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Error from Trego district court. | [
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The opinion of the court was delivered by
Pollock, J. :
Appellant was arrested and tried on a charge of grand larceny in the stealing of cattle, and from a judgment of conviction appeals. A motion to dismiss the appeal is filed. The motion is not well taken and is therefore denied.
Many grounds are relied,on by counsel for appellant to work a reversal of the judgment of conviction. We shall give separate notice to one only. An examination of the record shows that the others cannot be sustained. The larceny occurred in August, 1899. Defendant was arrested in June, 1901. As part of its case in chief, the state offered’one Benson, cashier of a bank in El Dorado, to prove that, since the commission of the offense and shortly before the arrest, defendant had transacted business with the bank, and in so doing had stated his name to be William Jacks, and had signed different papers in that name, and, also, had stated his residence to be near the town of Beaumont, whereas, in fact, he had never resided in that section of the country. The record also contains evidence that defendant, in dealing with the stolen cattle and in offering the same for sale, had stated his name to be Roper. It is earnestly insisted by counsel for appellant that this evidence of the witness Benson was offered by the state for the purpose of establishing the bad character of defendant before his character was put in issue by proof of good character; and, further, that the evidence of this witness was offered by the state to prove defendant guilty of a purely collateral offense. An examination of the record, however, clearly shows that the evidence of Benson was neither offered nor received for this purpose, but for the purpose of establishing the fact that after the commission of the offense defendant stated the place of his residence to be other than that where he actually resided, and gave an assumed name in order to conceal his identity and escape detection, and not for the purpose of proving a collateral crime or attacking the character of defendant before put in issue. Eor this purpose the evidence was properly admitted.
The facts of flight, concealment, disguise, change of name, denial of identity, and the like, of a person accused of crime, after the commission of the offense, may be given in evidence, together with all the other facts and circumstances in the case, as bearing on the question of the guilt of the defendant. (State v. Chase, 68 Vt. 405, 35 Atl. 336; Barron v. The People, 73 Ill. 256; M’Cabe v. Commonwealth [Pa.], 8 Atl. 45 ; The People v. Pitcher, 15 Mich. 397.)
The evidence found in the record is ample to sustain the judgment of conviction. It is, therefore, affirmed.
Doster, C.J., Smith, J., concurring. | [
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Error from Montgomery, district court. | [
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The.opinion of the court was delivered by
Johnston, J. :
At the last session .of the legislature an act was passed purporting to dissolve three school districts in Reno county and to attach the territory previously included in them to another district. (Laws 1901, ch. 339.) A demand by the clerk of the enlarged district for the records, books and papers originally belonging to one of the dissolved districts was refused by those holding them, on the. ground that the act was invalid. To compel a deliver of these and to test the constitutionality of the act, this proceeding was brought, and, upon a motion to quash the alternative writ, the court at a recent .session, held the act to be valid. Since that time an answer was filed and an agreed statement of facts made, but none of the facts brought to our attention affects the validity of the act. Such facts might have been made a basis of appeal to the discretion and judgment of the the legislature, but we cannot inquire into the motives of that body, nor question the policy or wisdom of its acts. Enactments within the domain of its power are not subject to attack on grounds of expediency or policy.
The contention is renewed here that the act violates the limitations of the constitution in several particulars. First, it is contended that it embraces a plurality of subjects. A reading of the act, which is very brief, answers that contention. Briefly stated, it provides for the dissolution of three school districts, the attaching of the territory included in them' to the existing district, and a transfer of the property belonging to them to such district. The general subject of the act is "schools,” or, to make it more particular, it may be said to be the "reorganization of school districts,” and every provision is fairly included within either. It is not contended that there is more than one subject in the body of the act itself, but it is contended that the title of the act contains two subjects. It is entitled : "An act to dissolve school districts numbered 4, 35, and 108, Reno county, Kansas, and attach the same to school district No. 139, Reno county, Kansas, for the purpose of forming a graded school.” The claim is that the dissolving of three school districts is one subject, and the forming of a graded school is another subject, but, as will be seen, the subject is the reorganization of school districts, and added to it is the expressed purpose of forming a graded school. It may be doubted whether the phrase, “for the purpose of forming a graded school,” should be regarded as a subject distinct from the dissolution of the districts and the attaching of them to another, any more than it would have been regarded as a different subject if the phrase had been for the purpose of forming and operating a public school. Public-school districts are organized for no other purpose than the operation of public schools. However, the phrase is mere surplus-age, since the body of the act contains nothing whatever in regard to the character of school which shall be conducted in the reorganized district.’
If it should be held that the added phrase indicates another subject, it would not necessarily be violative of the constitution. The inhibition is not against the inclusion of more than one subject in the title, but it is against the inclusion of more than one subject in the act itself. It provides : “No bill shall contain more than one subject which shall be clearly expressed in its title.” (Const., art. 2, § 16.) The mischief against which provision was made was the making of a title so narrow or restricted as not to indicate the subject of the act. If the act contains only a single subject and that is clearly expressed in the title, the mandate of the constitution is satisfied, and the mere fact- that the title may be broader than the act will not defeat its validity. The title clearly points out the provisions contained in the act, and, therefore, the purpose of the constitutional inhibition has been accomplished.
It is next contended that the act is in violation of section 17 of article 2 of the constitution, which provides that “all laws of a general nature shall have a uniform operation throughout the state ; and in all cases where a general" law can be made applicable no special law shall be enacted.” It is said that no good reason exists for the enactment of special legislation, as a general law could be fairly applied to the existing conditions in the districts. The legislature determines for itself the necessity for special legislation, and when it has passed a special act it has exercised its discretion and expressed its opinion and judgment that a general law cannot be made applicable, and that the legislative purpose can best be effected by a special law. (The State, ex rel., v. Hitchcock, 1 Kan. 184, 81 Am. Dec. 503 ; Comm’rs of Norton Co. v. Shoemaker, 27 id. 77; City of Wichita v. Burleigh, 36 id. 34, 12 Pac. 332 ; Eicholtz v. Martin, 53 id. 486, 36 Pac. 1064 ; In re Greer, 58 id. 268, 48 Pac. 950, and cases cited.)
We see no constitutional objection to the act in question. Its effect is t'o dissolve the school districts numbered 4, 35 and 108 of Reno county, and to attach the territory belonging to them to district No. 139. The organization of that district has not been affected by the legislature, but its boundaries have been enlarged by the territory formerly included in the districts which are dissolved, and it is entitled to the property belonging to those districts. The clerk of the district was, therefore, entitled to the records, books and papers of the dissolved districts, and a peremptory writ compelling their delivery will be allowed.
Dostjek, O. J., Ellis, J., concurring. | [
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Error from Sedgwick district court. | [
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The opinion of the court was delivered by
Smith, J.:
The question for consideration is whether a railway company which delivers a defective car to a connecting carrier is liable for injuries sustained by an employee of the latter by reason of such defect, after the receiving company has inspected the car and taken it in charge for transportation over its line. In a former decision of this case, it was held to be within the contemplation of the first carrier that the car would be delivered to 'another for transportation, and it was also known that connecting carriers employ switchmen to handle such cars, and that their services are necessary in the work of making up trains. It was said:
“With this knowledge, it was the duty of both the plaintiffs in error to provide a car which would be reasonably safe for the service to be performed and for employees of connecting lines tc handle, to the end that freight might be expeditiously carried to its destination. . Negligence on the part of the Chicago Great Western Railway Company will not excuse the plaintiffs in error either for their failure to inspect, or, having inspected the car, permitting it to be delivered to a connecting line in a condition which might be dangerous to' switchmen and other employees engaged in the practical part of the business of railway transportation.” (Railway Co. v. Merrill, 61 Kan. 671, 675, 60 Pac. 820.)
We are now fully convinced that the doctrine announced in the former decision on the subject in hand runs counter to an unbroken current of authorities, and fails to stand the test of reason. A critical examination of the cases cited in the former opinion to sustain the view then taken will show that they are distinguishable from the case at bar. We will review some of them.
In Pennsylvania Railroad Co. v. Snyder, 55 Ohio St. 342, 45 N. E. 559, 60 Am. St. Rep. 700, there was a traffic arrangement between the different railway companies forming a fast-freight line by which they were to share in the earnings of the transportation in proportion to the distance the car should be hauled over their respective roads. Under the arrangement, the Pennsylvania company, before delivering its cars to the Lake Shore company, agreed to have them properly inspected and put in safe condition for hauling. The car, when delivered to the Lake Shore company to be taken over its road, was defective and unsafe, which proper inspection would have discovered, and prevented the injury caused thereby to an employee of the Lake Shore company. The case differs from the present one. It was argued in the briefs in that case that, by reason of the traffic contracts between them, the two railroads were partners ; and it is stated in the opinion that under the arrangement the Pennsylvania company, before delivering its cars to the Lake Shore road, was to have them properly inspected and put in safe condition for hauling. While there is much said in the opinion favorable to the defendant in error on the question before us, yet the peculiar contractual relations of the two roads as to inspection and payment of the cost of repairs do not exist in this case.
In the case just commented on, Moon v. Northern Pacific R. Co., 46 Minn. 106, 48 N. W. 679, 24 Am. St. Rep. 194, is cited and approved. That decision was given prominence as a precedent in the former opinion in this case. In the Moon case the Northern Pacific and Manitoba railroad companies were connecting carriers and interchanged cars at certain common points under a traffic agreement. According to a rule adopted by the companies, cars received and delivered, were required to be inspected by the car inspectors of both on the transfer track, and, if any repairs were needed, they were to be made by the Northern Pacific company before they were transferred and received by the Manitoba company. Accordingly the car was so inspected by the car inspectors of both companies. It was examined by them together and they agreed that it was in good order. Afterward, while the car was being operated by the Manitoba company, the plaintiff’s intestate was injured by a defective brake. It was claimed that the brake-staff was defective, and also that the car was not properly or carefully inspected by the inspectors of the respective companies.
It is to be observed that in the Moon case the inspection by the two companies was substantially one act. The Northern Pacific company, through its inspector, at the time the inspection was made, knew that no other or further inspection would be made for the protection of the employees of the Manitoba company. Hence, he is' held in law to have anticipated that, if his inspection was careless or negligent, the employees of the Manitoba company would be sub jected to whatever dangers should arise therefrom. The court said:
‘ In this case the inspection by the two. companies was .substantially one transaction, in pursuance of a mutual arrangement under which it was made jointly by the two car inspectors.” (Page 100.)
The case of Heaven v. Pender, 11 L. R. (p. 503) Q. B. Div. 359, was also cited in the former opinion, and is referred to in Moon v. Northern Pacific R. Co., supra. The facts on which that decision rested were as follows: The defendant, a dock-owner, supplied and put up a staging outside a ship in his dock under a contract with the ship-owner. The plaintiff was a workman in the employ of a ship-painter who had contracted with the ship-owner to paint the outside of the ship, and in order to do the painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and by reason thereof the plaintiff fell into the dock and was injured. In that case the staging was supplied for immediate use, and it was not within the contemplation of the parties that the plaintiff’s employer should make an inspection of the appliances to ascertain their fitness prior to their use. It was said by Brett, M. R.:
“It must have been known to the defendant’s servants, if they had considered the matter at all, that the stage would be put to immediate use — that it would not be used by the ship-owner, but that it would be used by such a person as the plaintiff, a working ship-painter.”
In Beven on Negligence (2d ed.), volume 1, page 62, the author says :
“It is submitted that the principle underlying the decision in Heaven v. Pender is that .the dock-owner, having undertaken to supply the staging, thereupon undertook the obligation to supply a fit staging, which obligation the plaintiff was justified in assuming he would discharge. Had there been a duty on the shipowner or on the ship-painter to examine the staging, the chain of connection between the plaintiff and the dock-owner would have been broken. The decision must, therefore, be taken to imply that there was no duty on the part of any one, subsequent to the dock-owner, to test the staging supplied; but that, when the dock-owner undertook to supply staging, there was an obligation that the staging supplied should be reasonably fit for the purpose for which it was to be used, so that those coming to use it might trust to the performance of the dock-owner’s duty without any independent examination of their own.”
In Savannah Railway Co. v. Booth, 98 Ga. 20, 25 S. E. 928. the deceased was an employee of a mill located on a railway company’s switch. The latter placed cars on the switch to be loaded by the mill hands, and, by reason of a defect in the car, the employee was killed, and his representative recovered judgment therefor against the' railway company, which was sustained. The railway company in that case selected and retained control of. the car and placed it in position, knowing the purpose for which and by whom it would be used, thus extending to the injured servant an invitation to use it. Had the master been a mere hirer, or the company exercised no right as to the selection of the cars to be used, the duty of inspection would have been upon the master, and, in case of injury to his servant in consequence of his furnishing an unsafe appliance, the loss would have fallen upon him.
A recovery has been denied in cases like the one at bar on two grounds : First, that there is a positive duty resting on the receiving railway company to inspect the car turned over to it for transportation by another company, to the end that its employees may not be injured by defects existing before its receipt; that the omission or negligent discharge of such duty breaks the causal connection between the negligence of the company tendering the defective car and the plaintiff’s injury. Tn such cases the failure to inspect or the negligent manner of doing it is the proximate cause of the injury to the employee, and the negligence of the company turning over the unsafe car is the remote cause. The failure to discharge the obligation to inspect interposes an independent agency which severs the causal connection between the company first guilty of negligence and the hurt. It was so held in Fowles v. Briggs, 116 Mich. 425, 74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537, a case very similar to this. See, also, Lellis v. Michigan Central R. Co., 124 Mich. 37, 82 N. W. 828.
The duty of a railway company to inspect cars of other roads received by it is enjoined by law. (Mo. Pac. Rly. Co. v. Barber, 44 Kan. 612, 24 Pac. 969 ; Railroad Co. v. Penfold, 57 id. 148, 45 Pac. 574; Texas & Pacific Railway v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188.)
Wharton, in his work on Negligence, section 439, says: •
“There must be causal connection between the negligence and the hurt, and such causal connection is interrupted by the interposition, between the negligence and the hurt, of' any independent human agency.
“Thus, a contractor is employed by a city to build a bridge in a workmanlike manner, and, after he has finished his work • and it has been accepted by the city, a traveler is hurt when passing over it by a defect caused by the contractor’s negligence. Now, the contractor may be liable on his contract to the city for his negligence, but he is not liable to the traveler in an action on the case for damages. The reason sometimes given to sustain such a conclusion is that otherwise there would be no end to suits. But a better ground is that there is no causai connection between the traveler’s hurt and the contractor’s negligence. The traveler reposed no confidence on the contractor, nor did the contractor accept any confidence from the traveler. The traveler, no doubt, reposed confidence on the city that it would have its bridges and highways in good order ; but between the contractor and the traveler intervened the city, an independent responsible agent, breaking the causal connection.”
The principle above stated is well illustrated in Carter v. Towne, 103 Mass. 507. There the defendant negligently sold gunpowder to a child, but the child gave all of the powder to its parents, who afterward allowed the child to take some of it, by the explosion of which he was injured. The defendant was held not liable because the effect of his negligence had been cured by the intervening breach of the child’s parents in taking charge of the powder, and their consequent negligence in allowing the child to have it again could not restore the connection between the deféndant’s original negligence and the final injury.
A second, and, we think, better-founded' reason for denying the right to recover in cases like the present is that the liability to a servant ceases with the control of the master over his actions. In Glynn v. Central Railroad, 175 Mass. 510, 56 N. E. 698, 78 Am. St. Rep. 507, the plaintiff was in the employ of the New York, New Haven & Hartford Railroad Company, in Connecticut, and was injured while coupling a car belonging to a New Jersey railway company which had a defective coupling apparatus. He sued the lat ter company. The court, in holding the defendant not liable, said:
“There was no dispute that after the car had come into the hands of the New York, New Haven & Hartford railroad, and before it had reached the place of accident, it had passed a point at which the cars were inspected. After that point, if not before, we are of opinion that the defendant’s responsibility for the defect in the car was at an end. . . ". But when a person is to be charged because of the construction or ownership of an object which causes damage by some defect, commonly the liability is held to end when the control of the object is changed.
“Thus, the case of Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N. E. 84, just cited, shows that the mere ownership of a house so constructed that its roof would throw snow into the street, and therefore threatening danger as it is without more, whenever snow shall fall, is not enough to impose liability when the control of it has been given up to a lessee, who, if he does his duty, will keep,it safe. In the case at bar the car did not threaten harm to any one, unless it was used in a particular way. Whether it should be used in a dangerous way or not depended, not upon the defendant, but upon another road. Even assuming that the car had come straight from the defendant at Harlem river, the defendant did no unlawful act in handing it over. Whatever may be said as to the responsibility for a car dispatched over a connecting road before there has been a reasonable chance to inspect it, after the connecting road has had the chance to inspect the car and has full control over it, the owner’s responsibility for a defect which is not secret ceases. See Sawyer v. Minneapolis & St. Louis Railway, 38 Minn. 103, 35 N. W. 671, 8 Am. St. Rep. 648 ; Wright v. Delaware & Hudson Canal Co., 40 Hun. 343 ; Macklin v. Boston & Albany Railroad, 135 Mass. 201, 206, 46 Am. Rep. 456.”
In this case there was no contractual relation existing between the switchmen in the employ of tho Chicago Great Western Railway Company and the plaintiffs in error. They did not employ them and they had no power to discharge them. They could protect themselves against damages resulting to their own servants by reason of defects in the car by giving them notice of its condition, in which event their servants would have the option of assuming the risk or of quitting the service of their employers. There was no relation of confidence between Merrill and the defendants in error. The latter owed a duty to their own servants to see that the cars put in their charge were in a reasonably safe condition and in proper repair, but to extend this duty to every servant of every other railroad in the United States under whose charge defective cars might come would be to formulate a new rule of liability for negligence not sustained by reason or authority.
In Sawyer v. Minneapolis & St. Louis Ry. Co., 38 Minn. 103, 105, 35 N. W. 672, 8 Am. St. Rep. 648, a case in many respects like the present one, the court said:
“At the time of the accident the car was under the management and control of the company operating it, and not of the defendant. It did not come to the hands of the plaintiff through the agency or by the authority of the defendant, and there is no privity between them. It owed him no duty growing out of contract, and was not bound to furnish him safe instrumentalities. As to the defendant, the plaintiff was a mere stranger.” (Citing authorities.) “The liability of the defendant in respect to the condition of its cars did not extend beyond those to whom it owed some duty by reason of its relation to them as master, employer, or carrier. Any other rule would be found impracticable of application in ordinary business operations.”
A railway company might have occasion to send a train of defective cars from San Francisco to Boston for repairs, to be hauled over several lines of road. Its own servants, knowing their bad condition, would use a high degree of care to avoid injury from them, but, under the theory of counsel for defendant in error, unless the company forwarding them gave express notice of their condition to every railway employee of the several roads transporting the cars, it would be liable for damages to them in the event that they were hurt by .reason of such defects.
In Winterbottom v. Wright, 10 Mees. & Wels. 109, 114, the defendant had contracted with the postmaster-general to provide a coach for carrying the mail, and agreed to keep it in repair and fit for use. Other persons had a contract with the postmaster-general to supply horses and coachmen for conveying the coach. The vehicle broke down and injured the driver, by reason of the negligence of the defendant in failing to keep it in propér repair and fit for use. Lord Abinger said:
“There is no privity of contract between these parties ; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”
So, a gas-fitter was held not liable for damages for negligently hanging a chandelier in a public house, knowing that it would likely fall on plaintiff and others, unless properly hung. It fell and injured the plaintiff. The court held that he had no cause of action because the declaration did not disclose any duty by the defendant toward the plaintiff for the breach of which an action could be maintained. (Collis v. Seldon, L. R. 3 Com. P. 495.)
In Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 614, 617, 19 S. W. 633, 15 L. R. A. 821, 33 Am. St. Rep. 42, a servant of the purchaser of a steam-boiler was injured by the explosion of it. He sought to charge the manufacturer of the boiler, and alleged that the latter, when he sold it, warranted it to be free from defects and of first-class material; that the cylinder was made of poor material, was defective in construction, and too weak to stand the ordinary strain, all of which defects were known to the defendant’s agents at the time of sale, and by reason thereof the explosion occurred. The court, in denying a right to recover, said :
“Wharton thiuks the better reason for the rule is that there is no causal connection between the negligence and the hurt; but be this as it may, the rule itself is well established in England and in the United States, and we think the case in hand comes within it. It is true the defendant must have known, when it made and sold the machine to Ellis, that other persons would be engaged in operating it; but this is no reason why defendant should be held liable to such other persons for injuries .arising from the negligent use of poor material or for defective- workmanship. Such knowledge must have existed in the- cases which have been cited as asserting the rule, and would have been as good an argument against the rule in those cases as in the case in hand. . . . The plaintiff’s case tends to show no more than negligence, and an action based on that ground must be confined to the immediate parties to the contract by which the machine was sold. To hold otherwise is to throw upon the manufacturers of machinery, not necessarily dangerous, a liability which, in our opinion, the law will not justify.”
In the case quoted from, a large number of authori ties, both. English and American, are collected, which sustain the principle announced. See, to the same effect, Necker v. Harvey, 49 Mich. 517, 14 N. W. 503 ; Losee v. Clute et al., 51 N. Y. 494, 10 Am. Rep. 638 ; Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C.A. 567.
One of the principal reasons given in the former decision in this case for holding plaintiffs in error liable was that they knew that this defective car, after it left their hands, must be switched about and put into trains of connecting roads by switchmen employed by the latter, and, with such knowledge, they were negligent in permitting it to go into the charge of such railway employees in a defective condition. In the many cases cited and quoted from above, it was equally well known by the manufacturer of a defective machine, like an elevator, for example, that employees of the purchaser would be called on to use it, yet, there being no privity between the maker of the machine and the vendee’s servants who were injured by it, there could be no recovery by the latter against the manufacturer or builder. (Heizer v. Kingsland & Douglass Mfg. Co., supra.)
If responsibility for defects in this car is to be fixed on the two railways or either of them, then the application of such a rule of liability must of necessity be extended to cover the case of a brakeman injured by a negligently constructed car-wheel, and permit a recovery by him of damages against a foundry company which cast and furnished the wheel and sold it to the railway company; for it is within the contemplation of the manufacturer of car-wheels that they will come into the 'charge and control of the servants of the railway companies using the cars. If such wheels are negligently constructed, the contemplated purpose of their future use being manifest, the liability of the maker would follow that use everywhere, whenever they happened to cause injury to a railroad employee operating them. This liability of the maker could not be defeated by the fact that the defective appliances might have changed ownership and control many times after their first adaptation to railway purposes. As we have seen, the liability of negligent parties so far removed from the injury as the manufacturer in the supposed case finds no support in the authorities.
The defective car was not inherently dangerous. It was the manner of its use which caused the injury. The two railway companies that handled the car before its delivery to the Chicago Great Western Railway Company cannot be held to that strict account which the law imposes on one who negligently delivers poisonous drugs to another, imminently dangerous to human life, which fall into the hands of third persons to their injury.
In Roddy v. The Mo. Pac. Ry. Co., 104 Mo. 284, 247, 15 S. W. 1114, 12 L. R. A. 746, 24 Am. St. Rep. 333, it was said:
“It cannot reasonably be contended that a railroad-car, though supplied with defective brakes, is an imminently dangerous instrument. Unless put in motion it is perfectly harmless, and wdien in motion it is not essentially dangerous.”
In Mastin v. Levagood, 47 Kan. 36, 42, 27 Pac. 124, 27 Am. St. Rep. 277, it was said:
“There is a marked distinction between an act of negligence imminently dangerous and one that is not so ; the guilty party being liable in the former case to the party injured, whether .there was any relation of contract between them or not, but not so in the latter case.” (See, also, Glynn v. Central Railroad, supra.)
Counsel for defendant in error have invoked the rule stare decisis, and insist that the former decision must govern on the second appeal. This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of the former case is shattered by the pressing weight of opposing authority, and that reason is against it. In Ellison v. Georgia Railroad Co., 87 Ga. 691, 13 S. E. 809, the learned Chief Justice Bleckley used the following forcible language :
‘ ‘ Some courts live by correcting the errors of others and adhering to their own. . . . Minor errors, even if quite obvious, or important errors if their existence be fairly doubtful, may be adhered to and repeated indefinitely ; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is ,to correct it. When an error of this magnitude and which moves in so wide an orbit competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia mat codum.”
The judgment of the court below will be reversed, Avith directions to enter judgment on the finding of the jury in favor of the defendants below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought by W. H. Lindsay against the city of Parsons, for injuries resulting from a fall alleged to have been caused by a defective street-crossing. The action was commenced on the 11th day of October, 1879; a trial was had at the February term, 1880, of the district court, and judgment for the plaintiff for $3,000 and costs; this judgment was reversed by this court at its July term for 1881, and the cause remanded for a new trial. (26 Kas. 426.) Another trial was had before the court with a jury, at a special term, commencing on the 10th day of November, 1883; a verdict was returned by the jury at 3 o’clock p.m. on Sunday, the 11th day of November, 1883, in favor of the plaintiff, and assessing his damages at $1,000; on the same day the court discharged the jury, and rendered judgment in favor of the plaintiff upon the verdict for the sum of $1,000, and costs taxed at $565.50; on the same day a motion for a new trial was filed by the defendant, but the hearing of the motion was continued until the February term for 1884; on the 29th of February this motion was heard and overruled; the defendant excepted, and brings the case here; while pending in this court W. H. Lindsay died, and the action has been revived in the name of Zerelda P. Lindsay, his administratrix.
The defendant alleges that the judgment is null and void, because it was pronounced on Sunday.
At the time the judgment was rendered, the law in force provided that the regular term of the court in the fall of 1883 should commence on the second Monday in November, which in 1883 came on the 12th day of the month. It is well settled that the verdict of a jury may be received on Sunday. (Stone v. Bird, 16 Kas. 488; Reid v. The State, 53 Ala. 402.) By some of the courts the reason assigned for the validity of such a verdict is that the rendition and receiving are a work of necessity; by others, that it is merely a ministerial act, and not within the prohibition relating to judicial acts on Sunday. (Coleman v. Henderson, 12 Am. Dec. 290-295.) The acceptance of a verdict, however, is not equivalent to a judgment, but the rendition of a judgment thereon is a judicial act.
By the common law, Sunday is dies non juridieus, and therefore all judicial proceedings which take place on that day where the common-law rule is in force are void. The common-law rule of the invalidity of judicial proceedings on Sunday is impliedly recognized by the provisions of our statute. (Blair v. Shew, 24 Kas. 280; Morris v. Shew, 29 id. 661.) The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, is enforced in this state in aid of the general statutes. (Comp. Laws of 1885, ch. 119, § 3.)
After midnight of the 10th day of November, 1883, another day (Sunday) had commenced — a day not judicial, and one on which the courts are not authorized to render judgments. The judgment being void, it cannot be enforced or sustained. (Blood v. Bates, 31 Vt. 147; Allen v. Godfrey, 44 N. Y. 433; Chapman v. State, 5 Blackf. 111; Arthur v. Mosby, 2 Bibb [Ky.], 589.)
The judgment of the district court will therefore be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: The Exchange Bank of Lenora commenced an action against A. C. Lappin before a justice of the peace, and obtained an order of attachment, which was levied upon the property in controversy by the constable, John Becker; before the trial a motion was filed by the defendant to discharge the attachment, upon the ground that the facts alleged in the affidavit for the attachment were untrue; upon the hearing of the motion it was overruled, the justice deciding that the attachment was valid. Subsequently the action was tried before the justice, and judgment rendered in favor of the defendant and against the plaintiff, upon the ground that it was prematurely brought; the judgment also directed that the attached property be returned. The Exchange Bank gave notice that it would appeal from the judgment of the justice to the district court, and within the ten days allowed by law perfected its appeal, filing an ordinary appeal bond, reciting the judgment, etc. The case was tried in the district court, and the Exchange Bank recovered against the defendant $300, the amount sued for.
After the justice of the peace had rendered judgment against the plaintiff, the constable continued to hold possession of the property under the attachment proceedings. After the attachment had been levied by the constable, A. C. Lappin executed a chattel mortgage thereon to W. M. Steele and J. W. Walker, partners as Steele & Walker, which mortgage was duly filed in the office of the register of deeds. After judgment was rendered by the justice-of the peace, Messrs. Steele & Walker demanded the property of the constable, and, their demand not being complied with, commenced an action against the constable to recover possession of the property. Upon the trial, the district court decided that the constable had no right to the possession of the property, for the reason that the Exchange Bank failed to recover judgment upon its claim before the justice of the peace.
The sole question for decision in this case is, did the appeal of the Exchange Bank from the judgment of the justice of the peace transfer or carry the attachment proceedings to the district court, so as to authorize the constable to retain the possession of the attached property pending the appeal ? Under the decisions of this court, already pronounced, the question must be answered in the negative.
In Butcher v. Taylor, 18 Kas. 558, the justice, before the trial, discharged the attachment; afterward a trial was had upon the merits of the action, which resulted in favor of the plaintiff; the plaintiff then took an appeal to the district court from the decision of the justice on the attachment proceedings, but not from the judgment of the justice on the merits of the action; and it was held that no appeal would lie from the order discharging the attachment.
In Gates v. Sanders, 13 Kas. 411, the order of attachment was discharged by the justice, but a judgment was rendered in favor of the plaintiffs for the amount of their claim. From this judgment they appealed, and filed an ordinary appeal bond, reciting the judgment, etc., but making no mention of or reference to the attachment or its discharge. This court decided that the appeal did not take up to the district court- for reexamination or review the proceedings on attachment in that case, but that they were ended by the decision of the justice. In the opinion, delivered by Mr. Justice Brewer, it was said:
“ The attachment is but an ancillary proceeding, and may stand or fall without affecting the progress of the suit. The judgment is rendered for or against the plaintiff and upon the sufficiency of his cause of action, without reference to the disposition of the attachment.”
In Railroad Co. v. Casey, 14 Kas. 504, an attachment was issued and judgment rendered in favor of the plaintiff against the defendant. The judgment also ordered that the attached property be sold to satisfy the same. The defendant appealed to the district court, presumably filing an ordinary appeal bond. The court in that case held that as the defendant, who appealed, gave ample security for the prosecution of his appeal and' for the payment of the judgment, the attachment was thereby discharged. Mr. Justice'Valentine, delivering the opinion in that case, said, among other things:
“And as no provision is made by law for the officer who holds the attached property at the time the appeal is taken to turn the property over to some officer of the district court, it would hardly seem that it was intended that the district court should take charge of the attached property. And it can hardly be supposed that after all the proceedings of the justice’s court are taken by appeal to the district 00111.^ that any officer of the justice’s court will continue to have possession and control of the attached property.”
In Brown v. Tuppeny, 24 Kas. 29, Brown was summoned as a garnishee in an action pending before a justice of the peace, wherein Tuppeny was plaintiff and Hill defendant. Brown answered as garnishee, admitting the possession of a draft of $ 100 belonging to Hill, which, when paid, would be owing by him to Hill. Upon the trial between Tuppeny and Hill, judgment was rendered in favor of Hill; and there upon Brown was discharged, as garnishee, from all liability. Tuppeny filed an ordinary appeal bond, and this court held that “the proceedings in the garnishment were not taken up to the district court, the appeal being simply from the final judgment in the action.”
Section 45, chapter 81, Comp. Laws of 1885, relating to civil procedure before justices, provides, among other things, that if “judgment be rendered for the defendant in the attachment, the garnishee shall be discharged and recover costs.”
Section 46 of said chapter 81, reads: “If judgment be rendered in the action, for the defendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him.” Therefore it appears that both the garnishee must be discharged and the attachment discharged when judgment is rendered by a justice of the peace for the defendant. If an appeal from the final judgment of a justice of the peace will not transfer or carry the garnishment proceedings to the district court, which have not been dissolved or discharged prior to the judgment, it necessarily follows that an appeal from the final judgment of the justice of the peace will not transfer or ° , x t° district court attachment proceedings which have not been discharged at the rendition of the judgment. In the case at bai, after the justice of the peace rendered judgment for the defendant, he also rendered judgment that the attached property be returned. Subsequently the justice directed the constable to hold possession of the attached property until the expiration of the ten days within which the plaintiff had the right to appeal. The Exchange Bank filed its appeal bond within the ten days, but how soon after the rendition of judgment is not shown. For aught that appears in the record, the appeal bond may not have been filed until the last day that an appeal was allowable; therefore the constable may have held possession of the attached property after the judgment was rendered in favor of the defendant for several days before any appeal bond was approved or filed. As the j udgment in favor of the defendant discharged the attachment and thereby released the attached property, it clearly appears that the constable had no legal process in his hands authorizing him to hold the attached property between the rendition of the judgment in favor of the defendant and the filing of the appeal bond, even if the appeal bond could have carried the attachment proceedings to the district court.
In Roll v. Murray, 35 Kas. 171, the action was commenced before a justice of the peace, and an order of attachment obtained; subsequently, upon the motion of the defendant, the attachment was discharged; afterward a judgment was rendered in favor of the plaintiff and against the defendant; within the ten days the plaintiff filed an appeal bond, attempting to take an appeal both from the order of the justice discharging the attachment, and also from the judgment of the justice upon the merits; the appeal bond was sufficient for both these purposes, if an appeal from an order of the justice of the peace discharging an attachment was allowable. This court held that the appeal did not give to the district court power to review and retry the attachment proceedings instituted before the justice of the peace. Mr. Justice Valentine, in delivering the opinion said, among other things:
“There is no provision in the statutes for taking an appeal from the order of a justice of the peace in any provisional remedy or in any ancillary proceeding, and no provision anywhere for retrying in the district court upon an appeal from a justice of the peace, any question that pertains only to some provisional remedy, or to some ancillary proceeding. The appeal is from a final judgment only, and from a judgment on the merits only, and the trial afterward to be had on the appeal is only upon the merits. ... In our opinion attachment proceedings cannot be taken to the district court at all on appeal.”
In view of the decisions in the foregoing cases, it is unnecessary to refer to the authorities from other states to which we are cited. If the construction given to the statute works injustice in attachment procedings, the remedy is with the legislature.
The judgment of the district court will be affirmed.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The right of the plaintiff to alimony depends upon the validity of the marriage, the ceremony of which was performed between the parties to this action at Baker City, in Oregon, on February 2, 1884. This was the only question passed upon by the district court, and is the only one that we need to consider. The marriage ceremony performed between the parties appears to have been regular in form, and legal, unless the same was prohibited by the laws of Oregon, under which the validity of-the marriage must be determined. It seems that the plaintiff was formerly married to Daniel W. White, with whom she lived for many years, and several children were born of that marriage. Upon the application of White, the circuit court of Oregon granted a decree, divorcing him from the plaintiff on account of her fault, and awarding the custody of the children, some of whom were young, to him. This decree was granted on November 20, 1883, and on February 2, 1884, less than three months from the granting of the divorce, she married, or attempted to enter the marriage relation with, the defendant in this action. Within four weeks from this marriage there was a separation, and the reason it occurred, as-defendant alleges, is that he then learned that the plaintiff had no legal right to marry him, and that the pretended marriage between them was absolutely null and void. Since that time, they have never lived or cohabited together as husband and wife, and defendant claims that no such relation exists, and hence he resists the claim of the plaintiff for alimony. Under § 499 of the code of Oregon, a decree of divorce declaring the mar riage relation dissolved does not absolutely terminate the marriage relation, nor entirely free the parties from its obligations and liabilities. They are prohibited from contracting marriage with a third person until the case is heard and determined on appeal, and if no appeal is taken, until the expiration of the time allowed to take such appeal. Until that time neither of them has any more right to marry a third person than if the decree of divorce had not been rendered. And if either does, he or she will be liable the same as though no divorce had been granted. By the same code, an appeal in such cases is authorized and may be taken within six months from the rendition of the judgment or decree. (Oregon Code, § 527.) These provisions seem to be conclusive against the validity of the marriage upon which the plaintiff rests her claim. She asserts, however, that they do not govern her case, for the reason that she was in default of an answer in the divorce suit, and that a statute of that state precludes an appeal by a party against whom a judgment is given upon confession or for want of answer. (Oregon Code, § 526.) This provision, however, does not relieve her or take her case out of the six-months restriction. The prohibition imposed by § 499 seems to extend to cases and parties where no appeal is taken; and to prevent a decree of divorce from becoming an absolute finality in any case until the time for taking an appeal has expired. It would seem that the decree is not to take effect for six mouths after it is given, and if an appeal is taken, until it is heard and determined. Then again, there are few if any codes or courts that are so lax as to authorize or permit the giving of a judgment dissolving the marriage relation without evidence or investigation, upon mere default of the defendant to answer the allegations of the plaintiff, or upon the mere consent of the defendant that a.divorce shall be granted. The statute of Oregon wisely prescribes that in such cases the state is a party defendant, represented by the district attorney, who must be served with summons and is required to appear and answer. It is made his duty “so far as may be necessary to prevent fraud or collusion in such suit, to control the proceed ings on the part of the defense, and in case the defendant does not appear therein or defend against the same in good faith, to make a defense therein on behalf of the state.” (Oregon Civil Code, § 946.) Under the statutes referred to, the state, being a party defendant, would be entitled to an appeal, regardless of the action of other parties to the suit; and hence there is the same reason to await the expiration of the time within which an appeal may be taken as though the other defendant had answered. Her silence or consent does not limit the right of the district attorney to prosecute the action to the court of last resort for the prevention of fraud or collusion and for the protection of the interests of the state. The obvious and wise purpose of the statute is to prohibit divorced parties from remarrying with others until the time elapses when the decree divorcing them may be disturbed or reversed by proceedings on appeal. In the divorce proceedings under consideration, the state of Oregon appeared by its district attorney and filed an answer in the cause. A trial was had upon the issues formed, and upon testimony then taken the decree of divorce was granted. If it was conceded, as the plaintiff contends, that the statute did not arbitrarily prohibit either party from contracting marriage with a third person for a period of six months after the decree of divorce is granted, and only applies to cases where an appeal may be taken, still, as the state is a party defendant and may take an appeal, her case clearly comes within the statutory prohibition which renders the subsequent marriage void. In addition to this, we are inclined to think that the reasonable interpretation of § 499 absolutely forbids either of the parties from marrying another in any case until the expiration of six months after the decree of divorce is rendered; and where an appeal is taken, until that is heard and determined. The limitation of the time within which a party appealing may at his option prepare a statement to be attached to the record of the judgment or decree taken up for review does not shorten the time for taking an appeal, nor affect the question before us.
In our view, the marriage contract between the parties to this action was forbidden by law, and void; and therefore the judgment of the district court denying the plaintiff;s claim for alimony is correct, and must be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action commenced by E. M. McCally, administrator of the estate of Dexter E. McCally, deceased, against the Missouri Pacific Railway Company, in the district court of Franklin county, to recover damages for wrongfully causing the death of the said Dexter F. McCally, deceased, under § 422, chapter 80, Compiled Laws 1885. The petition of the plaintiff in error alleged in substance, that prior to the 12th day of December, 1885, D. F. McCally was a brakeman in the employment of the defendant, and as such his duty was to assist in running its trains on its line of railway between the towns of Holden, in Missouri, and Leroy, in Kansas; that at, and for a long time prior to, that date, one IPenry Snyder, being an employé of the defendant, and being an ostler at its station in Leroy, having the charge and management of its locomotive engines while at that station, and it being his duty in part to act as engineer of its engines when they were being used at that station in switching and shifting cars to and from its side and main tracks and switches, was incompetent to perform that duty, as the defendant well knew, or by the use of ordinary diligence could have known; that on said 12th day of December, 1885, said Henry Snyder was in charge of one of defendant’s locomotive engines at its station at Leroy, and was engaged in switching cars, in which duty he was assisted by the said Dexter F. McCally and one J. P. Calloway, who was then in the employment of the defendant as brakeman; that the locomotive had been attached to a box car on a side-track by said Dexter F. McCally by a coupling; that immediately upon the coupling of said box car and engine the said Snyder started the engine, pushing said box car ahead of it and along said side-track toward three freight cars loaded with coal, then standing on said side-track; that Snyder drove said engine and box car toward said coal cars with a speed much greater than was proper, prudent, or safe, or customary in such cases, or under such circumstances ; that after coupling said engine and box car together the said Dexter F. McCally remained standing on the steps of the pilot of said engine, the usual place at which brakemen stand when engaged in switching cars on side-tracks in this manner and for such purposes, until the collision hereinafter mentioned; that said Snyder drove said engine and box car with such speed that it collided with said coal cars, and crushed the said Dexter F. McCally between them, and injured him so that he died within a few hours; that during the passage of said engine and box car along said side-track to the point at which they collided with the loaded coal cars, the said Dexter F. McCally remained standing at his post on the steps of the pilot, and that his death was caused by the incompetency of the said Henry Snyder, and by his carelessness, negligence and mismanagement in driving said engine and disobeying the signals, and permitting said engine and box car to collide at such an excessive, improper and dangerous speed with said loaded coal cars; that during this time the other brakeman, J. P. Calloway, who was an experienced man, was at his post on the roof of said box car, prepared to apply brakes and give signals to the said Snyder, and observing that the speed of said engine was too great, and that unless checked they would crush into said coal cars with such force and violence as to wreck the whole train, he gave to said Snyder the proper signals to reduce the speed of the engine; that said Snyder paid no attention to the signals, and then Calloway shouted to him repeatedly in a loud voice to check the headway of the engine, or “slow down” the motion of the same, but said Snyder, either not seeing or not hearing, or disregarding and disobeying said signals and shouts, paid no attention thereto, and said Calloway became greatly alarmed, screaming with all his might to Snyder, begging, ordering, and urging him to check the speed of the engine and box car; that Snyder paid no attention, and Calloway applied the brakes on the box car with all his force and then took his station on the middle of the roof of said box car, so as to avoid as much as possible the. approaching danger; that soon thereafter occurred the collision, driving the pilot of said engine backwards under the same, breaking the massive draw-bar, derailing the forward trucks of said engine, hurling Calloway to the ground from the roof of said box car, and crushing the said Dexter F. McCally between the box car and engine; that Snyder was guilty of negligence, carelessness and mismanagement by disregarding the signals, shouts and screams of Calloway, and that such negligence, etc., caused the death of Dexter F. McCally.
Two motions were directed against this petition by the plaintiff in error. One of them was to make the petition more definite and certain, by showing in what manner the plaintiff had been damaged by the death of the intestate; and this was sustained. The other was to strike out all that part of the petition that stated the action of Calloway, and the result of the collision on Calloway, as redundant and irrelevant matter; and this was overruled, and the order overruling it is one of the assignments of error. The petition being amended in response to the first motion, the plaintiff in error then demurred to it, on the ground that it did not state facts sufficient to constitute a cause of action against the railway company. The demurrer was overruled, and this is another assignment of error. The plaintiff below then amended his petition in certain respects, and the defendant answered, denying the allegations of the petition generally; and second, alleging that the death of McCally was the result of his own negligence and carelessness; and third, that said McCally died intestate, in the state of Missouri, and left no estate to be administered upon in Franklin county, Kansas; that the probate court of Franklin county, Kansas, had no power to appoint an administrator, or jurisdiction to grant letters of administration on said estate; that all its acts respecting it are void, and that the plaintiff has no right to sue as administrator. To this answer a reply was filed, making an issue. The case was tried by a jury at the October term, 1886, and a verdict of three thousand dollars was returned in favor of the plaintiff below. The following special interrogatories were submitted to the jury, and answered by them, to wit:
“1. Do you find that Henry Snyder was a competent and fit engineer to manage the engine, at the time Dexter F. Mc-Cally was injured? A. Yes.
“ 2. Do you find at the time Dexter F. McCally was injured he was riding on the pilot of the engine? A. No,
“3. Was there any place prepared on the pilot of the engine for brakemen to ride, when braking or coupling cars in the yard ? A. No.
“4. Do you find that Henry Snyder, the engineer, was negligent in the management of his engine at the time Dexter F. McCally was injured? A. Yes.
“ 5. Do you find that Henry Snyder, the engineer, mismanaged his engine at the time Dexter F. McCally was injured? A. Yes.
“6. If you find that Henry Snyder, the engineer, was negligent in the management of his engine at the time Dexter F. McCally was injured, in what did such negligence consist ? (Objected to by plaintiff, and not answered.)
“7. If you find that Henry Snyder, the engineer, mismanaged his engine at the time Dexter F. McCally was injured, in what did such mismanagement consist ? (Objected to by plaintiff, and not answered.)
“8. Was the engine on which Dexter F. McCally was riding, in forward movement, or was it moving backward at the time it collided with the coal cars? A. Forward.
“9. Do you find that Henry Snyder reversed his engine when it was one hundred feet distant from the coal cars? A. Yes.
“ 10. Do you find that Dexter F. McCally coupled the engine to the box car, and then voluntarily got upon the pilot in’ front of the engine to ride to the place where it was to be coupled to the loaded coal cars on the track? A. To the first question, yes. To the second question, no.
“11. Did Henry Snyder, the engineer, know that Dexter F. McCally was riding on the pilot at the time he was run ning the engine over the track from where it was coupled to the box car to the loaded coal cars? A. We don’t know.
“12. Do you find that there was room in the cab of the engine with the fireman and engineer, for Dexter F. McCally to ride from where he coupled the engine and box car together to where the coal cars were on the track? A. Yes.
“13. Did any employé of the defendant company order or direct Dexter F. McCally to get on the pilot in front of the ■engine, to ride from where the engine and box car were coupled •together? A. No.
“14. Did any employé of the defendant company know that Dexter F. McCall}' was going to attempt to ride on the pilot, until after he had gone on the pilot and the engine was passing along the track toward the coal cars ? A. No.
“15. Do you find that at the time Dexter F. McCally was injured that there was a violent snow-storm in progress? A. It was snowing, but not violent.
“16. Do you find that at the time Dexter F. McCally went upon the pilot to ride, the ground was covered with snow, and a snow-storm was then in progress, and had been for several hours, and the rails were wet and slick? A. The ground was covered with snow; had been snowing for several hours; and the rails were not wet.
“17. Do you find that Dexter F. McCally was a careful and prudent man? A. Yes.
“18. Was Dexter F. McCally guilty of any negligence ■proximately contributing to his death? A. No.
[No number 19.]
“20. What was the distance from where the engine and box car were coupled together, to where the coal cars were on the track ? A. About eighteen hundred feet.
“21. Do you find that it was necessary, in order to get the coal cars in the yard, to couple the box car in front of the ■engine, and push it ahead of the engine to the Coal cars, and then couple the coal cars to the box car? A. No.
“ 22. Do you find that in shifting the cars on the track in the yard at Leroy station the morning that Dexter F. McCally was injured, Henry Snyder, the engineer, was under "the direction of Dexter F. McCally and James P. Calloway, .and that Dexter F. McCally signaled the engineer on to the track where the engine was coupled to the box car? A. Yes.
“23. Do you find that after Dexter F. McCally signaled the engineer to come on the track where the box car stood, that he then coupled the engine to the box car and voluntarily got on the pilot to ride over the track to where the coal cars stood ? A. To the first question, yes. To the second question, no.
“24. Do you find that at the time Dexter E. McCally coupled the engine and box car together, and got on the pilot to ride, that he knew the loaded cars stood on the same track, and that the engine would drive the box car ahead of it to the coal cars, for the purpose of coupling to them and drawing them out onto some other track of the yard ? A. Yes, but he had to get onto the pilot to, make the coupling.
“25. Could Henry Snyder, the engineer, as he drove his' engine toward the coal cars with the box car in front of him, see the coal cars on the track? A. Yes.
“26. Do you find that at the time Dexter F. McCally went upon the pilot to ride, he was acquainted with the condition of the yard at Leroy station ? A. No evidence that he went upon the pilot to ride, nor that he was acquainted with the condition of the yard at Leroy station.
“27. Do you find at the time Dexter F. McCally was injured the wind was blowing from the west, and it drove the smoke and steam ahead, so as to prevent the engineer from seeing objects ahead of the engine? A. No.
“28. Would Dexter F. McCally have been injured if he had got in the cab, or on the tender, to ride over the track from where he coupled the engine and box car together, to the coal cars? A. We don’t know.”
' Giving the facts attending the injury to McCally more in detail than stated in the answers to the special interrogatories by the jury, we gather from all the evidence in the record, that the engine in use that day was not a switch engine prepared especially for use in the yard, with foot-boards and handrails in front of the engine and in the rear of the tender, for the employés to ride on while engaged in the duties of switching, but was an ordinary freight engine that was being used daily to draw freight trains. There was no switch engine in use at the Leroy yards, the switching all being done by the freight engines. The engineer Snyder and the fireman both testify that they did not see any signals given by the brakeman Calloway, who was on the top of the box car, after he gave the one to start. The engineer estimates the distance between his position in the cab and the top of the box car at twenty-five feet, and says he reversed the engine and let it have sand at a point distant from the place where they struck the coal cars, of from one hundred aiid fifty to one hundred and seventy-five feet, and that he did this on a signal from the fireman, who stated that he thought that he saw cars on the ■ track ahead. Calloway testifies that he gave repeated signals to “slow down,” and when no attention was paid to them, he called to them, and not getting any response, applied the brakes on the box car with all his force, and prepared himself for the shock of the collision. The evidence is conflicting ' as to whether or not the position taken by McCally in front of the engine was ordinarily safe in discharging his duty, under the circumstances; and it varies, too, as to what the custom was in this particular respect in the Leroy yards. In the course of the trial it became evident that the allegations of the petition in respect to the position of McCally had misdescribed it; that in fact he was not standing on the steps of the pilot, but was sitting on the pilot beam, immediately in front of the boiler head, with his feet drawn up under his body. The trial court allowed the petition to be amended so as to conform to the proof, and this is assigned for error. This probably embraces all the controlling facts, when taken in connection with the special findings.
I. The first complaint is the refusal of the trial court to strike out as redundant and irrelevant all the allegations of the petition reciting the action of Calloway, and the result of the collision on him. While these matters were not absolutely necessary allegations, and were more a matter of evidence than pleadings, perhaps, yet as all these things appear in the evidence contained in the record of the case, we may put it in the strongest possible light for the plaintiff in error, and waive all defects as to the certainty of the motion, and then it does not appear to be such a material error that the judgment ought to be reversed because of it. A general rule founded in the nature of things and based on evident principles is, that a motion to make a petition more definite and certain, by striking out redundant and irrelevant matter, should specifically point out the very words or sentences sought to be expunged from the record, and not allude to them in general terms, because if the motion does not do so, it is as objectionable as the pleading against which it is directed.
II. The next complaint is that the trial court overruled the demurrer of the plaintiff in error to the petition. This demurrer was based upon the ground that the petition does not show that at the time of the injury complained of the deceased was exercising due care and caution. It is said that it should contain an averment that the deceased was himself free from guilt or negligence which contributed to the injury. A great many authorities are cited to sustain such a cause of demurrer, and in many states the rule is as contended for by the counsel for the plaintiff in error; but the question in this state . 1 ' t A , , 1S an °Pen one, as ^ was expressly decided in the case of K. C. L. & S. Rld. Co. v. Phillibert, 25 Kas. 582, that contributory negligence is a matter of defense. The demurrer on this ground was properly overruled.
III. We come now to the controlling question in this case. The railroad company seeks to avoid liability on the theory and for the reason that the deceased voluntarily assumed a position of great danger, and thereby directly contributed to the injury that resulted in his death. It may be admitted that McCally voluntarily assumed his position upon the pilot of the engine; and yet this voluntary choice of position must be viewed in the light of the surrounding circumstances, and especially must it be considered with reference to these accompanying facts:
First, No switch engine with foot-boards and hand-rails had been provided by the company for use in the yards at Leroy.
Second, The switching was being done with an ordinary freight engine.
Third, Had a switch engine been in use on that occasion, the proper place for McCally to assume would have been on the foot-board in front of the engine.
Fourth, It is conclusively established that a switchman would necessarily have to get on the pilot of the engine to make the coupling to the box car.
Fifth, McCally had duties to perform in switching and coupling that compelled him to ride on the engine, and he had an absolute right to be somewhere on the engine. He had no duties to perform that entitled him to be in the cab.
Sixth, He assumed a position on the freight engine as nearly corresponding to what would have been his proper position on a switch engine, as the structure of the freight engine would permit.
The assumption that the position was a dangerous one, and that it was deliberately chosen by the deceased, is the most favorable view that can be taken in favor of the plaintiff in error; but when such assumption is modified by all these accompanying facts and circumstances produced by the action of the railroad company, and in no manner controlled by the deceased, or in any way affected by his action, it seems clear that the decision of the case ought not to be controlled by the principle contended for. If the record had presented a state of facts that justified the court in saying that the railroad company had performed all that reasonably could be required of it, in furnishing the employés the usual machinery and appliances for the discharge of the ordinary duties of the employment, and that these were in good condition and reasonably safe, then under such circumstances the voluntary choice of a more dangerous position than the one ordinarily taken by the employé would relieve the company from all liability for injury occurring. But there is a conflict in the evidence as to whether this position on the beam of the pilot of the engine is a dangerous position or not, and hence the assumption upon which we have been proceeding heretofore is not necessarily to be taken in order to sustain this judgment.
There is some evidence in the record from experienced railroad men, that the position is not more dangerous than that of any other place on the engine. Of course the safety of any place on the engine depends on a variety of circumstances: such as the direction it is moving; the point of a collision; the rate of speed at the time an accident occurs; and many other things. If the engineer had backed into the coal cars at an unusual rate of speed, the most dangerous place would have been on the rear of the tender; and if McCally had assumed such a position, the case would have been much stronger for the company than the one now presented. The question, then, as to whether or not the position taken by McCally on the pilot beam was, under all the circumstances, dangerous, involved an issue of fact that was submitted to the jury, and necessarily passed upon by them in making their general verdict adversely to the railroad company.
There was another serious conflict in the evidence as to the usual custom of brakemen in that yard and on that road, riding on the pilot of the freight engines that were engaged in switching. An experienced brakeman who worked for the company testified that in the yard at Leroy, and in fact on all that road, it was the usual place for the man who made the coupling to take position on the pilot of the engine; and that in his judgment it was the proper place for a man to take who was making couplings ahead of the engine. A conductor examined as a witness for the company said that he had seen brakemen riding on the pilot when switching cars at Holden, on the Missouri Pacific Railroad, and that he had seen them sitting on the beam with their feet drawn up under them. Snyder, the engineer, testified that he had occasionally seen the brakemen riding on the pilot. It would naturally follow from such proof that the jury would conclude that McCally had assumed the usual position that custom in that yard had sanctioned, when he placed himself on the beam of the engine; that this custom was known to the company; that it was a necessity arising from the structure of the engines used in switching, and that the company had suffered and allowed it to be done; that the deceased had only done what his observation and experience had shown to have been done by other employés' engaged in the same line of duty. Then we have these two concurring facts found by the jury, and fairly embraced in their general verdict: first, that the position was not a dangerous one; and second, that it was the usual place taken by brakemen in that yard, when discharging the duties of switchmen. These facts distinguish this case from the cases of Railroad Company v. Jones, 95 U. S. 439; Hough v. Rly. Co., 100 id. 213; and Kresanowski v. N. P. Rly. Co., 18 Fed. Rep. 230, which are so confidently relied on by counsel for the plaintiff in error to control the decision here. In these cases the injured employés were not engaged in performing the duties of throwing switches or coupling cars: they were engaged in other work, and voluntarily took positions upon the pilot, or cow-catcher. There was absolutely nothing to be done by them in the management or operation of the train, and certainly nothing that required them to be about or ride on the pilot. In the Jones case, the employé was both expressly warned against riding on the pilot, and directly forbidden to do it. The-railroad company had provided a box car for him to ride in, and there was room for him in that car. In the Hough case, a verdict for the company was reversed, and a new trial ordered, for misdirection to the jury. In the other case, the injured employé was being conveyed to and from.his work of excavating, on an engine, and he with others rode on the pilot, and was injured in a collision. Under these circumstances the jury were instructed to bring in a verdict for the railroad company, for the reason that the injured man had voluntarily placed himself in a dangerous position.
