have been prejudiced. Under the facts of this case, the trial court did not err in denying Overton’s request to question jurors about the spectator’s comment.
Questioning of Defendant’s Wife
Overton next asserts that the prosecutor committed misconduct by questioning Overton’s wife in violation of the marital privilege. An appellate court applies a two-step analysis to determine whether a defendant was denied a fair trial because of prosecutorial misconduct. First, the court must decide if the prosecutor’s questions were relevant and supported by a good faith basis for believing the asserted matter to be true. If not, the court must determine whether improper questions constituted plain error. To determine whether the prosecutor’s questions are plain error, an appellate court must evaluate whether the misconduct is so gross and flagrant as to deny the accused a fair trial, the prosecutor’s remarks show ill will, or the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would have had little, if any, weight in the minds of the jurors.
Overton complains of these questions by the prosecutor during the cross-examination of his wife:
“Q. After this case came about, did the defendant basically tell you — did he tell you that he had basically confessed to the — confessed on tape about having sex with [G.B.]?
“A. They tried to tell me that he confessed.
“Q. They asked you a question about on tape — No, let me withdraw that question. Didn’t — Did Detective Shackelford ask you did your husband tell you that he basically confessed to having sex with [G.B.]? Do you remember that question?
“A. Yes.
“Q. Wasn’t your next question, Was that on tape?
“A. Yes.
“Q. You had a pretty good idea that it might be?
“A. No.
“Q. Did you have information that he had been taped?
“A. No. My point was my children.
“Q. You need to wait for the question to be asked before you answer it. And then your next question after that was, Well, did he write it in handwriting?
“A. Yes.
“Q. Did you ask that? Mrs. Overton, have you heard the tapes of your husband having these conversations with [G.B.]?
“A. I haven’t heard the tapes. I’ve read the transcripts.”
Overton claims that the prosecutor improperly asked his wife if he had confessed to her about having sex with G.B., knowing that the answer would reveal a privileged communication. Overton argues that he was prejudiced by the prosecutor’s inference that Overton had confessed to his wife.
Overton’s argument misstates the context and content of the prosecutor’s questions and Mrs. Overton’s responses. Mrs. Over-ton’s responses do not reveal privileged communications between Overton and his wife. Mrs. Overton’s responses indicate that the police told her that her husband had confessed. The context of the prosecutor’s question is made clear by the second question, when the prosecutor specifically referred to questions Detective Shackelford asked Mrs. Overton regarding the taped conversation between Overton and G.B. The prosecutor asked Mrs. Overton about a conversation she had with Detective Shackelford, not her husband. The statement of the police officer is not subject to the marital privilege. Mrs. Overton’s answer to the police officer did not reveal a privileged communication between husband and wife.
In addition, the record indicates that Mrs. Overton’s response did not imply that Overton confessed to her. Although the prosecutor asked Overton’s wife if the defendant had confessed to her, Mrs. Overton responded that the police told her Overton had confessed to them. This is much different than stating that Overton had confessed to her.
Overton does not claim that the questions were irrelevant or without a good faith basis, and we conclude that the questions were not improper. Although the prosecutor’s questions are poorly worded, they do not invade the marital privilege. Accordingly, this claim is without merit.
Proper Sentencing Guidelines
For his final claim of error, Overton asserts that the sentencing court applied the wrong sentencing guidelines. On July 1, 1996, the Kansas Legislature increased the sentences for severity 1 and 2 offenses. K.S.A. 1996 Supp. 21-4704; L. 1996, ch. 258, sec. 10. However, on July 1, 1999, the Legislature reduced the sentences for some severity level 1 and 2 offenses. K.S.A. 1999 Supp. 21-4704; L. 1999, ch. 164, sec. 17.
The trial court sentenced Overton to a controlling term of 184 months for his rape conviction using the 1996 amendments. See K.S.A. 1996 Supp. 21-4704. Overton argues that because he was convicted after July 1999, he should be sentenced to a controlling term of 147 months under the sentencing guidelines enacted in July 1999.
The issue of whether a sentence is illegal is a question of law over which this court has de novo review. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). Resolution of this issue requires the interpretation of K.S.A. 1999 Supp. 21-4704. It is a basic rule of statutoiy construction that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997). Therefore, the fundamental rule for sentencing is that the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed. State v. Anthony, 273 Kan. 726, 730, 45 P.3d 852 (2002); State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997); State v. Roseborough, 263 Kan. 378, 382-83, 386, 951 P.2d 532 (1997); Ford, 262 Kan. at 208-09; State v. Riley, 259 Kan. 774, 776, 915 P.2d 774 (1996); State v. Fierro, 257 Kan. 639, 649, 895 P.2d 186 (1995); State v. Downey, 27 Kan. App. 2d 350, 365-66, 2 P.3d 191, rev. denied 269 Kan. 936 (2000). This court has previously determined that the amendments to the sentencing guidelines statutes are substantive and are not applied retroactively unless the statute’s language clearly indicates the legislature’s intent otherwise. Ford, 262 Kan. at 208.
To support his argument, Overton attempts to distinguish Anthony and Downey by noting that the defendants in those cases would have received a longer sentence if the court had not applied the guidelines in effect at the time the crime was committed, thereby avoiding an ex post facto violation. However, Overton fails to argue why the court should not interpret K.S.A. 1999 Supp. 21-4704 in accordance with established precedent and fundamental rules of statutory interpretation simply because the amendment benefits rather than burdens him.
In Reason and Ford, this court specifically addressed the retrospective application of amendments to the sentencing guidelines that would benefit criminal defendants. In both cases, the defendants claimed that they should be sentenced under the 1996 amendments to K.S.A. 21-4705 (drug grid) even though their crimes were committed before the effective date of the 1996 amendments. The amendment to K.S.A. 21-4705 changed the applicable box on the grid from presumptive prison to a border box, which would have given both Reason and Ford an opportunity to avoid prison sentences. Reason, 263 Kan. at 416; Ford, 262 Kan. at 207. The Reason court relied on Ford, which concluded that K.S.A. 21-4705 was substantive and the legislature did not specifically make the amendments retroactive. Reason, 263 Kan. at 416-17; Ford, 262 Kan. at 208. For her argument that the 1996 amendments applied to her, Ford relied on K.S.A. 1996 Supp. 21-4705(a), which provided that “ ‘[f]or the purpose of sentencing, the following sentencing guidelines grid for drug crimes shall be applied in felony cases under the uniform controlled substances act for crimes committed on or after July 1, 1993.’ ” Ford, 262 Kan. at 208. The Ford court interpreted K.S.A. 1996 Supp. 21-4705(a), stating:
“[T]hat language establishes which event in the series of events from perpetration through prosecution of a crime determines whether a defendant will be sentenced under the sentencing guidelines or pursuant to previous law. It establishes commission of the crime as the controlling event, and it establishes that crimes committed on or after July 1, 1993, will be punished according to the sentencing guidelines. Hence, if the legislature had changed the date in the language prefacing the drug grid to coincide with the effective date of the 1996 amendment, the resulting provision might have been construed to restrict application of the sentencing guidelines to crimes committed on or after July 1,1996. By not changing the date in K.S.A. 1996 Supp. 21-4705(a), the legislature maintained July 1, 1993, as the date on or after which a crime had to be committed in order for the sentencing guidelines to govern punishment.” 262 Kan. at 209.
The only distinction between 21-4704(a) and 21-4705(a) is whether the crime is a drug crime or a nondrug crime. Thus, the Ford court’s interpretation of K.S.A. 1996 Supp. 21-4705(a) applies to K.S.A. 1999 Supp. 21-4704(a) and directly contradicts Overton’s argument that the similar language in K.S.A. 1999 Supp. 21-4704(a) should be interpreted to require retroactive application of the 1999 amendment to him. Accordingly, Overton’s claim that he should be sentenced pursuant to the sentencing guidelines in effect at the time of his sentencing is without merit.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a postjudgment proceeding in a divorce action. Dana L. Leedy, n/k/a Dana Wassar, appealed from the trial court’s order recalculating Robert D. Leedy’s child support arrearage. Leedy cross-appealed the trial court’s award of attorney fees to Wassar in the contempt proceeding. The Court of Appeals, concluding that Leedy’s relief is limited to 1 year by K.S.A. 60-260(b), reversed and remanded on the issue of recalculation and affirmed the award of attorney fees. We granted Leedy’s petition for review.
There is no dispute about the facts.
Wassar and Leedy were married in 1990 and had three children' — Kayla, Kyle, and Koby, born in 1993, 1995, and 1997. Wassar and Leedy were divorced in 1999. Wassar was given primary residential custody of die children, and Leedy was ordered to pay a fixed amount of child support beginning January 1, 1999.
There were a number of posttrial hearings on child support. In February 2002, the trial court found diat Leedy owed $5,619 in unpaid child support and $874.05 in unpaid medical expenses and that Leedy was in contempt for failure to pay. The trial court ordered him to pay $857 in attorney fees to Wassar. The trial court denied Wassar’s request for an order restraining Leedy from seeking information about her expenses.
In October 2002, Leedy filed a motion requesting the trial court set aside the child support portion of the February 2002 order. Leedy contended that the order was not supported by a child support worksheet and there were significant errors in the arrearage calculation. He requested that the historical child support be recalculated due to mathematical errors and material misstatements. Leedy amended his motion to include a request that Wassar be required to prove actual child care expenses since January 1,1999.
At a November 2002 hearing on his motion, Leedy argued that Wassar had claimed significantly higher child care expenses than were actually expended, that in consequence the arrearage calculation was in error, and that the arrearage calculation could and should be revised pursuant to K.S.A. 60-260(b). Wassar admitted overstating child care expenses and the existence of errors and stated her lack of objection to the amounts for 2001 being set aside. The trial court sustained Leedy’s motion to set aside the February 2002 order and directed the parties to recalculate the child support amount back to January 1,2000, using actual child care and medical expenditures.
Wassar filed a motion to reconsider the November 2002 order. Leedy requested the trial court to set aside the February 2002 order for attorney fees.
In March 2003, the trial court denied Wassar’s motion and found that Leedy had overpaid his child support in the sum of $1,730.77 as a result of tire overstatement of day care costs. The trial court found that Wassar had overstated the costs beginning January 1, 2000, and had ceased to have any day care expenses after August 1, 2002. Finding that Wassar’s overstatements of monthly day care costs constituted a significant mathematical error in the previous arrearage calculation and that Wassar should have disclosed the error as a matter of equity, the trial court adjusted Leedy’s child support payments beginning February 1, 2003, to reflect the corrected figures. The trial court also corrected the amount owed by Leedy for the children’s medical expenses from $874.05 to $364.93 and denied Leedy’s request to set aside the order for attorney fees.
Wassar appealed the trial court’s order recalculating child support and arrearage. Leedy cross-appealed the trial court’s award of attorney fees to Wassar.
The Court of Appeals concluded that the trial court improperly recalculated Leedy’s child support for approximately 3 years. The Court of Appeals remanded for further proceedings and with directions to limit relief to 1 retroactive year, pursuant to K.S.A. 60-260(b). The Court of Appeals affirmed the trial court’s refusal to set aside the order for attorney fees.
Wassar first contended that the trial court retroactively modified the child support and that retroactive modification is prohibited by statute and case law. Leedy defended the trial court’s action as a statutorily permissible recalculation of child support necessitated principally by mathematical errors. The Court of Appeals, although declaring its decision “not satisfying,” agreed with Wassar that the trial court impermissibly modified the amount of child support for approximately 3 years retroactively. Slip op. at 9. The Court of Appeals remanded for further proceedings and with directions to limit relief to 1 retroactive year, pursuant to K.S.A. 60-260(b). Slip op. at 9.
A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. The trial court’s ruling will not be reversed in the absence of a showing of abuse of discretion. In re Marriage of Zodrow, 240 Kan, 65, Syl. ¶ 2, 727 P.2d 435 (1986); Logan v. Logan, 23 Kan. App. 2d 920, 930-31, 937 P.2d 967 (1997).
The trial court issued two orders that figure into this issue on appeal. First, on February 25, 2002, on Wassar’s motion of accusation in contempt, the trial court made the following pertinent findings and ordered Leedy to pay accordingly:
“1. That [Leedy] shall be found in contempt for failure to pay the full amount [of] child support as ordered by this Court and for failure to pay his portion of uninsured medical expenses of the minor children.
“2. That [Leedy] shall pay [Wassar’s] attorney fees in the amount of $875.00. The parties agree that attorney fees shall be included in child support arrearage and paid along with child support and medical reimbursement.
“3. That there is an existing arrearage of $7,350.05 which shall be paid at $200 per month until paid in full. That this amount includes unpaid child support of $5,619.00; unpaid medical expenses of $874.05; and attorney fees of $857.00.”
Second, on March 7, 2003, the trial court made the following findings and ordered the parties to act accordingly:
“2. . . . [B]ased upon the Child Support Worksheets prepared ... on behalf of [Leedy] and . . . [Wassar] . . . through January 8, 2003, [Leedy] has overpaid Iris child support in the sum of $1730.77 as a result of the overstatement in daycare costs.
“3. That [Leedy] overpaid his total child suppoit obligation as a result of substantial overstatements of the monthly daycare in previous orders of the Court, going back to Januaiy 1,2000, which the Court finds as a matter of equity, should have been disclosed by [Wassar], and which constitute a significant mathematical error in previous arrearage calculation.
“4. That the Court finds that [Wassar] stopped having any daycare expense August 1, 2002.
....
“6. That the Court finds that the correct [amount] in medical expenses as of February 25, 2002, was $364.93.
“7. That the Court denies [Leedy’s] request to set aside the order for attorney fees dated February 25, 2002, and further denies [Leedy’s] request for an award of attorney fees incurred in prosecuting his motion to modify the arrearage.”
Leedy contends that subsection (a) of 60-260, which permits corrections at any time, is the appropriate mechanism for correcting mathematical errors. K.S.A. 60-260(a) provides in part: “Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” This provision does not limit relief to 1 year.
Leedy’s rationale for tire application of subsection (a) is that Wassar’s incorrect child care costs were included in the child support worksheet, in the findings of the trial court, and the mathematical calculation of child support and thus produced an erroneous child support figure. K.S.A. 60-260(a), however, is limited to clerical mistakes by its plain language as well as by statutory history and case law. In other words, to instances where the order fails to accurately reflect the judgment actually rendered. In Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 125, 524 P.2d 669 (1975), the court observed that 60-260(a) codifies the nunc pro tunc procedure for modifying a judgment:
“The general rule in testing clerical errors versus judicial errors is set out in the recent case of Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 [(1974)]. A nunc pro tunc order may not be made to correct a judicial error involving the merits, or to enlarge the judgment as originally rendered, or to supply a judicial omission, or an affirmative action which should have been, but was not, taken by the court, or to show what the court should have decided, or intended to decide, as distinguished from what it actually did decide. The power of the court is limited to making the journal entry speak the truth by correcting clerical errors arising from oversight or omission and it does not extend beyond such function. [Citation omitted.]” 218 Kan. at 125.
The court went on to contrast the trial court’s action in the Wallace divorce case with that of the trial court in Mathey v. Mathey, 175 Kan. 446, 264 P.2d 1058 (1953), overruled in part on other grounds Garver v. Garver, 184 Kan. 145, 334 P.2d 408 (1959), describing the former as actually changing the original judgment and the latter as working no change, but, at most, merely supplying an omission. Both Wallace and Mathey involved the issue of categorization of property division and alimony awards, rather than child support payments.
The order in the present case that Leedy would have the court characterize as made pursuant to the authority of K.S.A. 60-260(a) actually constituted an affirmative action that changed the original order to reflect what the trial court should have decided, had it possessed correct information. The March 2003 order is not an order that merely clarified what the court actually had decided in February 2002. Because the March 2003 order is not an order made for the purpose of accurately reflecting the judgment actually rendered in the February 2002 order, the Court of Appeals correctly concluded that the trial court’s March 2003 order was not authorized by K.S.A. 60-260(a).
Leedy also contends that the trial court’s March 2003 order did not constitute a modification of the amount of child support, and, therefore, the rule stated in In re Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), that modification of the amount of child support may only operate prospectively does not apply. The February 2002 order was a ruling on Wassar’s accusation in contempt. The order established that Leedy was in contempt on account of his failure to make some previously ordered payments and calculated the amount of his arrearage, which consisted of unpaid child support, unpaid medical expenses, and Wassar’s attorney fees for prosecuting the accusation in contempt. The order included a paragraph that decreased child support to $1,217 per month, but that part of the order is not at issue. Nor was that provision of the February 2002 order even mentioned in the March 2003 order. The second order corrected the statement in the first order that Leedy had an arrearage of $5,619 to the statement that he had overpaid by $1,730.77 and attributed the mistake to Wassar’s overstatements of child care costs beginning Januaiy 1, 2000. The second order also corrected the amount of unpaid medical expenses as of the date of the first order from $874.05 to $364.93. There is no provision in the March 2003 order that stated a modification in the amount of child support.
On the other hand, the trial court’s correction of the arrearage necessarily was based on a modification of child support amounts because one of the figures used to calculate child support is the cost of work-related child care. When the actual child care expenses were used instead of the inflated ones reported by Wassar, the amount of child support owed by Leedy was decreased. It was only by decreasing the amount of Leedy’s child support that the trial court erased his arrearage.
Leedy also argues that the trial court’s March 2003 order did not constitute a modification of the amount of child support because it was merely the correction of mathematical errors. The premise of his argument is that, under the Kansas Child Support Guidelines, the calculation of child support is essentially a mathematical matter based on the figures supplied to the trial court. The problem in this case is that the figures supplied to the trial court by Wassar were inaccurate. Thus, there was no error in the mathematical computation of the supplied figures. The error in Leedy’s child support was a consequence of Wassar’s overstating child care costs, not miscalculation.
In addition, Leedy would have the court find significance in the trial court’s fading to attach a child support worksheet to the February 2002 order. Leedy cites Administrative Order No. 180, Kansas Child Support Guidelines § I, which provides that the net parental child support obligation is calculated by completing a child support worksheet and that Section E of the worksheet shall be included in the journal entry as the trial court’s written findings when the child support adjustments are used to modify the rebuttable presumption of a reasonable child support amount. (2004 Kan. Ct. R. Annot. 99.) He also cites In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶ 3, 809 P.2d 1251 (1991), which provides:
“The rebuttable presumption as to the child support to be ordered may be overcome, but any decision of the trial court which deviates from the amount dictated by the Kansas Child Support Guidelines must be supported by written findings in Section E of the worksheet or specific findings on the record, which shall be included in the journal entry, setting forth the reason for any deviation.”
The February 2002 order constituted a ruling on Wassar s accusation in contempt. The substance of the ruling was the finding that Leedy was in contempt for his failure to pay child support of $5,619 and medical expenses of $874.05 and the order that he pay at a fixed amount per month these amounts plus the attorney fees incurred by Wassar in prosecuting the accusation in contempt. As already noted, there was a provision for the decrease of Leedy’s monthly child support payment that is not at issue. That part of the trial court’s February 2002 ruling that is before this court does not include a calculation of Leedy’s child support obligation. The authorities he cites require attachment of the child support worksheet to the journal entry only for the calculation of child support and, in fact, only for certain calculations of child support.
Leedy argues that the Court of Appeals’ rejection of his argument that the February 2002 order should be set aside because it was filed without a worksheet attached conflicts with a decision of another panel of the Court of Appeals, In re Marriage of Mellott, 32 Kan. App. 2d 1031, 93 P.3d 1219 (2004). The cases are not comparable. In Mellott, the trial court recalculated the child support obligation of Paul Mellott, including a $100 per month downward adjustment based on Paul’s poor financial condition, as described by his attorney. In the Mellott circumstances, the district court was required to use Section E of the worksheet to make written findings to support the adjustment. In contrast to Mellott, the present case does not involve an adjustment or deviation from the Child Support Guidelines, which require the supporting findings supplied by the child support worksheet.
Section V.(A.), provides in part: “A parent shall notify the other parent of any change of financial circumstances including, but not necessarily limited to, income, work-related child care costs, and health insurance premiums which if changed could constitute a material change of circumstances.” (2004 Kan. Ct. R. Annot. 118.) Leedy contends that by including this provision in its Administrative Order demonstrates that the Supreme Court intended that the disclosure requirement be enforced, and, in order to enforce the requirement, there must be a remedy for nondisclosure. Leedy urges the court to consider K.S.A. 60-260(b)(6) as that remedy.
K.S.A. 60-260(b) provides in part:
“On motion and upon such terms as are just, the court may reheve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud. . . , misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. . . . This section does not limit the power of a court to entertain an independent action to reheve a party from a judgment, order, or proceeding, . . . or to set aside a judgment for fraud upon the court.”
In the Court of Appeals, in arguing that the trial court erred in granting relief to Leedy, Wassar relied entirely on K.S.A. 2004 Supp. 60-1610(a)(1) and case law applying it. The statute provides in part: “The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.” Accordingly, the Supreme Court has stated that modification of the amount of child support may only operate prospectively, In re Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, due to child support payments becoming final judgments on the dates they become due and unpaid, Gardner v. Gardner, 22 Kan. App. 2d 314, 315, 916 P.2d 43, rev. denied 260 Kan. 992 (1996). Wassar’s reliance, however, fails to take into account that the purpose of K.S.A. 60-260 is to provide relief from judgments or orders.
In the Court of Appeals, Leedy cited In re Marriage of Thomas, 16 Kan. App. 2d 518, 825 P.2d 1163 (1992), in support of his position that K.S.A. 60-260(b)(6) provided relief. In Thomas, the trial court divided the assets of Barbara and Alonzo Thomas, awarding the principal residence subject to all encumbrances to her and other properties to him. Two months later, after learning that there was a substantial second mortgage on the residence, Barbara sought modification under K.S.A. 60-260(b) on the grounds of newly discovered evidence, fraud, misrepresentation, and/or misconduct of Alonzo. The trial court concluded that, had it been aware of the second mortgage at tire time it divided the assets, it would have ruled differently and, accordingly, modified the decree so that Barbara received the residence subject only to the first mortgage.
On Alonzo’s appeal of the modified decree, the Court of Appeals affirmed. But the Court of Appeals concluded that the trial court should not have granted relief on the basis of newly discovered evidence, K.S.A. 60~260(b)(2). 16 Kan. App. 2d at 523-24. The Court of Appeals instead characterized the need for the modification as a misunderstanding of the factual situation. 16 Kan. App. 2d at 526. Thus, the Court of Appeals concluded “that the modified decision by the trial court is the correct decision and that the trial court had the authority to grant the relief under K.S.A. 60-260(b)(6).” 16 Kan. App. 2d at 525. The Court of Appeals continued: “To hold otherwise would be to perpetuate the existence of an inequitable division of property, which was based on a misunderstanding of the true facts.” 16 Kan. App. 2d at 526.
In the present case, the Court of Appeals distinguished Thomas on the following ground:
“The difference between Thomas and this case is that here, the trial court corrected the misunderstanding of the factual situation by modifying the child support order. Considering the nature of the child support order which becomes final on every due date and the modification can only be prospective, it is questionable the Thomas ruling would apply to the facts in this case.” Slip op. at 8-9.
In tírese words, the Court of Appeals seems to be drawing a distinction between an order dividing property and a child support order on the ground that child support payments become final judgments on the dates they become due and unpaid. Gardner, 22 Kan. App. 2d at 315. But consideration of the Court of Appeals’ conclusion on this issue, which allows for relief for a limited period, suggests that the distinction actually was based on the length of time elapsed between the judgment(s) and the request for relief. The Court of Appeals stated:
“It seems none of the provisions in K.S.A. 60-260(b)(1) through (6) provided a vehicle for the trial court to modify the child support order as much as it did.
“The result of this decision is not satisfying. It appears that the child care expenses were substantially overstated. This led to child support orders larger than they should have been. However, we believe we are bound by the rule set out in In re Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), that actual modification of the amount of child support can only be prospective. Giving tírese matters some finality is a legitimate aim. We must remand this matter to the trial court for further proceedings consistent with this opinion and the time limitations under K.S.A. 60-260(b) which apparently limits relief to a maximum of 1 year.” Slip op. at 9.
The above distinction, as stated by the Court of Appeals, is conflicting and confusing. First, the express purpose of K.S.A. 60-260 is to provide relief from judgments. Although recognizing the applications and limitations of K.S.A. 60-1610 as interpreted in Brady v. Brady, 225 Kan. 485, Syl. ¶ 2, 592 P.2d 865 (1979), the Court of Appeals in In Re Marriage of Hunt, 10 Kan. App. 2d 254, 697 P.2d 80 (1985), granted relief from an original maintenance judgment. Mr. Hunt failed to notify the court that he had been reemployed full-time after the final hearing but before the decree was entered. The trial court granted Mrs. Hunt’s motion for relief pursuant to K.S.A. 60-260(b) and the Court of Appeals affirmed, holding:
“Proceedings to modify a divorce decree based on matters occurring after the decree are to be brought under K.S.A. 60-1610 and are subject to its limitations. However, where relief is sought because of facts existing at the time of the decree which, if known to the court, would have brought about a different result, relief is available under K.S.A. 60-260(b).” 10 Kan. App. 2d at 259.
We see no reason why this distinction should not be applied to a child support judgment as well as a maintenance judgment.
Second, not all the subsections of 60-260(b) are subject to a 1-year limitation. By the express terms of 60-260, all the subsections are subject to a reasonable time requirement, but only subsections (b)(1), (2), and (3) are subject to a 1-year limitation. See In re Marriage of Larson, 257 Kan. 456, Syl. ¶ 2, 894 P.2d 809 (1995) (disapproving language in Thomas to the effect that the reasonable time requirement did not apply to K.S.A. 60-260[b][1], [2], and [3]).
Leedy argued in the Court of Appeals that the catch-all subsection, 60-260(b)(6), authorized the trial court’s correction of his child support obligation from an arrearage to an overpayment. The Court of Appeals also noted that Leedy had not argued for relief under 60-260(b)(1), (2), or (3). Slip op. at 7. What is not actually stated in the Court of Appeals’ opinion but seems to be presumed is that relief is available to Leedy only under subsections (1), (2), or (3).
In the present case, with the issue arising out of Wassar’s overstatements of child care costs, one’s first impression might be that subsection (b)(3), relief for fraud or misrepresentation ought to apply. The record, however, contains little information about Wassar’s overstatements of child care. The extent of information from the record is that Wassar’s attorney stated during the November 2002 hearing that “we don’t object to the 2001 being set aside, we admit there were some errors there. . . . The 2000 order, Mr. Leedy was represented by Mr. Harris at the time, she was represented by Ms. Gilman. They based it on what the actuals were at that time and what the projected was.” In other words, no intention to misrepresent the child care costs can be inferred from Wassar’s attorney’s statement. In addition, Leedy does not allege or argue that Wassar committed fraud or misrepresentation in overstating the child care costs.
Subsection (b)(3) also applies to “other misconduct of an adverse party.” We also know from the record that the trial court found Wassar should have disclosed the erroneous child care costs as a matter of equity. Clearly, Wassar should have disclosed that the child care costs she reported were erroneous as a matter of equity and in satisfaction of Administrative Order No. 180’s requirement that she notify Leedy of any change in work-related child care costs. Wassar’s failure to disclose the error resulted in a judgment against Leedy for an arrearage of thousands of dollars, which he in fact did not owe. We conclude that, in these circumstances, her failure to disclose the error constitutes misconduct that would support relief from judgment under 60-260(b)(3). An order setting aside a judgment could be upheld under K.S.A. 60-260(b)(3) even though neither the moving party nor the trial court specified that section. In re Estate of Hessenflow, 21 Kan. App. 2d 761, 909 P.2d 662 (1995), rev. denied 259 Kan. 928 (1996).
Having concluded that Wassar’s failure to disclose the error constituted misconduct of an adverse party within the meaning of K.S.A. 60-260(b)(3), then the catch-all provision, subsection (6), is not available to Leedy. In State ex rel. Secretary of SRS v. Keck, 266 Kan. 305, Syl. ¶ 1, 969 P.2d 841 (1998), the court stated:
“The general rule applied by both state and federal courts is that die first five grounds of K.S.A. 60-260(b), that are specific, and the sixth, that is the general catch-all, are mutually exclusive. A party cannot circumvent the 1-year limitation applicable to tire first three grounds of K.S.A. 60-260(b) by invoicing the residual clause (subsection [6]). K.S.A. 60-260(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of K.S.A. 60-260(b).”
Having concluded that Leedy’s relief is available under (b)(3), the question whether Leedy’s request for relief was made within a reasonable time must be addressed. See In re Marriage of Larson, 257 Kan. 456, Syl. ¶ 2. In this case, whether Leedy’s request for relief was made within a reasonable time does not seem to have been considered by the trial court with application of K.S.A. 60-260(b) in mind. At a hearing in February 2003 where the trial court entertained counsel’s arguments on granting Leedy relief from the Februaiy 2002 order, Wassar asserted that Leedy had enjoyed the benefit of unreported income from a second job and his support obligation not having been increased despite one of his children advancing an age bracket. Wassar’s main argument was that, if child care costs are reexamined, all the factors that go into the calculation of child support ought to be reexamined. Wassar also argued that the financial advantage Leedy enjoyed motivated him to delay questioning her child care costs. There was no evidence offered on the length of or reasons for delay. The trial court seems to have treated Wassar’s assertion and arguments as an oral motion and denied it. Implied in the trial judge’s ruling is a determination that Leedy’s request for relief was timely enough to forestall reexamination of amounts other than child care costs. There was no men tion, however, of the reasonableness of the timing of his request, nor were the requirements of K.S.A. 60-260(b) cited.
In Wilson v. Wilson, 16 Kan. App. 2d 651, Syl. ¶ 6, 827 P.2d 788 (1992), rev. denied 250 Kan. 808 (1992), the Court of Appeals stated the following standard for reasonableness: “What constitutes a ‘reasonable time’ for seeking relief from a judgment depends on the facts of each case; relevant considerations include whether parties have been prejudiced by the delay and whether good cause has been shown for failing to take action sooner.” Measured by the standard stated in Wilson, it appears that prejudice from delay is not an issue here where Wassar had the benefit of Leedy’s overpayment. Whether good cause has been shown for Leedy’s failing to take action sooner is not as clear. The first indication in the record on appeal that Leedy questioned child care costs reported by Wassar or attempted to verify them is in the February 2002 order. As part of that order, the trial court denied Wassar’s request for an order restraining Leedy from seeking information about her expenses. Thus, it is reasonable to infer that sometime before February 2002 Leedy began questioning Wassar’s reported expense figures and that he made efforts to verify them. If there were circumstances that ought to have led Leedy to mistrust Wassar’s reported figures at an earlier date, they are not apparent from the record. In October 2002 Leedy filed a motion seeking to require Wassar to prove actual child care expenses since January 1, 1999. There is no suggestion in the record why Leedy waited until October 2002 to request proof of child care costs after Wassar’s request for a restraining order was denied by the trial court in February 2002. At the November 2002 hearing on his motion, Leedy argued that Wassar had significantly overstated her child care expenses, that in consequence the arrearage calculation was erroneous, and that the arrearage calculation could and should be revised pursuant to K.S.A. 60-260(b). Based on the record we conclude that Leedy’s request for relief was made within a reasonable time.
We next consider whether the trial court abused its discretion in refusing to set aside the award of attorney fees.
In February 2002, the trial court ordered Leedy to pay $857 in attorney fees to Wassar. On cross-appeal Leedy argued that the trial court abused its discretion in later refusing to set aside the February 2002 award of attorney fees to Wassar. Wassar did not brief the issue.
The assessment of attorney fees lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. Fletcher v. Anderson, 29 Kan. App. 2d 784, 786, 31 P.3d 313 (2001).
On this issue, the Court of Appeals stated the following:
“[Leedy] did not appeal the award of attorney fees within the prescribed time after the decision was entered. When he filed a motion to set aside the order filed February 25, 2002, he alleged the order should be set aside because the child support calculation was not supported by the worksheet and there were significant errors in the arrearage calculation. However, he did not allege the award of attorney fees should be set aside.
“At the hearing, [Wassar] argued that in the February 25, 2002 order, the trial court did not state the attorney fees were awarded because of the contempt— they could have been awarded because of her financial situation or other reasons. The court agreed and refused to set aside the award of attorney fees.
....
“[Leedy’s] sole argument is that the trial court would never have made the attorney fees award if it had been aware of the mathematical errors in the child support obligations. This is not supported by anything in the record.” Slip op. at 10-11.
Leedy merely asserts that the Court of Appeals erred in upholding the trial court’s refusal to set aside the award of attorney fees. He offers no reasons why the Court of Appeals’ rationale is unsound. We find no abuse of discretion.
Judgment of the Court of Appeals affirming in part, reversing in part, and remanding to the district court is affirmed. Judgment of the district court is affirmed in part, reversed in part, and remanded.
Nuss and Gernon, JJ., not participating.
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The opinion of the court was delivered by
Abbott, J.:
The Chicago Title Insurance Company (Chicago Title) requests this court to reverse a Court of Appeals decision requiring Chicago Title to defend a case pending in the trial court arising out of a title to real estate that was not marketable. See Steinle v. Knowles, 24 Kan. App. 2d 568, 948 P.2d 670 (1997).
Ervyl L. and B. Nathalie Steinle owned real estate they contracted to sell to Donald L. and Guyla M. Glaesman. As part of the sale price, the Steinles received a mortgage for $35,000 from the Glaesmans. The Steinles purchased a loan policy from Chicago Title in the amount of $35,000. A title insurance policy was also purchased, insuring the Glaesmans’ title. The title policy is not involved in this appeal. When the Steinles conveyed the land to the Glaesmans, they did not use the description that was on the instrument conveying title to them. Instead, they used a legal description obtained from a survey they had performed after they acquired the property. The survey used included land the Steinles could not legally convey. The Glaesmans brought an action against the Steinles alleging false representation, negligent misrepresentation, and breach of warranty of title.
This case involved additional defendants and other issues when it came before the Court of Appeals. The parties involved in this petition for review, however, are only Chicago Title and B. Nathalie Steinle. (The Steinles are now divorced.) The sole issue upon which Chicago Title petitions this court to review is the Court of Appeals’ ruling that required Chicago Title to provide a defense for Steinle under her title insurance loan policy, in the action brought by the Glaesmans against Steinle for breach of her warranty of title as a seller of the real property, when the Glaesman litigation did not challenge the validity of her mortgage.
In the trial court, Steinle brought suit against Richard G. Knowles, d/b/a F.S. Allen Abstract and Title Company, Chicago Title Insurance Company, and F.S. Allen Abstract and Title Company, Inc. (Allen Abstract). In its explanation of the facts, the Court of Appeals noted that Steinle alleged, in relation to the title insurance policy issued by Chicago Title, breach of contractual duty to defend, negligent misrepresentation, and breach of warranty. Also, “[i]n another suit, which was consolidated with Steinle’s claim, Chicago Title sued Steinle and her husband, Ervyl Steinle, under a subrogation clause in the title insurance policy to recover monies it expended to satisfy a claim by a third party under the title insurance policy.” 24 Kan. App. 2d at 568-69.
The trial court granted Chicago Title, Richard G. Knowles, and Allen Abstract’s motions for summary judgment and denied Steinle’s motion for summary judgment. In granting summary judgment for Chicago Title, tire trial court held that the title insurance contract did not require Chicago Title to provide Steinle a defense. The trial court also granted Chicago Title’s subrogation claim against Steinle and ordered her to pay $7,423.78 in damages. The trial court reasoned that “[t]he loan title policy issued to [Steinle] provides no coverage for her defense of an action brought against her as seller of property. She was an insured only as to the mortgage title policy.”
The Court of Appeals recognized the following stipulated facts and exhibits:
“In 1972, the subject property was deeded to Steinle from the previous owners with the following legal description: The west 33 acres (more or less) of the N V2 of the NE Vi of Section 9, TWP 27, Range 3 East, located in Butler County, Kansas.
“In 1986, Steinle entered into a contract to sell the property to Don and Guyla Glaesman. The contract utilized a legal description different from the description in the original deed to Steinle. The new legal description was obtained from a survey Steinle had performed some years earlier. The new legal description included property to which Steinle did not have title, including a 2-rod strip on the east side of the property and parcels on the north side which belonged to the Kansas Turnpike Authority (KTA).
“The purchase contract with the Glaesmans provided for a portion of the purchase price to be paid through a promissory note to Steinle in the amount of $35,000, to be secured by a mortgage held by Steinle.
“Steinle and the Glaesmans ordered title insurance from Chicago Tide. Chicago Title issued a tide insurance commitment through Knowles, an authorized agent. Steinle does not remember whether she reviewed the tide commitment before closing.
“The Glaesmans and Steinle closed on the contract in March 1986. Allen Abstract handled the closing. A warranty deed from Steinle to the Glaesmans and a mortgage from the Glaesmans to Steinle were issued, both using the new legal description. Steinle signed the warranty deed to the buyers. The deed purported to convey property to which Steinle did not have good and complete tide. Chicago Title issued tide insurance policies to the Glaesmans’ tide and to Steinle.
“Steinle paid a portion of the Glaesmans’ tide insurance premium and a closing fee to Allen Abstract. No other monies were paid to the Glaesmans by Steinle.
“Later in 1986, a dispute arose concerning the ownership of the east 2 rods of the property. A quiet tide action was begun, and Steinle was added as a party to that action. To resolve this action, Steinle expended funds for legal counsel and in the final settlement. The quiet tide action was settled.
“In March 1993, the Glaesmans brought an action against all the parties in this case, among others. They alleged that Steinle misrepresented various features of the property, including the ownership of the property held by the KTA and included within the legal description conveyed. At the time of the pretrial conference, the claim also alleged a breach of warranty tide.
“Steinle requested that Chicago Tide provide a defense in the litigation. The request was refused, and Steinle provided for her own defense. At no time during the litigation was the validity of Steinle’s mortgage on the property challenged. As a result of the alleged tide defect, the value of the subject property was never reduced below the balance of the promissory note held by Steinle from the Glaesmans.
“During the Glaesman litigation, Steinle filed claims against Chicago Tide. The parties to the present action stipulated to an order reserving claims.
“In 1994, Chicago Tide purchased the KTA property for the Glaesmans, thus curing the title. Steinle reduced the mortgage by $2,000 as a contribution to the settlement of the Glaesman litigation.
“Steinle first filed her claim of negligence against Knowles and Allen Abstract on June 7,1993, in her amended answer and cross-claim in the Glaesman litiga tion. The title commitment and the title insurance policies issued by Chicago Title did not exclude from coverage the interest held by the KTA. The interest held by the KTA was of public record.” 24 Kan. App. 2d at 569-70.
The Court of Appeals reasoned there was a possibility that the Glaesman litigation fell within the policy’s coverage. The Court of Appeals also ruled that although die intent of the Chicago Title policy may have been to restrict coverage only to the extent necessary to protect the value of the mortgage, its policy did not clearly restrict the coverage to this extent:
“Insureds are not required to engage in linguistic gymnastics to ascertain the intent of the insurer. Titling the contract a loan policy does not abrogate the clear language of the policy. The language of a policy purporting to restrict coverage must do so clearly. Chicago Title at least guaranteed clear title up to $35,000. Under the language of this policy, it is liable for damages up to that amount and to provide a defense.” 24 Kan. App. 2d at 574.
In its petition for review, Chicago Title states that the loan policy was a standard form used nationwide and, consequently, the potential impact of the decision in this case is extensive. Counsel and this court could not find a similar case to the one presented in the case at hand that has been litigated in any other jurisdiction. On April 30, 1998, the attorneys for American Land Title Association filed an amicus brief in support of Chicago Title’s position in this case.
This case involves the interpretation of the contract between Steinle and Chicago Title.
“As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact for determination by the jury. Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, Syl. ¶ 1, 754 P.2d 803 (1988).
“Insurance policies are to be enforced as written so long as the terms do not conflict with pertinent statutes or public policy. Where terms are ambiguous, the policy shall be construed to mean what a reasonable person in the position of the insured would have understood them to mean. A policy is not ambiguous, however, unless there is genuine uncertainty as to which of two or more possible meanings is proper. House v. American Fam. Mut. Ins. Co., 251 Kan. 419, Syl. ¶ 3,837 P.2d 391 (1992).” Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993).
Steinle and Chicago Trust entered into an insurance contract titled “American Land Title Association Loan Policy.” This policy states:
“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, CHICAGO TITLE INSURANCE COMPANY, . . . insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys’ fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:
1. Title to the estate of interest described in Schedule A being vested otherwise than as stated therein;
2. Any defect in or lien or encumbrance on such title;
3. Lack of a right of access to and from the land;
4. Unmarketability of such tide;
5. The invalidity or unenforceability of the lien of the insured mortgage upon said estate or interest except to the extent that such invalidity or unenforceability, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon
(a) usury, or
(b) any consumer credit protection or truth in lending law;
6. The priority of any lien or encumbrance over the lien of the insured mortgage;
7. Any statutory hen . . . ; or
8. The invalidity or unenforceability of any assignment ... of the insured mortgage or the failure of said assignment to vest title to the insured mortgage in the named insured assignee free and clear of all hens.”
In the “Conditions and Stipulations” section of the title policy, a section entitled “Defense and Prosecution of Actions” provides:
“The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of action or proceedings commenced against such insured, or defenses, restraining orders or injunctions interposed against a foreclosure of the insured mortgage or a defense interposed against an insured in an action to enforce a contract for sale of the indebtedness secured by the insured mortgage, or a sale of the estate or interest in said land, to the extent that such litigation is founded upon an alleged defect, hen, encumbrance, or other matter insured against by this policy.”
The question presented is whether the title insurance policy limits Chicago Title’s duty to defend Steinle to only those litigations asserting the invalidity of Steinle’s mortgage. This issue requires the interpretation of Chicago Title’s policy and a determination as to whether or not the contract provided a potential for liability. If a potential for liability existed, Chicago Title had a duty to defend. The trial court, however, found no potential for liability existed under the policy and reasoned that “[t]he loan title policy issued to [Steinle] provides no coverage for her defense of an action brought against her as seller of property. She was insured only as to the mortgage title policy.” The trial court also made the following ruling on the summary judgment motions:
“Ms. Steinle received the mortgage title policy in her role as mortgage lender, not in her role as seller. And that’s the context that that broad, admittedly broad, insurance coverage provision has to be interpreted, and I don’t think she’s entitled to stretch the coverage even for the purpose of the duty to defend, stretch the purpose of the mortgage title insurance contract to cover defense of her need for a defense as seller in the transaction. She was an insured, but only as to the mortgage title insurance policy.”
Several legal standards should be kept in mind when analyzing the insurance contract. “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 2, 856 P.2d 111 (1993). “Where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of its terms.” Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, Syl. ¶ 8, 876 P.2d 1362 (1994). “Whether an ambiguity exists in a written instrument is a question of law to be decided by the court. [Citation omitted.]” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). To be ambiguous, “a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language.” Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992).
Further, the language of the contract must be construed against Chicago Title because it prepared the contract and its language. See Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 80, 483 P.2d 1072 (1971). The Gowing court also stated:
“Typical of the adhesion contract, and one of its most prominent examples, is the insurance contract or policy, which possesses the distinctive characteristic of unequal bargaining strength or bargaining status between seller and purchaser, or the insurer and the insured. [Citation omitted.]
“The terms of today’s standard insurance policy are predetermined by the insurance carrier itself and, long in advance of the individual insurance sale, those terms have been incorporated into the insurance package presented to the prospective buyer. . . . The buyer’s freedom of choice in selecting a policy is severely limited; if he desires casualty insurance he must normally accept the printed policy with the usual printed provisions — else he can leave it.” 207 Kan. at 80.
In the Glaesman litigation, the Steinles were alleged, as sellers, to have made false representations about the location and nature of a road on the property and that the property could be developed. The Glaesmans also alleged negligent misrepresentation and breach of warranty of title against the Steinles. Chicago Title recognizes its duty to defend when a potential of liability exists under the policy. It asserts, however, that the Glaesman litigation alleges acts that are clearly not covered by the policy; thus, there is no potential of liability and, consequently, no duty to defend. See Spivey, 254 Kan. 237, Syl. ¶ 4.
Chicago Title argues that the policy’s language plainly manifests coverage for Steinle as a mortgagee, not as a seller, and if Steinle had not been the holder of the mortgage, there would have been no mortgage policy. The Glaesmans clearly held title to less than what they had bargained for and although Steinle’s alleged acts ultimately affected her mortgage title, the Glaesman litigation involved Steinle’s acts as a seller. If the Glaesmans had obtained conventional financing and a mortgage through a bank, the question of coverage under mortgage title insurance would never have become an issue.
Chicago Title additionally contends that paragraph 5 of its policy highlights the paradoxical ruling of the Court of Appeals. Paragraph 5 allows Chicago Title to purchase the indebtedness instead of defending an action. If Chicago Title had purchased the indebtedness in this case, by buying the $35,000 mortgage, it would have paid for and been assigned the mortgage, without ending or affecting the Glaesmans’ civil action against Steinle, which was unrelated to the mortgage. Furthermore, Steinle did not have an owner s tide policy covering her tide to the land and she is attempting to use her loan policy as an owner’s policy. This is neither the intent nor the effect of the loan policy that Chicago Title had with Steinle.
The trial judge noted the importance of Steinle’s position as a seller and commented that
“she’s got two hats on. And she was sued in that suit, as the seller in the transaction, not as the mortgagor, and although, ultimately, if that had gone full course and they would have been successful, there would have been an [effect] upon her mortgage interest, but that didn’t present itself as a legal challenge to the — didn’t present itself as a loss to her as a mortgagee.”
Therefore, he determined:
“The loss that she was going to suffer was because she had been a seller. If we would have been talking about Bank IV as the mortgagee, an independent party, Bank IV would have gotten nervous about that lawsuit, because, in a business sense, it would affect the collectability of the mortgage. But I don’t think that the title insurance company would have had a duty to step in and defend. She wouldn’t have been named, if it would have been a third independent party there, wouldn’t have been named in that suit.”
Botii parties cite to Spivey, 254 Kan. 237, in support of their positions. In Spivey, the appellant-insured filed his action against Safeco Insurance Company (Safeco) and American Manufacturers Mutual Insurance Company (AMMIC), alleging that they had breached their contract to defend him in a civil tort action. Spivey was a superintendent of a department for General Motors Corporation. A female employee in Spivey’s department filed suit against him, alleging that he had made sexual demands and committed intentional torts of assault, battery, and infliction of emotional distress and that he had intentionally inflicted bodily harm upon her. Spivey requested that his insurance carriers defend him, but they refused. After successfully defending the suit without their assistance, Spivey filed an action against Safeco and AMMIC, alleging breach of contract for failure to defend him in a federal action. 254 Kan. at 238-39.
The trial court granted summary judgment in favor of die insurance companies. This court affirmed, holding that the insurance contract was not ambiguous and that the exclusionary clause of the contract applied to Spivey s situation. The exclusionary clause excluded from coverage an insured’s intentional acts. The Spivey court held that the insurance companies had no duty to defend because Spivey was not sued for having sex with the employee, but for intentionally injuring her by threats with a knife and gun, by shooting a gun at her, and by forcing sexual acts upon her. The term “accident” in Spivey’s policy did not cover this situation because the alleged acts were intentional.
Thus, the Spivey court ultimately held:
“Under the present code of civil procedure, an insurer must look beyond the effect of the pleadings and must consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend. If those facts give rise to a ‘potential of liability,’ even if remote, under the policy, the insurer bears a duty to defend. MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 (1993). The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information the insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. [Citation omitted].” 254 Kan. at 245-46.
Spivey holds that “[t]he duty to defend and whether a liability insurance policy provides coverage are not necessarily coextensive. The duty to defend arises whenever there is a potential for liability’ under the policy. Where a petition alleges an act that is clearly not covered, there would be no potential of liability under the policy.” 254 Kan. 237, Syl. ¶ 4. Thus, Chicago Title avers that Steinle’s acts that created the Glaesman litigation were clearly not covered under its policy and, consequently, no potential for liability existed.
The Court of Appeals found that the language of the policy ¿s “it applies to this factual situation is difficult to grasp.” 24 Kan. App. 2d at 574. Therefore, Chicago Title’s policy did not limit its coverage to exclude litigation arising from Steinle’s position as a seller. Chicago Title asserts that “[c]ertainly it is difficult to apply a policy which, by its terms, protects a lender from losses to its mortgage caused by defects in its mortgagor’s title, to an action by the buyer against the seller.” Chicago Title further claims the Court of Appeals made an incorrect ruling because it held that the cov erage was not clearly excluded in a case where there was no coverage under the policy in the first instance.
The two title policies at issue in this case are not unusual. The buyers (the Glaesmans) owned a policy which protected them from the conveyance of a defective title by the seller (Steinle). The Glaesmans had an owner’s policy. This owner’s policy provided the coverage through which Chicago Title cured the title. Steinle was also the lender/mortgagee for the Glaesmans, and the coverage Steinle obtained from her policy with Chicago Title protected her mortgage from a loss caused by defective title in the mortgagor. That policy is clearly described as a “loan policy” and covers defects to the buyers’ title which compromises the mortgage held by Steinle and her former husband. Steinle was sued because of a defect in the fee title that she conveyed to the buyers. The loan policy protects her from a loss to her mortgage caused by a defect in the buyers’ (the borrowers’) title which affects her mortgage.
Steinle’s policy does not provide title insurance coverage for her, in her role as a seller. Therefore, Chicago Title had no potential for liability and did not owe a duty to defend.
The loan policy provides coverage for Steinle only in her capacity as a lender and not as a seller. Given that the Glaesmans sued her in her capacity as a seller, Chicago Title did not have a duty to defend her in the Glaesman litigation.
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The opinion of the court was delivered by
Lockett, J.:
The City of Topeka (City) and the Watertower Place Development Group (Watertower) entered into a contract giving Watertower exclusive rights to develop an area in the City. The City filed a declaratory action, claiming Watertower had breached the contract and, therefore, the City was no longer bound by the contract. Watertower filed a counterclaim for specific performance and monetary damages. The district court entered sum mary judgment for the City, finding the contract to be unambiguous and that the City had properly terminated the contract due to Watertower’s breach. Watertower appealed, claiming (1) an alleged breach of contract is an issue of fact to be determined by a jury; (2) the district court’s determination that the City had properly terminated the contract was not supported by substantial competent evidence; (3) the district court incorrectly based its grant of summary judgment upon the testimony of an expert; (4) the district court had previously ruled the City had committed an anticipatory breach of the contract; and (5) the district court failed to address all of Watertower’s arguments.
BACKGROUND
In an attempt to stimulate growth in blighted business districts within cities, the Kansas Legislature passed the Redevelopment of Central Business District Areas Act, K.S.A. 12-1770 et secj. Under the Act, the legislature authorized cities to acquire property and issue special obligation bonds. K.S.A. 12-1770. Pursuant to the Act, the Topeka City Council established the Watertower redevelopment district. As a result, the City was authorized to acquire the property and issue special obligation bonds to pay for the acquisition. The bonds were to be financed by an increase in ad valorem taxes that the City anticipated would result from the redevelopment. K.S.A. 12-1771(h).
The parties decided to take advantage of the Act. On January 16,1990, the City entered into a contract granting Watertower the exclusive rights for 15 years to develop the Watertower redevelopment district in Topeka. Although the contract comprises 34 pages, the parties’ disagreements arise from “Section 11. Commitment to be provided by the Developer,” which provides in part:
“Within one hundred eighty (180) days of the City’s adoption of any Redevelopment Project Plan . . ., the Developer . . . shall provide to the City either: (i) the commitment of a purchaser of Tax Increment Financing Special Obligation Bonds (the ‘Bonds’) to be authorized and issued by the City for the Project’s financing in accordance with the authority granted the City under the Act . . . .”
Under Section 11, the monies generated by the bonds were to be used to acquire the property in the development area and to prepare the area for construction of the development.
Section 11 also provided the methodology for Watertower’s compliance with the commitment of a bond purchaser, providing:
“The Commitment shall not be deemed sufficient until approved and accepted in writing by the City, which approval shall not be unreasonably withheld, provided however, if the Commitment is not approved by the City within 21 days after receipt thereof by the City, the City shall specify with particularity the portion of the Commitment and with particularity the reason why such portion does not meet with its approval. The Developer shall have one additional ninety (90) day period thereafter to provide a Commitment acceptable to the City. In the event Developer fails to obtain the Commitment for a particular Project for which a Redevelopment Project Plan has been approved, Developer shall have no liability whatsoever as a result thereof relative to that particular Project, however, in such case the City may, subject to the provisions of Section 6 herein, (i) terminate this Agreement thereby extinguishing the Developers exclusive right to develop the Projects contemplated by the Plan; or (ii) terminate the Redevelopment Preyed Plan for that particular Preyed under consideration and obtain a different developer for that Preyed; or (in) act as is otherwise agreed to in writing by the City and the Developer.” (Emphasis added.)
The parties dispute whether Watertower or the City failed to comply with Section 11.
As noted above, Section 11 required Watertower to provide a purchaser of bonds by a specific date. Toward that end, Water-tower provided a letter authored by B.C. Christopher, which promised to “pursue, on a best efforts basis, the financing for the required land acquisition, relocation, improvement, and demolition costs through the sale of tax increment bonds.” B.C. Christopher’s commitment to use best efforts to market the bonds was subject to nine conditions. It is undisputed that Watertower intended the B.C. Christopher letter to satisfy the requirements under Section 11. It is also undisputed that the City did not accept the letter as fulfilling the commitment and considered Watertower to have breached the contract. Due to the breach, the City sent a contract termination letter to Watertower.
It was later discovered that the City Council did not follow the Kansas Open Meetings Act requirement when voting to terminate the contract. Instead, the city attorney, in executive session, explained to the council that he intended to terminate the contract with Watertower unless the council members talked to him after the meeting and objected to the termination of the contract. No council member objected, and the letter of termination was sent to Watertower on May 19, 1993.
Subsequent negotiations attempting to breathe new life into the project, through modification of the old contract or the creation of a new contract, continued into 1994.
The City ultimately determined that further negotiations were fruitless and on July 27, 1994, the City brought a declaratory judgment action in the district court, seeking judicial declaration that the contract was terminated and Watertower was no longer the exclusive developer of the project. Watertower counterclaimed, seeking specific performance of the contract and damages from the breach of contract by the City. First, the district court granted summary judgment to the City on Watertower’s claim it was entitled to specific performance of the contract. That judgment was appealed and upheld by the Court of Appeals. That ruling is not before this court.
Subsequently, the City filed for summary judgment, claiming that it had not breached the contract, but rather it had terminated the contract on May 19, 1993, pursuant to Section 11 of the contract. The district court found there were no material factual disputes. Therefore, the parties’ disagreement was one of contract interpretation, which is a question of law to be decided by the court.
The district court then found that the contract was unambiguous in that it required a commitment to purchase bonds, rather than a best effort to market the bonds. The district court concluded that because the letter from B.C. Christopher had not complied with Section 11, the letter was insufficient; no cure occurred within 90 days as required by the contract and, as a result, .the city attorney’s letter of May 19, 1993, notified Watertower that the contract was terminated.
The district court, in granting summary judgment, rejected Watertower’s argument that the City had not complied with Section 11 in that the City had failed to state, with particularity, its objection to the B.C. Christopher commitment letter. It held:
“The contract required the City to specify with particularity the portion of the commitment and the reason why the City did not accept the proposed commitment as sufficient. The City Attorney sent the developers a letter notifying the Developers that the B. C. Christopher letter, if intended to be a commitment, was not sufficient because it was not a commitment to purchase the Bonds but simply a promise to use their best efforts to market the Bonds. This notice was sufficient to inform the Developers that the contract required a definite commitment to purchase, not just a promise to market. Therefore the City is entitled [to] summary judgment as a matter of law with regard to the sufficiency of notice given to the Developers.”
The district court similarly rejected Watertower s contention that the contract termination was ineffective because it did not come to a vote before the City Council and because the discussion of it was not held in public. The district court granted summary judgment in favor of the City. Watertower’s subsequent motion for reconsideration of the grant of summary judgment was denied by the district court.
Watertower appealed. Pursuant to K.S.A. 20-3018(c), the case was transferred.
Standard of Review
The burden on the party seeking summaiy 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Sunflower Park Apts. v. Johnson, 23 Kan. App. 2d 862, Syl. ¶ 1, 937 P.2d 21 (1997). The interpretation and legal effect of written documents are matters of law upon which our standard of review is unlimited. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, Syl. ¶ 1, 928 P.2d 73 (1996).
DISCUSSION
1. Barring factual disputes, is the question of a breach of contract one for the jury, and was there sufficient competent evidence to support the trial court’s decision that the city had given sufficient notice of the breach to Watertower?
Watertower’s first two arguments are interdependent. They are: (1) The determination of whether a contract was breached is a fact question for the jury; and (2) the district court’s decision that the City was in compliance with its contractual obligation is unsupported by substantial competent evidence.
The district court first determined that the contract was unambiguous and, thus, its interpretation is a matter of law to be decided by the court. See Gore v. Beren, 254 Kan. 418, 426-27, 867 P.2d 330 (1994); Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 691, 840 P.2d 456 (1992) (holding that whether a contract is ambiguous is a question of law for the court).
Section 11 of the contract required Watertower to provide the City with “the commitment of a purchaser of Tax Increment Financing Special Obligation Bonds (the “Bonds”) to be authorized and issued by the City for the Project’s financing in accordance with the authority granted the City under the Act.” In interpreting this clause, the district court held:
“The contract required a commitment to purchase the Bonds. The Developers only provided a promise to market the Bonds on a best efforts basis, and not a commitment to purchase the Bonds. Therefore the City is entitled to summary judgment as a matter of law with respect to the Developers’ failure to provide a commitment of a purchaser.”
First, Watertower argues that the district court erred by determining Watertower had breached the contract. It asserts that the question whether the facts establish a breach of contract is a question for the jury. In support of this argument, Watertower cites Gregory v. Harrison, 191 Kan. 481, 382 P.2d 470 (1963). In Greg ory, an architect orally agreed to draw up housing plans for a developer. In lieu of paying for the plans, the developer orally agreed to sell the lots only to those persons willing to use the architect’s plans. For each sale, the architect was to receive $100. The developer did not pay the architect when he sold the lots. The district court granted the developer’s demurrer to the architect’s evidence. We reversed, finding there was sufficient evidence to require that a jury determine if the contract had been breached.
Here, unlike Gregory, there is a written contract and the parties stipulated to the material facts. The parties’ disagreement is whether these facts constitute a breach. Watertower cited no case standing for the proposition that when there are no disputed facts, summary judgment is inappropriate in a breach of contract case.
Where a district court determines that a written instrument is not ambiguous, no other fact findings or conclusions of law are necessary. See In re Estate of Cline, 258 Kan. 196, 206, 898 P.2d 643 (1995). The interpretation and legal effect of written instruments are matters of law. Under these circumstances, the question of whether the contract was breached was for the judge to determine.
2. Was there notice provided as required by the contract?
Watertower does not dispute the district court’s conclusion that the contract requires a commitment to purchase the bonds. Instead it argues the City’s October 27,1992, letter to Watertower did not state that B.C. Christopher’s commitment to market the bonds was insufficient. In response to this argument, we note that the district court held:
“The City Attorney sent the developers a letter notifying the Developers that the B.C. Christopher letter, if intended to be a commitment, was not sufficient because it was not a commitment to purchase the Bonds but simply a promise to use their best efforts to market the bonds. This notice was sufficient to inform the developers that the contract required a definite commitment to purchase, not just a promise to market. Therefore the City is entitled [to] summary judgment as a matter of law with regard to the sufficiency of notice given to the Developers.”
On appeal, Watertower asserts that the district court’s finding was wrong.
Section 11 required Watertower to provide a commitment to purchase bonds. Watertower had 180 days from the time the City passed the plan to provide this commitment. It did not do so. The City repeatedly complained to Watertower as to the lack of commitment and the particulars of the deficiency. This was acknowledged more than once by Watertower. Only after the contract was terminated did Watertower complain about the lack of particularity in the City’s complaints.
3. Did the district court erroneously consider objectionable opinion evidence?
Watertower next asserts the district court wrongly entered summary judgment based upon the opinion testimony of an expert. Supreme Court Rule 165 (1997 Kan. Ct. R. Annot. 180) provides:
“In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision. If evidence was admitted over proper objections, and in his reasons for the decision the judge does not state that such evidence, specifying fhe same with particularity, was not considered, then it shall be presumed in all subsequent proceedings that the evidence was considered by the judge and did enter into his decision.”
The evidence objected to as opinion evidence is the deposition testimony of Ike Parsons, a B.C. Christopher Vice-President, who testified that the letter did not represent a commitment on B.C. Christopher’s part to purchase the bonds.
The first problem with this contention is that the testimony of Parsons is not opinion testimony. As a B.C. Christopher Vice-President, Parsons was competent to testify as to the meaning of the letter he wrote. Secondly, Parsons did not testify as to whether the letter was in compliance with Watertower’s contractual obligations. Watertower’s assertion that as to the letter Parsons was testifying as an expert witness is incorrect.
4. Was the contract illegally terminated?
Watertower next claims that the City did not properly or lawfully terminate the contract because the City Council did not vote during an executive session to terminate the contract.
Watertower asserts that because the contract and the Act are silent, the termination of the development contract is governed by Topeka City Ordinance § 2-428, which provides: “The power and authority to purchase, sell, exchange, lease of owned property, or approve lease agreements for additional space shall be vested in the city council, the governing body of the city. No sale, exchange, purchase, or lease of real property shall be valid except by deed or contract approved by the governing body and signed by the mayor.” Watertower argues that the contract was one involving real estate; therefore, its cancellation required a vote by the City Council.
Section 23 of the contract provides the methodology as to how the parties may terminate the contract. The contract provides that the City may terminate the contract with 30 days’ notice if Water-tower did not fulfill its obligations under Section 11. The contract and the Act are silent as to how the City must approve termination of development contracts; it says simply that the City “may” terminate.
While the contract contains provisions under which the City will temporarily acquire real property, the portions of the contract that govern the relationship of the parties is separate from the purchase of such property. To acquire the property pursuant to the contract, the City would be required to comply with Topeka Ordinance § 2-428. Section 2-428 is inapplicable to the termination of the contract between Watertower and the City.
5. Did the City violate the Kansas Open Meetings Act?
Watertower correctly asserts that the manner in which the City terminated the contract was in violation of the Kansas Open Meetings Act, K.S.A. 75-4317 etseq. (KOMA). The termination decision did occur during an executive session in violation of the KOMA. In an executive session, the city attorney informed the City Council that Watertower had breached the contract and he would terminate the contract unless one of the council members directed him not to. No council member objected. The city attorney sent the termination notice by letter the next day. Therefore, Watertower is correct in that there was never a vote by the City Council ter minating the contract with Watertower in an open meeting. The issue is, if the City violated the KOMA in terminating the contract, can the district court enter judgment in favor of the City for breach of contract?
During oral argument, Watertower stated it had requested the attorney general to void the contract, as permitted by KOMA. The attorney general refused to do so because Watertower’s request was not timely pursuant to KOMA. Voidance of the City’s actions, under KOMA, must be done within 10 days.
The rights of private entities to enforce KOMA were stated in Stoldt v. City of Toronto, 234 Kan. 957, 678 P.2d 153 (1984). While private parties have standing to seek injunctive and mandamus relief, only the attorney general, district attorneys, and county attorneys have standing to void governmental acts based upon violations of KOMA. 234 Kan. 957, Syl. ¶ 1. Watertower was precluded from seeking the voidance of the City Council’s actions based on a KOMA violation. The district court was correct in not granting relief to Watertower.
6. Had the district court already found the City to be in breach?
Watertower next argues that the district court previously found that the City had committed an anticipatory breach or repudiation of the contract. The basis of this claim is the district court’s order denying Watertower’s motion for specific performance and injunctive relief, stating: “The Court further finds that the City has in effect repudiated the contract, regardless of whether defendants have done so.”
Taken in the context of determining whether Watertower still had contractual rights to be the exclusive developer (and Water-tower claimed that it had not breached the contract), the district court was simply saying that regardless of who breached, the contract was terminated and Watertower no longer had exclusive rights. Watertower previously appealed this issue. The Court of Appeals held:
“According to both parties, a ruling as to whether the City rightfully terminated the contract pursuant to its terms, or simply repudiated the contract, is not necessary for this court to decide the questions presented.
“The primary question still before the district court is whether the City legally terminated the contract because of Watertower s failure to perform to the City’s satisfaction under § 11 of the contract or whether the City wrongfully repudiated the contract.” (Emphasis added.)
It is plain from the Court of Appeals’ opinion that the issue of who breached was still to be determined and that both parties had acknowledged that fact. Watertower’s argument simply takes surplus verbiage out of context.
7. Had the City waived its right to terminate or should it be es-topped from doing so?
Watertower asserts the district court did not consider its waiver and estoppel arguments. The basis for Watertower’s argument is that the city attorney told Watertower that the termination of the contract was a “negotiating tactic” and that the City Council reinstated the contract by amending it twice after its termination. The district court did not address waiver or estoppel arguments.
For support of its first assertion, Watertower cites the deposition testimony of Chester Gentry, one of Watertower’s employees. Gentry testified that he was surprised upon receiving the termination letter. He called the city attorney. According to Mr. Gentry, the city attorney stated, “I had to do this, but I want to work something out with you guys, I mean, this isn’t the end.”
The City Council did later vote to reinstate the contract twice, but the specific language of each of the subsequent ordinances clearly stated that the prior contract had been terminated and if the developer met specified conditions, the contract would be amended. There is no evidence that Watertower met those conditions.
Waiver implies that a party voluntarily and intentionally gives up a known right or takes some action inconsistent with the contractual right. Equitable estoppel requires the showing that a party took action or made a representation such that another party reasonably relied upon it to the party’s detriment. United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan 523, 526-27, 561 P.2d 792 (1977).
After terminating the contract with the letter to Watertower, the City attempted to revive the contract through negotiation. At every juncture, the City Council and the city attorney informed Water-tower the contract had been terminated. The City did not intentionally give up any right or take action inconsistent with any right. There can be no reasonable reliance by Watertower that the City intended not to terminate the contract.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Six security officers and a maintenance worker, all full-time employees, filed this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (1994), (FLSA) against the shopping mall management firm which employed them. They alleged that they worked 2V2 hours overtime each week without compensation, in violation of 29 U.S.C. § 207 (1994). They sought liquidated damages and an award of costs and attorney fees under 29 U.S.C. § 216(b) (1994). The case was tried to the court, and judgment was entered for the employer. The employees appealed. This court granted employer’s motion to transfer the case from the Court of Appeals to this court.
Plaintiffs/appellants Michael Powell, Rick Lancaster, Rick Wolff, Ted Hogan, Mark Dutton, and Robert Sage were at pertinent times security officers employed by defendant/appellee Simon Manage ment Group, L.P., (Simon Group) a shopping mall management firm. Intervenor/appellantTim Learned was at pertinent times employed by the Simon Group as a maintenance worker. Christine Viles and John Bates supervised the employees for the Simon Group. They testified for defendant.
The employees’ workday was 8Vz hours long, including a Vz-hour uncompensated meal break. They sought compensation for the meal break on the theory that they were required to continue rendering service to the employer during the meal break. The security officers monitored their radios and sometimes responded to calls during the meal break, and they believed that they were required to do so. The Simon Group’s position was that the security officers were mistaken in that belief. The supervisors, however, had not corrected the mistaken belief. The maintenance worker also was required to monitor the radio and respond to calls during his meal breaks. Any worker who missed his lunch break to respond to a call could note it on his time card and receive compensation for the time.
After trial and the subsequent submission of proposed findings of fact and conclusions of law by the parties, the trial judge stated that he was granting the Simon Group’s motion for directed verdict, which had been made at the close of the plaintiffs’ testimony. Having done so, the judge went further to “consider the evidence as a whole.” He explained to counsel that he was “trying to save [counsel] another trip back to the well.” In this endeavor, the trial judge said he made “findings on the basis of the evidence as a whole, where I do weigh credibility and — determine credibility and weigh the evidence.” He further explained: “Well, I’m saying that even when we come to the point of the — on the motion for directed verdict, that even if I considered in light most favorable to the plaintiffs and intervenor, what they understood, that that’s not sufficient as a matter of law to get them over the bridge.”
There are several unusual circumstances that make it difficult to review the “facts” of this case on appeal. One confounding circumstance is the trial judge’s making alternative rulings. He granted the Simon Group’s motion for a directed verdict, but he also took all the evidence into account as a fallback measure. When a motion for directed verdict has been granted, this court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling was made. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992). The trial judge did not make a statement of the evidence resolved against the Simon Group. This court is not in a position to review the evidence independently because the record on appeal does not contain a full trial transcript. “An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails.” Smith v. Printup, 254 Kan. 315, Syl. ¶ 14, 866 P.2d 985 (1993). When the trial court makes findings of fact and conclusions of law and enters judgment at the conclusion of the evidence, this court generally is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). In this case, however, appellants do not challenge the trial judge’s findings of fact. “Determinations of fact, unappealed from, are final and conclusive.” Justice v. Board of Wyandotte County Comm'rs, 17 Kan. App. 2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992). The trial judge in this case, however, generally failed to determine issues of credibility or to resolve inconsistent testimony except by inference. As a result, his “determinations of fact,” which are unchallenged by the appellants, are more often than not merely recitals of who said what. With all this in mind, we turn to a patched-together account.
The district court stated aloud the following findings of fact: “[The employees] understood that they were to monitor their radios during meal breaks, that they were expected to, and that, further, they were to respond to calls and to interrupt their meals if there was no one else available to respond to the situation that had developed, or if there was an emergency requiring more than the otherwise available officers. . . . [I]t’s far and away very probable that [supervisors] Ms. Viles and Mr. Bates knew the plaintiffs were routinely monitoring their radios during meal breaks, and apparently took no action to instruct the plaintiffs to do otherwise.”
Tim Learned’s testimony that he was required to monitor the radio, that a response by him was required more often than not, and that he was reprimanded for not responding to direct radio calls was not contradicted or rebutted.
The testimony of the other employees to the same effect was contradicted.
The meal breaks were to be taken when time permitted and with the supervisor’s approval.
The employees were not required to remain on mall premises during meal breaks.
The remaining findings of fact were made by the trial judge from the bench by referring to the proposed findings filed by the parties. The trial judge expressly rejected the following two of the Simon Group’s proposed findings of fact:
“34. Wolff also testified that Viles once told him that because the security guards screwed around so much, the extra half-hour on their shift ‘didn’t matter.’ Viles denied ever having said this.
“49. Wolff also testified that he had once spoken with Viles when she was crying, and that she had told him she was on medication and had trouble remembering things. Viles denied that this conversation ever took place. Viles further testified that she had not been to see a doctor in several years, and that she had never been on medication which caused her to forget things.”
The trial judge rejected plaintiffs’ proposed finding No. 5 on account of its including the phrase “at all times.” The proposed finding states:
“5. A written policy required security officers to monitor their radios ‘at all times.’ Defendant’s agents claim this policy did not apply to plaintiffs’ meal breaks because there is an unwritten policy to that effect. Such claims are not credible, especially when neither supervisory official who testified could recall transmitting this information to any of the plaintiffs.”
The trial judge adopted the following two of plaintiffs’ proposed findings with the qualification that the subject was what plaintiffs believed or understood to have been the case rather than what they knew or what actually occurred:
“8. Although also in dispute, the Court finds by a preponderance of the evidence that all plaintiffs were directed to remain in radio contact whenever they took meal breaks; and all did so. Furthermore, the testimony of John Bates, Ms. Viles’ supervisor, established he was aware security officers monitored their radios when they took meal breaks. It is also acknowledged by defendant’s management the security officers were directed not to be seen having lunch with certain people, including other officers or employees of retail stores in the Mall. Rick Wolff was told to avoid having his lunch break with a Mall employee he was dating in an area of the security office where it would not have been possible for the pair to be seen.
“9. All of the security officers and the intervenor were subject to emergency calls while they were on their meal breaks, and their failure to respond to a call while eating exposed them to disciplinary measures. Security officers remained in uniform and were expected to respond to crimes committed in their presence. They also were required to report contacts with shoppers that occurred during their meal breaks.
“The intervenor usually had lunch with his supervisors and other maintenance crew members while they remained in radio contact with a dispatcher. He also had to respond to calls for assistance whenever he was directed to do so by his supervisor.”
With regard to plaintiffs’ proposed finding No. 12, the trial judge stated:
“I think that they were permitted to monitor their radios and to feel like they were responsible for doing so and to respond to calls, even though Ms. Viles and Mr. Bates stated unequivocally that they had never said that to them, that they — there’s no written policy, and no unwritten but spoken policy. They certainly knew that was happening, and they didn’t do anything to disabuse the employees from having the understanding that they were expected to do those things.”
The trial judge rejected proposed finding No. 13. We note that plaintiffs’ counsel did not differentiate proposed findings of fact from proposed conclusions of law. It appears that Nos. 14-17 should be considered conclusions of law.
For ease of reference, the employee handbook provision for meal breaks is quoted here in pertinent part:
“If you are a full time employee you will receive a paid fifteen (15) minute rest break sometime during each half day of work. In addition, if you are scheduled for a full shift you will receive a one-half hour unpaid meal break during your work day. . . .
“Your breaks may be interrupted, or delayed, to respond to emergencies or pressing mall business, however, you will be allowed to complete your break, if business conditions will allow, as soon as the problem has been corrected.
“Lunches and breaks are scheduled by the supervisor or shift lead person who will determine when they are to be taken based on work load. DO NOT clock out and in for lunch breaks, unless you are leaving the property. A thirty minute deduction will be taken automatically from your full work shift so that you don’t have to use your time for clocking in and out at lunch time.”
The following appears to be the Simon Group’s proposed findings of fact which the trial judge seems to have “subscribed to”: The principal complaint for each of the employees, except Sage, was that he was required to keep his radio on during meal breaks. Lancaster complained that he was required to monitor his radio during meal breaks, but he did not recall any specific incidents when his meal period was interrupted. He was allowed to have lunch with other security guards, and he was allowed to leave the premises during the meal break with no geographic limitations placed on his movements. He could, and sometimes did, eat in the mall, read, watch television, listen to the radio, and make telephone calls. The testimony of the other security guards echoed Lancaster’s with one exception — Sage recalled no restrictions on meal periods, and he testified “that no one ever told him he had to leave his radio on during meal periods.”
Learned, the maintenance worker, also complained that he was required to monitor the radio during his meal break. He testified that his lunch periods always lasted longer than half an hour, that he talked with his wife on the telephone for approximately 15 minutes and spent the remainder of his break in the break room with other maintenance and landscaping employees. He was able to leave the premises and run errands.
The sole issue on appeal is whether the “predominant benefit test” is the proper test to determine if meal break periods are compensable under the FLSA. We preface our discussion of this issue by noting that state and federal courts have concurrent jurisdiction of actions brought under the FLSA, 29 U.S.C. §§ 201 et seq. Olson v. Rembrandt Printing Co., 375 F. Supp. 413, 417 (E.D. Mo. 1974).
As noted above, the plaintiffs do not challenge the trial judge’s findings of fact. “Determinations of fact, unappealed from, are final and conclusive.” Justice v. Board of Wyandotte County Comm’rs, 17 Kan. App. 2d at 109. “This court’s review of conclusions of law is unlimited.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The trial judge adopted various conclusions of law proposed by the Simon Group, but the crux of this case is stated in conclusion of law No. 20:
“This Court finds that plaintiffs were free to pursue their own interests during lunch periods. The meal periods were spent for the predominant benefit of plaintiffs and intervenor, and no violation of the FLSA has been shown. 29 C.F.R. § 785.19. See also Lamon, 972 F.2d at 1157-1158; Armitage, 982 F.2d at 432; Burnison, 820 F. Supp. at 557; Brinkman, 804 F. Supp. at 172; Agner, 8 Cl. Ct. at 638.”
In resolving this appeal, we need to consider two subsections of 29 U.S.C. § 207 — subsection (k), which is applicable to government employees providing fire protection and law enforcement personnel who have nontraditional working hours — and subsection (a)(1), which provides, in part:
“[N]o employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the horns above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
29 C.F.R. § 785.19 (1997), which governs § 207(a)(1) employees, states in pertinent part:
“(a) . . . Bona fide meal periods are not worktime. . . . The employee must be completely relieved from duty for the purposes of eating regular meals. . . . The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. . . .
“(b) ... It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.”
29 C.F.R. § 553.223(b) (1997) provides, in part:
“If a public agency elects to use the section 7(k) exemption, the public agency may, in case of law enforcement personnel, exclude mealtime from hours worked on tours of duty of 24 hours or less, provided that the employee is completely relieved of duty during meal periods, and all other tests in § 785.19 of this title are met.”
Lamon v. City of Shawnee, Kan., 972 F.2d 1145 (10th Cir. 1992), cert. denied 507 U.S. 972 (1993), was an action by police officers to recover back pay for, among other things, being on duty during the meal period. Law enforcement and fire protection employees, whose work schedules typically do not fit the workweek method of wage and time calculations, receive separate consideration under 29 U.S.C. § 207(k). The police officers in Lamon were subsection (k) employees. With regard to the applicable regulation, the Tenth Circuit Court of Appeals stated:
“Section 553.223(b) governs the compensability of meal periods, in the subsection (k) context, for law enforcement personnel working shifts of fewer than 24 hours. Like § 785.19, this section requires compensation for meal periods during which an employee is not ‘completely relieved from duty.’ Also, 553.223(b), by reference to § 785.19, mandates that uncompensated meal periods ‘must be scheduled, occur at a regular time, and normally be thirty minutes or more.’ Lee v. Coahoma County, 937 F.2d 220, 225 (5th .Cir. 1991) (citing § 785.19 in discussing § 553.223). Not appearing in § 553.223(b), however, is § 785.19’s statement: ‘The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.’ Furthermore, § 553.223(b) goes on to illustrate circumstances involving law enforcement personnel that would run afoul, if not compensated, of the ‘completely relieved from duty’ standard, citing the examples of personnel required to remain on call in barracks or similar quarters or assigned to extended surveillance duties, such as stakeouts. We find these differences instructive in determining the reach of the completely relieved from duty standard pursuant to § 553.223(b). Hence, a police officer must primarily be engaged in work-related duties during meal periods to warrant compensation therefor. That a police officer is on-call and has some limited responsibilities during meal periods does not perforce mean the officer is working. See Lee, 937 F.2d at 225; Leahy v. City of Chicago, 785 F. Supp. 724, 728-30 (N.D. Ill. 1992). Instead, consistent with the language of § 553.223(b) and with traditional principles underlying FLSA, a law enforcement employee is completely relieved from duty during a meal period, for purposes of § 553.223(b), when the employee’s time is not spent predominantly for the benefit of the employer. Cf. Renfro v. City of Emporia, 948 F.2d 1529, 1538 (10th Cir. 1991), cert. dismissed [503 U.S. 915] (1992) (restrictions placed on on-call firefighters’ personal pursuits created benefit to employer making time compensable under § 207 (k)); Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir. 1989) (applying predominant benefit test to on-call power company employees, under § 207(a)); Norton v. Worthen Van Service, Inc., 839 F.2d 653, 654-55 (10th Cir. 1988) (considering extent to which on-call van drivers were able to pursue personal activity, in appeal of back wages claim under FLSA). If during meal periods a police officer’s time and attention are primarily occupied by a private pursuit, presumably the procurement and consumption of food, then the officer is completely relieved from duty and is not entitled to compensation under FLSA. Conversely, a police officer is entitled to compensation for meal periods if the officer’s time or attention is taken up principally by official responsibilities that prevent the officer from comfortably and adequately passing the mealtime.
“As literally extracted from § 785.19, the trial court’s instruction no. 10 deprived the juiy of an ample understanding of the issues and standards of the case. The instruction countenanced the misapprehension that the performance of any official duty, no matter how insignificant, during meal periods rendered the time compensable. We reject that result.” 972 F.2d at 1156-58.
Shortly after deciding Lamon, the Tenth Circuit reversed a district court’s award of back pay to Emporia police detectives for lunch periods. Armitage v. City of Emporia, Kan., 982 F.2d 430 (10th Cir. 1992). Explaining why the lower court’s decision was in error, the Court of Appeals stated:
“Relying on two prior district court decisions, the district court held that the detectives should be compensated for their lunch periods because they ‘were not completely relieved of duty.’ Wahl v. City of Wichita, Kansas, 725 F. Supp. 1133 (D. Kan. 1989); Nixon v. City of Junction, Kansas, 707 F. Supp. 473 (D. Kan. 1988). However, we recently decided Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992), which sets forth the correct standard and requires a different outcome under these facts.
“In Lamon . . . [w]e held that the proper standard for determining compensability of a meal period is whether the officer is ‘primarily . . . engaged in work-related duties during meal periods.’ Id. at 1157. ‘That a police officer is on-call and has some limited responsibilities during meal periods does not perforce mean the officer is working.’ Id. (citing Lee v. Coahoma County, Mississippi, 937 F.2d 220, 225 (5th Cir. 1991).” 982 F.2d at 431-32.
The plaintiffs in Burnison v. Memorial Hosp., Inc., 820 F. Supp. 549 (D. Kan. 1993), were emergency medical technicians and paramedics. During meal periods, they were required to respond to emergency calls but were compensated if interrupted. They could leave the hospital and could patronize drive-through restaurants, but they were not permitted to park their ambulance and go inside a restaurant. Bumison is like the present case in that the plaintiffs were not government employees and the parties had stipulated that 29 C.F.R. § 758.19 rather than 29 C.F.R. § 553.223 applied. They argued that Armitage and Lamon should be distinguished on those grounds. The federal district court disagreed:
“Although not specifically discussed in the Tenth Circuit’s opinion, the district court’s opinion cites the § 785.19 regulation in its discussion of the meal period issue. Armitage v. City of Emporia, Kan., 782 F. Supp. 537, 541 (D. Kan. 1992). More importantly, the court does not perceive any material difference between the standards governing the compensability of meal periods for cases where the § 785.19 regulation is applicable as opposed to cases where the § 553.223 regulation is applicable. We draw this conclusion from footnote 18 of the opinion of Lamon, wherein the court stated, ‘[o]ur contrasting of the two sections, § 553.223(b) and § 785.19, does not mean that the “completely relieved from duty” standard as used in the latter section should necessarily take on a different meaning than that of the former section. See e.g., Hill v. United States, 751 F.2d 810, 813-814 (6th Cir. 1984) (applying the predominate benefits test to meal periods of letter carrier under § 785.19).’
“Our conclusion is buttressed by the holding in Armitage, where the court held the meal periods noncompensable despite the fact that the plaintiffs were required to respond to questions from the public if approached and were subject to call. Here, the undisputed facts are that the plaintiffs did not have to perform any work-related duties during their lunch periods. They had limited responsibilities and restrictions (not being able to eat at home and having to eat in the ambulance if they chose to leave the hospital for lunch) but these reasonably related to their obligation to be on-call. Section 785.19, which is relied upon heavily by the plaintiffs, is only an advisory resource and, in any event, does not fit the facts of this case. The limited restrictions and responsibilities of the plaintiffs are not equivalent to an office employee who is required to eat at his or her desk or a factory worker who is required to eat at his machine. This court is obligated to follow the rulings of the Tenth Circuit and it believes the plaintiffs’ situation is indistinguishable from Armitage. Therefore, the court holds the in-shift meal periods are noncompensable under the FLSA.” 820 F. Supp. at 557.
Brinkman v. Dept. of Corr. of State of Kan., 804 F. Supp. 163 (D. Kan. 1992), aff’d 21 F.3d 370 (10th Cir.), cert. denied 513 U.S. 927 (1994), was decided before the Tenth Circuit issued its decision in Armitage. Corrections officers at the Lansing Correctional Facility alleged that their half-hour break period was compensable work time rather than a bona fide meal period. The employees relied on the district courts’ decisions in Armitage, Lamon, Wahl, and Nixon. Focusing on recent developments, the trial judge stated:
“The Tenth Circuit recently placed in doubt much of this district’s case law on the meal period test under FLSA. In Lamon, the plaintiffs were police officers employed under a 28-day work period scheme available under § 207(k). . . .
“The district court’s instruction on meal periods repeated much of the critical language from 29 C.F.R. § 785.19. The Tenth Circuit said the district court should have looked instead to 29 C.F.R. § 553.223(b). The Tenth Circuit believed this specific regulation, rather than the general meal period regulation of § 785.19, was controlling of a compensability question of meal periods in the subsection (k) context. Lamon, 972 F.2d at 1156. In contrasting § 785.19 and § 553.223(b), the Tenth Circuit found two differences which were important in its mind. First, § 553.223(b) did not include the following sentence from § 785.19: ‘The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.’ The other was the illustrations found in § 553.223(b) of a meal period being compensable when a law enforcement officer is forced to remain on call in barracks or is assigned to extended surveillance.” 804 F. Supp. at 169-70.
Nonetheless, the trial judge drew the following conclusion:
“This court believes Lamon strongly implies that the ‘completely relieved from duty’ standard appearing in both § 553.223(b) and § 785.19 has the same meaning. The two distinctions observed between § 553.223(b) and § 785.19 are insubstantial reasons for reading identical words differently in almost indistinguishable contexts. No rationale for having a less rigorous meal period standard for an employee covered under § 207(k) is offered in Lamon. Section 207(k) obviously is intended to address the unique employment circumstances of a law enforcement officer, fire fighter, or corrections officer. Presumably, the same circumstances justify taking the same approach to meal period times for those similarly employed whether covered by § 207(k) or not. The court feels compelled to apply the standards articulated in Lamon to this case.” 804 F. Supp. at 171.
Further commenting on its reading of Lamon, the federal district court stated:
“What the Tenth Circuit did in Lamon was to remind us that the regulatory standard, ‘completely relieved from duty,’ cannot be applied singularly or be divorced from the traditional principles underlying FLSA. Who predominantly benefits from how an employee spends his time is the overriding question of whether the employee is working.” 804 F. Supp. at 172.
“Administrative regulations while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124 (1944).” 804 F. Supp. at 172 n.10. In the end, the court declined to enter summary judgment on the ground that it was precluded by genuine issues of material facts from saying “as a matter of law that the meal breaks predominantly benefit the defendant.” 804 F. Supp. at 173.
Some circumstances in Brinkman were uncontroverted:
“[T]he plaintiff officers are given a thirty-minute break period which is not counted as hours worked on time sheets and is not calculated as part of any compensation. . . .
“While on their thirty-minute break, the plaintiff correction officers are subject to a number of restrictions. Breaks are to be taken during the middle six hours of a shift. Two break rooms are available. The time it takes them to walk from their post to the break room is part of their break time. They are required to record when they leave for and return from break. They must remain in uniform. They are not permitted to leave the grounds of the facility or to visit their automobiles at their own discretion They may not move from their assigned compound to another without permission. They may walk immediately outside the compound. They are not allowed to take breaks at their duty posts or to contact other officers who are not on break. They are not allowed to bring reading material identified as ‘contraband’ into the break room. They are subject to recall for emergency alarms, and if they become aware of an alarm then they are expected to respond. They may be disciplined for not reporting when recalled during break. Officers are expected both to report any inmate violations and to intervene in any inmate disturbances that are observed during break. Outside visitors, such as family members, are not allowed inside or outside the facility.” 804 F. Supp. at 168.
Footnote 2 states:
“There are other restrictive circumstances that the plaintiffs submit exist, but they are controverted. Judgment may be entered as a matter of law only if sustained by the uncontroverted facts. Factual disputes that are immaterial under the substantive law do not preclude summary judgment. See Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1533 (10th Cir. 1991).” 804 F. Supp. at 168.
Among those circumstances in question were
“the existence and extent of any restrictions on discussing union or political matters or in reading certain literature or materials; the defendant’s knowledge and tolerance of some plaintiffs’ carrying and monitoring their radios during break; the nature and extent of the plaintiffs’ continued observation of prisoners while on break; the relationship that these monitoring and observing duties bear to the plaintiffs’ principal work activity; the availability of sleeping on break considering any rules or other prohibitive circumstances; the frequency of emergency calls interrupting break; and the consistency with which these meal breaks were given.” 804 F. Supp. at 173.
The trial judge eventually entered judgment on a jury verdict for the corrections officers, and the Tenth Circuit affirmed. Brinkman v. Dept. of Corr. of State of Kan., 21 F.3d 370 (10th Cir. 1994). The jury determined not only that the Department of Corrections violated the FLSA, but it also determined that the violation was willful, thereby extending the limitations period from 2 to 3 years. 21 F.3d at 372. On appeal, the employer did not challenge the jury’s finding that the uncompensated half-hour break constituted a violation of the FLSA. Nor did the employer argue that the evidence was insufficient to support the jury’s finding of a willful violation. 21 F.3d 372-73.
In the present case, appellants state that their argument
“with the trial court lies strictly over whether or not Judge Friedel should have determined the present status of the law requires him to use the ‘predominate benefit’ [sic] test of the most recent Kansas and Tenth Circuit rulings rather than follow the explicit language of 29 C.F.R. § 785.19 that says: ‘The employee is not relieved from duty if he is required to perform any duties, whether active or inactive, while eating.’ ”
Appellants do not attempt to establish an authoritative status for administrative regulations. Nor do they suggest that the federal court cases from the District of Kansas and the Tenth Circuit Court of Appeals ought not be persuasive authority for this court’s consideration of a cause of action arising under federal legislation. As we have seen, in Brinkman the district court quoted Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944), for the proposition that instead of being controlling authorities, administrative regulations provide guidance to the courts. 804 F. Supp. at 172 n.10. The rule generally followed by this court with respect to properly adopted state administrative regulations is that they have the force and effect of statutes, Murphy v. Nelson, 260 Kan. 589, 595, 921 P.2d 1225 (1996), and, like statutes, regulations are subject to certain rules of construction. Both this court and federal courts “strive for a reasonable interpretation or construction of a statute or regulation which avoids an unreasonable or absurd result.” 260 Kan. 589, Syl. ¶ 3. The interpretation currently given to the administrative regulations concerning employees’ meal breaks by the federal courts in this state and in the Tenth Circuit is less literal than appellants advocate, but does not seem to be unreasonable.
Appellants have not furthered their cause by directing the court’s attention to cases from any other districts or circuits in which 29 C.F.R. § 785.19 is interpreted as they would have it. The single authority they cite is Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 63 L. Ed. 2d 22, 100 S. Ct. 790 (1980): “[J]udges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme.” The subject of the Supreme Court’s observation was the legislation and regulation governing commerce in credit, a field in which courts particularly heed the lawmakers:
“[D]eference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive for several reasons.
". . . [T]raditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in ‘setting [the statutory] machinery in motion. . . .’ [Citation omitted.] . . . Congress delegated broad administrative lawmaking power to the Federal Reserve Board when it framed TILA. The Act is best construed by those who gave it substance in promulgating regulations thereunder.” 444 U.S. at 565-66.
Nothing has been called to this court’s attention that would suggest the same degree of deference is due regulation in the field of labor standards. Moreover, as noted by the Simon Group, this court’s recent consideration in Stone v. City of Kiowa, 263 Kan. 502, 950 P.2d 1305 (1997), of the related issue of on-call compensation for law enforcement officers included discussion of the predominant benefit test.
It seems, therefore, that the predominant benefit test, which the trial judge derived from the recent federal cases from this district and circuit, is the correct one. The question to be posed is “Who predominantly benefited from how the employees spent their meal break time?” In the present case, there is the peculiar circumstance of the employees’ perceptions of what was required of them not precisely matching actual requirements. By posing the question in this way, the court will be considering how the employees actually spent their time, thus giving them the “benefit” of their misperceptions.
There is no question that the employees in this case performed some service for the employer during meal breaks by monitoring their radios and making themselves available to respond when nec essaxy. Providing this service, however, does not seem to have eclipsed the central purpose of the break as a time for the employees to relax and eat. On occasions when the employees were deprived of their time to relax and eat because they responded to calls, they were eligible for compensation and needed only to make note the occasion on the time card. Thus, it would appear that the employees, rather than the employer, predominantly benefited from how they spent their meal break time.
Finally, with respect to liability, the employees contend that accurate records of their meal break activities would show the extent of their duties and that responsibility for keeping the records lies with the employer. Due to the Simon Group’s failure to fulfill its recordkeeping duty, the argument continues, the employees cannot prove their case. Thus, they would have the court conclude, the court must rule in their favor. This argument has no merit where, as here, the employees’ own accounts of how they spent their meal breaks do not support their claims.
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|
The opinion of the court was delivered by
Davis, J.:
Aimee Elizabeth Cross was arrested for driving under the influence. Cross agreed to testing and requested an administrative hearing after receiving a notice of suspension. The admin istrative hearing officer affirmed the suspension, and Cross petitioned the district court for review arguing that K.S.A. 8-1020(g), a limitation on witnesses who may be called for the hearing, denied her due process of law. Cross also contends that the above statute is constitutionally defective oh its face. The district court held that Cross was afforded due process in the hearing, denied her claim that K.S.A. 8-1020(g) as applied was unconstitutional, and further held that Cross lacked the standing to facially attack the statute. Cross appealed, and we affirm on our transfer of this case pursuant to K.S.A. 20-3018(c).
On February 15, 2003, Riley County Police Officers Steere and Curtiss were dispatched to a report of a pedestrian vehicle accident and were the first officers to arrive at the scene. Curtiss stayed with the person who had been injured in the accident while Steere spoke with appellant Cross. Officer Asher subsequently arrived at the scene and took witness statements and completed the accident report.
Steere was the first person to speak with Cross and Cross identified herself as the driver of the vehicle. Steere observed the odor of alcoholic beverages coming from Cross, and Cross failed the field sobriety tests Steere administered. Steere observed that Cross had slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination. Cross told Steere that she had drunk a few alcoholic beverages. Steere relied solely upon his own observations and conversation with Cross in determining that he had reasonable grounds to ask her to submit to an evidentiary breath test.
Officer Steere placed Cross under arrest for driving under the influence and transported her to the Law Enforcement Center. Cross consented to a breath test which showed a blood alcohol concentration of .158. Steere completed an officer’s certification and notice of suspension, commonly referred to as a DC-27 form, and personally served it upon Cross. Steere was the only officer to complete and sign the form.
On February 17, 2003, Cross requested an administrative hearing, asking that subpoenas duces tecum be issued “for any and all officers who signed or initialed the Law Enforcement Officers’ Certification, Form DC-27, to appear and testify.” Steere was the only witness subpoenaed to the hearing, which was held on July 18, 2003. No transcript of the hearing is in the record on appeal, making it difficult to determine precisely what arguments were raised. Relevant to this appeal, the hearing notes provided: “Other issues raised: DC-27 not properly completed since other off on paperwork, [sic]” The hearing officer affirmed the administrative action to suspend Cross’ driving privileges.
On July 25, 2003, Cross timely filed a petition for review in the Riley County District Court. The petition sought review of all issues raised at the hearing, specifically: “That the order suspending plaintiff s driving privileges should be vacated by this Court because the officer did not properly complete the law enforcement officer’s certification; the officer lacked probable cause to arrest; [and] the officer failed to follow KDHE [Kansas Department of Health and Environment] protocol regarding breath testing.”
On December 5, 2003, a trial de novo was conducted on the petition. Officer Steere was the only witness to testify at the hearing and was examined by both parties. Afterward, the district court heard substantial oral argument wherein Cross’ counsel identified the sole issue as whether the certification was improper because the other officers did not sign the certification and her due process rights were violated. Counsel argued the 2001 amendments that limit the witnesses that can be called at the administrative hearing violates due process both on its face and as applied to Cross’ case.
Counsel for the Kansas Department of Revenue (department) responded that Cross was not denied due process under the facts of this case because she had admitted in the request for admissions that reasonable grounds existed for the officer to believe she was driving under the influence. Additionally, Steere was the only officer to conduct the DUI investigation, he signed the certification, and he was subject to examination at the hearing. The district court took the matter under advisement.
The order on petition for review identified the two issues raised by Cross: “(1) that the ‘Officer’s Certification and Notice of Suspension’ (hereafter ‘DC-27’) was improperly completed because it was signed by only one officer involved in the arrest process; and (2) that Petitioner was denied due process by tire single signature on the DC-27.” In denying the petition to set aside the suspension of Cross’ driving privileges, the district court reasoned in relevant part:
“The facts of this case offer no support for Petitioner’s due process argument. Officer Steere testified that he gathered all of the information upon which he relied, without information from or reliance on other officers. He administered the testing referred to on the DC-27 and signed and served that certification on Petitioner. He was, therefore, subject to subpoena for the administrative hearing. The right to call Officer Steere to the administrative hearing afforded Petitioner the opportunity to confront and cross-examine the person who made the observations and assessments and gave her the breath test. Multiple officers were not involved with her part of the case. The Court has no reason, therefore, to address the constitutionality of the witness limitations of K.S.A. 8-1020(g). Based on the evidence, the challenge to the completion of the DC-27 must also fail, as the certification was completed by the single officer who investigated the facts and drew the conclusions upon which the suspension rested.”
On appeal, Cross attacks the constitutionality of K.S.A. 8-1020(g), a provision which was enacted by the Kansas Legislature in 2001 as part of significant amendments to the Kansas Implied Consent Law. Before addressing Cross’ arguments, it is helpful to first review how these amendments changed the Kansas Implied Consent Law.
2001 Implied Consent Law
K.S.A. 8-1001(b)(l) and (2) provide that if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs and the person has been arrested or taken into custody in relation thereto or the person was involved in a vehicle accident or collision resulting in property damage, personal injury, or death, then the officer shall request the person to submit to a test. The officer directing administration of the test(s) may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.
If the test is failed, a law enforcement certification must be prepared and signed by one or more officers to certify that reasonable grounds existed to believe the person was operating a vehicle under the influence of alcohol or drugs; the person had been placed under arrest, was in custody, or had been involved in a vehicle accident; a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001; and the result of the test showed that the person had an alcohol concentration of .08 or greater in such person’s blood or breath. K.S.A. 8-1002(a)(2).
^Certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein.” K.S.A. 8-1002(b).
When a test failure is established while the person is still in custody, the officer shall serve the licensee a DC-27 form. In addition to the requirements of (a)(2), the form must include the following information: The person’s name, driver’s license number, and current address; the reason and statutory grounds for the suspension; the date notice is being served and a statement that the effective date of the suspension shall be the 30th calendar day after the date of service; the right of the person to request an administrative hearing; and the procedure the person must follow to request an administrative hearing. K.S.A. 8-1002(d). A copy of this form is forwarded to the division, which will review the certification to ensure that all requirements were met. If so, it will suspend the licensee’s driving privileges in accordance with the notice of suspension already served. K.S.A. 8-1002(e), (f).
If the licensee fails the test, the officer shall take his or her driver’s license and issue a 30-day temporary license. K.S.A. 8-1002(e). Upon receipt of the officer’s certification and notice of suspension, the licensee has 10 days (13 if served by mail) to request an administrative hearing, which will keep the temporary license active until 30 days after the hearing. K.S.A. 8-1020(a), (b).
K.S.A. 8-1020 governs the requirements and procedures of the administrative hearing. Except for a hearing conducted by telephone or video, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto. K.S.A. 8-1020(d). Relevant to this case, if the officer certifies that the licensee failed the breath test, the scope of the hearing is limited to whether the officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs; the licensee was in custody or arrested for an alcohol or drug-related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury, or death; a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001; the testing equipment used was certified by the Kansas Department of Health and Environment; the person who operated the testing equipment was certified by the Kansas Department of Health and Environment; the testing procedures used substantially complied with the procedures set out by the Kansas Department of Health and Environment; the test result determined that the licensee had an alcohol concentration of .08 or greater in such person’s breath; and the licensee was operating or attempting to operate a vehicle. K.S.A. 8-1020(h)(2)(A-H).
Subsections (e) and (1) limit the evidence at the hearing to the officer’s certification and notice of suspension, the test results, an affidavit showing the certification of the officer and the instrument, the KDHE testing protocol checklist, testimony of the licensee, testimony of any certifying officer, testimony of any witness present at the time of the issuance of the certification called by the licensee, affidavits submitted from other witnesses, testimony regarding the existence of a relevant medical condition, and any video or audio tapes of the events at issue. K.S.A. 8-1020(e), (1). Subsection (g), the subject of this appeal, limits the witnesses at the hearing to any officer who signed the certification form and to one other witness that was present at the issuance of the certification.
At the administrative hearing, the licensee has the burden of proof by a preponderance of the evidence to show the facts set out in the officer’s certification are false or insufficient and that the order suspending or restricting the driving privileges should be dismissed. K.S.A. 8-1020(k).
If the suspension or restriction is affirmed by the hearing officer, the suspension or restriction shall begin 30 days later unless the licensee petitions the district court for a trial de novo, in which case, the temporary license is again extended throughout the appeal process. K.S.A. 8-1020(m), (o). Upon petition for review to the district court, the licensee is entitled to a trial de novo and the evidentiary restrictions of subsection (1) are inapplicable. K.S.A. 8-1020(p).
Constitutionality of K.S.A. 8-1020(g)
The determination of whether a statute violates the Constitution is a question of law over which we have unlimited review. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003).
As noted above, K.S.A. 8-1020(g) sets forth what witnesses may be called at the administrative hearing:
“Witnesses at the hearing shall be limited to the licensee, to any law enforcement officer who signed the certification form and to one other witness who was present at the time of the issuance of the certification and called by the licensee. The presence of the certifying officer or officers shall not be required, unless requested by the licensee at the time of making the request for the hearing. The examination of a law enforcement officer shall be restricted to the factual circumstances relied upon in the officer’s certification.”
Cross argues the above statute is unconstitutional on its face and as applied. Cross contends it is unconstitutional on its face because K.S.A. 8-1020 prevents the subpoenaing of other relevant witnesses to the administrative hearing. Cross attacks the statute as applied to her, claiming that she was denied due process because she was unable to subpoena other relevant witnesses to her administrative hearing.
We address Cross’ second argument first, for if she is unable to establish that the statute as applied to her violated her due process rights during the administrative hearing, she would have no standing for a facial attack on the constitutionality of K.S.A. 8-1020(g). In Ulster County Court v. Allen, 442 U.S. 140, 154-55, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979), die United States Supreme Court affirmed this principle:
“A party has standing to challenge constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in die application of statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.”
This court has also adopted the same principle:
“The general rule governing the standing of a party to challenge the constitutionality of legislation is that a litigant to whom a statute may constitutionally be applied will not be heard to challenge the statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the court. [Citation omitted.]” State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985).
Cross argues that K.S.A. 8-1020(g) was unconstitutional as applied. She argues her due process rights were violated because she was unable to subpoena “other relevant witnesses” to testify at the hearing regarding her driver’s license suspension. Cross does not proffer the substance of the testimony she expected from other witnesses but claims such evidence would be relevant to establish whether reasonable grounds existed to request testing in her case. Cross relies primarily upon Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 671 P.2d 547 (1983), and Carson v. Division of Vehicles, 237 Kan. 166, 699 P.2d 447 (1985), in support of her argument.
We note at the outset that the Kansas Implied Consent Law in effect during those cases is different from the current law discussed above. In Wulflcuhle, the applicable statutes were K.S.A. 1981 Supp. 8-1001, which required the arresting officer to make a “sworn report of the refusal,” and K.S.A. 8-255 (Weeks), which granted the director the discretion to “issue subpoenas for the attendance of witnesses.” Like the current law, the 1981 version of the implied consent law provided the opportunity for an administrative hearing prior to the suspension of driving privileges. K.S.A. 1981 Supp. 8-1001(c).
In Wulfkuhle, the department declined the licensee’s request to subpoena the arresting officer and the notary public who signed the officer’s refusal report to appear at the hearing. The licensee appealed to the district court, contending the department’s refusal violated his constitutional right to examine his accuser and was arbitrary, capricious, and without legal authority. The licensee did not ask the judge to subpoena the arresting officer or notary public for purposes of the trial de novo and did not raise any underlying factual issues. The district court granted summary judgment in favor of the department, finding the licensee could not mount a collateral attack on the procedures utilized in the administrative hearing where he had an opportunity to appeal to the district court for a trial de novo on the issue of the reasonableness of his refusal to submit to a test. At this time, the sole issue to be decided at the administrative hearing and the district court hearing was the reasonableness of the failure to submit to a test.
This court reversed on appeal, finding the department was required to issue subpoenas when requested by the licensee to compel the arresting officer, notary public, and other relevant witnesses to appear at a hearing conducted under K.S.A. 8-255(b) (Weeks) to establish that the chemical test refusal report was sworn to as required by K.S.A. 1981 Supp. 8-1001 or to be examined concerning the reasonableness of the licensee’s refusal to submit to the test. 234 Kan. at 243-49. The court reasoned that K.S.A. 1981 Supp. 8-1001’s requirement that the officer prepare a “sworn report” of the refusal was jurisdictional under Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968). The court rejected the department’s argument that a trial de novo cures constitutional defects in lower level proceedings because the district court could not create jurisdiction where none existed at the administrative level. 234 Kan. at 244-46.
Regarding the reasonableness of the refusal, Wulfkuhle argued that the department’s refusal to issue the subpoenas violated his constitutional right to examine his accusers. The court found that a licensee’s revocation hearing is quasi-judicial in nature, and “the right to cross-examine witnesses testifying at administrative hearings of a ‘quasi-judicial’ character is an important requirement of due process.” 234 Kan. at 246. The court found that the necessity of cross-examination of the arresting officer on the issue of reasonableness of refusal was readily apparent:
“The officer s report itself, absent the officer’s testimony, will ordinarily be the only evidence presented by the State to establish the unreasonableness of the refusal to take the chemical test. The instant case demonstrates the filing of such a report creates a presumption that refusal to take the chemical test was unreasonable. The report contains three ‘statements of fact’ which do not deal with the ‘reasonableness’ of the refusal. The first states the officer had reasonable grounds to believe the person was operating a vehicle under the influence of alcohol. The second states the arrest was lawful and the person refused the test. The third states that, to the best of the officer’s knowledge, the refusal was knowing, intelligent, free and voluntary. Such a refusal could be either reasonable or unreasonable. Cross-examination might reveal the facts upon which the officer relied in making these statements of fact, and, in a given situation, these statements could be brought into serious doubt through cross-examination. Without cross-examination, the hearing board has before it an unimpeachable report as evidence against the word of a self-interested licensee. The result is predictable.” 234 Kan. at 247.