Neither does this case fall within the rule announced by this court in the case of U. P. Rly. Co. v. Estes, 37 Kas. 715, for in that case the injury occurred on a regular switch engine, provided with front and rear foot-boards and hand-rails, and the injured employé voluntarily selected a cab-step to ride on. In this case, no special provision is made for the employé to ride; no special place is provided for him; he is expected to ride, of course, and in doing so must be governed by the de mands of duty; if he is to couple or switch ahead, he must ride near the head of the engine, so as not to delay the work; or if he is to switch or couple behind the engine, his position would naturally be on the rear part of the engine. He must act promptly, decide quickly, and not delay the work. All these things distinguish this case from any of the reported ones.
There is another principle applicable in this case, that does not reach the facts of the reported cases, and that is this: It was the duty of the railroad company to provide a switch engine for use in its yards at Leroy, because that is the ordinary and usual appliance for performance of such work; and because it is ordinarily safe for the employés of the road engaged in such service; and they are entitled to this reasonable degree of protection. The railroad company failed to do this, but required such work to be performed by the ordinary freight engine between trips, and by this failure, as well as by the instrumentalities employed, it subjected its employés to perils and hazards against which it could have guarded, by the exercise of ordinary care and caution in supplying the yard with an engine properly constructed for such service. It cannot be disputed but that it is more dangerous to switch with a freight engine than with one prepared especially for that purpose. It is a universal rule that the employé risks the dangers which ordinarily attend, or are incident to, the branch of the business that he voluntarily engages in for compensation ; but it is equally implied, and public policy requires it, that the railroad company shall supply the usual reasonably safe appliances and machinery for such work. Applying these rules to the facts in this case, and while it may be said without qualification that McCally assumed all the risks and perils attending the use of a switch engine in the yards, because as a brakeman he knew he would have such duties to perform, it is not so clear that the use of ordinary freight engines with which to do the switching and other yard duties, was within the contract of employment. In other words, McCally had a right to assume that a switch engine would be used in the yards, but if a freight engine was used he would perform the same duties, assume the same positions, and rely on the careful management of the person in charge of the engine, and have the same remedies if he was injured, as if a switch engine had been used. If the theory of the counsel for plaintiff in error is to prevail, and control the decision of this case, it would practically make no difference what might have been the position of McCally on the engine. No recovery could be had for the injury, for if he placed himself on the engine, any position that he could possibly take would be one of danger, as in a collision of this character it was dangerous to be anywhere on the engine; so that the result of the case would be that while the railroad company furnished a freight engine for switching duties, and required its employés to use it, and while in use the engineer by his carelessness and mismanagement causes injury to a brakeman, he cannot recover because it is a freight engine.
This record discloses that the immediate cause of the death of McCally was the reckless conduct and gross mismangement of the engineer in charge of the freight engine that was being used in doing the switching. He drove the box car against the loaded coal cars that stood upon the side-track, at such an unusual rate of speed that the most ordinary mind could understand that great injury would inevitably follow. He disregarded, and probably disobeyed, the signals of the brakeman upon the top of the box car. The excuse he gives exasperates the offense. His claim is that there was a blinding snowstorm, and the direction of the wind was such as to blow the smoke of the locomotive into the cab, so that he could not even see the brakeman on the top of the car only twenty-five feet distant. If these facts existed, they were calculated to make any ordinary man in his sober senses more careful and prudent. He does not seem to have been warned by the customary instinct of self-preservation. After the fatal result of the collision, he now says that he gave the engine steam and opened the sand lever and reversed the engine at least one hundred and fifty feet away from the coal cars. He did this because the fireman gave him a signal to stop, and said “ that we were going to strike some coal cars.” How the fireman could see beyond the box car and notice coal cars on the track, and yet not see the brakeman on the box car, or hear his shouts, is not explained. Every other material fact necessary to a recovery against the railroad company is not only strongly supported by the positive testimony, but is irresistibly established by the facts and attending circumstances, leaving the only question about which there could be discussion and doubt, the one we have just been considering.
It may be said generally that it is possible that a case might be presented to this court, in which the injured person voluntarily assumed a position on the pilot of an engine, under such circumstances, that “every being of intelligence would at •once recognize that it was a place of great danger,” and that it is possible in such a case that this court would say as a matter of law, that the injured person was guilty of contributory negligence, and could not recover; but we are very certain that in this case- the evidence does not warrant the court in making any such declaration. The facts are not un<JiSpUted, but on the contrary are sharply controverted, and are of the character that, under our system of jurisprudence, either party can demand that they shall be determined by a jury. That determination has been had and approved by the trial court, and the only question here is, as to whether it has been done in accordance with the well-recognized principles that govern actions of this character. We think they have been substantially observed.
IV. The last contention of counsel that is necessary to notice is, that the court erred in allowing the plaintiff below to •amend his petition after judgment so as to make it conform to the facts proven on the trial. The petition alleged that at the time the injury occurred the deceased was standing on the ■steps of the pilot; but after the trial the plaintiff asked, and the court granted him leave, to amend the petition by alleging—
“ That after coupling said engine and box car together, said Dexter F. McCally remained standing on the steps of the pilot of said engine, the usual place at which brakemen stand when engaged in switching cars on side-tracks in this manner and for such purposes, for a short time, when he ascended to the platform to which the pilot was and is attached upon said engine, and sat down thereon immediately in front of the boiler head and behind the pilot beams — being the large beam to which the pilot is affixed — with his feet drawn up under him.”
The power of the court to permit this amendment is not questioned, but it is insisted that the evidence did not authorize it. Counsel forget the rule universally acted upon in this court on disputed questions of fact. It may be that in this particular case, if we were called upon to pass upon this particular question as an original one, that we would agree with counsel that the weight of the evidence as contained in the record was as he contends; but we did not see and hear the witnesses, observe their manner, and notice those many indications and peculiarities that impress the mind of the trial court, and very largely determine the weight and credibility that is to be given to their testimony. The trial court permitted the amendment, and this is equivalent to a finding that the facts are as recited in the amended pleading; and as we can say without hesitation or doubt that there was evidence to sustain the finding, it cannot be disturbed here.
Taking into consideration all the material facts and the principles applicable to them, we are satisfied that substantial justice has been done the parties to the action, and that there are no errors prejudicial enough in their character to justify a reversal of the judgment.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
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The opinion of the court was delivered by
Horton, C. J.:
I. It is claimed by Messrs. Durkee & Stout, who entered into a contract with Messrs. Gunn & Marr on June 1, 1886, that the dissolution of the firm of Gunn & Marr terminated their agency; that Marr, the retiring member of the firm, had no authority to sell or transfer his interest or the interest of the firm in the contract of June 1, 1886, to Gunn; therefore, that as no new contract was made in writing by Gunn, he could not recover as agent or otherwise for any damages or services subsequent to July 23, 1886, the date of the dissolution. Against this it is urged that Gunn, from the findings of the trial-court, as continuing partner succeeded by the terms of his agreement with Marr to all the rights of the firm, if Messrs. Durkee & Stout recognized or approved of his agency after the dissolution of the firm. It is held by a number of cases that au assignment by one partner of all his interest in the partnership is ipso facto a dissolution of the partnership, though the assignment is made to another partner. (Marquand v. Mfg. Co., 17 Johns. 525; Edens v. Williams, 36 Ill. 252; Rogers v. Nichols, 20 Tex. 719.) But in Taft v. Buffum, 14 Pick. 322, it is held that an assignment by one partner to another of his interest in the partnership property is not ipso facto a dissolution of the partnership. Whether it so operated depended on its terms as to the intention of the parties. (See also Monroe v. Hamilton, 60 Ala. 226; Buford v. Neely, 2 Dev. Eq. 481.) The findings of the trial court, however, show that the assignment from Marr to Gunn was recognized by Durkee & Stout after it was made. Marr does not claim any interest in the contract, either for himself or for the old firm of Gunn & Marr. After the dissolution on July 23,1886, Gunn continued to act under the contract of June 1, with the knowledge and without the objection of Durkee & Stout. This is shown by the following findings:
“ 7. The partnership of Gunn & Marr was dissolved July 23, 1886, by E. D. Marr retiring, W. C. Gunn buying out the interest of said Marr in the business, including his interest in this contract.
“ 8. An extended notice of the dissolution of this firm, with the purchase of Marr’s interest in the business, and that W. C. Gunn would continue the business, was given in the Port Scott Daily Monitor of July, 1886, which paper was taken by both defendants.
“ 9. Immediately after such notice of dissolution, the local notice above referred to (in the fourth finding) was signed by W. C. Gunn instead of Gunn & Marr, and said Durkee & Stout, particularly W. H. Stout, was in the habit of meet ing said Gunn in a business way as often as once or twice a month.
“10. Said defendants knew of the dissolution of the firm of Gunn & Marr, and that W. C. Gunn was conducting the business of Gunn & Marr, and was acting instead of Gunn & Marr in doing whatever he did under this contract.
“11. Said Úurkee & Stout never objected or made any question as to the right of said W. C. Gunn to act in the place of Gunn & Marr.”
In our opinion, on account of the conduct and acts of all the parties, the rights, duties and liabilities of W. G. Gunn were the same after dissolution as before, excepting that the contract of June 1, 1886, was to be fully carried out on the part of Gunn & Marr by Gunn only. Therefore the point made that the contract of June 1 was in its nature personal only, and hence not assignable, need not under the findings be discussed.
We have examined the record, and think that the reasonable interpretation of the evidence of the plaintiff below and the fair inferences therefrom fully support the findings of fact.
II. As neither Messrs. Gunn & Marr nor the continuing member of the firm, W. C. Gunn, had any interest in the land described in the contract, but only shared in the surplus or profits, the agency of Gunn was revocable. (Hawley v. Smith, 45 Ind. 183.) But although Messrs. Durkee & Stout had the power to annul the contract and refuse to permit Gunn to act, yet when they so refused without any just reason or excuse, after having recognized Gunn as the continuing member of the firm, they were liable to him for all damages resulting proximately from the breach of the contract.
III. The court allowed Gunn as his measure of damages one-half of what the land would have sold for at the commencement of his action above the price Messrs, úurkee & Stout agreed to accept for the land, as stated in the contract. It is contended that the rule followed was erroneous. The findings of the court show:
“17. That on February 23, 1887, when this suit was brought, said land taken as a whole would have sold out in lots at the rate of $750 per acre.”
“13. That by reason of a controversy in the city over bonds voted to the K. N. & D. R. R., and for other reasons, the real-estate market was very dull in Fort Scott during July, August, September, October, November and December, 1886, and in January, 1887.
• “14. That W. C. Gunn, for the purpose of disposing of this piece of land and other land which he had for sale, and for the purpose of ‘booming’ the city, expended considerable sums of money in advertising the city during the latter part of 1886, and about January 1, 1887, took a very active part in getting up a syndicate (for the purpose of buying and selling land and advertising the city), composed in part of foreign capitalists, and was mainly instrumental in raising the stock of the syndicate — taking $10,000 of stockin the same.
“15. That mainly by the formation of said syndicate real estate in the city of Fort Scott during the early part of February, 1887, suddenly increased in value — almost double.”
We think that Gunn, owing to the wrongful revocation of his agency by Messrs. Durkee & Stout in the early part of February, 1887, was entitled to recover such compensation or damages as would be equal in amount to his share of the profits which would have resulted had the lauds been sold by him. (Hawley v. Smith, supra.) This is what he really recovered. Therefore no erroneous rule was followed, nor are the damages allowed excessive. Messrs. Durkee & Stout cannot take advantage of their own wrongful acts, and as Gunn was prevented by them from performing a contract, his remedy is the same as if he had performed.
We perceive no error in the record, and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
In trials by jury, courts ought to be very careful not to impose an opinion as to the facts in dispute, for it is well recognized that juries have great respect for the opinions of the trial courts, and where such opinions are clearly expressed, a jury rarely if ever returns a verdict in opposition to such expressed opinions. This case shows clearly that the jury were much in doubt about the evidence, and as the court said to the jury in its instructions that it was a question that they would have to decide, “which is right, plaintiff’s or defendant’s theory of the case?” if plaintiff’s theory was correct, and they believed that to be so, of course they would have to find for him; if they believed the defendant’s story, that he bought the notes and that they were not left for collection, of course they would have to find for him. In these conversations with the jury the court so clearly expressed the points in issue, and so forcibly presented them to the jury, that very little consideration will be required to show that the court thought the story of the defendant was unreasonable and not worthy of belief, and so forcibly presented the strong points of the plaintiff’s case that it seemed reasonable and consistent. Now having presented these two extremes, he puts the question to the jury: “What would you do under the circumstances?” Doubtless this brought the matter clearly to the minds of the jury that the court thought that the plaintiff was entitled to a verdict; and doubtless the court was led into this error by its desire to have a small case ended that had taken a long time to try, and not to put the parties to the expense of a new trial; but the court may not in its zeal, and for the purpose of saving expense, practically decide the issues that are submitted to the jury.
The court also, in answer to a question by a juror in relation to the receipt which the defendant claimed he had received from Thornton for money paid him for the notes, said that the fact that the defendant did not offer the receipt in evidence in justice’s court, or disclose the fact that he had a receipt, was a circumstance that they might consider with the other circumstances. The record further discloses that the suit was brought originally in justice’s court, and in that case the defendant allowed the case to go by default; in other words, he made application for a continuance, which was overruled, and then offered no evidence in support of his theory of the case, but immediately appealed from the judgment rendered against him. Now anything that took place at that trial, in which the defendant did not participate, could not possibly bind him, and the fact that he had this receipt which he produced at the last trial, and which he failed to produce at the trial in justice’s court, ought not to have been considered as a circumstance against him. He could only be bound by silence when he was in court, properly presenting his defense. If he had there offered his evidence in support of his theory, and afterward in the district court for the first time produced this receipt, then the court’s instruction to the jury would have been correct, and it would have been a strong circumstance against the defendant. Considering the whole transaction, we are of opinion that the judgment of the court below ought to be set aside and a new trial ordered.
It is recommended that the j udgment of the court below be reversed, and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The principal error assigned in this appeal pertains to the order of the trial court in sustaining appellee’s motion' for a new trial, where the court expressed its dissatisfaction with the verdict. In such a situation it was the trial court’s duty to grant a new trial, and the appeal from that ruling presents no substantial question for appellate review — following Klopfenstein v. Traction Co., 109 Kan. 351, 354-355, 198 Pac. 930.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, C. J.:
The proceeding was one for a writ of error coram nobis to review a judgment of conviction of felony, based on a plea of guilty entered as the result of duress. A demurrer to defendant’s evidence was sustained, and he appeals.
On February 10, 1932, defendant was arrested on a warrant issued pursuant to a complaint charging him with having murdered his wife, Mary Hawkins, on February 4, 1932. He waived preliminary examination, and in default of bail was committed to the county jail. On February 11 an information was filed in district court charging him with murder in the first degree. Later in the same day, the following proceedings were had:
“Upon being arraigned on the charge of first-degree murder, the defendant enters his plea of guilty to the crime of second-degree murder, and upon such plea the court finds he is guilty of second-degree murder as charged in the information.
“Thereupon, the defendant is caused to stand before the court and asked if he has any reason why the sentence of the court should not be passed upon him and, he giving no sufficient reason, the court passed sentence in the language as follows:” [Here follows sentence to confinement in the penitentiary at hard labor for life.]
In 1934 defendant filed a motion for a writ of error coram nobis supported by affidavits attached to the motion. The motion came on for hearing in February, 1935, before the court, and defendant produced oral testimony. After proceedings had occurred which need not be described, defendant submitted his motion to the court on the pleadings and the evidence, for decision on the merits. The state demurred to defendant’s evidence and, as indicated, the de-, murrer was sustained.
The precedent for a writ of error coram nobis is the case of State v. Calhoun, 50 Kan. 523, 32 Pac. 38, decided in January, 1893. In the years which have elapsed since that decision was rendered, the remedy has been invoked many times, and each time has been denied. (See Gibson v. Enright, 140 Kan. 700, 701, 37 P. 2d 1017.)
The facts in the Calhoun case were these:
“At the February term of the district court of Marion county, in 1885, the grand jury found two indictments against Robert Calhoun for defiling females under the age of 18 years, committed to his care and protection, by carnally knowing them. The fact of such indictments having been found became known in the community. The public mind became greatly excited and hostile to the accused. Threats of lynching him were freely made, and preparations to carry out the same were apparently going on. Knowledge of these threats and preparations was communicated to the accused, who was then in jail, and the same produced in his mind such a state of fear, that, to appease the passions of the community, and secure himself from bodily violence, he pleaded guilty to the charges contained in such indictments, and was sentenced to the maximum limit of punishment — 21 years’ confinement in the penitentiary at hard labor, in each case.” (State v. Calhoun, 50 Kan. 523, 528, 32 Pac. 38.)
Evidence of threats made after the pleas of guilty were entered and before the mob completely dispersed, was introduced, showing the temper of the mob and the fact Calhoun’s life was in real danger.
The pertinent paragraph of the syllabus of the decision reads:
“Where the accused in a criminal prosecution in the district court is forced through well-grounded fears of mob violence to plead guilty to the criminal charge, and to be sentenced to imprisonment and hard labor in the penitentiary for a term of years, he has a right to relief from such sentence and plea by an action or proceeding in tke same court in the nature of a writ of error coram nobis." (Syl. f 1.)
The significant portion of the foregoing declaration is, “forced through well-grounded fears of mob violence,” which meant fears well-grounded in fact.
The following is the substantive portion of defendant’s motion:
“That the plea of guilty was made by the defendant unwillingly and involuntarily and under the influence of duress and fears of death caused by the officer in charge after his arrest, who beat and tortured the defendant; threatened to take his life; threatened to arrest his mother and charge her with the crime of murder; informing that he would not be permitted to see an attorney except one appointed by the county attorney of Ford county, and in addition thereto, if he did not enter a plea of guilty, death would be inflicted upon him by a mob that was being formed for that purpose.”
There is no statement here that there was in fact any mob. The affidavits attached to the motion did not state there was any mob, and defendant’s brief in this court does not undertake to marshal any facts showing there was a mob.
Defendant’s brief says there was a considerable number of people frequenting the immediate vicinity of the sheriff’s private office during the latter portion of a period in which defendant was held there, and there was considerable talk among these persons. The testimony was there were persons from South Dodge, where defendant lived and where Mary Hawkins met death, in the hall, outside the sheriff’s office, talking in groups part of the day; the under-sheriff said from 10 o’clock in the forenoon to 12:30 p. m. When the revolting details of the crime became known, some persons said a man who would do that ought to be mobbed, but there was no testimony of anything resembling threats of mob violence, and the undersheriff testified he heard none of the persons threaten to do anything.
The brief says there was considerable talk among officers, and because of facts to be narrated later, he was susceptible to fear of mob violence, brought to him through the suggestion of the officers and the presence of numbers of people from the vicinity of defendant’s place of residence. There is an element of truth in this statement, but there was no mob or indication of a mob, and the testimony was defendant offered to tell the truth about the homicide in the early morning, before any crowd of persons assembled in the courthouse.
Defendant’s brief contains the following:
“That there was grave danger of a mob being formed, or that a mob was being formed and that this danger of mob violence was, in fact, brought repeatedly to the attention of Hawkins by one or more of the officers grilling him, as well as by the presence of these numerous persons in the hallway adjoining the sheriff’s office.”
Defendant’s chief witness was Edward Gill, a special agent of the Santa Fe Railway Company, who, on request of a superior, acted as a special investigator in the Hawkins case. He, with a number of peace officers, gave Hawkins “the third degree” in the sheriff’s private office in the courthouse. The grilling lasted from about '8 o’clock in the evening of February 10, to about noon, February 11. Gill and the officers believed Hawkins was guilty and felt that any means short of physical violence-which would bring about a confession was justifiable. Gill testified:
“Q. Did the officers talk about the circumstance of a mob or the -danger of one being formed, did they talk about that, about one being formed? A. That was being mentioned. There was some pretty high feeling among people who knew about the case and that there might be possibility of a mob forming.
“Q. Where were these people, if you know? All the people that you just mentioned, that there was a little high feeling? A. We had thought the importance of the crime he was charged with, very notorious killing case, quite a shock to everybody, and when people spoke about it, it was mentioned.
“Q. Now, in the course of your conversation with Hawkins and while you were in his presence, I will ask you-whether at any time anything was said by you or others regarding the danger of a mob forming? A. I don’t remember saying anything to him directly about a mob forming or a mob; but I have a recollection that there was something mentioned that he better tell us, feeling was pretty high, it would be better for him to tell us something about it. I think we used that as a lever or opening, and he might confess to us.”
A motorcycle policemen, Clarence (Speedy) Shipp, was sent by the chief of police to help grill defendant. Shipp’s method was big noise and fury. Instead of inducing defendant to tell about the homicide, Shipp repeatedly told defendant defendant murdered his wife. Shipp testified:
“Q. Was there anything said in there while you were there about the danger of a mob? A. He [Hawkins] had that on his mind.
“Q. Did he tell you that? A. Yes, sir.
“Q. Did you hear some conversation about the danger of a mob? A. The only thing I heard while I was in talking to him, somebody came to the door and they told me that I better tone down a little bit, not talk so loud — the undersheriff at that time, Mr. Woolwine — raising hell outside, that they might start having some trouble.
“Q. Now, was it after that incident of this party coming to the door that Hawkins had the idea in mind about there being some danger of a mob? A. He had spoken of that before.
“Q. He had spoken of that before? A. Yes, sir.”
Undersheriff Woolwine denied using the language implied by Shipp’s incoherent statement, and testified he told Shipp Shipp was not getting anywhere. The undersheriff also testified he was not apprehensive of danger.
Gill told what occurred:
“Q. You recall of Undersheriff Woolwine coming to the door in that back room the next morning and cautioned the officers about making so much noise? A. I remember Mr. Woolwine making a remark along those lines.
■‘Q. What did he say., if you recall? A. Well, there was some noise going on in the back office when Mr. Shipp, I think, was questioning Hawkins, and Mr. Woolwine thought he was a little noisy or something like that. He said there, ‘Whatever is going on here, there isn’t going to be any more of this violence.’ ”
However, taking Shipp’s statement as that of one person concerning what another person said, there was no witness who saw people in the courthouse who gave any testimony descriptive of their conduct or demeanor which would indicate existence of a mob, or an emotional state which might culminate in formation of a mob.
Gill testified as follows:
“Q. How many people were there out here in the hall, if you know? A. I would say there wasn’t, not less than thirty-five people, not more than fifty at one time.
“Q. What were they doing? A. Just going up and down the stairways, being curious about what was going on, whether Hawkins had confessed; asking the officers about the progress of the investigation and so on like that.
“Q. Talking among themselves? A. Well, I guess they were. I suppose they were.
“Q. When did he confess, what time did he? A. I think it must have been about between eleven-thirty and twelve-thirty.
“Q. Was this crowd around here at that time? A. I wouldn’t want to say, although there was a crowd around here.
“Q. Around through the building? A. Around through the building; yes, sir.
“Q. Did they disperse shortly after that? A. After that was over everybody went home.”
No stronger evidence was introduced in support of defendant’s motion than that which has been referred to, and the court was obliged to find that, whatever the state of defendant’s mind and whatever produced his state of mind, there was no proof of existence in fact of a mob, either assembled or assembling, with either design or disposition to take defendant from custody of the officers of the law and do violence to him. The result is, defendant was not forced to plead guilty through any fear, well-grounded in fact, of mob violence, and. the Calhoun case-does not afford a precedent for allowance of a writ of error coram nobis in this case.
There was no testimony to sustain the statement in defendant’s motion that defendant feared death at the hands of the officer in charge of him, who beat him and threatened to take his life.
The officers acted in relays in trying to break defendant’s will and make him confess. They would go into huddles to plan the next method to be used. They bullied and they cajoled in appropriately harsh and dulcet tones. They pounded the table with their fists, and they paraded their guns and clubs, but not in a menacing manner, and no violence was used, except that defendant would be shaken violently when he was about to go to sleep, or was shamming sleep.
In the course of the session of the officers with defendant, defendant told them he, his wife and his mother were the sole occupants of his home, in which his wife was killed. The crime was of a revolting character. Gill testified that in such cases the practice was to examine all persons who might be able to give information, and testified further, as follows:
“Well, several times during the night, when we were questioning him about the details of the conditions around the house at the time this killing or accident happened or took place, we suggested that there was only one other person we could get to break him up, that would be his mother, and we asked him — didn’t intend for us to go down and bring his old mother up to the courthouse and question her like the way we questioned him. In fact, I think I said that to him myself.
“Q. Did that occur more than once during the night? A. I presume it did, once or twice or three times.”
Defendant contends this was great torture to him while he was grieving over the death of his wife. She was killed by blows on the head with a claw hammer.
For a while defendant denied he killed his wife. Afterward he said, “Well, I will tell you the straight of this if you will let me see my attorney.” This statement was repeated several times, but he was not permitted to see his attorney, whom he named, because the officers knew that if an attorney were brought in, their efforts to obtain a confession would be fruitless. As indicated, about noon on February 11, defendant confessed. Papers were completed at about 3 o’clock in the afternoon, and -later in the afternoon, the undersheriff said about 6 o’clock, defendant entered his plea of guilty. The reason for defendant pleading guilty to murder in the second degree, instead of murder in the first degree, is not disclosed. The undersheriff’s recollection was that an officer took defendant to see. his mother. At 8 o’clock in the evening defendant was placed aboard a train and commenced his journey to the penitentiary. There was no mob at the courthouse and no mob at the train, and defendant requested that he be not taken away until the next day.
Defendant complains because he was not permitted to see an attorney. He did not. ask permission of the court to see an attorney. That he was not represented in court by an attorney was a fact perfectly apparent to the court, and consequently the fact was not ground for a writ of error coram nobis. (Asbell v. The State, 62 Kan. 209, syl. ¶ 1, 61 Pac. 690; Collins v. The State, 66 Kan. 201, 71 Pac. 251.) In the opinion in the Collins case the court said:
“That writ lies only to correct the record of the trial itself in matters of fact existing at the time of the pronouncement of the judgment, in respect of which the court was unadvised, but had it been advised, the judgment would not have been pronounced.” (p. 202.)
Defendant cites the case of State v. Oberst, 127 Kan. 412, 273 Pac. 490. In that case various motions were promptly filed in the district court to undo proceedings wherein defendant, a minor seventeen years of age, entered pleas of guilty to seven felonies, without having been permitted to consult counsel.
In view of the foregoing, defendant’s case reduces to this: De-' fendant was given the third degree, confessed commission of the crime charged against him, and about six hours later, pleaded guilty. Despicable as administration of “the third degree” may be, the evidence in this case wholly failed to establish facts warranting review of the judgment on writ of error coram nobis.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a workmen’s compensation case. The appeal is by the claimant from an order of the district court which refused and denied him any relief in an appeal to that court from an order of the compensation commissioner denying claimant’s motion to complete the hearing of his claim for compensation.
The record before us may be summarized as follows: On June 25, 1929, the claimant filed his claim for compensation with the compensation commissioner. This was forwarded to respondent and received by it June 27, 1929. The claim was predicated upon an alleged injury by accident February 4, 1929, which arose out of and in the course of his employment with respondent. The claim was heard July 23, 1929, by an examiner of the commissioner of work men’s compensation. It was there stipulated that respondent was a self-insurer; that on February 4, 1929, claimant was in the employ of respondent at the average weekly wage of $16.92, and that due notice was had of the injury. Respondent specifically denied that claimant made written claim for compensation within the time provided by statute, and further denied that claimant met with personal injury by accident arising out of and in the course of his employment.
The examiner, on August 1, 1929, reached his decision and rendered his award, which, among other things, recites:
“All the evidence having been heard and duly considered ... it is found that the claimant did not make written claim for compensation upon his employer within the ninety-day statutory period. . . . Wherefore, award of compensation must be denied.”
This was approved and filed by the commissioner of workmen’s compensation August 12, 1929. The claimant took no appeal from this award; or, more accurately, he took no appeal within the twenty days allowed by statute for such an appeal. He did take an appeal from this award on March 28, 1930, but finally dismissed such appeal on June 28, 1933. This appeal appears not to have been presented to the district court for ruling on its merits.
On August 20,1929, the commissioner of workmen’s compensation, on his own motion and without notice to either party, set aside his award filed August 12, 1929, and ordered a rehearing of the claim for September 7, 1929. On September 4, 1929, respondent appealed from this order of rehearing to the district court. That court sustained claimant’s motion to dismiss the appeal for want of merit, and respondent appealed from that ruling to this court, where it was decided March 8, 1930 (Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 285 Pac. 595), this court holding the order of the commissioner of workmen’s compensation of August 20, 1929, setting aside his award of August 12, 1929, and directing a rehearing on the claim, was void. The ruling and judgment of the district court was reversed, and the cause was remanded with directions to reinstate the award as originally made, approved and filed.
Thereafter and on June 30, 1933, the claimant filed with the commissioner of workmen’s compensation a “motion to complete hearing.” This set out that he filed his claim with the commissioner June 25, 1929, and that the same came on for hearing before the examiner July 23, 1929, and alleged the examiner refused to hear any testimony for the claimant except that pertaining to the making of the written demand for compensation; that the testimony in the case never was completed by the commissioner of workmen’s compensation or any of his examiners, and moved the commissioner to set a date for the completion of the hearing of the case and for the taking of testimony to complete the same. This motion was heard by the commissioner of workmen’s compensation July 6,^ 1933, and denied. Claimant appealed from that ruling to the district court, which court, after a hearing, and on December 22, 1934/ denied claimant any relief, and claimant has appealed to this court.
The claimant, as appellant here, contends it is the duty of the commissioner of workmen’s compensation, or his examiner, on the hearing of a claim for compensation, to hear all the evidence. In this appellant is correct. Under our workmen’s compensation statute provision is made for one tribunal only to take the evidence. That is the commissioner of workmen’s compensation.. He may take the evidence himself, or it may be taken by one of his examiners. When an appeal is taken to the district court that court can hear no additional evidence, although it is authorized to pass upon questions of fact as well as questions of law. It is compelled to consider the facts from a transcript of the evidence heard by the commissioners of workmen’s compensation or his examiner. Upon an appeal to the supreme court, that court reviews questions of law only. It must take the facts as found by the district court on the transcript of the evidence taken by the commissioner of workmen’s compensation or his examiner. So in all cases the commissioner of workmen’s compensation, or his examiner, on the hearing of a claim for compensation, should take all the evidence either party desires to present upon any issue pending before the commissioner or his examiner. Even though one of the parties contends, and the examiner is inclined to agree, that evidence relating to one point defeats or establishes the claim, all proffered evidence relating to that, or any other point at issue, should be received. (R. S. 1933 Supp. 44-534.) In substance, all this has been said before. (Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396; Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429; Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980; Austin v. Phillips Petroleum Co., 138 Kan. 258, 25.P. 2d 581.) Nor should the commissioner confine the parties to strict rules of evidence. (R. S. 1933 Supp. 44-523; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276.)
At the hearing before the examiner July 23, 1929, after stipulations were made, there were just two questions at issue: First, had claimant made written claim for compensation within the time required by law; and, second, did claimant receive an injury by accident arising out of and in the course of his employment? Had both these been established perhaps it would have been necessary to determine the extent and duration of such injury, but nothing is said in the briefs on these points.
Appellant inaccurately contends the examiner refused to hear evidence. The record is to the contrary. It reads: “All the evidence having been heard and duly considered . . .” There is no contention here that the examiner refused to hear all evidence offered by the claimant or anyone else, except as to one trivial matter conceded to be immaterial. The record does disclose that after claimant had testified and fixed the time of the accident as February 4, 1929, the commissioner, having the claim filed June 25 before him, called attention to the fact that it had not been filed within the 90 days required by statute. It is clear the elapsed time is more than 90 days (it is 141, as we compute it). There was no contention by claimant, and no evidence offered, to the effect that compensation as such had been paid, or that hospital or medical attention had been provided or paid, late enough to make the claim for compensation in time, or that any other reason existed which made it inaccurate to count the 90 days to begin from the date of the claimed injury. The statute (R. S. 1933 Supp. 44-520a) then in force is specific: “No proceedings for compensation shall be maintainable” unless the written claim is made within 90. days after the accident, with certain exceptions or modifications. No evidence was given or offered tending to show claimant’s case fell within such modifications or exceptions. Naturally the examiner called claimant's attention to the fact that it appeared his written claim had not been made in time. Apparently claimant then ceased to offer any further evidence. He was not told further evidence was refused. Apparently he did not have any other evidence which he thought it worth while to offer. The necessary result was that the examiner made his award denying compensation.
What claimant really desires in this case is a rehearing. At the time of the hearing before the examiner, July 23, 1929, he was not represented by an attorney. Later he employed an attorney. Perhaps the attorney learned from him facts which in his judgment might be shown in evidence and which would authorize a finding by the compensation commissioner that the claim for compensation was made in time. The claimant, of course, is not entitled to a rehearing on that matter. That was the specific question before this court and determined when the case was here before (130 Kan. 203, 285 Pac. 595). More than that, this court, at the close of its opinion in that case, directed that the award as originally made, approved and filed, be reinstated. No new fact,is shown by the record in this case which would justify this court in setting aside its former decision and direct a rehearing. Indeed, we are not asked to set aside our former decision. Appellant contends that the hearing was incomplete before the examiner on July 23, 1929, and asks that a complete hearing be had. The hearing before the examiner was as complete as claimant wanted it to be; that is, the examiner received all evidence he desired to offer. While an examiner might very properly suggest to a claimant in what respect his evidence was deficient, which in fact the examiner did in this case, the examiner cannot be expected to go out and hunt up evidence for a person, especially when he has no intimation that it exists, and bring such evidence in before himself for his own consideration.
For us to do what appellant in effect wants us to do in this case would be to permit any claimant for compensation, whose claim has been denied by the compensation commissioner after a hearing, to ask for a rehearing, or what he may term a more complete hearing of his claim, and thus have his claim reopened, possibly with additional evidence on points concerning which evidence previously had been received. This procedure would make it impossible for any case in which compensation is denied ever to be closed. Our compensation law not only fixes but one tribunal to take evidence in a workmen’s compensation case, but in effect it fixes one time to take the evidence — that is, when the claim is being heard. There may be, of course, continuances from time to time as necessity may require, ánd occasionally other instances of incomplete hearings which for some reason are still in such a shape that'they can be completed. But this is not such a case. Here there was a complete hearing in the sense that the examiner heard all the evidence offered. After hearing and duly considering all the evidence an award was made which was approved by the compensation commissioner. No appeal was taken from that award. Thereafter the compensation commissioner attempted to grant a rehearing. On appeal to this court that was held to be futile. We are asked now to direct a new hearing under the name of a complete hearing. Not only is there no statute authorizing it, but it would be contrary to the plain purport of the statute.
Appellant cites and relies largely on the case of Willis v. Shelly Oil Co., supra. The cases are readily distinguished, as a reading of the opinion in that case will show. We need not take the space here to point out the distinctions.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff brought this action to recover damages for the wrongful death of her husband alleged to have been caused by defects in a township highway. The jury answered special questions and returned a verdict for defendants. Plaintiff has appealed.
The highway in question, locally known as the Morse road, is maintained by the defendant township. It extends west for several miles from the city limits of Bonner Springs, in Wyandotte county. It had been graded and somewhat improved. West of the city limits, perhaps 800 feet, is a culvert over a creek. From the east and from the west of the culvert the highway slopes downward at an angle of five or six degrees. East of the culvert the surface of the highway had been covered with gravel. West from the culvert the highway had been graded about eighteen feet in width and the dirt surface treated with oil — a strip about twelve feet wide along the center. The creek mentioned crosses the highway at an angle from the northeast to the southwest, and as it comes from the culvert on the south side of the highway it runs west near the highway a short distance — the bed of the creek being about ten feet lower than the surface of the highway — -and then winds its way to the south and west. On each side of the highway at the culvert defendants had placed railings. On the south side of the highway the railing was in three panels, each about twelve feet long, one being over the south end of the culvert and the other two extending west from it. There is a controversy in the evidence as to whether the two west panels were in place at the time of the casualty, soon to be mentioned.
Plaintiff and her husband lived west of Bonner Springs a few miles and used this highway frequently in going to town and for him to go to his work. On the day of the casualty, plaintiff going to a store and her husband going to his work in Bonner Springs, got into their model T Ford car, several years old, and drove from their home east on this highway, the husband driving. As they came down the slope toward the culvert above mentioned the car seemed to become unmanageable. It was difficult to steer, and shortly before it reached the culvert it turned to the south over the bank and into the creek. The car upset and plaintiff’s husband was killed. Plaintiff alleged the highway was defective in this, that holes had developed in the traveled portion of the highway and ruts had been cut therein. Two of these holes were described as being of “major size,” about three feet in length and four or five inches deep, and it was alleged that there were numerous holes and ruts in the highway caused by the traffic, the wearing of the road surface, and water which had washed down the slope, and that it was also defective in not having a proper railing or barrier along the bank of the creek at the edge of the highway just west of the culvert. Defendants denied the defective condition of the highway, or that the death of plaintiff’s husband was caused by any defect in the highway. Other portions of the pleadings need not be specially noted. The jury answered special questions as follows:
“1. State whether or not there was any defect on Morse road on. May 4, 1931. A. Yes.
“2. If you answer Question 1 in the affirmative, state what said defect consisted of. A. Washout extending eleven feet west from culvert on south side of Morse avenue.
“3. If you answer Question 1 in the affirmative, state where said defect was with reference to the culvert. A.-.
“4. If you answer Question 1 in the affirmative, state whether any particular defect caused the accident. A. No.
“5. If you answer Question 4 in the affirmative, state whether or not the trustee of Delaware township had notice of any defect prior to said accident. A. - — —.
“6. If you answer Question 5 in the affirmative, state when and how said township trustee acquired notice or knowledge of the existence of such defect. A. -.
“7. State whether or not on May 4, 1931, there was a guardrail on the south side of Morse road at the place where the plaintiff’s car went into the ditch. A. Don’t know.
“8. If you answer Question 7 in the affirmative, state whether or not said guardrail was knocked d'own into the ditch by plaintiff’s car. A. Don’t know.
“9. What was the proximate cause of the accident? A. Contributory negligence of the deceased.”
. When the verdict was returned plaintiff asked that the jury be instructed to retire and answer all special questions and to give a more complete answer to question 9 by stating in what particular the deceased was guilty of contributory negligence. This request was denied.
Appellant first complains that the court refused her request that the jury be required to answer all the special questions. It will be noted that the first four were answered, the answer to No. 3 being embodied in the answer to No. 2. The jury was asked to answer question 5 “if they answered question 4 in the affirmative.” The jury answered question 4 in the negative, hence, was not required to answer question 5. For a similar reason the jury was not required to answer question 6. The answers to questions 7 and 8 may be regarded as adverse to plaintiff, but in fact they become unimportant if the answers to the first four questions stand. '
Appellant complains of the answer returned to question No.. 9, and contends there was no evidence to support it. It will be noted this is not the question frequently asked in damage cases, namely: “Was plaintiff (or defendant) guilty of contributory negligence?” And, “If you answer this question in the affirmative, state specifically in what respect the party was negligent.” This question 9 was simply: “What was the proximate cause of the accident?” Now the jury had found that no defect of the highway caused it. In view of this the jury might well have concluded that since no defect of the highway caused the accident it must have resulted from some inattention or lack of due care on the part of the deceased. Irrespective, however, of whether deceased was negligent in a manner which contributed to his death, plaintiff could not recover if the accident or casualty was not caused by a defect in the highway. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.) Hence, the answer returned by the jury to this question becomes unimportant on plaintiff’s right to recover in this action.
Appellant complains of instructions given by the court on contributory negligence of the deceased and contends that there was no evidence in the record which justified the giving of such instructions. The question was put in issue by the pleadings. The question may be said to be inherent in this class of actions (R. S. 68-301), and the fact the car was driven off the traveled portion of the road, which the jury found not to be defective, would cause reasonable men to think that the deceased must have been lacking in due care.
Appellant next complains that the court erred in refusing to give certain requested instructions. These were to the effect that even though the deceased knew the highway to be defective he was not compelled to abandon it and take some other road, perhaps more circuitous, to the place he wanted to go. There was no contention in this case that the deceased should have taken some other route. The question of whether he was negligent in not doing so was not an issue raised either by the pleadings or the evidence. The instructions requested on this point were properly refused.
It is next contended that the court erred in refusing to give a requested instruction with respect to notice of a defective condition of the highway to the township trustees. The instructions given on that question cover the subject fully and fairly.
Appellant argues the verdict is unsupported by the evidence because it is based upon the contributory negligence of the deceased. We are unable to see that the verdict is based upon that. The first point plaintiff had to establish was that there was a defect in the highway; second, that the injury or death of her husband was caused by that defect. (Arnold v. Coffey County Comm’rs, supra.) The jury specifically found that no defect in the highway caused the accident. That is a sound basis for the general verdict. There is an abundance of evidence to support this view; indeed, it is not contended such evidence was lacking. This casualty happened in May; the day was clear; the highway dry. Evidence on behalf of defendants was to this effect: That the previous summer, in July or August, the highway had been graded smooth, eighteen feet wide, slightly higher in the center so water would drain to the sides; that a twelve-foot strip through the center had been specially prepared for oil treatment, and a heavy coating of hot oil applied to the surface; that this had hardened, making a hard surface, practically smooth, and was without holes or ruts at the time of the casualty. It is true there was some conflict in the testimony respecting holes or ruts in the highway. It was the function of the jury and the trial court to determine the facts from this evidence. They have determined the facts favorably to defendants.
Appellant argues the answers to the special questions are inconsistent with each other and with the general verdict. We are unable to find such inconsistencies. Other matters discussed do not require special treatment.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to compel specific performance of a contract for the sale of an oil and gas lease which the defendant agreed by written contract to purchase from the plaintiff for a specific sum and plaintiff tendered an assignment of the lease, which the defendant refused to accept for the reason that the title thereto was not full, complete and merchantable.
The questions about the title involve the construction of a will and the effect of a friendly proceeding in court. A copy of the will and of all the court papers in that friendly case were attached to the petition as exhibits. Defendant answered, putting in issue the construction of the will and the effect of the court proceeding, and thereafter both plaintiff and defendant separately moved for judgment on the pleadings.
The trial court held in favor of the plaintiff, that the title to the oil and gas lease was good and merchantable and ordered defendant to comply with the terms of his contract of purchase, from which order and judgment the defendant after the overruling of his motion for a new trial took an appeal.
The plaintiff was the lessee in the lease he was contracting to assign and sell to 'defendant. The makers of the lease to the plaintiff derived their interests in the land in question from the deceased owner thereof through a will. The particular tract of land on which this lease was given had been devised to the daughter of the testator. He left surviving him his widow, one daughter, Elizabeth, and one son. The provisions of the will with which we shall be especially concerned are as follows:
“Fourth: I will, devise and bequeath to my daughter, Elizabeth Barbee, the following described lands situated in Pratt county, Kansas, to wit: (description of land).
“But my said daughter shall not receive any part of my estate, except at the time and in the manner hereinafter provided.
“Fifth: Should either of my said children die, leaving no issue, before receiving any portion of my estate as herein designated, then and in that case I will, devise and bequeath such portion so remaining to my surviving child.
“Seventh: I hereby nominate, constitute and appoint my wife, Jessie C. Barbee, O. H. Bock and Geo. W. Lemon, as executors of this my last will and testament and trustees of my estate to carry out the provisions of this will; and I request and direct that they be not required to give any bond.
“Eighth: I further will and direct that my said executors and trustees be not hampered and controlled in the management of my children’s estate, by any court in which this will may be probated. My said executors and trustees, and the survivors or survivor, shall have executive control of the estate herein willed to my said children, until same is distributed as herein directed . . .
“Ninth: Placing absolute confidence in my said executors and'trustees, I leave it to their good judgment as to how much of the income derived from the estate herein willed to them, shall be paid to my said children, either before or after they shall become of age, but no part of the principal of the estate willed to them, shall be received by them, except at the times hereinafter stated. .
“Tenth: As my said children'each respectively shall arrive at the age of twenty-eight years, they shall receive the full estate herein willed to them, and any increase thereof remaining undistributed at that time.”
The will was executed June 8, 1925, and the testator died June 4, 1926, and the will was duly admitted to probate October 14, 1926. The daughter at the time of her father’s death was about sixteen years of age. At the time the lease was made she was twenty-four years of age, was married, but had no children. Her brother was married and was over twenty-eight years of age, and the widow of the testator was living.
On February 15, 1934, the three trustees named in the will, acting as trustees for Elizabeth, the daughter, and the daughter and her husband executed an oil and gas lease to the plaintiff. Thereafter the widow, as such, the three trustees as trustees for the estate of the deceased, and the son and his wife, by an instrument in writing confirmed, ratified and adopted as their own act the making, executing and delivering of the lease.
Later the brother brought an action in the district court of Pratt county against the three trustees under his father’s will, his mother, the widow of the testator, his sister and her husband, and his own wife, setting up all the facts and praying for an order and decree of the court construing and interpreting the will of his father and for the appointment of a trustee for and on behalf of the unknown contingent executory devisees and contingent interest holders, with power and authority under order of the court to make and enter into an oil and gas lease, with power to receive and hold until further order of the court and happening of the contingencies men tioned in the will all the proceeds of such oil and gas lease or leases which may belong to the unknown contingent executory devisees and contingent interest holders, and for such further and different relief as to the court seems equitable and just. The defendants all entered voluntary appearance, and issues were joined by answer.
The court found the allegations of the plaintiff’s petition to be true, including these about the prospect of oil and the danger of the oil being diminished or lost unless wells are drilled when others are being drilled in the immediate vicinity, and the court further found and held:
“The court further finds that by reason of the contingency herein above described as now existing, it is impossible to secure the development of said real property for oil and gas, and to protect the same from drainage unless the court exercises its equitable powers to protect the rights of such persons, born or unborn, who are or may be the unknown contingent executory devisees and/or unknown contingent interest holders of said real property under or by reason of the terms of the last will and testament of H. A. Barbee, deceased, all of which the court finds is necessary; that it is necessary that the court appoint a trustee with power in said trustee to either execute an oil and gas lease upon the lands hereinabove described separate and apart from the oil and gas leases heretofore executed, as aforesaid, or by joining in such leases covering and binding all of the interests in said lands, and that said trustee take, receive, and hold until the happening of the contingencies mentioned in said last will and testament all of the proceeds and benefits of and under said lease or leases accruing to such contingent executory devisees or interest holders. . . .”
The court appointed a trustee, who promptly made an appraisement and filed his report' with the court, and the court approved his execution as trustee of the lease theretofore made to the plaintiff.
Appellant claims that an estate by implication was created in the event that the daughter should leave issue and be deceased before arriving at the age of twenty-eight years under the provisions of the will. Although inferred estates, or estates by implication, are not generally favored, especially in the absence of some direct or indirect expression of intention, yet it is not difficult to read the very evident intention and inference here in favor .of creating an estate for such issue if such is left by her and she dies before reaching twenty-eight years of age.
We see two contingencies with reference to the property devised to the daughter which exist and will continue to exist during this four-year period before she reaches the age of twenty-eight years: First, whether or not she may have issue, and second, whether or not she may live to become twenty-eight years of age. If she lives to the age of twenty-eight she takes the property regardless of issue. If she dies earlier, “leaving no issue,” the property goes to her brother. If she leaves issue and dies before reaching twenty-eight years, of course the brother will not get the property and by the strongest kind of an inference the issue takes it under the will. What good reason could there have been in the mind of the testator that the son should not receive the property when the daughter might die leaving issue, unless it should be intended to go to that issue? The contrary intention cannot reasonably be supposed to have existed in the mind of the testator, as was said in 69 C. J. 69:
“In order to carry out the intention of a testator and prevent the will from failing of effect, a devise or bequest may be implied, although it has not been formally expressed in the will, unless the implication violates public policy or some settled rule of positive law. ... In order that the devise or bequest may be effectual the implication must be a necessary one, that is, the probability of an intention to make the devise or bequest implied must appear from the will to be so strong that a contrary intention cannot reasonably be supposed to have existed in the testator’s mind.”
This unknown and contingent interest is what the appellant claims makes the lease unmerchantable, and further claims that the decree made and entered by the court of equity in the court action will not bind the unborn issue of the daughter Elizabeth.
Appellant cites the following four Kansas decisions: Williams v. Bricker, 83 Kan. 53, 109 Pac. 998; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; Martin v. Lassen, 122 Kan. 406, 251 Pac. 1083, and Bell v. Watkins, 90 Kan. 558, 135 Pac. 596.
The first concerned the extent of a contingency which might render a title unmerchantable, with very similar state of facts as in the case at bar, holding the title unmerchantable where the deed was made by the life tenant and all the children as remaindermen and one of the children died before the death of the life tenant, and the will also created a contingency by providing for the disposition of the property intended for any one of the children who might die without issue prior to the death of the life tenant.
The next two cases define contingent remainders and apply the facts therein to the recognized rule as to such. We are considering the case at bar as concerning a contingency — in fact, two contingencies, as above stated.
The Bell case was an appeal by wife and child of a son who were excluded as remaindermen in an earlier case reforming a deed, which gave a life estate to the son with remainder to his heirs, and the court held they, being parties to the earlier action, were effectively bound by the earlier decree therein. It was further held that the rights of unborn heirs could not be adjudicated in that action because no party to the action had rights in common with the unborn heirs. This holding has not been reversed or modified in this state, and by adhering to it many decisions from other states, otherwise pertinent, will not be helpful here.
Some of the cases cited by appellant concern partition of property where an unborn child may have a contingent interest. That matter was most forcibly and conclusively handled and disposed of in this state in the case of Bartram v. Kemp, 113 Kan. 246, 214 Pac. 96. It was there held, following the earlier decision in the case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, that—
“. . . the district court has no jurisdiction in partition to limit the interests of the remaindermen to the tracts allotted to the life tenants by the voluntary partition.” (Syl. f 1.)
The case at bar is not in any sense a partition action or an attempt to divide the property. It is simply an equitable action to preserve the property from immediate loss and diminution, to be divided or distributed by order of court when the contingency shall have concluded. Such equitable procedure was recognized in the case of Davis v. Davis, 121 Kan. 312, 246 Pac. 982, although it was not the determining feature of the case because of the mistake of the one in possession in regarding the first estate as being one for life, whereas ’ it was later learned to have been an estate tail. There the court in the exercise of its equity power to save for the unborn estates the possible interests in the oil and gas on account of certain activities in the demand for oil and gas leases in the neighborhood, appointed after a full investigation a trustee to execute an oil and gas lease for and on behalf of the unborn contingent remaindermen.
In 23 R. C. L. 584 it is said:
“In a suit in equity for partition, against trustees for an account, for the conversion of the realty into personalty, or any other proceeding whereby the jurisdiction of a court of equity may be invoked to dispose of real estate the title to which is embarrassed by contingent remainders awaiting unborn remaindermen, a decree may be rendered in a proper case, which will be binding upon the unborn -persons in remainder. The doctrine of representation applies for reasons not only of convenience and justice, but of necessity, also, because it is impossible to make them personally parties. Necessity is recognized as an all-sufficient reason for it wherever such necessity exists. It has ■ been held, that a decree for the sale of the interests of contingent remaindermen may, within the doctrine of representation, be binding not only as to unborn remaindermen, but also as to those remaindermen whose names and residences are unknown.”
Two recent cases recognize the urgency and necessity of immediate action between life tenants and remaindermen in oil and gas developments to avoid diminution and possibly complete loss. They are Benson v. Nyman, 136 Kan. 455, 16 P. 2d 963, and Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463.
In 21 C. J. 131 it is said that equitable relief as a ground of jurisdiction may be used—
“. . . to protect the subject matter of a controversy where there is actual danger that it may be so dealt with as to prejudice plaintiff’s rights. Instances of this preventive jurisdiction are found in the protection afforded to those holding remainders and other rights in futuro against loss or injury at the hands of one in possession.”
In the case of Mayall v. Mayall, 63 Minn. 511, it was held:
“For the purpose of preserving a trust, a court has power to order a sale, mortgage, or lease of the trust property, although the trust instrument contains no power or authority for so doing, and to bind by its judgment parties not in being, who may thereafter become beneficiaries of the trust.” (Syl. f 1.)
In the case of Trust Co. v. Nicholson, 162 N. C. 257, it was held:
“Where the donor has created an estate in remainder for the benefit of his grandchildren, etc., to be held in trust until the youngest one shall have become 21 years of age, and it is made to appear to the court that to preserve the estate in its then condition, owing to changed conditions, would work a hardship upon the beneficiaries, and that to preserve their interest a sale should be decreed and the proceeds invested and held subject to the terms imposed: Semble, a court of equity may act accordingly, and the purchaser at the sale will acquire a good title.” (Syl. If 3.)
In the case of Rasmusson v. Schmalenberger, 60 N. D. 527, it was held:
“For the purpose of preserving the interests of beneficiaries in a trust estate, or the interests of remaindermen under a deed, a court of equity has power to order a sale of real property, although the instrument creating the interests of such beneficiaries or remaindermen contains no power or authority for so doing, and to bind by its judgment parties, not in being, who may thereafter become beneficiaries of the trust or remaindermen under the deed.
“A contingent interest in real estate is bound by judicial proceedings affecting the property where the court had before it all the parties that can be brought before it, and the court acts upon the property according to the rights that appear, without fraud. These powers are inherent in a court of equity, and rest- upon considerations of necessity and expediency.” (Syl. MI 4, 5.) (See, also, Hale et al. v. Hale et al., 146 Ill. 227; Gavin v. Curtis, 171 Ill. 640; Clyburn v. Reynolds, 31 S. C. 91; and Ridley v. Halliday, 106 Tenn. 607.)
We conclude that the facts found by the court of equity in the special proceeding constituted sufficient grounds and reason for its decree and order appointing a trustee for the unknown or unborn contingent devisees or interest holders under the will, and that the court as a court of equity had jurisdiction and inherent power, based on considerations of necessity and expediency, to afford relief and protection to the unborn contingent devisees against loss and diminution of property, to the extent of authorizing and directing such trustee to execute an oil and gas lease and to hold and preserve the proceeds therefrom without distribution until the happening of the possible -contingencies mentioned in the will and to the end of the period of contingency. Under these circumstances and the order made by the court of equity, the oil and gas lease in the case at bar so signed by the trustee, together with the other signers thereon, constitutes a good and merchantable title.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment that appellee, Andrew Guipre, is the owner of a certain tract of land in Mitchell county, hereafter mentioned.
Lewis Guipre died in April, 1930, leaving as his heirs his widow, Mary A. Guipre, and nine children who were the issue of a former marriage. At the time of his death he was the owner of 560 acres of land in Cloud county, and there stood in his name on the records of Mitchell county the title to the northwest quarter of section 14, township 7, range 6, west of the sixth principal meridian. It is this tract which is in dispute. In December, 1932, a son, Louis Guipre, conveyed his undivided one-eighteenth interest in the real estate left by his father to the plaintiff, Eresch, and Eresch thereafter brought his action, to partition all of said lands, one half to the widow and one eighteenth to each of the children, except Louis, "who had conveyed to plaintiff. Andrew Guipre answered that the petition did not state any cause of action as to the Mitchell county land; that Lewis Guipre at the time of his death was not the owner; that since 1908 Andrew Guipre had been the sole and exclusive owner in fee simple, and was such at the time of commencement of the action, denied that plaintiff had any right or title, and alleged that Andrew Guipre,had been in exclusive possession under claim of ownership which had not been challenged by any of the parties to the action nor by plaintiff or his predecessors in title, and by cross petition he sought to have his title quieted. We shall not refer to the Cloud county lands, for as to them there is no dispute. The appellee, William Guipre, answered admitting the claim of his brother Andrew, and alleged that at the request of the parties in interest he had supervised the renting and operation of the re maining lands, and in so doing had expended time, money and expense reasonably worth the sum of $50 per annum, for which he had not been paid, and he asked an allowance of $150 therefor. The widow filed her amended reply and answer to the pleadings of Andrew and William, denying generally and denying specifically that Andrew was the owner of the Mitchell county land, except an undivided one eighteenth, and alleged that he was never the owner, but went on the land as a tenant of Lewis Guipre, and is now estopped to deny the title of his landlord and the landlord’s heirs. She further alleged that Andrew’s claim to ownership shows that the same is without consideration and void and that he is barred by the statute of limitations. The plaintiff filed a similar reply 'and answer.
On the issues thus joined a trial was had. The court held the burden of proof to be upon Andrew, and he offered testimony tending to prove that his father had given him the land; that he had been in possession, had made valuable improvements, had paid the taxes, had paid no rent; that his father had repeatedly recognized him as owner,. etc. The appellants offered evidence to contradict. The court, as requested, made findings of fact and conclusions of law which, so far as here necessary to be noted, were as follows:
"Findings of Fact
“No. 5. Lewis Guipre, deceased, acquired title to the above-described Mitchell county land prior to 1909, and at the marriage of Andrew Guipre, his oldest son, about that time placed the said Andrew Guipre in possession of the said real estate, which possession he had held continuously ever since.
“No. 6. Andrew Guipre made lasting improvements upon said land, expending therefor the sum of $1,500 during the lifetime of Lewis Guipre without direction or control of the said Lewis Guipre.
“No. 7. Andrew Guipre never paid any rent to Lewis Guipre, and paid all of the taxes and special assessments accruing against said property from the time he went into possession until the present.
“No. 8. Lewis Guipre in the first few years after Andrew had gone into possession of the Mitchell county real estate made statements that he had bought the land for Andrew, and as late as 1924 stated that the land was Andrew’s, and he had nothing to do with it.
“No. 9. The general reputation in the vicinity of this land as to its ownership was that it was Andrew Guipre’s land.
“No. 10. In 1927 Lewis Guipre was a director of the Farmer’s State Bank of Simpson, Kan., and for the purpose of the said bank’s borrowing money from the First National Bank of Beloit, Kan., of which plaintiff was an official, signed a statement of assets and liabilities, among which assets was listed the Mitchell county land in question. Andrew Guipre had no knowledge of such listing by his father.
“No. 11. Andrew Guipre himself borrowed money from the Farmer’s State Bank of Simpson, and in making financial statements to said bank listed the property in Mitchell county as his own.
“No. 12. After the death of Lewis Guipre his estate was probated in the probate court of Cloud county, Kansas, and the Mitchell county land was placed on the inventory of his estate.
“No. 13. None of the heirs of Lewis Guipre, deceased, since the death of Lewis Guipre have made claim to rents from Andrew Guipre or offered to pay taxes on the land occupied by him.
“No. 14. William Guipre has been acting as agent of the heirs to collect rents from the Lewis Guipre land, pay the taxes thereon and do other things necessary in the management thereof, but has never demanded rent from Andrew Guipre nor paid any taxes on the land occupied by him. He has in his hands as proceeds of the same the sum of $878.63, and has been paid nothing for services. A reasonable allowance for such services is the sum of $200.
“No. 15. Andrew Guipre and his younger brother Louis Guipre, who is plaintiff's grantor, had a conversation with one P. J. Paulsen, an abstracter and loan agent, shortly after the death of Lewis Guipre relative to the rights of William Guipre in the land occupied by him, and were advised by him that he did not think Andrew Guipre could claim the land by adverse possession.
“No. 16. Plaintiff acquired title to the land in question by deed from Louis Guipre about December, 1932, through an exchange of property. Plaintiff relied on certificates of title furnished by a Mitchell county abstracter, but made no investigation as to the possession of the property before taking title thereto.
“No. 17. Subsequent to the filing of his action defendant Andrew Guipre obtained quitclaim deeds from four of his brothers and sisters to their interest in the Mitchell county land.”
“Conclusions of Law
“No. 1. Andrew Guipre is the owner of the northwest quarter of section 14, township 7, range 6, Mitchell county, Kansas, by virtue of gift and the statute of limitations, and his title to same should be quieted.
“No. 3. William Guipre should pay to the clerk of this court the sum of $678.63, and upon so doing be discharged from further liability as to rents and profits collected by him.
“No. 4. The costs should be apportioned among all parties hereto in accordance with their interests in the real estate partitioned.”
and thereafter rendered judgment accordingly.
The plaintiff, the defendant widow, and those brothers and sisters who did not convey to Andrew Guipre, appeal, and their specifications of error will be discussed in the order presented.
It is urged the court erred in the admission of testimony and in refusing to strike out testimony to the effect that the land was a gift from Lewis to Andrew, it being contended that Andrew did not plead a gift. The code (R. S. 60-2104) requires the answer in a partition action state the amount and nature of defendant’s interest, and may deny the plaintiff’s or other defendants’ interests. Andrew alleged that Lewis at the time of his death was not the owner, that since 1908 Andrew had been the sole and exclusive owner in fee simple, and in his cross petition he alleged exclusive ownership in himself. This satisfied the requirements of the code. He was not compelled to set forth the manner in which he acquired title, and if he were, appellants waived by replying and answering without filing any motion to make definite and certain. The testimony was not incompetent because Andrew had not specifically pleaded a gift from his father to him.
Appellant plaintiff was represented by one attorney and appellant defendants by another. At some place, in.the trial, not clear from the record, it was stipulated that objection by one should be considered as the objection of both. During the cross-examinátion of Andrew Guipre by plaintiff’s counsel, the following questions were asked and answers given:
“Q. Now, as I understand it, you are claiming this property because you have been in possession for all these years, is that it? !
“A. No, sir.
“Q. What is your claim? A. It was given to me.”
The other attorney then objected, and after a remark by the court that it would be a little hard for the court to consider it as against one, the attorney asking the question made a similar objection. The latter attorney, having elicited the information, was not in a position to object. Strictly speaking, the witness was incompetent to testify and the objection of the first attorney should have been sustained. However, there was an abundance of evidence justifying the finding of gift, and if there was error in the court’s not striking out Andrew’s answer, it is immaterial.
It is further argued the trial court erred in admitting testimony, of reputation as to ownership. It would serve no good purpose to detail the testimony here, but some witnesses who testified to pertinent matters concerning Lewis Guipre’s statements and Andrew Guipre’s possession were asked the general reputation in the community as to who owned the land and, after qualifying, stated that Andrew was the reputed owner. In Kruse v. Fredlum, 96 Kan. 456, 152 Pac. 617, it was held:
“While the title to land cannot be established by reputation of ownership in the vicinity of the land, evidence of reputation may be admitted to show notice or notoriety of claim of title.” (Syl. ¶ 2.)
And see the cases cited in the opinion. In view of the fact appellants denied Andrew’s title and claimed he was a tenant of his father, and in view of much testimony that the father had said the land was Andrew’s, the evidence was admissible under the above rule, and there is nothing in the record which shows it was admitted contrary thereto.
Appellants’ contention the trial court erred in not sustaining their demurrers to Andrew’s evidence depends to a considerable extent on what they conceive to be properly admitted testimony. In connection, however, they argue that Andrew is estopped to claim ownership. Assuming that there was no need for them to plead and prove estoppel, their claims will be noticed briefly. First, when the administrator of the father’s estate made his inventory, he listed this particular land as an asset of the estate. Andrew knew of this and did not protest. The probate proceedings started April 21, 1930, and this action was not filed until September 16, 1933, and he had all that time to protest. The answer to these contentions is that the probate judge was informed that the land belonged to Andrew, but he said that as long as the legal title was in the father, it had better be listed and it was so done. While Andrew did not testify that he told appellants positively he owned the land, he did testify to many circumstances that did show his claim. The other claim is that a tenant is estopped to deny the title of his landlord. There is no doubt that is the rule, but it must first be proved that the relation .of landlord and tenant exists. In this case, that burden was upon the appellants and, although it had no bearing on the demurrer under discussion, they failed to do so. The trial court did not err in overruling the demurrer.
It is next urged the trial court erred in refusing to make findings of fact and conclusions of law as requested by appellants and in overruling their motions to set aside certain findings and conclusions. The argument under these assignments is predicated on their version of the facts. The trial court was not so restricted. It was the court’s duty to make its findings of fact from all of the evidence and to make its conclusions of law therefrom, and the fact it did not agree with appellants’ notion of what the evidence proved is not error. The findings of fact as made are supported by competent testimony and must stand. The conclusions of law on the findings are proper, and the trial court did not err in not concluding in favor of the appellants thereon.
So far as appellee, William Guipre, is concerned, appellants complain the trial court allowed him $200 for his services, when he asked for only $50 per year and a total of $150. It is argued that on final settlement of his father’s estate, he was fully paid up to August 26, 1932, and that when the case was tried in October, 1934, he could be entitled to only two years at $50 per year or $100. The trial court knew as a matter of law that as administrator of his father’s estate William was not agent for his brothers, sisters and step-mother in handling their real estate, and that his allowance in the probate court was for his duties as administrator. So far as the record shows, he claimed in 1933, when his answer was filed, $150 for three years. For one- year thereafter he continued to act and the trial court allowed him another $50. It has not been made to appear that the total allowance of $200 is erroneous.
Presumably, all of these matters were urged on the motion for a new trial, which was denied. No error on that ruling has been made to appear.
In an informal cross-appeal, appellees object to that part of the trial court’s order that the costs be apportioned among all parties hereto in accordance with their respective interests, insofar as it applies to costs made in litigating the questions as to the Mitchell county land. Appellants object to a consideration on the ground no cross-appeal was filed. In Knox v. El Dorado National Bank, 137 Kan. 500, 504, 21 P. 2d 353, the matter of cross-appeals and how they may be taken, the provision of the code (R. S. 60-3314) and our decisions were reviewed. It is not necessary to repeat what is there said. In this case, appellees in their brief, printed in conjunction with their counter abstract, say, with respect to the order complained of: “We now ask that the order be changed in this respect.” It is sufficient to challenge attention.
R. S. 60-2113 provides:
“The court in making partition shall tax the costs, attorney fees and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests,” etc.
In discussing this section of the code, it is said in Dassler’s Kansas Civil Code, Annotated (2d ed.): .
“The costs, attorney fees and expenses made by one claiming an interest in the property and failing to establish same, should not ordinarily be allowed and taxed against the property involved. The basic principle that should govern in the allowance and apportionment of costs, attorney fees and expenses, to be paid from the property or its proceeds, would seem to be that the same be such as were necessarily incurred for the benefit of the cotenants, in order to effect a partition of the property. Outside of such, the costs, attorney fees and expenses should be taxed and paid as in other civil actions.” (p. 959.)
None of our decisions are cited in support of the text, although many cases supporting the statement may be found in the annotation in 73 A. L. R. 21, 26, where the common-benefit doctrine and the effect of the title at issue are discussed. (See Sarbach v. Newell, 35 Kan. 180, 10 Pac. 529, which treats costs in partition actions.)
It will be observed that as to the Mitchell county land there was no partition, and so far as these lands are concerned, appellants had no title. Had the action been brought solely to try title, appellants would not have been entitled to costs unless .they had prevailed. (R. S. 60-3704, 60-3705.) . We are of opinion that the costs incurred in determining the title to the Mitchell county lands should be adjudged in favor of appellees and against appellants.
As to all matters except costs, the judgment of the trial court is affirmed. The judgment as to costs is reversed and the cause remanded with instructions to render a judgment for the costs in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Burgh, C. J.:
The action was one to cancel a .mineral deed of land and to quiet title to the land. Plaintiffs recovered, and defendant appeals.
The Home Royalty Association of Oklahoma is a common-law trust, formed in 1926 under the laws of Oklahoma. Its principal office is at Tulsa. The purpose of the association, as stated in the declaration of trust, made by W. H. Helmerich,-'William Broadhurst and Albert Wilson, trustees, is to acquire oil and gas royalty interests and mineral rights in land and leases of various owners, to the extent of not exceeding one million acres in Oklahoma and elsewhere; and to consolidate such acquisitions into a trust estate. The trust estate is managed and controlled by the trustees. The trustees have power to buy, sell, lease, operate, convert, and reinvest, all as if sole owners. The trustees have power to contract with any person for disposition to him of an interest in net income of the association, in consideration for property or services. The trustees are the sole judges of value of property acquired by or services rendered to the trust estate.
The trustees have authority to distribute net income. The distributees are called “grantors” by the declaration of trust, and comprise-two classes of persons: First, those who contribute property-landowners who put- their royalties, mineral leases, or mineral deposits, in the pool. Second, persons who contribute services.
The trustees get 30 percent of the proceeds (not specified as net) of the association, as compensation for their services. The trustees get one dollar per acre in cash, in their individual capacities, for all acreage acquired, to cover agents’ commissions and expenses. The trustees then participate in income as grantors, the same as those who contribute property.
The rule for sharing net income reads, in part, as follows:
“Each grantor shall share in the net income of the association (after making deductions for reserves and expenses) in the proportion which the value of his property or services received by the association shall bear to the total value of all property and services received by the association as shown by its books thirty days prior to payment.”
Charles H. Ward, a resident of Haskell county, Kansas, owned 1,840 acres of land in that county. An agent of the association appeared at his home and initiated negotiations which resulted in Ward executing to the association a deed, signed also by his wife,’ conveying to the association a one-half interest in all oil, gas and other minerals in and under the land. Ward also signed a contract in duplicate, containing a provision that the mineral interest in the land would be held and administered, and he would participate in net income, all in accordance with the declaration of trust. For participation purposes, the mineral interest was valued at $1,840.
The deed and copies of contract were delivered to the agent, who mailed them in Kansas to the association at its home office in Oklahoma. The contract provided that the association should have seven days after receipt of-’the documents to examine title to the land and then either refuse the conveyance and return all papers to Ward by registered mail, or accept the deed, sign the contract and send one copy to Ward by registered mail. The deed was accepted and a copy of the contract was signed and was sent from Oklahoma to Ward in Kansas within the time specified.
With the signed copy of contract, the association transmitted to Ward a duly executed participation-certificate, the material portion of which reads:
“No. 1100. “Interest $1,840.00
“Home Royalty Association op Oklahoma
“TULSA, OKLAHOMA
“This certifies that the Home Royalty Association of Oklahoma has received the sum of eighteen hundred and forty dollars in services and/or property for which this certificate of beneficial interest in the Home Royalty Association of Oklahoma is issued to Charles H. Ward and Emma Ward, which is fully paid and nonassessable, and that the owner hereof is entitled to share in the net income of the association in the proportion which said sum so received bears to the total value of all property and services received by the association as shown by its books thirty days prior to any payment and distribution of said net income, in accordance with articles 8 and 10, of the original declaration of trust, dated February 23, 1926, and recorded in book 582, at page 45, of the county clerk’s office of Tulsa county, Oklahoma.”
This participation certificate is referred to in the statement of agreed facts, on which the judgment rests, as a stock certificate— which it was not — -but the document itself is identified, and its terms are not in dispute.
The seventh stipulation of fact reads:
“7. That for the execution of said contract and said mineral conveyance the plaintiffs received no other consideration than the stock certificate above referred to.”
The size of the pool when Ward came in is not disclosed, but immediately before and immediately after the transaction with Ward, the association had similar transactions with a large number of other farmers living in Haskell and other counties in Kansas.
The association had not complied with the speculative securities statute of Kansas requiring that a permit be obtained to sell or dispose of speculative securities. (R. S. 17-1201 and following sections.) That the certificate was a speculative security within the meaning of the statute is not disputed. The result is, Ward conveyed to the association mineral in place, physically constituting part of his land in Kansas, for a participation certificate, received by him in Kansas, which was illegal in Kansas. (Wigington v. Mid-Continent Royalty Co., 130 Kan. 785, 288 Pac. 749.)
The Home Royalty Association conveyed the mineral in Ward’s land to the Home Royalty Association, Inc., a Delaware corporation, which was made a party defendant, and which, after disclaimers had been filed by other defendants, became sole defendant.
The only defense to the action presented in this appeal is that the transaction whereby the challenged deed became operative was interstate in character, application of the speculative securities act of this state would directly burden interstate commerce, and hence that the statute, if applied to the transaction, would be unconstitutional and void to that extent.
In different forms, schemes such as that embodied in the declaration of trust have been before this court in several cases. The court has declined to hold such schemes to be intrinsically fraudulent (Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073; Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510), but the legislature and the court have recognized that prosecution of such schemes is all too likely to be attended with overreaching and fraud.
In the Moos case just cited it was urged that because the promoters have absolute power to sell as if individual owners, they might make a sale to a confederate just before a “gusher” was brought in. In that event, all the grantors would get would be proportionate parts of income augmented by the. sale price, in case of distribution of profits. The sellers would get the enormous proceeds of production. In the Moos case the association was a corporation with an apparently sound capital structure. Some of the results of operation were frankly disclosed, and the court declined to assume fraud would be practiced. The court did not foresee the extent to which such schemes would be promoted in Kansas, and did not take into account the practical helplessness of a Kansas farmer if compelled to resort to litigation to correct abuses in corporate or trust management.
In this instance, two of the three trustees of the Home Royalty Association joined with two other residents of Tulsa and a resi dent of Oklahoma City, in forming the Home Royalty Association, Inc. The corporation’s principal place of business is at Tulsa. The corporation was formed on November 25, 1929, and on November 29 the Home Royalty Association conveyed the Ward mineral to the Home Royalty Association, Inc. The first purpose of the corporation, as stated in its charter, is to drill for, produce, refine, and in any other manner deal in and sell oil and gas and their products and by-products. For that purpose, the corporation had power to acquire land, royalties, leases and properties. It commenced business with a capital of $1,000. Among its earliest transactions was purchase from the trustees of the Ward mineral. The consideration which the Home Royalty Association received, forming proceeds distributable to grantors, unless needed to pay compensation to trustees and other expenses, is not disclosed, and the sale value of Ward’s mineral is not disclosed. The court does not now impute bad faith to the trustee-incorporators, but it is quite manifest the business, of buying Kansas mineral with participation certificates is a proper subject for legislative regulation.
Negotiation of purchases of mineral with participation certificates is likely to be accompanied with fraud. Apparently the grantee in Ward’s deed recognized this fact. The grantee’s agent exhibited to Ward the declaration of trust and a letter from the proposed grantee, a copy of which is not in the record, and so far as the record discloses, was not left with Ward. The agent took from Ward the contract which has been referred to, which contained the following provisions:
“Grantors acknowledge that a copy of said declaration of trust and a letter signed by grantee, which, together with this agreement, contain the only representations authorized by it, have been exhibited to them, by the agent of grantee, and' that no other representations have in any way induced them to execute said conveyance and this agreement.”
So we have this picture: The agent sat in Ward’s home indulging in airy nothings, if he spoke, or silently twiddling the charm on his watch chain, while farmer Ward and his wife mastered the voluminous and intricate provisions of the declaration of trust.
In the opinion in Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073, it was said:
“The inordinate birth rate of the 'sucker' is proverbial, and there is no birth-control measure adequate to inhibit the spawning of unscrupulous individuals who prey upon those who are easily duped. Hence we have a blue-sky law. That law, as it stood when the contract under consideration was made, made it unlawful to sell any speculative securities without first obtaining a permit. Securities include certificates of participation, or other instruments of like nature, whatever the na’me. Speculative securities include those the value of which materially depends on proposed or promised future promotion or development, rather than on present tangible assets or conditions. (R. S. 17-1201, subdiv. 4.)” (p. 431.)
The transaction with Ward was contrived to get half the mineral in his land for a piece of paper which the association could not use by way of consideration in Kansas, and this applies both to the contract and to the participation certificate, which had the appearance of a certificate of stock, but merely verified the essential portion of the contract.
Ward did not go from Haskell county, Kansas, to Tulsa, Okla., to buy a trust participation certificate. The association sent an agent to Haskell county to get a deed of mineral in Ward’s land. The agent got what he went after, a deed, retention of which by the grantee in truth and fact depended simply on good title. The agent also got from Ward a writing, nugatory except as an admission by Ward that he had not been defrauded. Ward got nothing. He was to be paid later, and the transaction was so framed by the association as to put Ward in the attitude of making an offer to buy, with an integral portion of his land, an interest in an Oklahoma common-law trust, which offer was to be transmitted to Oklahoma for acceptance. The so-called contract reads:
“Such conveyance and both duplicates of this agreement shall be mailed to grantee, at room 305, Tuloma Building, Tulsa, Okla. Grantee shall have seven (7) days time after receipt of same to examine title, and to either (a) reject the conveyance and return all papers to grantors, by registered mail; or (£>) accept and retain said conveyance, and execute this agreement, so that the same .may be a completed contract between the parties, and thereupon a duplicate hereof, so executed, shall be forwarded to grantors, at their above address, by registered mail.”
The result was, Ward was paid with paper, a signed contract, giving him right of participation in proceeds of a trust, if there were any, and a formal certificate to the same effect. These papers were sent from Tulsa across the line between the states of Kansas and Oklahoma to Ward in Haskell county. They were both illegal in Kansas. The question is: May the blue-sky law of this state, designed solely to prevent fraud, be defeated in this way?
Time and space forbid promulgation of a fresh treatise on burden on interstate commerce and exercise of police power by a state. It is sufficient to say this court regards the judgment of the district court, canceling the deed and quieting Ward’s title to the land involved, as correct, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus to compel the state auditor to register certain bonds presented to him by the board of education of the city of El Dorado, a city of the second class.
The board of education adopted a resolution containing a statement that the crowded condition of the high school and junior college makes it necessary that a new building be built, and that in order to erect such new building it is necessary to vote bonds, and that the estimated cost of the building is $360,762, and of furnishing it $30,738, or a total of $391,500; that the board of education had filed an application through the federal emergency administration of public works for a loan and grant amounting to 45 percent of the total cost or $176,175, of which $162,343 may be used for the same purpose for which bonds will be issued, namely, the erection of the new building, and resolving that the board of education finds it necessary to erect a new building and to furnish it at the estimated cost as above stated, and that in addition to the $162,343 to be obtained by the grant from the federal emergency administration of public works, it is necessary in order to erect such building to issue bonds in the sum of $198,500. It was further resolved that a copy of the resolution be certified to the mayor of the city of El Dorado and he be requested, in accordance with the statute, to issue a proclamation for holding an election to vote bonds to said amount, the proclamation to be published in the official city paper. The resolution contained a statement of the proposition to be submitted, viz.:
“Shall the Board of Education of the city of El Dorado issue bonds in the amount of one hundred ninety-eight thousand five hundred dollars ($198,500) for the purpose of erecting a school building?”
Pursuant thereto, the mayor called a special election, the notice stating the proposition to be submitted in the same language as quoted above; At the election the ballot used stated the proposition submitted in the same language. The election resulted in a vote of 872 for and 397 against the bonds. Thereafter, under proceedings about which there is no controversy, the board of education issued the bonds and they were thereafter presented for registration to the state auditor, who refused to register them, basing his refusal on the ground that the special question or proposition submitted to the electors did not clearly state the proposed project for which the bonds were to be issued and as a consequence the board is without power and authority to issue the bonds. Following the auditor’s refusal, the board of education filed the present action.
The writ of mandamus is a discretionary writ; it does not issue as a matter of right, but only in a clear case. (State, ex rel. Wells, v. Marston, 6 Kan. 524; Shellabarger v. Comm’rs of Jackson Co., 50 Kan. 138, 32 Pac. 129; City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309; Arends v. City of Kansas City, 57 Kan. 350, 46 Pac. 702; Kolster v. Gas Co., 106 Kan. 84, 186 Pac. 738; Railway Co. v. City of Liberal, 108 Kan. 836, 196 Pac. 1067; Construction Co. v. Mason, 109 Kan. 373, 198 Pac. 966; Drainage District v. Wyandotte County et al., 117 Kan. 369, 375, 232 Pac. 266, 268; State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149; State, ex rel., v. McCombs, 125 Kan. 92, 262 Pac. 579; State, ex rel., v. Miami County Comm’rs, 133 Kan. 325, 299 Pac. 965; State, ex rel., v. Ellis, 135 Kan. 702, 11 P. 2d 708; City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977.
The question presented here is whether the election proclamation and the ballot clearly stated the substance of the proposition.
It may be observed that the bonds in question here are issued by a board of education under a resolution which is not required to be published as is the ordinance of a city, and therefore the question whether a required publication, which likewise covered the details required to be stated in the notice, might be given the force of a public law, is not before us. (See Chanute v. Davis, 85 Kan. 188, 190, 116 Pac. 367; City of Perry v. Davis, 97 Kan. 369, 370,154 Pac. 1127.) In this case all the electorate may be informed and learn from legal publications is that the board of education asks authority to issue bonds in the sum of $198,500 for the purpose of erecting a school building. The board of education is proceeding under R. S. 72-1820, 72-1821, which authorize the issuance of bonds in the manner provided by law. R. S. 10-120 provides that notice of the election shall set forth the time and place of holding the election and the purpose for which the bonds are to be issued. The resolution asking the mayor to call the election clearly shows a proposed expenditure of a sum almost twice as great as the amount of bonds to be voted, and it shows. in detail how it is proposed to get the entire sum to be expended. It excludes any intention of erecting a school building for the amount of the proceeds of the bonds, and it is a fair inference from the resolution that no school building would be built if for any reason federal moneys were not obtained. The proposition as submitted showed only the board desired authority to issue $198,500 of bonds for the purpose of erecting a school building. The voter who saw the election proclamation, read it and noted the date, and thereafter went to the polls and voted had no means of knowing that it was proposed to erect a building which when erected and equipped would cost over $390,000. The voter reading the proclamation might have been willing the board spend $198,500 and he might have voted therefor, or he might have been indifferent and not have objected to an expenditure of that amount and not have taken the trouble to vote. Had he known that almost double that amount was to be expended, he might have reasoned that a $390,000 expenditure meant increased costs for maintenance, supervision and upkeep, a larger school and a more expensive establishment than he thought necessary or advisable, and have voted against such an issuance. Plaintiff argues that the excess cost is to be paid through a federal agency and that it will not cost the taxpayer nor increase his burdens, but that is not entirely true, or if it were, he was entitled to know it when he was legally advised there was to be an election.
Plaintiff argues that under Wright v. Board of Education, 106 Kan. 469, 188 Pac. 439, it is proper for the board to accept outside donations and expend them in the erection of a building. The facts in that case were that an election for bonds had been legally held. Thereafter it was discovered that owing to increased cost of labor and materials the bond proceeds, supplemented by a donation, were not sufficient to erect the building called for by the plans, even though its original estimated cost was within the bond issue. The real issue in the case was the right of the board of education to levy a certain two-mill tax.under a claimed pertinent statute. It was held the board was not prevented from accepting the contribution That case, however, does not support the plaintiff’s claim here, where the board of education, at the inception of the project, contemplated the use of federal moneys in addition to the proceeds of the bonds, to erect a building estimated to cost when furnished the sum of $391,500.
Our attention is directed to City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977. In that case the notice under which the bonds were issued was held to limit the total cost to the amount therein expressed.
A situation similar to that now before us was involved in Kansas Electric Power Co. v. City of Eureka, ante, p. 117, 45 P. 2d 877, where the city embarked on projects looking to the construction of an electric light and power plant. It made a certain contract with a manufacturing concern for the purchase of machinery and equipment, the cost to be paid out of the earnings of the plant in the future. This contract was contingent upon the outcome of an election to vote bonds in the sum of $65,000 to provide moneys to erect the necessary buildings and the poles, lines, transformers, etc., to distribute power. In the call for the election the proposition was thus submitted:
“Shall the city of Eureka, Kan., issue sixty-five thousand dollars in bonds, the same not to run longer than twenty (20) years, and to bear interest not to exceed five (5) percent per annum and to be issued to mature in installments of approximately equal amounts each year, for the purpose of constructing an electric light distributing system, power-plant building and appurtenances thereto, for the purpose of supplying said city and its inhabitants with electric current for lighting, power and other purposes?” (pp. 118, 119.)
It is to be observed that this proposition standing alone might be said to be clear and definite, but when considered with the entire plan it is apparent the electorate was only called upon to vote on a part thereof and was not informed as to the whole situation. In determining sufficiency of the proposition submitted it was said:
“The election law contemplates that when a special proposition is submitted to a popular vote the recitals on the ballot shall clearly state the substance of the question the electors are to vote upon; and where that proposition is so obscurely stated that the electors may be misled thereby, the election is vitiated; and tested by this rule, the proposition as stated on the ballot, set out in full in the opinion, was so equivocal in its text and so obviously apt to mislead, that the bond issue sought to be issued pursuant to a majority vote thereon should be enjoined.” (Syl. ¶ 2.)
In the opinion it was said:
“On the question whether the proposition which appeared on the ballot, and on which the electors of Eureka were asked to express their wishes at the ballot box was misleading, it seems that the point raised by plaintiffs is well taken. The fair import of the recitals on the ballot was that the $65,000 bond issue, which the voters were asked to sanction, would provide the requisite funds to procure the desired municipal light and power plant. It may be conceded that a critical analyst of language construction could make a specious argument that the recitals on the ballot only meant that the cost of a distributing system and the cost of a power-plant building were to be met out of the bond issue; and that the words ‘appurtenances thereto’ referred to appurtenances restricted to the distributing system or to the power-plant building, or to both, but did not mean appurtenances to the power plant. But the election was held to take the opinion and judgment of common men and women who are not trained in the niceties of language; and it is undeniable that the concluding language of the ballot, ‘for the purpose of supplying said city and its inhabitants with electric current for lighting, power and other purposes,’ not only would lead the voters to assume that was exactly what they were voting for, but would tend to obscure the idea that it was only a part of a municipal plant they would get for their bond issue.
“Our election laws contemplate that when a special proposition is submitted the ballot shall clearly state the substance of the proposition. If the proposition on the ballot is stated in equivocal terms the purpose of the election is vitiated in advance. (R. S. 25-605; R. S. 10-120; Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400; 44 C. J. 1138.)” (pp. 121, 122.)
The bonds in this case have not been registered, and whether or no.t there has been any arrangement made for their sale, they have not been sold and delivered and the proceeds received by the board of education. Therefore, we do not have before us a situation where by reason of delay in instituting action rights of third parties' may have intervened. As was said in State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618:
“Technical questions as to the validity of a bond issue should be raised early or waived — for the good of the municipality itself as well as for the protection of those who invest in the bonds. (Finnup v. School District, 94 Kan. 695, 146 Pac. 349; 148 Pac. 245.)” (p. 842.)
See, also: The State, ex rel., v. Comm’rs of Kiowa County, 39 Kan. 657, 19 Pac. 925; The State v. Wichita County, 62 Kan. 494, 64 Pac. 45; South Hutchinson v. Barnum, 63 Kan. 872, 66 Pac. 1035; Ritchie v. City of Wichita, 99 Kan. 663, 666, 163 Pac. 176, and Note 86 A. L. R. 1057, 1096.
In the case before us the question of the sufficiency of the notice has been timely raised. In our view, the notice of the election did not clearly and fully apprise the electors of what the board of education proposed to do in erecting the new building, and for that reason the notice of the election and the proposition as stated on the ballot were insufficient.
The application for the writ of mandamus is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a workman’s compensation case. Appellee moves to dismiss because the appeal was not taken within twenty days after the district court rendered its judgment.
In brief, the case was this: Plaintiff sustained an injury while engaged in road work in the employment of Sedgwick county. He instituted proceedings before the compensation commissioner and was awarded compensation on June 8, 1933.
On June 16 the county appealed from the award. On November 14, 1933, the cause was tried on the record by the district court. Judgment was announced sustaining the award, and counsel were directed to prepare a journal entry accordingly.
For some reason the journal entry was not prepared and filed until December 6, 1933. At that time it recited that the cause was heard and decided on December 6; but by order of court, on December 8, it was corrected to recite the truth.
On December 22, 1933, the county filed its notice of appeal from the judgment sustaining the award; and on January 12, 1935, the appellee filed in this court a motion to dismiss, relying on R. S. 1933 Supp. 44-556, which provides that in compensation cases an appeal to the supreme court from the district court must be taken and perfected “by the filing of a written notice of appeal with the clerk of the district court within twenty days after the final order of said district court.” Since the formal requirements of an appeal can be perfected in a workman’s compensation case in five minutes’ time, the giving of twenty days’ time is generous to the ultimate degree, and this court need have no hesitancy in enforcing it. Indeed we have no jurisdiction to entertain an appeal which is filed too late. (Ferguson v. Palmolive-Peet Co., 129 Kan. 516, 283 Pac. 508.)
Following the filing of appellee’s motion in this court to dismiss this appeal, counsel for the respondent county applied to the district court of Sedgwick county to recorrect its journal entry of judgment to have it recite that the judgment in this case was actually rendered on December 6. A transcript of the proceedings which were held on January 14, 1935, is submitted for our perusal. It confirms the record that the judgment was rendered on November 14, 1933. Indeed the statement and argument of counsel for respondent renders it beyond dispute that the judgment was ordered on November 14, and that he was proceeding on the assumption that the twenty days would not begin to run until the journal entry was filed and approved by counsel for the litigants or by the court. That assumption was altogether fallacious; and a patient perusal of this record makes it clear that appellee’s motion to dismiss must be sustained, and it is so ordered.
Dismissed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding to determine whether the defendant corporation is engaged in practicing optometry, and if so, to oust it from exercising any business as a corporation within the state. The state demurs to defendant’s answer and asks for judgment on the pleadings.
It is not necessary to state the allegations of the petition which was filed on July 19, 1935. The defendant corporation’s answer, filed September 5, 1935, admits that it is a Missouri corporation authorized to engage in the “retail jewelry business” in Kansas; that it has a place of busines at 646 Minnesota Ave., Kansas City, Kan., and that at the time of the filing of the petition it employed a qualified and registered optometrist who made examinations and tests of the human eye for the purpose of ascertaining the need for glasses and that said optometrist prepared lenses and fitted glasses for persons found to need the same; that at the time the petition was filed defendant corporation did advertise the services of an optometrist could be had free of charge at said store; that all fees paid by the patient for services rendered by its employee were paid to defendant, which did pay its employee a specified salary; that said employee optometrist was then employed at defendant’s pleasure; and that defendant did not have a certificate of registration from the board of examiners in optometry. Defendant denied it was doing any acts which amounted to a forfeiture of its charter or that it was abusing its powers or exercising powers not conferred upon it or that it was engaged in the practice of optometry. An allegation of the petition that defendant controlled all matters of policy in its alleged practice of optometry was denied, as was an allegation it owned the equipment used in said business. By way of further answer defendant alleged that on July 19, 1935, it voluntarily changed its method of doing business and rented to one Jacobs, a regularly licensed and practicing optometrist, space in its store and contracted with him to practice his profession in the rented space. The terms of the contract are alleged and a copy is attached to the answer. The defendant prays for judgment in its favor.
The contract is between the company and Jacobs, recites the company is engaged in the business of selling “optical goods and jewelry” at its Kansas City, Kan., store, is desirous of furnishing free optometrical examinations to prospective purchasers of glasses, desires to have a recognized licensed optometrist render professional services to its customers with the least possible inconvenience to them; that it has set aside a space in its store to be used by Jacobs exclusively, the space being described in a separate lease under which Jacobs agrees to pay $20 per month. The contractual clauses are to the following effect: The company agrees that in consideration of Jacobs’ maintaining the office and being in personal attendance during specified hours it will send to him for examination all customers for glasses coming to defendant’s store requiring or requesting through its optical department such examination and will pay him for each examination $2.75, settlement to be made on stated days. Jacobs agrees to purchase, maintain and keep complete up-to-date equipment, and to make examinations of all customers on the basis of fees stipulated. Jacobs is also to have the right to carry on his own practice at said location and to collect and retain his fees therefor. Jacobs also agrees the company may by advertisement refer to the fact that an arrangement has been made with him to make such examinations, but such advertisements must also state he is engaged in the general practice of optometry. Jacobs further agrees to attempt to sell to each customer whom his exami nation reveals may be in need of glasses, such glasses, frames and supplies as may be required to fill the wants of the customer. Jacobs is to do the necessary mechanical work of preparing and assembling glasses when not engaged in making examinations, and he is to receive a commission of ten percent of the gross amount of each sale, the commissions to be paid at stated intervals. Jacobs also agrees to purchase from the defendant all frames and lenses needed to supply his individual patients. The contract then recites:
“This contract may be terminated by either party hereto giving to the other a ten (10) days’ written notice of his or its intention so to do and the giving of such notice shall be deemed a termination of said contract, effective ten (10) days from the date said notice is given.”
The state contends that no corporation has authority or right to practice optometry; that the defendant corporation is practicing optometry, is abusing its power and exercising powers not conferred on it by law and is doing acts which amount to a surrender and forfeiture of its rights and privileges as a corporation within the state; while the defendant’s contention is.that a corporation may fit and sell glasses, frames, lenses and optical goods, provided it has connected with it, either as an employee or agent, a duly registered optometrist, whose name appears in all optical advertisements of the corporation.
We shall first inquire whether any corporation may engage in the practice of optometry, and particularly whether defendant corporation may do so, thereafter considering whether it has done so. Our statutes provide for the -examination and registration of optometrists. R. S. 65-1501 recites:
“The practice of optometry is defined as follows: The examination of the human eye without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms, or ocular exercises and their adaptation for the aid thereof.”
R. S. 65-1502 recites:
“That any person shall be deemed to be practicing optometry within the meaning of this act, who shall in any manner, except as in section 12 of this act; first, display any sign, circular, advertisement or device purporting or offering to in any manner examine eyes, test eyes, fit glasses, or setting himself or herself forth as an optometrist, optician, specialist, eyesight specialist, or refractionist, -with intent to induce people to patronize himself, herself or any other person; second, who shall make in any manner a test or examination of the eye or eyes of another to ascertain the refractive muscular or pathological condition thereof; third, who shall in any manner adapt lenses to the human eye for any purpose, either directly or indirectly.”
Section 12, referred to in the above quotation, is R. S. 65-1508 and is as follows:
"Nothing in this act shall be construed to prevent regular physicians and surgeons who are registered with the state medical board, as such, from testing eyes and fitting glasses.”
R. S. 65-1503 makes it unlawful for any person to practice optometry without obtaining a certificate of registration from the board of exanrners, and provides for filing the certificate in the county in which the holder practices. R. S. 65-1504 denounces certain acts, one of them (g) being as follows:
“To practice optometry in this state without having at the time of so doing a valid unrevolced certificate of registration issued by the optometry board of the state conspicuously displayed in his office and properly recorded as provided in this act;”
R. S. 65-1505 reads:
“Persons entitled to practice optometry in Kansas shall be, those persons heretofore lawfully registered, and every person of the full age of twenty-one years, who furnishes the board with satisfactory evidence of—
“(a) Age and moral character.
“(£>)' To possess a preliminary education equivalent to four years in an accredited high school.
“(c) Has attended and graduated from a recognized school of optometry requiring two thousand hours’ attendance, during two school years of eight months each.”
The remainder of the section pertains to the examination and registration of applicants. Other portions of the statutes need not now be referred to.
It would seem axiomatic that where the statute requires a practitioner of optometry to be a person (R. S. 65-1502) and that to be entitled to practice persons must have heretofore lawfully registered (as of June 9, 1923) and every person twenty-one years of age, of moral character, possessing specified educational qualifications, being a graduate of a recognized school of optometry of specified requirements, must have passed a requisite examination, that no corporation could be registered and thereby be entitled to practice.
At various times and in various places there have been no restrictions on the right to practice law, medicine and various arts of healing, but over a considerable length of time statutory restrictions have been placed on such privileges until now the practice of medicine, law and dentistry are regulated in every state, and in many states other professions of lesser importance have been likewise subjected to similar regulation.
In Winslow v. Board of Dental Examiners, 115 Kan. 450, 223 Pac. 308, plaintiff sought to enjoin the board from enforcing an order revoking his license to practice dentistry. It appears the Eastern Dental Company, a Missouri corporation, had obtained authority to do business in Kansas and maintained an office in Kansas City, Kan. On the door of its reception room its name appeared in large letters, and plaintiff’s name appeared below in small letters. Plaintiff was the company’s dental operator and was paid a salary and commission for his work. He made no contracts with patients. One of the stated causes for cancellation of plaintiff’s license was that he did not practice under his own name. The board demurred to plaintiff’s petition and appealed to this court from an order overruling the demurrer. In disposing of the appeal, this court said:
“Dentistry is a profession having to do with public health, and so is subject to regulation by the state. The purpose of regulation is to protect the public from ignorance, unskillfulness, unscrupulousness, deception, and fraud. To that end the state requires that the relation of the dental practitioner to his patients and patrons must be personal. ... In the instant case, plaintiff’s conduct is gravely reprehensible from the standpoint of morality. Corporations may not be graduated from dental colleges, they have neither learning nor skill, and they may not be examined, registered, nor licensed as dentists. Therefore the legislature does not permit the organization of a domestic corporation to practicé dentistry, and because of that fact, a foreign corporation may not be authorized to practice dentistry in this state. (R. S. 17-503.) As a matter of law the Eastern Dental Company has no authority to do any corporate business in this state except to manufacture, buy and sell dental supplies and equipment. The charter board lacked power to grant it permission to do any other kind of business in this state, and the general terms of the certificate issued to the company must be interpreted accordingly. In any event, the company is practicing dentistry in this state under subterfuge, and plaintiff is collaborating with it in a scheme to circumvent the law and the public policy of the state.” (pp. 451, 452.)
In the recent case of Depew v. Wichita Association of Credit Men, 142 Kan. 403, 49 P. 2d 1041, the principal question was whether a corporation was engaged in the practice of law. It is not here important to detail the acts complained of.' This court found the acts constituted practice of law, were not within the authorized powers of the corporation under its charter, and would not be effective for the corporation if they were included in the charter, and ouster was ordered as to certain practices.
In In re Coöperative Law Co., 198 N. Y. 479, 92 N. E. 15, 32 L. R. A., n. s., 55, the right of a corporation to practice law was under con-, sideration, and it was held:
“A corporation for the practice of law is not authorized by a statute permitting the organization of a corporation for any lawful business, since the practice of the law is not a lawful business except for members of the bar, who have complied with all the conditions required by statute and the rules of the courts; and a corporation cannot perform the conditions.” (L. R. A Headnote 1.) (See, also, note in last citation.) '
In In re Otterness, 181 Minn. 254, 232 N. W. 318, it was held:
“A corporation cannot itself practice law, nor can it lawfully do so by hiring an attorney to conduct a general law practice for others for pay, where the fees earned are to be and are received as income and profit by the corporation.” (Syl. U 3.)
It is not deemed advisable to cite other cases of like nature dealing with the practice of law by a corporation.
In State v. Kindy Optical Co., 216 Ia. 1157, 248 N. W. 332, decided in 1933, it was shown the company was a maker and seller of optical goods. Jensen, a licensed optometrist, was an employee of the company, which operated an optical department in a store in Des Moines. The company entered into a lease with Jensen in which it agreed to pay Jensen, and at the same time it made a contract with Jensen, subject to cancellation on seven days’ notice, to employ him, and Jensen agreed to remain in its employ for two years. It was provided Jensen should be manager, subject to the direction and control of the company’s officers. All moneys from the business belonged to the company, which agreed to pay Jensen a stipulated salary and commissions. The state brought action to enjoin, and the defendant contended it was not practicing optometry; that Jensen was its lessee and was not under its control in the practice of optometry; and that the company did not profess to be an optometrist or to assume the duties incident to said profession. It did not appear that defendant’s name was used, the business being advertised in the name of the department store, but the advertisements were prepared and paid for by the company. The company owned the equipment. In its opinion the court said:
“The subtle attempt on the part of the defendant to evade the provisions of the Iowa statutes in reference to the practice of optometry, by employing a licensed optometrist to conduct its business, and by the execution of the alleged lease with its employee, is too patent to appeal strongly to a court of equity. Younker Bros, probably should have been made a party defendant in this action, as that institution had no more right to hold itself out to the public as being engaged in the practice of optometry than did the defendant.
“The execution of the so-called .lease between the defendant and its em ployee Jensen, in connection with the contract of employment between the same parties, was also a sham and fraud and a too evident plan, purpose, and intent to eyade the provisions of the statutes herein referred to. It is true that the name of the defendant did not appear publicly in connection with the business, but the record shows without controversy that the business was in fact owned and operated by the defendant company. The defendant company controlled the conduct and policies of the business. Jensen was simply its employee on a stipulated salary. The so-called lease between Jensen and the defendant, under the terms of which the defendant, as lessor, was to pay Jensen, as lessee, $281 per month, was only a clever attempt to change the character of Jensen from an employee to a lessee, and does not change the fact that Jensen was an employee of the defendant company.
“The defendant company could not conduct a business without a license. It could not obtain a license, and we can conceive of no reason why it should be permitted to continue to conduct a business under the license of an optometrist. We hold, therefore, that the defendant company was and is engaged in the practice of optometry and that it is so engaged in violation of the statutes of this state.” (p. 1162.) '
Eisensmith v. Buhl Optical Co., (W. Va.) 178 S. E. 695, decided in 1934, dealt with a situation where the company maintained an optical department in a department store owned by another corporation. The optometrist in charge was paid a salary and commission by the optical company, but was subject to dismissal on request of the other company. The two companies had an arrangement whereby they divided the gross receipts. Plaintiffs, who were optometrists, sought to enjoin the alleged unlawful practice of optometry, and from an adverse decision both companies appealed. The supreme court, in its opinion, said:
“The statute, recognizing optometry as a profession, provides that it shall be unlawful for any person to practice optometry in this state who has not been licensed and registered as required by the act; . . .
“One licensed to practice optometry is forbidden to advertise, practice, or attempt to practice ‘under a name other than’ his own. This provision of the statute (Code 1931, 30-8-8) is certainly antagonistic to the view that a corporation may practice optometry through a licensed optometrist.
“It is unlawful, under the statute, to permit any person in one’s employ, supervision, or control, not licensed as such, to practice optometry. This provision is emphasized by defendants as indicating that any unlicensed person, firm, or corporation may practice optometry by employing a licensed optometrist. The regulation was evidently directed against the practice of licensed optometrists employing students of optometry. The implication suggested cannot arise in the face of the express provision forbidding a registered optometrist from 'advertising, practicing, or attempting to practice, under a name other than’ his own. One of the evident purposes of the statute was to prevent the commercialization of the profession.” (p. 696.)
and held that the injunction granted by the trial court should be affirmed.
In Stern v. Flynn, 278 N. Y. Supp. 598, 599, 154 Misc. 609, plaintiff sought to compel the secretary of state to accept for filing a proposed certificate of incorporation, a part of the proposed purpose being “to do, render and perform optometrical and oculists’ work and services and to engage in the practice of optometry, provided it employs only licensed optometrists. to do the work.” The court, after citing authorities holding that a corporation can neither practice law nor hire lawyers to carry on the business of practicing law for it any more than it can practice medicine or dentistry by hiring doctors or dentists to act for it, said:
“If it is repugnant to the policy of the state to have the profession of medicine, of dentistry, and of the law practiced by a corporation, it would seem to be quite as repugnant to have the profession of optometry practiced by a corporation. The rule laid down of Matter of Cooperative Law Co., supra, is as applicable to the practice of optometry as to the practice of the law. The practice of optometry may be carried on only by those persons who have complied with the statute and have met the required qualifications as to moral character and educational fitness. It necessarily follows that the right to practice optometry is a personal one and confined to real persons and not to legal entities. A corporation as such cannot meet the requirements of the statute; it cannot have completed a course in a high school or in a university where optometry is taught, nor present the necessary certificate of character. It cannot pass a state board examination or present a degree earned in a university. . . . The relationship between an optometrist and his patient is of a personal and confidential nature, not unlike the relationship between an attorney and client, or physician and patient. The examination of an optometrist may not only indicate an eye condition, but may disclose other ailments and bodily afflictions of a more or less personal nature. True, the optometrist may not lawfully treat his patient for these ailments, but his patient is entitled to the assurance that the knowledge obtained in such examination shall be held inviolate and not become a record in the files of a business corporation. The practice of law by a corporation in this state is prohibited by statute, but quite apart from the statute, it is and was before the enactment of the statute against the public policy of this state. Matter of Pace, 170 App. Div. 818, 156 N. Y. S. 641.” (pp. 601-603.)
In Jaeckle v. L. Bamberger & Co., (N. J. Ch.) 181 Atl. 181, decided October 17, 1935, the defendant, a corporation, owned and operated a department store, and in the store an optical and optometrical department. In this department it employed registered optometrists to examine the eyes of customers and prescribe glasses, the fees being paid to the company, which advertised the department, setting forth in the advertisement the names of the optom etrists employed by it. The New Jersey statute defines the practice of optometry that any person shall be deemed to be practicing optometry who so advertises himself, or—
“Who shall employ any means for the measurement of the powers of vision or the adaptation of lenses or prisms for the aid thereof, practice, offer or attempt to practice optometry as herein defined, either on his own behalf or as an employee or student of another, whether under the personal supervision of his employer or preceptor or not,” etc. (p. 182.)
In disposing of the appeal, the court said:
“If the maxim be applied, ‘Whoever acts through an agent is considered as acting himself,’ it must be held that defendant is practicing optometry, but I think the maxim cannot be applied to the statute. The statutory scheme protects the public by requiring those who actually examine eyes to be properly qualified. It is immaterial whether they practice their profession on their own behalf or whether they are employed by other optometrists, or by persons not skilled in the art, or by corporations. Section 1 expressly includes in its scope a person who practices ‘either on his own behalf or as an employee’ of another, but not one who, through the agency of an employee, measures the powers of vision. Section 22 imposes a penalty on an individual or a company who employs to practice optometry a person not authorized under the statute. Clearly, a company which employs for this purpose a person who is authorized to practice optometry is not subject to the penalty. It follows, in my opinion, that the legislature did not intend to prohibit a company from employing registered optometrists to practice their profession.” (p. 182.)
It is to be noted that the question of the power of a corporation as such to practice optometry is not discussed.
Another very recent case is Rowe v. May Co., decided by the Ohio court of appeals on June 14, 1935, and not as yet reported. The holding seems to have been that under the statute of Ohio optometry and the practice thereof is made a profession, and that the defendant corporation, operating a department store, was without right or power to directly practice optometry or to indirectly practice it through the employment of registered optometrists.
Defendant attempts by analogy to argue that because corporations operate drug stores in which registered pharmacists are employed, corporations may practice optometry by employing registered optometrists to do the actual work of testing eyes. It is not necessary here to determine whether a corporation may operate a drug store. Recognizing that there may be substantial differences in many cases, our corporation act does permit chartering of corporations for the transaction of a chemical business (R. S. 1933 Supp. 17-202, subdivisions 26 and 46), while R. S. 1933 Supp. 65-636 makes it unlawful for any person not legally licensed or a person, firm or corporation who does not have in his or its continuous employ at each place of business a duly registered pharmacist, to take, use or exhibit the title “drug store,” “pharmacy” or “apothecary,” or a title of like import, and R. S. 65-1601 provides it shall be unlawful for any person to conduct a pharmacy, or retail, dispense or compound medicines or poisons unless such person be a registered pharmacist, or shall employ a registered pharmacist to conduct the business. It would appear the matter was controlled by statute, and the analogy is not complete nor at all conclusive. Our attention is likewise directed to R. S. 65-1510 requiring that the name of the registered optometrist connected with or in the employ of a firm or individuals who are not so registered must appear in all optical advertisements, and it is argued that this authorizes the corporation to practice optometry through the employment of a registered optometrist. That is not what the statute says or means. There is a material difference between the practice of optometry as defined in the statute and the simple sale of optical goods. To whatever extent the above statute may be construed, it does not confer on a corporation the right to practice optometry.
It is our judgment that under our statutes, the legislature, having in mind the protection of eyesight is just as important as the protection of property rights and advice thereon, as the protection of the teeth, as the protection against improper and unauthorized methods of healing, by the enactment of the statutes with reference to optometry recognized it as a profession and accordingly regulated it, and an examination of those statutory regulations conclusively shows that the practice of the profession is limited to individuals, and that corporations cannot be chartered to engage therein. Not only is this holding a necessary consequence of our statutes but it is in accord with the weight of authority.
It has been observed that defendant is authorized to engage in business in this state, to conduct “a retail jewelry business.” We need not now determine whether the sale of optical goods may come within the limits of that purpose. If it be assumed that it does, the authority certainly did not contemplate the practice of optometry.
We now inquire whether the defendant has been engaged in the unlawful practice of optometry. It is conceded the corporation advertised the services of an optometrist could be had free at its place of business. Summarized, the statute states any person shall be deemed a practitioner who shall display any advertisement offering in any manner to examine eyes, test eyes, or fit glasses, with intent to induce people to patronize himself, herself or any other person (R. S. 65-1502). Defendant’s admission convicts it of violating the above provision. It argues, however, that it changed its method of doing business on July 19, 1935, and that its employee is now a licensee in control of the business and that it has no control over it. A quite similar arrangement was denounced in State v. Kindy Optical Co., supra, and under Eisensmith v. Buhl Optical Co., supra, and our own case of Winslow v. Board of Dental Examiners, it would seem a similar conclusion should be reached here. An examination of the contract between'the defendant corporation and its employee Jacobs shows the lack of Jacobs’ control, for the company can dispense with his services on ten days’ notice whenever it concludes he is not producing enough sales of glasses to those referred to him for tests of the eyes. It likewise' shows that Jacobs has nothing to do with the prices fixed for sales of glasses, and for his own services to the customer he is paid by the company and not by the customer. There is an entire lack of the relation that ordinarily exists between a professional man and his client. The fact the contract provides that Jacobs must supply and own his examining equipment and may have patients of his own, does not cure the faults above noted; the company rather offset any advantage to Jacobs thereunder by requiring him to buy supplies of it, and it requires no statement to the contrary in the contract to inform us that it is at prices fixed by the company.
Stronger language might be used to characterize them, but as we view them the contract of employment and the lease in connection with it are devices to avoid the provisions of our statutes with reference to practicing optometry, and cannot avail the defendant.
The state asks that the defendant be ousted, excluded, restrained and enjoined from exercising within this state any business as a corporation. We have concluded that such a complete ouster should not be ordered at this time, but that the defendant should be ousted as a corporation exercising any claimed rights or powers to practice optometry, and that it be enjoined from the doing of any act or acts, singly or together, which constitute the practice of optometry within the state as defined and regulated by statute, failing which, a further order may be made, jurisdiction being retained for that purpose, and it is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to quiet title to certain real property in the city of Salina. The trial court rendered judgment for plaintiff. Defendants have appealed. The question presented is the construction of a will.
The facts are not controverted and may be stated as follows: Carrie Burton, widow of J. R. Burton, while residing at Salina, but temporarily sojourning in California, died May 31, 1931, leaving a will. This provided: First, that her executor pay all her just debts and funeral expenses.
“Second. After the payment of such funeral expenses and debts, I give, devise and bequeath the income of my property located in Salina (describing the property here in controversy) to (Mrs.) Louella Rudolph Hollenbeck, at present located in Fruitland, Idaho, during her lifetime, then same to be held in trust by executor and used for benefit of needy poor in and around Abilene, Dickinson county, Kansas.”
By a later clause the testatrix nominated P. H. Halleck, of Abilene, to be executor of her will.
The will was filed for probate in the probate court of Saline county, and duly admitted to probate July 23, 1931. P. H. Halleck was appointed and qualified as executor and proceeded to administer upon the estate. He made his final report as executor, the estate as such was closed, and he was discharged as executor January 9, 1933. No action was brought by anyone to set aside the will.