The department also argued that K.S.A. 8-255(b) (Weeks) made the issuance of the subpoenas discretionaiy. See K.S.A. 8-255(b) (Weeks) (“Upon such hearing, the director or the director s duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require an examination or reexamination of the licensee.”). We noted however:
“Assuming the issuance of subpoenas is a discretionary function, where the attendance of the arresting officer or other relevant witnesses is requested by the licensee to establish the validity of the verification of the refusal report or the reasonableness of the licensee’s refusal to submit to the chemical test, the refusal to issue subpoenas to compel the attendance of those witnesses at the hearing is an abuse of the agency’s discretion. This does not suggest, however, that the licensee’s right to have witnesses subpoenaed for the hearing is unlimited. The Director of Vehicles is entitled to exercise his discretion to limit the subpoenas issued to those persons whose testimony is relevant to the issues to be determined at the hearing.” 234 Kan. at 247-48.
In Carson, six cases were consolidated for appeal concerning K.S.A. 8-1001 (1982 Ensley), which required the arresting officer to make a report of the refusal verified on oath to the division of vehicles. In each case, the licensee’s license was suspended after an administrative hearing where the only evidence presented was the arresting officer’s affidavits of refusal. Although the licensees had not requested that the arresting officers be subpoenaed, they argued in part on petition for review that the arresting officers failure to appear deprived them of their right to confrontation and cross-examination. The district court agreed, finding that due process was violated because the affidavits were insufficient to find the refusals were unreasonable without the presence of the arresting officer.
On appeal, this court framed the principal issue as “whether due process of law and the right of confrontation and cross-examination under the federal and state constitutions require the presence of an arresting officer at administrative hearings held pursuant to K.S.A. 8-1001.” (Emphasis added.) 237 Kan. at 168. The court considered whether an arresting officer’s sworn oath regarding a person’s refusal to submit to a chemical test was sufficient on its face to permit suspension of their license consistent with due process. After discussing Wulfkuhle and Illinois v. Batchelder, 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513 (1983), at length, the Carson court concluded that the officer’s affidavit per se was insufficient to support the suspension of a person’s driving privileges and failed to meet the constitutional requirements of due process of law or the right of confrontation and cross-examination. 237 Kan. at 174.
“As we understand the record in these cases, it was the policy of the KDR to rely on the conclusionaiy affidavit of the police officer and, if the licensee presented testimony or evidence at the administrative hearing which might support the licensee’s contention that the refusal to take the test was reasonable, then the hearing officer continued the hearing to a later date and required the arresting officer, and perhaps other witnesses, to appear to rebut the licensee’s position. Such a procedure is not only duplicative but an undue burden upon the taxpaying public, the hearing officer and the licensee. The additional inconvenience and expense to all parties does not justify such a procedure except in unusual or unexpected situations. If the officer’s affidavit contains the necessary factual background to support the three ‘statements of fact’ recognized in Wulfkuhle and if the licensee is advised that such affidavit will be taken as true, federal and state due process of law requirements will be adequately met and the affidavit itself will be sufficient to constitute a prima facie case. The burden of proving those alleged facts false or insufficient will then be upon the licensee and if he intends to offer evidence to that effect he must so advise the KDR in sufficient time for it to subpoena the officer or other witnesses. Such a requirement places no unreasonable burden upon the licensee and gives the KDR the opportunity to de termine whether to call witnesses in support of its position or whether to rely upon the affidavit. Such a procedure should in most cases avoid the added expense and inconvenience to all parties occasioned by a second hearing and will avoid the calling of unnecessary witnesses. Of course, if the licensee requests the presence of the officer, or any other relevant witnesses, subpoenas are required to be issued for them. State v. Wulfkuhle, 234 Kan. 241. In the absence of notice to the KDR that the licensee intends to offer evidence in opposition to the officer’s affidavit, the constitutional right of confrontation may be deemed waived.” (Emphasis added.) 237 Kan. at 175-76.
While numerous revisions to the implied consent law have been made in Kansas following Wulfkuhle and Carson, in both of those cases, unlike the case we now consider, the department refused to subpoena the arresting officer and/or a notary public who could testify on the jurisdictional issue of the “sworn affidavit” requirement. No question exists that the arresting officer and the notary public identified by the licensees were relevant witnesses in those cases. In contrast, under the facts of this case, Cross has not demonstrated that she was denied the opportunity to subpoena any relevant witnesses.
The district court found and the record establishes that Officer Steere was the only officer involved in the detention, arrest, and testing of Cross. Steere testified that he was the only officer to conduct the DUI investigation and the field sobriety tests, and he relied upon no outside evidence other than his own observations and conversations with Cross in determining that he had reasonable grounds to ask her to submit to a breath test. Evidence established that other officers at the scene stayed with the injured person, took witness statements, and completed the accident report. Steere arrested Cross, transported her to the law enforcement center, administered the tests, completed the DC-27, and was the only officer to sign the certification form. Under the current law, the certification of the DC-27 was complete upon signing by the certifying officer. See K.S.A. 8-1002(b).
Cross did not testify or present any evidence to the contraiy at the hearing or before the district court, nor did she submit affidavits from other witnesses as permitted by K.S.A. 8-1020(1). In the request for admissions before the district court, Cross admitted that she told the officer that she had consumed an alcoholic bev erage and that the officer had reasonable grounds to believe she was operating or attempting to operate a vehicle while under the influence of alcohol. This admission alone supports the conclusion that reasonable grounds existed for the officer to ask her to submit to a breath test. While Cross’ counsel told the district court that these admissions were merely framing issues since they were not raising this issue before the district court other than regard to her inability to have a fair hearing at the administrative level; no evidence was presented or proffered to contradict the testimony of Officer Steere.
On appeal, Cross asks this court to speculate that “other relevant witnesses” existed who were denied access to her administrative hearing by the operation of K.S.A. 8-1020(g). Without identifying the witnesses below or proffering their testimony at either the administrative hearing or the trial de novo, Cross provides this court with no means to review her claim other than to simply believe that such witnesses existed. However, an appellate court may not speculate as to what may have existed at the time of the hearing but rather must consider the evidence of record and base its decisions on facts in the record.
In light of Officer Steere’s uncontradicted testimony, Cross’ own admissions, and her mere speculation as to how these other witnesses might testify, Cross has not established that other witnesses were relevant to establish the absence of reasonable grounds to ask her to submit to the test. As the certifying officer, Steere was subject to subpoena under K.S.A. 8-1020(g), and Cross had the opportunity to cross-examine the only officer who made the observations and assessments and administered the breath test.
Based upon the facts of this case, we hold that K.S.A. 8-1020(g), as it applied to Cross, did not deny her due process of law at her administrative hearing. Accordingly, Cross has no standing to make a facial constitutional attack upon the provisions of K.S.A. 8-1020(g). See Thompson, 237 Kan. at 563.
Affirmed.
Gernon, J., not participating.
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The opinion was delivered by
Luckert, J.:
Inmate Johnny Hogue filed a habeas corpus petition challenging discipline imposed in absentia for violations of prison regulations. We granted Hogue’s petition for review of the Court of Appeals’ decision affirming the district court’s summary denial of his petition. On review we consider the issues of: (1) whether Hogue’s procedural due process rights were denied when the disciplinary hearing was conducted without Hogue present; (2) whether Hogue was denied due process when the hearing officer ordered disciplinary segregation for 46 days rather than the 45 days as provided by K.A.R. 44-12-1301(b)(1); and (3) whether Hogue’s due process rights were violated when his appeal was delayed because it was twice lost by the Department of Corrections.
On May 28, 2003, while Johnny Hogue was an inmate at the Hutchinson Correctional Facility, he was charged with violations of K.A.R. 44-12-304 for disobeying orders and K.A.R. 44-12-319 for incitement to riot. Hogue was served with a disciplinary summons and the report on May 30, 2003, but he tore up the documents and flushed them down the toilet. A plea of not guilty was entered on his behalf. On May 31, 2003, Hogue filed a request to have witnesses present at the disciplinary hearing. On June 6,2003, a disciplinary hearing was held without Hogue’s presence. According to the hearing report, the hearing was held in absentia because Hogue had torn up his first copy of the disciplinary report and was “disruptive and uncooperative with the disciplinary process.”
After reviewing the report and hearing testimony from the reporting officer, the disciplinary hearing officer found Hogue guilty of violating K.A.R. 44-12-304 and 44-12-319. The disciplinary hearing officer imposed a sanction of 14 days’ disciplinary segregation, 30 days’ restriction, and a $20 fine for violation of K.A.R. 44-12-304; and 46 days’ disciplinary segregation, 60 days’ restriction, 6 months’ loss of good time, and a $20 fine for violation of K.A.R. 44-12-319. Hogue appealed the guilty findings and the sanctions to the Secretary of Corrections. His appeal was initially misplaced but ultimately located and considered by the Secretary, who, on September 22, 2003, affirmed the hearing officer’s decision after determining it was based on some evidence.
On October 31, 2003, Hogue filed a petition for writ of habeas corpus in the district court pursuant to K.S.A. 2004 Supp. 60-1501. The district court summarily denied Hogue’s petition, and Hogue timely appealed. The Court of Appeals affirmed, ruling that some evidence supported the finding of conduct violations which subjected Hogue to discipline and that Hogue’s constitutional rights were not violated. Hogue v. Bruce, No. 92,050, unpublished opinion filed September 17, 2004.
K.S.A. 60-1503 authorizes the summary dismissal of a habeas corpus petition “[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court.” To avoid summary dismissal the allegations must be of a constitutional stature. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998). In determining if this standard is met, courts must accept the facts alleged by the inmate as true. Foy v. Taylor, 26 Kan. App. 2d 222, 223, 985 P.2d 1172, rev. denied 268 Kan. 886 (1999).
Hogue couches each of his claims as violations of due process. The issue of whether due process has been afforded is a question of law over which we have unlimited review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001).
We first consider Hogue’s claim of a violation of his procedural due process right to be present at his disciplinary hearing. A determination of the validity of this claim requires a two-step analysis. The first inquiiy is whether the State has deprived Hogue of life, liberty, or property. If there has been a deprivation through State action, we must next determine the extent and nature of the process which is due. Amos v. Nelson, 260 Kan. 652, 663-64, 923 P.2d 1014 (1996).
In this case, the disciplinary action clearly implicated a liberty interest by depriving Hogue of 6 months of the good time credit which he had earned as provided for in K.S.A. 2004 Supp. 21-4722(a)(2) (allowing credit “which can be earned by an inmate and subtracted from any sentence”) and K.A.R. 44-6-101 et seq. Pierpoint, 271 Kan. at 627; see Wolff v. McDonnell, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
We next consider the nature and extent of the process which was due. See Amos, 260 Kan. at 663-64. Due process “ ‘is not a technical conception with a fixed content unrelated to time, place, and circumstances.' ” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (quoting Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-63, 95 L. Ed. 817, 71 S. Ct. 624 [1951]). With regard to prison disciplinary proceedings, the United States Supreme Court in Wolff v. McDonnell, 418 U.S. at 553-56, recognized that there must be “mutual accommodation between institutional needs and objectives” and the prisoner s rights. The Court concluded “the full panoply of rights due a defendant in [criminal] proceedings does not apply,” 418 U.S. at 556 and identified the limited rights which do apply in prison disciplinary proceedings. We have previously listed those rights recognized in Wolff as including: “an impartial hearing, a written notice of the charges to enable inmates to prepare a defense, a written statement of the findings by the factfinders as to the evidence and the reasons for the decision, and the opportunity to call witnesses and present documentary evidence.” Pierpoint, 271 Kan. at 627.
Although Wolff did not explicitly refer to an inmate’s right to attend the disciplinary hearing, such a right is implicit in the inmate’s right to call witnesses and present evidence. An inmate’s presence at the disciplinary hearing allows the inmate to observe and participate in the proceedings and provides a check on the authority of the disciplinary body, thus serving the goals of due process identified by the Court in Wolff, which are to ensure fun damental fairness and protect against arbitrary governmental action. Wolff, 418 U.S. at 564; see Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992), cert. denied 507 U.S. 927 (1993); Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir. 1989).
However, as noted by the Court of Appeals panel in this case, the right to be present at the hearing is not absolute and may be limited by the competing concerns of maintaining institutional safety and other correctional goals. See Battle, 970 F.2d at 782 (citing Ponte v. Real, 471 U.S. 491, 497, 85 L. Ed. 2d 553, 105 S. Ct. 2192 [1985]). Kansas law recognizes the wide discretion vested in prison officials who are charged with the control and administration of the state’s penal institutions. For example, K.A.R. 44-13-101(c)(2) expressly gives an inmate the right to be present at a disciplinary hearing but also states that the right is subject to the hmitations and guidelines set out in the regulations and subject to the control of the hearing officer within the parameters of the regulations. K.A.R. 44-13-403(d) provides that “[i]f the inmate is disruptive or refuses to be present, the hearing may proceed in absentia, and the record shall indicate the reason or reasons for the inmate’s absence.”
In this case, the Court of Appeals cited these provisions, recognized the discretion of prison officials in executing internal prison policies, and concluded that “the hearing officer did not allow Hogue to be present at the hearing because Hogue had tom up the copy of the report served on him, was disruptive and uncooperative with the disciplinary process, and planned to be disruptive at the hearing.” Slip op. at 6.
Hogue attached as an exhibit to his petition the “Disposition and Hearing Record” form, which was marked to indicate the hearing was held in absentia because “[i]nmate had tom up the first copy of the report; was very disruptive and uncooperative.” It is also noted on the form: “The above named inmate while being served the first copy of the report tore it up and flushed it down the toilet. Inmate was disruptive and uncooperative with the disciplinary process.” There is nothing on the form to indicate that the hearing officer had evidence that Hogue planned to be disruptive at the hearing. The only evidence cited was Hogue’s actions 7 days before the hearing.
In his petition for review, Hogue argues that the prison officials should not be allowed to reach the conclusion he was disruptive based upon his conduct 7 days before the hearing. He states that while he was initially upset, he then complied with the disciplinaiy process by requesting to have witnesses present.
Our consideration of this argument is guided by the standard of review adopted by the United States Supreme Court in Ponte. The Court held that prison officials are required, when challenged, to justify why they denied a prisoner some aspect of procedural due process. Ponte, 471 U.S. at 497. “[S]o long as the reasons are logically related to preventing undue hazards to ‘institutional safety or correctional goals,’ the explanation should meet the due process requirements as outlined in Wolff.” Ponte, 471 U.S. at 497. In reaching that holding, the Court rejected the position that the burden of proof was on fhe inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. The Court noted:
“Given [the] significant limitations on an inmate’s right to call witnesses, and given our further observation in Wolff that ‘[w]e should not be too ready to exercise oversight and put aside the judgment of prison administrators,’ [citation omitted], it may be that a constitutional challenge to a disciplinary hearing such as respondent’s in this case will rarely, if ever, be successful. But the fact that success may be rare in such actions does not warrant . . . [placing] the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. These reasons are almost by definition not available to the inmate.” Ponte, 471 U.S. at 499.
Thus, the “burden of persuasion as to the existence and sufficiency of such institutional concerns is borne by the prison officials, not by the prisoners.” Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir. 1985); accord Battle, 970 F.2d at 783. This burden may be satisfied “either by making the explanation a part of the ‘administrative record’ in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a ‘liberty’ interest is challenged because of that claimed defect in the hearing.” Ponte, 471 U.S. at 497.
In this case, because the trial court summarily denied Hogue’s petition, we are limited to an examination of the administrative record to determine if prison officials met their burden of persuasion by stating reasons which are logically related to preventing undue hazards to institutional safety or correctional goals.
The reason stated by the hearing officer, that Hogue was disruptive and uncooperative, is, at least facially, logically related to institutional concerns regarding safety. However, simply asserting the existence of an institutional concern is not sufficient. In Ponte, the United States Supreme Court noted that it was necessary to demand an explanation from prison officials because to not do so “would change an admittedly circumscribed right into a privilege conferred in the unreviewable discretion of the disciplinary board.” Ponte, 471 U.S. at 498; see Shepherd v. Davies, 14 Kan. App. 2d 333, 337-38, 789 P.2d 1190 (1990) (trial court improperly dismissed an inmate’s habeas corpus petition without a hearing where prison officials failed to provide a rationale for denying the inmate’s request to call witnesses). The same conclusion applies to a justification which is not factually based. In other words, the justification cannot be arbitrary. Turner v. Caspari, 38 F.3d 388, 391 (8th Cir. 1994). Therefore, there must be a factual basis to support the reasons given by prison officials which satisfies the prison officials’ burden of persuasion as to the sufficiency of the concern.
Although the Court of Appeals mentioned that Hogue planned to be disruptive and, in his pleading, Hogue states he was told that another inmate informed officials that Hogue had such plans, the hearing report does not reflect that the hearing officer had this information or relied upon that evidence. The only evidence in the scant record before us is Hogue’s actions 7 days before the hearing, and that is not evidence that Hogue planned to be or actually was disruptive at the hearing.
Therefore, Hogue’s petition does show that he may be entitled to relief, and a writ should issue pursuant to K.S.A. 60-1503, after which an answer may be filed stating the reasons for the prison officials’ conclusion that Hogue was disruptive. See K.S.A. 60-1505(a); Ponte, 471 U.S. at 499 (in camera review of prison official’s justification permissible if required by “prison security or similar paramount interests”).
Hogue makes two additional arguments which are without merit. First, Hogue claims that his constitutional rights were violated because the sanctions imposed upon him exceeded those allowed by K.A.R. 44-12-1301(b)(1). Under K.A.R. 44-12-1301(b)(1), the penalty for a class I offense includes disciplinary segregation not to exceed 45 days. Hogue was ordered to. serve 46 days of disciplinary segregation for violating K.A.R. 44-12-319, a class I offense; therefore, his punishment was greater than allowed by the regulations.
Again, to avoid summary dismissal, Hogue must allege facts which support a constitutional violation. In Amos, this court held that the discipline imposed must represent “a significant and atypical hardship on the prisoner which was not contemplated within the realm of conditions of the original sentence. If it does not, there is no due process violation. See Davis v. Finney, 21 Kan. App. 2d [547, 558-59, 902 P.2d 498 (1995)].” 260 Kan. at 666.
Although we question the practice of the Department of Corrections in deviating from its regulation without stated reasons, we find that being required to serve one extra day in disciplinary segregation beyond what was authorized by regulation does not constitute a significant and atypical hardship on the prisoner as described in Amos; therefore, we find Hogue’s due process rights were not violated.
Second, Hogue argues that his constitutional rights were violated when the Department of Corrections twice lost his appeal. Under K.A.R. 44-13-703(e)(2), the unit team is required to forward an inmate’s disciplinary appeal to the institution’s disciplinary administrator within 2 days. That did not occur in this case because Hogue’s appeal was misplaced. However, his appeal was ultimately located and considered by the Secretary of Corrections.
In Anderson v. McKune, 23 Kan. App. 2d 803, 811, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997), the Court of Appeals held:
“The mere fact that a hearing officer in a prison discipline case has not followed DOC procedural regulations does not of itself violate fundamental fairness that rises to an unconstitutional level. Without much more, a petition for habeas corpus alleging procedural errors at a prison disciplinary hearing must fail.”
The Court of Appeals panel- in this case relied on Anderson in finding that Hogue had failed to show how he was prejudiced or his constitutional rights violated by the delay caused when the Department of Corrections lost his appeal. Slip op. at 8. We agree with the Court of Appeals on this point and find that Hogue’s rights were not violated.
Accordingly, no further proceedings are warranted on the issues regarding the additional day of disciplinary segregation and the failure to follow the procedure for appeal. These claims were appropriately dismissed summarily, and we affirm the district court and Court of Appeals on these issues. However, on the issue of whether Hogue’s due process rights were violated by conducting the disciplinary hearing in absentia, we reverse and remand with directions that the district court grant Hogue’s petition and conduct additional proceedings to determine whether Hogue’s due process rights were violated when the disciplinary hearing was conducted in absentia.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.
Lockett, J., Retired, assigned. | [
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By the Court,
Kingman, J.
The defendant in error brought suit on a note given to her, alleging that she was a married woman, and that the note was her sole, individual, and separate property. The defendant sets up in his answer as a defense, that the note is the property of Isaac Brown, the husband, and not of the plaintiff, and that he has paid the note on a judgment against him as garnishee in favor of a creditor of Isaae "W. Brown.
The defendant in error could only have brought her suit as a married woman in her own name upon the grounds that the note was her sole property. This fact she averred in her petition, and the defendant denied in his answer, and offered to prove that the note was not the property of the plaintiff. This the Court refused to permit him to do. This was error. If the plaintiff in error had established the fact that the defendant in error was not the owner of the note she sued on, that was an end to the controversy, so far as that suit was concerned.
"We do not deem it necessary to examine the other questions as to testimony offered aiid rejected,-as they may not arise again in the case.
Eor the error above stated the judgment is reversed and the cause remanded for further proceedings. | [
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By the Court,
Crozier, C. J.
The only question in this case, is: Was the District Court for Leavenworth County legally authorized to lender, as it attempted to do, the judgment against Welton, in the case of Jacobs v. Welton?
The record shows that Welton was a non-resident, but it no where appears that he was personally served with process, or that he ever appeared to answer in this action. Nor does it appear, either from the affidavit for the attachment, the affidavit for the publication or the return of the sheriff, that he had a particle of property within the jurisdiction of the Court. The sheriff in his return shows that he executed the order of attachment by seizing the steamer “ White Cloud,” but he does not inform us whose property it was, or whether Welton had any interest in it whatever. Under this state of fact, however technically correct may have been the publication, could the Court render a valid judgment ?
Section 78 of the Code provides that service may be' made by publication when an action is brought against a non-resident of the State, (then Territory) having in this State, , (then Territory) property or debts owing to him, sought to be taken by any of the provisional remedies, or to be appropriated in any way. An attachment is a “provisional remedy.’* Under Section 199, a creditor may obtain the writ against the property of his debtor by showing that he, the debtor, is a non-resident. Section 202 provides that it shall require the sheriff to attach the property of the defendant within his county. Section 206 says, the officer “ shall go to the place where the defendant’s property may be found, and declare that by virtue of said order he attaches said property at the suit of the plaintiff;” and Section 213 requires the sheriff to “ return upon every order of attachment what he has done under it.” That is, he must show that he has attached the property of the defendant, not the property of A. B. or C. D., but of the defendant. The plaintiff in an attachment obtained upon the non-residency of the defendant can make service by publication only when he seeks to subject the property of the defendant to the payment of his claim; and the fact that he is seeking to subject property of the defendant within the jurisdiction of the Court issuing the process, must affirmatively appear. (Pelton v. Platner, 13 Ohio Rep., 209.) In a case where the defendant does not appear the record must show a legal service, or the judgment will be void, and the rule' is the same whether the service relied upon was personal or constructive.
The Court below decided that the judgment against Welton was absolutely void, and refused to let the record thereof be read in evidence. We think that decision was right upon whatever ground it may have been placed. The record does not show that Welton ever had an atom of property within the then Territory, or that he had a farthing’s worth of interest in the thing attached.
The judgment will be affirmed.
All the justices concurring. | [
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By the Court,
Bailey, J.
The record in this case presents the same question in law and substantially the same state of facts as the case of Charles Robinson v. Lois Kinney, and the same order will be made as in that case.
Kingman J., concurring:
Cobb C. J., having been counsel in the Court below, did not sit in the case. | [
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By the Court,
Croziek, C. J.
In October 1858, George bought of Hatton a tract of land in Donophan County and executed the note sued upon for the purchase money, at the same time taking from Hat-ton a bond for a conveyance upon payment of the note. On April Y, 1860, eighty-one dollars of the note and some interest being unpaid, Hatton having tendered a deed, brought suit in the District Court for Donophan County to recover a judgment for the money, and to subject the land to its payment, setting out substantially the foregoing facts. George filed a demurrer, assigning as the ground thereof, that the petition did not state facts sufficient to constitute a cause of action. At the May term, 1860, judgment was rendered against George, and an order made for the sale of the lands, but misdescribing them. At the «ame term and on the same day, another entry was made, showing that the demurrer was “ stricken out ” before the judgment above described was' rendered. At the October term, of the same year, the journal entry of the judgment was, on motion of the plaintiff corrected, nunc pro tunc, so as to properly describe the land. On the 16th of August 1862, Hatton filed a motion to vacate the judgment, 1st, because the deed tendered was .insufficient. 2d. The judgment was irregularly obtained. 3d. The judgment was for relief, differing from that endorsed upon the summons. 4th. Because the judgment was rendered without disposing of the demurrer, and 5th, the service of the summons was defective. This motion was overruled, and the defendant excepted.
The petition in error is filed here to reverse the judgment on two grounds, to-wit: The Court erred in striking out the demurrer, and also erred in overruling the motion to vacate.
The whole record shows that the demurrer was “ stricken out ” before the judgment was rendered, but why it was “stricken out” and not overruled, we are not advised. Nor is it material which way it was disposed of, or whether it was disposed of at all. If the party interposing it did not call it up, it might have been disregarded wholly, and yet no error appear on the record. And in addition to this, there was no exception to the action of the Court in striking it out.
This objection is not well taken.
It is said that the Court erred in overruling the motion to vacate the judgment. Let us examine the grounds of this motion: “1st. The deed tendered was insufficient.” The record don’t show what the deed was; and if it did, this objection might have been a good defense upon the trial had it been set up in an answer, but would not be a good ground for vacating the judgment which was rendered upon default of answer, and under an allegation of the petition that a good and sufficient deed was tendered.
“2d. The judgment was irregularly obtained.” This is very indefinite, so much so that we can not determine what it refers to. No irregularities are pointed out, and there are none so glaring as to attract our attention. So that the plaintiff will practically lose the benefit of this objection.
“ 3d. The judgment was for relief different from that endorsed upon the summons.” This was not an action for the “ recovery of money only,” and hence there need not have been an endorsement upon the summons. Rut in point of fact it was endorsed with the amount the plaintiff below expected to recover, and the time and rate of inter? est; and the judgment does not exceed that amount. We see no error here.
“ 4th. The judgment was rendered without disposing of the demurrer.” This is not sustained by the record. That shows that the demurrer was in fact, disposed of before the judgment was rendered, but an entry to that effect had not been made upon the journal. During the same day, an entry showing that fact was made, and the Court had a perfect right to make its minutes speak the truth. -
" “ 5th. The service of the summons was defective.” After the defendant appears and files a pleading, it is rather late to object to the service. If a party appears it is no matter whether there was any attempt at service.
Added to all this, the motion was not made until nearly two years after the judgment was rendered; three or four terms of the Court intervening. None of the grounds assigned in the motion are such as would authorize the Court to vacate the judgment upon motion after lapse of two years. And moreover, there was no showing of a valid defense to the action, or indeed, a defense of any kind.
Not being able to agree with the plaintiff that the acts of the Court below of which he complains - in his petition', in error, were erroneous, we are compelled to affirm the judgment.
All the justices concurring. | [
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By the Omrt,
Cobb, C. J.
This is a motion for a mandamus- to compel the defendants to levy with the taxes of 1863, an additional sum of §21,131.24 of unpaid Territorial taxes under the “ Act to require certain counties to levy, collect and pay over delinquent Territorial taxes. Chap. 63, Lames of 1863. The motion is founded! upon a sworn petition of the Attorney General, alleging “ that heretofore, to-wit, July 1st, 1863, there was due from Leavenworth County in said State, to said State of Kansas, the sum of twenty-one thousand one hundred and thirty-one dollars twenty-four cents, the same being the amount of Territorial tax due from said county, as it appears from the records of the Territorial and State Auditor’s books, under the provision of the various laws to provide for revenue, enacted since January A. D. 1858, by the Governor and Legislative Assembly of the Territory of Kansas, by reason of the said county having failed and neglected to levy and collect the same according to law.” The petition also alleges the giving by the Auditor to the Clerk of said county, and by him to the defendants the notice required by said Act, and that they “ have failed and refused to levy along with the other taxes for the year A. L>. 1863, a tax for the payment of the said sum or any portion thereof, or to issue the bonds of said county of equal amount thereto, “ and prays for a writ of mandamus to compel the levy of such tax, &e.”
Section 1st of the Act of Eeb. 26, 1863, under which this proceeding is instituted, is as follows :
“ That the Auditor of State is hereby authorised and requested to give notice on or before -the first day of July 1863, to the County Clerks of such counties as have failed or neglected to levy according to law the amount of Territorial tax due from them, as it appears from the records of the Territorial and State Auditor’s books, under the provisions of the various laws to provide for revenue enacted since January 1st, A. I). 1858, such notice to set forth the amount of tax due from the county to which it is sent under the provisions of the Act aforesaid.”
Section 2d, provides that the several Hoards of the County Commissioners of the counties to which said notice shall be sent, shall levy and collect along with the other taxes for the year 1863, the amount specified in the Auditor’s notice aforesaid, and shall pay the same into the State Treasury.
It is claimed by tbe defendants counsel who appeared and opposed the motion, that the Act in question is void for non-conformity to Sect. 4, of Art. 11 of the Constitution of the State, which reads as follows :
“No tax shall be levied except in pursuance of a law which shall distinctly state the object of the same, to which object only such tax shad be applied.”
No such statement is found in the act we are considering. But it is claimed by the relator that the law being for the purpose of collecting unpaid taxes due from the several delinquent counties to the State, no such provision is necessary, it being not the levy of a new tax but the collection of one already laid. There is force in the argument if its premises are correct. But are such taxes due from the counties ?
State or Territorial taxes are imposed by law not upon counties but upon the people of the State or Territory, and the individuals upon whose property the tax is imposed or who are personally required to pay it, are alone debtors for such tax. Nor have the counties ever until the passage of Chapter 60 of the Laws of 1863, been charged with the responsibility of collecting or in any manner made liable for such taxes.
The first Section of Chapter 28 of the Laws of 1860, page 409, Com. Laws, defines the corporate powers of counties, as follows:
“ That each organized county within this Territory shall be a body politic and corporate, and as such shall be empowered for the following purposes. First, to sue and be sued. Second, to purchase and hold real estate to the use of the county and lands sold for taxes as provided by law. Third; to sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants. Fourth, to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers. Fifth, to exercise such other and further powers as may be especially conferred by law.”
This law of the Territory is adopted by the constitution and in full force under the State Government. The powers conferred carry with them their corresponding obligations, but it is impossible to infer from it or from any other law in force before the passage of the Act of 1863, Chap. 60, above referred to, any responsibility of the county to the Territory or State, for Territorial or State taxes due from the people within its limits.
No obligation was imposed upon counties by the Statute for such taxes, nor any power given them to assume such responsibility. It is true the law imposes important duties upon county officers in the collection of such taxes, but their duties are imposed upon the several officers and not upon the county. They are performed not for the benefit of the county but of the State, and the State having the sole right to the benefit of such duties, has alone an ample remedy to coerce their performance by mandamus. Laches in the non-collection of such taxes is therefore imputable not to the county but to the State. And no ground is perceived for holding such unpaid tax to be due from the comity.
Does the Act in question provide for collecting the old tax, or does it levy a new one upon the residents of and persons having property within such counties ?
If it provides for collecting the old tax imposed by the law of 1860, the persons to pay that tax and the amount to be paid by each must be the same as they would have been by the provisions of that law. By the law of 1860, a tax of three mills upon the dollar was imposed upon the taxable property of the State according to the assessment of that year, and fifty cents upon every white male person between the ages of twenty-one and fifty years, while the-Act of 1863, imposes the aggregate of the uncollected tax upon tlie property taxable within such counties according to the assessment of the year 1863. These changes must vary essentially the amount imposed upon different parcels of real estate, and impose a tax for personal property upon many not liable to tax under the law of 1860. Most clearly then the Act in question attempts not the collection merely but the levying of a tax within the meaning of the constitutional provision cited. '
Section 1 of Article 11 of the Constitution, provides that “the Leislature.shall provide for a uniform and equal rate of assessment and taxation,” and this clause most clearly implies that taxes shall be levied only according to such uniform and equal rate. To comply with this provision, that taxes must be assessed uniformly upon the property of all parts of the State, and, while it may be quite consistent with justice and with this constitutional provision that persons owing taxes imposed by the law of 1860, should be compelled to pay them; to collect such taxes of others because they now reside or have property within the same county, unless the whole State is subjected to the same burthen, seems manifestly consistent with neither.
Reluctant as we are to differ with the legislative branch of the Government, we are compelled to conclude that the Act of 1863, in question, is inconsistent with the provisions of the constitution above cited, and therefore void, and the application for a mandamus must therefore be denied. Motion denied.
All the justices concurring. | [
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By the Court,
Baiuey, J.
At the spring term, A. D. 1863, of the District Court for Chase County, the appellant, John S. Wise, was indicted for the murder of Bobert Bailie on the 4-th day of July, A. D. 1862, in the County of Marion, which is attached to Chase for judicial purposes. At the same term the case was transferred to the County of Lyon for trial.
At the October term, A. D. 1863, of the District Court for the County of Lyon, Wise was tried and convicted of murder in the second degree, and sentenced to ten years confinement to hard labor.
The exceptions taken to the rulings of the Court on the trial will be considered in the same order in which they appear upon the record.
The first exception taken is to the ruling of the Court below that Anna Bailie, the wife of the deceased, who was made a witness for the defense, should not answer the question put to her by defendant’s counsel, to-wit: “If you know, state to the jury the comparative strength of the deceased and John S. Wise?”
How far the mere opinion or belief of Mrs. Bailie, as to the comparative strength of Wise and her husband would have been evidence for the jury, it is not necessary for us to determine, though wo incline strongly to the belief that the fact's she had previously stated in detail to the jury, of what occurred at the time of the homicide—the grapple, thé struggle upon the ground, Bailie uppermost with the knife in his hand which he had wrenched'from Wise—were more legitimate and satisfactory evidence'as to which was the stronger, than any answer she would have given in response to the demand of the counsel if the Court had permitted the answer to be given. However this may be, we are unanimously of the opinion that the subsequent admission by the counsel for the State that the deceased was a much stronger man than Wise, as a fact proved, remove all grounds of objection on this point. Itadmitted, as proved, all that ?the most favorable answer which could have been given by the witness would have proved. This last conclusion seems to be well sustained by authority. 7 Gray, 92 ; Stephens v. the People, 19 N. Y., 549 ; 1 Grant's cases, (Penn.) 329.
The second exception was to the ruling of the Court refusing to permit Mrs. Bailie to answer the following question, to-wit: “ If you know, state to the jury the character and temper of the deceased, Robert Bailie, when angry and excited, and whether or not he'was at such times a dangerous or desperate man ?”
The general rule on this subject is thus stated by Wharton : “ On the trial of an indictment for homicide, evidence to prove that the deceased was well known and understood generally by the accused and others to be a quarrelsome and savage man is inadmissible.” * * * * “ The rule undoubtedly is, the character of the deceased can never be made a matter of controversy, except when involved in the res gestae.” Amer. Grim Law, See. 641.
In a late case in Massachusetts the defendant offered to prove that the general character and habits of the deceased were those of a quarrelsome, fighting, vindictive and brutal man of great strength, as a circumstance tending to show the nature of the provocation under which the defendant acted, and that he had reasonable cause to fear great bodily harm.” Objection being made, the Court held (Shaw, O. J. and Bigelow and Metcalf, J. J.,) that, “ The evidence was inadmissible. If such evidence were admitted on behalf of the prisoner it would be competent for the commonwealth to show that the deceased was of a mild and peaceable character. SugIi evidence is too remote and uncertain to_ have any legitimate bearing on the question at issue. The provocation under which the defendant aeted must be judged of by the res gestae. And the evidence 'must be confined to the facts and circumstances attending the assault by the. deceased upon the defendant.” (Com. v. Hilliard, 2 Gray, 294.) So in California in a- case of indictment for murder, the Court held the following language:
“ The other point made is the exclusion of evidence of the chai’acter of the deceased for turbulence, recklessness and violence. The rule is well settled that the reputation of the deceased cannot be given in evidence, unless at the least the circumstances of the case raise a doubt in regard to the question whether the prisoner acted in self-defense. It is no excuse for a murder that the person murdered was a bad man, but it has been held that the reputation of the deceased may sometimes be given in proof to show that the defendant was justified in believing himself in danger, where the circumstances of the contest are equivocal. But the record must show this state of case. This does not.” The People v. Murry, 10 Cal., 309.
The evidence in the case at bar shows the parties to have been -some eight or nine paces apart at the time of the shooting,—Wise with a loaded double-barreled shot-gun in his hand and Bailie with his knife, and that Bailie had stopped before Wise shot him. Under such circumstances, we think Wise could hardly be,justified in considering himself in danger,- having so much the advantage in point of arms. _ . ....
However this may be the whole circumstances as they were detailed in proof upon the trial, and as they appear before us in. the bill of exceptions, are sufficient, in our judgment,' to show the character of the deceased so far as it was necessary or proper to show it on the defense, and as the defendant could not haye been prejudiced by the ruling, this Court will not disturb the verdict.
The third exception is to the refusal of the judge who tried the cause, to charge the jury. “ That the defendant is entitled to the benefit of every reasonable doubt upon every material fact involved in the case.” Which charge the Court refused to give as asked for, but charged the jury’ as follows ; “ That the defendant is entitled to the benefit of every reasonable doubt of his guilt remaining in the. minds of the’jury after canvassing the whole of the testimony in the case.”
We think the law on this point is correctly stated by the Court, and that the exception was not well taken.
The fourth objection is that the indictment is bad: “ 1st. because it does not appear from it that it was found by a grand jury of the County of Chase.”
The language of the indictment itself, - is as follows:
“ State of Kansas, Chase County, ss :
“ In the District Court of the Fifth Judicial District, sitting in Chase County, April Term, A. D. 1863.
“ The jurors of the grand jury of the State of Kansas duly drawn, empanneled, charged and sworn to inquire of offenses committed within the body of the County of Chase, and within the County of Marion, attached to said County of Chase for judicial purposes,” &c.
“ Section 95 of the Code of Criminal Procedure, provides that, “ The indictment is sufficient if it can1 be understood therefrom, first, that the indictment was found by the grand jury of the county in which the Court is held.”
We think the indictment in this case fully answers this requirement of the statute. Felonies áre offenses against the peace and dignity of the State, and are prosecuted and punished by the State. The prosecution is instituted in its name by a grand jury organized in each county in pursuance of the laws of the State, to inquire in its behalf as to infractions of its laws in such county.
2d. “The indictment is bad for uncertainty as to the number, location and character of the wounds, and because it states an impossibility in charging in the second count, that Bailie received c one mortal wound ’ on the mouth and the left side, and upon the throat and near the heart.”
Upon examination of the indictment it is very apparent that there has been an omission of the word “ wounds,” and that the omission being supplied.that part of the indictment excepted to would read as íollows:
“ Which said shot so discharged by force of the said gunpowder, did him the said Robert Bailie, strike and penetrate, giving to him the said Robert Bailie then and there with the shot aforesaid, several (wounds) in and upon the mouth and the left side, and upon the throat and near the heart of him the said Robert Bailie one mortal wound, of which said mortal wound the said Robert Bailie did die.” Had such been the reading it is evident that no exception could have been taken, and if we treat as surplussage the words “ several —— in and upon the mouth and the left side, and,” there still remains a distinct charge of giving to liim the said Robert; Bailie then and there with the shot aforesaid, * * * upon the throat and near the heart of him the said Robert Bailie one mortal wound, of which mortal wound the said Robert Ba'lio did die.”
This is certain and explicit, and the words proposed to be omitted do not vitiate nor impair their force.
Section 95 Code of Criminal Procedure provides that the indictment is sufficient if it can be understood therefrom, -z- -z- * “Fifth. That the offense charged is stated with such a degree of certainty, that the Court may pronounce judgment upon conviction according to the right of the case;” and Sec. 96 of the same act, that “no indictment may be quashed or set aside. * *’ * Sixth. For any surplus-sage or repugnant allegation when ■ there is sufficient matter alleged to indicate the crime and person charged. Nor, Seventh. Eor any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
In view of these statute provisions we must hold the indictment good beyond question.
Judgment affirmed.
Ceoziek, C. J., and Kingman, J., concurring. | [
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By the Court,
Crozier, C. J.
The only question necessary to be decided in this case is as to the priority of the liens of the mortgage and judgment. It is insisted by the judgment creditors that because there was no mortgage describing the lands they seek to subject under their judgment upon the records of the County, nor had they any notice of such mortgage, nor was there in fact any such mortgage in existence, their judgment became the first lien upon the lands from the date of its rendition; that they had no notice of the existence of any incumbrance upon the land when their judgment was rendered; that a correction of the description of the land in the mortgage by the Court subsequently to that time, could not deprive them of their prior lien, because they had no notice of the mistake.
If the judgment creditors, without notice of the defect in the plaintiffs mortgage, had become the purchasers of the land, or had taken a mortgage thereon to secure their debt, there would not be much question but that their title in the one case and their lien in the other, would not bo prejudiced by a subsequent reformation of the plaintiffs mortgage. They would then be “ purchasers for a valuable consideration without notice,” within the meaning of Section 13 of the Act regulating couveyances. Gomyp. Lems,p. 855.
But that section does not extend the benefits of a want of notice to judgment lien-holders. They are not “ purchasers.” Their lien is upon the “ lands and tenements of the debtor,” and not upon lands and tenements not in fact belonging to him. Code, Bee. 433.
In this case the lands in question, for the purpose of securing the payment of the plaintiffs debt, were, in equity, the plaintiff’s lands. The District Court in their judgment so find, and as that Court had the legal power so to find, we are bound to presume they had sufficient evidence upon which to make that finding; and it can make no difference to these judgment creditors how that finding was made, or that the facts upon which it was predicated came to their knowledge after the date of their judgment. They have nothing to do 'with the question of notice. The recording act does not apply to them. The only question they had anything to do with was, whether the land had been pledged to the plaintiff. If it had been so pledged, in fact before the rendition of their judgment, it was wholly immaterial to the judgment creditors whether they had any notice whatever of the fact. Gouvernuer v. Titus, 6 Paige's Ch. Rep. 347. The District Court found they were so pledged, and we are not asked to disturb that finding.
Several cases from the reports of the Supreme Court of Ohio were cited by the counsel for the judgment creditors to establish the position, that because there was no mortgage upon the records whereby, upon its face, these lands were pledged to the plaintiffs, their judgment was a prior lien. We do not think any of those cases in point under the Ohio Statute, as construed by the Supreme Court of that State. No mortgage was of any validity whatever, except between the parties to it, unless recorded. As to third parties, including purchasers, encumbrance and judgment lien-holders, whether they had actual notice of its existence or not, unless recorded, it was wholly void. Our Statute is different in this respect. A mortgage here is good against every body who has notice of its existence, whether recorded or not recorded, hence the iuapplieability of the Ohio authorities.
We think, therefore, that the lien of the mortgage is prior to that of the judgment, and that the District Court erred in directing the judgment to be first satisfied out of the proceeds of the sale of the land. The judgment of that Court is in this respect reversed at the costs of the defendants, Bryan & Hardcastle, and in all other respects approved, and the cause will be remanded to that Court, and the Court directed to render judgment declaring the lien of the mortgage prior to the lien of the judgment, and ordering the amount found due the plaintiff to be first paid out of the proceeds of the sale of the land.
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By the Court,
Crozikr, O. J.
Two questions are presented by tho record: First, Which law, the twentieth section of the code, or the second section of the “ amendatory act,” prescribes tho limitation ; and Second, When an action upon a promissory note, secured by a mortgage on real estate, is barred by the statute of limitations, has the mortgagee any remedy upon the mortgage ? These are the facts: On the sixth day of April, 1858, at Kansas City, in the State of Missouri, the defendant executed to the plaintiffs his promissory note, payable one day after date. Afterwards, and on tho 12th day of August of that year, the defendant, to secure the payment of the note, executed, in this State, a mortgage upon some lots in Topeka, which mortgage contained a stipulation that if default was made in the payment of the note for two years from the date of the mortgage, that instrument might be foreclosed, &c. On August 13,1863, a suit was instituted upon the note and mortgage, and the facts, as above stated, being admitted, judgment was rendered for the defendant. To reverse that judgment this proceeding is instituted.
The note having been made in Missouri, would, under the act of February 10, 1859, have been barred in two years from the passage of that act, if there were nothing else to be considered. By a stipulation in the mortgage, the time of payment was deferred two years from Aiigust 12, 1858.
The mortgage having been made in this State, was the arrangement, with reference to our statute of limitations, a Kansas or Missouri contract ? Although no change was made upon the face of the note, yet the'danse of the mortgage referred to was effective to change its terms as if written across its face. The time of its payment, with reference to the land, was extended two years. Its payment, as against the land, could not be enforced before that time; nor would the limitation laws begin to run against it until the expiration of that time. These changes in the original contract were effected by the paper which was executed in this State. The contract evidenced by the mortgage is essentially different from that set out in the note, and must control it. Therefore, the contract, as it stood, after the making of the mortgage, was a Kansas contract, and would not be barred in two years.
The statutes of limitation of this State are wholly unlike the English statute, and differ materially from the limitation laws of those States which -have adhered to the common law forms of action and modes of procedure. Those statutes apply, in terms, to the form of the action at law, and contain no provisions concerning an equitable proceeding. If a party had concurrent remedies, one at law, the other in equity, courts of equity applied the limitation prescribed for the action at law. But in all other cases, they were said to act merely in analogy to the statutes, and not in obedience to them,
In this State, the case is entirely different. The distinction between actions at law and suits in equity is abolished; and the statutes of limitation apply equally to both classes of cases. They were made to apply to the subject matter, and not to the form of the action. - In England and the States referred to, a limitation different from that prescribed for simple contracts in writing, was prescribed for specialties. Here, “ an action upon a specialty, or any agreement, contract or promise in writing,” must be brought within three years; and it matters not what the relief demanded may be, whether such as could formerly be obtained only in a court of law, or such as might have been afforded by a court of equity exclusively.
Mortgages here differ essentially from mortgages at common law, and in the States referred to. At common law, a mortgage was a conveyance with a defeasance, and gave the mortgagee a present right of possession. Upon it, even before the conditions were broken, he might enter peaceably or bring ejectment. If the condition was broken, the conveyance became absolute. If the money was paid when due, the estate revested to the mortgagor; if not so paid, the estate was gone from him forever. After a time, the law of mortgage was so modified that the legal title was not considered as having passed until the condition was broken. At a later day, another still more important innovation was made. While it was considered that, upon condition broken, the mortgagee became invested with the legal title, and was entitled to possession, yet, in that condition of things, his title was subject to a defeasance. The rents and profits operated as cancellation, pro tanto, of his conveyance; and when they reached a sum sufficient to reimburse his original investment, with such use as the law allowed, the legal title reverted to the mortgagor, and he woxild be entitled to the possession; and he had a right to facilitate this operation by payment of the money,' and upon application to a court of equity,. his title would be disencumbered of the cloud the mortgage cast upon it. This right of the mortgagor was called “ the equity of redemption,” and, considering the then prevalent theory of mortgages, the phrase was peculiarly appropriate and expressive. The title had passed, but he had a right to redeem; and it is among the highest glories of equitable jurisprudence, that at so early a day the means of enforcing thiB right were supplied. Some of the States still adhere to the common law view, more or less modified by the real nature of the transaction; but in most of them, practically, all that remains of the old theories is their nomenclature. In this State, a clear sweep has been made by statute. The common law attributes of mortgages have been wholly set aside; the ancient theories have been demolished; and if we could consign to oblivion the terms and phrases—without meaning except in reference to those theories—with which our reflections are still embarrassed, the legal profession on the bench and at the bar would more readily understand and fully realize the new condition of things. The statute gives the mortgagor the right to the possession, even after the money is due, and confines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises; thus negativing any idea of title in the mortgagee. It is a mere security, although in the form of a conditional conveyance; creating a lien upon the property, but vesting no estate whatever, either before or after condition broken. It gives no right of possession, and does not limit the mortgagor’s right to control it—except that the security shall not be impaired. Ho may sell it, and the title will pass by his conveyance—subject, of course, to the lien of the mortgagee.
If we are right in these views as to our statute of limitations, and the operation of a mortgage under our law, the English cases and cases in New'York and Ohio, cited by counsel for plaintiffs, have no application to the case at bar. Tlie statutes of limitation under wbicli they were made, maleo distinctions between notes and mortgages which do not exist here; and the operations of notes and mortgages there and here are totally different. The decisions are not authorities in this case, for the reason that they are not applicable, and cannot be made so. If our limitation law omitted mortgages, and our law of conveyances gave the right of possession to the mortgagee, some of them would be in point; hut as neither of these conditions exist here, they throw no light ujion tho questions under consideration in tlie case at bar.
Our conclusions arc, that the twentieth section of the code prescribes the limitation to an action on tlie note or mortgage, and as the three years expired on the 12th day of August, 1863, a suit commenced on tho 13th was too late.
Judgment affirmed.
All the Justices concurring. | [
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By the Court,
Croziek, C. J.
On tbe fifth dáy of May, A. D. 1853, Hefferlin, tbe plaintiff in error, at Weston, in tbe State of Missouri, made bis promissory note, payable to defendants in error in one day after date. On tbe first day of August, 1859, a suit was brought on this note in tbe District Court of tbe then Territory of Kansas, sitting in Leavenworth County, and a judgment was, on tbe 13th of December of tbe same year, rendered against Hefferlin. Upon this judgment an execution was, on tbe 31st of July, 1860, issued to tbe sheriff of Leavenworth County, who levied upon a quarter section of land as tbe property of Hefferlin, and having bad tbe same appraised at $1,500,- sold it to defendant, Sinsinderfer, for $116; which sale was, by an order of tbe Court, at December Ternq 1860, confirmed, and the sheriff ordered to execute á deed for the lands to tbe purchaser. Tbe plaintiff in error now seeks to have this order reversed, for several reasons, among which is: that tbe land was sold for less than two-thirds of its appraised value; or, in other words, was sold without appraisement.
Tbe position taken by tbe Court below was, that inasmuch as tbe contract upon which tbe judgment was rendered bad b'een executed before tbe passage in this State of any law requiring an appraisement of real estate upon a sale under execution, tbe law, as announced by tbe Supreme Court of tbe United States, did not require or authorize an appraisement; referring to tbe cases of Bronson v. Kinzie, 1 Howard’s Rep., 311, and McCracken v. Haywood, 2 do., 608.
The case at bar differs from those cases in á very important particular. In each of those cases tbe contract bad been made in- the State of Illinois, the Jaw, at tb§ time of their execution, not requiring an appraisement; and. upon an attempt to enforce them in that State, the Supreme Court of the United States held, that to require property sold to satisfy judgments rendered thereon, to bring two-thirds of an appraised valtie, would operate to impair the obligation of the contracts.
. That conclusion was arrived at upon the theory that the law in force at the time the contract was.made, became a part of it, and could not be changed to the prejudice of the party seeking to enforce it.
But in this case the, contract was not made, in Kansas. It was made before there was a State of Kansas, or even a Territory of Kansas. ■ It was made in Missouri, It could not be said that the law of Kansas became a part of the contract. There was no Kansas law- to become a part of it; and if there had been any local law here, this contract, having been made in Missouri, could not be said to have been made with reference to ■ it, The law of Missouri, only, became a part of it; and then only so far as to determine its construction when its enforcement was sought in another State. Each State may prescribe what property of its citizens may be subjected to sale under the process of its Courts; and may prescribe, and from time to time change, the manner of the sale, subject only to the limitation that the obligation of a contract shall not there-' by be impaired;- and when a contract executed under another jurisdiction is brought here for enforcement, the law here, for the time being, governs the remedy. Any change in the law regulating the remedy here, cannot affect the obligation of such a contract, because the law of the remedy here forms no part of the contract. Any change in the law of the former does not change any ingredient or stipulation of the contract. The lex loci contractus at the time the contract was made, determines what the contract was; the lex fori at the time the enforcement is sought, prescribes the remedy. -
Tlie plaintiffs in tlie Court below were tlie bepeficiaries .of a contract executed in Missouri. The laws of that State furnish the rules of construction, and had a suit been brought on it there, the law of the remedy at the time of its execution, if it had been subsequently changed to their prejudice, might have been invoked to aid in its enforcement. But upon going to another jurisdiction in pursuit of their remedy, they cannot complain if the law of the remedy, at that place, is less efficient when this suit is brought than where the contract was made. They contracted wholly without regard to that law; no part of it entered into the contract, and the obligation thereof is in no sense impaired by a change in that law,
The order of the Distrjpf Courf confirming the sale apd ordering a deed, is vacated, and the Court directed to set aside the sale that was made; leavipg the plaintiff below to pursue his remedy as if no sale had beep made.