At the time of her death Carrie Burton was the owner of the real property in controversy, on which was a business building leased for a term of fifteen years from March 1, 1922, to a corporation which had agreed to pay taxes and insurance and to keep up repairs on the property, and in addition thereto to pay a stipulated sum, monthly, as rent, and which had the option to purchase the property for $30,-000 at any time within the term of the lease. The corporation now occupies the property under this lease. Since sometime prior to the filing of this action, on request of plaintiff and at the direction of P. H. Halleck, the tenant has been paying the monthly rental directly to plaintiff.
Carrie Burton left no surviving husband, child or children, natural or adopted, but left certain named persons, including plaintiff, cousins of deceased, as her only heirs at law as found and determined by the probate court. When a small child plaintiff went to live with and made her home with the Burtons. The Burton home was in Abilene for many years. Prior to the bringing of this action plaintiff obtained from all the other heirs at law deeds running to her for their interest, if any, in the real property in controversy.
It was agreed that Abilene is a city of the second class and has a population of about 6,000; that it is the county seat and located near the center of Dickinson county, which has a population of about 26,000; that needy poor exist in the city, and in the county outside the city, which the city is or may be liable to care 'for and support, as authorized by statute; that Carrie Burton resided for many years in the city of Abilene; that there are a number of other towns in Dickinson county, those closest to Abilene being (distances and directions, approximate) Solomon, nine miles west; Chapman, twelve miles east; Tolland, nine miles north; Enterprise, five miles east; Detroit, six miles east; Holland, fourteen miles south. These conditions existed substantially the same at the time the will was made and at the time of the trial.
Turning now to the legal questions. We first note this is not a contest of the will of Carrie Burton. Plaintiff claims to be entitled to the income from the property in controversy during her lifetime under and by virtue of the “second” clause of the will. Defendants concede her right to such income for that time. No party to this action is seeking to set the will aside.
The real question presented is the construction of the phrase in the “second” clause of the will, “. . . then same to be held in trust by executor and used for benefit of needy poor in and around Abilene, Dickinson county, Kansas.” Does this create a valid trust by which the testatrix disposed of the remainder of her estate in the property after having given income to plaintiff for her life? Shortly stated, plaintiff contends the phrase is ineffectual to create such a trust; that the result is the same as though the phrase had been omitted from the will; that Carrie Burton died intestate with respect to such remainder; hence, that it passed by descent to her heirs at law; that plaintiff is one of such heirs at law, and that prior to bringing this action she purchased the interest of the other of such heirs in the property in question; hence, that she is the owner of all rights in and title to the property. Shortly stated, defendants contend the phrase above quoted created a valid trust; that it vested title to the property in question in the trustee, subject to plaintiff’s right to the income thereof for her life, and that after plaintiff’s death the same should be used for the benefit of the needy poor in and around Abilene.
By giving plaintiff the income of the property during her life the testatrix vested in her a life estate. The fact that the probate court, at the time it approved the executor’s final account, found who were the heirs at law of Carrie Burton, and also found plaintiff had a life estate in the property by virtue of the “second” clause of the will, but made no finding of a trust with respect to the remainder, does not preclude either the district court, or this, court, from construing the will and determining whether or not such a trust was created. (Knox v. Knox, 87 Kan. 381, 124 Pac. 409; First Colored Baptist Church v. Caldwell, 138 Kan. 581, 27 P. 2d 237.) Since the case comes to this court on the pleading and written stipulation of the facts, this court may examine the record and determine the legal questions presented with the same freedom the district court could do so. (Palmer v. Johnson, 132 Kan. 161, 164, 294 Pac. 874.) A trust created for the use or benefit of needy poor is for a charitable purpose. (11 C. J. 315.) Ordinarily a testator is presumed to have intended to dispose of all his property by his will, unless something therein indicates a contrary intention. (69 C. J. 91; Jameson v. Best, 124 Kan. 633, 635, 261 Pac. 582.) A testator may intend to make a certain disposition of his property, or some part of it, but fail to so word his will as to accomplish his purpose; as when it is so worded as to violate some statute or well-settled rule of law, or when the language used is so uncertain in its meaning that it cannot be applied intelligently, or is too indefinite to carry out the purposes the testator obviously had in mind. These statements are made, not because they are seriously controverted here, but to segregate more clearly the real questions argued.
The intention of a testator with respect to the disposition of his property must be determined from the language used in his will, aided at times by evidence relating to the situation of the property and of the parties. The language used in this will makes it clear that the testatrix intended Mrs. Hollenbeck should have the income of the property in question during her life, and then it was to be held in trust and “used for the benefit of needy poor in and around Abilene.” It is stipulated the testatrix had resided in Abilene for many years, and that needy poor exist in that locality. We may presume the testatrix knew of that fact and desired her property ultimately to be used for the benefit of such needy poor. Plaintiff does not contend that the intention of the testatrix was other than as just stated, but does contend the language used by the testatrix in her will, in an effort to create a trust for that purpose, is so indefinite and uncertain in its meaning that the trust cannot be carried out; hence, that it necessarily fails.
Plaintiff argues: How is this property to be “used”? It is a business property, not situated in Abilene, but in Salina, in another county. Is its occupancy to be turned over to the needy poor in and around Abilene? Is it to be rented and the proceeds used for their benefit, or is it to be sold and the proceeds, or the income therefrom, used for their benefit? Naturally these are questions which will arise in the administration of the trust and will rest with the sound discretion of the executor, with the aid of a court of chancery in the event of doubt. We are reminded the stipulation shows the present lessee has an unexpired option to purchase the property at a stated sum; hence, questions with respect to the use of the property itself may never arise. We do not regard uncertainties in this respect to be of such a character as to invalidate the trust.
Plaintiff’s principal contention, however, is that in the use of the words “in and around Abilene,” the territory in which there may be needy poor, for the benefit of whom the property is to be used, is too indefinite. It is argued the words include all within the corporate limits of the city of Abilene, and some territory in addition to that, with no language used to express any limitation on such additional territory; the word used is “around” Abilene; how much territory is around Abilene, and where are its boundaries, if indeed, it has any? If this idea be carried far enough to make the provision for the benefit of the needy poor generally, the trust would not be void for that reason. In 11 C. J. 340 it is said:
“Indefiniteness of beneficiaries is one of the characteristics of a public charity or charitable use. Accordingly, uncertainty and indefiniteness as to the ultimate individual recipients are not by any means fatal to the validity of a charitable gift which in other respects is sufficient. Indeed, uncertainty and indefiniteness as to the individuals and numbers to be benefited are necessary and essential elements of a valid charitable public trust.”
A charitable trust is not invalid because the scope of its benefactions is world-wide. In First Camden, &c., Trust Co. v. Collins, 110 N. J. Eq. 623, 160 Atl. 848, it was held:
“There is no rule of public policy in this state requiring a charitable trust to be held invalid because the scope of its benefaction is world-wide instead of limited to citizens of this state.”
In Kenney Presbyterian Home v. State, 174 Wash. 19; 24 P. 2d 403, a testamentary gift in trust for a home for infirm and aged people unable adequately to provide for themselves, was held not void for uncertainty.
In Madden’s Petition, 86 N. H. 583, 172 Atl. 435, a trust “for benevolent uses, among poor, suffering humanity, where it will do the most good in the world,” was sustained.
In Palmer v. Oiler, Exrx., 102 Ohio St. 271, 131 N. E. 362, a devise in trust “to be devoted to the needy and poor women,” was sustained.
In Lord v. Miller, 277 Mass. 276, 178 N. E. 649, a will giving property to trustee for support or assistance of persons appearing to him to especially need assistance, was held to be not invalid because of uncertainty of beneficiaries.
Under these authorities had the testatrix in the will in question omitted the words “in and around Abilene, Dickinson county, Kansas,” the will would not have been invalid because of indefiniteness of beneficiaries.
In 5 R. C. L. 346 it is said:
“Restrictions either as to locality or numbers included in a class of beneficiaries are not necessary to the validity of a charitable bequest. A charitable gift is good where there is no limit of space expressed, and it is none the less so when the benefit of the gift is confined in terms, as it must be in fact, to a particular locality. It is equally good when the limit, although real, is not geometrically exact. Hence, so long as the class for whose benefit the trust is created is definite the geographical limitations of the operation of the charity are unimportant.”
The beneficiaries of a charitable trust may be localized by the donor to those of a certain city (Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768), or county (Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586), but in so localizing the beneficiaries of his bounty we find no rule of law which requires the boundaries of the locality to be so fixed as to coincide with those of a city, or a state, or of any governmental subdivision thereof. If the locality be fixed with reasonable certainty no reason appears why it should not be held sufficient.
Here it is clear the testatrix did not mean such a wide scope as the needy poor everywhere, or in the state, or even in the county. She had in mind benefit for the needy poor within the locality of her old home, and to express that she used the words “in and around Abilene.” By this she meant to designate a location within and about the city. The language must be construed in accord with its context and approved usage. (R. S. 77-201, clause 2.) We think no one would have serious difficulty in understanding the words used to mean the needy poor within the city of Abilene and within the neighborhood or vicinity thereof who ordinarily come to the city for the purpose of transacting their business, or for religious, educational, or social purposes. It is true, there might be some uncertainty as to whether an individual would be situated within this area, but perhaps there would be no more difficulty in deciding that than in determining whether one within the city was within the class of needy poor. Impliedly and of necessity some discretion is vested in the trustee in determining those matters.
In a few of the states, New York among them, the principles as above enunciated are not recognized, or are recognized in part only, or there are specific statutes pertaining to the matter, or some phase of it. From those states decisions may be found not in harmony with what has been hereinbefore said. These are in the minority, however. The general rules, recognized in this state, are in harmony with what is written. Courts look with favor upon trusts for charitable uses and construe language creating such trusts most favorable to their validity. Here the testatrix’s purpose was that her property ultimately would be used for the benefit of the needy poor of the community in which she had lived for many years. She did not place this with the city or county officials to be administered, nor did she give it to any organization established, or to be established, which might have other or additional purposes. She vested it in a trustee to be administered by him for the specific charitable purposes she had in mind. We see no reason to hold such a worthy disposition of property to be invalid.
It necessarily follows the judgment of the court below must be reversed, with directions to enter judgment for defendants.' It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to quiet title to a tract of farm land. The trial court made findings of fact and rendered judgment for plaintiff. Defendants have appealed and contend the findings of fact do not support the judgment. The evidence is not abstracted.
We shall speak of the parties as they appeared in the trial court. The plaintiff, Leona Brown, is the daughter of the defendant, William Brooks, and the sister of the defendant, Clarence Brooks. The material findings of fact may be summarized as follows; The defendant, William Brooks, a widower, owned and resided upon the real property in question. One day in September, 1927, he went to the home of plaintiff and asked her to accompany him to town, and stated that he wanted to deed to her the land in question, that he had helped his other children and wanted to help her. Together they went to an attorney’s office in town, where William Brooks asked the attorney to prepare a general warranty deed conveying the land to plaintiff. This was done. William Brooks executed and acknowledged the deed and asked the attorney to have it placed of record. This was done and the deed returned to William Brooks. Thereafter he took the deed and the abstract of title to the land to plaintiff and delivered both instruments to her personally. There was no agreement in writing, or in parol, to the effect that plaintiff should ever at any time reconvey the land to defendant William Brooks. After delivering the deed and abstract to plaintiff, the defendant, William Brooks, told her that he had some litigation pending — a fact which plaintiff knew — and that he was hard run for money, and stated that he would like to have the privilege of renting the land in question to his son, Clarence Brooks, and receiving and using for himself the rents from the land. Plaintiff told him that she would give him that right. Thereafter the defendant William Brooks rented'the land to Clarence Brooks, who moved upon the premises and occupied and farmed it as a tenant, paying the rent to the defendant William Brooks, who paid the taxes on the land and kept the remainder for his own use. Soon after conveying the land to plaintiff William Brooks went to live with plaintiff, and made his home with her for about two years and nine months, when he became dissatisfied and left and asked plaintiff to reeonvey the land to him, which she refused to do. Thereafter William Brooks brought an action against plaintiff to cancel the deed above mentioned and to quiet the title to the land in William Brooks. After all the testimony had been introduced in that case William Brooks moved the court to dismiss that action without prejudice, and that was done. Thereafter the plaintiff in this action, Leona Brown, brought an action against the defendant Clarence Brooks for the forcible detainer of the property. Clarence Brooks filed a pleading in that action to the effect that the title to the real property was in question, whereupon Leona Brown dismissed that action. Thereafter Leona Brown brought this action, making both her father, William Brooks, and her brother, Clarence Brooks, parties defendant. The court specifically found that Clarence Brooks had no interest in the land except his occupancy of it and right to farm it as a tenant.
The petition, drawn under R. S. 60-1801, alleged that plaintiff was the owner and in possession of the real property, describing it, that defendants claim an interest therein adverse to plaintiff, the exact nature of which claim of defendants is not known to plaintiff, but whatever it may be is subordinate and inferior to the title of plaintiff, and asked that the pretended interest of defendants be determined and held to be invalid. The answer was a general denial, except that defendants admitted they claimed an interest in the real property.
The trial court’s conclusions of law were to the effect: (1) That the deed from the defendant William Brooks to the plaintiff is valid and binding and conveys full title to the land to plaintiff; (2) that plaintiff is the owner of the land and in possession of the same, and that by the arrangement between her and the defendant William Brooks and by him with Clarence Brooks, he, Clarence Brooks, became plaintiff’s tenant, and that she was in possession of the land through her tenant.
The defendants, as appellants in this court, contend that the findings made by the trial court do not justify the legal conclusion that plaintiff was in possession of the property by a tenant. We think the facts disclose clearly that William Brooks was a tenant at will of the plaintiff, and that Clarence Brooks was nothing more than a subtenant. In 35 C. J. 1122 it is said:
“A permissive occupation of real estate, where no rent is reserved or paid a.nd no time is agreed upon to limit the accupation, is a tenancy at will.”
Tenancies at will are recognized by our statute (R. S. 67-501-67-509). There -was no finding made by the trial court to the effect that either of the defendants had any interest in the title to the property. Both were tenants.
We find no error in the conclusion of the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, C. J.:
The action was one of ejectment. Plaintiff recovered, and defendant appeals.
Plaintiff is the widow of Robert W. Haggard, Sr., deceased. In his lifetime Haggard was undisputed owner of the lot in controversy. Before his death he deeded the lot to plaintiff. Plaintiff asserted ownership and right to possession. Defendant is the widow of Victor Schellner, deceased. Defendant asserted she had an interest in the lot, and was entitled to remain in possession, by virtue of an oral contract between Haggard and Schellner.
The trial was by the court, which returned findings of fact covering the issues. The conclusion of law was, plaintiff is owner of the lot and entitled to immediate possession.
The findings of fact and conclusions of law were returned and judgment was rendered for plaintiff on November 7, 1934. On that day a motion for new trial was filed, based on two grounds; first, that the judgment was contrary to the evidence, and second, erroneous rulings and decision of the district court. This motion for new trial was denied on December 4, 1934.
On January 8, 1935, defendant filed another motion for a new trial, on the- ground of newly discovered evidence. The newly discovered evidence consisted of a letter-from Haggard to Schellner. The letter was incorporated in an affidavit made in support of the motion. This motion was denied on January 8,1935.
Defendant appealed from the findings and judgment of November 7, 1934, and from the order of January 8, 1935, denying the motion for a new trial that day filed. The specifications of error are as follows:
“1. The decision of the court is contrary to the evidence.
“2. The court erred in excluding competent and material evidence.
“3. The court erred in overruling motions for new trial.”
The letter incorporated in the affidavit filed in support of the motion for new trial of January 8, 1935, did not tend to support defendant’s contentions, and did not militate against plaintiff’s contentions. If the motion were considered by the district court on its merits it was properly denied. If the motion were denied because not filed in time it was properly denied.
The ruling on the motion for new trial filed on November 7, and denied on December 4, .1934, is not before this court, because no appeal was taken from that ruling. If that motion were before this court for consideration the court would be obliged to say it was properly denied, so far as the second specification of, error is concerned. The excluded evidence was either properly excluded or was not brought before the court at the hearing on the motion for new trial.
If the motion for new trial of November 7 were before the court for consideration the court would be obliged to say the first specification of error presents nothing but a controverted question of fact, and the findings of fact were abundantly sustained by the evidence.
The result of the foregoing is, the appeal is without substantial merit, and it is dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages on account of an automobile collision and to set aside a release. Judgment was for defendant. Plaintiff appeals.
The action was begun by alleging the injury of plaintiff in an automobile collision caused by the negligence of defendant on October 25, 1932. The petition further alleged that on January 9, 1933, an agent of defendant and claim adjuster for the Travelers Insurance Company which carried the insurance on defendant’s car, obtained a release from plaintiff for $600, and that plaintiff was induced to sign the release by false and fraudulent representations made by the agent. The prayer of the petition was to set aside the release and for whatever relief might be just and proper.
The plaintiff was granted permission to amend the petition by inserting the words “first cause of action” after the words “alleges and says” in the first part of the petition and by inserting the words “second cause of action” at a later point in the petition. The petition was also amended by inserting the words “damages for $15,037” in the prayer. As thus amended, the petition stated two causes of action; one to set aside the release on the ground that it was obtained by fraud, and the other for damages growing out of the collision.
During the course of the trial plaintiff amended her petition so as to state specifically just what false and fraudulent representa tions the agent of the defendant and the insurance company made. This amendment was as follows:
“That the said Carl E. Webb was broke and nothing could be secured against him; that said Carl E. Webb had not paid the premium on his automobile insurance policy and the Traveler’s Insurance Company were not liable to pay any loss on it; also that Dr. E. S. Edgerton told him, Staplin, that there was only a slight concussion of the brain, and they only paid S850 in such cases; also that said Staplin either did or pretended to call the plaintiff’s then attending physician, Dr. W. G. Rinehart, and after he had either talked to said Doctor Rinehart or pn-etended to, the said Staplin stated to this plaintiff that Doctor Rinehart had told him over the telephone that this plaintiff had made a speedy recovery, that she was all right now, and that there would be no after effects.” (Italics ours.)
The answer was a general denial, a plea of contributory negligence on the part of plaintiff and an admission that plaintiff had signed a release discharging and releasing defendant from any liability arising out of the collision.
Trial was before a jury. The plaintiff produced evidence of the collision, of the extent of her injuries and of the representations made by the agent when he secured the release.
At the close of the plaintiff’s evidence the defendant demurred to it. Counsel for defendant announced that he was directing his demurrer to both causes of action, but particularly the second one. That is the cause of action wherein the plaintiff sought to set aside the release. The court did not rule on the demurrer to the first cause of action. The court did sustain the demurrer to the second cause of action on the ground that the evidence of plaintiff did not prove the cause of action pleaded. It was announced that the first cause of action would be held open awaiting the action of this court on the appeal from the order sustaining the demurrer to the second cause of action. This appeal is from the order sustaining the demurrer.
The plaintiff argues that she was entitled to a jury trial of the question of whether the release was obtained by fraud and the action of the court in sustaining the demurrer deprived her of that right. Many authorities are cited on the proposition that an action for damages and to set aside a release may be pleaded in the same cause of action. We do not find it necessary to decide that interesting question. The effect of the ruling of the court was to hold that there had not been sufficient proof on a vital phase of the plaintiff’s case to warrant its being submitted to the jury. It matters not whether it is treated as a separate cause of action or a necessary element of the same cause of action. Obviously the release had to be set aside before plaintiff could recover.
We will direct our attention then to the evidence offered by plaintiff to prove her claim that the release should be set aside.
The allegations as to the false representations have been noted. They were—
1. That the defendant, Carl E. Webb, was broke and nothing could be secured against him. As to that the plaintiff’s evidence proved by Carl Webb himself that he was broke.
2. That Carl E. Webb had not paid the premium on his insurance policy and the company was not liable to pay any loss on it.
3. That Dr. E. S. Edgerton told the agent that there was only a slight concussion of the brain and they only paid $350 in such cases.
4. That the agent called or pretended to call Doctor Rinehart and the agent stated that Doctor Rinehart told him that plaintiff had made a speedy recovery.
5. That the insurance company was about to go broke.
As to the second ground of fraud, all the negotiations between the claim adjuster and plaintiff took place in his office. The plaintiff was paid with a draft on the insurance company. She, no doubt, saw that it was such a draft before she accepted it and signed the release. In order for a misrepresentation to justify setting aside a release it must not only be fraudulent but must be such as the plaintiff was-entitled to rely on.
In 1 Black on Rescission and Cancellation, 2d ed., 179, the rule is stated as follows:
“In order to rescind a contract or cancel an obligation on the ground of fraudulent misrepresentations, it is requisite not only that their falsity should be shown but also the fact that they were material to the transaction, that is to say, not trifling or unimportant, but relating to a substantial matter, and of such a character that the party defrauded would not have entered into the contract or given the obligation, or would not have accepted the terms agreed on, if he had known the truth of the matter. . . It is not necessary that the false representation should have been the sole cause of the contract, but it must have been of such a nature, weight, and force that without it the contract would not have been made.”
This rule has been followed by this court.
Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268, was a workmen’s compensation case where the claimant sought to set aside a release. This court refused to set aside the release and held:
“The cancellation of a written contract, purporting to release an employer from further liability on account of an injury to a workman, is not justified by showing that misrepresentations were made to him as to his physical condition, unless it is also shown that he signed the release by reason of being misled thereby. And where he testifies that he signed it without reading it, not knowing that it was a release, he shows affirmatively that he was not induced to give his employer a full discharge through reliance on the statements made as to his condition.” (Syl. IT 1.)
To the same effect is the rule in 26 C. J. 1141, also Petroleum Co. v. Craig, 112 Kan. 528, 212 Pac. 117. The rule is so well settled as not to need any further citations. It would be. difficult to imagine a case where the rule just mentioned is any more applicable than the case at bar. The plaintiff was a young college student. The negotiations were carried on by a representative of the insurance company and when she was paid she was paid with a draft drawn on the insurance company. She cannot accept this draft drawn on the insurance company to pay a liability of Webb and say later that she accepted the draft and signed the release because the claim adjuster told her that Webb had not paid his insurance premium.
As to the third and fourth grounds of fraud, there is no evidence in the record but that the claim adjuster did talk to Doctor Rinehart and that the doctor told him what he said he told him.
As to the fifth ground of fraud, the mother of plaintiff testified that the claim adjuster told plaintiff that the Travelers Insurance Company was shaky and was going broke. At the same time she testified that the claim adjuster told plaintiff, among other things, that Webb had not paid the premium on his policy. Plaintiff testified that she believed these statements and would not have signed the release had she not believed these statements to be true. As has been said, she must have relied on the statements in order for them to constitute grounds for setting aside the release. Which statement did she rely upon? We have seen that it could not have been the one about the premium not being paid because she accepted the draft drawn on the insurance company in payment of her claim. The testimony of herself and her mother is a refutation of the claim that she relied on the truth of the alleged statement of the claim agent that the insurance company was about to go broke. It is a story of two people dealing at arms length. First, the claim adjuster offered her $350 and then $500 and finally she accepted the offer of $600.
Her answer to the offer of $500 was that it wasn’t enough — she wouldn’t take it. There is no testimony in the record that she learned of the falsity of the statement that the insurance company was about to go broke before she tendered back the money and asked for the return of her release.
The statement must have been false in order to constitute grounds for setting aside a release, and she must have relied on it. The burden is upon plaintiff to prove its falsity and that she relied on it. Such things are never presumed. There is no evidence in this record that the statement about the insurance company was false. The only attempt to prove anything of the kind was the testimony of the claim adjuster that on the day when the release was signed he did not know anything about the financial condition of the company and had no reason to believe that the company was going broke. The proof does not meet the requirement that the statement must be proved to have been false.
We have examined this record carefully and cannot find any substantial evidence to support the allegations of the petition that the plaintiff was induced to sign the release by means of false representations.
The judgment of the trial court sustaining the demurrer is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment awarding damages for the publication of an alleged libel.
In 1925 plaintiff was a candidate for the office of mayor of the city of Manhattan and was defeated. He was a candidate in 1928 and was elected and served until April, 1931, when his term expired. He was not a candidate to succeed himself. He became a candidate in the spring of 1932 for the office of. commissioner of streets and public utilities.
Defendant had been for some years previous, and was in 1932, engaged as the publisher of “The Morning Chronicle” in the city of Manhattan, in which paper various articles with reference to the election were published. On March 5, 1932, the following article, written by the defendant, was published. Eor convenience in reference hereafter we have numbered the paragraphs of the article.
“What a Deceiver!
1. “What a deceiver Hurst Majors has turned out to be in his relations to the Manhattan public!
2. “Telling us he could not get the public service commission at Topeka to do' anything about a hearing on the telephone rate matter, and, at the same time, leading the public service commission at Topeka to believe he did not wish the case he brought as mayor pushed, and also neglecting to file with the commission the briefs he had promised to file, so the case could be decided!
3. “Making us believe that he was fighting for our interests against the electric company, even when he was drawing the mayor’s salary from the city and was, at the same time, on the pay roll of the electric company’s cold-storage plant!
4. “Working under cover to get a franchise for the electric company in Manhattan, at- the same time he was supposed by the public to be earning his salary as mayor by fighting the utility companies and looking after our interests !
5. “Refusing with his mouth at a mass meeting what he denounced as a bribe, and accepting it with his hands! Think of the gall he showed by accepting his two pay checks — one from the city and one from the cold-storage company — and, with brazen callousness under the circumstances, cashing them at local banks!
6. “What must such supporters of Hurst Majors as believed him sincere in his profession of friendship for the people of Manhattan think of him now!
7. “What must Colonel George Frank, who fought for him up and down the streets of Manhattan then, think of him now!
8. “What must Dr. C. 0. LaShelle, that sterling democrat who Manhattan hopes will receive the democratic nomination for congress in this district, and who" lined up Aggieville for him then, think of him now!
9. “Ask them!
10. “None of them support him today, as do not also hundreds- of his former partisans.
11. “And what must Judge C. A. Kimball, that old war horse who sincerely favors municipal ownership of public utilities, who believed in Hurst’s sincerity, and who has been the brains behind the Hurst Majors front all these years — what must he think of the Mayor who sold out his constituents, his friends, and his political principles, if any, now that the truth about Hurst Majors is coming to light, and the hollowness of his professions!
12. “The time has come when Manhattan should state in no uncertain terms what it thinks of such a man as Hurst has showed himself to be, by voting Tuesday an emphatic No to his desire to get back on the public pay roll.
13. “Let him work honestly for his living. — F. N. S.”
Feeling himself aggrieved, plaintiff instituted suit, alleging that the publication provoked him to wrath, exposed him to public hatred, contempt and ridicule, charged him with bribery and misconduct in office; that it was unfair and untrue and maliciously published to his actual damage in the sum of $20,000 and because of malice he should have $10,000 as punitive damages, for which he prayed.
Defendant’s answer admitted the publication, set up his publishing the newspaper, the candidacy of plaintiff, that he became advised of certain facts, investigated them, and then wrote and published the article. There is denial that the language used was intended to charge plaintiff with the crime of bribery and an allegation that it does not so charge, and specific reference is made to a speech by plaintiff wherein plaintiff said: “When I take an offer, I am going to take it in marked bills and a lot of them.” Defendant alleged that the language of the article complained of was designed to state that plaintiff had accepted with his hands that which with his mouth he had denounced as a bribe. He further answered that he believed each statement in the article to be true; that the publication was without malice and made solely in discharge of his duty as a newspaper publisher to advise the voting public of the facts set forth.
The trial was by a jury which rendered a verdict for $1,000 actual and $750 punitive damages, and answered special questions as follows:
"1. Do you find that the article complained of by the plaintiff was published in a campaign in which the plaintiff was seeking the office of commissioner of public utilities in the city of Manhattan? A. Yes.
“2. Do you find from the evidence, by a preponderance thereof, that when the defendant published the article in question he believed the statements therein contained to be true? A. No.
“3. If your answer to question No. 2 is in the affirmative, then state whether such belief was based upon a reasonable investigation of the truth of the statements made therein under the circumstances. (Not answered.)
“4. Does the evidence disclose the fact to be that the defendant published the article in question for the purpose of advising the public of what the defendant, in good faith, believed showed the unfitness of plaintiff for the office which he was then seeking, and to enable the voting public to vote more intelligently? A. No.
“5. Were the facts as discovered by the defendant and in his possession at the time of the publication in question of such a character as to justify a belief in the truthfulness of the statement as published? A. No.
“6. Do you find from the evidence that the plaintiff, while running for the office of public utilities commissioner in 1932, gave public expression to statements by language calculated to deceive the public as to his former relations to the cold-storage company? A. No.
“7. Did Hurst Majors sell out his constituents, his friends, and his political principles? A. No.”
The above verdict was rendered on April 25, 1934. The defendant moved the court to set aside the answers to all questions except No. 1 upon the ground the answers were contrary to and not supported by the evidence and for the further reason the jury in answering them was actuated by passion and prejudice. The defendant also moved for a new trial on statutory grounds. On September 5, 1934, the court overruled both motions and on November 8, 1934, notice of appeal was filed. Consideration is therefore limited to the correctness of the court’s rulings on the motions following the trial.
Were the answers to the special questions supported by or contrary to the evidence?
In an action of this kind necessarily the evidence covered a wide field, showing matters of inducement and explanation, including other articles published by defendant and published replies of the plaintiff, which need not here be repeated. By reference to the article, it will be observed that only paragraphs 2 to 5, inclusive, can be said under any circumstances to charge plaintiff with misconduct in office or with the crime of bribery. In the course of the trial, the evidence was not taken with specific reference to the paragraphs of the alleged libelous article, and some of the matters inquired of and the answers thereto referred to one or more of the various paragraphs. Therefore what is here said with reference to particular paragraphs, in some instances applies to other paragraphs.
With reference to' paragraph 2, plaintiff testified that it was a half-truth; that he had filed a petition for lower rates, the commission (public service commission) doubted it had power to declare rates secured in 1925 unlawful and had asked for briefs; that Hughes, as city attorney, had promised to prepare a brief, but so far as witness knew none had been prepared.
“Judge Greenleaf said if I was not satisfied with respect to jurisdiction to go ahead and file the briefs, but I did not do it. I came home and told the people in this circular that the public service commission seemed disinclined to grant us any relief.”
With reference to paragraph 3, plaintiff, while mayor, was personally engaged in the cold-storage business. Either the United Power & Light Corporation or a subsidiary owned a plant in Manhattan: A contract was entered into between the Power & Light Securities Company and plaintiff and others as a syndicate, providing for the organization of a new company to purchase the stock of the cold-storage company. In another contract between the securities company and one Emerson, one of the syndicate, it was provided the plant should be bought. We are not concerned with these contracts further than plaintiff’s own statement that Emerson’s right to buy $20,000 par value of the stock for $10,000 cash was for the joint and equal benefit of himself and Emerson; that after the company was formed he received a salary from April 15, 1931 (he was mayor until April 21, 1931), to October, 1931. He also testified that—
“I knew at all my dealings that the Power & Light Securities Company, the United Power & 'Light Company and the cold-storage company were all hooked up together, and that the United had a connection with the cold-storage company.”
And plaintiff further testified:
“The statement in the article complained of that I was drawing the mayor’s salary and at the same time on the pay roll of the electric company’s cold-storage plant, was true. ... I repeatedly made the public believe that I was fighting for their interests on these franchises. . . . The statement ‘making us believe that I was fighting for our interests against the electric company’ was true all the time I was mayor, and it is true that I was also on the pay roll of the electric company’s cold-storage plant while I was mayor.”
With reference to paragraph 4, plaintiff testified in regard to the dealings as to the cold-storage plant that subsequently the company wished to discontinue Emerson’s connection; that Majors dealt between Emerson and the company and the company paid Emerson at least $10,000, of which Majors got half, and, as abstracted:
“As to the proposition made to me by Bill Emerson, the United did spend, not $100,000, but $200,000 and gave me a lease on part of the premises that I value at $50,000. I did tell the public at that meeting that I had refused this proposition which I regarded as a bribe and I did later go in with the United people in a cold-storage deal and served on the board of directors with them, and I did accept with my hands this creamery lease and ice contract, and a salary from the cold-storage company, a part of which was paid while I was still mayor, and I cashed checks, both from the city and from the cold-storage company, at local banks. The $5,000 check payable to Hurst Majors was cashed at the Fidelity National Bank, Kansas City, Mo. This money was personally mine and I carried my personal account at the Union National Bank, but I sent this check to the company account as stated. On February 7, 1931, I published in the Mercury a statement in which I said, ‘We have obtained several reductions in light and power rates, through friendly negotiations, and have had our stand justified by the pledge of the public service commission that they will shortly order a still lower rate into effect here in Manhattan. We are unquestionably near bottom in the matter of light and power rates.
“ ‘In any event we are $75,000 to $100,000 closer to bottom than we were three years ago and only the matter of the contract and franchise to do business here remains to be settled.’ Beside this article is a picture of me published by the Mercury.”
With reference to paragraph 5, plaintiff testified that over a year before he went into the cold-storage plant, he made a speech in the community house in which he described the attempt to bribe him. He testified also as to meeting representatives of the United Power & Light Company to discuss building a cold-storage plant, the contracts, etc., as above mentioned, the efforts to displace Emerson, and, as abstracted:
“When I talked to Emerson to get his terms to submit to Clayton Kline over the phone and Emerson demanded $10,000,1 was to share in it. ‘He said if I would get it, he would give me half of it’ and I got half of it from the cold-storage people. Emerson told me he would give me half of anything he got from them for getting him out, excepting that he wanted six months’ salary. I was to get half of the ice contract; half of the creamery and half of the $10,000. In the settlement there with Clayton Kline on May 15, [1931] I got $5,000.”
The above is only a portion of the testimony, and there is none that contradicts it; it is the plaintiff’s own version. We need not go further into it to detail the steps taken whereby plaintiff procured a loan for $30,000 on his own properties, the money being furnished either by the power and light company or its subsidiaries or associated companies. Neither need we review other testimony of plaintiff as to his efforts to get lower rates in Manhattan, for, whatever view might be taken of that testimony, the above shows plainly that insofar as the general charges against him in the article complained of are concerned, he admitted their substantive truthfulness. Although the burden may have been on the defendant to show truthfulness, plaintiff’s own version of the whole sordid business showed that the statements in the article were not wide of the mark. The motion to set aside the answers on the ground they were contrary to and not supported by the evidence should have been sustained.
Attention has been directed to the plaintiff's political career, and in addition to what has been said it is clear from the record that he had rather a consistent course in that he stood forth as an opponent of public utilities, and a proponent of lower rates paid to them for services. It may be assumed that his continuance in office was distasteful to one or more of the companies operating in Manhattan. Regardless' of who initiated the dealings or the motives that prompted them, when the new cold-storage company idea was inaugurated, plaintiff and representatives of the electric light and power company worked out an arrangement whereby the company was to aid plaintiff, and when the syndicate was formed and arrangements made for the $20,000 of stock, of which plaintiff was to get half, Majors was asked whether he was going to run for mayor again and he said he was not, and at that time he was definitely told that if the power and light company put money into the plant and built it and he was taken into the operation of it he would have to confine himself to the business of the company and not fool with political enterprises. Upon Majors’ acceptance of conditions, matters went ahead, the new company was organized and Majors qualified as a director on April 11, 1931, and commenced drawing salary April 15, 1931. While he makes quite a point of having only one share, it is undisputed he had it and gained other advantages heretofore detailed from his connection with the business. Matters of this kind are not kept secret very long, and when a year later he became a candidate for commissioner of streets and public utilities, and again campaigned, at least in part, on the ground that he was a foe of utilities and a friend of the people, opposition arose.
It is not necessary that we here enter into a discourse on the law of libel, the liberty of the press, or the duty of the publisher of a newspaper, for in a situation in many respects like that here, this court, in an opinion by Mr. Justice Burch, considered the whole subject in Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281.
We shall content ourselves by saying that in the situation here presented, it was the right, if not the duty, of the defendant to call to the attention of the citizens of Manhattan the facts which he honestly believed to be true, together with such comment thereon as was reasonably connected therewith, for the purpose of enabling the electors to vote more intelligently at the coming election, and if all was done in good faith, the publication was privileged even though some of the statements might be untrue and derogatory to the character of the candidate. There is no showing of lack of good faith except through an involved process of reasoning; that is, that the statements of the article charge plaintiff with bribery and misfeasance in office, are presumed to be false and are therefore malicious. That theory will not avail here (Coleman v. MacLennan, supra), and even if it would, it still would not help, for, as has been demonstrated, plaintiff’s admissions are that the statements of fact in the publication are substantially correct, or at least so nearly so that the attempt to show wherein they are not is a mere quibble. The publication was conditionally privileged, there was no showing of malice, and under the admitted facts plaintiff could not recover.
Complaint is also made that the verdict was given under the influence of passion and prejudice, occasioned in large part by an inflammatory argument by plaintiff’s counsel. We shall not here set forth the studious efforts of plaintiff and his counsel to keep before the jury the connection of the utilities company with various phases of Manhattan political affairs and the matters complained of during the trial. Even though they were not objected to, such expressions as “Who is furnishing the ammunition in this lawsuit? Who is furnishing the evidence? Is it Seaton? No. The United Power,” and “There isn’t anything to this lawsuit, only an attempt — and the United Power Company is carrying it on today— to crucify Hurst Majors,” and others of similar import, had no place in the argument. In one instance an objection was made to a statement the United Power was too smart to call certain witnesses, and the court reproved the speaker and instructed the jury to disregard all argument of that type. The question recurs as to what the effect of the court’s rebuke and instruction is after the improper remark has been made. In this case it seems evident that the jury was inflamed by the argument; otherwise it would not have returned the verdict it did as against the plaintiff’s own admissions.
As the matter comes here, perhaps from a technical standpoint it should be said that the trial court erred in not granting a new trial for the reason that the verdict was contrary to the evidence and was the result of passion and prejudice and therefore a new trial should be had, but in view of the fact that under plaintiff’s own admissions he cannot recover, no good purpose would be served in granting a new trial. Under R. S. 60-3317, this court is directed to render such judgment as it deems that justice requires. For the reasons given, it is apparent no good purpose would be served by another trial, and therefore the judgment of the lower court is reversed and the cause remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal is from an order overruling a demurrer to plaintiff’s petition.
Omitting formal parts, the petition alleged that plaintiff, then a servant of and in the employ of defendant Peters, was riding in an automobile driven by defendant Michel acting as the agent and servant of defendant Peters, and over which automobile plaintiff had no management or control; that the automobile was struck by another automobile driven by defendant Abel, resulting in plaintiff receiving injuries. The petition contained the following paragraph:
. “4. Plaintiff further alleges that at said time he was in the employ of the defendant George Peters and as such employee was at the time of said collision actively engaged in such employment, to wit: That he was being conveyed by S. S. Michel, who was the duly authorized agent and servant of the said George Peters, and in so conveying the plaintiff was acting for and on behalf of the said George Peters in conveying said plaintiff in said automobile from the place where he had been working for the said George Peters to wit: what is known as the East Central Dairy, to his home. That under the terms of said employment it was the duty of the said George Peters to convey this plaintiff to the said place of employment and to return him to his home and that it was the duty of the said George Peters to furnish the plaintiff with a safe place to work and to use and provide means and methods as herein alleged, to render his conveyance at said time reasonably safe, all of which the said George Peters failed to do by reason of the facts herein alleged and was guilty of negligence in that behalf.”
In view of the question presented, it is not necessary to mention in detail the allegations of alleged negligence. Defendant Peters demurred on the ground the petition did not state facts sufficient to constitute a cause of action. His demurrer was overruled, and he appeals.
Appellant’s brief presents only one question: When a servant is injured in the course of his employment because of the negligence of a fellow servant, is the master liable to the injured servant? The above statement and appellant’s argument are predicated on the assumption that plaintiff and defendant Michel were fellow servants. We must first determine whether that assumption is correct. Appellant relies on a quotation from 39 C. J. 537, some of the decisions which are hereafter mentioned, and the quotation from Restatement, Agency, § 486. They all pertain to situations where the facts warrant their application, but which do not solve the situation presented here. The appellee seeks to support the trial court’s ruling with Phillips v. Armour & Co., 108 Kan. 596, 196 Pac. 245, where the fellow-servant doctrine was not involved, the decision turning upon whether the transfer company transporting employees was an independent contractor. He also relies on Hartman v. Orcutt, 139 Kan. 785, 33 P. 2d 133, where the trial court’s ruling on demurrers was reversed because it tested the sufficiency of evidence by our automobile guest statute (R. S. 1933 Supp. 8-122b), which was held inapplicable to the facts and the plaintiff’s theory of his case.
While there have been many decisions of various courts defining who are fellow servants and their rights and liabilities inter sese (39 C. J. 550 et seq.), and many tests have been outlined, this court, in Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18, in an exhaustive opinion by Burch, J., reviewed not only our former decisions, but other decisions and authorities, and held:
“All employees of the same master engaged in the same general business, whose efforts tend to promote the same general purpose and accomplish the same general end, are fellow servants.
“The assignment of servants of the same master to separate departments of the same general enterprise does not affect their relation as fellow servants unless such departments be so far disconnected that each one may be regarded as a separate undertaking.” (Syl. lffl 1, 2.)
The 'rule, as stated in the above case, is as favorable to appellant’s contention as this court has gone. (See Stocks v. Bridge Co., 94 Kan. 604, 146 Pac. 1178; Miller v. Armour & Co., 95 Kan. 690, 149 Pac. 682; Nelson v. City of Salina, 123 Kan. 522, 256 Pac. 123; Carter v. Uhrich, 125 Kan. 192, 264 Pac. 31; Barnaby v. Sears, Roebuck & Co., 132 Kan. 447, 295 Pac. 715; and the cases therein cited.)
Tested by the standard as above stated, and construing the petition favorably to the plaintiff, as must be done (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; School District v. Sheridan Community High School, 130 Kan. 749, 288 Pac. 733), it appears that while there is an allegation that plaintiff was an employee of defendant Peters, and that he was being conveyed to his home by another employee of Peters, there is an utter lack of any allegation that both were engaged in the same general business or that their work was to promote the same general purpose and accomplish the same general end. There is no allegation whatever with respect to Michel’s employment further than he was driving the car in which plaintiff was riding. From these allegations we are not warranted in assuming that the conditions and purposes of employment of plaintiff and defendant Michel were such as to constitute them fellow servants.
The order of the trial court was correct and it is affirmed. | [
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The opinion of the court was delivered by
Burch, C. J.:
The principal question in this case is whether testimony was improperly excluded, in the trial of a divorce case.
The issue in the case was conduct of defendant. Plaintiff produced testimony to establish the conduct, including proof of oral admissions by defendant of the conduct. Defendant was the first witness in her own behalf, and was examined and cross-examined. She testified the conduct did not occur, denied certain of the admissions, and explained away the others. She was asked nothing about any admissions she had made in writing, neither on direct examination nor cross-examination, and no other witness, whether for plaintiff or defendant, mentioned such a subject.
After twenty-four of defendant’s twenty-six witnesses had given their testimony, and she was about to close her case, she was recalled for further cross-examination by plaintiff. At plaintiff’s request, a document was marked by the court reporter “Plaintiff’s Exhibit 1.” It consisted of five pages of writing. On each page the name of the witness was written. The witness was shown the names and was asked who wrote them. She said she did. The witness was then asked this question:
“Q. And on a page of this exhibit marked ‘page No. 4’ appears a statement not only about one time, but about different times that those things occurred — ”
Objection to the question was interposed and was sustained. What was the purpose of the question?
Plaintiff’s attorney took two positions. First, the testimony was offered to prove the conduct in issue, by defendant’s admission of the conduct. Second, the testimony was offered to contradict defendant’s testimony the conduct did not occur. In either event, an admission of conduct was involved.
It so happens we have a statute relating to reception in evidence in divorce cases of admissions of a party.
“Upon the trial of an action for a divorce, or for alimony, the court may admit proof of the admissions of the parties to be received in evidence, carefully excluding such as shall appear to have been obtained by connivance, fraud, coercion or other improper means.” (R. S. 60-1508.)
Under this statute, it is not proper practice to receive, as a matter of course, what appears to be an admission, and leave the party to whom the admission is attributed to show lack of genuineness. The party offering the admission must preliminarily qualify the admission for reception in evidence. If this were not true, an admission framed by connivance would never be exposed. The character of the showing will vary according to circumstances, but the court must have fair assurance that what is tendered as an admission is sufficiently authentic to be received in evidence as an admission.
Plaintiff’s attorney contended the testimony was prima facie admissible, presumably because the witness admitted her signatures appeared on the sheets of paper. That did not satisfy the statute, which raised the question, How were the signatures obtained?
The body of the document was not in the handwriting of the witness. So far as the record discloses, she had been shown signatures only, and she had not been asked if she knew the contents of the document. In response to a question by the court, the witness said she did not read the document before signing it. The attorney for defendant made a statement to the court. He had not seen the document. He had been informed by persons who had seen the document that it contained scurrilous matter. The document was written by a named individual who claimed he was a lawyer, and who falsely represented he was from the attorney’s office. The same person had previously been guilty of fabricating spurious confessions and obtaining signatures to them through deception and fraud, in a specified case within the knowledge of the court. The defendant denied the matter contained in the document. Therefore, the attorney requested that the named individual, whom plaintiff admitted was available for the purpose, be examined with respect to the transaction resulting in the signed document. The court said that if the individual were brought in and it should be disclosed how defendant’s signatures to the sheets of paper were procured, the court might admit the proffered testimony.
Plaintiff did not pursue the course indicated by the statute and suggested by the court and, under the circumstances, plaintiff cannot complain that the witness was not permitted to answer the question propounded to her to prove the fact of conduct by admission.
Leaving the case open for proof of integrity of exhibit 1, the court sustained the objection to the particular question on the ground it was not cross-examination.
The question was, whether certain statements appeared on page 4 of some sheets of paper. The paper would have disclosed what it contained. Plaintiff’s abstract does not show the document itself was ever offered in evidence, and excluded. It could not properly be offered until it was accounted for, and the paper could no more be used to contradict defendant’s testimony than it could be used in plaintiff’s case in chief. Therefore, in considering the propriety of the court’s ruling, the paper, as containing an admission by defendant, must be left out of account.
The question did not call on defendant to account for existence of the paper. The witness had not been examined on the subject whether some paper contained some kind of statement. She had given no testimony relating to what the particular paper, or any other paper, contained on page 4, or any other page. She was not asked whether she made the statements contained in the document, and she was given no opportunity to affirm or deny making the statements, or truth of the statements. An affirmative answer to the question would contradict nothing she had previously said, and the question was not cross-examination.
The record does not show when the action was commenced. The trial occurred and judgment was rendered in September, 1933. The appeal was set for hearing in this court on September 30, 1935. On June 14, 1935, a person who had been a witness at the trial made an affidavit stating that about the time the action was commenced he was in the office of defendant’s attorney, and defendant, in his presence and in the presence of the attorney, made an admission. Without leave first obtained, this affidavit was filed in this court on September 27, 1935. Instead of moving to strike the affidavit from the files, as he might have done, the attorney for defendant met it with his own affidavit, stating what occurred in his office, and showing the statements concerning an admission of defendant contained in the affidavit of June 14, 1935, were untrue.
The affidavit of June 14, 1935, had no place in the files of this court. It merely served to continue in this court a fact controversy closed by the decision of the district court.
The matter of an allowance to defendant for support of herself and children has been adjusted between the parties, the matter of adjudication of property interests was reserved in the judgment appealed from, and there is nothing else in the case deserving comment.
The judgment of the district court is affirmed.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment dissolving an attachment on certain oil royalties belonging to the appellee.
Briefly, the pertinent facts were these: In 1930 Sarah Bright, appellee herein, was divorced from her husband and given custody of two minor children of the discordant parents. She was also given certain Wichita real estate and personal property and oil and gas royalties in Sedgwick county, “as her sole and separate estate,” and which were “to constitute her permanent alimony” but out of which she was “to support and educate two minor children.”
Later Sarah Bright was sued by the present appellant, Olga Zander, in a federal district court in Texas, and subjected to a judgment for $25,000. The cause of action appears to have been based on alienation of the affections of Olga’s husband. This was followed by an action on that judgment in the Sedgwick county district court. Service on Mrs. Bright was by publication, as she had become a nonresident of Kansas, and an order of attachment was issued to subject her oil and gas royalties in Sedgwick county to the satisfaction of the $25,000 judgment.
Mrs. Bright moved to quash the service of summons by publication. When this motion was heard, evidence was adduced which showed that Mrs. Bright had run through with the considerable amount of property which she had received in the divorce judgment; she had sold and spent the proceeds of the Wichita real estate; and the income from the oil and gas royalties decreed to her had dwindled to about $50 per month. Meantime one of the two minor children had reached maturity and married; but the younger, a girl of seventeen, had not yet finished high school when this attachment was dissolved, and it was shown that the diminished monthly income from royalties would scarcely suffice to support this minor daughter and would leave nothing whatever for the support of herself, and she had no other income.
The trial court overruled the motion to quash the service by publication. Mrs. Bright then filed a motion to dissolve the attachment. The same evidence adduced on the motion to quash the .service was reiterated; the motion was sustained and the attachment dissolved. Hence this appeal.
Appellant first contends that the issue on the motion to dissolve the attachment was identical with the one raised on the motion to quash the service. We must hold otherwise. A publication service may be perfectly good as against an array of facts urged against it, but the same array of facts may be quite sufficient to sustain a motion for the dissolution of an attachment. Here there was no defect in the service by publication. The defendant, Mrs. Bright, was a nonresident, and she did have property within the jurisdiction. (R. S. 60-2525; 60-901.) But whether the property of a nonresident is subject to attachment or exempt therefrom is quite a different question. In the instant case the answer to that question turns upon the nature of the title to the oil and gas royalties which the divorce decree of 1930 conferred on Mrs. Bright.
Pertinent excerpts of the divorce decree read:
“It is by the court further adjudged and decreed that the plaintiff (Sarah Bright) have the custody and care of the two minor children, Lorene Bright and Mary Ellen Bright, and she is charged with their maintenance and support out of the funds in the settlement received by her from the defendant hereinafter set forth ...
“It is by the court further adjudged and decreed, that the plaintiff have and take as her sole and separate estate free and clear from any claim or interest of the defendant (lands described and oil and gas royalties described).
“It is by the court further adjudged and decreed, that the plaintiff have and take as her sole and separate property, free from any interest or claim of the defendant, the piano, household goods and effects.
“It is by the court . . . further adjudged and decreed that the defendant [Thomas W. Bright] shall not be liable for any debts or obligations incurred by the plaintiff or their minor children above named from and after the 18th day of October, 1930.
“It is by the court further adjudged and decreed, that the real and personal property together with the oil and gas royalty interest above set aside and given to the plaintiff as her sole- and separate estate is and shall constitute her permanent alimony out of which she is to support and educate the two minor children above named.”
On the hearing of the motion to dissolve the attachment the trial court made a finding of law and fact which reads:
“. . . This court takes the provision in the decree of divorce ... as so permanent alimony out of which is to come the support and education of the children as indefinite and uncertain and . . . (holds) that the children do have an interest in the property so set aside.
“The application to dissolve the attachment is sustained.”
Was the foregoing a correct interpretation of the decree? A majority of this court hold that this question requires a negative answer. No specific amount of the property awarded to Mrs. Bright was for the support of the children. The oil and gas royalties (and the other property) were adjudicated to be her sole and separate estate. She has made her own operative interpretation of her rights under the divorce decree, and has sold the real estate and spent the proceeds without regard to any legal or equitable color of right in the children thereto. The language of the decree which stated that Mrs. Bright was to support and educate the two minor children out- of the property decreed to her was not a limitation upon her unqualified title and interest in the property. It adds nothing to a property award in a decree of divorce to. say that one of the parties, thereto is charged with the burden of the support and education of the minor children of the litigants. All parents are so charged, divorced or undivorced; and no order charging either parent exclusively with such duty is final. It can and should be altered whenever the wants, needs or welfare of the children so require.
Counsel for appellee argue that even as alimony itself (and ignoring so much of the decree as may seem indefinitely to charge the property awarded to Mrs. Bright with some sort of trust in favor of the children) the oil and gas royalties were exempt from attachment for any indebtedness other than one incurred for necessities. Certain New York decisions support that view. (West v. Washburn, 138 N. Y. Supp. 230; Maurice Baskin & Co. v. Howe, 233 N. Y. Supp. 648. See, also, Fickel v. Granger, 83 Ohio St. 101, 93 N. E. 527, 52 L. R. A., n. a., 270; and 1 R. C. L. 869, 870.)
It appears, however, that the reports and textbooks do justify a somewhat different view. Thus in 19 C. J. 298 it is said:
“Alimony may be appropriated by a wife’s creditors for the discharge of a debt contracted by her after the decree of divorce.”
The cases cited in support of this quotation are Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957, and Stevenson v. Stevenson, 34 Hun (N. Y.) 157. In the Milberger case, while the present question was not squarely at issue, this court said:
“Alimony, being an allowance to the wife in pursuance of the husband’s obligation of support, is exempt from seizure to satisfy any of her debts except those contracted after the decree.” (p. 437.)
In the New York case just cited, although the basis of the indebtedness is not stated, it may be open to the inference that the debt was incurred for necessaries. See reference to the case in Anna Tappe, Inc., v. Battelle, 249 N. Y. Supp. 589.
The judgment for $25,000 in the federal court in Texas had for its basis a tortious wrong committed by Mrs. Bright against the appellant. The wrong and the judgment for damages which followed transpired after the 'divorce decree of 1930, and the appellee’s oil royalties were subject to attachment to satisfy the just claim of appellant founded on the Texas judgment.
The judgment of the district court is reversed, and the cause remanded with instructions to reinstate the attachment.
Dawson and Harvey, JJ., dissenting. | [
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The opinion of the court was delivered by
Burch, C. J.:
This appeal was taken by a landowner from an order setting aside a sale of her land, made pursuant to order of sale issued to satisfy adjudicated liens.
Mary Raney sold land to Myrtle Doss, who gave the vendor a mortgage for $3,500, to secure payment of purchase price. The mortgage was not immediately recorded. Myrtle Doss and her husband, Archie Doss, went into possession and made improvements on the land. Laborers and materialmen, who contributed to erection of the improvements, were not paid, and filed mechanics’ liens. In an action by a lienholder to foreclose his lien, all lienholders and the mortgagee were made parties. Judgment was rendered, foreclosing the mechanics’ liens, and the holders were given coordinate first liens, because the liens attached before Mary Raney’s mortgage was filed for record. She was given a second lien for the sum secured by her mortgage, which was foreclosed. There was no appeal from this judgment.
Order of sale was issued, and before sale occurred, Mary Raney took assignments of all liens superior to hers except the liens of H. H. Gordon and C. P. Gordon. When the sale occurred, taxes, costs, liens and interest aggregated $6,644.89. Mary Raney bid $2,600, and the land was sold to her. Her bid was sufficient to pay taxes and costs, and to satisfy all liens, with interest, except her own second lien. She paid the sheriff $903.03, a sum sufficient to pay taxes, costs, and the amounts of the two liens which had not been assigned to her.
Before the order of sale was returned, Mary Raney filed a motion to require the sheriff to make a return showing bid of $6,644.89 and sale to her for that sum, and proceedings were had relating to what return the sheriff should make, which need not be recounted. The sheriff made a return showing that, in accordance with statutory requirements, the land was sold to Mary Raney for $2,600, she being the highest and best bidder, and showing the following:
“Immediately after sale and before purchase price was paid said purchaser, Mary Raney, requested me to raise her bid to $6,644.89. Said purchaser paying sheriff $903.03, to cover following items: Taxes and costs $212.32. All first liens with interest $2,427.06, and purchaser second lien and interest.”
Myrtle Doss moved the court to require the sheriff to amend his return in two particulars; first, by striking out the recital of Mary Raney’s request to raise her bid, and second, to require the sheriff to remove what were asserted to be ambiguity and uncertainty with respect to purchase price. This motion was denied, and later Myrtle Doss moved that the sale be confirmed. Maiy Raney moved in the alternative that a certificate of sale be issued to her for the sum of $6,644.89, or that the sale be set aside. The court denied the motion to confirm and the motion for certificate of sale, and set aside the sale.
In the course of the hearings it appeared that Mary Raney did not take legal advice before attending the sale. She desired to bid in the land for a sum sufficient to protect her second lien. Before the sale was cried, she told the sheriff she wanted to bid enough to protect her interest, as well as to satisfy other liens. When she made her bid, that was what she supposed the effect would be. Immediately after sale, and before payment of purchase price, Mary Raney requested that her bid be raised to $6,644.89.
The sale took place on May 1, 1935, and the statutes relating to confirmation follow:
“The sheriff shall at once make a return of all sales made under this act to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same, . . .” (R. S. 60-3463.)
“The court in determining whether or not the proceedings in judicial sales are regular and in conformity with law and equity as expressed in section 60-3463 of the Revised Statutes of Kansas of 1923, may decline to confirm the sale where the bid is substantially inadequate; or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the premises must be bid in if the sale is to be confirmed, or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require that the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate. This act is intended as declaratory of the equity powers now existent in the courts under section 60-3463 of the Revised Statutes of Kansas of 1923.” (R. S. 1933 Supp. 60-3463a.)
In this instance there was no evidence relating to value of the land except the fact a purchaser stood ready, able and willing to pay $6,644.89 for it.
The “proceedings” contemplated by the statute relating to confirmation include the sheriff’s return. In view of all that occurred with reference to the return, the court may have concluded there was sufficient irregularity to warrant setting the sale aside. The court did not specify the ground on which the sale was set aside, and it may have been set aside because the proceedings did not conform to equity. Without request to do so, the court was not obliged to specify the ground on which the sale was set aside, and if either ground be sufficient, its order should be affirmed. Leaving the question of regularity at one side, it is the opinion of this court the sale was properly set aside for want of equity.
Myrtle Doss bought the land and did not pay the purchase price. She improved the land and did not pay the cost of the improve ments. Taxes were unpaid in a' sum which, with the costs of suit, amounted to $212.32. These facts are somewhat indicative of her financial condition. If the sale were confirmed, the land could not be sold again to satisfy any of the foreclosed liens, and what Myrtle Doss desires is opportunity to redeem for a sum which leaves the purchase money lien unsatisfied.
It is conceded Mary Raney made a mistake. It is said her mistake was one of law. In Mary Raney’s verified application for an order permitting the sheriff to make his return in accordance with the facts as she understood them, showing her purchase of the land at a bid of $6,644.89, she said that at the sale she supposed she was bidding, in addition to the amount of the first liens, the amount of her own judgment, with interest. That disclosed a mistake of fact, but whether the mistake was one of law or of fact is not important.
The history of the present statute relating to confirmation is well known. An early statute required confirmation if the proceedings were in conformity with the law regulating sales. This statute was superseded by another, which was carried into the 1909 revision of the civil code, and is now R. S. 60-3463. In the case of Bank v. Murray, 84 Kan. 524, 114 Pac. 847, a paragraph of the syllabus reads, in part:
“Under section 500'of the code, requiring the court to confirm, a sale if it finds the proceedings regular and in conformity with law and equity, the trial court has substantially the discretion of a chancellor ih a suit in equity, . . .” (If 3.)'
Under the old chancery practice, increased bids might be accepted at any time before confirmation, and the substance of the procedure, with proper adaptations, is utilizable under our own code.
. Mary Raney endeavored to increase her bid before the sheriff made his return. The sale had been made, the increased bid was not made at a public sale and, doubtless for legalistic reasons, the sheriff did not accept the delayed bid. However, Mary Raney was the highest and best bidder. No other bidder would be prejudiced by acceptance of the larger bid. Myrtle Doss had not changed her position relying on the smaller bid, and this court knows of no reason why the district court should not have made its own supplement to the sheriff’s return, showing subsequent bid by the purchaser of $6,644.89, and on the basis of the return and supplement, should not have confirmed the sale to Mary Raney, for the increased price. However, the district court set aside the sale. What were the equitable grounds for doing so?
Obligation of contract is still respected by the law of this state. Land mortgaged to secure payment of purchase price may still be appropriated to satisfaction of the obligation, and it is not considered inequitable or unjust for that to be done. Besides that, the latest statute regarding confirmation, R. S. 1933 Supp. 60-3463a, is in effect a declaration of legislative policy that security should be made to pay as much of the debt as the facts warrant. That is fair and just and equitable. The value of the privilege of redemption is increased as amount of sale price is diminished; but that fact does not constitute an invitation to confirm a sale which would not be confirmed because not in accordance with equity, if redemption were not permitted. Sales not made in accordance with equity are set aside. Redemption is allowable only from sales made in accordance with equity. In this instance, the attitude of Myrtle Doss is not in accord with equity and good conscience, in the face of Mary Raney’s readiness to satisfy all of Myrtle Doss’ undischarged obligations with respect to the land, in consideration of a certificate of sale for the full amount.
Occupying a position devoid of merit from the standpoint of equity, Myrtle Doss trains heavy artillery against the position of Mary Raney. It is said her predicament was the result of such ignorance and carelessness on her part that she is disqualified to invoke equity. Decisions are cited to the effect equity will not relieve from the consequence of want of care and diligence which would be displayed by a bidder of reasonable prudence, under the circumstances. The decisions will not be reviewed.
Conceding Mary Raney was at fault, the inherent inequity of a sale for a sum which would pay taxes, costs, and amounts of mechanics’ liens, when the land would sell for enough to pay the amount of the mortgage lien as well, was not cured. The consequence of Mary Raney’s fault adversely affected nobody but herself. One consequence of confirmation would be that Myrtle Doss could redeem for a small sum. That was a kind of benefit which in equity she ought not to be permitted to enjoy. In other fields in which equity prevails, mistake does not necessarily disqualify an 'applicant for relief:
“A person who has conferred a benefit upon another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care.” (Restatement, Restitution and Unjust Enrichment, Tentative Draft No. 1, §51.)
In this instance, the court regards confirmation of the sale as a penalty too severe to be inflicted on Mary Raney because of her mistake;
The judgment of the district court setting aside the sale is affirmed. | [
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The opinion of the court was delivered, by
Smith, J.:
This was an action for an accounting and to recover money. Judgment was for defendant, sustaining a demurrer to plaintiff’s petition.
The parties to the action were two oil companies. Their differences grew out of an enterprise in which they jointly engaged in the development of some oil leases.
As far as we are concerned here, this relationship began on August 23, 1.928. On that date a contract was entered into by the parties with reference to what is known as the A. W. Graham lease. This lease was owned by the Prairie Oil & Gas Company. This company later became the Commonwealth Oil & Gas Company. Under the terms of the contract, in consideration for certain drilling, the McKnab-Bess Oil Company became the owner of a one-half interest in this lease. In this contract the Prairie Oil and Gas Company was designated second party and the McKnab-Bess Oil & Drilling Company first party. It provided, among other things, as follows:
“1. The second party agrees at its own cost and expense to furnish and erect a suitable rig at a location approximately 990 feet from the west line and 350 feet from the south line of the above described tract, and to furnish and deliver at said location all necessary casing and dig a suitable slush pit.
“2. The first party within ten (10) days after the completion of the rig at the location aforesaid, agrees to commence the drilling of a well and to complete said well with due diligence at its own cost and expense to a depth of approximately thirty-three hundred (3,300) feet, or to what is known as the Wilcox sand, unless oil and/or gas in paying quantities is found at a lesser depth.
“3. Should oil and/or gas in paying quantities be found therein, the second party shall take over the operation of said well, and the further cost of shooting, tubing and equipping said well, and the operation of the same, together with six percent (6%) additional to cover overhead expense, shall be proportionately borne and paid by the parties hereto in accordance with their interests as hereinbefore set forth; that is to say, first party one half (%) and second party one half (%).
“Should said well produce oil and/or gas in paying quantities, said first party shall thereupon become the owner of an undivided one half (%) interest in and to the rig, and in the casing left in the hole, and said first party shall pay for one half (%) of the cost of said rig and casing. . . .
“4. The second party may, if it so elects, after the completion of well aforesaid, drill a second and subsequent well upon said described lands, at locations it may select thereon, and shall have the sole management and control of the operation and development of the lands hereinabove described, and may proceed with the development and operation thereof upon its own initiative. Second party shall furnish all material, equipment and. labor at actual cost to it that may be used in the drilling and operation of the property and in caring for, storing and marketing the oil, gas or casinghead gas produced therefrom, with the exception that any second-hand material shall be charged at its fair market value; and, such expense, together with all sums paid out for rentals, taxes, insurance'and other items properly chargeable against the land hereinabove described (except the cost and expense of drilling and casing said first well as hereinbefore provided) shall be charged to the account of and paid by the parties to this contract in proportion to their respective interests, as aforesaid, and there shall be added to such account and proportionately borne and paid by the parties hereto six percent (6%) of such cost to cover overhead expense.”
It will be noted that the second party was entitled to charge six percent to cover overhead expenses of shooting, tubing and equipping the well should oil or gas in paying quantities be found. There is a difference of opinion between the parties as to the proper construction that should be placed on the clause “except the cost and expense of drilling and casing said first well as hereinbefore provided” as it appears in the above paragraph.
It is provided in the contract as follows:
“6. The second party shall render a statement of account to the first party as soon as practicable after the close of each month, showing all obligations and charges contracted, incurred or expended in connection with the operation and development of said lease as to the above-described land during the preceding month, which statement will show the amount due from the first party to the second party and shall be mailed to the first party at its post-office address, and the first party shall pay and hereby agrees to pay to second party the amount for which said statement is rendered within ten (10) days from the receipt thereof, and if said statement is not paid within said period of ten (10) days, the same shall draw interest at the rate of six percent (6%) per annum from the date thereof.”
It also provided—
“The second party shall also render an account to the first party as soon as practicable after the close of each month, showing the amount of oil, gaa or casinghead gas produced and sold from the above-described land and the proceeds thereof during the preceding month, and shall pay to the first party its proportionate interest therein; provided, that second party shall have the right, pending payment by first party of accounts hereunder, to withhold all or any part of the first party’s share of the proceeds from the sale of oil, gas or casinghead gas produced from the above-described land as payment, or part payment of its share of the expenditures incurred hereunder.”
The contract also provided:
“It is further agreed that the second party shall have and it is hereby given and granted a lien upon the interest of the first party in the land above described, and the oil, gas or casinghead gas produced therefrom, and the proceeds thereof, to secure the payment to it of any sums due from the first party for the development and operation of said land above described; and, the first party shall also be personally liable to the second party for all sums due under the terms and conditions of this contract.”
It will be noted that paragraph 6 provided that the second party should render a statement of account to the first party showing all obligations and showing the amount due from the first party to the second party and the first party agreed to pay within ten days from the receipt thereof. The paragraph also provided that the second party should render an account each month showing the proceeds received from products taken from the lease and shall pay the first party its interest therein, but may withhold payment until it is paid for the expenditures. The paragraph also gave second party a lien on all proceeds of the lease to secure the payment of any sums due it.
On March 5, 1929, the parties entered into a contract covering the Mitschler and Catlett leases. On June 7, 1929, they entered into a contract covering the Charles W. Roberts leases. An additional cause of action is based on the development of the John Zeien lease. No contract is pleaded.
The contracts with reference to the other leases were substantially the same, and the transactions with reference to the John Zeien lease were substantially the same as those pleaded in both other leases.
It will be seen that the contractual relationship between the parties began on August 23, 1928. It continued through 1928, 1929, 1930 and up to November 18, 1931. The relationship terminated on that date, when a contract was entered into by the parties. That contract was as follows:
“This agreement, made and entered into this 18th day of November, 1931, by and between the Prairie Oil & Gas Company, a corporation, of Independence, Kan., first party, and the McKnab-Bess Oil Company, a corporation, of Winfield, Kan., second party, witnesseth:
“That whereas, the first party and the second party are joint owners of the following oil and gas leases in Cowley county, Kansas, and have been conducting joint operation on all of said leases except the Loren A. Brooks lease, to wit:
“. . . and the said first and second parties being each the owners of an undivided one-half interest in and to each of the above-described leases, and,
“Whereas, in the joint operation of said leases, the said the Prairie Oil & Gas Company have operated said leases (except the Brooks lease) under a written operating agreement and paid the costs and expenses incident thereto, and the second party has become indebted to the first party for such costs and expenses in the approximate sum of 3526,50(1, and it is the desire of both parties to liquidate said joint ownership of said leases and the operations thereunder and the claims of each party hereto against the other.
“Now, therefore, in consideration of the benefits moving from each party to the other herein and of the covenants herein contained, and the further sum of one dollar ($1), receipt of which is hereby acknowledged, the second party does hereby agree and does on this date assign and transfer to the first-party all its right, title and interest in and to the said above-described leases, proper and valid assignments being this day delivered, and the first party in consideration thereof does hereby acknowledge payment in full of all accounts and claims against said second party growing out of or connected with the said leases or the operation thereof, and does hereby assume payment of any accounts connected with or growing out of the drilling and/or operation of said wells, and each of the parties hereto hereby discharges and releases the other party from any claims growing out of said joint ownership and operation of such leases; provided, that this release, discharge and acquittance shall not apply to, include or cover, nor does the first party assume the payment of, any claims, demands, actions or causes of action arising or growing out of any loss of or damage to property or injury to or death of persons heretofore or hereafter asserted which may be due in any manner in the operation of said wells and/or leases, prior to this date.”
This action was commenced January 2, 1934, by the McKnabBess Oil Company, being an action for an accounting and for money against the Prairie Oil & Gas Company. The petition alleged facts about as they have been given here. Copies of all the contracts were attached. In addition .the petition alleged that monthly statements of account were furnished by the defendant to the plaintiff and remittances were made thereon; that on or about the 28th day of October defendant presented to plaintiff a statement of account showing that plaintiff .was indebted to defendant in the amount of $26,524.68, a copy of which statement was attached to the petition; that plaintiff paid the defendant the entire balance which defendant claimed to be due and that as a result the defendant collected considerable sums of money that it was not entitled to; that a copy of the contract of November 18, 1931, was attached by order of the court, and that on November 18 all interest of the plaintiff in all of the property was transferred to the defendant.
The petition then alleged that in connection with making the charges against plaintiff in the Roberts lease defendant charged plaintiff with six percent overhead on some expenditures which'were actually made on its own account and that on this account defendant obtained $2,441.94 from plaintiff to which it was not entitled, and that notwithstanding the terms of the contract defendant improperly charged against this lease depreciation in the sum of $2,217 upon casing which belonged exclusively to the defendant.
The petition also alleged that certain miscellaneous charges in the amount of $79.79 were made against this lease. The petition contained the followed allegation:
“Plaintiff says that at all times it assumed and believed that the monthly statements made by the defendant were correct and that all charges included therein were fairly and properly made. Its attention was never directed to any irregularities in such statements. None of the aforesaid items were ever brought into question or discussed between the'plaintiff and the defendant. It had no knowledge of said improper charges until same were discovered by the plaintiff’s auditors about six months prior to the filing of this suit. That a demand has been made upon the defendant for an accounting and the defendant has refused to make any corrections with respect to said erroneous charges.”
The petition contained similar allegations as to each lease. The prayer was for an accounting, and for a money judgment.
To this petition the defendant interposed a general demurrer on the ground that the facts stated did not constitute a cause of action and that it shows on its face that it is barred by the statute of limitations. This demurrer was sustained. Hence this appeal.
Plaintiff argues that the accounts rendered by defendant to plaintiff and upon which plaintiff paid money to defendant were not such accounts stated as to set in motion the statute of limitations.
This court considered this question in the case of Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P. 2d 896. In that case this court said:
“We hold that the rendition of a monthly statement to a depositor of the status of his account is fair notice to him of the amount the bank admits it owes him, and that it owes him no more. This practice of rendering monthly statements is bom of the necessities of modern banking. They are made for the mutual protection of the bank and its depositor. Such a monthly statement may justly serve as a notice to set the statue of limitations in motion. Having reached this conclusion, it will require no dissertation to show that the pertinent provision of the statute of limitations is the second clause of section 17 of the civil code (R. S. 60-306).” (p. 425.)
The accounts rendered in the case at bar are analogous to those made by a bank. The contract between the parties required that a statement of account should be made showing all obligations and charges contracted. Each statement contained items which made up the amounts it is claimed were erroneously charged. The plaintiff was charged with a duty to examine the accounts that were rendered each month and call the attention of the defendant to any errors or mistakes occurring in them. The plaintiff argues that some of the charges that were made were based on a wrong construction that was placed on the contracts with reference to the six-percent charge. No reason appears, however, why that wrong construction could not have been discovered as readily when the first statement was made as more than two years after the last one. It will be noted that plaintiff pleaded that at all times it assumed and believed that the monthly statements made by defendant were correct. No reason is pleaded or advanced in the argument as to why plaintiff was entitled to make any such assumption any more than any person who receives an account and pays it. Plaintiff argues that the relationship between the parties was a semifiduciary one, but the fact is, as appears from the petition, every transaction between them was evidenced in writing and they dealt with each other at arm’s length at all times. Each monthly account was an invitation to the plaintiff to examine it as to its correctness before paying it. When the auditors of plaintiff did examine the accounts the errors were found that are the basis of this action. Had as critical an examination been made when the first accounts were rendered in 1929 plaintiff would not have been confronted with the defense of the statute of limitations. As it is, we hold that the statute started to run when the first alleged erroneous account was rendered, and the action is barred by R. S. 60-306, paragraph 3. This conclusion is fortified by Porter v. Price, 80 Fed. 655; also, Knox v. Pearson, 64 Kan. 711, 68 Pac. 613. Plaintiff cites and relies on Schmoker v. Miller, 89 Kan. 594, 132 Pac. 158. We fail to see where plaintiff receives any support from this opinion. The syllabus reads:
“Where, in settlement of extensive business transactions parties have deliberately. accounted and in good faith agreed upon a balance intended to be final, the result should be accepted by a court unless for some legally sufficient reason substantial justice requires that the settlement should be opened or set aside.” (Syl. 113.)
This was a case where annual settlements of a farming business had been made for six years. This court held as stated in the above syllabus. It would be hard to state a case on paper where the parties “deliberately accounted” to any greater extent than they have in this case.
Defendant also argues that the contract of November 18, 1931, is a defense to the action in this case. In the first place, plaintiff complains that it was error of the trial court to compel it to attach a copy of this contract to the petition. The original petition contained a reference to the settlement. This being the case, we see nothing wrong about causing the plaintiff to attach a copy of the contract of settlement to the petition. Furthermore, no substantial right of plaintiff was prejudiced by causing it to attach this copy. There is no contention that the contract was not actually entered into. The only question is as to the effect of its provisions. No benefit would have resulted to plaintiff by waiting until defendant had pleaded this contract as a matter of defense.
As to the contract itself, the petition pleaded that following the final monthly statement of account on October 28, 1931, wherein plaintiff was shown to owe defendant a balance of $26,524.68 the contract was entered into.
The petition then pleaded that plaintiff paid this balance, and as a result thereof defendant collected considerable money that was not due it.
Under the terms of the agreement, the plaintiff acknowledged the indebtedness and conveyed its interest in the leases to defendant and defendant acknowledged payment of the indebtedness.
The petition nowhere charges that this agreement was obtained by defendant from plaintiff by fraud or mistake or that there are any errors or omissions in it.
The petition does not contain an allegation which has already been set out in this opinion — that plaintiff at all times assumed and believed that the monthly statements made by defendant were cor rect. This paragraph does not make any reference to the settlement made in the contract of November 18. The last statement was made October 28,1931. The settlement was made on the eighteenth of the following month. No reason appears why plaintiff did not make the audit of the accounts in the time that elapsed before this settlement was made and thereby discover the errors and omissions that it now claims were discovered some two years thereafter.
This contract is covered by the rule announced by this court in the case of Railway Co. v. Coltrane, 80 Kan. 317, 102 Pac. 835. In that ease this court held:
“Under all the circumstances shown by the findings of fact in this case, held, that the release in writing signed by the plaintiff acknowledging full satisfaction of all claims for personal injuries bars her right to recover, and entitles the defendant to judgment in its favor for costs.” (Syl.)
See, also, Black v. Railway Co., 103 Kan. 332, 173 Pac. 1068. There a settlement contract was upheld on account of showing that no fraud in obtaining it had been shown. Here no fraud was pleaded. Giving the petition the most liberal interpretation possible, no allegation of mistake or omission is pleaded that would justify setting aside this contract of settlement. We hold that plaintiff is bound by this contract.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto whereby the state questions the right of the county commissioners of Riley county to issue certain warrants and bonds.
The facts are admitted.
The question is, Does Riley county come under the terms of chapters 90 and 140 of the Laws of 1935?
Chapter 90 applies to counties having a population of not less than 19,000 and not more than 21,000 and having an assessed valuation of not less than $27,000,000 nor more than $30,000,000. It provides that such counties may issue emergency warrants in the amount of $36,306 in excess of the amount of general revenue fund warrants which the county might issue for the year under the laws existing prior to the taking effect of the act.
Chapter 140 applies to counties having a population of less than 21,000 and more than 20,000 and an assessed valuation of- less than $30,000,000 and more than $27,000,000. It confers on the board of county commissioners the power to issue bonds for the purpose of acquiring land and improving it for the purpose of establishing a park and recreational grounds under certain circumstances.
The board of county commissioners of Riley county attempted to take advantage of chapter 90 on April 9, 1935, and of chapter 140 on May 6, 1935. This action challenges their power to do so. All are agreed that Riley county comes within the provisions of both chapters as far as population is concerned. The state contends that the actual valuation of the county is more than $30,000,000. If this be correct, then the county does not come within the statutes and the commissioners do not have the power they are attempting to exercise.
The facts as to the assessed valuation of the county are as follows:
In June, 1934, after the assessment of property was made in Riley county and the board of county commissioners had acted as a board of equalization, the county clerk, pursuant to R. S. 79-1604, forwarded an abstract of the assessment rolls of the county to the state tax commission, which acts as the state board of equalization. The amount of the assessed valuation of the county, as shown by this abstract, was $29,937,785. In July, 1934, the state tax commission, sitting as a state board of equalization, equalized the valuation and reported it to the county clerk according to the terms of R. S. 79-1410. The valuation thus reported was $29,953,553. This was an increase by the state board of equalization of $15,768. This valuation was certified to the county in August, 1934. Between August 1,1934, and November 1, 1934, the county clerk found other property which had escaped assessment. This property was added to the assessment rolls pursuant to R. S. 79-1432 and R. S. 79-1427. The amount of this property was $157,029. This made the assessed valuation for the county $30,110,582. The taxes for 1934 were assessed upon the valuation of $30,110,582.
It will be noted that chapters 90 and 140 of the Laws of 1935 in providing to what counties the act shall apply use the term “assessed valuation.” The state contends that this means the valuation that is finally certified to the county treasurer, while the defendants contend that it means the equalized valuation that is certified to the county commissioners by the state tax commission.
In the resolution by which the county commissioners sought to take advantage of chapter 90 it is stated that at the time they were making the budget for 1935 the commissioners erroneously assumed that they would receive $36,306 for use in meeting the current expenses, which sum was due from or had been refunded by the city of Manhattan or the board of education of the city of Manhattan and other taxing districts of the county. The resolution recited that the board relied on this money and failed to make a sufficient levy to meet the budget requirements and that this money never was received.
The resolution by which the commissioners attempted to take advantage of chapter 140 contains all the necessary statements. The only question in this case is, Does Riley county come under the two chapters on account of its assessed valuation?
There must of necessity be some official record of the assessed valuation in a county which may be taken as the criterion for cases of this kind. It should not be the valuation placed on the property and certified to the state board of equalization by the county board, because the statute contemplates that this valuation is subject to the action of the state board, which may either raise or lower it as its judgment requires. After the valuation is certified to the county commissioners by the state board the statute does not contemplate any further changes except such as were made here under the provisions of R. S. 79-1432 and 79-1427 or certain statutes which will be noted. These changes are purely incidental. The amount of them could not be contemplated. The purpose of these statutes is to enable the proper officers to see that no property properly taxable in the county shall escape taxation. They are not a part of the final machinery set up for the purpose of determining how much taxes shall be levied.
R. S. 79-1409 is part of this machinery. It provides in part as follows:
. . Whenever the valuation of any taxing district, whether it be a county, township, city, school district or otherwise, is changed by the state board of equalization, the officers of such taxing district who have authority to levy taxes are required to use the valuation so fixed by the state board as a basis for making their levies for all purposes. ...”
This provision is mandatory. (See Railway Co. v. Harper County, 88 Kan. 651, 129 Pac. 1165.)
The valuation is certified to the county board of equalization sometime during August. In the meantime the county commissioners have met and prepared their budget for the coming year in compliance with R. S. 1933 Supp. 79-2927. Sometime during August the other taxing districts of the county file their budgets with the county clerk, together with their tax levies. When the valuation is received from the state tax commission the county commissioners apply the budget requirements of the county to it and thus determine what the levy must be in the county. The certificate from the state tax commission contains a statement as to what the levy for state purposes shall be.' Thus is made up the final tax levy. The county clerk retains this equalized assessment from the state tax commission on file in his office. He uses the levy rate that has been arrived at by the county commissioners and applies it to each piece of taxable real property in the state and all the taxable personal property. This is the tax roll which he certifies to the county treasurer. It is that roll which that official uses in the collection of taxes.
At -any time after the assessment rolls are turned over to the county clerk until they are certified to the county treasurer on November 1, it is the clerk’s duty to put any property on the tax roll which for some reason has not been put there. To enable him to inquire into such situations he has power to summon witnesses and conduct hearings. (See R. S. 79-1432.)
By another statute the county clerk is given authority to place property on the tax rolls where it has escaped assessment, and where it has escaped assessments within five years preceding he shall place it on the rolls for those years at twice its value. (See R. S. 79-1427.)
These are not all the sections that provide for a possible change in the assessed valuation in a county. R. S. 79-1701 provides that any time previous to November 1 the county clerk may correct errors in the tax rolls. By the provisions of the same sections the county clerk cannot make any more corrections after November 1, but from that time until February 1 of the next year the county commissioners may make corrections. At any time up to June 20 of the succeeding year the tax commission may correct errors. This section provides that valuation placed on property shall not be considered under the act, but a change could be considered that would make a difference in the assessed valuation of the county.
R. S. 79-1702 provides that at any time prior to August 1 of the year succeeding the one when the assessment was made the state tax commission may remedy any grievance that is called to its attention. This section is made to apply to any grievance which has not been remedied under the preceding sections.
It will be seen from an examination of these sections there is no time when the assessed valuation of a county, as it appears on the rolls, is not subject to change from March 1 of the year when the property is assessed until August 1 of the succeeding year. There is, however, a time when the valuation is fixed for the purpose of making the levy. That is when the valuation is certified down to the county by the state board of equalization. The changes that may be made pursuant to the sections that have been reviewed are incidental changes. They are intended to prevent unjust taxation and to make sure that all property pays its share of taxes. On the other hand, the valuation as certified by the state board of equalization is always on file and remains the same throughout the entire year. When it is certified to the county clerk for the current year it takes the place of the one that had been on file for the preceding year. During the entire year, however, this valuation would remain the same. It is logical to presume that when the legislature used the term “assessed valuation” in the acts under consideration the intention was that the valuation upon which the budget of the county is based was to be used rather than some other valuation that might fluctuate from day to day. It is not too much to say that when the valuation is returned to the county clerk the assessment of property in the county is complete. What remains to be done does not relate to fixing a valuation for property, but to correcting errors and finding property which for one reason or another had not been placed on the tax rolls at all.
The legislature had this intention when it enacted R. S. 10-301. That section provides a limitation on the amount of bonds which may be issued by any municipality. It must be only a certain percent of the assessed valuation as shown by the last finding and determination by the proper board of equalization. This means the last finding of the state board of equalization is certified to the county clerk. The above statute is not controlling in this case, but it does throw some light on the necessity — in cases that depend oh a valuation being fixed — of a holding that the valuation should be certain for the year.
In the absence of a direction by the legislature otherwise we conclude that the words “assessed valuation” used in chapters 90 and 140 of the Laws of 1935, mean the assessed valuation as found by the last action of the state board of equalization and certified to the county clerk.
One more question remains in this case. The valuation certified to the state board of equalization for 1934 on the tangible property was $28,420,914. The total valuation of intangible property was $1,516,781. The state board of equalization certified back a valuation of $28,419,708 for tangible property, and $1,533,845 for intangible property. The combined valuation of tangible and intangible property, as found by the state board, was $29,953,553. As has been stated heretofore, the county clerk added enough property after the valuation was returned to make the valuation, as filed with the county treasurer, $30,110,582. It will be seen that if intangible property is not considered as a part of the assessed valuation the county will be within the terms of chapters 90 and 140 of the Laws of 1935 even though a different conclusion had been reached on the point considered in the first part of this opinion.
We shall consider that question. The two valuations are certified as separate items by the county. They are considered separately and certified back to the county clerk. The rate of taxes to be borne by this class of property is fixed by the statute at five mills on the dollar valuation. The money thus raised is apportioned by an arbitrary method under R. S. 1933 Supp. 79-3115. This apportionment provides that one sixth shall be paid to the state general fund, one sixth to the county general fund, one third to the general fund of the city or township and one third to the general fund of the school district in which such intangible property is assessed. It will be seen that the levy made by the different taxing bodies is not applied to the intangible property. The certificate sent down by the state board states what the rate of levy for the state purposes shall be on the tangible property. The intangible property is not assessed with the intention that it pay the ad valorem rate.
The tangible property is the only property upon which is extended a tax levy for raising money to pay bonds, the interest on bonds and warrants such as are being considered in this case.
If the assessed valuation of intangible property is included, together with all tangible property, in arriving at the assessed valuation of a county for the purpose of fixing its authorized bonded and other indebtedness then clearly the tangible property would carry and pay an unfair and added tax burden placed upon it by reason of any indebtedness, such as bonds or warrants, no part of which intangible property ever pays.
Plaintiff urges that in the past when the assessed valuation of counties has been examined to ascertain whether proposed bond issues were within the limit set by statutes the valuation of intangible property has been used as the criterion plus that of the tangible property. Concern is felt that a holding by this court that the valuation of intangible property is not a part of the assessed valuation of the county will render some bond issues invalid. This court cannot pass on such a question until it is submitted to it. It is doubtful, however, whether such -a holding would have any effect on the validity of any bonds that have been sold heretofore.
The conclusion of this court is that the words “assessed valuation” as used in chapters 90 and 140 of the Laws of 1935 mean the assessed valuation as found by the last action of the state board of equalization before the county board attempted to take advantage of these chapters, and that in finding what the assessed valuation of a county is the tangible property only should be considered, and not the intangible.
The writ of quo warranto will be denied.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
A purchaser of land from the holder of a void tax deed commenced an action to obtain possession of the land because of default of the landowner to satisfy a judgment previously rendered for the amount of the taxes, or for other relief which would secure satisfaction of the previous judgment. A demurrer to the petition was overruled, and the present owner of the land appeals. For convenience, the successor in interest to the tax-deed holder will be regarded as tax-deed holder.
M. S. Lockwood, now May S. L. Clements, owned the land and suffered it to go to tax deed issued to W. A. Gray on September 2, 1919. Gray conveyed to M. D. Bryant. A mortgage on the land was foreclosed, and a sheriff’s deed was issued to the Phoenix Mutual Life Insurance Company on March 19,1934. On September 4,1934, Bryant commenced an action against Clements and the life insurance company, the general nature of which has been indicated.
The petition disclosed that in the year 1920 Bryant commenced an action against Lockwood to recover possession of the land and to quiet his title. A copy of the journal entry of the judgment in that, action was made a part of the present petition and contains the following:
“It is further ordered and adjudged that the said tax deed as referred to in plaintiff’s amended petition is void upon its face and that the plaintiff has no right, title or interest in or to said real estate referred to in plaintiff’s petition.
“Thereupon the plaintiff asked that he have judgment against the defendant, M. S. Lockwood, for the amount of taxes, interest, penalties and costs specified in said tax deed, with interest thereon at the rate of twelve (12%) percent per annum from the 2d day of September, 1919, and for the further sum of ninety-six and 50/100 ($96.50) dollars, with interest thereon at the rate of twelve percent (12%) per annum from November 1, 1919, being for the taxes paid on November 1, 1919.
“It is therefore here and now considered, ordered and adjudged that the plaintiff, M. D. Bryant, have judgment against the defendant, M. S. Lockwood, for the sum of five hundred thirty-five and 90/100 ($535.90) dollars, together with the costs of this suit taxed at sixteen and 30/100 ($16.30) dollars, making a total sum of five hundred fifty-one and 20/100 ($551.20) dollars, and that upon the payment of said sum to the clerk of said court, the said plaintiff shall be forever barred from asserting any right, title or interest in or to the following described real estate: [description].”
No appeal was taken from that judgment and it became final in 1920. The present petition contains the following allegations:
“That no part of said sum ordered to be paid in accordance with said journal entry has been paid, and that this plaintiff is entitled to recover from the said defendants said sum so adjudged to be due this plaintiff under the occupying-claimant’s law, or in the alternative, should be put into possession of said real estate until said sum is paid.”
The prayer of the petition reads:
“Wherefore, the premises considered, plaintiff prays that he be adjudged to be entitled to the possession of the real estate herein described until the sum of $535.90, together with legal interest thereon, be paid, and that the court make such other and further equitable orders as may be just and necessary to preserve the rights of this plaintiff under the occupying-claimant’s law.”
In 1920, while out of possession, Bryant commenced an action to obtain possession, and was defeated. There is no allegation in the petition that he subsequently obtained possession. He is now suing for possession. What application the occupying-claimant law has to the case is not explained in Bryant’s brief. It has no application, and so far as relief was predicated on the occupying-claimant law, the demurrer should have been sustained.
Aside from relief under The occupying-claimant law the only relief prayed for was possession of the land.
In an action for possession finally determined in 1920 Bryant was denied, possession. Since the tax deed was void on its face he had no possessory estate, and he was not granted possession as a means of securing payment of taxes. He does not now contend he has a possessory estate. What he asks is that the landowner be ousted, and that he be put in possession until the amount of his judgment for taxes shall be paid. There is no statute authorizing employment of such a drastic method of enforcing payment of taxes, and Bryant •has no more right to a judgment for possession now than he had in his first action, in which possession was denied. The statute prescribing remedy of a tax-deed holder merely provides that if he is in possession when judgment is rendered nullifying his tax deed he may remain in possession until the supplementary judgment establishing the amount of taxes he has paid is satisfied. (R. S. 79-2506.) If the tax-deed holder is out of possession he can have no more than a lien, and there is no common law of liens which authorizes a court to oust the landowner and put the lienholder in possession until the landowner pays. The result is, that so far as remedy by award of possession is concerned, the demurrer should have been sustained.
The foregoing disposes of the case made by the petition, which is all the district court had before it, and all this court has before it.
While the occupying-claimant law, and no other, was referred to in the statement of cause of action in the petition and in the prayer, Bryant now says that statute was “inadvertently” invoked. If the reference in the petition to the occupying-claimant law be disregarded, what relief, other than being put in possession, may Bryant have under his petition?
This is not an initial action by a tax-deed holder to obtain possession, in which validity of the tax deed may be adjudicated, and if the tax deed be held void, provision may be made with respect to reimbursement for taxes paid. An action of that kind was commenced, tried and finally determined, and Bryant was obliged to make the judgment in that action the foundation of the present action. Otherwise, the present petition would confess former adjudication, and a plea of former adjudication would be sustained as a matter of course.
In the first action Bryant submitted to judgment declaring his tax deed void, and then made 'a specific request. He requested that he be given judgment against Lockwood for the amount of taxes paid, with interest and costs, and nothing else. The court gave him judgment against Lockwood for taxes paid, with interest and costs, and nothing else. He did not ask that the judgment be made a specific lien to be enforced by sale of the land, and no such lien was given. Again Bryant acquiesced, and the judgment became a final determination of the rights of the parties to the action. Some fourteen years later Bryant asked the court to do something whereby he could be benefited by the judgment.
Bryant suggests he probably could not have enforced the judgment by simple execution. Because of the peculiar nature of the judgment in fact rendered this court thinks otherwise; but the subject is not material. If the present action is well founded, Bryant could have commenced a similar action within five years. Not having done so, the present action was barred by the sixth subdivision of R. S. 60-30.6.
Bryant contends the general statute of limitations has no application, and cites the case of Coonradt v. Myers, 31 Kan. 30, 2 Pac. 858. In that case the question was whether a defeated tax-deed holder could recover all taxes he had paid, or whether recovery was limited to those advancements which had been made within three years previous to commencement of suit. The court properly held the general statute of limitations relating to action on contract, express or implied, and to action to enforce a liability created by statute, did not apply, because the tax-deed holder had no cause of action to recover any taxes until his tax title was adjudged to be defective.
Bryant cites the following from the opinion in the case of Russell v. Hudson, 28 Kan. 99:
“Under the statutes of Kansas, all taxes upon real property, with all proper penalties, charges and interest thereon, are liens upon such real property, from the time when they first accrue thereon until they are finally ‘paid by the owner of the property, or other person liable to pay the same.’ ” (p. 100.)
The portion of the opinion between quotation marks was taken from the tax law then in force, and now R. S. 79-1804. When, however, the claimants have gone into court, and have procured an adjudication of their rights, interests and liabilities, the judgment controls:
In the opinion in Russell v. Hudson, the court further said:
“These liens may be determined and declared by the district court in an action of ejectment, whether the action is commenced by the party holding the tax deeds or by the party claiming adversely thereto.” (p. 101.)
When a tax-deed holder has brought his action for possession, has been defeated, has procured ascertainment of amount of taxes, and has secured all the relief he asked for with respect to reimbursement, he has exhausted his remedy.. The rights of the parties are then measured by the judgment. A lien for taxes continues only so far as preserved by the judgment, and the tax-deed holder may not, in order to better his situation, found a new cause of action on the judgment after the statute of limitations applicable to actions on judgments has run.
Bryant’s difficulty is twofold. In the first place, he took a personal judgment against Lockwood to which he was not entitled, and permitted the judgment to become dormant.
The statute provides in effect that when a tax-deed holder is defeated in an action by or against him for possession, the successful claimant shall be adjudged to pay to the defeated claimant all taxes, interest and costs before the successful claimant shall be let into possession. (R. S. 79-2506.) That provision can apply only when the successful claimant is out of possession, and does not authorize a personal judgment against a successful claimant who is in possession, such as Lockwood, in the present instance. In such a case the tax-deed holder’s remedy is by judgment of court, declaring a lien and ordering a sale unless the successful claimant satisfies the lien before sale.
In the second place, when he had an opportunity to do so, Bryant did not take a judgment for lien and sale, to which he was entitled. Both parties were satisfied and the judgment became final. The petition in the present case pleaded the judgment. Neither party has ever complained to the district court that the judgment, as shown by the copy of the journal entry attached to the petition, was not correctly recorded, and so far as this court is concerned the copy imports verity. After expiration of the term at which the judgment was rendered the district court had no power to change it, and this court has no power to change it or to regard it as different from what the record shows. This action is one for relief beyond that awarded by the judgment, and if the action was ever maintainable it should have been commenced within five years from date of rendition of the judgment.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Christina Howell against her husband, J. D. Howell, for separate maintenance and alimony. She charged the appellant with adultery and extreme cruelty. The trial court decided in her favor, awarding her alimony. It is claimed the award was excessive.
It was shown that she had contributed to the family treasury a gift from her father of $1,700 and her earnings from sewing of $300 to $480 per year, amounting in all to about $9,600. She was given the residence, the household goods, an automobile and a life estate in a garage building, subject to a $1,500 mortgage and taxes. Appellant was given two automobiles and all other property owned by him, including the Pierce note for $6,000, of doubtful value, and other notes aggregating $570, and the remainder in the property after appellee’s death.
After the judgment was rendered against appellant, he voluntarily paid the costs in the case. Plaintiff has filed a motion to dismiss the appeal on the grounds of voluntary payment of the costs by the appellant. It is stated that payment of the costs is an acquiescence in the judgment which under the authorities waives the right to an appeal and leaves nothing for us to consider. The plaintiff cites the following cases, and many others might be cited: Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; State v. Massa, 90 Kan. 129, 132 Pac. 1182; Round v. Power Co., 92 Kan. 894, 142 Pac. 292; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Highland v. Hogue, 131 Kan. 512, 292 Pac. 750; Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259; Buchan v. Boyns, 141 Kan. 901, 44 P. 2d 268.
Following these authorities, and the showing of the voluntary payment of costs by the appellant, it must be held he thereby acquiesced in the judgment, and hence this appeal is dismissed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal is the aftermath of a land trade which eventuated in a mortgage foreclosure. The particular question of present concern is whether the judgment debtors were properly denied the benefits of the moratorium statute of 1935 (Laws 1935, ch. 226) on the ground that the foreclosed mortgages were a second lien on the property and that the sale thereunder was made subject to a first mortgage.
In summary the pertinent facts were these:
Leach, plaintiff, and Roberson, defendant, entered into a somewhat complicated contract of exchange of certain lands in Cheyenne county. The lands which Leach traded to Roberson (together with other lands of Leach) were covered by a mortgage held by a bank in Kansas City. Roberson gave Leach two mortgages, one for $5,000 and another for $1,500,- as part consideration for the Leach lands conveyed to him. It was agreed that as fast as these two mortgages were liquidated the proceeds would be devoted to the extinction of the superior lien of the Kansas City bank. Default was made by Roberson in the payment of his obligations, and Leach brought an action to foreclose the two mortgages Roberson had executed to him.
On October 8, 1932, the parties entered into a written stipulation that Leach should have judgment against Roberson for $7,157 and that the mortgages should be foreclosed and the premises sold and the proceeds distributed in a prescribed order of precedence.
This stipulation also provided that Leach should bid the full amount of the judgment and costs, and provided for the possibility that some outside bidder might outbid the plaintiff.
The stipulation also provided that Roberson should have eighteen months to redeem the property, and that, if he did redeem, the money (after deduction of court costs and taxes) should be paid by the clerk of the court toward the liquidation of the mortgage held by the Kansas City bank or its assignee.
It was further agreed in the stipulation that if Roberson did not redeem, Leach would indemnify him against any liability or obligation to pay the mortgage indebtedness due-the Kansas City bank, and Roberson was to receive the rents and profits and enjoy the right of possession of the property until the expiration of the period of redemption.
The trial court approved the stipulation and ordered judgment thereon. The journal entry of that judgment contains a recital that the “said mortgage is a second lien-, subject and inferior to the first lien of the mortgage now held by the Phoenix Joint Stock Land Bank” which was the assignee of the Kansas City bank. This judgment was entered on October 8, 1932, and the sale in foreclosure was had on January 9, 1933.
Owing to the various so-called moratorium statutes which were enacted subsequent to the date of the sheriff’s sale, the plaintiff did not move for a sheriff’s deed and for possession of the premises until March 5, 1935. This motion was resisted by defendants in reliance on the moratorium act of 1935; but the trial court held that defendants were excluded from its privileges by the express terms of section 6 of that act, which declares that it shall not apply to real property “upon which a second mortgage has been foreclosed.” At the same time defendants’ motion to extend the time of redemption until January 15, 1937, was overruled.
On March 21, 1935, defendants filed a motion to correct the journal entry of judgment rendered on October 8, 1932, by striking out the recital therein that the mortgages givén by Roberson to Leach were a second lien and subject to the first lien of the Kansas City bank. The basis of this motion was that the judgment should have been entered exactly as set forth in the stipulation of the parties, and that nothing in the stipulation intimated that the mortgages being foreclosed were second or junior liens to the mortgage of the Kansas City bank.
This motion was denied, and defendants appeal.
First, let us observe that no constitutional infirmities are raised against any of the moratorium statutes which delayed the issuance of a sheriff’s deed to plaintiff at the end of the ordinary redemption period, July 9, 1934. Plaintiff merely stands on the literal text of section 6 of the act of 1935. Defendants insist that they should not rest under the handicap of judgment debtors excluded from the benefits of that act. Their peculiar difficulty, however, is that the judgment of October 8, 1932, declared that the mortgages they had given and which were being foreclosed were a second lien and inferior to that of the prior one held by the Kansas City bank. If the defendants were not content to abide a judgment to that effect, or considered it to be at variance with their stipulation for judgment, they should have objected to that judgment while it was still within the judicial power and discretion of the trial court to correct or alter it, or they should have made a timely request for leave to withdraw the stipulation and to join issues in the foreclosure action. Once the term of court at which the judgment was rendered had expired, however, the trial court could not alter it — except as authorized by some provision of the code, none of which could be made to fit the present situation. (Thornton v. Van Horn, 140 Kan. 568, 37 P. 2d 1015.) The instant case is not like one where the journal entry of judgment did not accurately recite what the court decided. If such had been the case, the journal entry could be corrected at any time to speak the truth, that is, to -set down the exact terms of the court’s decree. (Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479.) Here there was no contention, and there should be none, that the mortgages executed by defendants and which were the subject matter of the foreclosure proceedings were in fact second mortgages, and the trial court’s ruling was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a ruling sustaining a demurrer to plaintiff’s evidence.
On September 10, 1929, the stockholders of the Concordia State Bank, hereafter called the Concordia bank, held a meeting to consider liquidation of the bank, and in connection adopted a resolution authorizing the board of directors to enter into a submitted form of contract whereby their bank was to be liquidated through the Farmers and Merchants State Bank of Concordia, hereafter called the Farmers bank, and appointing plaintiff as liquidating agent to wind up the affairs of the. bank. On the same day the board of directors met and adopted a similar resolution. Under both resolutions the board of directors and the officers were authorized to “carry out the terms and provisions” of the contract and to “make proper transfers and conveyances by deeds, assignments and by other written instruments necessary to carry out said agreement and to complete such liquidation.” (Italics ours.) On Sep tember 14, 1929, the contract between the two banks was executed. Briefly stated, the Concordia bank was to transfer to the Farmers bank all of its deposits, which the Farmers bank assumed and agreed to pay. Contemporaneously the Farmers bank was to purchase from the Concordia bank loans and discounts to an amount approximately equal to such deposits, the title to be transferred by indorsement “without recourse.” No sale or transfer was to be made until the Farmers bank could examine the loans and discounts. The contract stated the amount of the deposits to be transferred and the amount of the loans to be purchased could not then be ascertained, and that within thirty days the requisite investigation would be made as to loans to be purchased, and the schedules of deposits and loans purchased would then be prepared and the matter concluded. The 12th paragraph of the contract recited:
“For the purpose of legally effecting its disability from continuing in the business of receiving deposits subject to check and any general banking business, second party [the Concordia bank] agrees immediately upon the transfer of such deposits and assets to call and hold a formal stockholders meeting for the purpose of going into such voluntary liquidation and to authorize and/or ratify the sale of the assets described in schedule ‘E’ hereof to first party." (Italics ours.)
Many other provisions of the contract are not noted, as they are not material to this appeal.
The Concordia bank had an account with a St. Joseph, Mo., bank where it discounted its notes, and on September 14,1929, the amount of its obligation was $20,000. It is not entirely clear from the evidence as abstracted whether the amount was $10,000 or $20,000. Matters under the liquidation contract proceeded and were ready for final action on October 4, 1929. In the meantime, customers of the Concordia bank had drawn out more money than had been received on deposit and additional discounts were made so that on October 4,1929, the Concordia bank owed $25,415.36, to secure which it had hypothecated notes amounting to $30,000 or more. The Farmers bank had elected to take all or a considerable part of the hypothecated notes, and when the time for closing arrived, it was necessary that these notes be released by payment or transfer of the indebtedness, and this was done by the Concordia bank borrowing from the Farmers bank the amount, of the indebtedness, paying it to the St. Joseph bank, and receiving the collateral. The details of the account need not be stated, but the matter was concluded between the Concordia bank and the Farmers bank, and thereafter depositors, including appellees, looked to the Farmers bank for their deposits. It does not appear that the Concordia bank stockholders ever had a meeting to vote liquidation, but notwithstanding affairs proceeded as though it had been held, Cory took charge of the untransferred assets and continued with the liquidation of them until May 13, 1932, when he filed an action for the appointment of a receiver to complete the liquidation, and on May 18, 1932, a receiver was appointed.
The receiver instituted actions against the appellees to recover statutory liability. Cory filed a claim for salary due him as president of the bank prior to the merger, for expense items paid by him in liquidation, for moneys paid by him personally on the note to the Farmers bank, and for interest, the total charge being $26,-156.46, against which he credited amounts received, with interest allowed, totaling $5,949.20, the balance claimed being $20,207.26. In his petition for allowance of the claim, he gave further credit for the amount of $7,100 as statutory liability on stock owned, leaving a claimed balance of $13,207.26 (should have been $13,107.26). Objections to its allowance were filed by appellees. As printed, the objections cover nine pages of the abstract. They raise many questions not here necessary to notice. We need state only that they question Cory’s right to recover for the reasons hereafter mentioned.
At the trial appellees contended, as here, that the note of the Concordia bank to the Farmers bank was made without authority, was beyond the terms of the liquidation contract, and- that as to the other items they were offset by his admitted liability. It may here be stated, however, that on this appeal we are concerned only with the authority of the Concordia bank to make the note and Cory’s right to recover for amounts paid on it. In connection with his proof, Cory offered in evidence a resolution adopted by the board of directors on January 4, 1924, authorizing the president, vice-president and cashier to borrow money and pledge notes and rediscount bills receivable, the resolution stating the powers should continue until express notice in writing of their revocation had been given. Such authority had never been revoked. He also testified in detail with reference to the closing of the liquidation contract, the note to the Farmers bank and the circumstances under which it was given, his account as liquidating agent, etc. At the close of Cory’s evidence appellees demurred, suggesting eight or nine reasons why appellant should not prevail, one of them being that the note was given without authority, was ultra vires, and had never been ratified or approved by the stockholders. The court did not immediately rule on the demurrer, but to save time heard evidence of the appellees. Later it found that plaintiff’s demand, exclusive of his claim based upon payments made on the note of October 4, 1929, to the Farmers bank, did not equal or exceed the claim confessed by him in favor of the Concordia bank on account of his stockholder’s liability, and it then ruled:
“The demurrer of' the contestants is sustained, the court considering that the resolutions of the stockholders did not give the bank authority to execute new obligations for borrowed money, the court being of the opinion that the authorization given to the directors was merely to execute the necessary conveyances and transfers to effect the object of the meeting.”
Cory appeals.
As we review the evidence, the trial court erred. It may be noted that even though the Concordia bank had no authority whatever to make the note of October 4, at the time the contract for liquidation was entered into, it owed the St. Joseph bank $20,000, and this amount was included in the $25,415.36 note paid by Cory individually. Whatever might be said about the power of the Concordia bank to make the second note, there is absolutely no question about there being borrowings from the St. Joseph bank as of September 10, and under any theory Cory is entitled to recover.this amount if he paid it, even though the methods followed may have involved the giving of an unauthorized note. However, it is to be observed that when the liquidating contract was authorized on September 10, 1929, and when it was executed on September 14, 1929, it was apparent that the exact amount of deposits to be assumed and the particular loans and discounts to be purchased by the Farmers bank were uncertain, as is readily ascertainable from the contract which had been reduced to writing and was before the stockholders at their meeting on September 10. The contract specifically provided that the Concordia bank, upon the transfer being made, would immediately hold a formal stockholders’ meeting to authorize liquidation and to ratify what was done. The fact the meeting was never held makes no difference, the bank certainly was not in liquidation prior to the performance of the contract on October 4. It is also quite apparent under the contract, and must have been known to the stockholders at their meeting on September 10, that the condition of the bank as to amounts due to depositors would change from day to day until the Farmers bank took over the liability. If the officers of the bank had permitted the cash on hand to be exhausted and a depositor had thereafter demanded his due, the bank would have had to close, and the entire purpose of the contract would have failed. The stockholders’ resolution empowered the officers to carry out the terms and provisions of the contract and to “make proper transfers and conveyances by deeds, assignments and by other instruments necessary to carry out said agreement and to complete such liquidation.” In view of the fact the bank was left as a going institution for the time being, that the resolution authorizing the officers to borrow money and hypothecate and discount bills receivable remained unrevoked, and that they were under obligation to complete the liquidation, it follows they had power to borrow money to keep the bank open until the liquidation contract could be performed. When the original amount due the St. Joseph bank on September 10 was' increased, so far as the evidence showed, the moneys received ■were used to pay off depositors, and when on the closing day the indebtedness was transferred from the St. Joseph bank to the Farmers bank, all that happened was merely to change creditors. (See Fourth National Bank v. Smith, 141 Kan. 858, 44 P. 2d 242.) Cutting through the entanglements of the evidence, in effect it showed that Cory paid depositors or bank’s obligations, and, so far as the record shows, is entitled to repayment. If Cory paid the note and is not permitted to recover the amounts paid thereon, the effect is to permit the Concordia bank to pay less and do less than it contracted to do, all to the ultimate advantage of its shareholders. The only conclusion that can be drawn from plaintiff’s evidence is that he paid the note and is entitled to recover the amounts so paid.
In the discussion of this case we have avoided the specific items of Cory’s claim, other than payments on the note of October 4, and as to these we assume payments were made as shown, for under the trial court’s finding and its ruling on the demurrer, it is obvious it made no finding other than they did not exceed his admitted liability. We are therefore not concerned with some matters urged in the briefs. On the trial of the cause in the lower court, the correctness of the account, the objections to it, the question of the statute of limitations and other matters urged why the claim should not be allowed are proper for consideration.
The trial court’s ruling sustaining appellee’s demurrer to appellant’s evidence is reversed, and the cause remanded. | [
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The opinion of the court was delivered by
Wedell, J.:
This appeal deals with the appointment of a receiver.
The plaintiff, a minority stockholder in the defendant, the Austin Securities Company, a corporation, brought this suit. He obtained the appointment of a receiver for the defendant company and an injunction against that company. The defendants have lodged their appeal here to reverse that judgment. The appointment of a receiver is the main issue.
Frequent references will be made to the defendant, the Austin Securities Company, and to the W. A. L. Thompson Hardware Company, a corporation. For brevity we will designate the former as the “securities company,” and the latter as the “hardware company.” The trial court made findings of fact and conclusions of law which appear later in this opinion. Space will not permit narrating all those facts here. There is not much complaint with the findings of fact, and that limited complaint will receive attention later. A few important facts will be sketched, however, in order to clarify the main broad issue.
The defendant securities company is a creditor of the hardware company. -The hardware company and none of its other creditors are parties to this suit. The claim of the securities company against the hardware company in the sum of $227,688, is its only asset of substantial value. The hardware company and the securities company had a common board of directors. The ownership of stock in them is not the same. The main conflict in the light of the unchallenged findings of fact arises in connection with tentative preference contracts between the hardware company and its other creditors, alleged preferred payments made to other creditors by the hardware company and in connection with a certain written agreement between the hardware company and the securities company known as the repurchase agreement.
Plaintiff, in the commencement of his suit, obtained an order restraining: first, the directors of the securities company from joining in the proposed preference contracts, which would subordinate its claim of $227,688 against the hardware company to the claims of other creditors of the hardware company; second, from surrendering any of the collateral held by the securities company as security for its claim; third, from otherwise dissipating or disposing of any of the assets of the securities company.