All the Justices concurring. | [
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By the Court,
Kingman, J.
A court for the trial of contested county elections was organized under Sec. 13, Chap. 89 of the Compiled Laws, to try a contested election case in Osage County, between Joseph McDonald, incumbent, and O. H. Sheldon, contestant for the office of treasurer of Osage County. Such proceedings were had as resulted in a determination by that tribunal in favor of Sheldon, and he was declared duly elected to the office of county treasurer of Osage County.
During tbe progress of the trial various rulings were made against the relator in this case, to which he excepted, and at the close of the trial presented his bill of exceptions and asked that it be signed and made a part of the record. The Court refused to sign the bill tendered, and refused to sign any bill. This is an application by the State on the relation of Joseph McDonald, incumbent in that case, for a mandamus to compel the board to sign a bill of exceptions as of the date of the sitting of the Court, and make the same a part of the record.
If it was the duty of the tribunal to sign such a bill of exceptions, then the writ will be granted, and the duty will depend upon whether there is in the law any power to revise the action of the tribunal.
That there is a power to revise seems too apparent from Section 523 of the Code of Civil Procedure, wherein it is provided that a judgment rendered or final order made by a justice of the peace'or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the District Court, may be reversed, vacated or modified by the District Court. This case comes plainly and obviously within the provisions of this section.
The law under which the tribunal met, calls it a Court. Its acts are of a judicial character, not ministerial, like those of a board of canvassers. It pronounces a judgment affecting the rights of parties. It gives judgment for costs and must therefore be held a tribunal exercising judicial functions, and its acts subject to revision.
An alternative writ of mandamus is awarded.
All the justices concurring.
Note By the Reporter.—Upon the filing of an answer to the alternative writ in this ease, it was objected to by the counsel for the relator as an insufficient answer to the allegations of the writ. Respondents insisted'that the writ itself was insufficient, and the Court held that the writ wasvbad, and permitted an amendment upon payment of costs. The answer to the amended writ was held insufficient and a peremptory writ awarded. Upon a return of a full compliance with the command of the writ by respondents, the counsel for relator proposed to show by proof that the bill of exceptions sign»d was not true. The Court declined to hear the proof. | [
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By the Court,
Bailey J.
Qn the 21th day of March A. D. 1859, the defendant in error commenced suit in the Third District Court for Wyandotte County, K. T., against the Quindaro Town Co., consisting as she averred, of Charles Robinson, Abelard Guthrie, and Samuel N. Simpson, to recover the amount due her on a promissory note set. out in her petition, as follows, viz:
<{ Quindaro, Kansas, June 11th, 1858.
On the. first day of November next, for value received we promise to pay Mrs. Lois Kinney or bearer, three hundred dollars with interest at the rate of three per cent, per month.
For the Quindaro Town Company, by Webb & Chapin, their. Agents. Charles H. Chapin, Surety.
Otis Webb, Surety.
S. N. -Simpson, Surety.”
There was an endorsement of twenty dollars paid by Simpson Nov. 25th, 1858, and judgment was claimed for $280, with interest at three per cent, per month from date of note.
On the 6th of June 1859, she recovered judgment against Guthrie, Simpson, Chapin and Webb, for $393.25, but the summons not having been served upon RobinsOn no judgment was rendered against him.
On .the 1th September 1861, the plaintiff in that action, defendant in error here, filed her petition in the Clerk’sOffice of the District Court for Wyandotte County, briefly setting out tlio facts of the former judgment, and praying that Robinson might be- made a party to said judgment.
On this petition summons was issued to the Sheriff of Douglas County, duly served upon Robinson and returned, and on the 27th Sept. 1861, Robinson appeared by attorney and filed a demurrer on the ground that it did not contain facts sufficient to constitute a cause of action. At the next April term of the Court the demurrer was argued by counsel and overruled, counsel for Robinson excepting.
Robinson’s counsel then moved for leave to file an answer, which was granted, but the answer does not appear of record, but it was finally ordered by the Court that, the said defendant, Charles Robinson, be and he is hereby made a party defendant to the original judgment in this case, entered June 6th, A. D. 1859, for the sum of $393,25 upon the note mentioned in the petition, and that said plaintiff have and recover of the defendant Charles Robinson, the costs of this proceeding.
To secure a reversal of this order Robinson files his petition in error in this Court.
Of the various errors complained of, the only one that seems to require discussion here, is as follows:
“ Because it appears from the record that the judgment against Guthrie and others, is too large, as the note drew only the legal rate of interest after dxieP
On examination, we find that the original judgment to which plaintiff in error was made a party by the order complained of was rendered for the whole amount of the note, deducting the $20.00 endorsed as paid by Simpson, with interest thereon at the rate of three per cent, per month from the date of the note to the date of the rendition of the judgment. By inspection of the note as set forth in the record, it will be seen that it was dated June 11th, 1858, and made payable Nov. 1st, 1858, while the judgment was rendered June 6th, 1859, more than seven months after tfie note fell due. It will he seen at once that the case presents precisely the same state of facts and the same question of law discussed and settled by the Supreme Court of the United States in the case of Brewster v. Wakefield, 22 Howard, 118.
The Statute of Kansas in force at the time this judgment was 1‘endered, is precisely the same so far as applicable to this case as the Statute of Minnesota governing the case of Brewster v. Wakefield.
In that case Taney, C. J. remarks: “ The written stipulation as to interest is interest from the date to the day specified for the payment. There is no stipulation in regard to interest after the notes become due, in case the debtor should fail to pay them—the contracts being entirely silent as to interest, if the notes should not be punctually paid, the creditor is entitled to interest by operation of law and not by any provision of the contract.”
This language of the Chief Justice of the United States, supported as it is by the authority of Macomber v. Dun-ham, 8 Wend., 550, and United States Bank v. Chapin, 9 Wend., 271, and Ludwick v. Huntsinger, 5 Watts, and Serg. 51, must be held decisive of the point now under consideration.
The Statutes of Kansas Territory, in force at the time this contract was entered into, fixed the rate of interest at six per cent, per annum, where no rate was agreed on in writing by the parties. It is manifest therefore, that the judgment rendered June 6th, 1859 by the District Court Wyandotte County, was too large interest on $280.00, having been computed at the rate of thirty-six per cent, per annum instead of 6 per cent, per annum, from Nov. 1st, 858, to June 16th, 1859.
It remains to consider whether this error in the original judgment violates the subsequent order of the Court making Robinson a party to that judgment. The proceeding to make him a party appears to have been taken in pursuance. of Sec. 427 of the Code of Civil Procedure, {page 193, Comp. Loaos.)
This novel and as it seems to us somewhat anomalous provision of the Code cannot we think be held applicable to a case where the effect would be to subject one, not a party to the original suit, to an erroneous and excessive judgment.
Like all other provisions of the Code it was intended to assist parties in obtaining justice, and it is the duty of Courts so to construe and apply it that it may subserve the purpose of its framers without prejudice to the rights of any.
We have not been able to find any authority directly in point as to the section under consideration, but find it incidentally considered by the Superior Court of Cincinnati in the case of Leming & Co. v. Burguyne and Knowlton, 1st Handy’s Rep. 11.
In that case it was held that where judgment had been rendered against one of several defendants served, that the plaintiff might proceed against those defendants not served, by another summons, but that the right so to proceed was subject to the control and discretion of the Court under Sec. 37 of the Ohio Code,'(corresponding to Sec 381 of the Kansas Code,) and that the Court would exercise this control over the plaintiff’s proceeding in this mode whenever it would inconvenience the administration of justice or prejudice, the opposite party.
Eor the reasons above given, the order of the District Court making plaintiff in error a party to the former judgment, must be set aside, and the case remanded.
Kingman J., concurring.
Cobb C. <L, having been counsel in the case below, did not sit in the case. | [
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By the Court-,
Bailey, J".
The first point assigned as error in this case; is that, “ The Court erred in refusing to the defendant the right of opening the case and introducing evidence in support of the issue on his part first, and in allowing the plaintiff to open the case and introduce evidence on his part first.”
• The rule by which the Code determines the right to open and close, is very simple, and in most cases easily applied. See Code, Sec. 277.
“ The party who would be defeated if no evidence were given on either side must first produce his evidence.”
In the case at bar the petition sets up an indebtedness of $200.00 from defendant to plaintiff, on the sale of a carriage. The defendant sets up two defences in his answer, first, a general denial, and second, an allegation that he had delivered to plaintiff án order drawn upon third parties for the amount which the plaintiff had accepted in lieu of payment of his claim.
Translating the pleadings' into the ■ style of common colloquial conversation, it would import simply that the plaintiff demanded of defendant two hundred dollars as the price of a carriage sold to him; to which the defendant answers : I deny that I ever bought a carriage of you for two hundred dollars, or any other price, and if you should succeed in proving that I had the carriage, I shall endeavor to show that the transaction was not such as you represent it, but a very different one, and that I have fulfilled on mypart the only contract I ever made with you about a carriage.
If such were the substance and effect of the pleadings upon which the issue was raised, it cannot admit of a question that the plaintiff would have been “ defeated if no evidence had been given on his side,” and consequently the Court did not err in refusing to the defendant the right of opening the case and introducing evidence in support of the issue on his part first.
¥e think such was the legal effect of the pleadings. A general.denial under the Code is equivalent to the plea of the general issue at common law, and traverses every material allegation of the petition, and puts the plaintiff upon the proof of his cause of action. Van Dusen v. Pomeroy, 24 Ills., 289; Bump v. Smith, 11 N. H., 48; Buzzell v. Snell, 5 Poster, 474.
As to the second alleged error of the Court below “in rejecting the parole evidence of the defendant offered by him as to the amount of the order delivered by him to the plaintiff in payment of the plaintiff’s claim,” we need only remark that the proper evidence to prove the amount of the order was the written order itself, and until that order had been produced or the failure to do so accounted for, the parole evidence was clearly incompetent.
The question propounded by defendant’s counsel to defendant as witness—“ State to the jury whether or not yon drew and delivered to the plaintiff such an order as' you agreed to give in payment for the carriage,” was liable to the same objection as the preceding, and was properly ruled out by the Court, for the reasons ah’eady stated.
The right to open and close the argument to the jury is governed by the same rule as the production of evidence, as the Code expressly provides that the party required first to produce his evidence shall have the opening and conclusion. Code, Sec. 211.
The next assignment of error is that the Court erred in allowing the plaintiff’s counsel to comment on the contents of a paper 'that had not been offered in evidence, in his closing speech to the jury.”
From the very nature of the case it will always be difficult if not impossible for a legislature or a reviewing tribunal to define the exact limits within which counsel must confine their argument.
The paper commented on, as 'appears by the bill of exceptions, was an affidavit made by the defendant to procure a continuance of the case, but it does not- appear to this Court in the bill of exceptions or in any other way, what comment was made • by plaintiff’s counsel, or under what circumstances. For aught that appears the defendant’s counsel might first have commented on the affidavit. Nor does anything appear in the record to show that such comments were prejudicial to the plaintiff in error. If they were so, it would have been the duty of the Court that tried the cause to restrain the counsel within proper limits, and as the record fails to show facts enough to warrant the interposition of this Court, we are bound to presume that the Court below exercised the proper judicial discretion in this, as in all other matters where the oontrary does not appear.
The alleged misconduct of a juror, as set forth in an affidavit in support of the motion for a new trial, seems to have been fully and satisfactorily explained in the affidavit of the juror himself, showing conclusively that the alleged misconduct was the result of misapprehension, and had not influenced his'action with regard to the verdict or prejudiced the ¡substantial rights of the defendant. There is perhaps room .for doubt whether the affidavit of a juryman could be held admissable for the purpose of explanation, but it may well be doubted whether the alleged misconduct was of a character to require explanation. It has repeatedly been held that irregularities on the part of jurors similar to that complained of in this case, would not be cause of setting aside a verdict. Thus, when after a jury had retired two jurors separated from their fellows and were gone some hours but returned and joined in the verdict, the Court refused to set aside the verdict, it not appearing that either party was affected by. their absence. {Smith v. Thompson, 1 Cow., 221.) So in New Jersey, it has been held that the mere fact of some of the jurors being for a time separated from their fellows, is not in a civil action a sufficient ground to set aside a verdict. Oram v. Bishop, 7 Hals., 153.
Judgment affirmed.
All the justices concurring. | [
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By the Court,
Kingman, J.
The Bank of Brownsville brought a suit in the District-Court of Atchison County, against the plaintiff in error, on a judgment of the Court of Common Pleas of the State of Pennsylvania.
To the petition, the defendant Butcher interposed a demurrer, an answer and a.motion to strike the case from the files of the Court, all filed at once under a rule of the Court then existing. The motion to-strike the case from the files was first taken up. The grounds of it were that the plaintiff had omitted to insert the word petition after the title of the cause. The plaintiff interposed a motion for leave to amend, which was granted, and the amendment made by inserting the word petition in its appropriate place, after the title of the cause.
This is the statement of the journal entry.
U-The bill of exceptions recites that the amendment was permitted after the motion to strike had been sustained.
The demurrer was then considered and overruled.
The defendant then moved for time to make an amended answer, which was denied, the defendant having at a previous term of the Court had leave to file an amended answer in forty days and had failed to do so.
Defendant then withdrew his answer on file, whereupon plaintiff demanded judgment. Defendant demanded a jury to assess damages, which was refused, and the Court proceeded to render judgment for the debt.
To the various rulings of the Court the defendant excepted, and. brings the case to this 'Court to correct the alleged errors.” ;
We will consider them in their order.
The action of the Court in permitting a party, to amend by inserting the word petition which had been omitted, was so manifestly correct that we need not argue it. By the code it is made necessary that that word shall follow the names of the parties to the suit in the caption. When omitted, the Court should allow' an amendment at any time without delaying the suit, and ought not to sustain a motion to strike it from the files without first at least giv ing an opportunity to amend. “ Tlie Court in every stage of the action must disregard any error or delect in the pleadings or proceedings which' does not affect the substantial rights of the adverse party, and no judgment shall be reversed or vacated by reason of such defect.” See page 8, Oode. We do not happen to see, how it would affect the substantial rights of the adverse party whether the amendment was made or not.
The next alleged error was in overruling the demurrer. The petition was for the recovery of a debt due by a judgment of the .Court of Common Pleas of the State of Pennsylvania, and did not contain any averment that the Court had jurisdiction either of the person or cause of action. Is such averment necessary ? At common law in suits on foreign judgments, it does not seem to have been necessary to aver jurisdiction in tlie Court rendering the judgment. 2 Chitty’s Plead, p. 414, N. C.; Comyns Digest, Tit. Pleader. 2 W. 12, and P. 18.
Section 130 of the Code which is quoted, has no bearing upon this case, but is confined to cases determined by a Court or officer of special jurisdiction.
A judgment rendered by a Cotu-t having no jurisdiction either of the person or the subject matter is void and a mere nullity, so that when a judgment of a Court, of general jurisdiction is 'stated to have been rendered, it implies that the Court had jurisdiction. If the extent of the jurisdiction of the Court does not appear, it has been held that it will be presumed to have jurisdiction.
In Kentucky the rule has been laid down very broadly, thus : That when the judgment or decree of'a sister State is produced rendered by one of its tribunals, we must presume that tribunal had jurisdiction and authority, and the onus of impleading it is thus thrown on him against whom it is urged. 5 L. M., 350.
It may be doubted if this is not too broad.
The better rule seems to be that laid down in New York and some other States, which is, that in respect to Courts of general jurisdiction, that they are presumed to have had jurisdiction until the contrary clearly appears. 19 Johnson, 33; 3 Wend., 267. “ Every presumption is in favor of the jurisdiction of the Court.” 4 Gowen, 294.
If then the onus of showing that the Court had not jurisdiction is on the party against whom it is set up, it is very appropriate that he should show it in his answer. Eor the very statement in the petition, that a judgment of a Court of general jurisdiction has been rendered, of itself imports jurisdiction.
The point has been expressly decided in the case of Wheeler v. Raymond, 8 Cowen, 314, wherein Savage Ch. J., said that in pleading the judgments of Courts of limited jiuisdiction, it is necessary to state the facts upon which the jurisdiction of such Courts is founded; but with respect to Courts of general jurisdiction, such averments are nqt necessary, and if there was a want of jurisdiction, that fact should come from the other side.”
See Swan’s Pleading and P., pp. 212,290, where the same doctrine is held. Courts will take notice of the constitutions of sister States, (lsi Pennington, 405.) And we find that by the constitution of the State of Pennsylvania, the Com’t of Common Pleas is a common law Court, having important original and appellate jurisdiction, and no doubt can be entertained, but that a judgment obtained in one of these Courts in a regular course of the common law is conclusive.
The Coiut being one of general jiuisdiction we think it was not necessary to aver jurisdiction by the common law, and the code has not changed the law on this point. But if we are wrong in our inference that the Court of Com ■ mon Pleas in that State is one of general jurisdiction, then the case comes under Sec. 130 of the Code, and the statement of the jurisdiction was not necessary.
Iii argument, another cause of demurrer was assigned on account of some peculiarity in the form of the record, but it is the usual form of the judgment on a cognovit rendered in Pennsylvania.
The next alleged error in the Court was the refusal to give further time for filing an amended answer. No showing was made by affidavit or otherwise why an amendment was necessary, and if necessary, why it had not been filed when the time had been previously given.
"We do not propose to comment on the rule of Court requiring demurrers and answers to be filed at the same time. It is manifestly a bad rule, but by conforming to it without excepting, the plaintiff can take no advantage of it, save that it repels the inference that by filing his answer the defendant waives his demurrer. Having once obtained time and failed to file his amended answer, he was certainly not entitled to delay the case longer for time without any showing whatever why it was not ready.
We dismiss the pretext urged that as the petition was amended by inserting in its caption the word petition, it gave defendant a right to file an amended answer without argument, as insufficient:
The demurrer was properly overruled.
The only remaining question to be considered, is, did the Court err in refusing to allow the defendant a jury to assess damages? " ■ *•'
Defendant had withdrawn his answer, and there was no issue to try, neither were there any damages to assess or fact to ascertain.
It was a suit for a sum certain. A debt Eo nomme, and not sounding in damages. There were no values to fix. The Code requires, {Sec. 94,) that “If the recovery of money be demanded, the amount thereof shall be stated, and if interest thereon be claimed the time from which •interest is to be.computed, shall also be stated.”
These being necessary allegations, are to be taken as true unless there are “ allegations of value or of amount of damage.” There being none such in this case, the petition. was to be taken as true, and there was. nothing for a jury to try or to do. Nothing -was left but to give judgment for the amount. Therefore we think a jury was not necessary.
"Wherefore the judgment of the Court below is affirmed with judgment for costs against the plaintiff in error.
All the justices concurring. | [
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Error from Finney district court. | [
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The opinion of the court was delivered by
Pollock, J.:
In the year 1880 one John Blount died testate, seized of 160 acres of land. By the terms of his will this land was devised to his son, Josiah Blount, charged with the maintenance of his widow, Bashaba Blount, during her life. Soon after the will was made it was by the testator deposited, in the office of the probate judge of the county, and the following entries with reference to this will were entered upon the records in that court:
“November 12, 1874. Received of John Blount one will for record. Said will was received the 12th day of November, 1874, at twelve o’clock m. William M. Hedrick, Probate Judge.
“March 27, 1879. The above called for by John Blount and delivered to him this date. Gr. M. Well-man, Judge.
“March 27, 1879. Received this day of John Blount one will, which was duly filed. Gr. M. Well-man, Probate Judge.”
The above entries were made in book “A” of wills. The following entries were made upon the will:
“The seal to the above written will of John Blount was broken and said will opened and read in open court on the 4th day of February, 1880, at my office in Lincoln Center, Kansas, in the presence of and at the request of Bashaba Blount and Josiah Blount, and also in the presence of M. C. Springer and A. S. Robinson, and at the same time and place the said Bashaba Blount, widow of John Blount, deceased, did accept under said will the. conditions of the same as regards her portion and allowance in and to said estate, and in the presence of the witnesses above named.
“Witness my hand and seal, the 4th day of February, a. d. 1880. G. M. Wellman, Probate Judge. “State of Kansas, Lincoln County.
“This instrument filed and admitted to probate February 4, 1880. Opened in open court, and read before Bashaba Blount and Josiah Blount, and also M. C.. Springer, one of the witnesses to this will.
G. M. Wellman, Probate Judge-.
After the death of John Blount, the farm passed into the possession of his widow and son Josiah, who in the year 1887 executed a mortgage thereon, which mortgage was foreclosed and the land sold to defendant in error Richardson, who received a deed and took possession thereunder. In the year 1898, Chandler purchased and took title by quitclaim deed from the remaining heirs of John Blount, the same being eight children by a former wife, to their undivided interest in the land in question, and .commenced this action of partition, claiming to be the owner of an undivided four-ninths of the property. After the commencement of this action the will was again formally proved and admitted to probate in the probate court of the county. At the trial plaintiff demanded a jury trial, which demand was refused. The case was tried by the court; judgment was entered for defendant ; and plaintiff brings error.
Two questions arise for our determination upon this record. It is first insisted that this action was brought to recover specific real property ; that plaintiff was, upon the demand made, entitled to a trial by jury, under section 266 of the civil code (Gen. Stat. 1901, § 4713), which provides: “Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived,” and that the denial of this right constitutes prejudicial error.
It is true, in an action brought for the recovery of specific real property a party is entitled to a jury trial, and it is error to refuse a jury in such case ; but this is not an action to recover real property, It is an action of partition by one out of possession, asserting an interest against one. in possession claiming title to the entire property adversely to all others. In such case an action of partition cannot be maintained unless the right to recover an interest in the property has been first established in a prior action for the recovery of real property, or unless a cause of action for the recovery of real property'be united with the action of partition. (Denton v. Fyfe, ante, p. 1, 68 Pac. 1074.) The reason for this rule is apparent. The right to trial by a jury cannot be denied in an action in ejectment or for the recovery of real property. In such case a second trial, when demanded, under the statute is a matter of right.- The action of partition is an equitable action, properly triable by the court. In such a case a jury is riot a matter of right. Special questions of fact may, in the discretion of the court, be submitted to the jury. Their findings thereon, however, are not binding upon the court but are merely advisory. If it were permissible for a party out of possession, claiming an undivided interest in real property, to bring and maintain an action of partition against a party in possession, claiming to own the entire estate adversely as against the world, without either having first established his right to recover a portion of the property in a prior action or joining an action for the recovery of real property with his action for partition, the trial court could, without error, deny a jury trial in such partition case and the defendant would be thus indirectly and in effect. deprived of a j ury trial in an action for the recovery of real property, in which a jury is demandable of right, and would also be de nied a second trial in ejectment under the statute. For this reason, a simple action in partition, as in the case at bar, cannot be maintained by one out of possession against one in possession claiming the entire estate, unless his right to some portion of the property is first established in an action for the recovery of real property, or unless an action for the recovery of real property be joined with the action of partition. Mr. Justice Brewer, in speaking of an attempt to litigate the title and right to possession of real property by suit in equity, in Bodwell v. Crawford, 26 Kan. 292, 40 Am. Rep. 306, said:
“The reasons for this are familiar to every lawyer. In equity neither party is of right entitled to a jury, but the constitution preserves inviolate the right of trial by jury as it exists at the common law, and an action for the recovery of real estate is one in which at common law-parties are entitled to a trial by jury. They have a right to the verdict of a jury upon the questions whether plaintiff was owner, whether the defendant was in possession, and whether, if so, the possession was unlawful.” (Scarborough v. Smith, 18 Kan. 399 ; Delashmutt v. Parrent, 39 id. 548, 18 Pac. 712.)
Again, the purchase was made, the action commenced and the trial ‘by plaintiff in error had upon the theory that the devisees in the will, the widow and son Josiah Blount, had withheld the will from probate for a period of more than- three years, and as a consequence, under sections 7966 and 7967, General Statutes of 1901, the property did not pass to the devisees under the will, but descended to the heirs-at-law of the deceased. These sections read as follows :
“No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate or' recorded as provided in this act.
“No lands, tenements or hereditaments shall pass to any devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to, probate ; and by such neglect the. estate devised to such devisee shall descend to the heirs of the testator.”
We are of the opinion that this contention cannot be sustained. While the record made is meager in the extreme, yet sufficient appears therefrom to show that the will was not withheld from probate, but was, upon application made to the probate judge, the proper custodian under the law, shortly after the decease of the testator, produced, opened and read in open court, in the presence of one of the attesting witnesses, the devisees of the property, and another; and that the widow made her election to take under the will, and a record of its admission to probate was entered upon the will. From these entries, while the same should have been made in a more formal way lipón the records of the court, yet it sufficiently appears that the court considered and determined the question of admitting'the will to probate, and did admit the will to probate. The order so made is as binding and conclusive as though entered in a more formal manner. In our opinion, the real estate in controversy passed under the will and did not descend to the heirs of the testator. (Allen v. Allen, 28 Kan. 18.)
It follows, from what has been said, that the plaintiff could not maintain the action brought, and that the judgment of the district court-is right upon the merits, and must be affirmed.
Smith, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The appellant was informed against, arrested, tried, and convicted of the crime of robbery in the first degree, in the district court of Pawnee county, and sentenced to confinement at hard labor in the penitentiary for a period of ten years from the 26th day of September, 1901, from which judgment and sentence he appeals to this court.
The only question presented is as to the sufficiency of the information. The objection urged is that the information does not state that the assault was made :with a felonious intent. It charges “that on the 3d day of August, a. d. 1901, in said county of Pawnee and state of Kansas, one Charles Seely and Oliver Townsend did then and there unlawfully and feloniously steal, take and carry away from the person of George N. Harbold, forcibly, against his will, and by violence to his person, by jumping upon, seizing, choking and holding him, the said George N. Harbold, by the throat, $33.33 in currency and coins of the government of the United States of America coinage and issue, consisting of three certain ten-dollar national bank notes or United States treasury certificates or notes, each being current money of and in the United States of America, and each being of the value of ten dollars of lawful money of the government of the United States.” It contains other allegations not material in the disposition of this case.
Section 2064 of the General Statutes of 1901, under which this information was drawn, x-eads :
‘ ‘ Every pei’son who shall be convicted of feloniously taking the property of • another from his person or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.”
The objection urged in the court below, as well as in this court, is that the information does not charge a felonious intent. It will be observed that this information literally follows the statute, and that the statute defines the offense not in its generic terms, but by specifically stating the facts which constitute the offense. It is said in the Encyclopedia of Pleading and Practice, volume 10, page 488 :
“While it is essential that all the facts constituting an offense must be so stated as to bring the defendant precisely within the law, it is a rule of universal application that, when a statute creates an offense and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute.”
This rule has no application, however, where the statute creates an offense by generic- terms. In such case an information or indictment following the statute would be defective. The facts constituting the particular offense must always be pleaded.
It is contended that robbery is a felony at common law, and since the statute has defined it in the words of the common law, an information, to be good under the statute, must plead the facts so specifically as to be a good common-law indictment. Conceding this to be true, the facts pleaded in the present information would be a good indictment at common law, and the information is in such form as is given in Arch-bold’s Criminal Pleading and Practice (12th ed.), volume 3, page 417.
The intent is not absent in the present pleading. The statement “that the appellant did feloniously as sault, steal, take and carry away from the. person of George N. Harbold, forcibly, against Ms will and by violence to Ms person, by jumping upon, seizing, choking and holding him,” are allegations which show the felonious intent. This information is sufficient. In The State v. Ready, 44 Kan. 697, 26 Pac. 58, it was held that an information charging robbery in the language of the statute is sufficient.
Another objection made to this information is that it is not direct and certain as to the property stolen. Upon this question we think it is amply sufficient.
The judgment of the court below is affirmed.
Smith, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
This is the second appearance of this cause in this court. In the view we take of the case, a statement of the facts surrounding the tragedy is unnecessary. Appellant and his father, S. P. Petteys, were jointly informed against, under section 88 of the crimes act (Gen. Stat. 1901, §2023), charged with the commission of the offense of. assault with intent to kill one Albert Felker by shooting him with a revolver. The trial court held the information sufficient to charge the offense defined in section 42 of the crimes act (Gen. Stat. 1901, §2027). Under the authorities, we think the holding correct.
The plea of self-defense was interposed by the defendant upon his separate trial. The jury returned the following verdict:
“We, the jury, impaneled and sworn in the above-entitled case, do upon our oaths find, from the law and the evidence, the defendant, John V. Petteys, guilty of wounding Albert Felker in the manner charged in the information filed, under circumstances which would have constituted manslaughter in the fourth degree, if death had ensued from such' wounding-”
The conviction was upheld and defendant sentenced to three years’ confinement in the penitentiary at hard labor. The extreme penalty of the law, had the as sault resulted in the death of Eelker, under the facts as found by the jury, would have been two years. Many grounds of error are. specified. We shall consider but one.
The court charged the jury in regard to the right of self-defense as follows:
“A person may repel force by force in defense of his own person or that of his parent against one who manifestly intends or endeavors by violence or surprise to commit a known felony on either. A person is not compelled to flee from his adversary who assaults him with a deadly weapon before he can justify the use of a like weapon, but the assault must be so fierce as not to allow the person assailed to yield a step without manifest danger to his life or of great bodily injury. In such case, if there be no other way of saving his life, he may in self-defense even kill his assailant.”
Complaint is made of this instruction. It is argued by counsel for appellant that under this instruction the right of self-defense in the use of a deadly weapon is precluded in all cases where the nature of the attack is not so fierce but that the assailed might retreat and thus avoid a conflict. We think the criticism made on the instruction is just. It is not the law of this state that one unlawfully attacked by another is compelled to flee, no matter what the character of the attack may be. One unlawfully assailed is justified in standing his ground and repelling force by such reasonable force as may appear necessary, under the circumstances, to resist the attack. The rule was clearly stated in The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, as follows:
‘•A party who is unlawfully attacked by another may stand his ground and use such force as at the time reasonably appears to him to be necessary. He is justified in acting upon the facts as they appear to Mm, and is not to be judged by tbe facts as they actually are.” (See, also, The State v. Howard, 14 Kan. 178.)
We think this' instruction open to another serious objection. The last sentence, as given, would preclude a defendant from the right of self-defense to the extent of taking the life of his assailant unless it became necessary to save his own life. One has the same right of self-defense, and the right of self-defense to the same extent, in defending his person from great bodily harm, or in saving the life or protecting the person of his parent from great bodily harm, if such defense appears to be reasonably necessary under all circumstances in the case, that he has to preserve his own life.
It follows that the giving of this instruction was erroneous, and for this reason the judgment must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dostek, O. J. :
This was an action of specific performance to compel the execution of a deed to land situated in Trego county. The action was brought in that county, but the defendants of whom performance was asked were non-residents of the state, and other defendants of whom relief of an incidental character was asked, though residents of the state, were nonresidents of the county. Seasonable objections to the jurisdiction of the court over the persons of the defendants were made and overruled. A trial was had and judgment rendered for plaintiffs, to reverse which error has been prosecuted to this court. The jurisdictional subject only need be considered.
There is no doubt that specific performance, looking alone to its nature, operates in personam éntirely, and that, as a consequence, independently of statute, a suit to compel the execution of title papers can be brought only in the county of the defendant’s residence. The case of Spurr and others v. Scoville, 3 Cush. 578, is a pointed authority on the subject. The endeavor there was to compel a resident of Connecticut, on whom personal service had not been obtained, to execute a contract for the conveyance of lands in Massachusetts. Among other things, including a review of many of the authorities, the court said:
“But this suit is a proceeding in personam merely, in which a decree is sought against the person and not against the property, and it is wholly immaterial whether the land which was the subject of the complaint be or be not within the jurisdiction of the court. It is sufficient if the parties to be affected and bound by the decree are within the jurisdiction. An inability to enforce the decree in rem would constitute no objection to the right to entertain the suit. If, however, the defendant were within the jurisdiction, and should refuse to perform a decree against him, if the lands also were within the jurisdiction, in addition to proceedings in personam the court might perhaps put the plaintiff in possession of the land. (2 Story’s Equity, § 744.) . . . This is a proceeding strictly in personam, and the party must be, not technically or constructively, but actually and really, before the court and within its jurisdiction. An appearance' by attortorney to object to the jurisdiction cannot give jurisdiction in a case like this.”
The character of an action for specific performance 'as in personam entirely is so well established that courts having jurisdiction of the parties frequently entertain suits to compel the execution of contracts for the conveyance of lands in other states in which, of course, their decrees as to the res cannot operate. (Lindley v. O’Reilly, 50 N. J. L. 636, 1 L. R. A. 79, 15 Atl. 379, 7 Am. St. Rep. 802.)
Sometimes a question may exist as to whether the complaining party may not have such peculiar interest in the property as to entitle him to the enforcement of a trust, and not of contract merely (Merrill v. Beckwith, 103 Mass. 503, 40 N. E. 855), in which event the action might be local and not transitory, but the plaintiffs in this case have neither stated in their pleadings nor claimed before us such character of right. We are, therefore, well convinced that the inherent nature of the ordinary proceeding to compel a vendor to comply with his contract, as contract, by the execution of a deed, makes the action one in personam, which can be brought only where the defendant resides or may be legally, served with personal process. Does our statute authorize it to be elsewhere brought? The provisions having relation thereto are sections 46 and 47 of the civil code (Gen. Stat. 1901, §§4476, 4477), as follows:
“46. Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 47 :
“First. For the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest.
“Second. For the partition of real property.
“Third. For the sale of real property under a mortgage, lien, or other encumbrance or charge.
“47. If the real property, the subject of the action, be an entire tract and situated in two or more counties, or if it consists of separate tracts situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover possession thereof; and if the property be an entire tract situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties-; but if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated. An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them, reside.”
It is manifest that none of the provisions of section 46 applies. The only possibly applicable words in that section are those in clause ‘ First ’ ’; but an action for specific performance is not, of course, one for the recovery of real property, or an estate or. interest therein ; nor is it “for the determination in any form of any such right or interest.” That language would seem, at first reading, to be quite sweeping and inclusive, but it will be perceived that it is not comprehensive of' suits to compel the performance of mere contracts to convey, if it be admitted, as just stated, that such suits operate only in personam.
Suits for the performance of agreements are not brought to determine titles, because, if so, they would operate on the res, but they are brought to enforce purely personal contracts. Of course, if the defendant obeys the decree the title will pass, and the court may in proper cases order the decree to stand as a conveyance, in which instance also the title will pass; but, nevertheless, the object of the suit is not to determine the title, but to compel the defaulting party to abide his agreement.
However, it is contended that the concluding provision of section 47, .above quoted, relating in terms to actions for specific performance, gives to the plaintiff the right to sue either in the county where the land is situated or in the one where the defendants or some-one of them reside. Emphasis is placed on the permissi-ve word. The plaintiff may sue where the defendants or some one or more of them reside, from which it is implied that he need not sue there but may sue where the land lies; This is an erroneous view. The option given is not to be exercised between the venue of the land and the venue of the defendants, but between the respective venues of the different defendants. The provision contemplates the case of several defendants and authorizes the institution of a suit where any one of them resides. That is all it does.
The judgment of the court below is reversed, with directions for proceedings in accordance herewith.
All the Justices concurring. | [
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Appeal from Chautauqua district court. | [
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The opinion of the court was delivered by
Ellis, J.:
Under the will of John Davenport, the lands of which he died seized and possessed in Kansas were not specifically devised to his executors and testamentary trustees, still we think the powers contained in the will and the duties imposed thereunder were' equivalent in law to a devise for the uses and purposes therein named.
As to the real estate situated in this state, such will would not affect the rights of his widow thereto, unless she consented to such will in writing, or elected to take under it after the decease of her husband. There was a total failure of proof in respect to both propositions. For aught that appeared in the case, the widow may still be claiming to own a one-half interest in the land, and, when challenged by the answer of the railway company, it was the duty of the plaintiffs to show the facts in support of their claim of ownership, and to negative the presumption that the widow inherited an interest under the laws of Kansas." It is idle to cite authorities upon these fundamental propositions, and we do not understand the counsel for defendants in error seriously to contest either of them. They say in their brief:
“As the law now stands, if he left no children, and she had repudiated his will, she would have taken by descent the one undivided half of the Kansas lands, and the trustees the other half, by virtue of the will, and she and they would be tenants in common. Assuming, then, but not admitting — for the truth is, she accepted the will — all that to be so, and to have been shown at/the trial (and it was not), still the plaintiffs below were entitled to recover the entire damages for the choking up of this crossing; for .it is well settled that a tenant in common in exclusive possession can recover damages done to the common freehold, without joining the cotenant not in possession, 'for the benefit of himself and cotenant.’ ”
In support of this contention, counsel for defendants in error cite us to the following cases : Bigelow v. Rising, 42 Vt. 678 ; Jewett v. Whitney, 43 Me. 242 ; Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309 ; Bricker v. Ledbetter, 26 Kan. 269; Anderson v. Gray, 134 Ill. 550, 25 N. E. 843 ; Bird v. Lisbros, 9 Cal. 1, 70 Am. Dec. 617; O. & G. S. & R. Co. v. Tabor, 13 Colo. 41, 21 Pac. 925 ; Thomas v. Hunsucker, 108 N. C. 720, 13 N. E. 221.
In the case of Bigelow v. Rising, supra, it is stated in the syllabus : ‘ ‘ One of two or more tenants in common of real estate may maintain an action in his own name -for a trespass on such estate against a mere stranger, and in such action may recover the whole damage to the property for the benefit of himself and 'his cotenant.”
In Jewett v. Whitney, supra, the third clause of the syllabus reads as follows : “A cotenant in possession may maintain trespass quare clausum against a stranger for an injury to the freehold.”
In the syllabus in the case of Grassmeyer v. Beeson, supra, is found the following: “We have heretofore decided .that one tenant .in common may maintain trespass to try title against a stranger.”
In Bricker v. Ledbetter, supra; the first clause of the syllabus reads: “Where it appears that a husband and wife entered into the possession of vacant land, built a house thereupon and occupied it, such possession is prima facie evidence of title, and sufficient as against a mere trespasser and wrong-doer.”
The last clause of the syllabus in Bird v. Lisbros, supra, is as follows : “A party in possession of land is deemed in law the owner, against all persons but one having superior title thereto ; possession is evidence of title, and the possessor, in conveying, is deemed to convey the title itself sufficiently to enable his grantee to maintain ejectment against a mere trespasser.”
The other cases cited have no possible bearing upon any phase of this case, and we are at a loss to know why they are referred to in the brief. It will be seen by the quotations from the authorities cited above that one tenant in common, in exclusive possession of lands and tenements, may maintain an action against a mere trespasser and wrong-doer for the benefit of himself and his cotenants. In this case the railway company was neither a trespasser nor a mere wrongdoer. It acquired possession of its right of way in a lawful manner, and may not be charged in this action with an unlawful entry thereon. In Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 341, 2 Pac. 800, 803, this court held:
“Under condemnation proceedings, a railroad company acquires the exclusive use of the land condemned, so far as it is necessary for railroad purposes, and the original landowner has no right to go upon the land or construct fences thereon, if his action interferes with the use of the property condemned for railroad purposes. Therefore, in many cases, the right of the owner practically amounts to nothing where the land is condemned for a railroad company, because the purposes of the railroad company may require the use of the land taken to such a degree as to forbid the owner from any benefit whatever.” (See, also, K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 Kan. 716, 26 Pac. 394.) .
As the case must go back to the court below for a new trial, it is proper that we should determine questions which are here fairly presented and relate to the substantive rights of the-parties, and which, if the proofs justify it, are certain to be raised again in the trial court.
As to the claim of the defendants in error, that they and their testate acquired a title to the under-grade crossing by adverse possession, it will suffice to say that the contention is wholly without merit in fact or foundation in law.
Upon principle and authority, the rule ought to be. and undoubtedly is, that where a railway company instituted proceedings to condemn land for use as a right of way, and upon a trial in an appeal to the district court from the award of damages by commission ers, which trial was held after the construction of the. line of railroad, it appeared that an under-grade crossing of great value to the farm had been left by the railway company, and where, upon the trial of such an action, the map and profile of the road, showing the width of such opening or under-grade crossing, were offered in evidence, and the railway company, in order to reduce the damages to be awarded, asked and obtained an instruction to the jury “that the plaintiff has the right to build, construct and maintain any crossing of defendant’s right of way upon his land which shall be under the track or tracks of defendant’s road upon such right of way, when such under-grade crossing in no wise interferes with the defendant’s use of such track or tracks, for the purpose of operating and carrying on its business thereon” ; and where, several years later, the company, or its successor, while improving the railroad, instead of putting in a permanent iron bridge, and preserving to the landowner the use of such crossing, wholly ignored the rights which upon the aforesaid trial in the condemnatory proceedings the jury were presumably led to believe had become vested in the latter, and closed up such crossing without his consent, and against his will; under such circumstances the imposing of additional servitude upon the land, to the injury of the owner of the fee, should be recompensed by an allowance of additional damages, which may be recovered in a proper action by such owner. (Missouri, K. & T. Ry. Co. v. Haines, 10 Kan. 440, 442; Kansas Cent. Ry. Co. v. Allen, 22 id. 286, 31 Am. Rep. 190 ; K. C. & E. Rld. Co. v. Kregelo, 32 id. 608, 5 Pac. 15 ; W. & W. Rld. Co. v. Kuhn, 38 id. 104, 16 Pac. 75; C. K. & W. Rid. Co. v. Cosper, 42 id. 561, 22 Pac. 634.)
Such being the purpose of this action, under its pleadings the railway company was entitled to have the matter of damages settled once for all, and to that end it could, and did, insist that the real parties in interest should be made parties to the suit.
Because the evidence does not show that the plaintiffs in the court below were entitled to maintain this suit without joining the widow as a party plaintiff, the judgment is reversed and a new trial granted.
All the Justices concurring. | [
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Error from Ford district court. | [
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The opinion of the court was delivered by
Greene, J.:
This is an original proceeding in mandamus by Little River township, of Reno county, Kansas, against John A. Myers, Irving Rutledge, and H. C. Barrett, members of the board of county commissioners of Reno county, the board of county commissioners of Reno county, and C. A. Ryker, county treasurer, to surrender and deliver for payment and cancelation to the National Bank of the Republic, the Kansas state fiscal agency in New York, forty-six bonds, in the sum of $500 each, issued by the township of Little River on the 1st' day of December, 1887, to the Kansas Midland Railway Company.
The subscription was made September 8, 1886, 'and the only statute in force at that time bearing upon the payment was section 13 of chapter 107, Laws of 1876, which reads:
“The principal of the bonds of such county, township or city shall be made payable at any time that may be fixed in the proposition voted upon, not exceeding thirty years from their date ; and may be issued in sums of not less than one hundred dollars nor more than one thousand dollars.”
In 1887, intervening the subscription and delivery of the bonds, the legislature passed chapter 77, Laws of 1887, section 1 of which reads :
“All bonds hereafter issued by the boards of county commissioners, township board, or by the authorities of incorporated cities, to railroad corporations, shall be redeemable at the pleasure of the board of county commissioners, or authorities issuing the same, at any time after ten years from the date of their issue.”
The bonds recite that they are issued pursuant to the subscription and are payable in thirty years. The defendants contend : (1) That the act of 1887 is violative of section 16 of article 2 of the constitution, in that it undertakes to amend said section 13 of'chapter 107, Laws of 1876, and does not contain the section so amended, or any proper reference thereto ; (2) that the subscription is the contract between the parties, and, as it was made prior to the passage of the act of 1887, that act can have no application ; but, if intended to apply to this case, it is unconstitutional in that it impairs the obligations of the contract.
There are some other questions presented by defendants, such as the insufficiency of notice of the in tention of the township to redeem and the source from which it derived its funds. These, however, are not material or controlling in the case, are not of public importance, and are not sufficiently material to require further notice than to say that, upon examination, they are overruled.
With the view the court has taken of this case, there are but two questions for determination : (1) Is the law of 1887 in contravention of section 16 of article 2 of the constitution? (2) As applied to this controversy, does it impair the obligation of contracts ?
We think there is no reason for the first contention. The act of 1887 does not directly, or by implication, repeal section 13 of chapter 107, Laws of 1876. The latter act is separate from and independent of the former. It was intended that both should stand and both be operative. Section 13 provides only for the means and methods of determining the time when the bonds may be made payable, not exceeding thirty years, while section 1 of the act of 1887 authorizes municipalities to redeem their outstanding obligations at their option any time after the expiration of ten years. We think the latter act falls fully within the statements made in The State, ex rel., v. Cross, 38 Kan. 700, 17 Pac. 190, where it was said : “At least, the objects of the acts have relation and connection with each other; and therefore we think they are capable of being united in one act.” This contention must be decided against the defendants.
The second proposition is the important and controlling question in this case. The policy of the state as expressed in the act of 1887 is to enable its several municipalities to reduce their bonded indebtedness, even before maturity. If the county, the defendant in interest in this case, as the holder of the unma tured bonds of the .relator, is exempt therefrom it must be because of some obvious and well-defined reason. The parties to this action are both public corporations' and are both governmental departments of the state. Their relations to one another are matters of state policy, and their powers and duties are under the control and general supervision of the state, and are determined by the legislature. Their duties are public. In the present instance the county has no private rights to protect. As stated in its answer, it invested the sinking-funds then in its treasury in the bonds. This fund did not belong to the county but to the various public corporations within its jurisdiction. It could only do this by authority of the legislature, and in performing this act it was only doing what the policy of the state had determined to be beneficial to the people. The indebtedness of municipalities is a matter of public concern and a proper subject of legislation, and in adjusting the relations-between two municipalities within the state, and providing for the payment of municipal debts, the legislature has unlimited and absolute control. One municipality can acquire no vested contract right as to the time of payment of the indebtedness of another, free from the subsequently expressed will of the legislature. Mr. Beach, in his work on Public Corporations, section 723, says:
“The power of appropriation which a legislature can exercise over the revenues of the state for any purpose, which it may regard as calculated to promote the public good, it can exercise over the revenues of a county, city, or town, for any purpose connected with the present or past condition, except as such revenues may, by the law creating them, be devoted to special purposes.”
Municipalities are creatures of the legislature. It can make or destroy them at pleasure. It may prohibit them from creating an indebtedness of any kind. It has the power to determine the kind, amount and duration of their liabilities. It may compel them to levy a tax.for the payment of outstanding liabilities even before maturity, and, if their debts are represented by bonds in the hands of another municipality, it may compel such corporation to accept payment even before maturity. As between public corporations, this takes away no vested rights, nor does it impair the obligation of contracts. (State, ex rel. St. Louis Police Comm’rs, v. St. Louis Co. Court, 34 Mo. 546.)
When the county, under the authority conferred upon it, invests the sinking-fund in its treasury, which belongs to the various townships and school districts within its limits, it does so not only subject to the law then in existence, but subject as well to any law that may be passed subsequently thereto with reference to the payment of such indebtedness. In performing such acts, it acts as the agent of the state, created for the purpose of carrying out the objects of state policy.
‘ ‘ The revenues of a county are not the property of the county in the sense in which the revenue of a private corporation is regarded; and the power of the legislature to direct its application is plenary. A county being a public corporation,, which exists only for public purposes, connected with the administration of the state government, it follows that such a corporation, and of course its revenue, is subject to the control of the legislature, and when the legislature directs the application of its revenue to a particular purpose, or its payment to any party, a duty is imposed and an obligation created upon the county.” (Beach, Pub. Corp. §722.)
All apparent difficulties disappear when we make a proper distinction between public municipal corporations and private corporations or individuals. It was said in The State v. County of Shawnee, 28 Kan. 431, 434:
“And, finally, we remark that counties ar.e purely the creation of state authority. They are political organizations, whose powers and duties are within the control of the legislature. That body defines the limits of their powers, and prescribes what they must and what they must not do. It may prescribe the amount of taxes which each shall levy, and to what public purpose each shall devote the moneys thus obtained. It may require one county to build a certain number of bridges at certain specified places, and of a particular size and quality. It may require another to open roads in given localities ; and another to build a court-house, and to levy a tax to a prescribed amount for the purpose of paying therefor. In short, as a general proposition, all the powers and duties of a county are subject to legislative control; and provided the purpose be a public one, and a special benefit to the county, it may direct the appropriation of the county funds therefor in such manner and to such amount as it shall deem best.”
It was said in The State v. Atkin, 64 Kan. 174, 67 Pac. 519, 520, quoting from Judge Dillon :
“Municipal corporations owe their origin to and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the state, and the corporations could not prevent it. "We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it,-the mere tenants at will of the legislature.”
What would be the rights of the railroad company or of an individual holding these bonds, as against the township, are matters that have no application, and are not of consequence in this case. It follows, therefore, that since the-parties to this action are both public corporations, and neither can have a vested contract right in the time of payment of the indebtedness of the other, which may not be interfered with by the supreme power, the legislature, and since the policy of the state, as expressed in the act of 1887, is that its public corporations may pay their indebtedness before maturity, this act does not impair the obligation of the contract.
It is the decision of this court that the relator have judgment for costs, and that the defendants deliver the bonds in question for payment and cancelation to the fiscal agency in the city of New York, as prayed for in the application.
Smith, Cunningham, Pollock, JJ., concurring. | [
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Error from Morris district court. | [
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The opinion of the court was delivered by
Doster, O. J.t
This is an appeal from a judgment of conviction of grand larceny. It was charged in the information that appellant “did then and there unlawfully and feloniously steal, take, and carry away, of the. personal property of oñe John C. Fletcher, twenty dollars, lawful money of the United States, of the value of twenty dollars, consisting of two five-dollar bills, paper currency, each of the value of five dollars, and one ten-dollar bill, paper currency, of the value of ten dollars.” The only errors complained of are the giving of a certain instruction and the’ refusal to give a certain other one. The one requested was as follows:
“If you find and believe, from the evidence in this case, that the prosecuting witness handed the money charged in the information herein to the defendant for the purpose of getting it changed, and that afterward the defendant retained the money and converted the same to his own use, you cannot convict, but should acquit the defendant.”
The bill of exceptions does not contain any of the evidence, and it will be observed that the instruction asked does not express any of those general statements of law that must be of necessity given in all criminal cases, such as the presumption of innocence, the burden of proof upon the state, etc. Therefore, we are unable to know the applicability of the above legal proposition to the facts of the case. Hence, it cannot be considered. (Educational Association of Christian Churches v. Hitchcock, 4 Kan. 1; M. R. F. S. & G. R. Co. v. Owen, 8 id. 410; State v. Cassady, 12 id. 550.)
The instruction given was as follows:
“If you find from the evidence, beyond a reasonable doubt, that the defendant, in this county, on or about the 7th day of last August, received from said John C. Fletcher a twenty-dollar gold piece, the property of said Fletcher, for the specific .purpose of changing it for said John C. Fletcher into United States currency, and then putting such money immediately into a letter to be deposited in the presence of said Fletcher in the post-office at Salina, in this county, and if you further find from the evidence, beyond a reasonable doubt, that such currency was put into a letter as directed by said Fletcher, and that said letter and currency were not deposited in said post-office, but that the return of said currency was demanded by said Fletcher, and if you further find from the evidence, beyond a reasonable doubt, that the defendant refused to return said currency to said Fletcher, but kept it, with intent to convert it to his own use, and to deprive said Fletcher of it permanently, then you should find the defendant guilty as charged in the information; but if you do not so find, then you should acquit the defendant.”
When the bill of exceptions does not contain the evidence, the case of an instruction given is different from that of one refused. As to the former, we must presume a condition which justified the court in giving it. Hence, in this case, we must presume that the instruction hypothesized a state of facts -which the evidence tended to prove. (Ritchie v. Schenck, 7 Kan. 170.) The question, therefore, is, Did the hypothetical state of facts recited in the instruction justify the charge of guilt? The appellant contends that it did not, because, as he says, one of the elements of larceny is trespass, a wrongful taking from the owner’s possession, and, as he further says, the instruction failed to condition guilt on the element of trespass, but authorized a conviction on its exact opposite, to wit, a rightful coming into possession.
It is true that larceny cannot be committed except by a wrongful assumption of the possession of another’s goods. However, the possession of which a thief deprives an owner does not mean, necessarily, the manual control or dominion, of the property stolen. There is a difference between possession and custody. One may have what the law esteems the possession of property, while another has its custody. The hypothesis of the instruction in question presents a case of that kind. Analyzing it briefly, we observe that Fletcher gave the appellant a gold piece to be changed into paper bills, to be put by the latter into a letter to be deposited in the post-office. The hypothesis was that appellant performed the first two acts but did not perform the last one, to wit, the deposit in the post-office, and, failing to do it, refused to deliver the money to Fletcher and kept it/with intent to convert it to his own use. Now, true it is that, according to the hypothesis, the bills given in exchange for the coin were never in the actual possession of Fletcher, so as to give the act of appellant the character of a physical asportation of the money, but they were in his posses sion in that legal sense which holds them to be the subjects of larceny. They we're in his possession, held by him through the manual custody of appellant. The instruction conditions the presence together of both Fletcher and appellant at all times throughout the transaction, and conditions the continued control and authority of Fletcher oyer appellant in respect to everything to be done by the latter. The appellant was but a mere arm of Fletcher to accomplish the required act; or, to use another figure, he was but a mere automaton to perform according to-Fletcher’s will.
There are cases which hold that, when money is given by one to another to have it changed, the property in the money being surrendered by the owner, the one to whom the money is entrusted cannot be convicted of stealing it, because no property was retained in it, nor can he be convicted of stealing the change, because the one claiming it never had ownership. (Whart. Crim. L., 10th ed., § 965.) That, however, is not this case, because in this case, according to the hypothesis of the instruction, every act done by appellant was to be done, and was done, in the presence and by the present control of Fletcher. As before stated, the former had only the bare physical custody of the money. The moment the exchange of money was made the bills came into the legal possession of Fletcher by virtue of the physical dominion he was then entitled to and able to exercise. The authorities are numerous and are full and complete to the effect stated. (Whart. Crim. L., 10th ed., § 956, et seq ; Clark, Crim. L. 252, et seq.)
The instruction was not erroneous and the judgment of the court below is affirmed.
Johnston, Ellis, JJ., concurring. | [
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Error from Lincoln district court. | [
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The opinion of the court was delivered by
Cunningham, J. :
In this action it was sought to .enjoin the collection of a special assessment for the payment of the cost of curbing and paving. A pivotal question in the case was whether the curbing and paving were placed upon the grade directed by ordinance, and whether, in the cost of such improvement, there was surreptitiously included the cost of some grading which was done by the paving contractor. The court below made the injunction perpetual. The city is here as plaintiff in error.
The integrity of the case-made is attacked. It appears that a certain map was introduced in evidence and considered by the court which is not embodied in the case-made. It was touching a material matter, was considered by the court, and seems to have thrown some light, at least, on the question whether the pavement was laid upon a proper grade. It also appears that a profile or map of the grade of the street in question, showing what was claimed to be the proper grade, and also the grade upon which the curbing and paving were placed, was exhibited to the court and used as a basis of testimony by the witnesses, without which this evidence is not intelligible, but which was not formally introduced in evidence. This is not attached, to the case-made. It is very clear that these maps considered by the court were quite material and illuminated some of the vital questions in the case.
In order for us fairly to pass on the questions presented, we must be placed in the same position occupied by the court below. It is fair neither to that court nor to the defendants in error to do otherwise, for, without all of the light which the trial court had on the litigated questions, we cannot be called.' on to say that error was committed by it. In the case of Railway Co. v. Williamson, an opinion per curiam, noted in 58 Kan. 814, and reported in 49 Pac. 157, this court said:
‘1 There is a statement in the record that it contains all the evidence offered on the trial, but it also appears that a blue-print map of the railroad-track and depot grounds where' the injury was inflicted was received in evidence and is not included in the record. It was frequently referred to by the parties and their witnesses, and cannot be regarded as unimportant. In the absence of all the evidence, the questions based upon its sufficiency cannot be considered, and none of the other questions is deemed to be material.”
Because we are not placed in a position to say that the court below erred, its judgment will be affirmed.
All the Justices concurring.
Smith, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnston, J. :
Does the answer in the second suit, which sets up prior proceedings in the present action, preclude a review of the latter ? It is contended that the plaintiff, having pleaded that judgment and obtained, a benefit, was, therefore, not in a position to contest its validity. The action of the company, as will be seen, does not affirm that the judgment was regularly obtained and that the proceedings in the case were free from error. The existence of the judgment was recognized, it is true, but no money or property awarded was accepted by the company, nor would its right to plead that 'the plaintiff was prosecuting two actions upon the same cause be affected by the reversal of the judgment. From the averments of the answer, which is said to constitute an estoppel, it is manifest that the pleader was challenging the right of the plaintiff to split his causes of action, or prosecute two actions upon a single indivisible cause. To show the court that the plaintiff was prosecuting an action against the defendant involving the same matters, the pleader set up all the proceedings in the former cause, including the judgment. It was not the judgment alone that was pleaded as a bar, but it was all the steps in the action, of which the judgment was one, and which it was necessary to mention in order to give a correct history of the litigation.
If the plaintiff’s petition in the second cause had shown on its face that there was “another action pending between the same parties for the same cause,” it would have been insufficient, as that fact is a specific ground of demurrer. (Civil Code, § 89; Gen. Stat. 1901, §4528.) It cannot be that the setting up of such a defense in an answer in the second action admits plaintiff’s right of recovery in the first. The defendant was claiming nothing on account of the judgment to which it would not have been absolutely entitled if no judgment had been rendered. An averment that the' plaintiff had sued in a former action for the same cause is not inconsistent with a claim that plaintiff was not entitled to recover in such action. Nor is there anything inconsistent between an attempt to prevent the plaintiff from prosecuting a second action for the same cause and an appeal from the judgment rendered in the first action. Both rights are given by law, and the exercise of one is no reason for the forfeiture, of the other. No relief was granted to the company in the second case, upon the theory that there had been a surrender of the right to review. On the contrary, the answer showed that the preliminary steps had been taken by the company to contest the right of any recovery, and to secure a reversal of the judgment. The relief which the company did obtain was such as it was entitled to, whether a proceeding for the reversal of the judgment was brought or not, and the plaintiff did not lose any legal right by reason of the defense that was made, because he had no right to prosecute two actions upon the same cause at the same time. No rights were therefore surrendered or sacrificed by pleading the existence of a judgment, and an essential element of the estoppel claimed was lacking. The answer, as we have seen, is an ordinary pleading of another action pending, and the defendant, instead of conceding the validity of the judgment, is not only fighting a- recovery in that case, but he is insisting that he shall not be harassed by two actions on ,a single cause. It is true the answer spoke of the judgment in which the causes of action were merged as being final, and also that it concluded the plaintiff as to the amount of damages to be recovered for breaches of the contract, as well as that it was res judicata, but these averments, although unnecessary, were not untrue, and they did not operate to change the character of the judgment. The causes of action were merged in the judgment, and the prosecution of error does not affect the merger until the judgment is reversed. (Cloud, Adm’r, v. Wiley et al., 29 Ark. 80.)
So, also, was the judgment final from the time of its rendition until its reversal on error. The proceedings to review did not suspend the effect of the judgment, nor do more than stay its execution. It remained a final judgment, which was conclusive upon the parties as an adjudication while the appeal was pending and until it was actually reversed. The assertion that there was error in the record of the judgment does not affect the status of the judgment nor negative its finality as an adjudication in which the causes of action were merged. The act of the defendant in setting up the judgment did not affect its character .or the absolute rights of the parties. The dismissal of the second suit may be said to be a benefit to the defendant, but the benefit did not arise from pleading the judgment itself. It is well settled that some benefits may be accepted without precluding' an appeal. In Elliott on Appellate Procedure, section 151, it is said :•
“If a party does what he has a right to do without affirming, in the act he performs, the validity of the judgment, he does not estop himself from prosecuting an appeal. . . . There are cases where a remote and incidental benefit is derived, and yet the right of appeal exists. Thus, where a plaintiff prosecutes two actions for the same cause, the defendant, by moving to be released from one of them, does not preclude himself from prosecuting an appeal.” (See, also, Cloud v. Wiley, supra; The Pittsburg, Fort Wayne & Chicago R. W. Co. v. Swinney, Executrix, 91 Ind. 400 ; Tyler v. Shea, 4 N. Dak. 377, 61 N. W. 468, 50 Am. St. Rep. 660 ; Bank v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683 ; Brewster v. Wooster, 26 N. Y. Supp. 912 ; Ostrander v. Campbell, 51 Hun, 637, 3 N. Y. Supp. 597; Cornell v. Donovan, 14 Daly, 292; Paine v. Ins. Co., 11 R. I. 411; Faber v. Hovey, 117 Mass. 107, 19 Am. Rep. 398.)
We conclude that the averments of the answer in the second case did not take away the right of the defendant to a review of the judgment in the first.
The next matter for consideration is the contention that the causes of action on which judgment is founded were barred by the three-year statute of limitations. The contracts pleaded were oral, and the breaches counted on occurred prior to November 1, 1892. The petition on which the first trial was had was filed in good time, but that pleading was held bad in that it did not state a cause of action. (Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759.) The amended petition, on which the second trial was had, was filed May 15, 1899, more than six years after the causes of action pleaded had accrued. The statute of limitations barred such causes in three years after they accrued, and if the original petition did not arrest the statute the causes were all barred. As will be seen from Railway Co. v. Bagley, supra, the first petition wholly failed to state any cause of action against the defendant. The plaintiff undertook to plead a liability upon a contract, but that which was pleaded was not a contract, and it created nó liability whatever. According to the original petition, the railway company proposed to ship corn to Texas within a certain time and for a stipulated rate, but no promise or obligation on the part of the plaintiff to ship corn over defendant’s road was alleged. While the pleading was in the form of-a petition, it set up no more than an unaccepted offer made by the railway company — something which lacked an essential element of a valid obligation. Con tracts cannot arise from the action of one party alone: j and where there is a lack of mutuality of obligation there is no contract. (Woolsey v. Ryan 59 Kan. 601 ; 54 Pac. 664; Railway Co. v. Bagley, supra, and cases cited.)
The amended petition did set up contracts possess ing the essential element of mutuality, but that pe Í tition was filed more than three years too late, unless the original petition arrested the running of the statute. Will the filing of a petition which states no liability against the defendant arrest the statute? Or, rather, did the filing of an amendment which stated a cause of action, relate back to the filing of the original petition wherein no cause of action was alleged? Our code makes liberal provisions for amending pleadings both in form and in substance, but no amend-' ment is permissible which changes substantially the claim or defense, or which introduces a new claim or defense. (Civil Code, §139; Gen. Stat. 1901, §4573.) So it was held in A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, that a new and !distinct cause of action, barred by the statute, could not be engrafted on a petition by way of amendment so as to deprive the defendant of the defense of the statute of limitations. In Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938, it was said :
“It is true, as a general rule, that amended pleadings relate back to the commencement of the action, but this rule never obtains where a separate and distinct cause of action is set up by way of amendment. Even though the amendment might otherwise be allowable, it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations, if the new cause of action would otherwise be barred.”
Those cases differ somewhat from the case in hand, as in them the new causes were added by amendment to other and distinct causes that had been previously pleaded, while here the amendment sets up a cause of action where none whatever had been previously alleged. The principle which ruled the cited cases, however, applies. A cause of action pleaded by way of amendment for the first time is new, and the departure is as great as the engrafting of a distinct cause of action which is barred upon an original one that is not barred.
The original petition, as we have seen, set up a one-sided agreement, which this court has said is a nullity. As no liability against the defendant was stated, no cause of action, formal or informal, was alleged, and, hence, there was nothing to arrest the statute of limitations. In respect to amendments, it has been said:
“At common law the general rule was that there must be something in the record to amend by. But under the statutes of amendment the power of the court is not now considered to be thus limited. Nevertheless, there must be something to amend, and a declaration or complaint which wholly fails to state any cause of action whatever cannot be amended, at least in those states where an amendment introducing a new cause of action is not allowed.” (1 Encyc. Pl. & Pr. 509.)
There is ample power to permit amendments which alter forms, supply omissions, and cure defects in pleadings where they state a cause of action, but if the facts alleged wholly fail to show a right of recovery, and the .bar of the statute is pleaded, a new cause of action cannot then be attached. If there is only a defect in form, or a faulty statement of a cause of action, an amendment may be allowed restating a cause of action which has been defectively stated, and in such cases the amendment would relate back to the filing of the petition. In Service v. Bank, 62 Kan. 857, 62 Pac. 670, which was an action on a note, an amendment was permitted by which the assignee' of the payor was substituted for the payee at a time when the note would have been barred if action thereon had not been brought until that time, but there a cause of action was alleged in the original petition and the amendment related back to the beginning of the action.
The supreme court of Illinois had this identical question before it for consideration, and while holding that if the action was originally brought within the statutory period and an amendment is afterward filed, which simply restates the right of recovery originally pleaded, the amendment is treated as filed at the time the action was brought, and the statute of limitations will not operate as a bar. Yet it was also held:
“Where an original declaration fails to state any cause of action whatever and an amended declaration does, upon an issue of the statute of limitations the amended declaration will be deemed to have been filed and the action to have been instituted at the time of the making of such amendment, although such amendment is confined to a more complete statement of the same cause or right attempted to be stated in the original.” (See, also, I. C. R. R. Co. v. Campbell, 170 Ill. 163, 49 N. E. 314; Eylenfeldt v. Steel Co., 165 id. 185, 46 N. E. 266 ; R. R. Co. v. Lacey, 49 Ga. 106 ; Phelps v. R. R. Co., 94 Ill. 548; Lasater v. Fant, Tex. Cir. App., 43 S. W. 321; Sicard v. Davis, 6 Pet. 124, 8 L. Ed. 342.)
It has been suggested that section 23 of the civil code (Gen. Stat. 1901, §4451) saves the proceeding from the bar of the statute, because the action was originally brought within due time ; that plaintiff failed otherwise than on the merits, and that the new action was brought within one year after the reversal and failure. Only one proceeding was begun. No new process was ever served, nor was there any dismissal or discontinuance of that proceeding. It has been held that the provisions of the section referred to have no application to proceedings like this one. (Hiatt v. Auld, 11 Kan. 176 ; A. T. & S. F. Rld. Co. v. Schroeder, 56 id. 734, 44 Pac. 1033. See, also, Dob-son v. Noyes, 39 id. 471, 18 Pac. 697.) Since the original petition did not state any right of action whatever, and was wholly insufficient as a basis for a judgment, it did not operate to arrest the statute of limitations, and, hence, the causes of action set up by way of amendment were barred at the time they were first pleaded.
The judgment of the district court will therefore be reversed, and the cause remanded for such further proceedings as may be taken.
Smith, Cunningham, Greene, Pollock, JJ., concurring. < | [
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The opinion of the court was delivered by
Cunningham, J.:
The main question in this case is whether a county attorney is entitled to receive the fee of twenty-five dollars for each count upon which a defendant shall be convicted in cases under' the prohibitory law, as provided in section 10 of chapter 149, Laws of 1885 (Gen. Stat. 1901, § 2475), or whether it must be accounted for under the provisions of section 14 of chapter 141, Laws of 1899 (Gen. Stat. 1901, §3036).
By section 1 of chapter 141, Laws of 1899 (Gen. Stat. 1901, § 3023 ), it is provided :
“The officers and persons herein mentioned shall be entitled to receive for their services the fees and compensation herein allowed, and no other, except as may be otherwise provided by law.”
Section 7 of this act (Gen. Stat. 1901, §3029) provides : -
“The county attorneys of the several counties of the state shall be allowed by the board of county commissioners of their respective counties the following salaries per annum, as compensation for all services performed, to be paid out of the county treasury quarterly.”
Then follows the schedule of salaries to be paid, and the section closes with the requirement, “all fees collected under the provisions of this section shall be turned into the general revenue fund of the county.”
It is contended by the defendant in error that, inasmuch as section 7 provides that the salary therein fixed shall be “as compensation for all services performed,” any and all other fees which- shall come to the hands of the county attorney by virtue of his office belong to the county, and must be accounted for by him. We, therefore, have the somewhat conflicting provisions of section 1, which contemplates that the county attorney may receive other compensation than as provided in section 7, with the condition in the fore part of section 7, which seems to provide that the salary shall be in compensation for all services performed, and that in the close of section 7, which provides that only the fees collected under the provisions of section 1 are required to be turned into the general fund. We think, however, that a reconciliation of. these apparent contradictions is not hard to find. The fee provided for by the prohibitory law is to be paid by the defendant in case of conviction, and in no case is the county liable for it. The salary provided for in section 7, quoted, is to be paid by the county out of the treasury, and is to be in full compensation for all services rendered to the county, for which the county would be liable. The county attorney is not required, under the latter part of section 7, to turn into the general fund the fee provided for in prosecutions under the prohibitory law. It seems quite clear that such fee goes to him under the provisions of section 1.
The provision of the prohibitory law requiring the payment to the county attorney by the defendant of a fee of twenty-five dollars for each count under which he has been convicted has never been repealed. No law is anywhere found which provides that this fee shall go to the county, directly or indirectly. We cannot think that in any event the county is entitled to receive it.
By construing the words, “for all services performed,” to mean for all services performed for the county, which is a most natural and reasonable construction, all difficulties and inconsistencies vanish. We think this is the construction to be given it. It therefore follows that, in addition to the salary provided by section 7, which is to be paid by the county, the county attorney is entitled to the fee of twenty-five dollars, given by the prohibitory law, which can be collected only from the convicted defendant.
We are cited to the case of Comm’rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 Pac. 299, as opposed to this construction. We do hot think that this case is applicable, or opposed to the view indicated above. In that case, the law required the county clerk to account for all fees received by him, and provided that the salary indicated should “be in full for all services by law required to be performed in their respective 'offices whatsoever.” No exception is there made, as is found in section 1 of the act above quoted.
We think the court below erred in requiring the county attorney to account for the fees collected by him in prosecutions under the prohibitory law, and for the error in so holding we must reverse its judgment, and remand the case for further proceedings consonant with this opinion.
Ellis, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J.:
William Swenney and Carrie Swenney executed and delivered to Samuel Gared Hill and William Hazeldine Thorold five certain instruments designated as real-estate first-mortgage bonds, and at the same time, and as part of the same transaction, executed and delivered to the. Southern Agency and Investment Company a mortgage upon real estate to" secure the payment of such obligations. Each one recited that it was secured by a first mortgage of even date, duly recorded, and provided that principal and interest should be payable at the office of the mortgagee, in Kansas City, Mo. The mortgage recited that the makers were justly indebted to the mortgagee in the sum of the principal of the notes, for a loan of money made by it to them, payable according to the tenor of the notes to Hill and Thorold. The mortgage' contained a further stipulation, as follows :
“Said party of the first part hereby agrees to pay all taxes and assessments levied upon said premises when the same are due, and insurance premiums for the amount of insurance hereinafter specified, and all prior liens against said premises, including all judgments against party of the first part, or their grantors before their respective conveyances, whether said premises be considered as a homestead or not, and all sums necessary to protect the title and possession of said premises, so that this mortgage shall be a first lien thereon until all sums hereby secured are fully paid; and if payments are not made as aforesaid, or in case of any breach of any covenant herein contained, then the said party of the second part, or the legal holder or holders of this' mortgage, may, without notice, declare the whole sum of money herein secured due and payable at once, with interest thereon at the rate of ten per centum per annum from tM date to which interest was last paid, or date of note, if no interest has been paid, or may elect to pay sucli taxes, assessments and insurance premiums, and any sums paid under agreements as aforesaid, and the amounts so paid shall be a lien on the premises aforesaid, and be secured by this mortgage, and collected in the same manner as the principal debt hereby secured, with interest thereon at the rate of ten per cent, per annum. But whether the legal holder or holders of this mortgage elect to pay such taxes, assessments, insurance premiums, or any of the sums under agreements as aforesaid, or not, it is distinctly understood that the legal holder or holders hereof may immediately cause this mortgage to be foreclosed, and shall be entitled to immediate possession of the premises, and the rents, issues and profits thereof, upon breach of any condition, agreement or covenant in this deed contained, whether express or implied.”
Subsequently, upon a default in the payment of the interest and principal, Hill and Thorold brought suit against the Swenneys to recover judgment on the notes and to foreclose the mortgage. The petition contained allegations that the plaintiffs were the owners of the notes and mortgage, and the original mortgage was incorporated as a part of it. The Southern Agency and Investment Company, the mortgagee, was not made a party to the action, and the sole question for determination is whether that was necessary in order to maintain the suit.
The form given to the evidence of 'the loan may have been adopted to relieve the payees of all concern regarding the collection of interest, the protection of the security, and the determination of a necessity for bringing a foreclosure suit, or it may have been in facilitation of some other purpose; but, whatever the design, the parties themselves deemed it necessary to interpose a third party between the note-holders and the makers, and to give it extensive rights and active powers over the relationship established. It could, by advancements for divers important purposes, augment the lien, mature the paper, and institute suit, and it's release was necessary to discharge the mortgage of record. The notes might remain in the hands of the payees, or might be transferred to separate'individuals unknown to each other; but, in any case, the mortgagee’s status and authority remained the same. While it took no title to the mortgaged property, it did take title to the mortgage itself, and did have substantial rights and interests, as a party to the paper, in the subject of the mortgage relation. Its position, therefore, was substantially identical with that of a trustee of an active trust, and the court necessarily could not proceed without its presence as a party to the suit. (9 Encyc. Pl. & Pr. 292, 313; Wilt. Fore. Mortg. § 112; Story, Eq. Pl. [10th ed.] 201.)
The allegation of ownership of the paper by plaintiffs was not sufficient to show an abrogation of the trust relation occupied by the mortgagee. Being a formal party to the paper, and retaining his rights and interests under it in the capacity stated, his joinder in the cause was indispensable. (Railroad Company v. Orr, 18 Wall. 471, 21 L. Ed. 810.)
In equity, the trustee under a mortgage or trust deed given as security was always a necessary party' to a foreclosure suit brought by the beneficiary, except in a few special instances not material here. The only provisions of the code which bear on the controversy read as follows:
“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the question involved therein.” (Section 36; Gen. S.tat. 1901, §4464.)
“The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saying their rights ; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.” (Section 41; Gen. Stat. 19,01, §4469.)
But these sections of the statute simply embody the doctrines of chancery courts in reference, to the making of parties to suits. As stated by Chief Justice Horton in Gerson v. Hanson, 34 Kan. 590, 592, 9 Pac. 230, 231, “the rule thus embodied in these provisions of the code is called equitable, and is derived from equity practice, because it is more frequently appealed to in proceedings formerly called equitable.”
While, therefore, the form of the action has been changed, parties who occupy the same relationship to the subject-matter of the suit' are as necessary to a complete determination and settlement of the questions involved as before the adoption of the code.
The judgment of the district court is reversed, with direction to sustain the demurrer to the petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by the Merchants’ and Farmers’ National Bank of Danville, New York, to recover from the city of Garden City on interest coupons which had been detached from refunding bonds previously issued by the city. The defense was that the bonds were invalid, because they were issued to take up an indebtedness' incurred for the erection of a mill which was a private enterprise, and also because the officers executing them had no authority to do so. In reply to this defense, the bank, among other things, alleged that, in another action between the same parties upon other interest coupons which had been attached to the same bonds, the same defenses had been set up by the city in the same court, and the same issues joined as in the present action; that judgment was rendered in that action in favor of the bank, sustaining the validity of the bonds ; and that, as the matters in litigation had been fully adjudicated, the city was estopped from making the same defense and from further litigating the same matters and issues. A motion to strike out this part of the reply was overruled, and, as the testimony in the case conclusively established a former adjudication on the issues presented in the present action, the court held that the city was estopped further to prosecute its defense, and directed a, verdict in favor of the bank.
The funding bonds in controversy were issued in pursuance of chapter 50 of the Laws of 1879, and contain full recitals showing that all the prerequisites to the regular issuance of the bonds had been complied with, and that they "were regularly and honestly issued by the officers of the city. They were purchased on the open market by the bank, without knowledge of any irregularities or defects in their issuance.
As an original proposition, the bonds appear to be valid and binding obligations in the hands of the bank, which was an innocent purchaser ( The State v. Wichita County, 62 Kan. 494, 64 Pac. 45) ; but every objection now made to their validity was made and adjudicated in the first action, and, as the judgment then rendered was final and unreversed, the same matters are not open to another inquiry in another action between the same parties.
“When a matter is once adjudicated it is conclusively determined between the same parties and their privies, as to all matters which were or.might have been litigated, and this determination is binding as an estoppel in all other actions, whether commenced before or after the action in which the adjudication was made.” (S. K. & W. Rld. Co. v. Comm’rs of Anderson Co.,47 Kan. 767, 29 Pac. 96 ; Hoisington, Sheriff, v. Brakey, 31 id. 560, 3 Pac. 353 ; Boyd v. Huffaker, 40 id. 634, 20 Pac. 459; Shepard v. Stockham, 45 id. 244, 25 Pac. 559 ; Sanford v. Oberlin College, 50 id. 342, 31 Pac. 1089; McDowell v. Gibson, 58 id. 607, 50 Pac. 870.)
The main defenses in the. original action were that the bonds were signed by the president of the city council, as acting mayor, without right or authority ; that they were issued for a private purpose, and, therefore, did not constitute a valid indebtedness of the city; and that the bank knew, or should have known, of the defects and irregularities in the execution of the bonds. In that proceeding the court found that the bank was an'innocent purchaser for a valid consideration, without notice of any defects; that there was a vacancy in the office of mayor of the city when the bonds were issued; that C. J. Powers, who signed the bonds, was then president of the city council and acting mayor of the city, and was a proper officer to execute the refunding bonds; and, further, that the bonds were regularly issued, and were valid obligations of the city. These matters were brought directly in issue by the pleadings, and precisely the same defenses were set up and sought to be established in the present action. There is the- identity of parties, issues and purposes necessary to a bar under the doctrine of res judicata, and, as the judgment in the former proceeding was pronounced by a court of competent jurisdiction, it is a bar not only as to any further dispute as to facts, but also as to any further consideration of the law bearing on the case.
It is contended that there is a lack of identity as to the cause of action, because the action in this case is brought on different coupons .from those that were sued on in the former case. Both actions, however, were brought to recover interest on the same debt. The coupons had all been attached to the same bonds, and in each case the right of recovery depended on the validity of the bonds from which the coupons were detached.
In C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., supra, it was held that the rule of res judicata applies as well to the facts settled and adjudicated as to causes of action. In Furneaux v. National Bank, 39 Kan. 144, 17 Pac. 854, 7 Am. St. Rep. 541, it was held that where a party makes a defense to an action on a note that was given for the purchase of machinery, and other notes were given as a part of the same transaction and for the same consideration, a judgment based on a defense made on the first of the notes is conclusive as to all the other notes. In Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411, there was an adjudication on coupons of municipal bonds, where the defense was that the municipality never executed the bonds and that the bonds were not its obligations. This adjudication was held to be conclusive in a subsequent action brought by the same party on different coupons of the same bonds. See, also, Southern Pacific Railr’d v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; Whittaker v. Johnson County, 12 Iowa, 595.
As the facts and the law brought in question here have been fully adjudicated between the parties, the city is precluded from attempting to show anything contrary to the determination first made. This view practically disposes of all that is meritorious in the case. There is nothing substantial in the objections to rulings on the testimony, and nothing is found which affords ground for reversal.
The judgment is affirmed.
Cunningham, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Ellis, J.:
This is a prosecution under section 2493, General Statutes of 1901 (Laws 1901, ch. 232, §1), commonly known as the “Hurrel law.” The defendant was convicted of maintaining a nuisance, and appeals.
The only important allegation of error is that the court refused, upon motion, to quash the information. In the court below, the constitutionality of the law appears to have been the mooted question. Here, however, attorneys for the defendant urge that the information is defective in that it fails to allege that the place where the intoxicating liquors were sold and kept for sale was not a private dwelling-house. Sucli an allegation is not necessary. The section of the statute under which this prosecution was had contains no such provision, and the exception contained in section 8, which relates alone to evidence, is not one of those necessary to be negatived in an information, under rules of pleadings well established under the common law and sanctioned by frequent decisions of this court.
In the case of The State v. Thompson et al., 2 Kan. 436, the rule as laid down in Archbold’s Criminal Practice and Pleading was sanctioned by this court. It is 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 subject 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 woi'ds of reference, it is in that case matter of defense for the other party and need not be negatived in the pleading.’’ (See, also, City of Kansas City v. Garnier, 57 Kan. 412, 46 Pac. 707.)
It was not error for the court to permit evidence to be introduced to show that the place where the intoxicating liquors seized were kept by the defendant was not a dwelling-house, as it was requisite to produce such proof in order to make the fact of finding intoxicating liquors in his possession prima facie evidence that such liquors were kept for sale in violation of law.
The error of the court in referring in an instruction to the latter part of section 8 of the statute (Gen. Stat. 1901, § 2500), when the evidence in the case did not tend to show that a government stamp or receipt for special tax was found in or about the premises of the defendant,' was not fraught with harm to his. interest and in no manner tended to mislead the jury. Such error is, therefore, immaterial.
The judgment of the court below is affirmed.
Dostbr, C.J., Johnston, J., concurring. | [
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The opinion of the court was delivered by
Cunningeam, J.:
In this action an aged father sought to set aside a conveyance of certain lands which he had made to his daughter. The reason why this was done, as set out in the petition, was because of the fraud practiced by the daughter and her husband in obtaining the same, in this, that they promised to perform certain services for the father, which, at the time, they had no intention of performing, and which they subsequently refused to perform, the promise being made simply and solely to procure the execution of the deed. The issues arising on this petition were closed by a general denial. Upon this issue trial was had to a jury, and evidence pro and con introduced.
The court gave as one of its instructions the following :
“I further instruct you, gentlemen of the jury, that if, at the time of the execution of. the conveyance which is the subject of this controversy, you find from the evidence that the plaintiffs were far advanced in years, were greatly enfeebled in body and mind, and were greatly troubled and uneasy about their own personal welfare in the future, and by reason of these conditions were not in a mental condition to carefully weigh and transact such business as was involved in transferring the land involved in this action, and had become childish, and depended upon their daughter, Mrs. Meyer, and her husband, for counsel and advice, then and in that' event an equi table wardship or fiduciary relation existed between them.
“A person is said to stand in a fiduciary relation to another when he has rights and powers which he is bound to exercise for the benefit of that other person. Hence, he is not allowed to derive any profit or advantage from the relations between them, except with the full knowledge and consent of the other person, and such other person must be in possession of all his powers before he can be bound by that knowledge' or consent. The relations of attorney and client, principal and agent, guardian and ward, are instances of fiduciary relations; and generally, whenever from the position of the two persons one of them reposes, and has a right to repose, confidence in the other, a fiduciary relation is thereby created and exists.
“So, in this case, if you find from a full, fair and candid consideration of all the evidence in the case, that a fiduciary relation existed between the plaintiffs and the defendants, actual fraud is not essentially necessary to set aside the conveyance sought to be set aside in this case, but the burden of establishing the perfect fairness and equity of the conveyance, under such circumstances, is thrown upon the defendants.”
It will be seen from this that a new issue, entirely different from that tendered by the pleadings or supported by the evidence, was submitted to the jury, and by it the jury were told that if they should conclude from the evidence that a fiduciary relation existed between the parties, then it was not necessary to prove actual fraud. The instruction even went further than this, and advised the jury that in such case the burden no longer rested on the plaintiff. Issues so foreign to the pleadings as the one submitted by this instruction may not be interpolated into a case. The jury were not authorized by the issues or the theory of the case to consider the fiduciary rela tion, and questions growing out of the same, at all; or, at most, only so far as such consideration served to explain or emphasize matters bearing on the actual fraud charged, and not to create another ground for relief. So that, in our opinion, the court clearly erred in giving this instruction, and we think it was a material error.
It could hardly be otherwise in an action of this sort, where an aged parent was pitted against his child, than that much of sympathy should be stirred up in the mind of the juror, and, warranted by such an instruction, he might find ground for a verdict therein other than in the evidence supporting the allegations of the petition. It is true, the jury found in answer to special questions the facts upon the issues tendered in the pleadings for the plaintiff, but they may have so found because of the influence which the erroneous instruction irijected into the case. While these findings were not binding on the court in this kind of a case, the court did adopt them and permitted them to control its judgment. More than this, may we not gather from this instruction that in the court’s mind the theory mentioned therein was material in the case? How can we say that it was not, in the view of the court, determinative of the rights of the plaintiff? The trial theory, as well as instructions, should be based upon, and conform to, the issues made by the pleadings, else there is no certainty or order in procedure.
Objection is made by the plaintiff in error to the practice adopted by the court in this case of embodying in their entirety the pleadings. We have indicated in Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac 887, our disapproval of this practice. The principle there announced applies in this. case. No inconsidei able amount of irrelevant matter is found in the petition, and much of probative facts by way of inducement are there stated. It is true, in the subsequent instructions the court gathered the salient points of the petition together, and, perhaps, thereby remedied the error which it committed in quoting the petition entire. We have said this much relative to this matter rather to emphasize the rule laid down in the Eagan case than to afford ground for reversing the judgment in this case.
For the error in giving the instruction quoted and the straying of the court from the issues involved, as evidenced thereby, the judgment will be reversed and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin by the First State Bank to recover from J. H. Stevenson, Bert Stevenson and G. H. Martin the possession of 195 head of cattle and 50 calves. The interest of the bank in the stock was a special one, arising under a chattel mortgage given -to secure a promissory' note executed by the defendants. Under an order of delivery, the officer obtained possession of 117 of the animals. The-remainder of them he was unable to find. Upon issues formed a trial was had, which resulted in favor of the bank.
The court found that the indebtedness secur'ed by the mortgage was the sum of $4861, and that at the commencement of the action the bank was entitled to the immediate possession of all the property described in its petition, consisting of 89 head of cows, 4 bulls, 4 yearling calves, and 24 calves by the side of the cows, and also 79 other cows and 32 other calves, all of which were wrongfully detained by the defendants'. It was found that the value of the first lot of cattle, to wit, those which were seized under the order of delivery, were of the value of $2661, and that the remaining number, those not seized, were of the value of $2200. After specifically finding the value of the plaintiff’s interest, that it was entitled to the immediate possession of all of them, and that they were wrongfully detained by the defendants, the court adjudged a recovery of the possession of the first lot, and that, if a delivery thereof could not be. had from the defendants, the plaintiff should recover the value thereof, to wit, the sum of $2661. It was further considered, ordered and adjudged that the plaintiff recover from the defendants the value of the 79 cows and 32 calves not found by the sheriff, to wit, the sum of $2200.
This judgment was entered of record on September 25, 1900, and in the following May a motion was made to modify the judgment so that it should be in the alternative for the possession of the seventy-nine cows and thirty-two calves, or their value in case a delivery of the same could not be had, which motion was overruled. The modification of the judgment should have been made. Under the findings of the court, the plaintiff was entitled to a judgment in the alternative for the possession of the cattle not found, or the value thereof in case a delivery could not be had. In National Bank v. Thompson, 54 Kan. 307, 38 Pac. 274, the form of a judgment in replevin was under consideration, and it was said :
“It was-an ordinary action of replevin and the pe tition was in the usual form. The prayer of. the petition demanded judgment for the possession of the property, for damages for detention, and the costs of the action. The statute specifies the form of the judgment which must be entered in an action for replevin, and requires that it shall be entered in the alternative in such a case as this. A failure to have rendered the judgment in the alternative would have been material error.” (See, also, Hall v. Jenness & Cohen, 6 Kan. 356; Ward v. Masterson, 10 id. 77 ; Babb v. Aldrich, 45 id. 218, 25 Pac. 558.)
The findings contain all the requisites for the rendition of a propef judgment, and the neglect or omission in entering a judgment in the alternative may be corrected by motion.
It is not necessary that such motion should be filed at the same term at which judgment was rendered, but it maybe filed afterward, at any time within three years after the rendition of the judgment. (Civil Code, §§ 568, 569, 575 ; Sumner v. Cook, 12 Kan. 162 ; National Bank v. Dry-goods Co., 45 id. 510, 26 Pac. 56.)
The error of the trial court in refusing to modify the judgment does not require a new trial of the case. In Ward v. Masterson, supra, it was held to be sufficient to remand the case to the district court with directions to modify the judgment, so that it should be in the alternative for the delivery of the possession of the property, and, in case this cannot be had, for the recovery of the value. The order denying the motion will, therefore, be set aside and the cause remanded, with directions to enter judgment in the alternative, in accordance with the findings and the requirements of the statute.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This action was brought on an insurance policy for the loss of a residence destroyed by fire. The plaintiff below stated in his application that the property was occupied at the time as a dwelling for himself and family. The policy contained, among others, the following condition
“This insurance contract is based upon the representations contained in the assured’s application of even number herewith and which the assured has signed and permitted to be submitted to the company, and which is made a warranty and a part hereof; and it is stipulated and agreed that if any false statements are made in said application, or if the assured, without written permission hereon, shall now have or hereafter make or procure any other contract of insurance, whether valid or not, or if the above-mentioned buildings be or become vacant or unoccupied, or be used for any other purpose than is mentioned in said application, without consent indorsed hereon, . . . then, in each and every one of the above cases, this entire policy shall be null and void.”
Within a year after procuring the policy, the as sured and his family removed from the property, which was situated in the city of Leavenworth, and moved to the city of Lansing, where they have ever since resided. After the property was vacated by the assured, it was continuously occupied by his tenants until the 1st day of December, 1896, when the tenant then in possession vacated. Thereafter it was vacant and unoccupied until the 12th day of December. On the 13th or 14th day of December, the plaintiff commenced making repairs on the building, going from his home in Lansing, working on the property during the day and returning in the evening. This continued until the 17th. Thereafter he and his stepson, who was assisting him, slept in the house until, and including, the night of the 21st. There was some old furniture, of no special value, in the house, which had been left by the assured when he moved to Lansing. They had provisions, did their own cooking, and ate in the house. On December 22 the assured became sick, and he and his stepson returned to their home in Lansing. He did not again return to the premises until after the fire, which occurred on the .night of the 26th of December, and there is no evidence in the record that any person representing him was at the house after December 22.
■ The defenses to the action were : (I) That the conditions and stipulations in the application were warranties on the part of the assured, one of which was that the house at the time was occupied as a dwelling by himself and family; and it was contended that when the assured removed from the house and rented it to a tenant, it was a violation of the warranty and forfeited the policy; (2) that, the property having become vacant on the 1st day of December, and so remaining until the 12th day of that month, without the consent of the insurance company indorsed on the policy, the policy became immediately forfeited, null and void, and the company released from liability, although the premises may have been thereafter and prior to the fire reoccupied ; (3 ) that the property became vacant on December 1 and so remained until it was destroyed by-firs, and for this reason th.6 company was not liable. At the trial the plaintiff recovered judgment and the defendant prosecutes this proceeding. For the purposes of this opinion we shall treat the property as though it were occupied when the fire occurred.
The statement in the application that the property was then occupied by the assured as a dwelling for himself. and family is not & warranty that it shall continue to be so occupied; it is only a warranty of the situation at the time the insurance is effected. (May, Ins. §§247, 248.) It is conceded that from the 1st to the 12th of December the property was vacant and unoccupied without the consent of the insurance company having been indorsed on the policy, and, in fact, without its knowledge.
The important question is, Did this vacancy terminate the policy or was the policy only suspended during this time and again revived upon a reoccupancy ? We are of the opinion that, under the conditions of the policy, it was forfeited when the property became vacant and unoccupied without the consent of the company indorsed on the policy, and that no revival thereof could take place without the consent of the insurance company. The plain and unambiguous language of the condition in the policy that, “i-f the above-mentioned buildings be or become vacant or un-. occupied, . . . without consent indorsed hereon, . . . ' then, in each and every one of the above cases, this entire policy shall be null and void,” precludes an interpretation or construction that the policy should only be suspended during non-occupancy and revived again upon reoccupancy.
When a contract stipulates that it shall become void upon the happening of an event, and such event is brought about by one of the parties thereto, the contract as to such party is immediately terminated, and cannot by his acts, without the consent of the other party, be revived or vitalized. We have no concern with the reasons that suggested this provision. The parties might have had such a contract of insurance as they could have agreed upon, and, as they did agree upon this one, the court can give to the language used only its plain and obvious meaning. To us it appears beyond dispute that when the assured allowed his property to become vacant and unoccupied without the consent of the company indorsed on its policy, the policy by its terms became null and void, and it- was not within his power thereafter, without the consent of the company, to reinstate it.
In Insurance Co. v. Gibbons, 43 Kan. 15, 22 Pac. 1010, 19 Am. St. Rep. 118, an action on an insurance policy containing a provision substantially like the one before us, where the property became vacant and unoccupied without the consent of the insurance company, 'and while in this condition was consumed by fire, it was held that the company was not liable. There'are no exceptions in the authorities to the principle announced in that case. These decisions can only be sustained upon the ground, although not always stated, that when the property became vacant in, violation of the condition of the policy, the policy became immediately forfeited. The courts deciding these cases did not commit the folly of interpolating into, or adding to, the policies before them a condition that the insurer’s liability was suspended during the period of non-occupancy and revived again upon reoccupancy. The parties themselves could have expressed this condition if it had been intended.
In Girard F. & M. Ins. Co. v. Hebard, 95 Pa. St. 45, 49, the policy sued on contained the following conditions :
“If the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, or if this policy shall be assigned before a loss without the consent of the company indorsed hereon, . . . then, and in every such case, this policy shall be void.”
The court said :
“The express terms of the contract avoided the policy if either the property insured was transferred or the policy assigned, without the consent of the company indorsed upon the policy. It is not enough that notice of the transfer in the one case, or the assignment in the other, be given to the company. The contract requires that, in addition to the notice, the consent of the company must be obtained and must be indorsed on the policy. The duty of procuring these-things to be done rests with the assured. If he fails in his efforts or neglects to comply with the whole of the requirements, the contract is at an end by force of its .own terms.”
In the case of Moore v. Insurance Co., 62 N. H. 240, 13 Am. St. Rep. 556, it was held :
“A policy rendered void by the violation of a condition that the insured building shall not be unoccupied for a period of more than ten days without the insurer’s consent indorsed on the policy is not revived by the subsequent occupation of the building.”
In the above case the building was occupied at the time of the fire, although it had been vacant more than ten days at one time prior thereto. On page 246 the court used this language :
“The strict and literal meaning of the stipulation that the policy shall be void if the premises remain unoccupied more than ten days is not that the insurance will be suspended merely during non-occupation after the ten days and will revive when pccupationis resumed. In ordinary speech, a void policy is ©ne that does not and will not insure the holder if the insurer seasonably asserts its invalidty. It might be argued that this clause should be so construed as to accomplish no more than the purpose for which it was inserted; that its sole purpose was to protect the insurer against the risk resulting from non-occupation ; and that if this risk was terminated by reoccupation, the parties intended the insurance should be suspended only during the existence of the cause of a risk which the company did not assume. On the other hand, it might be argued that such an intention would have been manifested by words specially and expressly providing for a suspension and resumption of the insurance, and would not have been left to be inferred from the general agreement that the policy should be void ; that a final termination of the insurance at the end of ten days of non-occupation is plainly expressed by the provisions that the policy shall then be void ; and that the parties would not think it necessary to go further and provide that the void policy should not become valid on reoccupation.”
If the provision of the policy in question is to be given any significance, it is not material that the property was destroyed after reoccupancy. Non-occupancy without the consent of the company forfeited the policy. Of what consequence, therefore, is it that, before loss, the property was reoccupied? To guard against such provisions in insurance policies, many states, notably Michigan, Ohio, and Iowa, have enacted laws providing, in substance, that this and similar conditions shall not prevent a recovery, if it be shown that the failure to observe the condition did not contribute to the loss. We have no such statute.
It was suggested in the argument that the court properly overruled the motion for a new trial because it was not filed at the term of court at which the cause was tried. The record shows that the cause was tried on' the 8th of February and the motion filed on the 10th, and considered and overruled. Under such circumstances, and in the absence of a showing that it was overruled because not filed at the term of court at which the trial was had, this court will not assume that it -was not so filed.
The judgment of the court below is reversed, and the cause remanded with instructions to sustain the demurrer of the defendant to the plaintiff's evidence.
All the Justices .concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The defendants were brought before a justice of the peace for preliminary examination, upon a proper complaint charging them with an assault with a dangerous-and deadly weapon with intent to kill. Upon that examination the justice announced that he did not find “probable cause for charging the defendants with the offense,” but did find that they were guilty of an assault and battery. Thereupon the attorneys representing the state withdrew from the place of trial, and announced that they would take no further part in any of the proceedings. The county attorney at once caused to be drawn, verified and filed in the district court an information charging the defendants with the same offense as that stated in the complaint filed before the justice of the peace, and a warrant for their arrest was issued. Thereafter he returned to the office of the justice of the peace, and while there the defendants, their attorney being present, offered to plead guilty to an assault and battery. No complaint, written or otherwise, had been made charging them with this offense. This plea was accepted, and thereupon the justice adjudged them guilty of assault and battery and fined them twenty dollars each, and taxed the costs of the prosecution against them. The county attorney took part in adjusting the amount of costs.. This fine and these costs were paid by the defendants and they were discharged. Subsequently they were arrested under the warrant issued as noted above, and entered into a recognizance in the district court, and were thereafter called for trial upon the information filed, no other or further preliminary examination having been had. A plea in abatement and bar was filed, and the facts were developed as hereinbefore stated. The court overruled the plea and held the defendants for trial. Upon the trial the same facts were brought out as were shown before the justice of the peace on the pre-' liminary examination, and thereon one of the defendants was convicted of a felony and the other of assault and battery, and judgment was rendered upon such conviction, from which they appeal to this court.
The first question presented is whether the defendants could be put upon their trial for the felony charged without having been committed for trial by the examining magistrate on a preliminary examination.
The state claims that the fact that the defendants had a preliminary examination is sufficient to warrant the filing of an information, notwithstanding upon such examination they were discharged; that ‘ ‘ the only thing required is that he have or has an opportunity to have such examination, and after this has been accorded him, it rests with the county attorney and the district court as to whether he shall be further prosecuted.”
We do not think this is a proper construction of the statute. The preliminary examination required is one occurring in the identical proceeding in which the defendants have been bound over to the district court, and growing out of which an information is finally filed by the county attorney. While one object of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him, it is also a step and a necessary step in the proceeding that leads up to 'his trial in the district court. He may not be put upon his trial without the finding of the examining magistrate that there is probable cause for believing that he is guilty of the crime charged, and until a preliminary examination has ripened into such a finding and a consequent binding over to the district court, the county attorney is not authorized to file an information against him. “The party accused has aright to a preliminary examination and a finding of probable cause, before he can be placed upon his final trial.” (The State v. Montgomery, 8 Kan. 355.) The defendants’ plea in abatement ought to have been sustained, and the defendants not' put upon trial as they were.
A further question will necessarily arise if the defendants are again put upon trial. It is whether the plea of guilty entered by the defendants, the judgment of the justice of the peace upon such plea and the satisfaction of such judgment constitute former jeopardy, so that they could not again be tried for the offense to which they pleaded guilty, or the greater one with which they were charged in the information: To constitute former jeopardy, one must be placed on trial on a valid complaint, indictment or information before a court of competent jurisdiction. The court must be one not only having jurisdiction of the offense, but jurisdiction of the defendants, which has been obtained by due process, based upon legal proceedings. What these are, must be looked for in the statute. We there find, in section 2 of the criminal procedure before justices of the peace (Gen. Stat. 1901, §5807), that in order that one shall be put upon trial for a misdemeanor, a complaint must be made to the justice of‘the peace and a warrant issued. Must this complaint be in writing? A complaint is “a form of legal process that consists of a formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong .done or a crime committed.”
In Bigham v. State, 59 Miss. 529, a defendant appeared before a justice of the peace and without.complaint having been made, as required by the statute, pleaded guilty to a misdemeanor. The supreme court there held (page 580) :
“The proceedings in a trial by a justice of the peace of one charged with a misdemeanor are regulated by law. . . . It is true that persons may be arrested in certain cases without a warrant; but without a charge preferred as required by law, there is no case to be disposed of by the'justice of the peace, and nothing to sustain a conviction in such a case as this record presents.”
In Wilson v. The State, 16 Tex. 246, the statute directed that a justice of the peace should cause any person charged on oath to be brought before him for trial. Wilson voluntarily appeared, without complaint having been filed, and pleaded guilty. The court held :
“Justices of the peace had not jurisdiction . -. . finally to try any offense on the voluntary appearance and confession of the offender without complaint, and, therefore, a conviction by a justice in such a case was no bar to another prosecution for the same offense.”
In the case of Prell v. McDonald, 7 Kan. 426, 12 Am. Rep. 423, a mayor having magisterial jurisdiction tried one orally charged with violation of a city ordinance. The ordinance required a complaint to be made, as does section 2, quoted above. The mayor found the accused guilty and assessed a fine against him, in default of the payment of which the defendant was sent to jail. Action was brought for false imprisonment. It was held that the mayor was without jurisdiction to proceed without a written com plaint, and his warrant of commitment, being based upon a void proceeding, did not protect either himself or the marshal in an action for false imprisonment.
At common- law, a written complaint was required before a defendant could be put upon his trial for an offense, except in cases of contempt. This common-law rule prevails in this state unless “modified by-constitutional and statutory law.” (Gen. Stat. 1901, § 8014.) Instead of modifying this rule, we think the act conferring jurisdiction in criminal matters upon justices of the peace confirms it, for while section 2 does not in terms say the complaint shall be in writing, it does not say that any other form shall be sufficient. Section 22 (Gen. Stat. 1901, § 5827) directs that, upon appeal, the district court shall hear the cause upon the original complaint, which could not be done unless the original complaint were in writing.
We think it the intent of the legislature that such complaint must be in the clear and distinct form of a writing. It would not do to hold that a citizen’s liberty may be taken from him and his character aspersed by a criminal proceeding depending upon the fleeting and unstable foundation-of an oral statement made to a magistrate. We think, further, that the magistrate gets jurisdiction to issue his warrant and proceed with the trial of. the offense charged only by the filing of such written complaint. The entire proceeding is one regulated by law and the law must be followed in order that such proceeding shall be valid.
It is claimed that as section 55 of the criminal code (Gen. Stat. 1901, §5495) provides: “If upon the trial it shall appear that the defendant is guilty of a public offense other than that charged in the warrant, he shall be held in custody of the officer, and tried for such offense,” no additional or other complaint need have been filed. The term “trial,” as found in this section, has already been construed by this court as meaning “preliminary examination,” and not a trial in the ordinary sense of the term. (Redmond v. The State, 12 Kan. 172.) The complaint filed was one authorizing the justice to conduct a preliminary examination of the alleged felony, and not one authorizing him to proceed to try for a misdemeanor.
It follows, because no complaint had been filed with the justice of the peace charging the defendants with, assault and battery, the justice of the peace was without jurisdiction to entertain their plea of guilty, or to assess any punishment upon them under such plea. This being so, no judgment which he rendered against the defendants was in any way binding upon, them, and hence there was no former conviction and consequent jeopardy. •
The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with this opinion.
Doster, C.J., Johnston, Ellis, JJ;, concurring. | [
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Per Curiam:
Plaintiff in error was the holder of a mortgage of $1600 on a lot in Kansas City, not due, as shown by the records. Defendant in error Ebert Cable purchased the equity of redemption in the lot for a nominal sum and received a quitclaim deed to the property, which he did not place of record. A suit was brought in the name of Cable to cancel the mortgage and quiét his title. Service was obtained on plaintiff in error and all parties in interest by publication, and a decree, purporting to have been rendered upon evidence, was entered, finding the mortgage to have been paid, awarding a cancelation, and quieting the title in Cable.
On the day this decree was entered an abstract of title was submitted to an attorney, wbo certified, in writing, that the title was perfect in Cable. Two days thereafter the property was conveyed by deed of general warranty to defendant in error Mabel Robinett, for a consideration of $1000. In the purchase, Mabel Robinett was represented by her husband, who claimed to have made the purchase relying on the certificate made by the attorney examining the abstract. The attorney testified that , he made the certificate upon the strength of the decree quieting title in Cable. The record shows the purchase-money to have been divided between parties connected with the deal.
The plaintiff in error had no actual knowledge of the pendency of the action of Cable to quiet title, but learned of the same within a month from the date of the decree. It thereupon filed its motion to open up the decree, which motion was sustained. It also commenced this action to set aside the conveyance to Robinett and for foreqlosure of its mortgage. The purchaser, Robinett, defended her title on the ground that she was a purchaser in good faith, in reliance upon the decree quieting title in Cable. Finding and judgment were in her favor, and plaintiff below brings error.
That plaintiff in error has been wronged in this matter must be conceded. That Cable had no right to a decree canceling the mortgage and quieting his title is apparent. That the whole scheme of securing the decree in the action to quiet title was conceived and carried out for the express purpose of defrauding plaintiff in error is not open to dispute. That the mortgage was not paid, and ihat the parties responsible for the bringing of the action to obtain its cancelation, and obtained the'decree of cancelation upon evidence as recited therein, knew the mortgage was not paid, and that the decree was false, wrong, and vicious, is clear from the record. The question remains, Can this wrong to the plaintiff in error be righted at this time, in justice to others ?
The trial court has found from the evidence that defendant in error Mabel Robinett purchased in good faith, relying on this decree. This finding is conclusive upon this court. Upon this state of the record, the law is plain. Under the statute, such purchaser cannot be defeated by the setting aside and vacation of the decree under which the purchase was made. This court, in Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428, passed on the precise question here presented, and there held :
“Where a party plaintiff, who has obtained upon service by publication a judgment in his favor in an action in the district court to quiet his title, conveys in good faith the land to a stranger before an application is made to open the judgment under section 77 of the code, the subsequent vacation of the judgment does not divest the purchaser of his title.”