After the restraining order was served on the defendant directors of the securities company, the hardware company made payments to its other creditors. No questions are raised here concerning any defect or insufficiency of the pleadings, but in order that the contentions of the parties may be more clearly understood a.summary of the pleadings will be made.
The material allegations of the amended petition, in substance, were:
That the plaintiff is the owner of 138 shares of the preferred stock of the defendant securities company of the value of $100 per share, and the owner of 240 shares of the common stock, and that the hardware company is indebted to the securities company in excess of $200,000, the indebtedness being secured by collateral, and that the hardware company is indebted to other creditors and is unable to pay its debts in the regular course of business, and is in imminent danger of insolvency; that the securities company is about to surrender to the hardware company without compensation the collateral held to secure the indebtedness due the securities company and that the hardware company is threatening to and is about to enter into a contract with its various creditors by the terms of which contract all of the other creditors of the hardware company are to be preferred, and under the terms of which contract the indebtedness to the securities company is to be deferred until all of the other creditors of the hardware company are paid in full.
That the financial interests of the hardware company and securities company are adverse and that the board of directors of the securities company occupy the inconsistent position of attempting to represent both the hardware company and the securities company, and that by reason of their superior interest in the hardware company they are unfitted and incompetent to properly represent the interests of the shareholders of the securities company; that the proposed contract would seriously affect the solvency of the securities company and would constitute a surrender without compensation or value of securities now held by the securities company in trust for the use and benefit of its shareholders.
That unless the securities company is restrained from entering into the proposed contracts and from voluntarily surrendering the collateral it now holds as security for the indebtedness owing by the hardware company, such contracts will be entered into and the collateral surrendered without compensation and the solvency of the securities company destroyed, to the irreparable loss of plaintiff and other shareholders of the securities company.
That the defendants, the board of directors of the securities com pany, since they are at the same time directors of the hardware company, occupy inconsistent and irreconcilable positions and are incompetent in law and in fact to exercise the duties and responsibilities and to perform the trust imposed by law upon them as directors and managers of the affairs of the securities company.
That plaintiff was induced to purchase his preferred shares of stock in the securities company on the representations made by the managing officers and directors of the securities company.
That the purpose for issuing and selling the preferred stock was to raise money to carry the sales contracts of the hardware company and that the proceeds from such sale would be used for that purpose, and that the banks had theretofore carried such sales contracts for the hardware company and had during the previous year realized a profit thereon of approximately $30,000; that plaintiff relied upon these representations, but that a major portion, if not all, of the proceeds from the sale of preferred stock have been invested in direct loans to the hardware company although the hardware company had at the time exhausted its credit with the bank, and that the securities company and its officers and directors knew at the time they made such loans that the hardware company was in an embarrassed financial condition; that because of their financial interest in the hardware company and being directors and officers of that company at the time, without due regard to the interests of the securities company and its stockholders, and in violation of their promises and representations, they loaned the money direct to the hardware company without taking collateral security therefor, and that this was done in disregard of their duty to the securities company.
Paragraph 12 of the amended petition alleges “that the defendants (naming the directors of the Austin Securities Company, and Robert B. Austin, now deceased), before and at the time of the organization of the securities company were the owners of 1,258 shares of the common stock .of the hardware company and were then the officers and directors of the hardware company and constituted a majority of the board of directors and of the officers of that company and that upon the organization of the securities company they became officers and directors thereof and constituted a majority of the board of directors and of the managing officers of that company de facto.”
In this paragraph plaintiff further alleges that these individuals as officers of the hardware company and de jacto officers of the securities company entered into pretended transfers of common stock between themselves and the securities company and between the two companies for the purpose of controlling the management of the hardware company through the securities company and that said attempted sales or exchanges of stock were fraudulent and void ab initio and beyond the power of the securities company to consummate.
Paragraph 13 of the amended petition states that plaintiff is without adequate remedy at law and prays that the defendants be temporarily restrained from entering into the proposed contracts and from surrendering the collateral held by the securities company as security for the debt of the hardware company or from otherwise dissipating or disposing of any of the assets of the securities company and that permanent injunction be granted.
Plaintiff then prays that the alleged transfer of -the common stock of the securities company to the individuals named be declared null and void, and that the individuals be required to deliver back to the securities company all the common stock issued to them in pursuance of the fraudulent transaction described in paragraph 12 of the amended petition, and that the securities company be authorized and required to return to such individuals or their representatives the common stock of the hardware company.
Plaintiff further prays for a decree declaring that the individual defendants are not the duly elected and qualified directors and officers of the defendant securities company, but are merely de jacto directors and officers, and that under court order a stockholders’ meeting be called to reorganize the defendant securities company by the legal election of a board of directors, and that if deemed necessary by the court a receiver be appointed to take charge of the affairs of the defendant securities company so as to conserve and protect its assets for the benefit of its shareholders, and then prays for such other relief as may be just and equitable.
To the foregoing amended petition defendants- filed.their single answer, the substance of which is:
Defendants admit certain formal allegations in plaintiff’s petition contained, which allegations are not at issue in this appeal. They then allege that the defendant directors are the duly qualified and acting directors of the defendant securities company.
In answer to paragraph 12 of the amended petition, the defend ants describe what-t-hey understand to have been'the-procedure in the transfer of stock referred to. in paragraph 12 of.-plaintiff's amended petition; defendants further state that, all the matters and things related thérein were fully known to the plaintiff at the-time he purchased his stock, and that the purchase and sale of the common stock constituted a legal and valid transaction; that the defendant securities company is a legally incorporated corporation and that the things alleged in paragraph 12 of plaintiff’s amended petition' cannot be raised by plaintiff' in this 'actio'n, but can be raised only by the state of Kansas in a direct proceeding against the defendant securities company.
They further allege that:
“. . . the particular indebtedness from: the W. A. L. Thompson Hardware Company to the Austin Securities Company is an indebtedness owed the said company, and that plaintiff herein has no right, title or interest in or to said indebtedness. That the said plaintiff has no claim of any kind against this defendant, corporation, or the individuals comprising the board of directors, but that he is simply a stockholder in said corporation; that the present directors of said corporation have no interests inconsistent with or in conflict with the interests of the plaintiff in this action, and conduct said corporation in an honest, businesslike manner, and in such manner as their business judgment decrees the affairs of said corporation should be conducted. That a court of equity should permit said corporation to continue to do business under the management of its board of directors, and under the law, and should not interfere unless active fraud is proven on the part of said board of directors. That if it is deemed by the board of directors of said defendant corporation to be to the best interests of said corporation and its stockholders, and to the stockholders of its subsidiary, the W. A. L. Thompson Hardware Company, to subordinate the debt of, the W. A. L. Thompson Hardware Company to the Austin Securities Company until such time as the general trade creditors and bank creditors of said corporation are paid, said defendant board of directors, in the exercise of their sound business judgment-, proposes to subordinate ‘ said debt, and if at such time it should be deemed necessary, they will subordinate same, on such terms and conditions as they deem advisable.
“That said W. A. L. Thompson Hardware Company, as a going concern, is not insolvent, and under proper management defendant board of directors feels that all indebtedness from said company to its general trade creditors, and to the Austin Securities Company, will be paid in full, but that in order to secure said payment, arrangements will necessarily have to be made with trade creditors and banks to defer the payment of indebtedness owed by said the W. A. L. Thompson Hardware Company, in order to prevent a loss of approximately $500,000 to the preferred stockholders of the W. A. L. Thompson Hardware Company and to the Austin Securities Company, most of which stock is owned within the city of Topeka.
“That if the management of the present board of directors is taken away by this court, it is the judgment of defendants that the business of the W. A. L. Thompson Hardware Company cannot continue to ■ exist, and liquidation will inevitably result.” ’ >-
After the conclusion of the trial, the trial court made certain findings of fact and conclusions of law, which are as follows:
“1. The plaintiff, G. L. Jordan, owns-two hundred and forty shares of the common stock, and one hundred and twenty shares of the preferred stock of the defendant, the Austin Securities Company.
“2. The W. A. L. Thompson Hardware Company is a corporation organized and existing under the laws of the state of Kansas, and for many years has been engaged in the wholesale hardware business at Topeka. The business for which it was organized is stated in its original charter to be: ‘To buy and sell hardware'in. all its branches.’
“On the 24th day of December, 1919, the following amendment to the charter of said hardware company was adopted:
‘“That the purposes for which this corporation is formed, are to buy and sell hardware and automotive supplies and accessories, and to purchase, hold, sell, transfer, mortgage, pledge or otherwise dispose of the shares of capital stock of, or bond, securities or evidences of indebtedness created by any other corporation, or corporations of any state, or of the United States, or any other country, nation or government, which corporation shall be incorporated for the accomplishment of the same or similar purposes as the corporation incorporated hereunder or shall be incorporated for purposes, the accomplishment of which would be incidental to or would aid or facilitate the accomplishments of the purposes for which the corporation created hereunder was incorporated.’
“3. On the 25th day of June, 1930, the following-named persons were owners of a majority of the shares of the common stock of the W. A. L. Thompson Hardware Company, to wit: R. B. Austin, O. D. Collis, F. C. Kaths, E. C. Kieswetter, O. J. Kieswetter, R. LaBunker, Mrs. E. W. Swan, and owning approximately 1,250 out of 2,000 shares of the common stock of that company.
“These men also constituted a majority of the board of directors, as well as holders of a majority of the common stock of the said hardware company, and were the executive and managing officers thereof.
“On said day the said R. B. Austin, E. C. Kieswetter, Reginald LaBunker, J. W. Bauerline and O. D. Collis filed an application with the charter board of the state of Kansas, signed by each of them, requesting that a charter be issued for a corporation to be known as the Austin Securities Company, which said application was granted, and the charter issued. Said charter stated the alleged purposes of said corporation to be as follows:
“ ‘To invest and loan money on real estate, chattel, or other personal security; and to organize and maintain a brokerage and commission business with authority to buy, sell and deal in stocks or commodities dealt in upon boards of trade and exchanges, and to acquire, own, sell, and/or otherwise dispose of, and deal in stocks, bonds, mortgages, securities and notes and commercial paper of corporations and individuals and to act as agent for others in the buying and selling of stocks, bonds and securities on commissions with powers to hold. and improve real estate and to transact any and all business connected therewith and to do any and all things necessary in the conduct of said business.’
“No subscriptions for the stock of the proposed corporation were ever made or filed, nor was the affidavit required by section 17-214, R. S. of Kansas, 1923, ever filed with the charter' board.
“4. The board of directors named for the first year in said application and charter were the said R. B. Austin, E. C. Kieswetter, Reginald LaBunker, J. H. Bauerline and O. D. Collis.
“5. The said Robert B. Austin prepared, or had prepared, elaborate minutes purporting to be the minutes of a meeting of the board of directors of the Austin Securities Company held June 25, 1930, and requested one John Bauerline to sign, the same as secretary of the corporation. The said purported minutes of said meeting were recorded in a book which has been introduced in evidence in this case. Said minutes purport to recite the transactions of the board of directors named in said application and charter and include a set of by-laws of the Austin Securities Company.
“No regular stated or formal meeting of the board of directors of the Austin Securities Company was ever held at which any resolution was passed, or action taken, providing for the sale of the common stock of said securities company, or fixing a price at which the same should be sold.
“6. The incorporation of the Austin Securities Company was with an authorized capital stock of fifty thousand shares of common stock without nominal or par value and five thousand shares of preferred stock without nominal or par value.
“7. Under the direction of said Robert B. Austin and in June or July of 1930, thirty-six thousand shares of common stock of the said securities company were issued as follows:
R. B. Austin............ 19,350 R. LaBunker........... 270
O. D. Collis............ 12,270 F. C. Kaths............ 1,050
E. C. Kieswetter....... 2,070 O. J. Kieswetter........ 540
Mrs. E. W. Swan....... 450
“No money was paid to the securities company by the persons named for the certificates of said common stock issued and the securities company received in exchange for these thirty-six thousand shares of its common stock twelve hundred shares of the common stock of the W. A. L. Thompson Hardware Company which were owned by the persons named in this finding.
“8. The balance sheet of the W. A. L. Thompson Hardware Company of January 1, 1930 (Plaintiff’s Exhibit C), showed common stock surplus and undivided profits to be worth $450,807.89 or $225 per share for said common stock.
“9. At and before the organization of the Austin Securities Company, the W. A L. Thompson Hardware Company has been a profitable business. On January 1, 1930, the assets of the company were $1,029,550.69 and its liabilities, not including common-stock liabilities, were $254,742.80., During the last six months of 1929 and the first six months of the year 1930 the company had enjoyed the largest volume of business and profits in its history. During the last half of the year 1930 the volume of its business declined apIjroximately fort}’ percent and continued to decrease until 1933 when the volume of business was sixty-eight percent less than in 1929, with some increase since 1933. The business of the company has been conducted at a loss since the middle of 1930 on account of the decrease in volume of business due to the business depression which began in the fall of 1929 and which still continues. No dividends have been paid upon the common stock of the W. A. L. Thompson Hardware Company since the transfer of the said twelve hundred shares of said common stock to the Austin Securities Company.
“10. The following shares of the common stock of the said the Austin Securities Company were sold to the public for cash at the rate of $8 for each share of said common stock as follows:
Alex Brislen ............. 1
John Brislen............. 1
Henry C. Corbutt........ 10
Grace Crawford.......... 2
Mary Dale............... 1
Mrs. Mary Doran........ 5
Beulah Hill.............. 2
Ethel L. Jordan.......... 20
G. L. Jordan ............ 240
Leslie Jordan ............ 8
R. N. Jordan ............ 8
George Cross ............ 20
Bernice McGregor ....... 10
Willa Rogers ............ 138
Mrs. Birdie Smalley...... 2
Mrs. Chas. Brooks Thomas 12 Winifred Welcome....... 40
Total................. 520
“The shares purchased by these persons were not issued by the Austin Securities Company out of the treasury stock, but were a part of the stock theretofore issued to the said Robert B. Austin, and the money realized from said purchasers was paid to said Robert B. Austin and his said certificate of shares was reduced in number corresponding to the shares thus transferred.
“New certificates were issued to such purchasers in regular form and the transfer in regular form recorded on the books of the Austin Securities Company, and said Robert B. Austin paid to the securities company $719.16, designating the same as profit.
“11. On July 1, 1930, the W. A. L. Thompson Hardware Company was indebted to various banks in the sum of $563,000 and was indebted to trade creditors in the sum of $254,742. At the end of 1930 the hardware company owed to banks $200,000, but during this period owned assets which were probably worth three times as much as its liabilities.
“12. Immediately after its charter was granted the Austin Securities Company prepared to issue three thousand shares of preferred stock and proceeded at once through banks and investment companies to sell the same. These shares of preferred stock were sold at $100 per share, and in 1930 the Austin Securities Company received from the sale of its preferred stock the sum of $169,350, and in 1931 received from the sale of its preferred stock $10,900, and in 1932 there was sold to the W. A. L. Thompson Hardware Company the remainder of the issue of preferred stock for $69,750, for which the W. A. L. Thompson Hardware Company gave to the Austin Securities Company its check.
“13. The Austin Securities Company never came into possession of any money except from the sale of its preferred stock except in the amount of about $716.16, which was paid to it by Robert B. Austin and which he described as profit on the sale of a portion of his common stock of the Austin Securities Company.
“14. Of the moneys coming into the treasury of the Austin Securities Company only about $10,000 was expended in purchasing sales contracts of the W. A. L. Thompson Hardware Company which was-so invested in about the 'first month after its incorporation.
“15. The Austin Securities Company from the time of its incorporation June'25, 1930, until the end of 1930 advanced to the W. A. L. Thompson Hardware Company $149,500, a part of which ($127,000) is covered by the repurchase agreement of January 30, 1932, and the remainder of which ($22,500) is included in a note of April 12, 1934.
“In 1932 the Austin Securities Company advanced to the hardware company $74,171, $46,071 of which is included in a note of January 31, 1934, $56,464.38 of which is included in a note dated April 12, 1934, and $13,035.68 which is included in the repurchase agreement of Jamlary 30, 1932.
“In 1933 the Austin Securities Company advanced to the hardware company $620, and in 1934, $395.63 which aré included in the note of January 31, 1934.
“16. The office of the Austin Securities Company was in the office of the W. A. L. Thompson Hardware Company. Up to his death on the - day of - 1935, Robert B. Austin was the dominating figure and controlling person in both companies and the' other directors of both companies followed the directions of said Robert B. Austin and in the directors’ meetings ratified all he had done. None of the money loaned or advanced to the hardware company by the securities company was ever repaid. Interest on the same was paid up to and during the year 1934 from which interest the Austin Securities Company paid its quarterly dividends on its preferred stock, the last of said dividends being paid in February, 1935.
“17. On January 30, 1932, an instrument, designated as a ‘repurchase agreement,’ was executed, the same being plaintiff’s exhibit 6, which is made a part of these findings by reference. That transaction was directed by Robert B. Austin and is not mentioned in any of the minutes of the meetings of the board of directors of the securities company.
“18. The collateral security held by the Austin Securities Company for the payment of said indebtedness has no present market value, except the stock of the National Bank of Topeka, and said collateral security is of doubtful value and wholly inadequate to secure the payment of the money due the said the Austin Securities Company.
“The Austin Securities Company never had an investment or financial -committee, but all of its financial transactions were conducted by the said Robert B. Austin.
“19. The W. A. L. Thompson Hardware Company is indebted to the Austin Securities Company in the sum of $227,688 as of April 30, 1935.
“20. The securities company holds securities covering advances and which are included in the ‘repurchase agreement’ as follows:
500 shares of nonpar common stock of the Spic & Span Stores Corporation, Topeka, Kan.
100 shares of nonpar common stock of the Curry Hardware Company, Clay Center, Kan.
100 shares of nonpar common stock of the Lindsay Hardware Company, Ottawa, Kan.
100 shares of nonpar common stock of Manhattan Hardware Company, Manhattan, Kan.
100 shares of nonpar common stock Marysville Hardware Company, Marysville, Kan.
100 shares of nonpar common stock Muenzenmayer Hardware Company, Junction City, Kan.
100 shares of the nonpar common stock of the Peterson Hardware Company, McPherson, Kan.
500 shares of the nonpar common stock of the Austin Investment Company, Topeka, Kan.
“For the note dated January 31, 1934, the securities company holds as collateral security a deed to farm in Lyon county, Kansas, subject to a mortgage of $2,800 and carried on the balance sheet of the W. A. L. Thompson Hardware Company at $6,995.10. For the note dated April 12, 1934, the securities company holds as collateral security ten shares Topeka Hotel Company, ten shares Kansan Hotel Company, fifteen shares National Bank of Topeka, two hundred and seventy-three shares of the Bowen-Nuss-Brown Hardware Company, note of the Spic & Span Stores Corporation for $18,963.92 and seven hundred sixty and a half shares preferred stock of the Austin Securities Company.
“21. From and after the time of the organization of the Austin Securities Company, all of the officers purporting to act on behalf of said company, and all of the officers of the W. A. L. Thompson Hardware Company, have been the same identical persons with the exception of two members of the board of directors of the hardware company. A majority of the board of directors of both corporations were the same identical persons, and the said Robert B. Austin was president of both.
“22. After the death of Robert B. Austin, on -- 1935, the W. A. L. Thompson Hardware Company, of which he was president and financial and business manager, was unable to pay its trade creditors and bank creditors the various amounts due them as the same became due. An audit of the financial condition of said company was made by a firm of accredited C. P. A. accountants, and a financial statement issued, which audit is marked ‘Defendant’s Exhibit 1.’ Also an audit of the Austin Securities Company is marked ‘Plaintiff’s Exhibit 10,’ which exhibits are made a part of this finding by reference. Various meetings between the officers of said hardware company and its creditors were held at Chicago, Kansas City, St. Louis and Topeka, with a view to making some arrangements for extensions of time for the payment of debts owing by the said hardware company.
“As a result of said meetings a tentative agreement was reached, which was reduced to writing, which is plaintiff’s exhibit 3 and made a part of these findings.
“At such meetings of creditors the said O. D. Oollis represented the views and voiced the sentiments of a majority of the board of directors of the said hardware company.
“23. On the 8th day of June, 1935, this suit was commenced, and on the same day a temporary restraining order was issued, which is made a part of these findings by reference.
“24. After the commencement of this suit, and the service of said temporary restraining order upon each .of the individual defendants, the said hardware company paid in cash all creditors of that company whose accounts amounted to $100 or over, twenty-five percent of their indebtedness, but did not pay any part on the debt owing by the hardware company to the Austin Securities Company; and the said payments to each creditor, as aforesaid, were accompanied by two letters, plaintiff’s exhibit 24 and defendant’s exhibit 2, and. made a part of these findings. Said payments were made upon agreement of the creditors thus paid that they would take no action upon their claims until December 1, 1935. Provided, however, that no amount of principal or interest should be paid by the hardware company to the Austin Securities Company.
“25. That as of April 30, 1935, the quick assets of the W. A. L. Thompson Hardware Company amounted to the sum of $502,461.10; that the current liabilities of .said company, including an amount of $227,688.00 of notes and other contractual indebtedness to the Austin Securities Company, amounted to the sum of $569,737.29.
“26. That other assets of the W. A. L. Thompson Hardware Company as of April 30, 1935, which were of questionable value, amounted to $281,008.50.
“27. That the Austin Securities Company claims notes payable due it by the W. A. L. Thompson Hardware Company of $84,651.58, contractual indebtedness of $140,035.68, and accrued interest of $3,000.74, making a total of $227,688.00.
“28. That the W. A. L. Thompson Hardware Company owed notes payable to banks of $120,000; notes payable to trade creditors of $17,500; notes payable for equipment purchased $1,847.36; trade accounts payable $172,305.51; personal and sundry accounts payable $3,097.37; accrued expenses $23,049.87; rent $4,249.18.
“29. That the hardware business of the W. A. L. Thompson Hardware Company requires a large amount of working capital; that by reason of the condition of the company, it is unable to obtain further credit from banks or trade creditors, until its existing obligations are materially reduced.
“30. That the trade creditors and the bank have indicated that they are willing to defer seventy-five percent of their indebtedness, provided the indebtedness claimed by the Austin Securities Company is deferred until bank and trade creditors are fully paid, or are paid to such an extent that out of profits the claim of the Austin Securities Company can be paid.
“31. Trade creditors and banks have stated to the company that if any payment is made to the Austin Securities Company, said 'banks and trade creditors will insist upon liquidation' of the company.
“32. The bank and trade creditors of the W. A. L. Thompson Hardware Company claim that they extended credit to said hardware company on the strength of financial statements made by Robert B. Austin who was president both of said hardware company and the Austin Securities Company, and which statements did not show the indebtedness of the W. A. L. Thompson Hardware Company to the Austin Securities Company, and these creditors claim that the Austin Securities Company, being the majority stockholder in the W. A. L. Thompson Hardware Company, said banks and trade creditors are entitled to a preference over the Austin Securities Company’s indebtedness.
“33. That the present directors and officers of the Austin Securities Company own the majority of the common stock of the Austin Securities Company, and in turn control, through stock owned by the Austin Securities Company, the W. A. L. Thompson Hardware Company.
“34. That for all practical purposes the officers and directors of the two companies are identical.
“35. That the officers and directors and the majority common stockholders of the Austin Securities Company have declared their intention, if necessary in order to permit the business of the W. A. L. Thompson Hardware Company to continue, to subordinate the claim of the Austin Securities Company to the claims of the bank and trade creditors; that under the evidence produced said officers and directors believe such action to be to the best interests of all parties concerned.
“36. It is the intention of the defendants, and each of them, to permit the bank and trade creditors of the hardware company to obtain a preference over the Austin Securities Company by reason of the payments made, as stated in finding No. 24, and it is the intention of the said defendants, and each of them, to subordinate the creditor claims of the Austin Securities Company to those of the bank and general trade creditors of the W. A. L. Thompson Hardware Company.
“37. That no fraud has been shown on the part of any defendant to this action; that in their management of the affairs of the Austin Securities Company and in subordinating the claim of that company against the W. A. L. Thompson Hardware Company to those of the bank and trade creditors of the hardware company, and in consenting to preferences being obtained by such other creditors, the defendant directors of the Austin Securities Company are influenced by their interest in the W. A. L. Thompson Hardware Company and a desire to keep that company from bankruptcy, and also from a belief that if the hardware company can be saved from bankruptcy and be allowed to continue its business, that at some future time and after the bank and trade creditors are paid in full or other arrangements made by them, that the hardware company will be in a position to pay the claim of the Austin Securities Company against it.
“38. That the Austin Securities Company is a solvent corporation, and owes no debts. That less than twenty-five percent of the outstanding preferred stock of the Austin Securities Company is represented by the plaintiffs in this action.
“39. That the plaintiff in this action is the owner of common stock in the corporation; that at the time he purchased the stock he was fully advised that the company owned the control of the majority of the stock of the W. A. L. Thompson Hardware Company; that he acquired said common stock shortly after the incorporation of the company; that he has never attended a stockholders’ meeting, and has never made any inquiry or investigation as to the affairs of the corporation.
“40. The business and charter purposes of the Austin Securities Company is to loan its capital and its only source of profit is the interest earned from such loans. Practically all of its capital is now invested in the loans to the W. A. L. Thompson Hardware- Company mentioned in these findings and no interest is being paid on these loans and the hardware company will pay no interest on these loans as long as the banks and trade creditors of said hardware company insist that the indebtedness of the hardware company to the Austin Securities Company be subordinated to their claims. On account of this situation the Austin Securities Company cannot carry out its purpose of loaning its capital in a way that it would earn money for the benefit of its stockholders.
“41. The plaintiff purchased both his common and preferred stock in the Austin Securities Company by paying cash for the same at the rate of $100 per share for preferred stock, and $8 per share for common stock. He made his purchases upon representations made to him both by the president of the Austin Securities Company, Robert B. Austin, and by. the selling agents employed by said securities company, that the purpose and object of the corporation in issuing the preferred stock was to invest in installment payments or trade contracts, and that such business would be profitable, as shown by the profits made by banks who had purchased such paper from the W. A. L. Thompson Hardware Company during the previous year, and carried the same at a profit of upwards of $30,000. The plaintiff was also furnished at the time of such purchase with a pamphlet reciting the purposes for which the money derived from the sale of stock was to be used, a copy of which pamphlet is plaintiff’s exhibit 1, and made a part of these findings.
“42. The directors of the Austin Securities Company have not held a meeting since the death of Robert B. Austin, and have failed and neglected as a board of directors to consider the claim of the Austin Securities Company against the hardware company or the legal rights of the securities company under the so-called repurchase agreement or the legal rights of the securities company against the hardware company growing out of the indebtedness existing between said companies or to the claim of the other creditors of the hardware company that their indebtedness is superior to the indebtedness due the securities company.”
Conclusions op Law
“1. The exchange of the 36,000 shares of the common stock of the Austin Securities Company for the 1,200 shares of the common stock of the W. A. L. Thompson Hardware Company is not void and is not voidable at the suit of a common stockholder of the Austin Securities Company who purchased his common stock after such exchange of stock.
“2: The defendants, O. D. Collis, F. C. Kaths, E. C. Kieswetter and Reginald LaBunker, are the legal directors of the Austin Securities Company.
“3. Under the charter of the Austin Securities Company it was legal for that corporation to loan money to the W. A. L. Thompson Hardware Company and such loans having been made and having not been repaid, the Austin Securities Company is a legal creditor of the W. A. L. Thompson Hardware Company.
“4. It was the duty of the directors of the Austin Securities Company, in their management of the affairs of that corporation to preserve the assets of the corporation for the benefit of the corporation and its stockholders, and the only asset of any substantial value being the claim of the corporation against the W. A. L. Thompson Hardware Company, which company is without bank or any credit, and which has been and is now operating at a loss, and its financial affairs being dictated by a class of creditors to their benefit by obtaining preferences over the claims of the Austin Securities Company, to take action to preserve the assets of the corporation by collecting the indebtedness owing to it by the W. A. L. Thompson Hardware Company, and in such a situation it is a violation of their duty to the Austin Securities Company amounting to mismanagement to enter into any agreement to subordinate the claims of the corporation to those of the other creditors and to stand by and permit preferences to be obtained by the other creditors of the hardware company.
“5. The temporary injunctions should be made permanent.
“6. A receiver should be appointed to take charge of the affairs of the Austin Securities Company for the purpose of preserving its assets and protecting the interests of its stockholders.
“The court further finds that H. H. Motter is a proper and suitable person to act as receiver for the Austin Securities Company and that his bond should be fixed in the sum of $1,000 until the further order of the court.
“It is therefore considered, ordered, adjudged and decreed that a receiver be and is hereby appointed for the Austin Securities Company, and H. H. Motter be and he is hereby appointed receiver of the Austin Securities Company and his official bond fixed at $1,000 to be approved by the court.
“It is further considered, ordered and adjudged that said receiver be and he is hereby clothed and vested with all the powers and authority of receivers in similar cases and is authorized, empowered and directed to maintain, operate, manage, conduct, continue and carry on the business of said the Austin Securities Company and to do all things necessary, appropriate and incidental to such operation, carrying on, continuance and conduct of said business; to make such purchases of supplies, equipment and material and to enter into such contracts and incur such liabilities as are incidental, proper or necessary to fully and completely carry out this order and any subsequent order of this court; to collect and receive the income, rents, revenues, issues and profits of said property and assets of said corporation and all accounts, debts and claims to which said corporation is lawfully entitled; to reduce to and take possession of all said assets and property; to enjoy and exercise any and all rights and privileges of said corporation as a creditor of any person, firm or other corporation; to institute and prosecute, as well as to defend, all suits brought by or against him or said corporation and to appear and defend in his own name, or otherwise, all suits now pending or hereafter brought by or against said corporation or him; and to intervene in or become a party to such suits, actions, proceedings at law or in equity in state or federal courts, as may in his judgment be necessary or proper for the protection, maintenance and preservation of said property and assets and in carrying out the terms of this or any subsequent order of this court; to execute in .his own name or in the name of said corporation all necessary appeal, supersedeas, injunction or other bonds which may be required by law in carrying out this order or any order of this court; to compromise, adjust and settle suits, actions and claims which are now pending or may hereafter be presented, prosecuted or brought by or against said corporation or said receiver as may be by him deemed necessary or proper and upon the compromise and settlement of any such claims to execute and deliver any necessary receipt, release or remission to the obligor thereof, including the release and discharge of any claim, mortgage, lien or other preferment to real or personal property and to pay such necessary expenses as may be incident to any and all of the matters herein set forth.
“The defendant, the Austin Securities Company, its officers, directors, agents and employees and all other persons claiming to act by, through or under said defendant, the Austin Securities Company, are hereby enjoined from interfering in any way whatsoever with the possession of the whole or any part of the properties of said the Austin Securities Company or interfering in any way with said receiver to prevent the discharge of his duties.
“That said receiver shall continue in possession of said property and assets and continue to operate, manage, conduct and carry on the business of said corporation until the further order of this court and said receiver may from time to time apply to this court for such further orders and directions as he may deem proper, necessary or requisite in the due administration of his trust.’’
Appellants’ contentions may be summarized under three main-headings:
1. The trial court committed error in finding that the hardware company is now operating at a loss.
2. The other findings of fact do not support the conclusions of law and require judgment for defendants.
3. The appointment of a receiver amounts to abuse of judicial discretion.
The facts in this lawsuit are clearly set forth in the findings of fact, and it is deemed unnecessary to repeat them here. Reference will be made to specific findings at appropriate places in the course of the opinion. Appellants’ exceptions to findings of fact challenge only one fact found by the trial court. That fact is contained within conclusion of law number 4. It is the finding of fact first mentioned above in connection with appellants’ contentions of error. It is: 1. “The trial court erred in finding that the hardware company is now operating at a loss.”
This court deems it unnecessary to examine the entire record, including the detailed audits, to determine the exact accuracy of that finding. The financial condition of the hardware company clearly appears in the unchallenged findings of fact. The hardware company on April 30, 1935, had quick assets amounting to $502,-461.10; its current liabilities were $569,737.29. This total amount of the liabilities included the sum of $227,688 which the hardware company owed to the securities company. Other assets of the hardware company on the same date which were of questionable value amounted to $281,008.50. (Findings of fact 25 and 26.) The witness, Newman, testified:
“Q. Now, if the banks and commercial creditors and the Austin Securities Company were treated equally you could give as much time as you wanted to and leave as much money as was necessary with the hardware company in order that they might demonstrate their ability to make money, couldn’t you? A. They could do that. It wouldn’t do any good.
“Q. It wouldn’t do any good? A. No.
“Why not? A. Because I don’t think the hardware company can make $500,000 in the next three or four years.
“Q. You think that if all the creditors are treated equally the hardware company is insolvent? A. No question about it.”
The fact that the hardware company is heavily in debt is not in dispute. That the hardware company is without bank or trade credit until it reduces its present indebtedness is admitted. (Finding of fact 29.) Whether its immediate present operation leaves it slightly in the black or red column is not an important factor in this appeal. It is not the hardware company for which a receiver was appointed, but the securities company. For the purpose of this appeal we may well rely upon the undisputed facts concerning the financial condition of the hardware company without determining to a mathematical certainty whether there was any evidence that, the hardware company is now operating at a loss.
Appellants challenge for the first time in this court a portion of finding of fact number 9. The portion challenged is this:
“The business of the company (hardware company) has been conducted at a loss since the middle of 1930.”
From a careful examination of the record we find nothing to indicate that the correctness of this portion of finding of fact number 9 was challenged before the trial court. On the contrary the record indicates that it was not. Appellants’ exceptions to findings of fact and conclusions of law as heretofore stated challenged only the one fact which we have heretofore discussed. Appellants’ challenge in this court of this particular finding is probably not available to them now. Insofar, however, as appellants contend that the judgment is not supported by the findings of- fact and the evidence, we will give the complaint consideration.
It will be noted that appellants do not challenge the remaining portion of finding of fact number 9. The remaining portion of that finding is:
“At and before the organization of the Austin Securities Company, the W. A. L. Thompson Hardware Company has been a profitable business. On January 1, 1930, the assets of the company were $1,029,550.69 and its liabilities, not including common-stock liabilities, were $254,742.80. During the last six months of 1929 and the first six months of the year 1930 the company had enjoyed the largest volume of business and profits in its history. During the last half of the year 1930 the volume of its business declined approximately forty percent and continued to decrease until 1933 when the volume of business was sixty-eight percent less than in 1929, with some increase since 1933. ... on account of the decrease in volume of business due to the business depression which began in the fall of 1929 and which still continues. No dividends have been paid upon the common stock of the W. A. L. Thompson Hardware Company since the transfer of the said twelve hundred shares of said common stock to the Austin Securities Company.”
The unchallenged evidence in the foregoing finding of fact together with other undisputed facts reflect rather vividly the financial reverses of the hardware company between the period of January 1, 1930, and April 30, 1935. Assets of the hardware company decreased $246,081.09. This calculation allows the hardware company full credit for questionable assets in the sum of $281,008.50. During that same period the liabilities of the hardware company increased $314,994.49. (Findings of fact 9, 25 and 26.) On the face of these figures it would appear that there was strong and abundant evidence that between January 1,1930, and April 30,1935, the hardware company had operated at a loss. The fact, if it be a fact, that at some particular time during that period the company did not operate at a loss is not important on the issues presented by this appeal.
Appellants complain about that portion of finding of fact number 40, which reads:
“The hardware company will pay no interest on these loans (referring to the loans made to the hardware company by the securities company), as long as the banks and trade creditors of said hardware company insist that the indebtedness of the hardware company to the Austin Securities Company be subordinated to their claims.”
No exception was made to the trial court to any portion of finding of fact number 40. A letter, under date of June 21, 1935, was sent by the hardware company to creditors which contained the following statement: “No payment is being made to the Austin Securities Company.” Another letter was sent to the same creditors by the hardware company under date of June 20, inclosing a check in payment of twenty-five percent (25%) of the amount owing each bank and trade creditor as of June 1, 1935. . It appears to this court that a reasonable construction of the two letters is that they conveyed the thought that no payments would be made to the securities company during at least a five months’ period, beginning July 1, 1935. This construction is clearly supported by the unchallenged finding of fact number 24.
2. Appellants’ second contention is that the other findings of fact do not support the conclusions of law, and require judgment for defendants.
In our opinion this contention is unsound for at least three reasons:
First, a judgment cannot be predicated upon isolated facts. The findings of fact must be considered as a whole.
Appellants have isolated seven of the forty-two findings of fact. Decisions of this and other courts are cited which it is contended apply to those particular isolated facts. ' Upon those isolated facts and those decisions it is contended that the judgment must be reversed. With that conclusion this court cannot agree.
In the early case of Beaubien v. Hindman, 37 Kan. 227, 228, 15 Pac. 184, this court said:
“It has always been held by this court, that a finding of fact by the court-is equivalent to a verdict by a jury.”
In the case of Greiner v. Greiner et al., 129 Kan. 435, 283 Pac. 651, it was held that:
“Special findings returned by the jury are to be considered together, and, if possible, are to be so construed as to harmonize them, and to uphold the general verdict.” (S'ee cases cited therein.)
The same principle was announced in the case of Parmenter v. Morrison, 130 Kan. 707, 710, 228 Pac. 582, in which the rule was stated thus:
“The rule is that a general verdict and special findings should be harmonized, if possible; that every reasonable presumption is indulged in favor of the general verdict. (See, also, Moore v. Connelly, 119 Kan. 35, 237 Pac. 900.)”
In the case of Lesher v. Carbon Coal Co., 127 Kan. 34, 272 Pac. 155, it was held:
“In the consideration of the question of inconsistency between the answers to special questions and the general verdict nothing will be presumed in aid of the special findings and every reasonable presumption will be indulged in favor of the general verdict.
“Where special findings are fairly susceptible of more than one interpretation the one which' harmonizes with the general verdict should be adopted rather than the one which points to inconsistency.” (S'yl. 1ÍH 1, 2.)
Appellants isolated findings numbered 29, 30, 31, 32, 35, 37 and 38. Those findings ignored numerous other important findings, such as the facts concerning the critical financial-condition of the hardware company; the fact that the common board of directors was purporting to represent both the creditor and the debtor; that the securities company board is holding no meetings to consider or determine its rights or business policies; that the securities company board has failed and neglected to consider its claim against the hardware company; that it failed and neglected to consider its legal rights under the repurchase agreement; that the directors of both companies were the same; that the financial affairs of the hardware company were dictated by its bank and trade creditors to their advantage by obtaining preferences in their favor; that the only claim of substantial value held by the securities company is its claim of $227,688 against the hardware company; that no interest is being paid by the hardware company on this claim; that interest is the sole source of profit for the securities company, and that by reason of the 'failure of the hardware company to pay interest thereon the securities company cannot carry out the fundamental purpose for which it was chartered. (Findings 9, 25, 40, 42, and findings of fact contained in conclusion of law number 4.)
Second, appellants are entirely right in their contention that-the board of directors or. trustees have the general management of the affairs of the corporation. (R. S. 17-608.)
A receiver was not appointed in violation of that statutory pro-vision.
A reading of all the findings of fact discloses that the receiver was appointed by reason of the failure and neglect of the defendant directors, as a board of directors of the securities company, to consider the claims and rights of the securities company against its debtor, the hardware company, and because its board of directors failed and neglected to consider the contention of other creditors of the hardware company that their claims were superior to the claims of the securities company, and by reason of the further fact that the defendant directors, as a board of directors of the securities com pany, took no action to determine the question of parity of claims before and while its debtor, the hardware company, was preferring other creditors by a twenty-five percent (25%) payment of their claims.
The receiver was appointed for the further reason that the defendant directors of the securities company as a board of directors failed and neglected to consider the legal rights of the securities company under the so-called repurchase agreement. (Finding 42.)
The findings as a whole clearly disclose that the receiver was appointed by reason of mismanagement of the securities company and that this mismanagement consisted in the failure of the board of directors of that company to function as to definite and specific matters which affected its most vital assets. Those derelictions are summarized in the last finding of fact, number 42.
In consideration of all of the findings of fact the trial court made conclusion of law number 4. Appellants contend this conclusion of law contemplates the right of a court of equity to substitute its business judgment for that of the directors. Not at all. This court does not propose to sit at the directors’ table of private enterprise and dictate its business and economic policies by substituting its theories for the judgment of men duly elected to administer that trust. That, however, is one thing. The failure of the board to function is another.
Finding number 42 shows that no meetings of the securities board are being held — that its board has failed and neglected to consider the two most vital problems confronting that company, namely, the question of subordinating its claim which constituted its only asset of substantial value and the vital question of its legal rights under the repurchase agreement. This last agreement will be analyzed later. The securities board is not attempting to consider — much less determine — the business and financial policies of its company. In other words the board has failed and neglected to function. It has abandoned the administration of the company’s affairs. And that is not all of the difficulty. The securities company and the hardware company have the same identical directors. The hardware company owes the securities company. It also owes bank and trade creditors. The financial affairs of the hardware company are dictated by its bank and trade creditors to their benefit by obtaining preferences over the securities company. The board of the securities company is holding no meetings, considering and determin ing upon no financial policy for the securities company and permitting the preferences to be made.
The general management and the financial policies of a corporation must be determined through its board of directors. R. S. 17-608 provides: “The directors or trustees shall have the general management of the affairs of the corporation.”
“The directors possess authority to act only as a board at a regularly assembled meeting. The individual and separate action or assent of one, or a majority, or all the directors, does not bind the board or the corporation. And this is equally the rule, although the director who assumes to act may own a majority of the shares.” (14a C. J. 84, and cases cited.)
The above rule is so generally and firmly established, it is considered unnecessary to refer to many decisions. In the case of Chavelle v. Washington Trust Co., 226 Fed. 400, it was held:
“The minutes of the board of directors of a corporation having seven trustees purported to show the adoption at a meeting of the directors of a resolution to deliver bonds secured by a deed of trust, the issuance of which had previously been authorized, to a creditor as collateral security. In fact, however, no meeting was held, and the resolution was merely sent to the secretary, who signed it and called two of the other trustees to the office, one of whom signed it in the presence of the other and the other of whom signed it without any other trustee being present. The resolution was then sent to two of the other tiustees, who signed it without any other member of the board being present. Held, that the purported resolution was invalid, and the bonds were issued without authority and were void.”
In the case of Ames v. Goldfield Merger Mines Co., 227 Fed. 292, a receiver was appointed. That case has many features in common with the instant case, including some of the contentions made by the parties here. The necessity for corporate action is clearly set forth. The right to relief by a minority stockholder through the appointment of a receiver was upheld. In that case it was said:
“(1) The issue is: Have the directors of this company abandoned the company? Have they turned the management of its business over to others, and is the business of the Merger Company now being administered by the officers or employees of other companies, whose business- is or may develop antagonistic to the best interests of the Merger Company? The stockholders of a corporation have a right to expect from their directors a conscientious consideration of every proposition which is presented which involves any interest of the company, in conformity to the oath which they have subscribed. They have a right to have the individual viewpoint of the several directors expressed at a conference, for the purpose of obtaining the exchange view of the several persons in arriving at conclusions after deliberate consideration of any issue. It is fundamental that officers of boards can only act as such con stituted boards when assembled as such, and by deliberate and concerted action dispose of the issue under consideration, and that they cannot act in an individual capacity outside of a formal meeting, and a majority of the individual expressions be the action of the board. The law believes that the greatest wisdom results from conference and exchange of individual views, and it is for that reason that the law requires the united wisdom of a majority of the several members of the board in determining the business of a corporation, and will not permit the business and concerns of a corporation to bo delegated to any officers or men, however capable, or however high their standard for integrity and honesty may be, and that fraud will be implied upon the delegation of such power and right, and the exercise thereof by men who may be the controlling stockholders, even though, in their own conscience, they may believe that everything has been done to the very best interests of the concern; and this is emphasized when the records show that large sums of money have been expended with no beneficial results to the concern, but which do show great benefits to other concerns in which these majority stockholders likewise own »large interests, as in this case. It is the abuse of corporate license or power which reflects upon corporate control and casts suspicion upon large corporate holdings. It is the failure to give that consideration to the interests of the minority which the majority would have them give were the positions reversed. The law, therefore, wisely places control of corporations in a board of trustees, and requires its action as a board.
“(2) Counsel for defendants say that complainant has another remedy, and that a court will not take the control of the corporation from the board of trustees while other remedies are available; that the parties against whom complaint is made are solvent, and that the minority stockholders can bring an action on behalf of the corporation, however, at their own expense; that the majority stockholder has a right to dictate the policy and business affairs of the corporation, irrespective of the desire of the minority, so long as no fraudulent, dishonest, or oppressive conduct is shown; and that the conduct shown in this case is sanctioned and approved. It is said that many men are directors in many different corporations which have contractual relations, and that a court will only see whether the dealings, contracts, etc., are fair, whether the boards have acted impartially; and by that criterion shall the court conclude this issue.” (p. 301.)
The court in summarizing the issues in that case said:
“From the record it appears that the directors of the defendant company held four meetings in nearly as many years. The officers made no report to the stockholders. No meeting of the stockholders was called for more than three years. More than $250,000 was expended, practically all of the available funds, during this period of time. This expenditure was directed by officers of other companies controlled by the majority stockholders of the Merger Company, and not by the trustees of the defendant company. $199,000 was spent on a shaft and tunnels which developed nothing for the Merger Company, but did for other companies. No contract was entered into by the board of directors with the other companies for any contribution or sharing of expenses. Stock owned by the defendant company was sold for less than 550,000 by officers of other companies, and not by the board of directors, which within a short time was worth $500,000. The officers who sold the stock were officers of the company for whose benefit the shaft was operated, to pay the expenses of which the stock is claimed to have been sold. The entire record in this case is redolent with facts showing that the business of the Merger Company was not and is not conducted by the trustees. (Italics ours.) The fact that the trustees were nominal stockholders is not material. A man need not be a large shareholder to be a trustee, but he must exercise his integrity and his judgment in behalf of the corporation which he represents; nor can he be held responsible for error in judgment, but he cannot be permitted to turn his trust over to others to exercise for him, even though the administration by others of the trust may, in the judgment of such other persons, be honestly carried out.
“Under the circumstances disclosed in this case, I do not think that there is an adequate remedy at law. Where the business and affairs of a mining corporation are taken over by the agents and officers of other concerns whose controlling shareholders also control such mining corporation, and the business of such mining corporation is managed in the interest of such other concerns, and the minority stockholders deprived of their just rights, I think there is a liability in equity, and that there is no more valuable function that a court of equity can, under such circumstances, perform,, than to protect such minority, and that a court of equity is the only tribune to afford an effective remedy. (Italics ours.)
“From all of the testimony that was presented, the admitted facts, and the indisputable proof upon the issue, it is conclusively established, to my mind, that the Merger Company’s identity is practically lost; that its affairs are not and have not been administered by its board of directors, and that the corporate life, except as mere form, has been abandoned, and the administration of its affairs turned over to the executive and administrative officers of the Goldfield Consolidated Mines Company and allied concerns; that the policy of all of the business of the Merger Company has been planned and carried out by the officers and pei'sons who dictated and directed the policy and business of the Goldfield Consolidated Company and allied concerns, and not by the trustees of the Merger Company, and the interest of the Merger Company has not been subserved in the manner it should have been, but that the Merger Company’s affairs have been and are being administered in the interest and in behalf of the Goldfield Consolidated Mines Company and allied companies.” (p. 302.)
It is insisted in the instant case that the bank and trade creditors urged upon the hardware company that their claims were superior to those of the securities company. This court is deciding nothing and implying nothing concerning the merit of that contention. That issue is not before us now. The bank and. trade creditors are not parties to this suit. The issue under consideration is the failure of the securities board to function.
It is insisted that no contract for subordination of the claim of the securities company had been entered into. True it had not been signed. The trial court found that it was the intention of the defendants to enter into such agreement. (Finding 36.) That fact is not challenged. It is admitted. The trial court further found that after the service of the restraining order upon each of the individual defendants, restraining each of them from entering into such agreement, the hardware company did make a payment of twenty-five percent (25%) to its other creditors without paying anything to the securities company. (Finding 24.) The letters to the creditors involving this payment- clearly disclose that no payment was being made to the securities company. The actual subordination of the claim of the securities company to the extent of twenty-five percent (25%), was therefore an accomplished fact at the' time of the trial.
In this connection it should be noted that the restraining order did not legally bind the hardware company as it was not a party to this lawsuit. So far as preventing the actual preference of twenty-five percent (25%) or preventing any preference in the future is concerned, the restraining order, now a permanent injunction, has no practical effect whatsoever. It only enjoins the defendants from entering into a contract to subordinate its claim. Unless the order appointing a receiver is affirmed, the hardware company may continue to prefer its other creditors although its legal right so to do has never been determined. Herein again lies the clear, positive danger of loss or injury to the securities company and its stockholders.
The failure and neglect of the securities company to consider and determine its rights to parity of claims and to permit the preferences to be made has jeopardized and will continue to jeopardize the interests of the defendant securities company and the rights of its stockholders. Jeopardize means, “to expose to loss or injury; to risk.” (Webster’s International Dictionary.)
. Appellants rely upon the well-reasoned case of Inscho v. Development Co., 94 Kan. 370, 146 Pac. 1014, and other cases of similar import from other jurisdictions. They quote the following portion of the Kansas case:
“The appointment of a receiver for a solvent, going concern is a last-resort remedy and should not be employed to correct improper conduct when other adequate remedy is available. Bad judgment and ill success in previous ventures, completed or not being actively prosecuted, current transactions merely unwise and not so reckless or extravagant as to amount to breach of trust, irregularities and misconduct which are not so culpable as to jeopardize the interests of the corporation and the rights of stockholders, and dissensions among directors, so long as a majority of them control, do not warrant the appointment of a receiver. In no case should a court take the property and business of a solvent, going corporation out of the hands of the board of directors and into its own hands by the appointment of a receiver at the suit of a minority stockholder unless the right of the plaintiff be free from reasonable doubt and the danger of loss or injury be clearly proved.” (Syl. ¶ 1.)
It is urged that “the above language blankets the situation in the case at bar.” This court agrees. It is convinced that this plaintiff’s rights are free from reasonable doubt and that the danger of loss or injury is clearly proved.
Appellants cite the cases of Chapman v. Irrigation Co., 75 Kan. 765, 90 Pac. 284, and Bank v. Prescott, 60 Kan. 490, 57 Pac. 121, and urge that those cases hold contracts between two corporations with a common board of directors valid unless fraud is shown. They do so hold. The trouble is those cases do not touch the issues in this case. They were suits on contract. This is a suit for the appointment of a receiver. In them there is no claim of failure on the part of the board to function, no evidence of mismanagement or that the common board was functioning in favor of one corporation to the risk or injury of the other. The questions presented there were simply whether one corporation could sue the other on a contract they had entered into. The question here is not whether the securities company could sue the hardware company on the contract of indebtedness. R. S. 60-1201 provides:
“A receiver may be appointed by the supreme court, the district court, or any judge of either, or in the absence of said judges from the county, by the probate judge: . . Bixth. In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.”
This court has had occasion to consider the above statute in previous cases in which boards of directors failed to function. In the case of Bowen v. Flour Mills Corporation, 114 Kan. 95, 217 Pac. 301, the board of directors failed to function. In that case the failure to function was due to a deadlock in the board of directors. This court in discussing that situation said:
“Courts of equity came into existence for the purpose of affording such relief as justice and good conscience required, under the peculiar circumstances of the case. In some jurisdictions, instead of keeping up with social progress, equity has set and hardened. Its potency to meet new conditions has been emasculated, and frequently the caution to be displayed and the limitations to be observed in appointing receivers loom so large that, as the Missouri court has observed, judicial hesitancy degenerates into judicial atrophy. (Cantwell v. Lead Co., 199 Mo. 1.) In other jurisdictions a better view is taken, and the phrase, ‘by the usages of courts of equity,’ means according to the informing spirit of equity heretofore manifested in the appointment of receivers.” (p. 99.)
In this same case (p. 99) this court quoted with approval what was said in the case of Boothe v. Summit Coal Min. Co., 55 Wash. 167, in which case it was said:
“In the instant case, there is no control of the corporation by a board of trustees, sustained by a majority of the stock, although originally the present board may have been legally elected. In practical operation there is no deliberative board. R. J. Linden has as full, complete, and dictatorial control as did Oudin in the case cited, and although the corporation here involved is solvent, such a condition is inequitable and should not be permitted. (Italics ours). It does violence to the elementary idea that a corporation is to be controlled by a governing board representing a majority of the stock. No majority is in control, nor can it obtain control. The deadlock is complete, absolute, to all appearances permanent, and R. J. Linden arbitrarily controls and manages the estate of Boothe, whose rights are, and should be, equal to his, . . . (p. 177.)”
This court in the Bowen case (p. 99) also quoted the following portion from the opinion in an Idaho case, where the rule was stated thus:
“ ‘The early doctrine that the affairs of a corporation could not be inquired into except by permission of the attorney general, and that courts of equity should not interfere with the power and authority of the directors of a corporation because that would result in its dissolution, has been modified to meet existing conditions. A large part of the business of the world is done through corporations, and it was held in Columbia Athletic Club v. State, 143 Ind. 98, 52 Am. St. Rep. 407, 40 N. E. 914, 28 L. R. A. 727, that the courts of equity should adapt their practice as far as possible to the existing state of society, and apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and should not from too strict an adherence to the forms and rules established under very different circumstances, decline to administer justice and to enforce rights for which there is no other remedy.’ (Italics ours.) [Gibbs v. Morgan, 9 Idaho 100, 114.]”
In the Bowen case this court further quoted with approval a portion of the opinion in the case of Boothe v. Summit Coal Min. Co., supra, which we believe to be applicable to the instant case and which reads:
“ ‘While we recognize and adhere to the doctrine that a court of equity should hesitate before appointing a receiver over a solvent corporation, and should make such an appointment in exceptional instances only, yet we are constrained to hold that equity, good conscience, justice, and the rights of the parties demand such an appointment in this case.’ (p. 179.)” (p. 100.)
This court, in its opinion in the Bowen case (p. 100), further said:
“In equity, impossibility of attaining corporate objects is as good ground for putting an end to operations as inevitable insolvency (1 Morawetz, 284, 285, and cases cited), and if it shall be found impossible for this corporation to function as a corporation through its own proper agencies, no reason is apparent why its business should not be wound up and the assets distributed.”
The trial court in the instant case found that the subordination of the claims of the securities company made it impossible to attain its corporate objects. (Finding 40.)
In the case of Nelson v. United Elevators Co., 115 Kan. 567, 569, 223 Pac. 814, there existed dissension on the board of directors amounting practically to a deadlock, and this court in that case quoted from 4 Pomeroy’s Equity Jurisprudence (4th ed.), section 1537, as follows:
“ ‘The inherent jurisdiction of a court of equity to appoint receivers of corporations, in proper cases, independently of statutory authorization, has been frequently recognized. The cases in which the power is most frequently invoked are as follows: (1) In suits by stockholders seeking a remedy, for breaches of their fiduciary duty by the directors or officers of the corporation. ■ . . (3) When the corporation has no properly constituted governing body, or there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage.’
“In section 1541 of the same work it is said:
“‘Notwithstanding many dicta, and the assertions of the older textbooks, the current of recent authority appears to be strongly in favor of the inherent power of the court, in a proper case, to displace the management of guilty or negligent [italics ours] officials by the instrumentality of its receiver. It has been frequently pointed out that the appointment of a receiver in cases of this character does not necessarily result in the dissolution or extinction of the corporation.’ ” (p. 570.)
In each of the foregoing cases the board of directors failed to function, by reason of a deadlock in the first case and by reason of dissension which practically amounted to a deadlock in the second case. In the instant case we have a complete failure to function by reason of the fact that the board did not meet at all. At least it had not met for any purpose since the death of Mr. Austin, during which time the securities company’s claim was being subordi nated. The reason for failure to function is not so important. The failure to function is vitally important.