The case declares a rule of property, has been long followed by this court, is the well-settled law of the state, and is decisive of this case. It follows that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for the recovery of attorneys’ fees. Defendant in error entered into a written contract with the Honorable J. F. Thompson, a practicing lawyer residing in Iola, in which it was stipulated that for a certain sum the latter would carry through to final judgment an action brought by Parish to cancel a gas and oil lease on his land held by the Palmer Oil and Gas Company.
After a decree had been entered against the gas company in the district court, proceedings in error were prosecuted by the latter to this court. The judgment of the court below was affirmed. (Palmer v. Parish, 61 Kan. 311, 59 Pac. 640.) The brief for this court was prepared by Judge Thompson. The case was assigned for argument on December 6, 1899. A day or two before that time Judge Thompson was taken ill. His client was informed that if he desired the case to be argued orally, other counsel must appear before the supreme court. It was finally agreed that the Honorable Stephen H. Allen, of Topeka, should be called on to argue the case, which he did. Nothing was said by Parish to Judge Thompson about payment to Judge Allen as compensation for his services. Defendant in error testified that he presumed Judge Thompson would satisfy Judge Allen in some way, and that the understanding was that he (Parish) should have the benefit of Judge Allen’s services with out cost to him. Of such understanding the plaintiffs in error were not advised. They understood that Judge Allen was to appear and argue the case in behalf of Parish, with no other agreement for payment than the law implies from the rendering of such services.
The court below instructed the jury that if, in the several conversations had between the defendant below and Judge Thompson, it was agreed that Judge Thompson should request Judge Allen to appear in the supreme court and argue the case, then Parish would be liable to the plaintiffs in the action. The court below further instructed that if Judge Thompson gave his client to understand that he (Thompson) would defray the slight additional expense for counsel fees, or that the services would be rendered by Judge Allen as a matter of courtesy to a brother lawyer, then there could be no recovery in the action. There were a verdict and judgment for the defendant below.
We think the court erred in giving the instruction, the substance of which is set out last above. The theory adopted b,y the trial court leaves out of consideration the rights of Judge Allen to compensation which the law implies from the fact of his employment with the knowledge and consent of Parish, and allows him to be paid or not, as Judge Thompson and his client may have agreed in the absence of Judge Allen, and without any knowledge on his part of the agreement between them. . It was established on the trial that plaintiffs in error had no knowledge of the original contract between defendant in error and Judge Thompson which fixed the fees of the latter for carrying on the litigation. The contract was admitted in evidence on behalf of the defendant below. This we think was error. If the defendant below desired to escape a liability to plaintiffs in error, he should have informed them of his contract with Judge .Thompson and given them the option of looking to the latter for payment of fees, or of not undertaking to assist in the presentation of the case to this court.
In Brigham v. Foster, 7 Allen, 419, it was held :
“A party to a suit, in which the employment of senior counsel is necessary, is liable for the reasonable value of the services of a counselor at law who acts as senior counsel at the trial, in his presence, in consultation with him, and without objection from him, under a retainer for that purpose by the attorney of record, although there was a secret agreement between him and the attorney of record that such services should be paid for by the latter.” (See, also, Hogate et al. v. Edwards, 65 Ind. 372 ; Sedgwick v. Bliss, 23 Neb. 617, 37 N. W. 483.)
Plaintiffs in error had a right to suppose that they were working for Parish, and the latter must have known that compensation would be expected from him. He gave no suggestion which would induce a different belief.
In Ennis v. Hultz, 46 Iowa, 76, an opposite position was taken. We are quite well satisfied, however, that the rule of the former cases is supported by better reason.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Doster., C. J.:
Nearly all of the will of John A. (McLaughlin, deceased, is material to the question in this case. Omitting merely introductory or other formal matter, the instrument is as follows :
“3. It is my first desire that my beloved wife, Louisa McLaughlin, shall be amply provided with a comfortable home, and that ample provision shall be ■made for her maintenance, comfort, pleasure and happiness as long as she shall live.
“To this end I direct that our home, as now constituted, at No. 1018 Topeka avfenue, being lots number three hundred and forty-four (344) and three hundred and forty-six (346), on Topeka avenue, in the city of Topeka, Kan., with our family, consisting of my said wife Louisa McLaughlin, our daughter Emma Evarts, widow, with her children, our son John G. McLaughlin, and oiir daughter Louise McLaughlin, shall continue to be kept up during the life of my said wife ; and for this purpose I direct my executor, hereinafter named, to leave all my household and kitchen furniture, family library, pictures, etc., in my said home for the free and uninterrupted use and enjoyment of my said wife and children above named, so long as such family relation shall be maintained.
“And I further direct that my said executor shall take charge of lot No. two hundred and thirty-one (231), on Kansas avenue, city of Topeka, Kan., collect all rents for the same, and apply sáid rents, first, to making necessary repairs of the building upon said premises, keeping said building fully insured and payment of all taxes; and second, that he shall pay all taxes, necessary repairs and insurance upon my home property above described ; and third, that he shall pay the residue for the necessary expenses of keeping up the home for my wife, as above described, including food and raiment and all other necessary expenses for my said wife, and son John G. McLaughlin, and daughter Louise McLaughlin ; also, for such expense of my said daughter Emma Evarts and her children as she may be unable to provide out of her separate income ; but since the provision above set forth is for the purpose of providing for the comfort and enjoyment of my said wife, I do hereby direct that the sharing in the income and proceeds of rentals of said lot No. two hundred and thirty-one (231), on Kansas avenue, by each and all of my children above mentioned, shall depend upon such children continuing to reside in my said home and continuing to contribute to the comfort and happiness of my said wife by any and all acts of filial affection and kindness due from a child to a parent. And I further direct that all expenditures for the purposes of the home, as above set forth, shall be made by my said executor, or with his advice and consent: And I further direct my said executor that he shall not apply any of the proceeds of said lot No. 281 on Kansas avenue except as above directed during the life of my said wife.
“4. In case my said wife shall not survive me, or if she shall survive me, then upon her death, I direct that my said executor shall proceed to have my household and kitchen furniture, family library, etc., appraised by three disinterested appraisers to be appointed by the probate court of Shawnee county, Kansas, and then that he shall distribute such articles as may be desired by any of my children to such child and charge the same to such child at the appraised price of such article, as an advancement to such child upon his or her share of my estate. And I further direct that my said executor shall then proceed to sell, at public or private sale, as to him may seem best, all the residue of my household effects as shall not have been taken by any of my said children.
‘■‘5. As a reward for his faithfulness during his continuous service in my employment for a period of more than twenty-one years, I do hereby give, devise and bequeath all and every my gunsmith tools and work-benches now used in my shop in the building situate on lot No. 264 Kansas avenue, city of Topeka, to George Haus, only stipulating that he shall not take possession of said tools or remove them from said premises until my store and business in said building shall have been sold.
“6. The following are all of my living children and heirs at law, viz. : Mary E. Penney, wife of James L. Penney, of Hutchinson, Kan. ; Emma Evarts, widow, of Topeka, Kan. ; John G. McLaughlin and Louise McLaughlin, of Topeka, Kan., being all of my living children ; also Mabel Estelle Hope, aged twelve years, daughter of my daughter Ida McLaughlin Hope, residing at Independence, Mo., and Olive Eugenie McLaughlin, daughter of my son James A. McLaughlin, aged ten years, and residing at Chicago, state of Illinois.
“7. I desire and. direct that in all distribution of my estate, except as been hereinbefore provided, all of my said children and my said grandchildren shall share and share alike; provided, that if my said son John G. McLaughlin, or my said daughter Louise McLaughlin, or either of my said granddaughters, Mabel Estelle Hope or Olive Eugenie McLaughlin, shall die before the distribution of my estate as hereinbefore directed, without issue, then in that case the distributive share of such deceased person shall be distributed to the survivors, share and share alike, in the same manner and upon the same conditions as the remainder of my estate.”
“9. I direct that my said executor, so soon as may be practicable after my decease, shall proceed to sell all of my personal property of every kind at public or private sale, with or without appraisement, as to him may seem best, excepting always all property herein-before disposed of.
“10. Within live years from the date of my death, I direct that my said executor shall proceed to sell, at public or private sale, as to him may seem best, and without application to or the intervention of the probate court, the following-described pieces and parcels of land, lying and situate in Shawnee county, state of Kansas, to wit: Lots No. three hundred and thirty- eight (338), three hundred and forty (340), and three hundred and forty-two (342), on Quincy street, in the city of Topeka, Kan. ; also lots No. one hundred and ten (110), one hundred and twelve (112), one hundred and fourteen (114), and one hundred and sixteen (116), on East Tenth (10) street, in said city of Topeka; also, the undivided half of the building and lease on lot No. two hundred and sixty-four (264), on Kansas avenue, said city of Topeka, such sales to be made on such terms as to my executor may seem for the best interests of my estate.
“11. I direct that, of the proceeds of the sale of my personal property and the foregoing real estate, my executor shall pay, first, my just debts and the expenses of the caring for and settlement of my estate, and the residue he shall distribute to my children and grandchildren hereinbefore named, as hereinafter directed, in equal proportions, share and share alike.
“12. I direct that my said executor shall, from time to time, as sufficient funds shall come into his hands for the purpose, pay to each of my said daughters, Mary E. Penney, Emma Evarts, and Louise McLaughlin, her pro rata share of such funds, to be applied upon her distributive share of my estate ; .but in case of the death of either said Mary E. Penney or Emma Evarts, I direct that he shall invest the share of such deceased person and apply so much of the proceeds thereof as may be necessary to the support and education of the children of such deceased person, during their minority, and then distribute pro rata.”
“14. I further direct that my said executor shall, from time to time, invest the share of my said granddaughters, Mabel Estelle Hope and Olive Eugenie McLaughlin, in such manner as to him shall seem for the best interests of said children, during their litmority, and shall from time to time, as may be necessary, apply the proceeds thereof towards the proper support and education of said children, and that, upon the arrival of each of said children at her majority, she shall be paid the full amount of her estate.
“15. In consideration of the fact that my said son -John Gr. McLaughlin seems incapable of acquiring business habits and of following any steady occupation, and seems to lack financial ability, now, therefore, in order to protect him from having his share of my estate squandered, and to protect him from becoming a public charge or a burden to his friends, and to provide for him a comfortable living, I direct that my said, executor shall invest the share of my ■said son in such manner as to my executor shall seem for the best interests of his estate, and shall apply the net proceeds thereof to the maintenance and support of my said son; and for this purpose my executor shall, from time to time, pay to him, as his necessities may require, such sum as may be necessary for his health and comfort; but at no time shall any one payment exceed the income of his estate for the preceding three months ; provided, that if my said son shall at any time develop habits of industry and thrift, and financial ability, then I direct my executor to render him such assistance from his share of my estate as to my executor shall seem wise and prudent ; but at no time shall my executor give him so much of the principal share of my estate as shall reduce his income below a support, until he shall have established his ability to properly care for his estate and make the same productive. And to further protect my son from unscrupulous persons, I hereby direct that no obligation of any kind by him contracted shall be a lien upon the share of my estate herein set apart for his benefit, or upon any proceeds or income thereof, unless said obligation shall, previous to the contracting of the same, have been approved by my said executor; it being specially understood and directed that my said son shall only take a life-interest in said share and in the proceeds of the same unless he shall develop the ability to take care of his interests as above stated, and that in- the event of his death without having developed such ability, the residue shall descend to his children,-if he have any; otherwise» it is to revert to my other heirs, hereinbefore named, share and share alike, in the same manner as the rest of my estate.
“16. If from any cause the ‘home’ for my beloved wife, as hereinbefore described, shall be broken up, then in that case I direct that my executor shall proceed to sell said lots three hundred and forty-four (344) and three hundred and forty-six (346), on Topeka avenue, said city of Topeka, and invest the proceeds in such manner as shall yield a certain revenue, and expend the revenue from the same to provide my said wife and those of our present family who remain with and care for her with a comfortable home and a comfortable living.
“17. Within five years after the death of my said wife, I direct my said executor to proceed to sell, at public or private sale, as to him shall seem best for the best interests of my estate, all my remaining real estate, to pay all necessary expenses of the settlement of my estate, and to' divide the residue among my children and grandchildren as hereinbefore directed.”
The Louise McLaughlin named in the foregoing will died before distribution of the estate was made. She left a will devising her estate to various persons. Olive E. McLaughlin and Mabel E. Hope, two of the grandchildren of John A. McLaughlin, named as distributive legatees in his will, contend that upon the death of their Aunt Louise her undistributed legacy lapsed and thus increased the amount of their distributive share. This contention is based upon the fact that their grandfather’s will did not in terms devise any property to the testator’s children or grandchildren, but contained only directions to distribute it, or to sell and distribute. Hence, it is argued that, on account of the non-occurrence of the actual setting apart of Louise McLaughlin’s share in her lifetime, the title to it never vested in her, and, therefore, never passed to the devisees naihed in her will, but remained a part of her father’s estate, to be distributed to the surviving legatees under the seventh clause of his will. In view of the other terms of the will this argument is not sound.
It is true, of course, that if a legacy does not vest in the lifetime of the legatee it lapses into the estate out of which it was to be paid or passes over to some other named legatee or devisee ; and it is true that the non-use in the will of words of gift is evidence, and often strong evidence, of lack of intention in the testator to vest the legacy until the literal happening of the contingencies upon which it is made payable. However, every will furnishes its own law. The language of such instruments is so various that only the most general rules can be laid down for guidance in their interpretation. One of these rules is that the law favors the vesting of estates, and the intent to create a contingent remainder will not be presumed, but must be quite plainly expressed. (Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, 3 L. R. A. 690.) In Under-hill on Wills, volume 2, section 866, a rule is stated which seems entirely applicable to this case, and which commends itself to us as sound:
“A legacy will the mor® readily be construed and vested in every case where there is no other gift than a direction to pay or to distribute money, if it is apparent that the payment or the distribution was postponed, not in order that the legatee should personally perform some act or acquire some personal qualification as a condition precedent to payment, but where the postponement is clearly intended for the benefit of some one who takes a prior interest, or, in the language of the cases, where the postponement of payment is ‘for the convenience of the estate.’ An illustration of this is found where a fund is bequeathed to pay A. the income for life,, and on his decease to divide or to distribute among individuals or a class.”
This statement of text is illustrated by a large number of decisions cited in the foot-note. Now, in this case, the terms of the will laid no obligation on Louise McLaughlin to qualify herself to receive her father’s legacy. She was not required to reach a certain age, nor to marry, nor to have issue, nor to perform any act, nor acquire any status as a condition precedent to the enjoyment of her distributive share. It is apparent, however, that the testator had a reason for withholding its present enjoyment from her. That reason was his plainly evinced desire that his estate should be kept intact, or largely so, in order to insure a comfortable maintenance for his wife. In the third clause of his will he declared as follows:
“It is my first desire that my beloved wife, Louisa McLaughlin, shall be amply provided with a comfortable home, and that ample provision shall be made for her maintenance, comfort, pleasure and happiness so long as she shall live.”
The evidence of this conjugal solicitude runs throughout the will. Immediately after the above-quoted expression of desire, he declared that, in furtherance of it, he directed that the homestead of himself and wife should “continue to be .kept up” during her lifetime, for her use and enjoyment and that of their children. To the end that the home might not be broken up, but might be kept for his wife and children, he further directed in the third clause that the net income from a certain other building and lot should be applied toward keeping the former up, and toward the support of his wife and such children as might remain there with her. Further on, in the sixteenth clause, he directed that, “if for any cause the home for my beloved wife as hereinbefore described shall be broken up,” it be sold and the proceeds invested in such manner as to provide for the support of his wife and such of their children as remained with and cared for her. In the fourth clause, he directed that his household belongings, library, etc., should not be sold or distributed until after the death of his wife. After directing, in the tenth and succeeding clauses, that his personal property and' certain described real estate be sold and the proceeds distributed among his legatees, he further directed, in the seventeenth clause, that the remainder of his property be sold and distributed after the death of his wife. Thus, throughout the will he manifested the solicitude first expressed in it that his wife should be certainly and continually provided with a comfortable maintenance, and that to that end sufficient of his estate should be kept intact and undistributed, and that, as a means to such end, the payment of the legacies, and not their vesting, should be postponed.
The judgment of the court below is affirmed. ‘
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action by John C. Kingscott against the Atchison, Topeka & Santa Fe Railway Company to recover damages for personal, injuries resulting from the explosion of an oil barrel. Kingscott was employed by the railway company in an oil house at Argentine, and while emptying coal-oil from a barrel into a tank by-means of compressed-air pressure the barrel burst, and portions of it struck' him upon the face and body, destroyed an eye, and inflicted other severe injuries. In his petition he alleged that the railway company was negligent in furnishing an old and defective barrel; in failing properly to inspect the barrel before it was filled with oil; in not’ warning him of the danger of emptying barrels by the dangerous agency of air pressure, and in failing to furnish him with a safe appliance for' emptying the barrels. The railway company answered by alleging that the injuries sustained by Kingscott were the result of his own want of care in emptying the barrels, and were not caused by the negligence of the company.
In submitting the case to the jury, the court eliminated the question of the negligence of the company in furnishing an unsafe appliance for emptying oil barrels and in failing to warn Kingscott of the danger of using compressed air. The questions submitted to the jury were : “Did the company provide a defective barrel, and did it properly inspect the barrel so as to ascertain its fitness for the use to which it was put; was the flow of oil obstructed by burlap or other foreign substance in the barrel, and was Kingscott himself negligent in failing properly to regulate the flow of oil from the barrel?”, It appears that oil was emptied from barrels into the .tank by means of air pressure, the maximum being eighty pounds to the square inch. On the pipes by which the reservoir was attached to the barrel were valves to regulate the pressure, and on the wall near by was a gauge which registered the amount of pressure being used. The process is to bore a hole in the side of a barrel and connect it with the tank by means of a rubber tube. Another hole is bored into the head of the barrel, which is connected with an air reservoir by a pipe, and the pressure of the air forces the oil out of the barrel and into the tank. In this instance, the plaintiff had made the connections, and the greater part of the oil had been emptied out of the barrel by this method when Kingscott tipped the barrel up so all the oil might flow out, and immediately the explosion occurred, from which the injuries resulted. One of the contentions of the plaintiff was that there were burlap and other foreign substances in the barrel which obstructed the flow of the oil, and when the air pressure was applied the barrel necessarily burst. The jury found that the explosion was not caused by- the negligence of Kingscott in turning too much air into the barrel, or in failing properly to regulate the air pressure, but that it was caused by the stoppage of the outlet for the oil and .the defective head of the barrel. Among other matters, the jury found that Kingscott was only applying from five to twenty pounds of pressure just prior to the explosion, and that that was sufficient to accomplish the purpose. It was also found that the barrel appeared to be sound and in good order before the explosion occurred, and that its unsoundness could have been discovered by a pressure test. The jury further answered that'they could not definitely determine what the obstruction to the outlet was which caused the explosion.
The main contention of the railway company is that the charge of negligence was not sustained by the testimony. It is argued that Kingscott understood the use of compressed air and had large experience in its application; that a gauge was furnished which indicated the amount of pressure, and as he had control of the v.alves he could regulate the air pressure, and was, therefore, responsible for the excess of pressure which caused the explosion. The trial court having taken from the jury the question of the condition of the compressed-air appliances, the verdict rests only on the negligence of the company in providing a defective and insufficient barrel, and one which contained something which clogged the outlet for oil, and thus caused the explosion and the injury. We think the testimony tends to show negligence of the railway company and that it is sufficient to sustain the verdict. It was an old, second-hand barrel which was provided, but the fact that it had been previously used does not show that it was unfit for further use. There is proof tending to show that the barrel was unsound, that is, that its head was somewhat decayed and defective, and some of the testimony tends to show that the outlet was obstructed by some foreign substances. As compressed air is a dangerous agency to use in emptying barrels, it was highly important that barrels should be provided to withstand the pressure, and which contained nothing that would obstruct the outflow. According to some of the testimony, an obstruction to the outflow renders the process dangerous where only a few pounds of pressure are used. The maximum pressure in the reservoir was eighty pounds, and although regulated to some extent by the valve, a witness stated that the air quickly equalized when the outflow was clogged, and that soon the pressure in the barrel would be increased until it would be equal to the pressure in the reservoir. Whether the company exercised care suitable to the exigencies of the situation, in testing the sufficiency of the barrels was a proper question for the determination of the jury. In view of the danger arising from a stoppage of the outflow, it would seem to have been the duty of the company, in using old wooden barrels, to examine the inside of them, and see whether they contained anything that would obstruct the flow of oil or air. Testimony was offered by Kingscott but refused by the court to the effect that it is practicable to inspect the inside of barrels, and that brewers do so by putting a light in the barrels, and are thus able to discover whether any foreign substance is in them and to remove it when found. This would seem to be a proper precaution to take where so dangerous an agency as compressed air is used in emptying barrels. The fact that such an inspection may not have been employed by the company, or that it may not be used among railroad companies, does not prove that the failure to make it is not negligence. As was said by Justice Brewer in Missouri Pac. Ry. Co. v. Haley, 25 Kan. 64, “it may often be the duty of courts to pronounce conduct negligent, and grossly so, although sanctioned by the custom of the road and the rules of the company, and forbidden by no statute." See, also, Mo. Pac. Rly. Co. v. Holley, 30 Kan. 474, 1 Pac. 130 ; Dougherty v. Rapid Transit Railway, 128 Mo. 33, 30 S. W. 317 ; Wabash Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605 ; Carlson v. Wilkeson Coal and Coke Co., 19 Wash. 473, 53 Pac. 725; Richmond & Danville R. R. Co. v. Weens, 97 Ala. 270, 12 South. 186; Martin v. California Cent. Ry. Co., 94 Cal. 326, 29 Pac. 645; Railway Co. v. Warner, 36 S. W.(Tex. Civ. App.) 118.
No error was committed by the court in declining to instruct the jury as to whether the handling of oil was to be regarded as within the hazards peculiar to the operations of a railroad and as to whether the company was responsible to Kingscott for the negligence of a coemployee. The plaintiff below was not asking for the protection of the fellow-servant act. The duty of inspection and of furnishing safe instrumentalities for its employees devolved upon the company itself, and those who performed those duties represented the company, and for their negligence the company is liable under the rule of the common law. (A. T. & S. F. Rld. Co. v. Seeley, 54 Kan. 21, 37 Pac. 104; Walker v. Gillett, 59 id. 214, 52 Pac. 442.) The railway company asked for the submission of a number of special questions which were refused. An examination of the questions submitted and refused shows that the trial court fairly exercised its discretion in this respect, and submitted questions on the material and controlling issues of the case. Most of the questions refused were not material, and while some of them could have been given without error, they were not so material as to make their refusal a ground of reversal. The findings made are supported by sufficient testimony, and appear to sustain the general verdict.
The judgment will be affirmed.
Doster, O. J., Cunningham, Ellis, JJ., concurring. | [
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Per Curiam:
The defendant in error held a judgment rendered against Moses Saville and another, as sureties for one John Taylor. Within a year after the death of Saville, she sought to obtain an allowance of her claim against his estate, and for that purpose commenced her proceeding in the probate court, where it. was disallowed. Appeal was taken from the order of disallowance to the district court, where it was allowed and judgment rendered against, the estate. By proceedings in error the matter is now before this court.
It seems that two journal entries of the original judgment are found in the records of the district court, where the same was rendered, one bearing date October 8 and another October 11, 1889, and there was a contention whether the judgment was actually rendered October 8 or October 11. This was important because the executions which had been issued, and which were relied on to keep the judgment alive, were based upon a judgment rendered October 8, and this was the judgment on which this proceeding is based. The court must have found that the judgment was actually rendered on October 8. In this we think the court was right. In all probability the journal entry of October 11 was furnished and placed of record through some error.
There were three executions issued — one March 29, 1890, one July 2, 189Í, and one January 27, 1896. The one issued July 2 was never returned by the sheriff, and it is claimed that, inasmuch as this was so, and that more than five years elapsed between the issuance of the first and third executions, the judgment was dormant and. could not be enforced. The statute (Gen. Stat. 1901, §4895) provides that it is the issuance, and not the return, of an execution that tolls the statute. The judgment creditor has done all he can when he has sued out the execution, and it is this that keeps the judgment alive.
It is further claimed that, inasmuch as the execution was not returned, the presumption was that the sheriff succeeded in making the money thereon. Freeman on Executions, second edition, section 49, is cited as supporting this contention. It is there said that, at common law, a former writ should be returned before an alias or pluries could.issue, and that, in order to support the rule, a presumptiop would arise, and continue until rebutted by the officer’s return, that the judgment had been satisfied by levy on sufficient goods under such execution. This rule, however, does not require us to apply the presumption to the case at bar. If payment of the judgment sued on had been made, either voluntarily or by means of an execution, the defendant should have pleaded and proved it. Payment is always a matter of defense.
It is further contended that, inasmuch as Moses Saville was a surety, this action could not be maintained without first showing that the property of the principal debtor had been exhausted, or that he had no property subject to execution. It is true, section 470 of the civil code requires that the property of the principal debtor shall be exhausted before any property of the surety shall be taken, but there are no presumptions that the principal debtor has property that might be levied on. No effort whatever was made in this case to show that he had, or to show that the judgment creditor hafi failed to use all diligence to find the property.
It is further contended that the court abused its discretion in opening the case after the evidence had been closed and argument begun, to permit the introduction of formal proof of the written assignment of the judgment sued on by the original judgment creditor to the claimant. The failure to introduce the writing before was a mere oversight. The fact of its existence was well known and had been spoken of during the progress of the trial. The plaintiff in error could not have been prejudiced in any manner by the action of the trial court. We think it would have been an abuse of discretion on the part of the court to refuse the request of the claimant.
We find no error in the case and affirm the judgment of the court below.
Smith, Cunningham, Greene, Pollock, JJ. | [
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Error from Sedgwick district court. | [
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Appeal from Kingman district court. | [
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Error from Nemaha district court. | [
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Appeal from Cowley district court. | [
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Error from Graham district court. | [
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The opinion of the court was delivered by
Pollock, J.:
S. F. Helms and wife were indebted to A. D. and G. B. Harclerode, jointly, in the aggregate sum of $220, evidenced by a promissory note secured by chattel mortgage. A. D. and G. B. Harclerode were indebted in unequal amounts upon accounts due S. F. Helms. G. B. Harclerode died, and A. D. Harclerode was appointed administrator of his estate. Helms made proof of his claim against the estate in the probate court in the amount of $100, which was allowed and assigned in equal amounts to the second, and fifth classes of claims.
An action in replevin was commenced by A. D. Harclerode, as an individual and in his representative capacity, to recover possession of the property covered by the chattel mortgage. Thereupon, Helms and wife commenced their action against A. D. Harclerode, in his individual and representative capaci ties, to obtain, a judgment setting off the sum of $54 alleged to be due them from A. D. Harclerode, individually, as against his individual interest in the note of $220; and also against the estate to obtain a judgment of set-off of the $100 due from the estate against the interest of the estate in the note.
It was alleged and proved that both A. D. Harclerode and the estate were insolvent. Before bringing this action of set-off, a tender was made to A. D. Harclerode of the amount of his interest in the note, less the sum of fifty-four dollars claimed as a set-off. Also, the sum of twenty dollars was tendered A. D. Harclerode as administrator of the estate as satisfaction in full of the claim of the estate in the note, less the $100 due from the estate. These tenders were declined, and were kept good by deposit in court.
Both actions were by the district court tried together as one. The court, upon conflicting evidence, determined the amount due from A. „D. Harclerode to Helms to be twenty-five dollars, and awarded the claim of set-off in -this amount against the individual claim of A. D, Harclerode. The court refused to award the set-off of $100 as against the estate, but gave judgment in its favor for the full amount of its interest in the note. Separate petitions in error are filed in this court.
The controversy between A. D. Harclerode and plaintiffs in error having been determined upon conflicting evidence, it is at .an end. The right of set-off against the insolvent estate alone remains. It is the contention of plaintiffs in error that this right was complete- in the lifetime of G-. B. Harclerode, and therefore cannot be defeated by his death, but is available in this action. On the other hand, it is insisted that the full one-half intérest in the note is an asset of the estate. The estate being insolvent, the creditors must be paid in the order of the priority of their claims, and to allow the set-off claimed would be inequitable and unjust to the other' creditors of the estate.
The solution of this controversy depends on what we are to regard as assets of the estate. Does the estate which must be applied to the payment of the claims of creditors in the order of their priority as established and classified in the probate court include the full amount of its one-half interest in the note, or-does it only include such amount less the sum of $100 owed by the decedent to Helms before his death ? It is clear that, if the action had been brought before the decease of Harclerode, the set-off would have been awarded. It is also clear that, if the claim on which set-off is demanded had arisen against the estate after the death, and not against the decedent in his lifetime, it would not be available. Is it not equally clear that a division of this sum of $100 among the creditors of the estate in this case would be a distribution, not of assets of the estate, but of the rightful property of Helms, in payment of debts of the estate ?
These considerations impel us to hold that the estate of the deceased from which creditors are entitled to demand payment of their respective claims, in the order of their priority as ascertained by their classification in the probate court, consists of that portion of the estate which remains after settlement of. mutual claims which arose in the lifetime of the deceased, and which might have been set-off in a proper action prior to the decease of Harclerode, and that the set-off pleaded in this case was proper and should have been allowed. This view would seem to be in accord with the "just and equitable rights of the parties, and in harmony with the authorities. The precise question was ruled on in Richardson, Adm’r, v. Parker, 2 Swan (Tenn.), 529:
“Though the estate of an intestate be insolvent, yet one who is a creditor of the estate and also its debtor (both debts having been created in the lifetime of the intestate), may, in an action upon the claim against him by the administrator, set off his demand against-the estate to its full amount.” (See, also, 22 A. & E. Encycl. of L., 1st ed., 312, and many cases cited.)
It follows that the judgment in favor of A. D. Harclerode in his individual capacity must be affirmed. The judgment in favor of A. D. Harclerode, as administrator, must be reversed, for further proceedings in accord with the views herein expressed. The costs of this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In a second amended petition filed by plaintiff below, defendant in error here, in January, 1891, it was alleged that the Atchison, Topeka & Santa Fe Railroad Company, on July 20, 1889, took possession of F street, in the city of Wellington, and laid its tracks in front of two lots owned and occupied by plaintiff as a residence; that F street was regularly laid out and is one of the public thoroughfares of the city; that the ingress and egress of plaintiff to and from his lots was obstructed and cut off; and that the track has been used by the railroad company for the passage of its cars since it was built, to his great annoyance, injury, and damage.
To sustain his claim for damages, plaintiff below offered in evidence an ordinance of the city of Wellington which went into effect on July 21, 1888, entitled, “An ordinance granting to the Southern Kansas Railway Company, its successors, assigns, and lessees, the right to build, maintain and operate a spur to its lines of railroad through, over and across certain streets in the city of Wellington.” The ordinance authorized the building of a track on F street.
Plaintiff below also introduced in evidence a lease between the Southern Kansas Railway Company and the plaintiff in error, dated April 3, 1888, by the terms of which the entire property of the Southern Kansas Railway Company was let and leased to the Santa Fe Company, including lines projected and to be thereafter built. The term of the lease extended during the corporate existence of the lessor railway. The lessee company agreed to pay, as rent, interest on bonds of the Southern Kansas Railway Company and all taxes on the property. There is a condition that, if the Santa Fe company shall fail for a period of three months to perform the covenants of the lease respecting the payment of rent, the lease may be terminated at the option of the lessor.
The plaintiff also read in evidence the deposition of C. H. Curtis, assistant to the vice-president of the Southern Kansas Railway Company, from which it was shown that the latter company paid for the construction of the track in F street, although the labor performed was done by employees of the plaintiff in error, and that the track belonged to the Southern Kansas company.
The question arises on these facts whether the Southern Kansas Railway Company was a necessary party to the action. That it laid down the track was established. Having done so, the plaintiff in error would not be liable for any damages resulting from its construction. The operation of the road by the Santa Fe company in the usual manner did not give a right of action against it by the lotowner. (K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 284, 21 Pac. 1051, 16 Am. St. Rep. 479 ; Central Branch U. P. R. Co. v. Twine, 23 id. 585, 33 Am. Rep. 203.)
It would seem from the pleadings and proof that the lotowner considered the' stopping of his ingress and egress by the railway-track as a permanent appropriation of the ' street as a gwasi-condemnation. Treating the injury as a permanent taking, it follows that the company committing the nuisance in the first instance is not only.a proper but a necessary party to the action. On the subject of permanent appropriation of a street and the measure of damages recovera ble by an abutting lotowner, see Central Branch U. P R. Co. v. Twine, supra, pp. 594, 595.
The case at bar is distinguishable from Ft. S. W. & W. Rly. Co. v. Fox, 42 Kan. 490, 22 Pac. 583, in that here the relation of landlord and tenant existed between the railway company laying the track and appropriating the street with its rails and the railroad company using the same. The ownership of the track hnd ties remained in the lessor company. In the Fox case the company which appropriated the street was succeeded by another which bid in the property of the first at a foreclosure sale. It was said in the opinion : ‘ ‘ He (the lotowner) promptly pressed his claim for damages against the old company, and when the transfer of the property and franchises was made, he as promptly adapted his pleadings to the change of ownership, and proceeded against the new company.” In this case there was never anv change of ownership, but, on the contrary, the company which laid down the track in 1889 owned it at the time this action was commenced in the court below and when the defendant in error obtained judgment against the Santa Fe company.
The jury, in answer to particular questions of fact, found that the plaintiff in error owned the spur track on F street at the time of its construction and when the action was commenced. They made this answer :
“The A. T. & S. F. R. R. Co. having paid for all labor and material used in the construction of this spur track, we find that they (the A. T. & S. F. R. R. Co.) owned said track at the time of its construction and until after the commencement of this action.”
The jury also answered two other questions as follows :
“Q,ues. 2. Did the Southern Kansas Railway Company own the switch or spur track running south on F street to Hunter’s mill after the construction thereof, and at the time of the commencement of this action ?
“Ans. Yes, after its construction, but not at the time of the commencement of this action.
“Q,. 3. Did the Southern Kansas Railway Company pay for the construction and building of the switch or spur track running south on F street to Hunter’s mill, in the city of Wellington, Kan.?
“A. No ; they bought it after its construction.”
There was no evidence whatever to sustain these answers. On the evidence offered by the plaintiff himself, in the court below, there was nothing to predi - dicate a finding that the Santa Fe company owned the spur track at the time it was built and up to the time this action was commenced, and that the Southern Kansas Railway Company owned it afterward.
The judgment of the court below will be reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff in error, Katherine Vaughn, commenced an action in the district court of Leavenworth county against the Kansas City Northwestern Railroad Company to recover damages for the death of Overton Vaughn. She alleged in her amended petition that she was the widow of the deceased ; that he was at the time of his death a resident of Leavenworth county, and that no personal representative of his estate was or had been appointed. The answer of the defendant contained a denial of each and every statement, averment and allegation contained in the petition, and was not verified. Upon the trial of the action, no testimony whatever was offered in support of the allegation that no personal representative of the estate of Overton Vaughn had been appointed. The district court sustained a demurrer to plaintiff’s evidence, and its action in this respect is the principal ground of error alleged in this court.
The plaintiff in error-contends that sections 422 and 422a of the code of civil procedure (Gen. Stat. 1901, §§4871, 4872) are “statutes of authority,” and that the averments of widowhood, residence in this state of the deceased and the non-appointment of a personal representative all combine to make such an allegation of authority as is admitted to be true, unless denied under oath according to the requirements of section 108 of the code (Gen. Stat. 1901, §4542), which reads as follows :
“In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account, duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.”
This contention cannot be maintained. The words “appointment” and “authority” have a peculiar and appropriate meaning which the law has affixed to them, and, as used in the statute relating to the verification of pleadings, refer to designations of persons and delegations of power in the accurate legal sense. They must, therefore, be construed according to such intent. (Gen. Stat. 1901, § 7342.)
The vesting in the widow of a right to sue for and recover damages in her own name, which would not otherwise be recoverable, is not an “appointment” at all, and the synthesis of rights and interests which she thus possesses is very inadequately compassed by the strict term “authority.” Therefore, when it was eaid, in City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113, that the action is “maintainable only by the person who is, by the terms of the'statute, authorized to maintain it,” no more was stated than that the action is maintainable only by the precise person who is by the terms of the statute permitted to do so, and the meaning is clearly distinguishable from that conveyed in speaking of the authority of officers, agents and other classes of persons embraced in the statute relating to verifications.
Besides this, the circumstances of residence within the state, and the non-appointment of a personal representative, are limitations upon the widow’s right to sue at all, rather than constituent elements of her power. They condition, rather than create and invest. They restrict and do not authorize. The conditions referred to must, therefore, appear as substantive allegations in the petition. ( City of Eureka v. Merrifield, supra.) But the statement that no personal representative had been appointed was not an allegation of either appointment or authority. On the contrary, it was an averment of the non-existence of appointment and authority, and hence an unverified denial was sufficient to put it in issue. (A. T. & S. F. Rld. Co. v. Walz, 40 Kan. 433, 19 Pac. 787; Land Co. v. Burger, 49 id. 233, 30 Pac. 476.) No proof of the truthfulness of that fact having been offered, the demurrer to the evidence was rightfully sustained. ( Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894.)
A motion for a new trial because, among other things, of accident and surprise and newly-discovered evidence, supported by affidavits, was made and overruled, but none of the matters so presented related in any way to the radical defect in the plaintiff’s evidence. It is not necessary, therefore, to review the action of the court in denying a new trial upon such grounds.
The judgment of the district court is affirmed,
All the Justices concurring. | [
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Error from Cowley district court. | [
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Error from Chautauqua district court. | [
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The opinion of the court was delivered by
Doster, O. J.:
Plaintiff in error is the trustee of the estate of William Luckhardt, a bankrupt. He sued to set aside a transfer of real property made by the bankrupt to his wife within four months prior to the institution of the bankruptcy proceedings, on the ground that it was fraudulent and void. The court below made findings of fact. Those material to the question for determination were as follows :
“8. That the said William Luckhardt, in causing the above-described real estate to be conveyed to this defendant, intended thereby to prefer this defendant over, his other creditors.
“9. That the said William Luckhardt, in causing the above-described real estate to be deeded to this de feud ant, intended thereby to hinder, delay and defraud his other creditors.
“10. That the said defendant was not a purchaser of said real estate in good faith and for a present fair consideration.”
“12. That upon the trial of this action the counsel for plaintiff admitted that the said William Luckhardt, at the time he caused to be conveyed to the defendant the real estate herein above described, was indebted to the said defendant in the sum of $1500 ; and that it was further admitted that the said defendant, M. M. Luckhardt, at the time she received and accepted the conveyance of said premises to herself, had no knowledge of the insolvency of her husband, William Luckardt, nor of his intention or purpose to defraud, hinder or delay his creditors in the collection of their debts by means of said conveyance to her.of said real estate ; that the defendant had no knowledge of the plaintiff’s intention to make her a preferred creditor; and that the reasonable value of the real estate conveyed to her was $1500.”
Judgment went against the plaintiff, to reverse which he has prosecuted error.
From the foregoing findings, it appears that the defendant in error was not a purchaser of the real estate in question for a present consideration, but that she took it in payment of a preexisting debt; that the conveyance was made with intent on the grantor’s part to hinder, delay and defraud his creditors; that it was accepted by the grantee without knowledge of the grantor’s purpose to defraud, without knowledge of his intention to give a preference, and without knowledge of his insolvency. Do these facts have the effect to invalidate the conveyance?
Clause b of section 60 of the bankruptcy act of 1898 reads as follows :
“If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or •his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.”
Olause g of section 57 reads as follows :
“The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.”
It is evident from the above provisions, without reference to others cognate with them, that preferences by a bankrupt, if accepted without knowledge that they were intended as such, are tolerated by the bankruptcy act, subject, however, to the condition that the one to whom given shall surrender the preference if he would further share in the distribution of the bankrupt’s estate. That was the decision of the majority of the supreme court of the United States in Pirie v. Chicago Title and Trust Company, 182 U. S. 438, 21 Sup. Ct. 906. However, it is declared by clause e of section 67 of the act, as follows :
“That all conveyances, transfers, assignments or encumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act, subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration ; and all property of the debtor conveyed, transferred, assigned or encumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not.exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. . . .”
The above-quoted section must be viewed, of course, in' connection with those which allow the making of preferences, because they are part of the same act and related to the same subject, to wit, conveyances or other transfers of the debtor’s property. However, notwithstanding they are in pari materia, we cannot think that the terms of the one last quoted were intended to be inclusive of such preferential conveyances as might be executed with a fraudulent intent on the debtor’s part. The giving of a preference by a failing debtor is not, in and of itself, fraudulent. That has been several times decided by this court. (Arn v. Hoerseman, 26 Kan. 413 ; Bishop v. Jones, 28 id. 680; Voorhis v. Michaelis, 45 id. 255, 25 Pac. 592; Hasie v. Connor, 53 id. 713, 37 Pac. 128.) Such we believe to be the general rule, and it would appear from clause b of section 60, before quoted, that the act of preference can be regarded as fraudulent only in the event of the creditor’s knowledge of his debtor’s intent and purpose in performing it. It is not wrong for a creditor to receive payment' of his debt from the failing debtor, but it is wrong for him to receive it knowing that to do so would violate the rule of equality between himself and other creditors.
It is, however, urged that, by the terms of clause e of section 67, the intent of a debtor in making a conveyance is the test of the validity of the transaction. That section, in our judgment, relates to transfers other than those to creditors. Transfers to creditor had been already provided for by clause b, section 60, and by that section such a transfer was validated unless “the person receiving it,” “or his agent acting therein, shall have reasonable cause to believe that it was intended thereby to give a preference.” That section, therefore, makes the creditor’s knowledge of his debtor’s intent the test, because without such knowledge the transaction is not wrong on the creditor’s part. Clause e of section 67 makes the debtor’s intent, “except as to purchasers in good faith and for a present fair consideration,” the test, because it is difficult, if not impossible, to conceive of a transfer other than to one of such excepted class of persons, if made with such intent, that could have, as against creditors, any meritorious consideration to support it. Therefore, by that section, the debtor’s purpose in making the transfer may well be made the test.
Cases are cited to us by counsel,on both sides, but none of them appears to us to bear directly on the point at issue. There is, however, a significant expression in Pirie v. Chicago Title and Trust Company, supra, in harmony with the view we have expressed. Mr. Justice McKenna, in delivering the opinion of the majority of the court, argumentatively said of clause e of section 67: “Its purpose being to prohibit the disposition of property by the debtor to persons other than creditors in fraud of the act.”
The judgment of the court below is affirmed.
Johnston, Smith, Cunningham, Greene, JJ., concurring. | [
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Error from Barber district court. | [
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Error from Crawford district court. | [
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The opinion of the court was deliv ~?d by
Gkeene, J.:
The defendants in t ror entered into a partnership in April, 1897, to engage in the business of plumbers and steam-fitters in the city of Topeka. It was necessary, in the successful prosecution of such business, to purchase plumbing; goods and material. The plaintiffs in error were, at the time, members of an organization called the “Kansas Master Plumbers’ Mutual Benefit Association,” which, it was alleged, is an unlawful combination for the purpose of carrying out restraint in trade and commerce, so far as it relates to the plumbing business in Kansas. The defendants in error brought this action on the 22d day of July, 1897, in the district court of Shawnee county, to recover damages alleged to have been sustained to their business by reason of this unlawful combination’s interfering and preventing them .from purchasing plumbing goods and material on the market at the generally prevailing prices, and in preventing them from procuring such goods and material within a reasonable time; also, to recover losses sustained on certain plumbing contracts, resulting from the wrongful acts of the plaintiffs in error. The jury found against plaintiffs below on the question of special damages, but found that they had sustained a loss to their general business in the sum of $300, and that the value of the services of their attorneys was $200, for which amounts the court below rendered judgment. Prom this judgment the plaintiffs in error prosecute this proceeding.
The important question is whether the evidence sustains the finding of the jury that the plaintiffs were entitled to recover for damages to their general business. Wheu such damages are recoverable they are confined to the loss of profits. In this state the loss of profits to a business which has been wrongfully in-' terrupted by another is an element of damage for which a recovery may be had; but it -must be made to appear that the business was an established one— that is, that it had been successfully conducted for such a length of time and had such a trade established that the profits thereof are reasonably ascertainable. (Brown v. Hadley, 43 Kan. 267, 23 Pac. 492.)
In the present case the plaintiffs had only been in business a short time — not so long that it can be said that they had an established business. They had contracted three jobs of plumbing, had finished two, and lost money on both; not, however, because of any misconduct or wrongful acts on the part of the defendants or either of them. They carried no stock in trade, and their manner of doing business was to secure a contract and then purchase the material necessary for its completion. It is not shown that they had any means .or capital invested in the business other than their tools. Neither of them had prior thereto managed or carried • on a similar business. Nor was it shown that they were capable of so managing this business as to make it earn a profit. There was little of that class of business being done at that time, and little, if any, profit derived therefrom. The plaintiffs’ business lacked duration, permanency, and recognition. It was an adventure, as distinguished from an established business. Its profits were speculative and remote, existing only in anticipation. The-law, with all its vigor and energy in its effort to right wrongs and award damages for injuries sustained, may not enter into the domain of speculation or conjecture. In view of the character and condition of the plaintiffs’ business, tbe jury had not sufficient evidence from which to ascertain profits,
The finding of damages to the plaintiffs’ business has no support in the evidence, and, since an attorney’s fee can only follow an award of actual damages, the judgment of the court below is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John Abbott was prosecuted upon the charge of rape, committed on the person of Desdemonia Harrolson, a girl under eighteen years of age, and he was convicted of an attempt to commit that offense. Mrs. Sadie Stutzman was the mother of the girl and the prosecuting witness. It was .claimed that Mrs. Stutzman and the defendant had been unduly intimate for several months prior to the commission of the alleged offense, and that their illicit relations had been brought to the knowledge of her husband; that Mrs. Stutzman met the defendant in the woods near her house, in the absence of her husband, and demanded money from the defendant, which was not furnished, and that then she began the prosecution against the defendant for the offense against her daughter. She claims to have known of the alleged offense within a few hours after its commission, and it is said she made no complaint for more than a month, nor until the demand for money was r.efused.
It is claimed by the defendant that the prosecution was malicious ; that it was brought to blackmail him, and to appease Mrs. Stutzman’s husband, who had learned of her infidelity. After she had testified in behalf of the state, she was asked on cross-examination if it was not a fact that from October of the previous year until within a few days before demanding the money from the defendant, she had met him in the timber near the house and had illicit' relations with him, but the court, on objection of the county attorney, excluded the testimony. A' further effort was made to show the relations between her and the defendant immediately prior to the demand for money and the commencement of the prosecution, but the court would not permit inquiry to be made. It was competent for the defendant to cross-examine the witness as to her antecedents, character, and past conduct, and thus, impair her credibility. This line of inquiry became important because of the contention that the prosecution was prompted by the malice of this witness, resulting from a failure to extort money, and some of the circumstances surrounding the case seem to justify a full cross-examination as to her past conduct and character. There is no better method of sifting the conscience and testing the veracity and credibility of a witness than by cross-examination, and there is' abundant authority holding that for the purpose of impairing the credibility of the witness he may be cross-examined as to specific acts tending to discredit him, although such acts are irrelevant and ‘collateral to the main issue. (The Statev. Pfefferle, 36 Kan. 90, 12 Pac. 406 ; The State v. Probasco, 46 id. 310, 26 Pac. 749 ; The State v. Wells, 54 id. 161, 37 Pac. 1005 ; The State v. Park, 57 id. 431, 46 Pac. 713 ; The State v. Greenburg, 59 id. 404, 53 Pac. 61; Brandon v. The People, 42 N. Y. 265 ; People v. Casey, 72 id. 393; Hanoff v. The State, 37 Ohio St. 178, 41 Am. Rep. 496; Tla-Koo-Yel-Lee v. The United States, 167 U. S. 274, 17 Sup. Ct. 855, 92 L. Ed. 166 ; Martin v. The State [Ala.], 28 South. 92.)
In the case of Tla-Koo-Yel-Lee, a witness testified against her husband, and, on cross-examination, questions were asked, with a view of showing that since the arrest of her husband she had been living with another person as his wife, under an agreement that if her husband was convicted they should continue to live together as husband and wife. The supreme court of the United States held that the questions were material as bearing upon the character and •credibility of the witness, and that their exclusion was prejudicial error. In Martin v. The State, supra, a witness testified that the defendant had purchased certain meat which he w.as charged with stealing, and with a view of showing bias and prejudice it was held to be proper to cross-examine the witness as to her conduct with the defendant, although it involved illicit sexual intercourse, so long as she did not claim immunity, from answering on account of subjecting herself to criminal prosecution, or its tendency to degrade her. Following these authorities,- it must be held that the refusal of the court to permit a full cross-examination of Mrs. Stutzman was material error.
The next objection relates to the charging of the jury. The information charged that the offense w-A committed on the-day of June, 1901. The testimony tended to show that it was committed on a certain Saturday in the month, and the prosecuting witness stated that it was not on the first Saturday of the month, nor on the last, but that it was committed on Saturday, the 22d of June. The defendant set up as a defense an alibi, and introduced evidence tending to prove that on Saturday, June 15, he was in another place, some considerable distance away; that he was five miles away from the alleged scene of the crime on June 22, and that he was at the city of Howard on Saturday, June 29. The court instructed the jury that one of the defenses interposed by the defendant was an alibi, and that the fact that the defendant was present at the time and place the offense was committed must be proven by the state beyond a reasonable doubt. ' In another instruction, however, the court told the jury that it was “not necessary that the precise date of the commission of the offense be proven if it is established beyond a. reasonable doubt by the evidence that said offense charged or included therein was committed within two years just preceding the commencement of the prosecution.” There is good ground to complain of the quoted instruction given, as it was without qualification. It correctly states the law so far as the statute of limitations is concerned, but in view of the defense of alibi made, it could not be said that the time at which the offense was committed was immaterial, provided it was shown to have occurred within two years before the commencement of the prosecution. It was not necessary that the proof of alibi should cover the entire two-year period prior to the commencement of the prosecution. It was necessary that it should cover the time sufficient to render it impossible, or at least improbable, that the defendant could have committed the offense. The testimony was to the effect that it was committed on some Saturday in June, 1901, and the prosecuting witness swore positively that it was on Saturday, the 22d day of June. Proof that the defendant was not at the place where the offense was committed on the days named by the witnesses for the prosecution, if believed,'entitled the defendant to an acquittal. Since the time was fixed by the witnesses within certain limits, the instruction that the time of the commission of the offense was immaterial, if shown to be within the two-year period, rendered the proof of alibi valueless. It was the duty of the court to frame its instructions to fit the facts of the case, and, as the defense of alibi was interposed, the unqualified in< struction as to time was misleading and erroneous. The judgment of the district court will, therefore, be reversed, and the cause remanded for another trial.
Doster, C. J., Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This action was brought by the defendant in error to recover from plaintiff in error, a beneficiary association, the sum of $2100 due to her, as she claimed, under the provisions of a beneficiary certificate issued on the life of her husband, it being alleged that he died while a member of such beneficiary association, and after having complied with all the conditions requisite to the payment of said sum to the plaintiff, his wife. One of the conditions contained in such beneficiary certificate was that the same should be null and void should the member in sured by it die “by his own hand, either sane or insane.” The answer alleged that the plaintiff’s husband died by his own hand, whereby the terms of said beneficiary certificate became utterly null and void and of no effect, so that all benefits thereunder were absolutely forfeited. Under these pleadings, trial was had to the jury, who found generally in favor of the plaintiff in error, and specifically answered three questions as follows :
“1. Did not the insured, John A. Thiebaud,’come to his death by a bullet fired from a pistol into his head April 20, 1899? A. Yes.
“2. If you answer the preceding question in the affirmative, was not the said pistol discharged by the deceased, John A. Thiebaud? A. Yes.”
“10. If you answer question 2 in the affirmative, then was such pistol discharged by the deceased, John A. Thiebaud, voluntarily and intentionally, or was such pistol discharged accidentally and unintentionally? Answer fully. A. Voluntarily and intentionally.”
Plaintiff below filed a motion for a new trial on four grounds:
“1. Misconduct of the jury and of the prevailing party.
“2. That the verdict was not sustained by sufficient evidence and is contrary to law.
“3. Newly-discovered evidence, material for plaintiff, which she could not with reasonable diligence have discovered and produced at the trial.
“4. Errors of law occurring at the trial, and duly excepted to by the plaintiff.”
This motion was sustained and a new trial granted, from which ruling error is prosecuted to this court.
No showing whatever was made in support of the first and third grounds of the motion ; so, if the action of the court in sustaining it is to be affirmed, it must be because it was proper upon the second and fourth grounds. As to the fourth ground — errors of law occurring at the trial and duly excepted to by plaintiff— we have carefullv examined the entire record, noted every exception taken by defendant in error to the action of the court below, and find that in no instance did the court commit error as against her. Hence, we are left to inquire only concerning the second ground — that the verdict is not sustained by sufficient evidence and is contrary to law. If it is sustained by sufficient evidence, it is not contrary to law, as it is well settled in this state that it is entirely competent for parties to a life-insurance contract to provide that self-destruction by the insured, whether sane or insane, shall avoid the contract. (Hart v. Modern Woodmen, 60 Kan. 678, 57 Pac. 936, 72 Am. St. Rep. 380.)
There was no conflict as to the facts upom the trial below. Briefly summarized, they arenas follows : The deceased was a married man, with a family consisting of a wife and two children. Pie was a tinner by trade and had but little, if any, property. He had just purchased a little home, mortgaging it for all it was worth to obtain the purchase-money. For the last.three years preceding his death, he had been addicted to the use of intoxicating liquors to excess, and felt that his debauches were a disgrace to his family. He told one person, about a week before the shooting, and while working on the coffin-box of a friend who had died, that he (Thiebaud) might be the next one to fill one of those boxes, and, if he did not quit drinking, he would put himself out of the way; that a man was of no good to himself or his family when he was intoxicated. He said that a man was better off dead than alive, and a man’s family was better off without him, having reference to the life insurance. He told another, when speaking with reference to his drinking habit, which had become quite strong, that if he could, not quit this thing he would kill himself, and this only a few days before the shooting occurred. The night before the shooting he was drunk on the streets, and came home about eleven o’clock at night intoxicated to such an extent that he hardly knew what he was about. He and his wife had some words about the company he had been in, and he went to bed without any supper. When he was called for breakfast in the morning, he got up and kissed the baby, six or seven times and then kissed his other little girl, without speaking to his wife, who had called him and was there watching him. She then went out into the kitchen to finish getting breakfast, and he went up-stairs in his nightclothes. A sister of his wife was in.the house at the time, and he had not been in the habit of going about the house in his nightclothes. This proceeding astonished his wife, and she followed him up-stairs and found him feeling in the bottom of a trunk. She started to go downstairs, he following her, but he stopped and looked out of the window, and she waited anxiously at the foot of the stairs for him to come down. He came down and she went into the kitchen and he into the bedroom without speaking a word to her, and closing the bedroom door leading into the kitchen. A revolver was kept in a commode drawer in the bedroom. Shortly afterward she went into the parlor and found him sitting in an armchair, putting on one of his socks. She soon returned to the kitchen, but had not been there long until she heard the report of a pistol and she and her sister ran into the room and found him lying on the floor with, a bullet hole in the side of his head a little above and in front of his right ear. The flesh was powder-burned and the hair singed. The revolver lay at his feet, having in its cylinder one empty shell. His death resulted immediately from this wound. He was carrying $2100 insurance in this association, $2000 in the A. O. U. W., and about a month before this had taken out $1000 in another company, making an aggregate of $5100.
There,was no evidence whatever to indicate that a murder had been committed or that his death was accidental. The only rational or, indeed, conceivable explanation is that the deceased had committed suicide ; any other conclusion would outrage all reason. Had the jury found otherwise, its finding would have been set aside as being against the evidence. So that the question is, May a trial court arbitrarily set aside a verdict in such a case and award a new trial ?
We are aware that great latitude must be allowed trial courts in supervising the verdicts of a jury, and that this court has frequently declined to reverse the action of trial courts in setting aside verdicts and awarding. new trials, declaring the rule to be as stated in Ireton v. Ireton, 62 Kan. 358, 63 Pac. 430 :
“If the order of the court granting a new trial can be sustained upon any of the grounds alleged in the motion, this court is bound to sustain it. ... A much stronger case for reversal is required where a new trial has been granted by the district court than where one has been refused.”
But these rules cannot be taken as authorizing the trial court arbitrarily to set aside verdicts and grant new trials without reason. A lawsuit is an orderly proceeding. Its conduct is regulated by certain well-defined rules. The judge is as much bound by these rules as are the -jury. He may not, without commit ing error, set aside a verdict regularly obtained without legal reason therefor; and where, as in this case, there is no conflicting evidence, and it all points unmistakably to but one conclusion, so as to leave no room for any reasonable inference except the one reached by the jury, there appears no legal reason' why the verdict should be set aside and the parties put to the trouble and expense of another trial.
“It is the interest of the public that there should be an end to litigation, and a court is not compelled to grant a new trial even*if all the parties request it; but where there are no grounds for a new trial, in the interest of an end to litigation no new trial should be granted.” (A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6, 32 Pac. 630 ; Lindh v. Crowley, 29 id. 756.)
.The discretion of district courts in the matter of granting or refusing new trials is a legal, not a capricious, one. It must be warranted by law and guided by established precedent. It may not be. exercised simply because the judge might wish the verdict to be otherwise. The applicant therefor must show a legal reason for its exercise. The saying that it takes thirteen to render a verdict has passed to an adage, but can mean nothing more than that, in cases where conflicting evidence, raises a substantial and serious doubt in the mind of the trial judge of the correctness of the coüclusion reached by the jury, he may interfere; but where, as in the case at bar, no such doubt could arise on the evidence, and no suggestion is made that there exists other evidence which would tend in the least to change the view taken by the jury, the setting aside of the verdict and the granting of a new trial is an unwarranted exercise of the court’s power. (2 Gra. & Wat. New Tr. 46; Gold v. Ives, 29 Conn. 119.)
We have not been favored by the counsel for de fendant in error with any discussion, either oral or in brief, of the question involved, and are unable to arrive at the theory upon which the action of the trial court was based.
We are constrained to the conclusion that there existed no legal reason authorizing the court to set aside the verdict of the jury, and, hence, reverse such order and direct that judgment be entered thereon for the defendant below.
Johnston, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
This was an action on the benefit certificate executed by defendant, a fraternal benefit society, to Alma Hoover, wife of plaintiff. Application for the issuance of the certificate was made November 24, 1898. The certificate was not delivered to the applicant in her lifetime, but was delivered to plaintiff December 21, 1898, the day succeeding the death of Alma Hoover. The certificate on which the action is brought, among other things, provides as follows :
“1st. That the application and medical examinanation, which is made a part hereof, of said Alma Hoover for membership in the beneficiary department of this order, and which is on file in the office of the beneficiary recorder, and is hereby referred to and made a part of this contract for benefit, is true in all respects, and that the literal truth Of such application and each and every part thereof shall be held to be a strict warranty and to form the only basis of the liability of this order to such member and to the beneficiary or beneficiaries, the same as if fully set forth in this benefit certificate.
“2d. That should said application, and each and every part thereof, not be literally true, then this benefit certificate shall, as to the member, the beneficiary or beneficiaries, be absolutely null and void. «
“3d. This certificate is'issued in consideration of the warranties, and agreement made by the person named in this certificate-in the application above referred to, and agreements to pay all assessments and dues that may be levied during the time this certificate shall remain in force.”
The written application also provides:
“5. This application and the laws of this order shall form the sole basi-s of my admission to membership therein, and of the benefit certificate to be issued, me by said Royal Neighbors of America; that any untrue or fraudulent statement or answer made to the camp physician, or any concealment of facts, intententional or otherwise, in this application, . .shall forfeit the rights of myself and that of my beneficiaries to any and all benefits and privleges therein arising therefrom.
“6. I fully understand the objects, organization, mode of government and the laws of this order, and particulary that part of the laws defining the qualifications for and the restrictions upon its membership, and that providing for the forfeiture of indemnity for untrue statements or answers in an application for membership.
“Applicant will please note this clause.
‘ ‘ I have verified each of the foregoing answers and statements, from 1 to 24, both inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract-issued upon the faith of the foregoing answers, and I hereby constitute and make the officers of the local camp and of the Royal Neighbors of America who have aided in making this application my agents for such purpose. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract be tween me and the Royal Neighbors of America, and are offered by me as a consideration for the contract applied for, and hereby made a part of any benefit certificate that may be issued on this application, or substitute therefor issued at my request, and shall be deemed and taken as a part of any such certificate ; that this application may be referred to in any said benefit certificate as the basis thereof, and that they shall be construed together as one entire contract; and I further agree that if any answer or statement-in this application is not literally true, or if I shall fail to comply with and conform to any and all of the laws of said Royal Neighbors of America, whether now in force or hereafter adopted, that my benefit certificate shall be void. And I waive for myself and beneficiaries all claim of benefit under this application until it shall be approved by a supreme physician and I shall be regularly adopted, and shall make the payment as required at adoption; and any certificate which shall be issued to me in pursuance of this application shall be delivered to me while in sound health, and in pursuance of the by-laws of the order. And I hereby expressly waive, for myself or beneficiaries, the privilege or benefits of any and all laws which are now or may be hereaftér in force, making incompetent the testimony of or disqualifying any physician from testifying concerning any information obtained by him in a professional capacity; and I further waive the provisions of any law providing for or relating to attaching a copy of this application or making .it a part of any benefit certificate which may be issued hereon.”
In answer, to question 13 contained in the written application, which reads, “Have you within the last seven years consulted any physician in regard to personal ailment?” the applicant answered “No.” In answer to question 14, whichreads, ‘ Have you ever had any serious illness, local disease, or personal injury?” she answered “No.” In answer to question 17, she answered that she had never had disease of the heart, kidneys, or liver. ' After the death of applicant the money [paid by the assured was tendered back, and at the trial was paid to the clerk of the court, for the benefit of plaintiff. Upon the trial, the answers so made were shown by 'undisputed evidence to be untrue. The jury, under a peremptory instruction from the court, returned a verdict for defendant. Plaintiff brings error.
The contention made by counsel for plaintiff in error is not that the answers of the insured in the application were true in fact, but that the application did not form a part of the contract between the parties, and that the answers, if untrue, were on immaterial matters not affecting the risk assumed by the society. To neither of these contentions do we agree. From the language above quoted from the benefit certificate, it will be seen that the certificate clearly and expressly made the application and medical examination a part of, and the basis for, the contract entered into between the parties. In the contract so framed it was expressly stipulated and warranted that the answers made by applicant were literally true. Failing in this, the certificate became void.
Under such contract it makes but little difference whether the answers made by the applicant to the questions propounded are in themselves material or immaterial. The parties contracted that the answers should be material and should be literally true. Having so contracted and warranted the literal truth of the answers, if they were not true, no recovery can be had. (Washington Life Ins. Co. v. Haney, 10 Kan. 525; May, Ins. [4th ed.] §§ 156, 186; Cuthbertson v. The insurance Co., 96 N. C. 480, 2 S. E. 258 ; 3 A. & E. Encycl. of L. [2d ed.] 1080; Bac. Ben. Soc. [2d ed.l § 194; Ala. Gold Life Insurance Co. v. Garner. 77 Ala. 215.)
Again, we think that the inquiries made by the company in the questions propounded, and the answers thereto, independent of the stipulations and warranties made in the application and certificate, were material to the risk assumed by the society. Being in themselves material, and being untrue, no recovery can be had on the certificate.
It follows that the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The appellant, James Hamilton, was convicted of murder in the second degree and sentenced for a term of twenty-one years at hard labor in the penitentiary. He killed one George J. Webb, who was in charge of a company of men engaged in railway construction. The appellant defended on the ground that the killing was done in self-defense. Immediately after the homicide Hamilton was seized by several men who were working under Webb. A rope was tied around his neck, he was hanged to a tree, and left to die. He was cut down by a man who saw the occurrence, after the mob was gone, resuscitated, and surrendered to the sheriff.
The names of Morris Sheek and George W. Butcher were among those indorsed on the information as witnesses for the prosecution. They were called by the state. Upon cross-examination by counsel for the accused, the witness Sheek was asked the following questions:
“Ques. I will ask you if, before that time, you and four other men did not take the defendant, James Hamilton, over north to a tree and hang him ?
“Q. You may state, Mr. Sheek, if you and four other men, after the defendant was brought back there, did not direct all the other men at work there to go down to the camp, and that then you five men took the defendant over north of there and hung him?”
Objections were made by the state to these questions on the grounds that they were incompetent, irrelevant, and immaterial, no part of the res gestee, and not cross-examination, which objections were sustained by the court. The same questions in substance were propounded to the witness Butcher, followed by the same objections, and the same ruling made.
Counsel for the state do not contend that the testimony which counsel for the accused sought to bring out was incompetent, but insist that the record is in such condition that the error in its exclusion cannot be considered, for the reason that the bill of exceptions does not contain the direct examination of the witnesses. It is shown, however, that the witnesses were called on behalf of the state; that their names were indorsed on the information as witnesses against the defendant, and that one of them came from illinois to testify. It- appears also by the transcript that both witnesses testified against the accused before the justice of the peace at the preliminary examination, and that they were subpoenaed before that magistrate by the state-.
The objections themselves, made to the cross-examination by the county attorney, presuppose that the witnesses had given testimony against the accused. In a case like the present one, where the charge was murder, and resulted in a sentence for so long a time at penal servitude, the court is not disposed to stand on technical points, when it reasonably appears that the rights of a party charged with one of the greatest crimes have been prejudiced. If the witnesses named had been a part of the mob which hanged the defendant for killing Webb, they could not have been very kindly disposed toward him. If prejudice existed, it was proper for the appellant to show it.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
In this action Libbie Ware sought the partition of a tract of land in Sumner county, in which Hiram Hitchcock and four of his children had an interest. It constituted a part of the Osage trust and diminished reserve lands, and in September, 1870, David Spencer and his wife, Catherine M. Spencer, settled and made some improvements upon it. They had one child, Libbie Spencer,.who is the plaintiff in this action, and was then about seven years of age. In January, 1872, David Spencer died without having entered or taken any steps to procure title to the land. Mrs. Spencer and the child continued to reside upon the premises, and in March, 1872, the mother, being an actual settlor and the head of a family, entered the land in her own name, under the act of congress of July 15, 1870, paid the government price therefor, and the final receipt and patent were issued to .her. In September, 1872, she was married to the defendant Hiram Hitchcock, and four children were born of that marriage, who were also named as defendants in this action. She and her husband and children occupied the land until September 10, 1897, when she died intestate, leaving as heirs at law her husband and five children, including the plaintiff.
Libbie Ware, formerly Libbie Spencer, resided with her mother upon the land in controversy until February, 1883, but no part of the rent or proceeds was ever received by her, and she never instituted any proceeding asserting an interest in the land until August, 1898, inore than seventeen years after reaching her' majority, and after she knew that Mrs. Hitchcock was holding and occupying it adversely to her.
The plaintiff claims that the entry made by Catherine M. Spencer was for the benefit of the heirs then existing, and that, as she and her mother were the only heirs, she is entitled to one-half of the land. The trial court found that Hiram Hitchcock, the husband of the deceased owner, was entitled to the one-half interest in the land, and that Libbie and the other four children were each entitled to a one-tenth interest, and judgment awarding the -shares in these proportions was entered. We think a correct conclusion was reached.
If the settlement and entry of the land had been made under the preemption law, or, rather, if the general principles of the preemption law had been applicable to Osage trust and diminished reserve lands when the entry was made, there would be force in the plaintiff’s contention. - Under the preemption act of September 4, 1841, where a settler upon land entitled to claim the benefits of that act dies before consummating his claim, an entry for the benefit of the heirs may be made by one of the heirs or representatives of the deceased preemptor, and the title to the land inures to such heirs. _(U. S. Rev. Stat. §2269.)
The provisions of that act, however, had no application to Osage trust and diminished reserve lands at the time the entry in question was made. The land, as we have seen, was entered by Mrs. Spencer in March, 1872, under section 12 of the act of congress of July 15, 1870. (16 Stat. at L. 362.) That act prescribed the requirements for the purchase of such lands, and the only conditions necessary to the right of purchase were that the purchaser should be an actual settler, who was either the head of a family or over twenty-one years of age, and that the purchases should be of quantities not exceeding 160 acres, in square form, at the price of $1.25 per acre, payment to be made in cash within one year from the date of settlement or the passage of the act. The rules and limitations governing the preemption of lands were not incorporated in the act of July 15, 1870, and it was held in the early case of Foster v. Brost, 11 Kan. 350, that the principles of the. preemption law did not apply to entries made under that act, but that the rights' of purchasers are governed by the provisions of section 12 of the act. This view was adopted by the officers of the interior department, who ruled that the preemption laws were not extended over the Osage Indian lands by the act of 1870. ( United States v. Wood-bury et al., 5 Land Dec. 303; Debo Appeal, 11 Land Dec. 372.)
Soon after the entry in question was made, and on May 9, 1872, Congress enacted a law providing that the Osage Indian lands should be subject to disposal in accordance with the general principles of the preemption laws, but that act did not purport to cover, nor did it affect, purchases already made. (17 U. S. Stat. at L. 90.) When the entry was made Mrs. Spencer was a qualified purchaser, as she was the head of a family and an actual settler upon the land. No definite period of residence on the land was then required, and, therefore, it was not necessary that she should adopt or rely on the settlement or residence of her husband. While his settlement qualified him as a purchaser, he had not claimed the benefit of, nor taken the steps required by, the statute ; hence the settlement gave him no interest in the land which could be completed by his heirs or which would descend to them. The governing law did not authorize the sale and conveyance of Osage trust and diminished reserve land to the heirs of a settler, but required it to be sold to an actual settler who was the head of a family or over twenty-one years of age. Under the purchase and patent Mrs. Spencer acquired complete title to the land, and did not hold it in trust for the plaintiff.
The judgment was right, and it will be affirmed.
Cunningham, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The parties, to this action were divorced upon the petition of - the wife. She was granted alimony in accordance with their agreement, which included the payment of $1500 in cash. She was also awarded the “custody, keeping and maintenance” of the three minor children of the parties. About two years after the decree in the divorce proceeding was entered, the divorced wife filed her motion in the same dase asking that the decree theretofore granted be modified, and that the defendant be required to pay to the plaintiff, toward the support, education and maintenance of the'three minor children, during their minority, such sums as to the court might seem just and equitable, the motion containing various reasons why such order should be made.
Upon the hearing of this motion, plaintiff in error, hy objection to the introduction of evidence, raised the question of the jurisdiction of the court to hear it, for the reason that the matter had been fully adjudicated, and for the further reason that if the prior judgment was to be opened it must be done by petition for that purpose, as provided by section 568 of the code (Gen. Stat. 1901, § 5054) , and not by motion in the original case. These objections were overruled, and the court, after hearing the evidence, entered an order requiring the plaintiff in error to contribute to the support, maintenance and education of the minor children of the parties by the payment to the defendant in error of the sum of fifty dollars per quarter.
It is now insisted that this motion was for the purpose of modifying the judgment rendered in the divorce proceedings, and that therefore the court’s jurisdiction, if it had any, must be found in said section 568, and must be invoked as therein provided. While the prayer of the motion was that the judgment be modified, we find from the entire motion that the object thereof was only to have provision made for the support, maintenance and education of the minor children. This was not a modification of the original judgment. That judgment decreed the divorce of the parties, contained a judicial ratification of the agreement which they had made for alimony to be paid to the wife, and directed that the care, custody and control of the minor children be committed to the mother. It in no way otherwise provided for the maintenance and education of the children.
By section 645 of the code (Gen. Stat. 1901, §5138) it is expressly provided :
“When a divorce is granted the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.”
This section leaves the matter entirely in the hands of the court. It may at any time, upon proper notice, change any former order made with reference to these matters by adding to, or taking from, the burdens of either party relative to the same; and while the order made upon the hearing of this motion was that the plaintiff in error should pay to his divorced wife the sum named, such payment was not as alimony, but for the benefit of the children, and for the purposes indicated in the statute. She was, in effect, made a trustee to receive and disburse this money for these purposes.
Any other competent person might have been designated as such trustee by the court. This statute has the effect to repose in the court the right and duty to require divorced parents properly to care for, maintain and educate their children, notwithstanding the fact of the divorce, and to make such orders relative to payments of money from time to time until this result has been fully effectuated. Such orders may be made by the court upon its own motion, or upon the suggestion of any one immediately or remotely interested.
Plaintiff in error further contends that the contribution ordered by the court was too great. It is true, but little evidence was introduced showing his ability to make such payment. It is further true that he, although a witness in his own behalf, in no way suggested his inability to respond to the requirement made upon him. The amount required to be paid is largely a matter within the discretion of the court. We see no reason for thinking that this discretion was abused in this instance, especially so when the court has jurisdiction to modify and change this order at any time, upon proper notice and showing.
The court’s order in this respect wilt be affirmed.
All the Justices concurring.
Pollock, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Smith, J. :
The plaintiff in error was probate judge of Butler county from January, 1897, until January, 1901. During that time the county had a population exceeding 21,000. He sued in the court below to recover from the county the sum of $1317.84, for .salary due him under the prohibitory liquor law. The section of the statute under which the claim is made reads: '
“The probate judge shall receive.no fees for his services under this act, except a salary of fifteen dollars per annum for each one thousand inhabitants in such county, the number to be determined by the last annual census return of such county, but in no case shall such salary exceed the sum of one thousand dollars per annum, to be paid by the county commissioners as other salaries.” (Laws 1887, ch. 165, §2; Gen. Stat. 1901, §2454.)
If the aboye-quoted section of the law of 1887 is still in force, the right of the plaintiff below to recover is clear. The question is whether said section was repealed by the provisions of chapter 131, Laws of 1897, entitled “An act fixing the fees and salaries of certain officers and persons therein named.” (Gen. Stat. 1901, §§ 3023 et seq.) There is no express language in the law of 1897 indicating a repeal of the former act, but it is insisted that the latter act operates to repeal the former by necessary implication.
Chapter 131 of the Laws of 1897 makes provision for the compensation of' all county officers. Except as to probate judge, it provides that the amounts stated in the various sections which the different officers may receive for fees and salaries shall be in “full compensation” for services. Section 12 (Gen. Stat. 1901, §3034) begins: “The probate judge of'each county shall receive for his services the following fees.” Then a list of fees is given which he is authorized to charge, with no mention, however, of any amount allowed for filing statements returned to him by druggists, made by persons who have bought intoxicating liquors for medical, scientific or mechanical purposes, as provided in section 2 of chapter 165 of the Laws of 1887 (Gen. Stat. 1901, § 2454). To sustain the . contention of counsel for the county, we must hold . that it was intended by the act of 1897 to deprive the |probate judge of all fees and compensation whatever ¡for services in filing the statements returned to him ' by druggists above mentioned.
Section 12 of the Laws of 1897 (Gen. Stat. 1903, § 8084), apart of which, we have quoted above, contains this provision: “In addition to the fees herein provided, the probate judge shall be entitled to receive such fees as are or may be provided by law for such service under the prohibitory laws.” There being no law in existence at the time- the act of 1897. was passed allowing the probate judge to take and keep fees under the prohibitory law, may we not give effect to the language of the legislature by saying that it has reference to that kind or method of compensation provided for by the then existing law, to wit, the salary fixed in section 2 of chapter 165, Laws of 1887 ? If this question be not answered affirmatively, then we must impute to the legislature the fault of using expressions without meaning, and of making reference to a law as existing when, in fact, it had no existence.
As above stated, if section 2 of chapter 165, Laws of 1887, has been repealed, it has not been expressly done, but by implication only. It is a well-settled rule that, if both acts of the legislature can stand, it is our duty to give effect to both. In Stephens v. Ballou, 27 Kan. 594, 601, it was said:
“In other words, can the legislature amend these sections or the section of any statute in any other mode than that prescribed by the constitution ? It is only in rare cases and reluctantly that we should hold that it can. But, as before intimated, we must hold, though cautiously, that statutes may in some cases be amended or modified or repealed even by implication, and without the new act containing the entire section or sections amended or modified or repealed. But before we should hold that any section of the law has thus been amended or modified or repealed, we should be satisfied that such has been so done, beyond all reasonable doubt. If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (See, also, Hornaday v. The State, 63 Kan. 499, 65 Pac. 656.)
As said in the opinion from which we have quoted, we must be satisfied beyond reasonable doubt that the later act repeals the earlier before we can refuse to give effect to the former.
In passing on the nature of the duties devolving on the probate judge under the prohibitory law, this court said, in The State, ex rel., v. Brown, Probate Judge, 35 Kan. 167, 170, 10 Pac. 594, 596, that “a probate judge, in granting a druggist’s permit, acts somewhat as a commissioner of licenses or permits. ... In the performance of such duties he is not acting as a judge or as a court.” To the same effect, see Intoxicating-liquor Cases, 25 Kan. 751, 37 Am. Rep. 284. We think that it may be fairly said that the fees prescribed under the fee-and-salary act of 1897 for the probate judge have reference to such fees as relate to the performance of duties usually imposed upon a probate judge as a constitutional officer, and that compensation for services rendered apart from such duties and in aid of the enforcement of the prohibitory law is not denied to him by implication by the law of 1897.
Under chapter 188, Laws of 1901 (Gen. Stat. 1901, § 7518), the probate judge is required to furnish annually to the several township trustees a list of and the value of estates in the process of settlement in his court. For such services he is allowed a fee of ten cents for each estate so certified. This compensation is for services rendered beyond those properly coming under his jurisdiction as probate judge, and, in such respect, is in the same category as salary earned under the prohibitory law.
Section 1 of chapter 181, Laws of 1897 (Gen. Stat. 1901, § 3023), the title of which is given above, provides “that the officers and persons herein mentioned shall be entitled to receive for their services the fees and compensation herein allowed, and no other, except as may be otherwise provided by law.” This exception, under the rule respecting repeals by implication laid down in Stephens v. Ballou, supra, must exclude from the act on which the exception operates the salary of the probate judge given by the law of 1887. The application of proper and well-settled rules for the construction of statutes convinces us that the salary law mentioned above has not been repealed.
The judgment of the court below will be reversed, with directions to overrule the demurrer- to the petition.
Cunningham, Greene, Pollock, JJ., concurring. | [
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Per Curiam:
Money due on an insurance policy was brought into court to have determined whether it should be paid to the First National Bank of Atchison or to Eliza J. Price. The claims of each party to the fund were presented, and the district court decided in favor of the bank, and under that decision the bank obtained the fund. Price appealed to the supreme court, where it was determined that the district court was in error, and judgment in favor of Price was peremptorily directed. (Price v. Bank, 62 Kan. 743, 64 Pac. 639.) On the mandate of the supreme court, the district court entered judgment ordering the restitution of the 15252.16, which the bank had obtained from the clerk of the court on the erroneous judgment. At that hearing the court found that the bank had no right, title, interest or lien on the fund, and adjudged that it be forever debarred from claiming any right, title or interest in it, and, to enforce the order of resti tution, execution was awarded. That stands as a final adjudication of the court, no proceeding in error having been brought to review or reverse the same. Instead of restoring the money the bank brought an action to set off a judgment obtained against Eliza J. Price on May 21, 1897, against the order of restitution. The right of set-off was denied by the court, and proceedings in error have been brought here by the bank.
It is plausibly argued that the right of the bank to this fund was formerly adjudicated, and that as the judgment rendered is valid and stands unreversed and unquestioned, it is conclusive. In that adjudication the question was whether the bank should obtain the proceeds of the insurance policy to apply on the judgment indebtedness of Price to it, and it was determined in the negative, and an order made barring the bank from thereafter claiming any title, right or interest in such proceeds. The bank claimed the money because of an alleged assignment to it, but it is strongly argued that the judgment rendered is binding, not only as to matters actually litigated, but also as to matters which might have been presented to sustain or defeat the contention of the bank; that the rule of res judicata applies as well to facts settled and adjudicated as to causes of action, and that, as the judgment which the bank set up was rendered in 1897, long prior to the adjudication mentioned in favor of Price, any and every right to the proceeds of the insurance policy could have been, and must be held to have been, litigated and finally decided.
But we prefer to place this decision on the ground that the judgment of the bank cannot be set off against an order of restitution. It was only an order to restore to the registry of the court money obtained from it on an erroneous judgment. The money had been placed on deposit with the clerk to await a determination by the court as to its proper disposition, and, having been wrongfully withdrawn from the custody of the court, an order was made requiring the bank to bring the money back. It was not only competent for the court, but it was also its duty, to make the order in a summary way, and the duty of the bank promptly to return the fund was imperative. The fact that the party asking its return is insolvent and may be unable to meet the claims of the party required to restore it'does not affect the duty of the court to require the bank to make immediate restoration.
[Bank v. Elliott, 60 Kan. 172, 174, 55 Pac. 880.)
Judgments may be set off against each other where they are mutual and reciprocal, and where it is equitable to do so, but an order of restitution is quite unlike an ordinary personal judgment, such as the one which the bank desires to have set off against the order. The latter, as we have seen, is an order to restore, a fund in custodia legis which was wrongfully taken therefrom, and is not a mere personal judgment in favor of the bank against Price. In such case the rule of set-off is not applicable. The first duty of the court is to have the fund returned to its possession, and the status restored to what it was when the money was wrongfully taken away. When it has been, restored it will be time enough to invoke the aid of a court to inquire into other rights and to determine other controversies. In such cases it is clear that the right of set-off is not permissible. (Bank v. Elliott, supra ; Hier v. Anheuser-Busch Brewing Ass’n, 60 Neb. 320, 83 N. W. 77; Bickett v. Garner, 31 Ohio St. 28. See, also, Hermann v. Miller, 17 Kan. 328.)
The orders and judgments in both of the cases under consideration will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In 1896 R. Woolery leased and occupied a quarter-section of land owned by John H. Aikins. The rent agreed upon for the year was $375, which became due December 1. Woolery raised a crop of corn on the land, but failed to pay the rent when it w¡as due, and while he was in default he sold a portion of the corn to S. L. Stadel. Aikins claimed a lien on the corn, and demanded from the purchaser the value of the crop sold to the extent of the unpaid rent and damages. This was refused, and the present action was then brought for the amount demanded. The jury returned a general verdict in favor of Aikins, awarding him the sum of $182.64, and in, answer to special questions the following findings were made :
“1. Q,ues. Was the corn hauled by Woolery from the leased premises a distance of some four or five miles to the premises of Stadel, and there weighed by the wagon-load and purchased? Ans. Yes.
“2. Q. Did Stadel, during the time the corn was being hauled, have actual knowledge that Aikins had a lien thereon? A. No.”
There were four other findings made, but they are immaterial to the questions presented here. A motion for a new trial was made by Stadel, which was afterward withdrawn, and he then asked judgment in his favor on the special findings, but the application was denied and judgment given in favor of Aikins.
It is contended by Stadel that the special findings are inconsistent with the general verdict and that they compel a judgment in his favor. He says that the jury found that he purchased the corn four or five miles distant from the leased premises without notice that Aikins claimed a lien thereon. The finding, as will be observed, is not that he had no notice of the lien, but it is that he had no actual knowledge that a lien was claimed during the time that the corn was being hauled. There is no finding that he was with-' out constructive notice of the lien before a sale was consummated, and the general verdict implies the existence of .all necessary facts not inconsistent with those special findings. The plaintiff in error has not preserved the evidence, and the findings of fact do not cover the question of notice. “In the absence of the testimony or of a special finding upon a material question in the case, it will be presumed that the facts disclosed in evidence were such as to support the general finding and judgment of the court.” (Pennell v. Felch, 55 Kan. 78, 39 Pac. 1023. See, also, Kellogg v. Bissantz, 51 id. 418, 32 Pac. 1090.)
Under section 24 of the act in relation to landlords and tenants (Gen. Stat. 1901, §3868)) the rent due for farming land constitutes a lien on the crop growing or made on the premises. Under section 26 (Gen. Stat. 1901, §3870), “the person entitled to the x'ent may recover from the purchaser of the crop, or any part thereof, with notice of the lien, the value of the crop purchased to the extent of the rent due and damages.” (Neifert v. Ames, 26 Kan. 515.) The question in the case was whether Stadel was a purchaser in good faith and without notice of Aikins’s lien on the corn. The notice to the purchaser may be constructive as well as actual, and a knowledge of the facts which should put the purchaser upon inquiry is notice of whatever the inquiry would have disclosed. In Scully v. Porter, 57 Kan. 322, 46 Pac. 313, it was said of the purchaser:
“He may not have actual knowledge that the rent was unpaid, but he had notice sufficient to put him up on inquiry, and an inquiry would have disclosed that the rent for the year 1889 was still due and unpaid. It is generally held that a notice sufficient to put a purchaser upon inquiry binds him to a knowledge of whatever the inquiry would have disclosed.”
Nothing in the findings negatives the theory that Stadel knew that Woolery was the tenant of Aikins, and that the corn purchased was raised on the leased premises. The mere fact that there was no actual knowledge that a lien was clainjed does not argue that there was no constructive notice of Aikins’s right in the corn; that is, a knowledge of facts sufficient to put Stadel upon inquiry as to whether the corn had been raised on the leased premises, and as to whether or not the rent had been paid. In the condition of the record, it must be assumed that the purchaser had notice of facts sufficient to put him upon inquiry as to the landlord’s lien ; and if he failed to make such inquiry he is not a purchaser without notice. When a person purchases grain from a tenant, either on or some distance from the leased premises, with knowledge of the relation of landlord and tenant, or of the facts which should have prompted inquiry as to the existence of a lien in favor of the landlord on crops grown on the leased land, he cannot escape liability to the landlord. Such knowledge is equivalent to notice.
“It is the policy of the law to protect and facilitate bona fide sales of personal property in the open market when they are made without notice of liens; but a person who purchases a crop which is in the possession of the tenant of the leased premises can hardly be called a bona fide purchaser.” (Scully v. Porter, supra.) .
The instructions given by the court, although criticized, a,ppear to be substantially correct statements of the law; but in any event prejudicial error cannot be predicated upon them. “Where no evidence is preserved showing the applicability of instructions asked and refused to the facts of the case, this court will presume they were correctly refused, without examining whether the instructions enunciated correct principles of law.” (Missouri River, F. S. & G. R. Co. v. Owen, 8 Kan. 409.)
The judgment of the district court will be affirmed.
Doster, C.J., Ellis, J., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
• This was an action on a note and to foreclose a mortgage securing the same. The defense was based upon the statute of limitations. To remove the bar, the following letter was relied on by the plaintiff:
“Belle Plains, Kan., September 13, 1894.
“The Chester County Banking and Trust Co., West Chester,Pa.:
“Gentlemen — I understand you own a mortgage of $3500 made by me and secured by lots 60, 62, and 64, in Mead’s addition to Wichita. This property, which cost me $15,500, is now said to be worth not over $1500. It is going to rack for want of good tenants, and will not rent for half enough to pay taxes, or has not in the last two years. If the property could be improved at a cost of about $1500, it would comfnand a good tenant at about $35 per month, or perhaps $40. But as I have no means to do this, I thought you might be willing to sell your mortgage, provided I could interest some of my friends to buy it, or you might be willing to advance enough money to improve the property, or suggest some way that both of us might be saved such a disastrous loss. I would be pleased to hear from you, suggesting any plan to put this into shape. Mbs. M. B. Haythobn.”
In order to stay the running, or remove the bar, of the statute of limitations, there must be “an acknowledgment of an existing liability, debt, or claim, signed by the party to be charged thereby.” (Civil Code, §24; Gen. Stat. 1901, §4452.) Does this writing satisfy this requirement? We hold that it does not. In the case of Hanson v. Towle, Adm’r, 19 Kan. 273, the court said:
“A mere reference to the indebtedness, although consistent with its validity, and implying no disposition to question such validity, or a mere suggestion of some action concerning it, is not such an acknowl edgment as is contemplated in section 24 of the code of civil procedure as sufficient to suspend the running of the statute of limitations. There must be an unqualified and direct admission of a present subsisting debt on which the party is liable.” li
This case has been followed in Gregg v. Barnes, 32 Kan. 310, 4 Pac. 276, and cited in several other cases'] decided by this court. We do not understand by any of these decisions that it is necessary that the acknowledgment should be in explicit and unequivocal words. Nor dó we understand that the terms and safeguards of the statute may be frittered away by any far-fetched or problematical deductions in explanation of the writing claimed to be an acknowledgment. Statutes of limitation are statutes of repose. One seeking to evade their result must bring himself - within the terms of the statute which raises the bar. A writing which is no more consistent with the claim-that an acknowledgment was intended than with the claim that it was not is not sufficient to remove the bar. It must be “an unqualified and direct admission of a present subsisting debt on which the party is liable.” Tested by this rule, we see little ground for the contention that the writing in issue is sufficient. It admits that a certain mortgage was made by the writer, but it is only by a very remote inference that any obligation now exists thereon. The ■letter would be as explainable under the hypothesis that the writer was denying the liability as with one that she was admitting it.
We are cited to the cases of Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320, and Pracht v. McNee, 40 Kan. 1, 18 Pac. 925, as authority for holding the letter in the case at bar sufficient to stay the statute. We think these cases both go to the extreme verge in their conclusions, but it will be noted that neither of them at tacks the rule laid down in Hanson v. Towle, supra. In a large degree, every case must stand by itself, but in the construction of the language used in any case we must not lose sight of the explicit terms of the statute, and the sharp and unequivocal language of the leading cases which we have cited.
As the court below held that there was enough in. the letter quoted above to stay the statute of limitations, and as in this we conclude that it erred, the judgment will be reversed, and the cause remanded for further proceedings.
Johnston, Greene, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
In this action the trial court erroneously referred the jury to the pleadings to ascertain-the issues and matters in controversy. After a brief preliminary- statement of the nature of the case, the court told the jury that, for a more detailed statement of the claims of the parties, they were referred to the pleadings, and copied them at length in its instructions.
The pleading of the plaintiff was a lengthy and somewhat complicated statement of facts, relating to the lease of a small tract of land in the interior of a larger tract, upon which to. build a store for the conduct of a mercantile business ; the erection of the building and the carrying on of the business therein for a time ; the use of a portion of the land not rented as a roadway to the store ; the transfer of the entire tract, including that on which the store was built, by the lessor to another; the closing up of the roadway by the grantee, compelling the plaintiff to move to another location, where the public could reach the store, and a statement of the losses sustained by the wrongs of the defendant, and of the expenses and costs necessarily incurred in moving. Included in the pleading was a long lease, as well as an itemized statement of losses sustained, and the expenses arising from the alleged wrongs of the defendant in closing up the roadway.
The answer of the defendant, which was not so lengthy or involved, was read to the jury, but it included general and special denials ; averments of the surrender of the lease ; the purchase by the defendant of other land in consideration of the relinquishment of the leased land; and the removal of the buildings to the purchased land.
In connection with the pleadings, the court, it is true, presented some of the claims of the parties by specific instructions, but did not undertake to present all the matters in controversy on which proof had been offered. In the statement of the costs incurred and losses sustained because of the wrong-doing of the defendant, the plaintiff set forth twenty-one different items, on some of which' no proof was offered and they, therefore, were not in controversy in the case. The court, in instructing the jury, said :
“In determining the amount due from the defendant to the plaintiff, if you find from the evidence that there is due the plaintiff any sum whatever, you should confine yourselves, in making your estimates, to such items as are set forth in the account of the plaintiff attached to his bill of particulars, and con cerning which items evidence has been permitted by the court. You will note by an examination of the account of the plaintiff that it contains a number of items concerning which no evidence has been introduced, and for these items plaintiff cannot, of course, recover.”
The jury were thus not only remanded to the pleading for the matters in controversy, but were required to search out and determine for themselves the matters in dispute on which testimony had been offered.
The practice of sending the jury to the pleadings for the matters in controvery cannot be approved in any case, and in this one it was clearly erroneous. It is the province of the court to determine and define the issues in the case, and the duty of the jury to accept the interpretation of the court and to follow its directions. (Myer v. Moon, 45 Kan. 580, 26 Pac. 40; Railroad Co. v. Egan, 64 id. 421, 67 Pac. 887; 11 Encyc. Pl. & Pr. 154.) A departure from this practice is especially hurtful and to be condemned where the pleadings, as in this case, are prolix, and contain important and intricate statements of fact. The attention of the jury should have been directed to the material questions, and the immaterial matters and. those on which no proof was produced should have been'eliminated from the case and taken from the jury by the court. Here the jury were required to hunt out the contentions of the respective parties, and it was left to them to decide what claims should be eliminated because of the absence of proof. For this error, the judgment must be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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Error from Hamilton district court. | [
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The opinion of the court was delivered by
Pollock, J.:
This action was brought by the county board of Atchison county against Mary A. Challiss, the owner of a city lot in Atchison, her husband, and all parties in interest in such lot, under the provisions of chapter 392, Laws of 1901 (Gen. Stat. 1901, §§7718-7724), to obtain a determination of the amount of unpaid taxes existing against said lot, to have the amount so determined decreed a first lien thereon, and an order of sale in satisfaction thereof.
At the date of the commencement of the action Mary A. Challiss and her husband were citizens and residents of the county of Atchison, but were temporarily absent from the state. A summons was issued and served by leaving a copy at their usual place of residence in the city of Atchison. A motion to quash this service was made by defendants, and sustained by the trial court, upon the ground that the statute requires service to be made in person, and that service by leaving a copy of the writ at the usual place of residence of the defendants did not meet the requirements of the act. From the order sustaining this motion and quashing the service made, the county board'brings error.
The determination of this case depends upon the construction of that portion of section 1 of said act (Gen. Stat. 1901, §7718) which provides for notice of the pendency of the action to be given resident defendants, which reads as follows : ‘ ‘ Thereupon a summons shall be issued as in other cases, and served upon the defendants personally, if residents of the state.”
Counsel for plaintiff in error contends that this-provision for personal service of summons upon resi- ‘ dent defendants is, in legal contemplation, only such personal service as is permitted in other actions under the codethat the language employed in the act is used for the purpose of contradistinguishing the personal service required to be made upon residents from constructive service by publication against nonresidents, and that the service had in this case fulfils the requirement of the law. The trial court held that service by leaving a copy of the summons at the usual place of residence was not a compliance with the terms of the act.
We agree with the contention of counsel for plain-' tiff in error. It clearly was not the intention of the legislature by the language employed to preclude from the operation of the act defendant citizens and resi dents of the state, temporarily absent therefrom. Yet such would be its effect if it should be held that the ¡personal service required is service upon the defendant in person, for such personal service, in the nature of things, could not be made outside the state, nor could service by publication be obtained, because such constructive service is only provided in case of nonresidents of the state. Section 64 of the civil code (Gen. Stat'. 1901, § 4494) provides for personal service of summons in actions and proceedings in the following language:
“The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return-day.”
Upon such service a personal judgment may be rendered. In the case at bar no personal judgment is obtainable. The proceeding is one in rem against the property. This act, like all others, must receive a reasonable construction and such as will carry out the manifest intent of the legislature. (Reyburn v. Brackett and Bassett, 2 Kan. 227, 83 Am. Dec. 457 ; The State v. Bancroft, 22 id. 170; Life Association v. Boyer, 62 id. 31, 61 Pac. 387 ; Collins v. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 L. Ed. 60.)
Mr. Alderson, in his work on Judicial Rights and Process, 'at page 179, says :
“ ‘Personally served/ as used in the statute, means personal service as distinguished from service by pub-, lication. In this sense, service by leaving copy of the writ at the residence of the defendant is personal service as much as reading the summons to him.”
In the case of Dunkle et al. v. Elston et al., 71 Ind. 585, it was held :
‘“Personally served/ as used in section 315 of the code, as amended by the act of March 6, 1877, has reference to personal service as distinguished from service'by publication, and service by copy left at the last usual place of residence is personal service within the meaning of the statute.”
In the opinion it was said:
“It is further objected that the service of the summons on two of the defendants was by copy, which it is complained is not personal service in accordance with the requirement of the proviso quoted supra. We hold that the phrase ‘personally served/ as used in this act, has reference to personal service as distinguished from publication, and in this sense service by copy left at the last and usual place of residence is personal service, as well as service by reading to the party.”
We are of the opinion the provision for personal service upon resident defendants contained in the act is in legal effect the same as though it provided, “thereupon a summons shall be issued and served as in other cases upon the defendants, if residents of the state.”
It follows that the service made by the sheriff in leaving a copy of the summons at the usual place of residence of the defendants Challiss fulfilled the spirit and intent of the act, and was sufficient personal service to meet the requirements of the law. The order sustaining the motion and quashing the service made is erroneous and must be reversed.
Smith, Gbeene, JJ., concurring. | [
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The opinion of the-court was delivered by
Johnston, J. :
William Warden Pipes was prose-
cuted for the murder of David Leahy and was convicted of murder in the second degree. In his appeal he complains, first; of the refusal of a continuance applied for on account of the absence of a witness. From the record, however, there appears to have been a lack of diligence on his part in the effort to procure the testimony, and “diligence alone makes a continuance compulsory.” (The State v. Rhea, 25 Kan. 576; The State v. Lewis, 56 id. 374, 43 Pac. 265.)
In the complaint before the magistrate and in the information filed in the district court, the defendant was designated as “Ward Pipes.” He interposed a plea in abatement alleging that his name was “William Warden Pipes.” The court accepted his statement and directed that all further proceedings in the case be conducted under the name of “William Warden Pipes.” This procedure was strictly in accordance with statutory provision. (Crim. Code, §224; Gen. Stat. 1901, § 5669 ; The State v. McGaffin, 36 Kan. 315, 13 Pac. 560 ; The State v. Haist, 52 id. 38, 34 Pac. 453.) It is not important that' the information was not amended with respect to the name, since the order of the court in effect amended the information ; nor did it afford a good reason for sustaining the motion to quash on that ground, nor the plea that he had not had a preliminary examination. The name “Ward Pipes,” by which he whs designated in the preliminary proceedings, appears to have been the one used -by his own witnesses when speaking of him, and by his counsel when referring to him during the trial. If the name used in the proceedings was the one by which he was generally known, it was sufficient, and certainly no prejudice was suffered by him because of the use of the abbreviated name by which he was generally known in the preliminary proceedings, instead of his full name, under which the later proceedings were conducted. (The State v. Gordon, 56 Kan. 64. 42 Pac. 346.)
Complaint is made of the cross-examination of the defendant’s witnesses who had testified as to the general reputation of the defendant as a peaceable and law-abiding citizen. Where a witness states that he is acquainted with the general reputation of a party, and that it is good, a wide latitude is allowed in cross-examining him as to his opportunities for knowledge and as to the basis of his opinion.. Most of the witnesses who testified as to the defendant’s general reputation appear to have given their own individual opinions of the defendant rather than the reputation which he bore in the neighborhood. While considerable scope was given to the cross-examinations and some of the questions may not have been strictly within the rule, the substantial rights of the defendant do not appear to have been violated.
Much complaint is made of the refusal of requests for instructions. Some of those refused stated the law correctly, but, generally speaking, the principles of law embodied in them were presented to the jury in instructions framed and given by the court; for instance, there was a refusal of one as to self-defense, which included the idea that a person assailed* might act on an honest belief of apparent danger in' repelling the attack, even to the extent of killing his assailant, and would not be responsible if it turned out that there was, in fact, no real danger. This principle was included in the following instruction, which was given :
“If a person is assaulted by another in such a manner as to give him reasonable grounds to .believe thal there is a design on the part of his assailant to take his life or to do him great bodily injury, and that there is immediate danger that such design will be accom' plished, and if he honestly believes that such, desigi. on the part of his assailant and such danger to him self actually exist, then he has the right to stand his ground and to use such force as shall on reasonable grounds honestly appear to him to be necessary to repel the attack, even to the extent of killing his antagonist. A person when so assailed will be justified i.n defending himself, though the danger may not be real but only apparent. He will not be responsible criminally if he acts in self-defense from real and honest convictions as to th« character of the danger .induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger.”
The court further stated, with reference to the same subject, that if the* deceased was the aggressor and the defendant had reasonable ground to believe that the deceased intended to take his life or do him great bodily injury, and if he actually and honestly believed that the deceased had such a design and that he was in real danger, he had the right to act upon the situation as it appeared to him in defending himself. The instructions on the subject of self-defense appear to be in line with the previous rulings of this court.
It is contended that, in an instruction given, the court neutralized the evidence offered by the defendant as to character by a statement that previous good character is- not a defense to a crime clearly proved. It is true that crime is not condoned or excused because of previous good character, but the defendant is entitled to the benefit of the force and weight of previous good character in the determination of the question whether he has committed a crime. (The State v. Keefe, 54 Kan. 197, 88 Pac. 302.) The trial court gave this benefit to the defendant in charging the jury that such evidence must be considered by them, and that, if such evidence, or such evidence in connection with other evidence, raised a reasonable doubt of the defendant’s guilt, they should acquit him. Nothing in the instructions is inconsistent with this statement or with the law relating to the weight and importance to be given to good character. We find nothing in the instructions which affords ground for reversal, and, after reading the testimony, we are satisfied that; it is abundantly sufficient to sustain the verdict, of the jury.
Finding no error in the record, the judgment of the district court' will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dostbk, C. J. :
This was an action of mandamus to compel a county board of canvassers to accept the election returns from one of the townships as showing a certain number of votes Cast for a candidate for office, and to declare the result accordingly.
E. H. Nixon and H. C. Walker were opposing candidates at the recent general election for representative to the' legislature from Barber county. The election returns from one of the townships were not in strict conformity with legal requirements, and because thereof were supposed to, involve the question of the number of votes cast for candidates for representative in some doubt. However, Nixon claimed that they satisfactorily showed that eight more votes were cast for him than the board of canvassers was willing to count for him. These votes were determinative of the result for the office named, and mandamus was issued in Nixon's behalf to compel a count of the votes in question for him. After trial the writ was made peremptory. Pending the preparation of a record on which to prosecute error to this court, the members of the board of canvassers obeyed the command of the writ by counting the votes and certifying the result accordingly, after doing which they adjourned sine die. Two of the canvassers made the count and certificate under written protest. Those two only have prosecuted error to this court. This, however, they were entitled to do. (Hughes v. Parker, 68 Kan. 297, 65 Pac. 265.)
It is not necessary for us to examine into the merits of the case, or, more accurately speaking, we cannot do so. The plaintiffs in error have appealed from an order to which they had already yielded obedience. That they cannot do. They cannot perform the required act and at the same time appeal from the order requiring its performance. If we should reverse the judgment, there would be nothing on which the order of this court, or that of the court below on its reopening the case, could operate. The count of votes has been made, the result has been declared, the board of canvassers has adjourned sine die, and thereby became functus officio and incapable of reconvening, either of its own volition or by order of court. (Rosenthal v. State Board of Canvassers, 50 Kan. 129, 82 Pac. 129, 19 L. R. A. 157.)
A court will not make an order which in the nature of things cannot be obeyed. Thus, when a justice of the peace erroneously refused to grant a change of venue of a case, but retained it for trial and rendered judgment in it, which judgment was collected on execution, it was held that mandamus would not lie to compel the change of venue. (Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62.) In Parsons v. Tetirick, 63 Kan. 879, 64 Pac. 1028, it appeared that, after the issuance of a peremptory writ of mandamus to compel the transfer of shares of corporation stock, and pending the conduct of proceedings in error therefrom, the corporation became insolvent, its affairs were wound up by order of court, the whole of its assets disposed of, its officers went out of position entirely, and it retained nothing but a nominal existence. The proceedings in error were accordingly dismissed because of the futility of any order which, were it to be made, would be of no substantial avail, the court, among other things, saying:
“It has been.many times held that if, during the pendency of an appeal, the order of mandamus appealed from is obeyed, or if an order has been applied for and denied, and an appeal perfected therefrom, and during its pendency the order, if made, has become impossible of performance, the appeal will be dismissed.”
In Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104, mandamus was issued commanding an undertaker to deliver the remains of a deceased man to his relatives, or, what was the same thing, to restrain the undertaker from withholding the remains from the relatives. Possession was delivered, the corpse transported to a distant state, and there interred. It was accordingly held:
“Where a decree of the district court awarding a mandatory injunction has been complied with and the writ obeyed, this court will not consider a proceeding in error brought to reverse such decree, when it appears that .the subject of the order is no longer in existence.”
In the two cases last - mentioned the decisions of other states declaring and illustrating the rule in question were cited.
The application of that rule to this case is not prevented by the making of a protest against the order to which obedience was rendered, nor does the inability of the plaintiffs in error to make up their record and file it in this court and procure an order of stay from us before the return-day of the peremptory writ take the case out of the operation ef the rule.
The proceeding in error is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action charging the defendant with the misdemeanor of resisting an officer in the service of a writ of' attachment. The officer was a deputy sheriff. The defense was that the appointment and oath of office of such deputy were not filed in the office of the county clerk as provided by-section 1745 of the General Statutes of 1901. It is contended that until such appointment and oath are so filed the deputy is no officer, is not authorized to serve process, and may be resisted in such service. In this case, the officer acting as such deputy had been regularly appointed, had taken his oath of office, and had been acting as such deputy for nearly a year. It was known to the defendant that he was such deputy.
We do not think that in a criminal action such as this the defendant can raise the question which he does. Probably the requirement of the section cited is merely directory, and in no sense goes to the qualification of the officer; but however this may be, the deputy sheriff here was an officer de facto, and, as such, his acts cannot be called in question collaterally. An officer de facto is one who actually performs the duties of the office that appertain thereto under color of appointment or election. To be sure, there must be a fair color of right, or an acquiescence by the public in his official acts so long that he may be presumed to act as an officer by right of election or appointment. In the case at bar, all of these conditions were amply complied with.