In this case the directors for the securities company were identical with the directors of the hardware company. The trial court found that the financial affairs of the hardware company were being dictated by a class of creditors to their benefit by obtaining preferences over the securities company. This fact may account for the failure of the board of directors of the securities company to hold any meetings and take any action adverse to the bank and trade creditors. Whatever the cause for failure to meet and transact its business in a corporate manner may be, it remains a fact that the board of directors of the securities company did not function.
There is another significant transaction between the hardware company and the securities company which demands our attention. We refer to the so-called repurchase agreement. The board of the securities company has failed and neglected to give consideration to its legal rights thereunder. (Finding 42.) That contract of January 20, 1932, nowhere appears in any minutes of the securities company. The securities company had no financial committee. All of its financial transactions were conducted by Robert B. Austin. (Finding 17.) He was also president of the hardware company. The repurchase agreement was signed by him as president of the hardware company and by E. C. Kieswetter, vice-president of the securities company. This agreement is quite lengthy and we shall only consider such portions of it as will clearly indicate that it has required and now requires prompt attention in order to preserve the rights and interests of the securities company.
This agreement deals with an indebtedness of the hardware company to the securities company in the sum of $127,000. Before the execution of that agreement, this debt was represented by notes, secured by certain collateral. Under the agreement the securities company surrendered to the hardware company those notes and that collateral except one item of the collateral to which we shall refer directly. In consideration of the surrender of these notes, and collateral, the hardware company sold to the securities company for $127,000 this same collateral, except the one item of collateral, to wit: Five hundred shares of no-par common stock of the securities company. That stock was to be retained by the securities company as collateral to secure the payment of the interest agreed to be paid under this contract and to guarantee the performance of the terms of this contract by the hardware company. Paragraph eight of the repurchase agreement further provided that—
“500 shares of no-par common stock of the securities company may, . . . (d) in case said securities company shall at any time or times hereafter deem itself insecure under this repurchase agreement and guaranty, be sold, transferred and delivered by said securities company, without previous demand, advertisement or notice, to said hardware company, either at public or private sale at the option of said securities company, with the right on the part of said securities company to become the purchaser and absolute owner thereof, free of all trusts and claims; and the proceeds derived from the sale thereof shall be applied less costs of sale to any liability of the hardware company arising hereby to said securities company or any other liability or liabilities of the hardware company to said securities company then due or owing.”
Whether the repurchase contract is a valid and binding agreement is not now before this court. Assuming, without now deciding, that this is a valid contract, the securities company must elect to demand that the hardware company repurchase what was sold or the securities company becomes the owner thereof. The tidal court found that the collateral held by the securities company was without market value, was of doubtful value and wholly inadequate to secure the payment of the money due the securities company. (Finding 18.)
It will be readily observed that if the securities company does not insist upon the repurchase by the hardware company, that the original indebtedness in the sum of $127,000 will vanish from this transaction. It will also be noted that if the securities company does require the hardware company to repurchase this former collateral the securities company is entitled under this contract to a new note or notes, but not to its original security therefor. If the contract is valid, then under paragraph eight quoted above, the securities company, if it deems itself insecure, has a right to sell only the 500 shares of no-par common stock of the securities company and apply the proceeds on its claim against the hardware company. The hazardous financial condition of the hardware company has received previous consideration and requires no repetition here. The questions involved in the repurchase contract are clearly so important to the very financial existence of the securities company as to have required consideration from its board of directors long ago. Again, however, its board failed to function as to this item of business. (Finding 42. See, also, conclusion of law number 4.)
Mr. Collis, a director of the securities company, and of course also a director of the hardware company, testified concerning this vital document, as follows:
“By the Covet: Does this board of directors discuss what they are going to do with this repurchase agreement? A. No, we haven’t. The all-important thing to both companies is to know whether we are going to continue or not, and as soon as that is determined we will get together and discuss what to do.
“By the Covet: Has the question of legality of that contract been up before the board or with the attorneys? A. Which company?
“By the Court: The securities company. A. No, as we have had no meetings. It has been talked in general.”
Failure of the board to consider the legal rights and interests of the securities company in the light of the critical financial condition of the hardware company has jeopardized and is jeopardizing the interests of the securities company and the rights of its stockholders. Here again this court is of the opinion that the rights of the plaintiff are free from reasonable doubt, and that the danger of loss or injury is clearly proved.
Appellants contend that the court found there was no fraud on the part of any of the defendants to this action. That is correct. No fraud was pleaded by plaintiff as to the subordination of claims or as to the repurchase agreement. 'The fraud pleaded by plaintiff related to the original transfer and exchanges of stock between these corporations. The question was also raised by plaintiff as to the legal inability of the directors to act for the securities company. The trial court found that the exchange of the 36,000 shares of the common stock of the securities company for the 1,200 shares of the common stock of the hardware company is not void, and is not voidable at the suit of a common stockholder of the securities company who purchased his common stock after such exchange of stock. The trial court further found the defendant directors of the securities company are the legal directors of that company. Appellees contend these conclusions of law are erroneous. There has been no cross-appeal as to either of these findings. These questions are not before us, hence we are not deciding the question of their validity. It is not necessary to decide them in order to determine the validity of the appointment of a receiver. The trial court decided this lawsuit on the principle of mismanagement and not on the theory of fraud or the legal inability of the directors to function.
The trial court found that the directors of the hardware com pany, who are also the directors of the securities company, are more interested in the hardware company than in the securities company, and pointed out the reasons therefor. (Finding 37.) It is obvious that a mere failure of the securities board to exercise its option under the repurchase agreement might readily eliminate the whole perplexing question of parity of claims to at least the extent of $127,000. Such a short cut would at least tend to deprive the securities company and its stockholders of their day in court on the question of parity of claims to that portion of the indebtedness. Failure on the part of the securities board to demand repurchase by the hardware company would also ease the load of the hardware company’s indebtedness in that same amount. It would jeopardize the interests and rights of the plaintiff and other stockholders of the securities company to that same extent.
It is strongly urged in one of the briefs resisting the appointment of a receiver that consideration’ by a court of what the securities company board would do about this repurchase contract- would be dealing with possible future conduct and not with past conduct. Our answer is that the failure of the securities board to even consider what its action should be as to this contract is past and not future conduct.
A third reason why appellants’ contention cannot be sustained is that in this case the common board of directors is purporting to function in a dual and inconsistent capacity. It is purporting to represent adverse legal rights and interests. It is in the position of representing both the creditor and the debtor. The facts show, as previously indicated, that the rights and interests of the.securities company have been jeopardized in order to save the hardware company. This has been done on the theory and with the hope that if anything remains the securities company will be paid eventually.
No just, no equitable reason appears to this court why the moneys paid to other creditors should not have been impounded to abide a decision on parity of claims. Here not only w7as that neglected, but the securities board failed to consider its legal rights in the matter. (Finding 42.) Without such consideration it stood by and permitted the preferences.
Appellants argue that the interests of the securities company and hardware company are not adverse. With that contention we cannot agree. The evidence clearly shows the contrary. Appellants’ contention in that regard is based upon questions of business policies and judgments which they claim would be to the best interests of all concerned. That has nothing to do with the question of adverse legal rights and interests. The stockholders in the two corporations are not all the same. The interests of the corporations are not the same. . The interest of the securities company revolves about its right to have its claim against the hardware company paid. The interest of the hardware company is to have that claim subordinated. The interest of the hardware company under the repurchase agreement would be to let the securities company become the owner of the collateral. The collateral was found by the trial court to be without market value, of doubtful value and wholly inadequate.' (Finding 18.) The interest of the securities company would therefore appear to demand the repurchase of the collateral by the hardware company.
Appellee cites decisions and statements of text writers which he contends support the proposition that contracts such as, or similar to, the repurchase agreement entered into by a common board of directors have been held void or voidable. Other decisions are cited which it is contended hold that such contracts are presumptively fraudulent. We deem it unnecessary to determine that question now.
Appellants insist there is nothing inherently wrong or illegal about two corporations having a common board of directors. That may be readily admitted. In this case we have a common board purporting to act in dual and irreconcilable capacities. Even this modern age, with its interlocking and common directorates, may well give heed to the ancient Biblical admonition, “No servant can serve two masters” (Luke 16:13). In the instant case the common board is in the position of being obliged to serve three masters: first, the hardware company, a debtor; second, the securities company, the creditor of the hardware company; and third, the bank and trade creditors of the hardware company, whose interests are squarely adverse to those of the securities company. It is clearly obvious that the common board, in the best of faith, occupies an unsatisfactory if not wholly untenable position. Under the peculiar circumstances in this - case, it is the opinion of this court that the securities company; in fairness, justice and equity, is entitled to an independent agency to consider, determine and protect its rights and interests.
It is also contended that the appointment of a receiver amounts to abuse of judicial discretion. This court in receivership cases has previously held that the appointment of a receiver rests so largely in the discretion of a trial court that this court will not disturb its judgment unless it is evident that reasonable discretion has been abused. (Flucker v. City Rly. Co., 48 Kan. 577, 30 Pac. 18; Nelson v. United Elevators Co., 115 Kan. 567, 570, 223 Pac. 814.) The defendants in this lawsuit are, under the positive finding of the trial court, absolved from fraud. The trial eourt found that the failure of the board of the securities company to function amounted to mismanagement and that a receiver should be appointed. There was abundant evidence to support the judgment. In our opinion the trial court did not abuse sound judicial discretion.
The judgment is affirmed.
Burch, C. J., Hutchison and Smith, JJ., are not satisfied the district court was authorized to appoint a receiver, and so withhold assent to affirmance of the judgment of the district court. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover moneys loaned to a bank which failed after the claimed loan was made.
The cause was tried on amended pleadings, which as far as it is necessary to note, alleged that on October 31, 1930, plaintiff loaned the bank $1,250, that interest had been paid to April 28, 1931, that $250 had been paid on the principal and that there was due $1,000 and interest.
The answer alleged that the bank was placed in receivership on June 5, 1931, and denied that plaintiff loaned the bank any money; that the bank had paid any interest or any payment on the claimed loan. By way of cross petition, defendant sought to recover from plaintiff his statutory liability as a stockholder. We need not notice the cross petition nor the plaintiff’s reply.
At the conclusion of plaintiff’s case in chief, defendants demurred to the evidence on the ground that no cause of action was proved. This demurrer was overruled and the trial proceeded and resulted in a verdict by the jury in favor of plaintiff for $1,065, and judgment was rendered accordingly that Charles W. Johnson, as receiver of the failed bank, issue and deliver to plaintiff a receiver’s certificate for that amount, and pay the costs. His motion for a new trial was denied and he' appeals, assigning as error the trial court’s rulings on the demurrer to the evidence and on the motion for a new trial.
Plaintiff appears to have been the only witness in his case in chief. He testified that he had been engaged in the banking business at various places in Kansas from 1913 to the time of the matters here detailed, except for a time when he was in military service. He became a teller in the Armourdale State Bank in May, 1930. Henry Daniels was president of the bank at the time and seems to have been so until it failed and was taken in charge by the bank commissioner on June 5, 1931. On or about September 1, 1930, Daniels came into the cage which plaintiff ran and took out some cash and in lieu placed a paper slip designated Item No. 3. This paper was a blank check form, on the reverse side of which was a written memorandum:
“9/2/30 J. W. Burke. Item No. 3, 11,250.”
This was carried as a cash item for nearly two months. On or about October 30, 1930, plaintiff had a conversation with Daniels, his statement being:
“Q. State what that conversation was. A. I told Mr. -Daniels that that item had been in the bank for a long time and it looked to me like we would probably be ready for an examination almost any time and that item should be arranged for and taken out. He said, ‘Yes, it should.’ He wanted to know if I could make some kind of arrangements to take this up temporarily for the bank and that the bank would pay the interest on the money. I told him I didn’t have any money, but I would try and see if I couldn’t arrange to take this up in order to accommodate the bank. He said he would appreciate it if I could, and I went to the Commercial National and asked them if I could borrow some money. They said, ‘Well, what kind of a statement can you make?’ I said, ‘Well, I can make the statement, but it really isn’t much good. I really don’t have any cash, but I would like to borrow this money for this purpose of taking up this item.’ They loaned me the money.”
He further testified he placed the money in the drawer and took out the item. The item shows also “Canceled: Oct. 31, 1930. — The Armourdale State Bank, Kansas City, Kansas.”
The note to the Commercial National Bank was a demand note and under its ruling every sixty days it asked for interest or payment; that each sixty days plaintiff received a notice from that bank, he placed the item back in the drawer, took $1,250 in cash and went to the Commercial Bank “for the reason that if they were going to demand the payment of the note, I had the money to pay it with. I did that each sixty days from the time that note was made at the Commercial National until the bank closed.” On cross-examination he stated the item was good, it represented $1,250, and he kept it and put it in the drawer when he took out $1,250 to go to the Commercial National Bank and when he put the money back, he took out the item. In explaining the matter, he stated he was asked by Daniels if he wouldn’t take up the item temporarily for the bank; that the purpose in taking out the item was that it was a very old item; that Daniels didn’t want it in there. He repeatedly gave that as the reason for substituting the cash for the item. Efforts by defendant’s counsel to get any further explanation were frustrated by objection which the court sustained, but thereafter the following questions were asked and answers given:
“Q. All right, then upon your initiative, as you testified, in order to have this item out of your cage when the state banking authorities might come around to examine the bank, you suggested to Mr. Daniels that item be taken out, is that your testimony on your direct examination or not? A. Yes, I asked — I suggested the item be taken out.
“Q. And you kept that item, did you? A. Yes, sir; that represented $1,250.
“Q. You had been in the banking business about seventeen years before you went to the Armourdale State Bank? A. Yes.
“Q. And you now testify that you personally loaned the Armourdale State Bank $1,250? A. Yes, I did.
“Q. Did you have any evidence of that loan from the Armourdale State Bank — any evidence given to you by the Armourdale State Bank that you had made them a loan? A. Well, I had the item.
“Q. You had this canceled item? A. Yes.
“Q. And that is something that you took out of your own cage yourself? A. Yes, in lieu of that put in the cash.”
Plaintiff further testified that he kept the item in his personal possession except at the sixty-day intervals when he put it in the drawer and took out $1,250 and went to the -Commercial National Bank.
Did the court err in overruling the demurrer to the above evidence?
It may be observed that plaintiff instituted the action by claiming that he loaned money to the bank, and that the bank denied a loan had been made, and by way of cross petition set up a claim for stockholder’s liability. Plaintiff’s reply denied he was a stockholder. Appellee seeks to support the trial court’s ruling partly on the ground that the reasons urged why the demurrer should have been sustained vary from the theory of defense as presented by the answer, in that estoppel was not pleaded; but is now relied on. Appellee urges further that as against a demurrer, every inference is to be resolved favorably to the plaintiff; that his honesty and good faith are presumed, and that if there are any contradictions even in his own testimony the demurrer should have been overruled. It may be conceded that as an abstract proposition the latter contention is correct. The rule is that in considering a demurrer to evidence, the court should consider only facts and inferences favorable to plaintiff (James v. Grigsby, 114 Kan. 627, 220 Pac. 267) and that the court must consider as true all portions of the testimony which tend to prove the allegations of plaintiff’s petition, giving plaintiff the benefit of all inferences (Windus v. Bodecker, 132 Kan. 857, 858, 297 Pac. 702) and that in ruling on a demurrer the court has no authority to weigh evidence (Coy v. Cutting, 138 Kan. 109, 113, 23 P. 2d 458). On the other hand, where the plaintiff personally testifies to a state of facts which clearly precludes his recovery, the effect cannot be avoided. Plaintiff’s statement shows clearly that he suggested that Item No. 3 had been in the bank a long time, it was about time for the bank to be examined and it ought to be taken out before the examination by the state authorities, and that acting upon that promise and at the request of Daniels, 'he borrowed the money and put it in his drawer, taking out the item which he held, replacing it temporarily each sixty days. The canceled item is all the written evidence there is that plaintiff loaned money — either to the bank or to Daniels. There is no showing of any bank entry evidencing the loan — in fact, the testimony shows inferentially there was no such entry. There is considerable testimony as to details, and it is true that he testified he loaned the money to the bank, which was more in the nature óf a legal conclusion than a statement of fact, but there is no testimony that warrants any other conclusion than that he put in the money and took out the item for the reason it had been carried for some time and the bank was about due for an examination, and thus made it appear the bank had $1,250 without an offsetting item. The question then arises whether he could recover the money he put in to take up the item.
In State Bank v. Olson, 116 Kan. 320, 226 Pac. 995, the defendant had given a note used to replace excess loans, and for the purpose of deceiving the bank examiner. Recovery was allowed plaintiff. In the opinion it was said that the banking business is fraught with public concern; that public faith, credit and honesty are a bank’s main assets; that they are subject to public regulation in order to achieve the ends of legitimate business, and that the statutes require examination by the bank commissioner periodically in order that those who deal with banks may not be misled by appearances.
“To sanction any arrangement whereby the real assets and securities of a bank are to be regarded as less than or different from, the apparent assets and securities, would tend to defeat the entire purpose of the regulatory statutes. Parties may not participate in a transaction, the object of which is to give to the assets of the bank a favorable appearance for the purposes of examination, but less favorable for purposes of liability or enforcement.” (p. 323.)
In Hayes v. Addy, 139 Kan. 481, 32 P. 2d 243, defendant was persuaded to indorse notes with pencil indorsement to be removed and erased after the bank had been examined. He defended on the ground he was an accommodation indorser. In the opinion it was said:
“There is no testimony in the record which controverts Haul's own version of why he signed the note, and it is clear that he signed it knowingly and under, no misapprehension and that he knew when he signed it that the purpose of the indorsement was to deceive the bank examiner. This is not a case where there is doubt as to the purpose. In addition to his statement of the purpose, it must be borne in mind that he had been cashier and president of a bank for a period of ten years. He knew just what a bank examination is for, and that if enough indorsements of responsible parties could be had on notes belonging to the bank, under circumstances similar to those under which he indorsed, insolvency of a bank could be indefinitely concealed from the bank examiner. ... We have no doubt as to what the result should be in this case; that under his own statement Kaul signed the note in question for the deliberate purpose of deceiving the bank examiner as to the condition of the assets of the bank, and by reason thereof is now estopped to deny liability.” (pp. 483, 485.)
And see McDaniel v. Altoona State Bank, 126 Kan. 719, 721, 271 Pac. 394, where plaintiff sought to have notes, alleged to have been given a bank for accommodation, canceled and returned, the court, inter alia, saying;
“The trial court also held that plaintiff could not recover the notes, for in giving them he had knowingly aided the officials, of the bank in a scheme to deceive the bank commissioner as to the assets of the bank, within the rule stated by this court in State Bank v. Olson, 116 Kan. 320, 324, 226 Pac. 995, and allied cases. Perhaps it was not necessary for the trial court to make this finding. There are circumstances, however, not necessary to be here detailed, which give support to this view. Naturally, if that was the purpose of the parties, the plaintiff could not recover in this action.” (p. 721.)
Appellee argues, however, that in any event the demurrer was properly overruled because defendant’s answer did not plead estoppel. From anything that appears in the record, the receiver of the failed bank may not have known of the facts until the plaintiff testified. The petition contained no allegations that put defendant on any notice further than he claimed to have loaned the bank $1,250, and had been repaid $250. He set up no copy of the Item 3, which he testified was his evidence of the debt.
In 21 C. J. 1244 it is said:
“It is a well-recognized exception to the rule that a party does not waive the estoppel where he has no opportunity to plead it.”
And at page 1246 it is further said:
“It has been held that an estoppel which is not specially pleaded is not available, even though established by the evidence; but there is authority also to the effect that failure to object to evidence of estoppel waives the objection that the estoppel was not specially pleaded. So it had been held that where the facts showing estoppel are in issue and are admissible for any purpose under the pleadings, estoppel is available as a defense without being specially pleaded; that evidence of estoppel is admissible without being pleaded in order to rebut evidence introduced by the opposite party; and that where defendant offers evidence which warrants an estoppel upon him, without in any respect restricting it to any particular issue, he will not be heard to complain that the estoppel was not pleaded, unless defendant’s evi dence was not presented voluntarily but was elicited when he was called for cross-examination under statute.”
In Durham v. C. C. & M. Co., 22 Kan. 232, it was held:
“Where testimony is given by a party, no wrong will ordinarily be done such party if the testimony so given be accepted as true. His testimony, like his admission, is good against him.” (Syl. ¶ 2.)
In Walls v. Zinc Co., 113 Kan. 700, 216 Pac. 308, it was said:
“The defendant argues that the plaintiff is bound by the evidence of his own witnesses, and that the verdict and findings are inconsistent with some of this evidence. The testimony of witnesses (other than himself) called by the plaintiff was not necessarily absolutely conclusive as against him.” (p. 701.)
In Stecher v. London Guarantee & Accident Co., 133 Kan. 89, 298 Pac. 754, appears the following:
“First, is the plaintiff bound and concluded by the testimony of his own witness, when the evidence given by such witness is against the interest of the plaintiff? The emphasis placed upon the fact of the evidence having been submitted by the plaintiff would lead one to infer there was a distinct difference as to the source of it, but while a party cannot impeach his own witness nor attempt to discount his credibility, yet he is never concluded by the statements made by any of his witnesses other than himself, and can with his other witnesses contradict such statements, leaving to the jury to determine, even among his own witnesses, the matter of weight and credibility. (Wallach v. Wylie, 28 Kan. 138; Deering v. Cunningham, 63 Kan. 174, 65 Pac. 263; and Walls v. Zinc Co., 113 Kan. 700, 216 Pac. 308.)” (p. 91.)
In the instant case, there was no witness save the plaintiff, and his testimony plainly showed that the purpose in removing Item 3 and putting in the money which it represented was for the purpose of deceiving the bank commissioner or his assistants when the bank might be examined. Under the circumstances of this case, it was immaterial whether estoppel was pleaded or not. Plaintiff, on his direct as well as indirect examination, made statements against his own interest by which he is bound. There was no evidence to a contrary effect or from which a different implication or conclusion could be drawn. The demurrer to the evidence should have been sustained.
We need not discuss the ruling on the motion for a new trial.
The judgment of the lower court is reversed, and the cause is remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Hutchison, J.;
This was an action against the defendant insur anee company for the amount claimed to be due the plaintiff, as beneficiary under a life insurance policy on the life of her son, with, a double accidental death benefit rider attached. Payment was made of the face of the policy, but it is alleged she did not know at the time of the payment that the death of her son had resulted from an accident, but being so informed later brings this action within' five years from the date of his death.
The answer is a general denial that the death of the insured was accidental and also pleads estoppel on account of the long lapse of time and a receipt in full.
The reply admits the receipt of the face of the policy in satisfaction of the ordinary death claim, but nothing else, and specifically denies the acceptance of the check and the giving of the receipt as constituting a settlement, compromise or release of her claim for additional payment for accidental death under the policy in question, or constituting an accord and satisfaction of such claim. And she further alleges that she signed such receipt under a misapprehension as to her rights in the policy and under a mistaken belief as to the facts of her son’s death, and states that the defendant company has-received-proof as to the accidental death of her son.
At the close of the evidence the jury was instructed and brought in a verdict in favor of the defendant, from which judgment the plaintiff appealed after the overruling of her motion for a new trial. The errors assigned are principally with reference to the introduction of testimony and the giving of instructions.
The first error assigned was in overruling an objection of the plaintiff to a question asked in cross-examination of a doctor called by the plaintiff as an expert witness, concerning the attending physician, whose deposition had been taken and was on file and later read by the defendant. It is said the two doctors were close friends and had once offioed together, although their opinions were widely different in this case. The question asked Doctor Butler in cross-examination about' Doctor Greever, the physician who attended the deceased, was as follows: “You would respect his (Doctor Greever’s) opinion if he handled the case, would you?” The objection was made that it was improper cross-examination. The objection was overruled and the witness answered, “Why, I certainly would, yes, sir.”
In the case of Sanders v. Railway Co., 86 Kan. 56, 119 Pac. 552, an expert witness -was asked a similar question about an engineer in charge of a locomotive that was charged to have been handled with negligence — the defendant asking its own witness about its own employee, and he answered such similar question that he considered him a first-class engineer, and the court in the consideration of that testimony said in the syllabus:
“. . . without deciding upon the competency of the testimony under the issues presented it is held that it does not appear that the rulings, if erroneous, injuriously affected the substantial rights of the party objecting thereto, and that the judgment cannot be reversed therefor.” (Syl. It 3.)
In 28 R. C. L. 607 it is said concerning cross-examination in collateral matters that it is “one of the chief agencies for the development of the truth in judicial inquiries . . . Any question may be put which reasonably tends to explain, contradict, or discredit any testimony given by him, or to test his accuracy, memory, veracity, or credibility.” And on page 609 it is said:
“. . . an appellate court will not interfere with the exercise of discretion by the trial court unless a clear abuse thereof is made to appear. In order to warrant a reversal, it must plainly appear that the ruling has resulted to the prejudice of the exceptor.”
While we would not want to say that the question asked was proper cross-examination, we have no hesitancy in concluding it was not an abuse of judicial discretion in overruling the objection thereto, and that such ruling did not constitute prejudicial error.
Two other errors assigned were the overruling of objections to the questions asked by the defendant of two of its witnesses, Mr. Ford, under whose supervision the insured was working at the time of the alleged injury, and the other physician who attended the insured during his illness, as to whether anything was said by the deceased about having received an accidental injury, and whether the deceased made any statement to Mr. Ford in regard to an accidental injury, and whether the deceased ever stated to the attending physician anything to the effect that the condition of the toe was caused by an accident or an external blow. Both answered these respective questions in the negative. The theory of the plaintiff was that the second toe on the right foot had been injured by being stepped on by another boy in a basketball game. Appellant frankly states that while the answers to these questions may not, strictly speaking, be hearsay evidence, yet inasmuch as they are preliminary in their nature and if the answers had been in the affirmative the statements made by the deceased would have been hearsay evidence, that such preliminary questions were necessarily incompetent and improper. Appellant cites 1 C. J. 500 where the text is that declarations or statements of the insured as to the cause of his injury made some time after the event and not a part of the res gestee cannot be admitted even though made to an attending physician. The preliminary' questions and the answers thereto, either affirmative or negative, should not be controlled by the same rule as that which has to do with the statements made by the deceased. The fact that he mentioned or did not mention the accident or injury was some evidence on the main question of fact involved in this case, viz., Was there an accidental injury which resulted in the death of the insured? The fact that the deceased did mention the injury or did not mention it to the one under whom he was working or to his attending physician was certainly competent and material evidence on this issue of fact.
The third error assigned is in permitting Mr. Ford to answer a question of defendant’s attorney as to “athlete’s foot” being a common disease at a certain time among the companions of the deceased. We see no error in this question, because the issue was whether or not the death resulted from an accidental injury.
The errors assigned concerning the giving and refusing of instructions relate to the question of giving a receipt or release and the burden of proof upon the plaintiff to show a mistake in giving the same. Appellant calls attention in the reply brief to the language of the reply alleging that the receipt given by the plaintiff for the face of the policy was given by her because “she was under a misapprehension as to her rights in the policy and that she signed said receipt and accepted said check under a mistaken belief as to the facts of said death.” The trial court instructed on the theory of mutual mistake, although no such allegation is in the reply. The case of Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548, and some other cases are cited in support of appellant’s theory that her mistake alone was sufficient to fully relieve her from the binding force of a receipt she gave. In other words, the defendant may have, at the time of making the payment of the face of the policy and the taking of the receipt of the beneficiary therefor; known all about the death having resulted from an accidental injury, which would have entitled her to double the amount. In most of such cases the action of the defendant company in concealing from her the fact of the death resulting from an accidental injury, if it were a fact, has been denominated as fraudulent, and if the mistake was not mutual, it was generally alleged to have been fraudulent. (53 C. J. 1211-1213; and Miller v. Gas & Fuel Co., 108 Kan. 124, 193 Pac. 896.) These references have to do with releases instead of receipts, between which there is a great distinction, which will be considered later, but as to the mistake being mutual, or only the mistake of one of the parties, the principle would seem to be the same with respect to a receipt as it is to a release. Regardless of the limited nature of the mistake alleged in the reply, the court tried the case throughout on the theory of a mutual mistake having been pleaded, and we find no objections made or entered as to such theory during the trial, and the following instruction requested by the plaintiff at the close of the trial puts the plaintiff on record as having intended to submit the question of mutual mistake to the jury:
“The jury is instructed that where a receipt for money is given and all parties concerned in the transaction are acting under a mistaken belief as to the facts surrounding said transaction that the receipt is not binding upon any of the parties thereto.”
The plaintiff’s evidence as to a mistake on her part does not seem to have been contradicted in the record, but it left the matter open for proof as to its being a mistake on the part of the defendant. The defendant in its answer denied the accidental injury alleged in the petition, and as honesty is always presumed, it would naturally be thought that the company was of the same view when the receipt was given to it as at the time of the trial, viz., that there was no knowledge on its part of an accidental injury, unless it was concealing some information it then had which might be the basis for fraudulent conduct in procuring a receipt, knowing it to have been the result of an accident, but fraud is not pleaded, neither is it to be presumed. So we have the necessity of some proof as to a mistake on the part of the defendant in order to meet the requirements of the instructions requested by plaintiff as well as those given by the court.
It is said in 53 C. J. 1211 that—
“A mere mistake of fact on the part of one of the parties to a release, in the absence of a showing of fraud, duress, undue influence, or mental incapacity, is not sufficient ground for the avoidance of a release.”
The same volume, at page 1196, gives the distinction between a receipt and a release, as follows:
“A release has been distinguished from a receipt as extinguishing a preexist ing right, while a receipt is a mere evidence of a fact. As otherwise stated, a receipt is evidence that- an obligation has been discharged, but a release is itself a discharge of it.”
Under this definition the difference is partly in point of time, as a receipt introduced in evidence may become in effect a release. The plaintiff in this case consistently refers to the document along that line as a receipt. The trial court in its instructions mentioned it as a release. It consisted of two parts. The first part was on the back of the draft sent by the defendant to the plaintiff for the face or ordinary death value of the policy; the second was a separate instrument. They are as follows, omitting dates and signatures:
“Endorsed and accepted as payment in full of all claims under policy No. 163048 on the life of Louis J. Werth.”
“Received from the Minnesota Mutual Life Insurance Company two thousand three and 58-00 dollars ($2,003.58), being in full settlement of all claims under policy No. 163048 issued by said company on the life of Louis J. Werth or of any policy in lieu of which said policy may have been issued; said policy being payable to Cecelia L. Werth, beneficiary, and not assigned.
“Face of policy................................... $2,000.00
Mortuary dividend .............................. 3.58
$2,003.58”
Appellant most earnestly objects to the burden of proof being placed on her by the instructions given as to there being a mutual mistake in the giving of a release and especially to the very strong language used and repeated therein to the effect that in order to set aside the release the evidence must be “clear, unequivocal and convincing that both parties were acting under such mutual mistake.” As to the words used they are substantially the same in effect as were used in the instructions in the case of Goodyear v. Davis, 121 Kan. 392, 247 Pac. 446, as to a mutual mistake, and they were there approved.
As to the burden of proof being placed on the plaintiff concerning the mistake appellant cites Bridge Co. v. Wayland, 107 Kan. 532, 192 Pac. 752, holding where payment of a debt was alleged by defendant the burden of proof was on defendant to show the payment, and did not shift to the plaintiff who alleged a mistake in giving the receipt. In this case, however, the plaintiff’s cause of action was to recover on an account or indebtedness. By pleading payment the defendant acknowledged the plaintiff’s claim and the allegation of payment was for defendant to prove and establish. In doing so it necessarily took issue with the plaintiff only as to the reply that the receipt was given by mistake. In the case at bar the real issue was on the allegation of the plaintiff that an accidental injury had occurred. The receipt or release pleaded by the defendant in no way admitted the plaintiff’s cause of action, as it did in the Wayland case.
Appellant also cites Mesloh v. Insurance Co., 111 Kan. 409, 207 Pac. 754, which was an insurance case in which the Wayland case was mentioned, and the court, in that connection, said in the opinion:
“. . . receipts do not count for much as against the truth. They do not even shift the burden of proving payment. (Bridge Co. v. Wayland, 107 Kan. 532, 192 Pac. 752.) In this instance, however, no receipt was given.” (p. 412.)
In the case at bar the plaintiff had two things to prove, (1) the accidental injury as the cause of the death and (2) the mistake in giving the receipt.
Appellant seriously complains of the remarks of the trial court to the jury shortly after the commencement of the trial in which it told the jury that — ■
. . before you can consider the main case you will have to determine whether or not that release was given under a mistake of fact and that both parties were mistaken, in fact.”
It is doubtless unusual to give such instructions during the progress of the trial, but it was in harmony with the instructions given later, and it can hardly be said to have been prejudicial.
The appellee pleads estoppel and argues that point in its brief and also argues the matter of the court overruling its demurrer to plaintiff’s evidence, but there being no cross-appeal, these matters are not properly before us for review.
We do not find the errors assigned to be prejudicial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was a workmen’s compensation case. Judgment-was for claimant. Respondent appeals.
Claimant was a welder’s helper. At the time of his injury he was employed by the Panhandle Eastern Pipe Line Company. About May 5, 1931, he attempted to load a gas tank into a Ford truck. This tank weighed about 250 pounds. The ground was slippery on account of rain the night before. The method of loading the tank was to lean the top part against the truck and lift the bottom part up and then shove it on the truck. Claimant attempted to do this on the morning in question. When he lifted the tank his foot slipped and the tank threw him back. To use his words, “When my foot-slipped, of course, I went down . . . and the tank came back as I went down and I caught it to keep it from coming back on me. I caught the weight of the tank in my arms and I was bent over.” He received no blow from the tank at that time although he felt a sort of strain or soreness through his stomach and across his back. As the day went by he recovered from this soreness.
About a week after the accident that has been described he began to be troubled with frequent urination. He soon was bothered with extreme hunger and thirst. In about two weeks he lost approximately twenty-five pounds in weight. He stayed on the job for about a month. Then he took a leave of absence and went to his home in Atchison. Soon after his arrival at Atchison he called on his family doctor. This doctor examined him and found him suffering with diabetes mellitus. He prescribed a diet for claimant and began to administer insulin to him. Claimant continued to use insulin until the time of the hearing. For a time claimant worked in a grocery store where the work was light. At the time of the hearing he was running a hamburger stand. About two weeks after the arrival of claimant at Atchison he wrote a letter to Mr. Wright. This man was superintendent for the pipe-line company. His office was at Paola, Kan. He did not keep a copy of this letter nor did Wright keep the original letter. Over the objection of respondent claimant testified that in this letter he explained his condition seemed to have come from the accident. He asked in the letter about his compensation. About the last of June he went to Paola to see Wright. He testified that at Paola he talked to Wright about his compensation, and Wright stated he would see about it. The letter spoken of was not sent by registered mail. At. the conversation just spoken of, however, Wright stated he did receive the letter.
On August 3, 1933, claimant filed a claim for compensation with the workmen’s compensation commission. On November 27, 1933, a hearing was had. The commission denied compensation on the ground claimant had failed to prove a written demand for compensation made upon the employer within ninety days after the accident and that claimant was not suffering from any disability arising out of and in the course of his employment; that the diabetes from which claimant was suffering was not due to accidental injury sustained and not aggravated or accelerated by accidental injuries. In due time claimant appealed to the district court.
The trial court examined the transcript of proceedings before the commission and found that claimant had made a written demand and that he was suffering from diabetes mellitus and that his condition was caused or accelerated' by the injury received by claimant. Judgment was entered setting aside the award of the workmen’s compensation commission and directing the employer and insurer to pay compensation to claimant at the rate of $9.60 a week for 415 weeks. The appeal is from that judgment.
The argument of respondent is that claimant did not serve a sufficient claim for compensation in writing upon the employer within ninety days after the accident, and there is no competent evidence in the record to support the findings of the court that the condition of the claimant was caused or accelerated by any injury received by him in an accident arising out of and in the course of his employment.
The written notice upon which claimant depends is the letter to which reference has been made. At the hearing the trial court made findings of fact that a sufficient claim had been made in writing upon the employer. Claimant points out this finding and relies on authorities where this court has held that it would only pass on questions of law and not on questions of fact. There can be no doubt that this is correct.
We will pass over, however, the question of whether the evidence before the commission was sufficient to establish the fact that a written demand was made. We will place the decision on the question of whether there was any substantial evidence to sustain the finding of the trial court that the condition of the claimant was caused or accelerated by the injuries received by him in the accident arising out of and in the course of his employment.
There can be no doubt on this record that claimant is suffering from diabetes mellitus to the extent that it has disabled him. Our only question is, Did the accident cause or accelerate it? This brings us to a consideration of the evidence, especially the testimony of the doctors. The doctor who testified for claimant gave the causes of diabetes as “Disease of the liver, the pancreas, the adrenal gland or trauma.” He further testified that it was possible for an injury to the head, spine or other locations of the body to produce diabetes and that an injury to the pancreas would produce diabetes.
He then testified -as follows:
“Q. Will you explain more fully what are traumatic injuries? A. A blow, a strained, undue position of the body or shock whether due to some mental or physical disturbance.
“Q. Assuming that a person were lifting a heavy weight of about 200 pounds onto a truck and in so doing, slipped and in trying to hold the weight, strained himself severely, would that be possible as a cause of diabetes when such a strain were received? A. It is possible.”
He further testified that he did not know whether the condition of plaintiff was caused by an injury or something else. On cross-examination he testified that it would be very difficult to strain the pancreas without any blow, just by lifting, unless the body was in some unusual, cramped position.
This is all the direct evidence that the condition of claimant was due to the accident.
Claimant relies on the fact that, as he testified, he was in good condition before the accident and began to be sick soon after it. It will be seen that the only medical testimony that was furnished by claimant was that it was possible that an accident such as that described by claimant might have caused his condition.
This court considered a similár question in Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70. That was a case where a traveling auditor was compelled to crank his car and the extra exertion caused him to be all “worn out.” In about a week he was stricken with a cerebral hemorrhage. The court held that there was no substantial testimony to sustain the judgment of the trial court allowing compensation. The court said:
“What we mean, to hold is that before a claim for compensation can be sustained there must be substantial, competent evidence to support it. Claims cannot be sustained which rest purely on conjecture, or upon abstract theories not applicable to the facts.” (p. 629.)
To the same effect is the case of Phillips v. Okey, 111 Kan. 732, 207 Pac. 1106. There a wife was claiming compensation for the death of her husband. He had died from an abscess which had formed in his chest. The contention of the claimant was that the abscess was produced or was caused to burst by the inhaling of bad air in the mines. The doctor testified that he could not ascertain the cause of the abscess. This court affirmed the judgment of the trial court denying compensation. The court said:
“It was incumbent on the plaintiffs to prove to the satisfaction of the trial court that the death of Phillips flowed from an injury which he had received in the course of his employment in defendant’s mine. This they failed to do. The immediate cause of his death was the abscess; but the doctor who attended him could not tell what caused the abscess; and neither he nor either of the other two medical experts called as witnesses would concede more than a possibility that the bad air Phillips had! inhaled on August 8 had caused the abscess, although two of them testified that it might possibly have aggravated an existing abscess. Since there was no convincing testimony that the abscess was caused or aggravated by the foul air of the mine, the trial court properly refused to trace Phillips’ injury and death to anything arising out of and in the course of his employment.” (p. 734.)
To the same effect is Davis v. Packing Co., 101 Kan. 769, 168 Pac. 1111. In that case the commission denied and the trial court allowed compensation for death. The claim was that the workman died as a result of his foot being frozen while at work. In reversing the judgment this court said:
“We have already indicated all the evidence found in the abstracts or transcript touching the place and cause of the injury, and giving to it all its natural and reasonable significance we can conclude only that the deceased died from blood poisoning; that his foot was injured by freezing, and that it possibly may have been frozen while at work in the defendant’s plant. But it is equally reasonable and probable that it may have been frozen on his way from the plant or at any one of numerous other places.” (p. 770.)
Claimant cites and relies on a number of authorities where this court has held the question of whether the disability was caused by the accident was a question of fact, and once it had been settled by the trial court would not be reviewed by this court. That is undoubtedly the law.
However, it is well settled that the question of whether there is any evidence to sustain the judgment is one of law and not of fact and will be reviewed by this court. ' (See Fair v. Golden Rule Refining Co., supra.) Taking all the evidence in this case in its most favorable light for claimant and giving claimant the benefit of all inferences to be drawn from the proven and admitted facts, the conclusion to be drawn rises but little higher than a surmise or conjecture. We cannot permit judgments to rest on such a basis.
The judgment of the trial court is reversed with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Burch, J.:
Royal B. Douglas was .charged in four counts with cheating and defrauding the state of Kansas, and was found guilty on each count. From a cumulative sentence to confinement in the penitentiary he appeals.
There are assignments of error relating to trial proceedings. De fendant does not bring to this court a record which will permit consideration of them.
Other assignments of error are misconduct of the prevailing party, and abuse of discretion by the trial court, whereby defendant did not have a fair trial. These assignments of error are based on refusal of the district court to continue the case and, after full investigation, insistence of the court that the case be tried at the term and on the day it was set for trial. Some of the facts regarding fixing date of trial were disputed. On abundant, credible and convincing evidence, both direct and circumstantial, the court in effect found defendant was simply trying to secure postponement of trial over the term. The unpleasant details will not be spread at length upon the records of this court.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is from the ruling of the district court of Douglas county in an application for compensation under the soldiers’ compensation law of Kansas, denying the application on the ground that the claimant had failed to establish that he was a resident of the state of Kansas at the time he enlisted in the service, and from the further order of the district court overruling claimant’s motion for a new trial because of newly discovered evidence. The first proposition involves the question of the right of a minor to select and establish a residence for himself apart from his parents, and the second proposition concerns the question of showing reasonable diligence in endeavoring to discover and produce the additional evidence at the trial.
The evidence produced at the trial showed that claimant was born at Shawnee, Okla., June 23, 1899; that the name of his father was William Robert Trammell, and his address at the time of the enlistment was Roosevelt, Okla., that his mother’s name was Mrs. William R. Trammell and her address at the time of the enlistment was Roosevelt, Okla.; that claimant was a resident of Lawrence, Kan., and had been since 1913; that he was a student in Haskell Institute at Lawrence, Kan.; that he enlisted there with other students of that institute on April 25, 1917, and received “travel pay” back to Lawrence, Kan., when he was honorably discharged from the service on May 17, 1919, and that since 1913 he has never claimed any other place as his residence although he has been away working part of the time since his discharge, but still claims Lawrence, Kan., as his home.
Of course there was positive evidence that plaintiff claimed Kansas as his residence at the time of his enlistment, but was that enough to establish the residence of a minor when his parents were living and residing in another state? There is no question here as to the meaning of the term, “residence,” as distinguished from domicile, as fully discussed in Knuth v. Kansas Compensation Board, 137 Kan. 392, 20 P. 2d 471, but it is simply a question of the power and capacity of a minor to change his legal residence from that of his parents. In Jaggar v. Rader, 134 Kan. 570, 7 P. 2d 114, it was said in the opinion on page 572:
“It is well settled, generally speaking, that a minor has no capacity to select a domicile or place of residence of his own.”
In In re McCoun, 96 Kan. 314, 150 Pac. 516, it was said:
“The next inquiry is as to the domicile of the minor children. They could not select a domicile for themselves, nor could the fact that they were temporarily outside of the domicile of their father at the time of his death affect the question. Clearly the domicile of the father fixed the domicile of his minor children.” (p. 316.)
In 9 R. C. L. 547 it is stated:
“It is a general rule that an infant cannot of his own volition acquire a domicile . . . the domicile of the father is in legal contemplation the domicile of his minor children. If the parents change their domicile, that of the minor necessarily follows it. . . .”
In Restatement, Conflict of Laws, § 30, it is said:
“The domicile of the child during its minority continues to be that of its father, and upon the change of domicile by its father the child takes the father’s new domicile.
“The fact that the child lives apart from the father, whether with the per mission of the father or not, is immaterial. The child has no power to acquire a domicile of choice nor can the father fix the domicile of the child at any place other than that at which the father has his domicile.”
Appellant suggests that the trial court failed to find where the residence was, if not in Kansas. The only fact necessary for determination in the case was whether claimant was a resident of Kansas at the time he enlisted so as to be entitled to the soldiers’ compensation, and it was stated in the j ournal entry “that the plaintiff has failed to sustain the burden of proof by establishing the fact that he was a resident of Kansas at the time he enlisted as a soldier in the world war.”
The finding of the trial court was correct under all the evidence given and the authorities above cited.
On the hearing of the motion of plaintiff for a new trial the attorney for claimant furnished an affidavit of the father of the claimant stating that his son had never lived with him at Roosevelt, Okla., that he had shifted or rustled for himself since he was twelve or thirteen years old and that he exercised no control over him and did not furnish a home for him; also an affidavit of an aunt of claimant showing that she had acted as his foster mother, since his parents did not have anything to do with him, that he was not allowed to go home because his parents would not keep him nor take care of him nor provide for him; that the plaintiff never visited his parents at Roosevelt, Okla.; that his mother died during the war and he was not notified of her death by his father; that the only home he had outside of Haskell Institute was with his aunt, the affiant, at Arkansas City, Kan., and that he came there after being shoved out on the world by his parents.
Claimant also made an affidavit covering the same points as contained in the affidavits of his father and aunt, and there was introduced in evidence a certificate from the adjutant general’s department that claimant was registered as a resident of Lawrence, Kan., and was accredited to the state of Kansas.
There was no evidence or proof introduced on the hearing of the motion for a new trial as to the diligence exercised by plaintiff in attempting to discover and produce any of this evidence at the time of the trial, and the trial court in overruling the motion for a new trial stated in the journal entry “that the plaintiff has failed to show proper diligence as to why said evidence should not have been produced at the trial of said cause.”
The fifth subdivision of the statute stating the grounds for a new trial, R. S. 60-3001, is as follows:
“For newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial.”
In Manufacturing Co. v. Rice, 95 Kan. 816, 149 Pac. 742, it was held:
“A judgment will not be reversed because of newly discovered evidence where the party complaining had access to all, and took the depositions of part, of the witnesses disclosing such newly discovered evidence, in the absence of any showing of diligence to produce such evidence at the trial.” (Syl. If 2.)
To the same effect was the ruling in Terwilliger v. McCorkle, 108 Kan. 480, 196 Pac. 618:
“A new trial should not be granted on the ground of newly discovered evidence except when the party complaining shows that he exercised due diligence to produce that evidence. Diligence is not shown where the evidence on the application for a new trial establishes that the party knew of the witness and could have ascertained what his testimony would have been by making inquiry, but that he made no inquiry and did not have the witness subpoenaed.” (Syl. U 3. See, also, Martin v. Lowm, 111 Kan. 752, 208 Pac. 565.)
The affidavit of the plaintiff shows that the facts set up therein and in the affidavits of his father and his aunt with reference to his being emancipated from his father’s home were not newly discovered as far as the claimant was concerned. He of course knew about all such matters at the time of the trial, and he is the one to whom such matters must be newly discovered in order to justify a new trial.
“A motion for a new trial on the ground of newly discovered evidence will not be sustained where it appears that the testimony relied upon was within the knowledge of the party who was absent from the trial, but who had failed to communicate the facts to the attorney who appeared in his behalf.” (Thisler v. Miller, 53 Kan. 515, syl. ¶ 2, 36 Pac. 1060.)
We find no error in the ruling of the trial court in finding claimant was not a resident of Kansas at the time he enlisted, or in the overruling of the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Plaintiff recovered. One of the defendants appeals and plaintiff cross-appeals.
The important question in the case is whether the action is one in contract or to recover on account of a tort. If it is an action in tort the statute of limitations has run and the judgment is wrong. For that reason the petition will be examined first.
The petition alleged that plaintiff at the time the cause of action arose was a grain company. Defendant Elliott was employed by it as a bookkeeper. Defendant Huston was in the business of recovering overcharges of railroads for various shippers. He had some claims of plaintiff's against the Chicago, Rock Island and Pacific Railway Company on a fifty percent contingent commission basis.
The petition further alleged that Elliott and Huston entered into a conspiracy by which Huston delivered to Elliott the checks received for these claims, and Elliott collected the amount of the checks and appropriated the money to his own use. A list of checks, with the amount, number and date of each, was attached to the petition. This list amounted in the aggregate to $1,434.19. The petition also alleged that Huston acted in harmony with Elliott and received a portion of the proceeds of the checks and aided and assisted him .in the collection of this money belonging to the corporation. The prayer was for a judgment against Huston and Elliott for the above amount.
Huston answered admitting the contract. The answer further admitted the collection of various claims against the railroads in behalf of plaintiff, alleged that all of these accounts were paid to the grain company as they were collected, and denied that Huston ever entered into any conspiracy with Elliott.
The case was tried before the court without a jury. The court found for the plaintiff and rendered judgment in its favor for $717.47.
The court filed a written decision in lieu of findings of fact and conclusions of law. The portion of this decision which' is of interest to us is as follows:
“He collected $1,434.95 from the Rock Island Railway, represented by eighteen checks, which were made payable in each case to CollingwoodMoore Grain Company and mailed to Huston. Some of these checks Huston took to Hutchinson where they were indorsed by Elliott and cashed either in Hutchinson or Wichita and the proceeds divided between Huston and Elliott, and some of the checks were indorsed by Huston using either his own or Elliott’s name as indorsing for the Collingwood-Moore Grain Company. None of the proceeds of any of these checks ever reached the Collingwood-Moore Grain Company.
“Later the Collingwood-Moore Grain Company was dissolved and the plaintiff partnership purchased the assets of the old corporation in June or July of 1926. This action was commenced in October, 1928.
“The two-year statute of limitations in fraud cases is not applicable here, even though the new partnership knew of these transactions at the time it purchased the corporation assets. One who appropriates moneys of another to his own use impliedly promises to repay the same. This being an action on implied contract, it is governed by the three-year statute and was brought within such period.'
“This was an appropriation by Huston and Elliott of money belonging to the Collingwood-Moore Grain Company; in what proportions, I cannot say, but the fact remains that $1,434.95 collected by Huston was unaccounted for, and while he is entitled to his commission of fifty percent of this amount, there remains a balance of $717.47 for which he and his assistant Elliott are jointly and severally liable.”
From the judgment based on this decision defendant Huston ap peals. The plaintiff cross-appeals, claiming that if Huston appropriated part of the $1,434.95 by fraud he is not entitled to retain any of it. There is no appeal by Elliott.
The first point made by defendant Huston is that the action is based on misappropriation of personal property and was barred within two years from the discovery of the misappropriation.
The third point is that the action cannot be construed to be an •action on an implied contract. These two points will be considered together. There can be no doubt but that the action was brought more than two years after the discovery of the misappropriation of the money.
We have examined the pleadings and considered the evidence and the decision of the court. We have concluded that a fair interpretation to place upon the petition is that it is an action upon the contract entered into by Huston and the plaintiff whereby Huston agreed to collect certain claims for the plaintiff and pay plaintiff one half of what was collected. The petition sets out such a contract. The answer admits such a contract and pleads that it was carried out. The court’s decision in effect finds such a contract and failure to pay. The relationship with Elliott that is pleaded amounts to but little more than anticipation of the defense of payment to Elliott. These allegations are a reply to that anticipated defense.
An official of plaintiff testified as follows:
“No. sir; not with me. And we talked at length about 'it, and he said, ‘Well,’ he says, ‘Lee, I will admit that Elliott and I did do that,’ he said, T sent Elliott his money to him personally, made the cheeks out to him,’ and he said, ‘you couldn’t blame us for doing that the way things were going over there, they were losing so much money over there; that is, The CollingwoodMoore Grain Company, and we thought we just as well get ours,’ and I says to Mr. Huston, ‘Huston, we never got our money.’ He said, ‘No, you didn’t get your money, but,’ he says, T paid Elliott your part and I will see to it that you get it. I will make him pay you.’ ”
The conversation referred to in the above statement occurred between defendant Huston and the official. This evidence warranted the trial court in concluding that Huston instead of paying the fifty percent of the money collected by him to the company paid it to Elliott. This payment to Elliott was made under circumstances from which the trial court was justified in concluding that it did not constitute payment to the company.
Under such circumstances the rule laid down in 1 C. J. 1031 is in point. There it is said:
“If there is an express contract, and the same act or transaction constitutes both a tort and a breach of the contract, the injured party may waive the tort and sue on the contract; and the same rule obtains where a contract creates a relation out of which certain duties arise, a breach of which will constitute a tort."
Denman v. Chicago, B. & Q. R. Co., 52 Neb. 140, was an action to recover damages to a shipment of cattle where the plaintiff had made a written contract with the railway company for their safe shipment. The question was whether the action had been begun in time. The court held that a fair interpretation of the pleading was that the plaintiff had waived his right to sue to collect pay for damages and elected to sue on the contract and that the action was brought in time.
In Bates v. Bigby, 123 Ga. 727, the question was whether the action was in contract or tort. A party had sued to recover for a pair of blankets which had been delivered to a cleaning establishment for cleaning and had not been returned. The court held that the action was on the contract. The court said:
“Where, however, a contractual relation exists between the parties, such as that of bailor and bailee, so that the latter rightfully obtains possession of the property, a tort arising out of a breach of the bailee’s duty imposed by his relation may be waived by the bailor and assumpsit maintained, the reason being that the relation of the parties, out of which the duty violated grew, had its inception in contract.” (p. 729.)
See, also, Williams v. Rogers, 110 Mich. 418. In the case under consideration the relationship of the parties grew out of the written contract that was pleaded.
Under this contract it was Huston’s duty to pay fifty percent of the money collected to the company. He did not do this. Hence the company could sue him for breach of that contract. Since the action was begun within less than five years from the execution of the contract it was brought in time. It follows that appellant’s contention cannot be maintained.
In the cross-appeal of plaintiff it claims that since Huston was guilty of fraud he was not entitled to retain any of the amount collected and the judgment should have been for $1,434.19, the entire amount collected rather than for only half that amount. That argument is not good, because recovery has been allowed on the ground that the action was on the contract rather than on account of fraud.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages resulting from a collision of automobiles, and from a judgment in favor of plaintiff the defendant appeals, claiming the trial court erred in refusing to direct a verdict in his favor on account of plaintiff’s contributory negligence, in refusing to give to the jury requested instructions, and in giving the instructions that were given.