It is well settled that the acts of a de facto ministerial officer, such as a sheriff or constable, are protected like the acts of any other de facto officer. They cannot be collaterally inquired into.
In Wharton’s Criminal Law, volume 1, section 652, the doctrine is stated as follows:
“. . . The officer’s title is not at issue in such a prosecution (i. e-., a prosecution for resisting an officer in the service of process) when it appears that he is an officer de facto, i. e., the recognized official representative of a government in actual power. . .
In Bishop’s New Criminal Law, volume 1, page 464 :
“. . . It is probably the better doctrine, though the decisions as to it are not harmonious, that the criminal law will not justify a person in resisting an arrest by an officer de facto on the ground that he is not such de jure.”
The case of Brown v. State (Tex. Cr. App.), 60 S. W. 548, was a prosecution for an assault on an officer engaged in the discharge of his duty. It was therein shown that the officer assaulted had entered on the discharge of his duties as a deputy sheriff under a valid appointment, but he had not taken the oath of office or filed his appointment for record, as required by law. The court, however, held that he was a de facto officer, and as such, while in the discharge of his duties, was entitled to the protection afforded by the criminal statute.
In the case of The State v. Dierberger, 90 Mo. 369, 2 S. W. 286, a constable who had not taken the oath of-office or filed his certificate of appointment was prosecuted for a murder committed while attempting to make an arrest.. The court there held (pages 373, 374, and 375):
. . The only object the law has in requiring the appointment to be filed in the office of the county clerk is to preserve the record evidence of' the fact of such appointment having been made. The failure to file the appointment cannot deprive the defendant of his right to say that he' was a deputy constable. . . . The appointment made and constituted him a deputy; and though he failed to take' the oath he was an officer defacto. The principle of law is well settled that the acts of such an officer are as effectual when they concern the public, or the rights of third persons, as though they were officers de jure.
See, also, Weatherford v. The State, 31 Tex. Cr. Rep. 530, 21 S. W. 251, 37 Am. St. Rep. 828; 17 A. & E. Encycl. of L. 13, and cases there cited.
In this case the deputy sheriff, .having been duly appointed, having taken the prescribed oath of office and entered upon the discharge of the duties of the office, falls within the protection of the law while serving process, although his appointment had not been filed in the office of the county clerk.
Tiie defendant further suggests that his acts as shown by the evidence did not amount to resistance of the officer; that he had a perfect right to do what he did. An examination of the evidence convinces us that the acts of the defendant were of such a character as amply to justify the verdict of guilty, which the jury returned against him.
Finding no error in the record, the judgment will be affirmed.
Poster, C. J., Johnston, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, C. J. :
Albert. Honey well is a person of unsound mind. O. C. Hooker is the guardian of his person, and property, by appointment of the probate court. The Hill Investment Company recovered a judgment against him. There are funds belonging to the lunatic in the guardian’s hands. The judgment creditor has no lien on these funds, but it brought an action in the district court to subject them to the payment of its judgment. May such, an action be maintained in that court for that purpose? The court held that it did not have jurisdiction to entertain the proceeding, and from its judgment error has been prosecuted. The claim of error is not well taken. The district court did not have jurisdiction.
Chapter 60 of the General Statutes of 1901 vests jurisdiction over the estates of lunatics in the probate court. It contains elaborate provisions for the management of the property of such unfortunates by guardians appointed by such court and acting under its directions. Some of these provisions will be noticed, using the section numbers of the General Statutes of 1901. Section 3945 provides for the appointment of a guardian of the person and estate of the lunatic; section 3949 requires the guardian to give bond that he will “manage and administer his (the lunatic’s) estate and effects to the best advantage according to law” ; section 3953 requires the guardian to take charge of the person of the lunatic “and provide for his support and maintenance as hereinafter directed.” The sections following require the guardian to collect, inventory and preserve his ward’s property, settle his debts, and prosecute and defend actions for him. Section 3959 authorizes the probate court to make orders “for the management of his (the lunatic’s) estate, for the support and maintenance of his family and the education of his children out of the proceeds of such estate; to set apart and reserve for the payment of debts; and to let, sell or mortgage any part of such estate, real or personal, when necessary for the purposes above specified.” Section 3982 reads : “The probate court shall have full power to control the guardian of any such insane person in the management of the person and estate and the settlement of his accounts, and may enforce, and carry into execution its orders and judgments in the same manner as in cases of administration.”
There are no statutory provisions vesting the district courts with any authority to administer the estates of persons of unsound mind, or to entertain suits in respect of their property. It is probable that the district courts are vested with jurisdiction to enforce specific liens on the property of such persons, as' they are found to have in the case of a lien on the estate of a decedent. (Shoemaker v. Brown, 10 Kan. 383.) It is probable that they have jurisdiction to vacate fraudulent settlements of a guardian’s accounts, as was done in the case of a defrauded minor (Klemp v. Winter, 23 Kan. 699) ; and it is probable that there are other classes of cases in which the district court has original jurisdiction to make orders that may in some manner affect the property of a lunatic under guardianship; but it cannot be that, without a specific grant of authority, that court may take jurisdiction in the first instance to do the same things which the probate court is expressly authorized to do.
A court of general chancery is not, perhaps, entirely divested of jurisdiction in cases of guardianship by the creation of a statutory court for the control of the ward’s property, but such jurisdiction as it has is reserved to it in extraordinary cases and for special reasons. ( Willis v. Fox and another, 25 Wis. 646; Ames et al. v. Ames et al., 148 Ill. 321, 36 N. E. 110.) In accordance with this principle, it has been held that where a decedent’s estate is still unsettled, the administrator still acting, and no special .reason shown why the jurisdiction of the probate court should not be invoked, the district court will not make orders affect ing the administration of the estate. (Johnson v. Cain, 15 Kan. 532 ; Stratton v. McCandless, 27 id. 296.)
Considering the ample authority vested in the probate court to make all proper and just orders in respect to the estates of lunatics, we can conceive no occasion when, in the lack of special reasons therefor, the district courts should be called on to interfere. The judgment of the court below is affirmed.
Smith, Pollock, JJ., concurring. | [
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Error from Lyon district court. | [
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■ The opinion of the court was delivered by
Greene, J. :
The defendant in error Ellen Flaherty sued George Flaherty and plaintiff in error in conversion before a justice of the peace of Nemaha county. The bill of particulars alleged: “The plaintiff, Ellen Flaherty, complains of defendants, S. W. Ellis and George Flaherty, and says that on or about the 18th day of May, 1900, she was the owner of twenty-six hogs, of the value of $206.45; that on said date said defendants, S. W. Ellis and George Flaherty, converted the same to their own use,” etc. Judgment was asked for their value, with interest from the date of the alleged conversion. George Flaherty and plaintiff below were brother and sister, living together on a farm in Nemaha county. The defendant Ellis resided in Pottawatomie county. Service was had on Flaherty in Nemaha county, and, by reason of the alleged joint liability, summons was issued to, and served on, Ellis in Pottawatomie county. Judgment was rendered by the justice of the peace against Ellis and George Flaherty, from which Ellis appealed to the district court. Judgment was rendered against Ellis in the district court, to reverse which he prosecutes this proceeding.
The defendant below introduced no evidence at the trial of the cause in the district court, and the only evidence offered by plaintiff below was the testimony of herself and George Flaherty. At the conclusion of her testimony, the defendant, Ellis, demurred to the evidence, which demurrer was overruled. It appears conclusively from the evidence that the defendants below, neither jointly nor severally, were guilty of conversion. George Flaherty sold the hogs in question to Ellis with the knowledge and consent of Ellen Flaherty. The undisputed evidence was that prior to this time he had been in the habit of transacting such business for his sister, and that in this particular transaction he was acting for her, with her knowl edge and consent. The jury returned special findings of fact, among which were the following:
”2. Ques. In the sale and delivery of the hogs in question in this action, did George Flaherty act for himself, or as agent for Ellen Flaherty? Ans. For Ellen Flaherty.”
”4. Q. Were the hogs sold and delivered to S. W. Ellis? A. Yes.”
”6. Q. Did plaintiff consent that the hogs should be sold to S. W. Ellis ? A. Yes.
”7. Q. Did the agent act in accordance with his authority in the matter ? A. Yes.
“7i- Q. Did the defendant George Flaherty convert any of the hogs to his own use ? A. No.
‘‘8. Q. Did he deliver all the hogs to S. W. Ellis ? A. Yes.
”9. Q. Was he authorized by plaintiff to do so? A. Yes.”
”13. Q. Did S. W. Ellis take the hogs in question from plaintiff without her consent? A. No.
”14. Q. Has the plaintiff ever demanded the hogs ofS.W. Ellis? A. No.”
In the absence of any evidence tending to establish conversion, the court should have sustained the demurrer and rendered a judgment for defendant, Ellis.
It is urged here, however, that it is a rule of practice recognized by this court that, where the variance between the petition and the facts proved is such that an amendment to the petition ought to be allowed, to conform to the facts proved, the judgment will not be reversed on account of such variance. The rule was stated thus in Jung v. Liebert, 44 Kan. 304, 24 Pac. 474 :
“Where there is a variance between the allegations of a bill of particulars and the facts proved and specially found by the jury on the trial, yet, if it be a case where an amendment to .a bill of particulars ought tobe allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced.”
We think, however, in this case, that no amendment ought to have been allowed. Conceding that the facts proved established a right of recovery in contract, we have no precedent authorizing an amendment of the petition in tort to one on contract. The evidence tending to support the one will not support the other. While one whose property has been converted may waive the tort and sue on what the law determines to be an implied contract, if, however, he elects to sue in tort, he may not thereafter, and upon the trial, amend his petition or pleading so as to set up a cause of action on contract. This is not an amendment; it is a substitution of one cause of action for another and entirely different cause of action. Section 139 of the code (Gen. Stat. 1901, §4573) provides for the amendment of pleadings to conform to the facts proved, when such amendment does not change substantially the claim or defense, but it nowhere authorizes by way of amendment the substitution of one cause for another.
In Culp v. Steere, 47 Kan. 746, 751, 28 Pac. 987, 989, this court used this language : “The statute does not provide that the amendment shall not change the form of the action or cause of action, but' it simply provides that the amendment shall not ‘change substantially the claim or defense.’ ” If it was intended by this language to make a distinction between the cause of action pleaded and the claim of the plaintiff, it is disapproved.' The word “claim” as therein used is synonymous with “cause of action.”
It was said in Degraw v. Elmore, 50 N. Y. 1: “The code does not authorize a recovery where the complaint alleges facts showing a cause, of action in tort by proving upon the trial a cause of action in contract.” Again, in Neudecker v. Kohlberg et al., 81 N. Y. 296, 297, it was said : ‘ ‘Where a complaint states a cause of action ex delicto, it is not competent at the trial to convert it into one ex contractu.” This position is well, fortified by authority. ( Givens v. Wheeler, Adm’r, 6 Colo. 149; Lumpkin v. Collier, 69 Mo. 170; The People v. The Circuit Judge, 13 Mich. 206; Ross v. Mather, 51 N. Y. 108, 10 Am. Rep. 562.)
The plaintiff having wholly failed to prove a cause of action in tort, the bill, of particulars was not amendable to convert her action into one on contract. The demurrer to the evidence should have been sustained.
The judgment of the court below is reversed and the cause remanded, with instructions to sustain the demurrer to the evidence.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was an action in ejectmentto recover the possession of one acre of land upon which was erected the schoolhouse of defendant in error. This land was a portion of a tract known as “Osage ceded lands.” Prior to the time that plaintiff had settled upon this tract with a view of acquiring title thereto, and while it was yet government land, this school building was erected. On November 14, 1885, the plaintiff in error, plaintiff below, having complied with the requirements of the federal laws, and made full payment for the land, received what is commonly known as a “receiver’s receipt,” which evidenced her right to a patent for the land, which patent she received on the 28th day of December, 1886. Proceedings were inaugurated by the school district to condemn the schoolhouse site, already occupied, on July 28,1886. These proceedings ripened into an order pf condemnation, as provided by section 6131, General Statutes of 1901, that section being then in force, and were pleaded by the school district in defense to plaintiff’s action. The court below held that these proceedings were sufficient to vest title to the acre of land in dispute in the school district, and gave judgment in its favor and against the plaintiff. She is here insisting that these proceedings were insufficient and void for two reasons.
She first contends that they were had while the land yet belonged to the government and before the plaintiff received her title, and, therefore, that she could not in any way be affected thereby. It must be borne in mind, however, that, before these condemnation proceedings, she had done all the things required by the government to be by her performed, and had made full payment for the land, and had already thereby been vested with the equitable title, needing only the legal title, which would come to her by the patent, to make her title in all respects perfect as against every one but the government. She was the efficient owner, and, even as against the government, she was the equitable owner. In addition to this, section 4831, General Statutes of 1901, which was then in force, provided :
“The usual duplicate receipt of the receiver of any land-office, or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver that the books of his office show the sale of a tract of land to a certain individual, is proof of the title equivalent to a patent against all but the holder of an actual patent.” '
Clearly, plaintiff in error was, at the time of these condemnation proceedings, the owner of this land, so that these proceedings, if in themselves sufficient, divested her of title thereto. We therefore proceed to inquire whether they were sufficient for this purpose.
The objection made by the plaintiff in error to them is that no notice of their pendency or progress was' given her. This is true. Was notice necessary? It is claimed that private property may not be taken for public use without due process of law and full compensation, and that due process of law requires notice to be given to the party to be affected. This land was taken for a public purpose and by the exercise of the power of eminent domain. The only provision in our fundamental law limiting the exercise of this power is that contained in section 4 of article 12 of the constitution, which is:
“No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner. . . .”
The bill of rights also provides that “all persons, for injuries suffered in person, reputation, or property, shall have remedy bydue>course of law.” .Now, section 6131, General Statutes of 1901, under which these condemnation proceedings were had, provides that, if any school district had in good faith', but by mistake or otherwise, built a schoolhouse upon land to which the school district at the time of the erection of such school building had not the equitable title, then, upon written application of the district board, it shall be the duty of the probate judge of the county in which such school site is situated to appoint three disinterested freeholders of such county, not residents of the district, to condemn and appraise such site ; that said appraisers shall proceed to make such appraisement within ten days and make report, describing the lands condemned and appropriated and the value thereof, which report is to be filed in the office of the register of deeds of the county, and by him recorded as other instruments of writing affecting the title to real estate ; and directs that, within thirty days after the report is filed in the office of the register of deeds, the district board shall make payment to the county treasurer, for the use of the owner of such land, the amount of the appraised value thereof, and also the fees of the register of deeds for recording the report, “and upon such payment being made to such county treasurer by such district board, the title to such site . . . shall vest in such school district.” It is further provided that either party may appeal from such appraisement to the district court, in the manner provided for appeals to be taken from the judgment of justices of the peace in civil actions. The procedure as there directed was strictly followed.
No notice is required by this section to be given to the owner of the land; no constitutional provision requires it. There is no constitutional or statutory requirement that payment shall be made as a prerequisite to the taking, or even made at all. But, unquestionably, there is that principle underlying all constitutions and laws, which must be read into all of them, that private property may not be taken for public purposes without adequate compensation. This is indicated in the bill of rights. Notice to the citizen of the taking of his property for a public purpose is of no concern to him, for the right to take exis'ts, independently of notice. It is only when compensation for such taking comes to be considered that the owner of the condemned property becomes interested, and only of proceedings to determine that question is he entitled to notice, for upon that question only has he a right to be heard. The taking precedes the assessment of damages. The title passes upon the taking of the property.
The constitutions of many states provide, in substance, that the property of the citizen can only be taken after «compensation has been made. In such states, of course, the making of compensation must precede the taking; hence some proceeding to determine the value, to which the owner has been a party, must precede the taking of the property or the passing of title. But it may be urged that no provision was made by the law for the giving of notice of these condemnation proceedings, even to determine the value of the land taken, and therefore its assessment was void. This might be granted, and yet the proceeding would vest title in the school district, for the condition on which the title was so to vest was upon payment’s being made to the county treasurer by the district board. Very true, the owner was not bound by the amount of the assessment. She might, if she chose not to accept the price fixed by the appraisers and paid by the school district to the county treasurer, have appealed from that award and had her day in court on such appeal, unless cut off by the lapse of time ; or she might have resorted to an independent action against the school district to try the question of the value of the property which it had appropriated.
These views are fully sustained by the following cases taken from states having constitutional provisions similar to our own: Commissioners’ Court of Lowndes County v. Bowie, 34 Ala. 461; Cairo and Fulton R. R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564 ; Fox v. W. P. Railroad Co., 31 Cal. 538 ; Powers et al. v. Armstrong et al., 19 Ga. 427; The Jeffersonville, Madison and Indianapolis Railroad Company v. Daugherty, 40 Ind. 33; Cushman v. Smith, 34 Me. 247; Riche v. Bar Harbor Water Co., 75 Me. 91; Haverhill Bridge Proprietors v. County Commissioners, 103 Mass. 120, 4 Am. Rep. 518 ; The People, ex rel. Green, v. Michigan Southern Railroad Company, 3 Mich. 496; Orr v. Quimby, 54 N. H. 590; Den v. The Morris Canal and Banking Company, 24 N. J. L. 587; Isaac Bates v. Thomas Cooper, 5 Ohio, 115 ; Pittsburg v. Scott, 1 Pa. St. 309 ; Commonwealth v. Pittsburg and Connellsville Railroad Go., 58 Pa. St. 26; Hatermehl v. Dickerson et al., 8 Phil. Rep. 282.
As illustrative of the cases, and in support of the views herein announced, the following quotation is made from People v. Adirondack Railway Co., 160 N. Y. 225, 238, 54 N. E. 689, 693:
“The state needs the property and takes it, and while the citizen cannot resist, he has the right to insist upon just compensation, to be ascertained by an impartial tribunal. It is a compulsory purchase by public authority, and the individual receives money in the place of the property taken. He has a right to his day in court on the question of compensation, but he has no right to a day in court on the question of appropriation by the state unless some statute requires it. (Matter of Village of Middletown, 82 N. Y. 196, 201.) There is no necessity for any safeguard against taking, because the right to take is all there is of the power of eminent domain, and is necessarily conceded to exist when the existence of the power is admitted. Safeguards become necessary only when the question of compensation is reached, and then the courts are careful to see that the owner receives all that he is entitled to. Until then the courts could not help him, unless some statutory right were invaded, as the method of taking is within the exclusive control of the legislature. If a statute requires judgment of condemnation, judgment must be had accordingly before the property can be taken, but otherwise a certificate of condemnation by an executive officer, followed by payment, satisfies every requirement of the constitution. If the use is not public, the statute authorizing condemnation is void, but this question of law need not be settled in the proceeding to take, as it can be raised by the property-owner in a variety of ways.”
We, therefore, in this case hold that no notice was necessary to be given to plaintiff in error of the condemnation proceeding, in order that such proceeding should convey to the school district a good title to the schoolhouse site taken, and therefore the judgment of the district court was right and must be affirmed.
All the Justices concurring. | [
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Error from Haskell district court. | [
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Error from Chautauqua district court. | [
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The opinion of the court was delivered by
Cunningham,. J.:
Appellants were convicted of keeping a nuisance, contrary to the provisions of section 2493, General Statutes of 1901. The complaint charged that the defendants maintained
“a place where intoxicating liquors are kept for sale, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for the purpose of sale, barter or delivery in violation of law, or a place where intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property are kept and used in maintaining such place.”
A motion to quash this complaint, because it “is too indefinite and uncertain, and does not inform said defendants or either of-them as to what they are called upon to plead to, or defend against,” was overruled by the court. The court erred in so doing.
While the complaint was in the language of the statute, which separates several offenses therein named by the disjunctive “or,” still it is well settled that such a pleading is not sufficient. The defendant is entitled to be informed just what is charged against him, and a complaint that he did one thing, or another, or still'another, lacks certainty. In this case, 'from the complaint, no one could tell whether the defendants were being charged with maintaining a place where persons are permitted to resort for the purpose of drinking intoxicating, liquors as a beverage, or whether they were being prosecuted for maintaining a place where such liquors were kept for the purpose of sale, barter or delivery in violation of law. It is true, the several acts enumerated in the section referred to might be joined in one complaint, but they must be charged cumulatively by the conjunction “and.” (The State v. Schweiter, 27 Kan. 499 ; 10 Encyc. Pl. & Pr. 536.)
The judgment of the district court will be reversed and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Ulysses Bricker sued the St. Louis & San Francisco Railway Company and Aldace F. Walker and John J. McCook, as receivers of said company, to recover damages for injuries which he claimed to have sustained by reason of the negligence of the employees of said company and its receivers.
At the time of his injuries, plaintiff belonged to a bridge gang working under a foreman named Bower-sock, repairing and reconstructing a pile bridge on a line of defendant’s railroad in Ellsworth county. The bridge was situated in a southwesterly apd northeasterly direction over a stream and was about thirty-two feet long. Immediately before the plaintiff received his injuries, he was under the northeast end of the bridge, removing the nuts from the blocks which held two of the stringers of the old bridge. The bottom of the stringer was about fourteen inches from the ground at the place where he was working. While he was thus engaged, the workmen on top of the bridge rolled a push-car loaded with timbers on to the southwest end of the bridge and threw one of the timbers off- at that end on the north side. Bowersock, the foreman, was standing on the bridge directly over where plaintiff was working. The push-car was then rolled to the northeast end of the bridge, for the purpose of throwing another timber off at that end. Immediately preceding or as the men were in the act of throwing this latter timber, Bowersock called to plaintiff to “look out” or “get out.” The plaintiff, hearing this call, undertook to get out from under the bridge, and as he did so was caught by the falling timber, which crushed his leg and caused the injuries of which complaint is made.
'l It is alleged that plaintiff’s injuries were caused by ^the negligent acts of defendant’s employees, especially |of Bowersock, in directing the plaintiff to work at jjthe time and place where the injuries occurred; in failing to instruct him of the hazard of the situation; in negligently failing to look out for his safety and to use ordinary precaution for his protection from impending danger ; in failing to inform the other workmen of the position of plaintiff under the bridge ; and in negligently failing to notify plaintiff in time to escape the danger which might result to him from throwing the timber.
The first contention on the part of plaintiffs in error is that Bricker was guilty of contributory negligence ; that he would have been in a place of absolute safety had he remained at his place under the bridge ; and that his negligence consisted in leaving a place of safety and unnecessarily putting himself in the way of the falling timber. It was not denied by the plaintiff that the timber could not have fallen on him had he remained under the bridge. There is considerable undisputed evidence in the record, however, that the falling timber was not the only danger against which he had to guard. There is evidence that in constructing and repairing bridges there are constantly in use many tools, such as adzes, mauls, and packing rings, which are generally kept on top of the bridge, and the throwing of timbers will, or is likely to, jar these tools off the bridge, and there is danger of their falling on the workmen beneath.
The evidence also fairly established the fact that Bowersock, the foreman, had instructed his men never to throw a timber from a-bridge while men were under it at the point from which the timber was to be thrown. This was to guard against injury resulting from the falling of these tools. The evidence was that it was the universal custom of that gang not to throw a timber while workmen were under the bridge. This instruction and custom were known to the plaintiff, and he testified that he relied and acted upon them in this instance, and that, when Bowersock called to him to “look out,” or “get out,” lie understood that Bower-sock intended he should come out from under the bridge, and that the men would not throw the timber until he had time to do so. He also testified that he did not get from under the bridge because of any danger from the timber, but because the jar which the bridge would receive from the falling timber would probably dislodge the tools on the bridge, and he would thus get hurt. This testimony went to the jury uncontradicted.
Another alleged error is the exclusion of certain testimony offered by the plaintiffs in error on an application to require the plaintiff to give security for costs. Upon an examination of this evidence, it must be held that the court committed no error in this respect.
At the trial the defendant submitted to the jury the following special interrogatories:
“No. 52. If you find for the plaintiff, how much do you allow him for the loss of abilitv to earn a livelihood? Ans. $3000.
“No. 53. If you find for the plaintiff, how much do you allow for the permanent injuries, exclusive of the amount, if any, allowed for the loss of ability to earn a livelihood? Ans. $3000.”
It is contended by plaintiff in error that, the jury having allowed the plaintiff $3000 for permanent injuries, which generally includes the loss of ability to earn a livelihood, the $3000 allowed for loss of ability to earn a livelihood is excessive. We think it true that generally an allowance for permanent injuries includes loss of ability to earn a livelihood, but in this instance the plaintiffs in error requested the jury to divide this item into two parts, and unless the court can say that the aggregate amount is excessive, the plaintiffs in error have no cause to complain.
Another contention is made that the award of $2000 for loss of time is grossly excessive. It was more than five years from the date of the injuries to the time of the trial. The plaintiff was earning $1.75 a day when injured. The jury, after hearing the evidence and seeing the plaintiff, were the judges as to what extent his injuries disabled him, what he could ,probably have earned in his' disabled condition, and what he would probably have earned during this time had he not been injured. The finding was approved by the trial court, whose opportunities to arrive at a réasonably correct conclusion were equal to those of the-jury. In view of these facts, this court cannot say that the award is excessive.
A contention is made by the corporation that in no event is it liable. It appears that at the time the plaintiff received his injuries, and for some time prior thereto, all the property of the corporation was in the hands of, and the road was being operated by, Aldace F. Walker and John J. McCook, as receivers.- The principle of respondeat superior has no application. The receivers were the officers of the court and not the agents of the corporation, and the corporation is not, therefore, liable for the acts of the receivers or the acts of their employees, (M. K. & T. Ry. Co. v. McFadden Bros., 89 Tex. 138, 33 S. W. 853; Metz v. Buffalo, Corry & R. R. R. Co., 58 N. Y. 61, 17 Am. Rep. 201; The Ohio and Mississippi Railroad Company v. Davis, 23 Ind. 553, 85 Am. Dec. 477; Gableman v. Peoria, D. & E. Ry. Co., 82 Fed. 790; Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 id. 637; Memphis & C. R. Co. v. Hoechner, 67 id. 456, 14 C. C. A. 469 ; Railway Co. v. Smith, 59 Kan. 80, 52 Pac. 102.)
Again, the liability of a railroad company for injuries sustained by an employee is one created by the statute. Section 5858, General Statutes of 1901, reads :
“Every railroad company organized or doing busi ness in this state shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage.”
It will be observed that the damages for which the corporation is made liable must arise in consequence of some negligence of the agents of the corporation, or mismanagement of its engineers or other employees. The plaintiff, when injured, was not an employee of the corporation and his injuries are not the result of the negligent act of any agent of the corporation or of the mismanagement of any engineer or employee of the corporation.
It is argued by the receivers and the corporation that because they were sued jointly and a joint judgment taken against both, if it áhould be held that the corporation is not liable, the judgment cannot stand as to either. This contention cannot be sustained. This court has expressed itself upon this question in Railway Co. v. Smith, 59 Kan. 80, 52 Pac. 102. With the rule there stated we heartily agree.
The judgment of the court below is modified and set aside as to the corporation, and affirmed as to the receivers. The costs in this court are equally divided.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The first question arising from the foregoing facts is whether the board of equalization was in existence June 14,1898, when the order raising the valuation of the property of plaintiff in error was made. He contends that its powers ceased June 6, 1898..
In the law creating county boards of equalization and defining their powers and duties (Gen. Stat. 1901, §§ 7602-7611), the provision relating to adjournment appears in that portion only of section 7603 which concerns personal property, but it relates to proceedings to equalize the valuation of real estate as well. It was not contemplated that the board should have a period of time in which to equalize personal property, and only the first day.of its session in which to adjust the valuation of all the real estate in the county. Having duly convened upon the appointed day, it could adjourn from time to time, as the progress of its business might necessitate, until the equalization of the real estate of the county was completed. (Challiss v. Rigg, 49 Kan. 119, 131, 30 Pac. 190.) Therefore, if properly convened, the board could make the order complained of on the day in question, so far as the limit of time is concerned.
It is urged, however, that the board of equalization had in fact ceased to sit as such. For the solution of. this question it is only necessary to ascertain the meaning to be given to the words “the board” and “the board.of commissioners,” as used in the parts of the record relating to the adjournment and to the convening of sessions upon the various days from June 6 to June 14. The words “the board” might refer to the board of equalization with as much propriety as to “the board of county commissioners,” and the words the board of commissioners might well be used by the clerk as an abbreviation of the fully expanded description “ the board of county commissioners acting as a county board of equalization.” Such an interpretation does not contravene the rule invoked by plaintiff in error that the board of equalization has only a special and limited jurisdiction, and that its record must exhibit all the facts necessary to give authority for its action. It simply determines that when descriptive words used in a record compiled by a clerk who is not required to employ any particular form of expression are susceptible of application to two bodies composed of the same individuals, but with separate functions, they will be given such meaning as will sustain the proceeding in which they occur, rather than a meaning which would nullify such proceeding. This is in accord with well-established rules of construction and with previous utterances of this court. (Fowler v. Russell, 45 Kan. 425, 427, 25 Pac. 871.) Hence, the record is sufficient to show that the board had retained jurisdiction of the subject of equalization until the timé the orders objected to were made.
The Second question presented for consideration is the defensibility of the amount of the increase in the valuation of the land in question, and of the method employed by the board of equalization in determining it. In arriving at the amounts fixed upon, the members of the board used their own knowledge of values in general, their knowledge of the value of the particular tracts in question, from personal observation and from the statements of persons on whom they saw fit to rely, and their knowledge obtained from the assessment rolls themselves, both past and present. While there is a slight discrepancy between the ninth finding of fact and the evidence, in that only one member of the board had personally seen the land instead of two, the variance is not material,'for all the sources of information named in the finding were before the board. Each individual contributed something, and from the entire fund of knowledge thus placed at their command an estimate was made. It was not necessary that the board examine witnesses or resort to any particular class of evidence in-order to equalize valuations of real estate. The statute does not require it; and in the absence of a definitive legislative direction to the contrary, the board must be its own judge of what it will rely on as the foundation of its orders. This principle has been applied in considering the power of the state board of equalization (K. P. Rly. Co. v. Comm’rs of Riley Co., 20 Kan. 141), and in reviewing the action of the county board of equalization in reference to personal property. (Fields v. Russell, Sheriff, 38 Kan. 720, 17 Pac. 476.)
No sufficient reason is urged for the renunciation of the rule in this case. M'attersof assessment and taxation are administrative in their character and not judicial, and an interference by judges ' who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waived aside to meet the exigencies of any particular case. (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575; K. P. Rly. Co. v. Comm’rs of Ellis Co., 19 id. 584.)
But fraud, corruption and conduct .so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve "against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity. Are the acts of the board of equalization in this case so arbitrary, then, as to amount to official misconduct or fraud ? The valuation assigned by the board was identical with that disclosed by the previous assessment roll, and one member of the board, besides having seen this particular land, was declared by the trial court to be qualified to judge of values generally throughout the township in which it was situated. The board could scarcely ignore his judgment as to a depreciation, especially as it coincided with their own information. What counsel calls “rumor” and “gossip” the district court evidently esteemed as a reasonable basis of judgment, when used in connection with all the other evidence considered, and the controlling idea in the mind of each commissioner was the establishment of uniformity of value. The proportion of actual value used as the basis of assessment was lower for real estate than for any other class of property in the county, and six per cent, below the average for all property. In the light of all the facts found by the trial court, it cannot be judicially declared that the board of equalization abused its power.
In the case of State Board of Equalization v. People, 191 Ill. 528, 61 N. E. 339, relied on by counsel for plaintiff in error, an application was made for a writ of mandamus to compel the state board of equalization to assess in the manner provided by law the capital stock and franchises of certain street-railway, gas and electric-light companies in the city of Chicago. The grounds on which the court proceeded in awarding the writ are fairly indicated in the following quotation from the opinion :
“The amount, however, assessed against said company by the state board of equalization was $450,000, or $8,978,403 less than the company’s own statement, subscribed and sworn to by its own secretary, showed to be the' amount for which it should have been assessed. The assessment of this corporation is a fair illustration of the assessments made by the state board of equalization against the other six companies which it assessed.
“It was the duty of the state board of equalization to assess the capital stock, including the franchises, of said corporations at the fair cash value thereof. Instead of doing so, the respondents arbitrarily and wilfully failed to follow a proper and long-established rule in force in this state for making such assessments, by refusing to take into consideration, in making such assessments, the bonded indebtedness of said corporations. They also disregarded all other rules for the making of such assessments in force at the time of the filing of this petition, and, for the purpose of evading their duty, sought to pass new rules for their government in making said valuations and assessments, and refused to consider the information then before them furnished to them by the assessors as provided by statute, and assessed the capital stock and franchises of said corporations at á nominal sum instead of at the fair cash value thereof.”
No such state of facts appears in the case at bar. Since the action of the board of equalization cannot be disturbed, it cannot be said that the rule requiring each step of the tax proceeding, including the valuation, to be uniform, has been violated. The findings of fact are fairly sustained by the evidence, the conclusions of law are correct, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Doster^, C. J. :
This was an action to set aside a conveyance of lands made by Vickers to Maxson, on the ground of fraud. The allegations of fraud raised the only controverted questions in the case. Upon the defendants’ request, a jury was impaneled to try the issues and make special findings of facts. ■ Instructions on the law of the case were given, and on the part of the defendants requests for instructions were made and refused. The defendants also requested the submission to the jury of a number of special questions of fact, which request was refused. In lieu of the questions proposed, the court of its own motion submitted certain interrogatories. The case was argued to the jury, after which answers to the questions asked were returned, which questions and answers were as follows:
“Ques. 1. Did C. C. Vickers and Mary P. Vickers convey to Perry B. Maxson, by their deeds dated June 30, 1894, all the real estate at that time owned by C. C. Vickers? Ans. Yes.
“Q. 2. Was C. C. Vickers, on the 30th day of June, 1894, able to meet all the liabilities of the firm of W. L. Vickers & Co., of which he was a member? A. No.
“Q. 3. How much money did Perry B. Maxson pay to C. C. Vickers or to Mary P. Vickers for the lands in question? A. $1000 on July 18, and about $1600 thereafter.
“Q. 4. Did the defendant C. C. Vickers, and wife, convey the real estate described in the petition to Perry B. Maxson with the intent to hinder, delay or defraud the creditors of W. L. Vickers & Go. or C. C. Vickers? A. No.
“Q. 5. If you answer question No. 4 in the affirmative, then did Perry B. Maxson, before he parted with his money and notes for such conveyance, know of such fraudulent intent, or did he have knowledge of facts sufficient 'to excite the suspicion and put an ordinarily prudent man upon inquiry as to the intent and purpose of C. C. Vickers and wife in making such conveyance? A. -
“Q. 6. Did Perry B. Maxson, at the time he took the conveyance of th'e lands in question, know that W. L. Vickers & Co. were in failing circumstances? A. No.
' “ Q. 7. Did Perry B. Maxson, in his purchase of the land in controversy from C. C. Vickers and wife, act in good faith and without intent to hinder, delay or defraud the creditors of'W. L. Vickers & Co. or C. C. Vickers? A. Yes.”
The record then shows the following proceedings :
“And thereupon the plaintiffs filed a motion for judgment and decree as prayed for in their petition, the findings of the jury to the contrary notwithstanding.
“And afterwards, and on the 8th day of December, a. d. 1899, said motion came- on to be heard, and after hearing the arguments of counsel for the respective parties and duly considering the same, the court finds that the findings of the jury ought to be ignored and disregarded, and that the court itself ought to determine and decide the issues by and from the evidence submitted on the trial of this cause.
“And thereupon the said defendants requested permission to present said case to the court as upon a trial to the court, which the court refused, and to which refusal the defendants then and there duly objected and excepted.”
After the occurrence of the above proceedings, the court made a general 'finding that the deeds in question were “fraudulent and void as against the rights of the plaintiff and the other creditors of the defendant C. C. Vickers.”- Judgment in accordance with the court’s finding was thereupon rendered, and a motion for a new trial was made and overruled. From evidence offered in support of the motion, it appeared that the case had been twice before tried to juries in the same court and before the same judge. One of the grounds of the motion for a new trial was ‘‘ abuse of discretion on the part of the court by which the defendants were deprived of having a fair trial.” A court is not bound to submit any of the questions arising in-equity cases to a jury. It may, however, do so, but, if it does, the jury’s findings are advisory only. They may be adopted in whole or in part, or disregarded altogether. This has been several times remarked by this court. We think, however, that there is a condition attached to this rule. That condition is that, when the court submits the case to the jury as though they were the ultimate triers of the facts, it cannot thereafter arbitrarily determine the case itself without giving the parties a hearing of some kind and to some extent before it as the court. It is not said that the court must permit a retrial of the case, but it must allow the case to be presented anew so far as' to give it the substantial character and effect of a trial to the court. The above-recited record shows that “defendants requested permission to present said case to the court as upon a trial to the court, which the court refused.” Now, a trial to the court is in some respects different from a trial to the jury. For instance, in a trial to the court, findings of fact must be made and conclusions of law stated, if requested by either party. (Civil Code, § 290; Gen. Stat. 1901, §4737.) This presupposes the right of counsel to be heard in argument on the facts and, perhaps, on the law. In some cases testimony which it would be erroneous to receive on a jury trial may be heard by the court without committing error. There are other instances of dissimilarity.
As before said, the court, if dissatisfied with the jury’s findings’, should not be required to try the case de novo, but in all particulars in which a trial to the court differs from a trial to the jury — that is, in all particulars in which the presentation to the jury could not be made effective as a presentation to the court — the parties are entitled to a hearing before the latter. In what particulars the defendants ■ in this case desired a hearing before the court the record does not show. They were denied the right to pre sent their side to +' ie court in any particular,, and such denial, we th" k, was error, because it amounted to a denial of the Nght to be heard in the case. It is evident that the court and the counsel for defendants below differed with each other in respect to both the facts and the law, and in these matters, as we interpret the record, the counsel were denied a hearing in argument to the court, a denial .for which we cannot say that a subsequent hearing on the motion for new trial atoned.
The judgment of the court below is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bukch, J.:
The appellant, Frank Lee, was convicted in the district court of Sheridan county of violation of the prohibitory liquor law. Sentences of fine and imprisonment were imposed, and he was required to enter into a recognizance for his future good behavior in respect of that law.
The seventh count of the information, which was filed October 28, 1901, alleged that on “the 1st day of November, a, d. 1899, andón divers other days and time«s between that date and the 1st day of July, a. d. 1901,“ he maintained a nuisance, under section 2463, General Statutes of 1901. The specific objection is made that the nuisance was not charged to have been in existence at the time the information was filed, and that for this reason it failed to state a public offense.
It was not essential that the information should contain the facts suggested. The maintenance of a nuisance may be continuous, or may be intermittent, and may persist through separate intervals of time of unequal length. It is the purpose of the legislature, however, that places obnoxious to the prohibitory law shall not exist at all, and to that end several penalties have been provided. One involves an abatement and destruction of offending premises and things, and another involves-offending persons only. “If the place itself be no longer subject to condemnation, a judgment of abatement is unnecessary, but punishment still remains to the guilty owner or keeper. He cannot, by simple discontinuance at some instant prior to the commencement of an action against him, exculpate himself, and he may be charged as such owner or keeper for any length of time, be it long or short, within the period of the statute of limitations.
The remedy of abatement is not inseparably involved with the personal penalty for maintaining. (The State v. Engborg, 68 Kan. 853, 66 Pac. 1007.) If the place itself be not proceeded against, it is not material that it should continue to be a nuisance until an information be filed. This view is supported by the opinion in the case of The State v. Reno, 41 Kan. 674, 683, 21 Pac. 803.
The appellant asserts in his brief that the record fails to show a compliance with the statute requiring the court to inform the defendant of the verdict of the jury. This contention is not made in the assignment of errors attached to, and filed with, the transcript, and hence will be deemed to be waived, under rule 11 of this court.
All rulings specified in the assignments have been considered, and no error appearing, the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
When ordinance No. 13 was passed by the city council, approved by the mayor, and its terms accepted by the water company, the city had power, which power still exists, to purchase or condemn land' for water-works purposes and to provide the city with water. (Gen. Stat. 1901, §1001; Water works Co. v. City of Columbus, 48 Kan. 99, 28 Pac. 1097, 15 L. R. A. 354.)
In the making of such contract the city exercised g-ucm'-private power and was governed by the rules applicable to an individual or a private corporation. ( The State v. Water Co., 61 Kan. 547, 561, 60 Pac. 337 ; Hubbell v. South Hutchinson, 64 id. 645, 68 Pac. 52.)
A large part of the voluminous record in this case is taken up by the testimony of witnesses introduced by the plaintiff below, showing that the water supplied from the lake was unfit for domestic purposes and dangerous to the public health, and by testimony on the other side contradictory thereto. We are not, however, concerned with such controversy. That question became immaterial after the city had recognized the lake as a source of water-supply by ordinances passed in 1889 and 1895, referred to in the statement, followed by the election of the city to purchase the plant, February 9, 1900. When it passed these ordinances and elected to buy the property, it did so with notice that the water-supply to the residents of the town did not conform to the requirements' of’ the. contract. With full knowledge of this, it proceeded in the most solemn manner to declare its election to purchase. Afterward it could not make the unsanitary condition of the water the basis for a suit in equity to oust the company from exercising franchises or rights given it by the city., (Water Co. v. Grand Junction, 14 Colo. App. 424, 60 Pac. 196; Studer v. Bleistein et al., 115 N. Y. 316, 22 N. E. 243, 5 L.R.A. 702; Benj. Sales, 7th ed., §705, and note.)
During the years when it was shown by testimony introduced on behalf of the city that the water was so bad as to be unfit for domestic use, it continued with out objection for that reason to pay hydrant rental. [The protection of the rights of private consumers was !confided by law to its charge. No citizen could com- ! pel the water company to perform its contract with ; the city. (City of Winfield v. Water Co., 51 Kan. 70, 84, 32 Pac. 663.)
In Water-works Co. v. City of Burlington, 43 Kan. 725, 730, 23 Pac. 1068, 1070, where on the trial the city asserted that the water supplied to it and its inhabitants was not of the quality called for in the contract, but had used the water for a year without objection, the court said:
“It seems strange, however, if the water furnished by the company was really as bad as the city now claims that it was, that the city did not then complain, and then, if the company still persisted in furnishing bad water, declare a forfeiture of the company’s franchise.”
In National Water-works Co. v. Kansas City, 62 Fed. (C. C. A.) 853, 27 L. R. A. 827, 838, Mr. Justice Brewer said:
“In its cross-bill the city has made claim for damages, and insisted that the water-works system does not come up, in efficiency and completeness, to the requirements of the contract. We. agree with the circuit court, after reviewing carefully the testimony, that the city is not entitled to maintain this claim. It has for many years recognized and accepted this water-works system as having been constructed in full compliance with the demands of the contract, and it is now too late to repudiate such recognition.”
There is no distinct claim or demand for specific performance of the contract contained in the answer and cross-petition of the water company. Counsel for the company, however, in his brief contends that the acceptance by the city of the option to purchase gives the water company a right to have the conditions o,* ordinance No. 13 specifically enforced. The argument is that the city must do equity ; that, having accepted the conditions of the contract,'it cannot now repudiate such conditions and invoke equitable relief against the water company; that a right to specific performance of the agreement by the plaintiff in error must necessarily defeat the city in its efforts to cancel and annul-the contract in an equitable suit. We agree with counsel in this claim.
When the city granted this franchise by ordinance No. 13, on June 25, 1885, it was stipulated in one of the sections that it should be a contract “binding upon all parties with equal force.” When the water company accepted the conditions of the ordinance, it was agreed that the city might purchase the works at the expiration of ten years, and, failing at that time, then at the expiration of every five years thereafter, at the appraised valuation of three disinterested persons. It did elect to take the plant at the end of the second period. The water company bound itself in advance to sell. When- the city elected by giving the notice, a binding contract of purchase was consummated. (Rockport Water Co. v. Rockport, 161 Mass. 279, 37 N. E. 168; Cooper v. Lansing Wheel Co., 94 Mich. 272, 54 N. W. 39, 34 Am. St. Rep. 341; Caldwell v. Frazier, ante, p. 24, 68 Pac. 1076 ; Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663.) The contract was mutual and based on a valuable consideration.
It may be stated as a rule of law which had its origin in the English cases that an agreement to submit to arbitration will not be specifically enforced in equity. (Milnes v. Gery, 14 Ves. Jr. 400.) This general rule, however, has not been applied with strictness in this country, and has been expressly de nied as applicable to a state of 'facts substantially like those appearing in the case at bar, as will be presently shown.
The case of Bristol v. Bris. & Warren Water Wk’s, 19 R. I. 413, 34 Atl. 359, 32 L. R. A. 740, is quite similar in its facts to the present one.. The town of Bristol granted to a water company the right to use its public streets, squares and alleys for the purpose of laying down pipes, for a period of fifty years, or until the town should avail itself of the option of purchase reserved to it in the contract, the town agreeing to pay the company $3000 each year for the use'of hydrants and water required for fire purposes. The company agreed to complete its system of water-works and supply the town for domestic, manufacturing and other uses, to furnish hydrants, and to maintain at all times a head of water not less than 125 feet above high tide. It was conditioned that the city might purchase at any time after ten years and within fifteen years from the date of the contract, for a fair and reasonable price, to be a¡greed upon by the town on one part and the company oh the other, or fixed by a majority of arbitrators appointed for the purpose, one by the town, one by the water company, and the third by the two so chosen. After the expiration of ten years the town concluded to buy the plant of the' water company in accordance with the terms of the contract, and requested the company to agree upon a fair and reasonable price to be paid for the works, which it refused to do, and further refused to appoint an arbitrator to determine the same in accordance with the contract. On this state of facts, a bill was filed Ipy the city to compel a conveyance of the plant to it upon payment by the complainant of a fair and reasonable price. It was objectéd, upon demurrer, by the water company that the contract for the sale of the property at a price to be fixed by arbitrators could not be specifically enforced, one of the parties having refused to appoint an arbitrator, and that the court could not upon application of the other party either fix a price itself or appoint an arbitrator. Answering this objection, the court said :
"But, as well stated by complainant’s counsel, where the contract to sell does not stand alone, but is merely a subsidiary part of another contract for a more extensive purpose, the performance of which has already been entered upon, a different rule prevails. In such a case the courts hold that the manner of determining the price is a matter of form rather than of substance ; and if it becomes evident that it cannot be determined in the manner provided for in the contract, by reason of the refusal of one party to do what in equity he ought to do, the court will determine it upon the application of the other. Coles v. Peck, 96 Ind. 333, 49 Am. Rep. 161. In other words, if the parties have incurred obligations under the contract so that they cannot be. placed in statu- quo, the court will itself enforce the agreement. Tscheider v. Biddle, 4 Dill. 55; Herrman v. Babcock, 103 Ind. 461, 3 N. E. 142; Lowe v. Brown. 22 Ohio St. 463 ; Biddle v. Ramsey, 52 Mo. 153. See, also, Morse on Arbitration and Award, 94; Pomeroy on Specific Performance, sections 148-151; Waterman on Specific Performance, section 44.”
"Pomeroy on Specific Performance, section 151, states the law applicable to this class of contracts as follows: 'The second class embraces those contracts in which a mode for ascertaining the .price is mentioned, but from the language of the stipulation it is regarded as non-essential, and as something rather by way of suggestion, so that the agreement itself is virtually one to sell for a fair price. In such a case, if the means specified for fixing upon the price fail for any reason, the court does not treat the contract as fatally defective, but will, in the suit for a specific performance, direct a fair and reasonable price to be ascertained in some manner preliminary to the decree, either by referring the matter to a master or other officer, or by appointing a skilled person as a special valuer, or even by determining the amount itself ; it will pursue any such mode as the circumstances of the case show to be expedient. The tendency of the later English decisions is to consider these stipulations for a determination of the price by third persons rather as matters of form than of substance ; to construe them in such manner that they become incidental only to the main object of the agreement. The court will always look at the substance of the agreement, and disregard the mere forms which had been provided for effectuating it, and which cannot be made operative.’
*11 Equity regards not the form, but the real nature of the transaction.’ Thompsonv. Taylor, 12 R. I. 109, 111. The case before us is a typical one for the application of this doctrine. The agreement to sell is clearly a subsidiary part of a much more extensive contract— a contract by virtue of which the respondent has for nearly fifteen years enjoyed exclusive privileges in the highways of said town, and collected large sums of money from the town and its inhabitants, and by virtue of which it may continue, unless said sale can be consummated or other relief be granted, to enjoy the same exclusive and valuable franchise for the remainder of said term of years. Nor can the complainant by any possibility be put in the position in which it was before the contract was executed.”
In Coles et al. v. Peck, 96 Ind. 333, 339, 49 Am. Rep. 161, in commenting on the rule laid down in Milnes v. Gery, supra, it was said:
“The doctrine of that case has, however, generally been followed by the courts of the United States, only in a limited and restricted sense, and is mainly applied only to contracts for reference, in which, by the form and language of the stipulation, the mode of determining the price by values, on arbitration, is made an essential provision — in fact, condition — to the validity of the agreement, and to cases in which the parties can be easily placed in statu quo, or where an action for damages can be made to afford an adequate remedy.
“There is another recognized class of contracts providing a mode for ascertaining the price of property by arbitration or reference, in which the language used in the stipulation is treated as non-essential, and-as more in the nature of a suggestion, regarding the stipulation itself as virtually an agreement to sell the property at a fair price.”
Holding the opinion that the contract to purchase' may be specifically enforced, notwithstanding the arbitration clause, it follows that the city cannot call on a court of equity tó do that which is not equitable, and thus obtain its release from an obligation deliberately assumed with full knowledge of all the facts, and in no manner induced by fraud or deception of any kind.
The fact that the water-supply failed for a time after the three-months notice to buy had expired cannot affect the legal status of the parties under the contract fixed at the time the city elected to take the plant. An election once made binds the party. He cannot afterwards take the other alternative. (Bish. Cont. §784; Brown v. Royal Insurance Co., 1 Ell. & Ell. 853; Childs v. Stoddard, 130 Mass. 110.)
It will be observed that the three-months notice to purchase was given by the city to the water company on February 9 and expired May 9, 1900. The resolution passed by the city council rescinding the election tó purchase was .passed on June 5, 1900, and a copy of the same served on the water company the next day. There is no provision in ordinance No. 13 when the arbitrators shall be chosen, either before or after the expiration of the five-year period. It is contended by counsel for defendant in error >' r, there was no purchase of the property by the city when it served its notice of election. However this may be, there was a valid contract of purchase, made in acceptance of a continuing offer to sell, extende'd to the city by the water-works company by the terms of ordinance No. 13. The fact that the city could not get absolute title until June 25, 1900, did not affect the binding force of its agreement to purchase. There was nothing to be done after its election to buy except the fixing of the price to be paid.
Again, it is contended that at the time the contract was made the city had no power to issue obligations in payment of the price of the works, ás provided in section 9 of the contract. If this were true it could not avail the defendant in error. In Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, the city council had contracted to build certain sidewalks, to be paid for by city bonds. The work was partly performed, but the city council stopped the same and prevented its completion. It was urged, in an action for breach of contract, that the city had no power to make such agreement, in that it had no authority to issue bonds of the city. The court said:
“ It is enough for them (the plaintiffs) that the city council have power to enter into a contract for the improvement of the sidewalks ; that such contract was made with them ; that under it they have proceeded to furnish material and do work, as well as to assume liabilities ; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay; and that after receiving the benefit of the contract the city has broken it. It matters, not that the promise was to pay in a manner not authorized by law. If pay ment cannot be made in bonds because their issue is ultra vires, it would sanction rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force so far as it is lawful.” (See, also, The State Board, of Agriculture v. The Citizens’ Street R. W. Co., 47 Ind. 407, 17 Am. Rep. 702.)
The case of Hitchcock v. Galveston, supra, is quoted from approvingly in Water-works Co. v. City of Columbus, 48 Kan. 99, 114, 28 Pac. 1097, 15 L. R. A. 354.
There was no lack of power, however, to issue bonds in payment of the purchase-price of the works at the time the election to buy was made, for, by chapter 82, Laws of 1897, such power is expressly conferred. In fact, under the election proclamation of August 11, 1900, the city was proceeding to vote bonds for the erection of water-works, not exceeding $12,000 of the issue to be used in purchasing such part of the machinery, tools, pipes, etc., of the Cherryvale Water Company as might be needed.
The court below, in its decree, not only ousted the water company from the .exercise of its franchises under ordinance No. 13, but also refused to require payment of the city to it for hydrant rental then due. Cities are bound to the exercise of good faith in the fulfilment of contracts to the same extent that such obligations are imposed upon individuals, and in this case an approval of the judgment of the trial court would .work an inj ustice and the abrogation of solemn engagements not to be countenanced in a court of equity.
The judgment of the court bélow will be reversed, with directions to proceed further in accordance with the views expressed in this opinion.
All the Justices concurring. | [
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