The motion for an instructed verdict is based on the claim that plaintiff’s evidence showe'd him guilty of negligence which contributed to his damage and precluded his recovery. Plaintiff was driving north on Chestnut street, which is not paved, and defendant was driving west on Court street, which is paved. Under the ordinances of the city of Beloit, speed is limited in residence districts to twenty-five miles per hour, and where two motor vehicles shall approach a street intersection at approximately the same time, the vehicle on the right shall have the right of way, or when approaching a paved street from an unpaved one, the car on the paved street shall have the right of way. Appellant argues that plaintiff, driving north at a speed of about fifteen miles an hour, saw defendant coming toward the intersection at a high rate of speed and knew that if he kept on into the intersection defendant’s car must strike him, and with that situation before him he drove right on and the collision resulted. But the premise for the contention ignores other .pertinent evidence which warranted the conclusion that plaintiff approached the intersection at a lawful speed which, if continued, would have taken him across the cross street before defendant’s car reached the intersection; that when in the intersection plaintiff slowed up his car to permit two girls to cross; that when he entered the intersection defendant was about 200 feet away; that he noticed the girls; that he heard the brakes on defendant’s car squeak and when he again looked defendant’s car was about six feet from the intersection, and came on and hit plaintiff’s car. Plaintiff estimated defendant’s speed at thirty miles per hour when defendant was 200 feet from the intersection. A disinterested witness said plaintiff’s car was about thirty feet from the intersection and going about ten or twelve miles per hour when defendant’s car passed her approximately four hundred feet east of the intersection going about forty miles an hour. Appellant makes a computation from plaintiff’s testimony that if these estimates of speeds and distance were correct, the accident could not have happened, and that a similar computation shows his version was correct. Perhaps no better argument could be produced to show that the situation presented a question for the jury. Possibly the witnesses for plaintiff were in error in exact distances and speed of cars, but the fact is undisputed that regardless of who was to blame, defendant drove his car into the car of the plaintiff in a situation where, so far as the question before us is concerned, plaintiff had a right to cross first. Plaintiff had a right to assume that defendant would reduce his speed and not come across the intersection at an unlawful rate of speed, and had that been done the accident would not have occurred. The evidence warranted a conclusion that plaintiff was in the intersection while defendant was still some distance away, but that plaintiff slowed his speed on account of the two girls. Right of way on the paved street did not mean that a driver on the unpaved street could cross only at his peril. Such a user had a right to assume that he could continue on across the street, and that defendant would not exceed the speed at which he had reason to anticipate defendant would approach and cross the intersection, and he had the right also to expect that defendant would so operate his car that if traffic conditions required plaintiff to slow up his car, defendant could avoid injury either to other users of the highway or to pedestrians. Similar contentions were made by the defendants in Hughes v. Motor Co., 111 Kan. 397, 207 Pac. 795, and Koger v. Keller, 120 Kan. 196, 243 Pac. 294, in both of which it was held that whether plaintiff was guilty of contributory negligence was a fair question of fact for the jury. There was no error in denying defendant’s motion for an instructed verdict.
With reference to the claim the court erred in not giving requested instructions, it is noted that the first request was for a directed verdict. What has been said is sufficient on the point. Requested instructions 3 and 4 were substantially covered in those given. Requested instruction 2, that though it be found plaintiff’s car entered the intersection before defendant’s car entered, under the ordinance defendant had the right of way and plaintiff would not be excused in attempting to cross unless he had ample time to get across if defendant did not increase his speed from the time plaintiff first saw defendant, was properly refused, as was requested instruction 5, which advised the jury that whether defendant was exceeding the speed limit or not, would not control; that defendant had the right of way and it was plaintiff’s duty to let defendant pass unless plaintiff clearly had time to cross before defendant got there. These instructions are in effect that defendant could drive —as the evidence shows he did — at forty miles an hour, and it was up to the plaintiff to keep out of his way and not to attempt to cross the street unless there was no doubt plaintiff could beat defendant across the intersection. That is not the law.
Although there is a statement in the journal entry that the court instructed the jury in writing “some of which instructions were objected to, as more fully appears from the record,” there is no showing in the abstract of any objections, and the question is thus not fairly presented.
However, we have examined these instructions and appellant’s contentions. Of the seventeen instructions given, appellant complains of thirteen. Many of the complaints are based on isolated sentences or that the defense of contributory negligence was ignored. The court stated that—
“These instructions should be considered as a whole, and no one instruction considered separately and apart from the others.”
The instructions as to contributory negligence were correct and adequate' and it was not necessary that they be repeated in each separate instruction. We conclude the case was fairly submitted under the instructions.
And finally, the trial court did not err in denying defendant’s motions (a) to set aside findings, (b) for judgment notwithstanding the verdict, and (c) for a new trial.
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The opinion of the court was delivered by
Thiele, J.:
The state of Kansas appeals from a judgment denying it recovery from a minor for her maintenance at the state orphans’ home.
In October, 1925, in a proceeding had in Allen county, it was found that defendant, whose father was dead, and whose mother was an unfit and improper person to have her care and custody, was a dependent and neglected child, and she was committed to the state orphans’ home at Atchison. At that time she was about nine years of age. Under the statutes (R. S. 76-1706, 76-1709, 76-1711) provision is made for placing children in other homes, and it appears inferentially that the defendant was away from the orphans’ home for varying lengths of time. Just why she was returned does not appear. Defendant’s father was a soldier, and after her commitment she received compensation from the United States government, and at the time of the trial her guardian had on hand cash in the amount of $1,200. The orphans’ home is under the control of the state board of administration (R. S. 76-108), and it caused this action to be brought to recover from the orphan the amount of her care, food, lodging, clothing, medical treatment, maintenance, support and education at the rate of $2.50 per week for the entire time she was in the orphans’ home, the total amount prayed for being $766. The petition alleged the father of defendant was dead and her mother had no income or property to pay for the care and support of the defendant. An agreed statement of facts was filed and the cause was submitted on written briefs. The trial court found in favor of the defendant and against the plaintiff, which appeals.
By chapter 185 of the Laws of 1885, the soldiers’ orphans’ home was established, section 3 of the act reciting:
“Said soldiers’ orphans’ home shall be an institution for the nurture, education and maintenance, without charge, for all indigent children of soldiers who served in the army or navy of the Union during the late .rebellion, and who have been disabled from wounds or disease, or who have since died in indigent circumstances, and other indigent orphan children of the state.” (Italics ours.)
This section was amended by chapter 236 of the Laws of 1889, to read as follows:
“Said soldiers’ orphans’ home shall be an institution to afford a temporary home without charge for the classes of children hereinafter mentioned, and to provide them with such advantages of education and training as may be necessary to fit them to enter homes secured for them, or for return to the care of relatives or friends worthy to have charge of them, and who may have recovered their ability to provide for their welfare. All children with sound minds and bodies, who are over the age of two years and under the age of fourteen years, and who belong to either of the following-named classes, shall be eligible for admission to said home: First, any child who is dependent upon the public for support; second, any abandoned, neglected or ill-treated child, whose condition is an object of public concern, and over whom the state may have power to exercise its authority and extend’its protection: Provided, That in the event of a lack of room in said institution, the children of soldiers and sailors who served in the Union army or navy during the late rebellion shall have preference in the order of admission.” (Italics ours.)
In the revision of 1923 (R. S. 76-1704) the words “Soldiers’ Orphans’ Home” were changed to “state orphans’ home,” consistent with the change in the name of the institution as effected by section 1 of chapter 115 of the Laws of 1909. (R. S. 76-1701.)
It will be observed that while the original act provided only for indigent orphans, the amendment included children dependent on the public for support and neglected children over whom the state may have power to exercise its authority and extend its protection. It appears inferentially that when the minor was committed she was without means and dependent on the public for support, and it appears positively that she was a dependent child subject, under the statutes (R. S. 38-407, 38-425), to commitment as a dependent child.
Appellant, however, relies on R. S. 76-1712 which, in part, recites as follows:
“In addition to the other provisions of the laws of this state providing for the support, care and maintenance of minor children by their parent or parents or other persons responsible for their dependency, the state of Kansas is hereby authorized to maintain an action at any time and at any place against the parent or parents or other persons to recover the amount expended by the state orphans’ home for the support, care and maintenance of any such child or children.” etc. (Italics ours.)
The above statute does not pretend to give the state any right of action against the minor child unless that child is included in the “other persons” referred to. Had it been the intention of the legislature to make the child liable for its own support, care and maintenance, it could easily have used language clearly expressing that intention, as it did in R. S. 39-231, 39-232, 39-233, respecting insane persons, and in R. S. 39-413, respecting hospital treatment of children and dependent persons. Grammatical construction would seem to preclude minors as being “other persons responsible for their dependency,” as the statute is framed. However, it is not necessary that we determine those who may be included in the words “other persons” nor do we do so, for we are constrained to hold that before the state can collect from the minor’s estate, there must be a clear statutory declaration of liability of the minor for its own support, care and maintenance, and that the words “other persons” do not include the minor.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment for $2,000 as damages for injuries sustained by the plaintiff in a collision of automobiles on a public highway.
The collision occurred one forenoon in March, 1934, on U. S. highway 40, about halfway between Reno and Tonganoxie. The highway thereabout is paved with concrete, eighteen feet wide, with a black line painted on the slab to indicate its center line. The course of the highway is towards the northeast and southwest, and lies adjacent to a railway right of way which parallels it.
The previous night had been rainy, and at the time of the accident drizzling rain and occasional snowflakes were falling; the pavement was wet and the shoulders of the highway were muddy.
Plaintiff was the passenger guest of Miss Daisy Brown, owner of a Chevrolet coupé proceeding northeastward at 25 or 30 miles per hour. Following the coupé were two highway patrol automobiles, a passenger omnibus, and the Terraplane automobile owned by defendant. Whether the latter was being driven by defendant or by his brother was a controverted issue of fact in this lawsuit.
All these motor vehicles had been traveling faster than Miss Brown’s coupé. The first patrol car with two officers passed to the left of the coupé and went ahead. Defendant's Terraplane followed and attempted to do the same, but collided with the coupé, causing it to veer sharply to the right, leave the highway, cross a ditch, break through a fence and turn over on its side. Defendant’s car stopped within two feet of the point of collision with its left front wheel resting on the left shoulder of the highway. The second patrol car with two officers stopped almost at the point where the coupé left the highway and the passenger bus was not far behind. The door of the coupé was jammed so that its occupants were imprisoned until the four patrolmen, the defendant, and the bus driver, came to their rescue and pried it open. Plaintiff sustained various injuries which were the basis of this lawsuit for damages.
The petition narrated the pertinent facts, alleged that the coupé in which plaintiff was riding was being operated with due care, stated the conditions of the road and the weather, alleged the incidents of the collision and defendant’s negligence in various particulars — excessive speed, failing to drive his car past the coupé in a manner which would avoid striking it, failing to sound a horn or give any warning of his intention to pass the coupé, failing to keep a proper lookout for cars ahead of him and particularly the coupé in which plaintiff was riding, and failing to slacken his speed and keep his car under proper control at the time he was attempting to pass the coupé.
Plaintiff also pleaded that as a result of the alleged negligence she suffered serious injuries, which she described in detail. She prayed for $25,000 as damages.
Defendant’s answer contained a general denial and alleged that his automobile was being operated with due care at the time of the collision; that the coupé in which plaintiff was riding had been negligently driven off. the east side of the pavement and then suddenly and without warning it had been carelessly and negligently driven from the east side of the pavement towards the west or left side of the pavement directly in front of defendant’s car; that when the coupé crossed towards the left side of the road the brakes had been immediately applied to defendant’s car, but that the collision was unavoidable; and that the driver of the coupé and plaintiff herself were guilty of contributory negligence.
The evidence for plaintiff tended to show that the coupé was being driven on the right side of the highway with due care, and that without warning defendant’s car struck the left rear fender of the coupé, causing it to swerve from the wet pavement, leave the highway, cross the fence and turn back towards the west and fall over on its left side, imprisoning and injuring the plaintiff.
At the conclusion of the evidence for plaintiff defendant demurred on the particular ground that it had not been shown that defendant himself was driving his car at the time of the collision. This point was overruled. The record recites:
“Ti-ie Court: You don’t claim he wasn’t in the car?
[Counsel for Defendant] : “I do not claim he wasn’t in it. I claim he wasn’t driving it.
“The Court : They may not be able to tell 'who was driving the car, but then the obligation is upon the defendant to show who was driving. The demurrer will be overruled.”
The evidence for defendant tended to show that the two right wheels of the c'oupé did run off the east side of the slab almost immediately before the accident,-and when the coupé was turned back on the slab it ran almost directly across the pavement to the left side of the highway; that there was not time for defendant’s car to be stopped before striking the coupé; that it did strike the coupé on its left side just behind the left front fender; that defendant’s car was stopped within two feet from the point of collision; and that defendant’s brother, Oliver Faith, not the defendant, was driving defendant’s car at the time.
Jury trial; verdict of $2,000; special findings; judgment for plaintiff; appeal.
Defendant’s first objection to the general result was the trial court’s ruling on the demurrer to the evidence, and particularly to the untenable theory announced by the court when it made that ruling. It is trite and settled law in this jurisdiction that liability for an automobile accident does not attach to the owner of the car from the mere fact of ownership nor from the fact that he may have been riding in it at the time of the accident. (Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863; Zeeb v. Bahnmaier, 103 Kan. 599, 176 Pac. 326, 2 A. L. R. 883 and note; Tice v. Crowder, 119 Kan. 494, 240 Pac. 964.) See, also, notes in 64 A. L. R. 873-878; 85 A. L. R. 285, et seq. There are, indeed, some courts which hold that the fact of ownership establishes a prima facie liability for accidents caused by the motor vehicle. (See 2 R. C. L. Perm. Supp. 665, et seq.) It may be inferred, however, that this latter view has grown out of the fact that in some states this particular matter is governed by statute. (Parker Harris Co. v. Tate, 135 Tenn. 509, 188 S. W. 54, L. R. A. 1916F, 936.)
When plaintiff rested, any evidence that defendant was driving his car was decidedly shadowy, probably quite insufficient to take the case to the jury. The fact that defendant owned the car which collided with the coupé was not disputed. In her case in chief, plaintiff’s witness, Daisy A. Brown, testified that following the accident she talked with defendant and obtained his name. Defendant’s evidence supplied scarcely any additional facts. It was shown that after the collision defendant got out of his car and ran over to the coupé which had the imprisoned women in it. One witness for defendant testified that the driver of defendant’s car was Roy M. Faith, but on cross-examination he was shown some report he had made at the time of the accident, following which he said, “It must have been O. W. Faith,” brother of the defendant. The defendant himself testified that his brother O. W. Faith was driving at the time of the collision, that he and the highway officers and the bus driver hastened to the overturned coupé to aid its imprisoned occupants and that it took them five minutes to hammer the door so it would open; that he talked with the owner of the coupé, she asked his name and he gave it to her in writing; but he denied that she had asked if he was driving the car.
Even the addition of this evidence cannot fairly be said to have made a prima facie showing that defendant was operating the Terra-plane at the time it collided with the coupé; but plaintiff’s witness, Miss Brown, was recalled. The record reads:
“Q. Now, Miss Brown, after this accident out on north number 40 on the 30th of March, 1934, I will ask you to state if you had a conversation with Mr. Roy M. Faith. A. I did.
“Q. I will ask you to state, Miss Brown, if in that conversation you asked him if he was the driver of the car that struck you.
[Counsel for Defendant] : “Now, we object to that as incompetent, irrelevant and immaterial and not rebuttal. There wasn’t a syllable of testimony on Mr. Faith’s direct examination about any conversation with Miss Brown. This was brought out on cross-examination, and it is an attempt on his own part to rebut cross-examination. It is part of their main case if any part of their case at all.
“The Court: Well, even if it is only a matter of order of proof, and the courts are getting pretty liberal about such things. A. I did.
“Q. What was his answer? A. He said, that he was. I asked him for his name. Written on a piece of paper. He gave it to me.
“Q. Was the man that you talked to there and the man that wrote down his name and the man that told you he was the driver of the car, Mr. Roy M. Faith, sitting over here? A. It was this gentleman with the glasses, Mr. Roy Faith.”
Was this testimony competent at that stage of the case? It was only on defendant’s cross-examination that he testified that Miss Brown had asked him if he was driving the car. But in his examination in chief he testified that his brother was driving at the time of the collision. Therefore it was not improper rebuttal to adduce evidence which would tend to discredit defendant’s testimony on that avowal of fact. Therefore the evidence showing defendant’s affirmative answer to Miss Brown’s question would appear to be competent. Moreover, there is something to be said in behalf of the trial court’s remarks in connection with its ruling. We construe them to mean that although plaintiff’s case may have been closed with a possible shortage of proof on a material point it could be reopened at the discretion of the court and the requisite additional evidence supplied. In effect that was the real significance of the ruling; and it would be futile to reverse this judgment on the mere want of a formality which, if the cause were to be tried anew, could readily be supplied.
Defendant next attacks the special findings of the jury. Some of these read:
“1. Was Oliver Faith (brother of defendant) driving the Terraplane at the time and place of the collision? A. No.
“2. Did the coupé remain on the right side of the road until the Terraplane was about to pass it? A. Yes.
“4. Did the right wheels of the coupé run off of the east or right side of the pavement a short distance from the place of the collision? A. Yes.
“5. . . . State whether or not when the coupé was driven back on the slab, it ran to the left and across'the center line of the pavement. A. Yes.
“6. . . . State whether or not after the coupé left the right side of the slab and while it was running to and across the center line of the pavement did the driver of the Terraplane have time to avoid the collision? A. Yes.
“7. . . . State whether or not after the driver of the Terraplane discovered that the coupé was coming toward or onto the left side of the slab, did he do all that he could to avoid a collision? A. No.
“8. Did the cars collide at the left of the center line of the pavement? A. Yes.
“10. Were plaintiff’s injuries caused by an unavoidable accident? A. No.
“11. If you find that the defendant was guilty of any negligence which caused the collision, state specifically what his acts of negligence were. A. (1) Not sounding horn; (2) not pulling to left far enough; (3) too great a speed under existing weather conditions.”
Particular objection is made to Nos. 1, 6, 7 and 11 of these findings. Touching the first of them, it is quite true that several witnesses gave testimony which, if believed, would have compelled an affirmative answer to this question; yet, as we have seen, there was sufficient evidence developed eventually to take to the jury that controverted issue of fact.
Touching the jury’s response to the sixth question, the defendant’s own testimony was that when he saw the wheels on the right side of the coupé run off the slab on to the slippery shoulder of the road and turn sharply back across the pavement, his car was 40 or 45 feet behind, “maybe 50,” and his car was traveling around 40 miles per hour, “maybe 35 to 38.” In view of that testimony, it cannot be said that there was no evidence to support the jury’s special finding No. 6. And the same observation must be made in respect to special finding No. 1.- One of defendant’s witnesses, Richardson, testified that the coupé had only gone to the left of the center line of the highway “about 12 or 18 inches.” Another of defendant’s witnesses testified that “the collision occurred about the middle of the pavement.” Plaintiff’s evidence was to the effect that the coupé was on the right side of the center line. The jury’s finding No. 8 shows that the coupé was in fact on the left side of the center line, but in view of Richardson’s testimony it is clear that question No. 7 (as well as No. 10) was one for a jury to decide.
Fault is next found with the jury’s findings of negligence in No. 11. It is argued that the sounding of a horn would not have averted the accident. That does not appear. Neither plaintiff nor the driver of the coupé was apprised that defendant wished to pass their car. A timely sounding of the horn might have given the driver of the coupé an opportunity to comply with the implied request for more space to pass. Since 'there was testimony that the coupé was not more than 12 to 18 inches over the center line of the highway, it could not be said as a matter of law that there was insufficient space for defendant to pass if his car had been steered somewhat further to the left. It was a jury question. And as to the third ground of negligence found by the jury we think it was well established by the circumstances and is altogether unassailable. A motorist in a hurry has no absolute right to require all other cars ahead of him to get out of his way. The others have exactly the same rights as himself. Much depends on the condition of the road, the weather and the congestion of trafile. And even where a slower motorist refuses to steer far enough to the right to give another motorist an opportunity to pass when requested to do so by a timely sounding of the horn, the remedy for such discourtesy is not that of driving ahead to pass regardless of such a consequence as happened in the case at bar. •
Error is also assigned in the admission of testimony. Among plaintiff’s injuries as first alleged she pleaded that her chest was bruised, her fifth rib fractured, and that a false joint had formed at its junction with the spine. Defendant’s motion to make more definite and certain was overruled; but later, over defendant’s objection, plaintiff was permitted to amend her petition by substituting the “third and fifth ribs” as the ones injured in lieu of the “fifth rib” as first alleged. These rulings were quite within the discretion of the trial court; consequently evidence pertaining to such injuries was competent.
A surgeon or other medical expert testified to a defective union between the collar bone and the sternum. This was objected to, but went in on the word of the professional expert that the juncture of the clavicle and sternum was part of the- chest wall, whose injury had been alleged. That seems reasonable to our nonprofessional minds.
Yet another error is urged on the ground that the medical expert’s opinion was based in part upon the history of the case. However, that matter was cleared up before the expert left the witness stand. The record reads:
“Q. Doctor, those physical injuries that you have described were based upon your own findings, were they not? A. Yes, sir.
“Q. And not from any history she gave you relative to the case? A. No, sir.”
A patient perusal of the record and briefs of counsel reveals no error of sufficient gravity to justify our interference with the judgment, and it is therefore affirmed.
Burch, C. J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action where the plaintiff, operating a passenger bus line in the city of Lawrence, asked for an injunction against the owners of a block of lots across which the plaintiff was running its buses, when the owners fenced up the passageway and refenced the openings thereto as the plaintiff tore them down.
The main defense was abandonment by discontinuing to operate the electric streetcar line and substituting therefor the motorbus line.
The trial court made findings of fact and conclusions of law, holding that the change from a streetcar line to a motorbus method of transportation did not constitute an abandonment of the passageway, and rendered judgment against the defendants, enjoining and restraining them from interfering with the use of such passageway by the plaintiff for its motorbus line. From this judgment the defendants appeal, and the plaintiff has here a cross-appeal alleging error in the failure of the trial court to quiet its title to such passageway.
The main question involved is whether the change of method of transportation -by the substitution of gasoline-driven rubber-tired buses for electric streetcar service with steel track is an abandonment of the right of way or privilege of the plaintiff company to cross over the property of the defendants. Much is said about the franchise granted by the city to use the streets of the city for one purpose and later agreeing to a change, but it must be conceded that the granting of the privilege of making such 'change and the right to use the streets of the city in the new and different way will not in any way affect the rights of these parties as to the passageway over private property within the city limits.
The trial court, in its findings of fact, found that after the company of which the plaintiff is the successor had been granted a franchise to operate an electric streetcar system in the city of Lawrence, it negotiated with the defendants and obtained a warranty deed to a strip of land twenty feet wide running east and west across the property owned by the defendants, lying between Louisiana and Indiana streets, which was a distance of 279 feet. The deed contained no reversion clause nor any reference to the use to be made of the land. Street railway tracks were laid on this strip and streetcars operated over it for two years. Then in 1912, for the purpose of eliminating two curves in the track, the company reconveyed the west portion of this twenty-foot strip and acquired from the defendants a twenty-foot strip extending from about the middle of the original strip in a northwesterly direction to Indiana street. The consideration named in the original deed was $1,000. In the second deed it was $600 and exchange of property. The last was a warranty deed in the usual form and contained .no reversion clause, but it contained the following language:
“. . . as part of the consideration for this deed, said parties of the first part (the defendants herein) for themselves, their grantees, heirs and legal representatives, undertake, promise and agree to build and maintain a good and sufficient fence both sides of the right of way hereby conveyed to the party of the second part.”
The deed from the company to the defendants reconveying the west end of the original strip contained the following sentence:
“The party of the first part agrees, in consideration of the premises, and of the exchange of real estate between the parties hereto, that in the reconstruction of its line of street railway, the grade and alignment of its tracks shall be in accordance with the profile shown by tracing and blue print prepared by C. A. Haskins.”
The court further found that after the exchange of these deeds the streetcar company abandoned the west end of the original strip by removing the ties and rails and constructed its line on the diagonal strip instead, and has continued to so use such strip connecting with the east end of the original strip and track until October 28, 1933, when the ties and track were removed and the strip was put in condition for the operation of gasoline-driven vehicles, which have been operated in the same direction and on substantially the same schedule as the streetcars had previously been operated, and this use of the strip has continued regularly since October 28, 1933. And the court further found that prior to the removal of the streetcar tracks there was some unauthorized use of this strip of land by pedestrians and automobiles; that since the removal of the rails and ties and the strip being put in condition for operation of motor vehicles throughout, there has been considerable use thereof by pedestrians and automobiles and it is treated and used by many persons in the same manner as a street or road is used by the public. Such use has not been authorized or encouraged by the plaintiff, which posted signs advising the public that it was private property and warned the public against its use. That during the operation of the street railway there was some noise and vibration occasioned by the company’s cars; that the noise and vibration made by the buses now used by the company are greater than formerly existed when the streetcars were used, but such present operation does not impose any other additional burden or servitude upon the real estate here in controversy nor upon adjacent real estate owned by the defendants. The court then concludes as follows:
“The change in a method of transportation of passengers by the plaintiff does not constitute an abandonment of the plaintiff’s right of way under the facts set forth in the foregoing conclusions of fact, and the plaintiff is entitled to a judgment as prayed for.”
Appellants cite the case of Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, in support of their theory of abandonment, but that was a case where the land had never been used for any transportation purpose. It was there held, by virtue of a warranty deed without a reversion clause, and the description of the land being as a strip lying within fifty feet of the center line of the main track of the railroad, which road was never built nor graded, that' — •
“An instrument which is in form a general warranty deed, conveying a strip of land to a railroad company for a right of way, will not vest an absolute title in the railroad company, but the interest conveyed is limited by the use for which the land is acquired, and when that use is abandoned the property will revert to the adjoining owner.” (Syl. ¶ 3.)
The case of Barker v. Lashbrook, 128 Kan. 595, 279 Pac. 12, and several other Kansas cases are cited along the same line, which leave no doubt as to the disposal of the land used as a right of way under most circumstances when its use is abandoned. But our most serious question here is whether or not the change of the method of transportation and motive power is an abandonment.
The last two deeds and the court in its findings refer to this strip of land, which was used for a streetcar track across the defendants’ land for more than twenty years, as a right of way. The abandonment claimed is not by disuse, as in many of the cases cited, because the plaintiff is still using this strip or right of way and for the same purpose of transportation of passengers, but the use of it is claimed to be such a radical departure from the original intention and purpose for which the right of way was obtained as to amount to an abandonment. Appellants refer to the necessity of going before the city authorities to get permission to make such change as was done in this case, as to the use of the streets, before attempting to make such a change, and urge that plaintiff had no greater right or authority to do as it pleased over private property than upon the city streets.
It has been held that a new franchise is not necessary when a change of motive power Or method of operation is made. The citizens are the owners of the city streets, and having once voted such a franchise, the privilege and right continues without another or new franchise when such a change is made. The approval by the city authorities of such change is not at all in the nature of a franchise. In 60 C. J. 308 it is said:
“Where consent to a change of the motive power has been given by the local authorities where the consent of the property owners was not required, the change cannot be prevented by abutting property owners.”
Of course, as said before, this does not bind the owner of private land over which the streetcar line passes, but the similarity is close between the rights of an abutting landowner and a grantor.
In the case of Anderson v. Power & Light Power Co., 16 Tenn. App. 259, 64 S. W. 2d 204, the plaintiff was an abutting owner whose grantor had conveyed a twenty-foot right of way to the streetcar company "so long as the same is used for railroad purposes, otherwise to revert to the grantor, his heirs or assigns.” He asked for an injunction against the company, which had changed from operating an ordinary streetcar line to a trackless trolley, the land being through a loop where the plaintiff owned land on both sides of the right of way, which loop was five miles from the downtown part of Knoxville, and plaintiff complained of the two trolley wires instead of one and possible guy wires and other changes, and it was held:
“Changing from regular streetcars to ‘trackless trolleys’ and construction of concrete slab on right of way held not abandonment of right of way or abandonment of use thereof for ‘railway purposes,’ within deed containing reversion clause.” (Syl. ¶ 1.)
The case of Light Co. v. Iseley, 203 N. C. 811, 167 S. E. 56, was under the declaratory judgment provision involving the question of the necessity of a new franchise where the change was desired to be made from an electric streetcar method of transporting passengers to a imotorbus plan; and it was there held:
“A power company operated electric streetcars upon certain of the streets of a city under a municipal franchise, its lines extending to certain streets beyond the city limits. The power company and the city, some years after the franchise was granted, entered into a contract whereby the power company was to substitute, on certain streets, gasoline autobuses upon certain conditions for the electrically driven cars, and the contract was approved by the corporation commission. It further appeared that the change in the method of transportation was for the public benefit: Held, the proposed change from electric cars to autobuses along the designated streets does not involve the granting of a new franchise, requiring a vote of the residents of the city under the provisions of -its charter, but relates only to the method of transportation under the old franchise . . .” (Syl. J[ 2.)
Another case involving the question of the necessity of a new franchise was Matter of International R. Co. v. Pub. Serv. Comm., 242 N. Y. App. 300, 275 N. Y. Supp. 5, where it was held:
“Leave to substitute buses for cars on a line already operated is not the granting of a new right or franchise to use the streets. It is rather a modification of the old franchise. ... Its enjoyment should continue, though the obsolete methods of transportation named in the franchise be replaced by modern ones, unless Some right of the public is interfered with, and unless the utility’s affirmative servitude over the streets is increased. It would hardly be said that the rights of the traveling public or the comfort of those dwelling adjacent to the street would be affected unfavorably by the substitution of pneumatic tired wheels for iron ones jolting over rail joints.” (pp. 302, 303.)
Appellants complain of the added noise, vibration and pedestrian and automobile travel as an additional burden which the defendants as original owners never agreed to permit, and should not now, as abutting owners, be compelled to endure when such was not contemplated when the deeds were executed. Eliminating the matter of additional travel, for which neither party is wholly responsible, the additional noise and vibration found by the court is not such an element as should wholly hinder and prevent the taking of a forward or progressive step, so recognized by the general public, when not in itself injurious or destructive.
The failure of the court to find from the oral evidence what the specific purpose was in obtaining the first conveyance is not error, we think, as the trial court made no attempt to separate the rights of the parties over the east part of the strip from those over the diagonal part, for which there was sufficient in the deed for the court to find the grant to be of a right of way and to conclude accordingly.
We think there was sufficient evidence in the second deed and the deed of reconveyance to support the findings as to the strip of land used and still in use being a right of way, and that the findings of fact support the conclusion of law, and if the.strip so conveyed and used is a right of way, the title of the plaintiff to it is not such as should at this time under these findings be quieted, as urged by the plaintiff in its cross-appeal, even recognizing the distinctions made in the text and cases cited between a right of way for a steam railroad and over privately owned property for a streetcar line.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Btjrch, J.:
The action was one to recover on a promissory note, and to foreclose a mortgage on a leasehold in which C. W. Taylor, not a party to the note, was interested. Judgment was rendered against the makers of the note, but Taylor’s demurrer to plaintiff’s evidence was sustained, and plaintiff appeals.
P. M. Wendel leased a lot to Lacy J. Black and Floyd L. Barnes for a filling station to be erected. Black assigned to Barnes, Wendel consenting. Barnes made an arrangement with Taylor whereby Taylor became interested in the enterprise. In connection with consummation of the deal with Taylor, Barnes gave Black a note for $275, and Barnes gave Black a mortgage on the leasehold to secure the note. The proof was Black advanced to Barnes $200 of the amount of the note, to enable Barnes to make his arrangement with Taylor, and Taylor knew of the note and mortgage when they were executed.
Black sued Barnes on the note in the city court of Wichita, a court without jurisdiction to foreclose the mortgage, and recovered judgment for the face of the note, and for interest and costs. Subsequently Black took a new note from Barnes for $289.81, and released the judgment. The new note was also signed by Barnes’ wife. The present action was to recover from the makers of the second note, and to foreclose the mortgage securing the first note. The district court held in effect the first note was merged in the judgment, the judgment was paid and satisfied, and no debt remained which the mortgage secured.
Merger of the first note in the judgment did not satisfy the debt nor extinguish the lien of the mortgage given to secure the debt. If the new note was evidence of the old debt, the security was not impaired. Whether this was so depended on the intention of the parties, which was a question of fact to be determined from all the evidence bearing on the subject.
The condition of the mortgage was, that if Barnes should “repay” to Black the sum of $275, according to terms of the first note, the mortgage would be void. The word “repay” had no special significance other than “pay,” and did not restrict medium of payment to money only.
Black testified as follows:
“Q. You filed a suit on that note, that $275? A. Yes, sir.
“Q. And took judgment? A. Correct.
“The Coxjrt: That was in April?
“Mr. Clark: That was in April, if your honor please.
“Q. Now, on the 23d of June, 1932, the petition says that for a valuable consideration and in lieu of that judgment, you took another note from Barnes and his wife for $289 which covered the judgment and costs on that first note. That is correct, isn’t it? A. Yes, sir.
“Q. You had to sue him on one note and yet after you got a judgment you took another note from him for that judgment and costs, didn’t you? A. That is right.”
The words “in lieu” had the meaning “instead of,” and imported extinguishment of the judgment. Black’s statement that he took another note “for” that judgment and costs had the same import. With the judgment in which the original note was merged extinguished, prima facie, there was nothing left for the mortgage to secure. There are clear indications which confirm this inference.
There was no testimony tending to show Barnes’ attitude in the affair. The new note was based on a new consideration, which increased the sum to be paid. New security was taken for payment of the new note. Black made the following declaration, written on the record of the judgment, with respect to what was done:
“The judgment in this case, No. 80,329, has been paid and satisfied and same is hereby fully released as to all defendants.”
The result is, the evidence established a wiping out of the old debt, and creation of a new one.
A claimed defect in Taylor’s answer, not called to the attention of the district court, and waived by reply and by going to trial, is of no importance in this appeal.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of larceny of an automobile, and appeals.
The larceny was planned by defendant and Gerald Mahan. Mahan actually stole the car. Defendant then desired to sell the car, instead of dismantling it and selling the parts. To gain time in which defendant might find a buyer, defendant and Mahan, acting together, hid the car in a gully in the Flint Hills.
At defendant’s preliminary examination, Mahan voluntarily told the whole story. Mahan was produced by the state as a witness at the trial. He said he would rather not testify. His privilege was then explained to him, he still said he did not want to testify, and he asserted he would not do so. He was excused, and his testimony at the preliminary examination, or a portion of it, was then proved and admitted in evidence. After an intermission, Mahan consented to testify, and again voluntarily told the whole story of the larceny. Defendant complains because Mahan’s testimony given at the preliminary examination was read in evidence.
When Mahan declined to testify, he was no more available to the state as a witness than he would have been if he were dead or beyond the seas. That Mahan’s former testimony was then admissible is well demonstrated in the case of State v. McClellan, 79 Kan. 11, 98 Pac. 209, cited by defendant. In that case, the question was whether reasonable diligence to produce the witness had been exercised. In this instance, production of the witness was just as fruitless as if impossibility to produce him had been proved. (State v. Stewart, 85 Kan. 404, 414, 116 Pac. 489.) Defendant criticizes the Stewart case, but it was well decided.
Defendant also complains because Mahan was finally permitted to testify. Since Mahan was present, and manifested in open court his willingness to testify, it was entirely proper he should do so. Besides that, there may be some question whether the state was not then obliged to use him as a witness.
In an instruction to the jury, the court defined the term “accomplice,” and then said: “Whether or not a person is an accomplice is a question of fact to be determined by the jury.”
Defendant complains of this instruction. Unless the facts establishing complicity are admitted by a defendant, or are otherwise beyond dispute, the question is necessarily one to be determined by the jury from the evidence. In this instance, what prejudice defendant may have suffered from the giving of the instruction is not disclosed.
Defendant complains of the following instruction given the jury:
“You are instructed that the testimony of an accomplice in any case is competent evidence, and the credibility of such accomplice is for the jury to pass upon as it does upon that of any other witness; and, while the testimony of an accomplice will sustain a conviction when uncorroborated, yet the same should be received with great caution. If, however, the testimony carries conviction, and the jury is convinced of its truth, it should give to such testimony the same effect as would be allowed to that of a witness who is in no respect implicated in the crime.”
This court, in stating the law, on some occasion said the testimony of an accomplice “should be received with great caution and scrutinized with great care.” District courts have used the statement as an instruction to juries. The first part of the statement referred to the trial court, which controls the receiving and rejecting of evidence. The latter part referred to the jury, which' scrutinizes evidence received. When the statement is used as an instruction, it is all addressed to the jury, and is somewhat tautological. In this instance, the jury was told in effect the testimony of an accomplice should be accepted by the jury with great caution. Great caution could scarcely be exercised without scrutiny with great care. Besides that, no improvement of the instruction was suggested to the district court, and no objection was made to the instruction as given.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by Ephraim H. Sanford against Henry M. and Joel P. Weeks, to quiet title to a quarter-section of land in Wabaunsee county. Sanford claimed an equitable title to the land, and actual possession thereof, under a written contract from Miss S. E. Bartholomew, dated December 8, 1879, which was filed for record February 11, 1880; but this contract was not acknowledged. On September 27, 1880, Miss S. E. Bartholomew conveyed the land by warranty deed to the Weekses, which deed, duly acknowledged, was filed for record October 1,1880. Within a day or two after receiving this deed, the Weekses took actual possession of the land; proceeded to build a'dwelling house and make other improvements; soon after, they moved into the house with their families, and have had actual possession ever since.
It appears from the evidence and findings of the trial court that Sanford never paid or offered to pay for the land according to the terms of his written contract. The court held, as a matter of law, that by his failure to comply with the terms of the contract, his rights in the land became forfeited, and that he had no equities or other interests therein at the commencement of this action. In the contract, time is not stated as of the essence, and courts are reluctant to enforce forfeitures. It is not to be presumed that the parties to the contract intended that time should be of the essence thereof, in the absence of any stipulation to that effect. When there is simply a contract to convey upon the payment of a certain amount at a specified time, time is not of the essence of the contract, and a conveyance of the title may be decreed upon tender of the price and interest, if made within a reasonable time. (Railroad Co. v. Brickley, 21 Kas. 275; Land Co. v. Perry, 23 id. 140.)
If the decision of the trial court rested upon its construction of the written contract of December 8, 1879, the judgment would necessarily have to be reversed; but this is not the pivotal point in the case. The trial court specially found upon the evidence that the Weekses had no notice, actual or constructive, on September 27, 1880, that Sanford had or claimed to have any interest whatever in the land. If the Weekses purchased without notice of Sanford’s equities in the land, then of course the Weekses are entitled to the judgment rendered in their favor, because they were bona fide purchasers for value. As the written contract of December 8, 1879, was not acknowledged, it being filed for record did not impart notice to the Weekses, or anyone else. (Comp. Laws of 1885, ch. 22, §§ 9, 19, 20.) •
Sanford never made any improvements on the land after the date of his contract;’but it appears from the evidence that prior to the contract, under consent from Miss Bartholomew, he had taken possession of the land, or a part of it, and had made some improvements, consisting of the breaking of thirteen or fourteen acres, which were fenced with barbed wire and oak posts. There was quarried and corded up upon the land at the time considerable rock. There were, also, some preparations toward the construction of a lime kiln.. Sanford, however, had no house upon the land, and was not living thereon. According to the evidence of the Weekses, they had no notice nor knowledge at the time of their purchase that the improvements thereon had been made by Sanford, or that he had any interest or claim to the same. They made inquiries of the agents of their grantor, Miss Bartholomew, and were informed by them that she was the owner of the premises, and that the matter was all straight. They also inquired of a responsible banker -if they could rely upon the representations of these agents, and they were informed they could.
We have time and again stated that open, notorious, unequivocal and exclusive possession of real estate under an apparent claim of ownership is notice to the world of whatever claim the possessor asserts, whether the claim be legal or equitable in its nature. (McNeil v. Jordan, 28 Has. 7; Tucker v. Vandermark, 21 id. 263.)
If this were an action pending between Sanford and Miss S. E. Bartholomew, we would have no hesitation in holding that Sanford had actual possession of the premises; but this action is between Sanford and the Weekses, who claim to be innocent purchasers. The only question, really, for our determination is, whether there is sufficient evidence in the record to sustain the finding of the trial court that the Weekses had neither actual nor constructive notice before their purchase of the land that Sanford had, or claimed any interest therein. It was the province of the trial court to determine the credibility of all the witnesses. It seems to have wholly disregarded the evidence of Sanford. If there was injustice in this, we are unable to correct it. The evidence of Henry M. Weeks and Sanford directly conflicts. There was evidence that Sanford did not have open, notorious, unequivocal and exclusive possession of the land at the time of the purchase of the Weekses; therefore we cannot disturb the finding of the trial court, as there is evidence to sustain it. This conclusion necessarily causes an affirmation of the judgment.
Several errors are alleged concerning the admission and rejection of testimony. The briefs do not refer specifically to the pages of the record which counsel desire to have examined, and this of itself is a sufficient excuse for not commenting upon these alleged errors. Notwithstanding the failure of counsel to comply with the rules of practice promulgated by this court, we have read the record carefully, and find, in view of the conclusions we have reached, that the alleged errors are wholly immaterial.
As the evidence sustains the findings of the trial court, notwithstanding one of the reasons given for the judgment is erroneous, the other reasons are sufficient, and the judgment must be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an appeal from the award of commissioners appointed to condemn a small piece of land in the city of Atchison, for the use of the railway company. There are but two assignments of error; and the first is as to the admissibility of certain parts of the testimony of one John Barry, a witness for the plaintiff below. He had stated that he knew the property in controversy; that he had lived in Atchison since 1872; that he knew the market value of the property before the railway company “took any off;” that the value of the strip taken was from $90 to $100; that the value of the property after the taking-off of the strip was so much; that the property was used as a hotel; and he was then asked, “ What would be the principal damage to the property ? ” This question was objected to as “ calling for the opinion of the witness;” “not a proper subject of expert testimony;” “incompetent, irrelevant, and immaterial.” The objections were overruled, and exceptions noted. He answered, “ The closer the road comes to the property, the worse and more damage it does.” This is the particular question and answer complained of. The rule is for the witness to state the value just before and just after the appropriation, and the difference is the amount of damages that the witness fixes. Is it improper to ask him what is the principal damage, that is, what acts tend to form his estimate? What things does he take into consideration in fixing the difference in value just before and just after the taking? All such questions are proper on cross-examination; why not in chief? It may be a matter of opinion, (in the nature of things it probably is,) but so were the answers to preceding questions, and this necessarily grew out of them. We think the question was proper, even if the answer was not directly responsive. The answer was a statement within the common knowledge of any ordinary man. It cannot be, in view of all the other evidence in the case, if the question was improper, that it was such a material or prejudicial error that.the case ought to be reversed for that reason.
The other assignment is, that the court erred in overruling the motion of the plaintiff in error to strike out of the general finding of the jury the following items, to wit: the item for disfigurement, $100; the item for inconvenience, $100; the items for damages, $150. The jury were requested to answer the following question:
“No. 6: What are the several elements or sources of damages which make up the aggregate of the answer to special question No. 5, and how much of said aggregate is made up by each of said elements or sources of damage? A. Disfigurement of property, and inconvenience and damage of sale.” (Giving the figures for each as above stated.)
In answer to question No. 5, the jury fixed the amount of real and actual damage to the remainder of the property at $350. They fixed the valúe of the land taken at $75. The property was a lot on the corner of Main and Fourth streets, in the city of Atchison, fifty feet front by ninety feet. There is a hotel on the lot fifty by seventy feet, built of brick, two stories and a basement, containing about thirty rooms, constantly in use for all the purposes of a hotel. The strip of ground condemned lies in the rear of the hotel building, and had been used for a yard, and had a coal house and chicken coop' thereon. The portion taken was a strip triangular in form, being four feet wide at one end, and twelve feet six inches at the other, containing about twenty-five- square feet of ground. It is said that the two items of inconvenience and damage should be stricken out. Counsel for plaintiff in error contend that according to the decisions of this court, inconvenience as an element of damage is only allowed where the land is cut in two, so that the tract is divided, and one part rendered less easy of access, on account of the road-bed or the taking of the right-of-way. It may be that in the reported cases this is the only example of inconvenience that is cited and commented on, but it surely does not require much argument to show that the lessening of the area of the yard, the dangers and difficulties of approach from that direction, the loss of room for coal houses, chicken coops, and other necessary and indispensable out-buildings, and many other things, are to be considered in determining inconvenience as an element of damage. Disfigurement is an element in this case, in its most simple form. The usual proportion of a town lot, in the form most universally used, and accepted as best by the experience of many years, is destroyed by taking a triangular portion of it and dedicating it to a use entirely different from that of the remainder of the lot; a use so inconsistent with that of the remaining portion of the lot that there can be no benefit derived from mutual effort or combined interest. The portion taken is to be used for the track of a railroad. It is as pure an example of disfigurement as can be imagined, as distinguished from inconvenience. As we regard it, inconvenience is experienced in the use and enjoyment of property, but disfigurement affects the property itself. Of course the value of the piece taken is adjudged and paid, but the irregular, ill-shaped remainder is a perpetual reminder that disfigurement is an element to be taken into consideration in estimating damage.
There are very many things which might have been considered by the jury as elements of damage, other than disfigurement and inconvenience, that are grouped together in the last item of “damage, $150.” No objection was made by counsel to the form of the answer, and we do not now understand him as objecting on that account; his contention seems to be one of logical deduction, rather than of mere formality. In other words, the “marrow” of his proposition is, that when inconvenience is assessed at $100, and disfigurement at $100, the elements of damage in this particular are exhausted. We do not think so. Among the various, if not many, things that might operate to the prejudice of the owner of the irregularly-shaped lots, bounded on two sides by railroad tracks, are: The effect these things would have, not on his possession and.enjoyment, but on the market value of the property; its undesirableness for all kinds of residence or business purposes; the annoyance of the trains; crossing the tracks to approach it from two sides; and the danger attending the operation of the railroad: where a part of a brick-yard was taken, and the owners prevented from enlarging it, (11 Am. Rly. Rep. 364;) the increased hazard of fire, causing increased rates of insurance, (17 Minn. 215; 19 id. 283; 20 id. 28;) also, injuries to the premises as a house of public entertainment, (5 Rich. 428; 6 id. 47; 12 id. 634.) However speculative or inappreciable some of these items may be, and more especially the latter, they are nevertheless held to be subjects of compensation in the courts. (1 Rorer on Railroads, 388, and authorities cited.)
The jury estimated inconvenience, disfigurement, and other damage. If the plaintiff in error was dissatisfied with this answer, he should have asked the court to send the jury back and require them to specify the other elements of damage besides the two mentioned. This was not done, but a motion was filed, after the jury were discharged, to strike them all out of the special verdict. If insisted on, the jury might have enumerated other elements.
We do not see that such material error is shown as compels us to reverse the case. While the record shows that a judgment was rendered, it nowhere recites it. A literal transcript of the precise judgment in all its terms ought to be contained in the case-made, and it may happen that if it is not, this court would not consider the error assigned. Here there is a specific averment that the court rendered a judgment on the general verdict, but the judgment itself ought to have been set out, word for word.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by J. C. McCoy against William Huckell, before a justice of the peace of Cawker township, Mitchell county, to recover three head of swine. The case was tried before the justice without a jury, and judgment was rendered in favor of the plaintiff, McCoy, for one of the hogs in controversy, and in favor of the defendant, Huckell, for the other two hogs. The defendant appealed to the district court, where the case was again tried before the court and a jury, and judgment was rendered in favor of the plaintiff, and against the defendant for $30 damages and the costs of suit. To reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
Two principal grounds are urged for reversal: First, that the court below had no jurisdiction to hear and determine the case; second, misconduct on the part of the prevailing party. We shall consider these grounds for reversal in their order:
I. We think the court below had jurisdiction to hear and determine the case. The exact question, however, which the plaintiff in error, defendant below, desires to present to this court, can hardly be considered as in the case; for it was not raised at all in the justice’s court, nor fairly raised in the district court, nor raised in the supreme court, until it was presented to the court by the brief of the plaintiff in error. That question is this: When an action of replevin is commenced before a justice of the peace by a resident of the county, against a non-resident, and the defendant is properly served with summons in the county where the action is commenced, but the property is not obtained, and the property has never been wrongfully detained in the county where the action is commenced, but has been and is wrongfully detained by the defendant in the county where the defendant resides, has the court jurisdiction to hear and determine the case as one for damages only ? The facts upon which this question is desired to be raised are as follows: Huckell resides in Jewell county, and if he ever had any of McCoy’s hogs in his possession, he had them in his possession only in Jewell county. McCoy resides in Mitchell county, and he commenced this action in that county. The summons was served upon Huckell in Mitchell county, but the officer never obtained possession of the hogs. The case was tried before the justice of the peace, and no question of jurisdiction was raised in that court. The case was appealed by the defendant to the district court, where it was tried as an action for damages only. It is not claimed that any question of jurisdiction was raised in the district court, until the defendant below filed his demurrer to the plaintiff’s evidence, and it is now claimed that by such demurrer the question was raised. The demurrer, however, was in the following words: “And now comes the said defendant, William Huckell, and demurs to the evidence of the said plaintiff, for the reason that said evidence does not prove a cause ■of action.” We do not think that this demurrer raises any question of jurisdiction. Neither does the exception taken to the ruling of the court upon this demurrer, nor the motion for a new trial, nor the exception to the ruling thereon, nor any exception, nor does the petition in error, present the question. Under such circumstances, we think the district court certainly did not err in entertaining jurisdiction of the case. But even if the defendant below had properly raised the question of jurisdiction in the justice’s court, still we think it would have been unavailing; for we think the justice of the peace had ample jurisdiction to hear and determine the case as one for damages only, over any objection interposed by the defendant below. (Justices Code, §67.)
II. The alleged misconduct of the prevailing party is the alleged misconduct of the counsel of the plaintiff below in making statements of alleged facts to the jury in his closing-argument, which alleged facts had no connection with the case,, were not supported by any evidence, and were highly prejudicial to the rights of the defendant. The statements were principally that the defendant had a very bad reputation, that he was continually in litigation, and that, he was a liar and a thief. Among the'statements are the following: ■
“I do not know what Mr. Ellis [the defendant’s counsel} meant by his statement in regard to a ‘good man,’ unless the public clamor has been so loud about the bad reputation of his client that you have heard it.”
“Afraid of a prosecution ! from whom ? A man who, when he knows more than anyone else — who of all men knows whether those hogs were stolen or not — dares not become a witness. ’ A thief seldom exposes his work to the noonday sun.”
“If he [meaning the defendant] had come on the stand, we would have shown you that he [meaning the defendant] would swear to a lie — that he is a liar as well as a thief.”
“Mr. Ellis says that the boy has never been on the stand béfore. He probably don’t know what everybody else knows,, what all the neighbors know, that Huckell is all the time in court — always having a lawsuit.” .
The defendant was not a witness in the case, and was not impeached. There was no evidence tending to show that he had a bad reputation; no evidence tending to show that he was “always” or had been at any time in litigation; no evidence tending to show that he was either a liar or a thief; no-evidence that he stole the particular hogs in controversy, or that he had ever stolen anything; and no evidence indeed that the hogs in controversy were ever stolen by anybody,, except evidence tending to show that they were at one time-in an inclosure on the plaintiff’s farm, and were afterward found in an inclosure on the defendant’s farm. It appears from the evidence that the plaintiff had about 127 hogs on his farm; that the defendant had about 200 hogs on his farm; that their farms were near each other; that sometime in March or April, 1885, about eleven of the plaintiff’s hogs were missing ; that sometime afterward the plaintiff went to the defendant’s farm, looked at the defendant’s hogs, and found, as he believed, three of his own among the defendant’s hogs; that he then demanded these three hogs of the defendant; but that the defendant refused to deliver them to him, claiming that they were his own. The plaintiff then commenced this action to recover the hogs. The evidence upon the trial was very conflicting as to which of the parties owned the hogs. Some of the witnesses testified that they belonged to the plaintiff, and others testified that they belonged to the defendant. After the evidence was all introduced, and prior to the argument of counsel, the defendant’s attorney asked, and the court consented, to submit two special questions of fact to the jury, for the purpose of having the jury determine as to how the hogs in controversy came into the possession of the defendant; whereupon the counsel for the plaintiff objected, and said: ■ “ I admit that if I have not proven a demand in this case the plaintiff is not entitled to recover in the action.” And thereupon the court refused to submit said questions to the jury, and struck out from its general charge all matters intended to have been given, upon the possible theory that the defendant’s possession of the hogs prior to the plaintiff’s demand for them might have wrongful or unlawful. This action on the part of the plaintiff’s counsel and the court settled the question in favor of the defendant, that he did not wrongfully have the possession of the hogs prior to the plaintiff’s demand for them, and therefore that the defendant did not steal them. The plaintiff’s counsel then addressed the jury, and then the defendant’s counsel, and then the plaintiff’s counsel again. This was his closing argument, and the one in which he used the aforesaid language objected to. When the objection was made to the first paragraph of this language above quoted, nothing was said by either the court or the plaintiff’s counsel except as follows:
“ The court remarked that it had not paid attention, and had not understood the words used, but the counsel should confine his remarks to the facts disclosed by the evidence, and that the jury should pay no attention to assertions of counsel unless they were supported by the evidence.”
When the other three paragraphs were objected to, and they were objected to severally, nothing was said by either the court or the plaintiff’s counsel. These objectionable matters were not withdrawn from the jury by either the court or the plaintiff’s counsel. No retraction, no apology, no expression of regret, was elicited or came from the plaintiff’s counsel, but he proceeded with his argument as though nothing had happened. After this argument of counsel, the jury retired to their room for deliberation, and on the first vote taken by them, seven were in favor of finding a verdict in favor of the defendant, and five only were in favor of finding a verdict in favor of the plaintiff. Then commenced a discussion among the members of the jury, and the principal question discussed by them was, whether the charges made by the plaintiff’s counsel against the defendant were true, or not; and the jury, from their final verdict, evidently believed they were true. We might also here state that at the commencement of the trial the plaintiff had thirteen witnesses sworn, and afterward examined only three of them, and this left the jury to infer that the other ten were sworn for the purpose of impeaching the defendant if he testified in the case, and therefore that the third charge made by the plaintiff’s counsel was true. Such language as was used in this case by the plaintiff’s counsel might not ordinarily require a new trial, but in a case like the present we think it must. In all probability the plaintiff never would have obtained or received a verdict in his favor from this jury if the aforesaid language had not been used. Two of the jurors so testified, and there was no evidence tending to show otherwise; but of 'course this testimony was incompetent. We might also state another fact that tended very strongly to give the objectionable language force and efficacy: It is admitted that the plaintiff’s counsel is a man of high character, of good standing as a lawyer, and well known.
We think the court below erred in refusing to grant the de fendant a new trial. Certainly where counsel in his closing argument to the jury repeatedly makes improper remarks, prejudicial to the interests of the adverse party, and over the objections of the adverse party, and the verdict is afterward rendered in favor of such counsel’s client, and may have been procured by reason of such remarks, a new trial should be granted. (Brown v. Swineford, 44 Wis. 282; Bremmer v. Green Bay Rld. Co., 61 id. 114; Bullard v. B. & M. Rld. Co., [N. H.] 5 Atl. Rep. 838; Cleveland Paper Co. v. Banks, 15 Neb. 20; Hall v. Wolff, 61 Iowa, 559; Henry v. S. C. & Pac. Rld. Co., [Iowa] 30 N. W. Rep. 630; Campbell v. Maher, 105 Ind. 383; Bedford v. Penny, 58 Mich. 424; Insurance Co. v. Cheever, 36 Ohio St. 201.) ’
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The errors complained of are, that the witnesses who were permitted to testify as to the value of the lots appropriated were not competent to testify; and second, that the court erred in its instructions to the jury in relation to the question of value and rule of damages. The objection to the competency of the witnesses by the defendant below arose not from want of a general knowledge of values in the community by the witnesses, or even of a knowledge in a general way of the value of the lots appropriated, but because of the fact that the witnesses showed that they were not acquainted with the market value of the lots at the time they were appropriated, for the reason that there was at that time no market value on the lots. Counsel insists that the rule of damages is the market value of the lots at the time they were taken. This is true where the property taken has a market value. This then presents the question, can the value of property be shown in absence of a market value ? It was shown by the witnesses that they were residents of the city of Gar-nett, and that this addition adjoined and was part of the city; that they had resided in Garnett for a number of years, and were well acquainted with the property in controversy, and acquainted with the general values of lands at Garnett and in that vicinity at the dime this land was appropriated, and a number of them testified that for a number of years prior to and at the time of this suit they were engaged in the land business, and were dealing in real estate in that vicinity; that this property at the time it was appropriated had no market value; that they arrived at the value of lots from a comparison with the value of other lots and sales made in Garnett, and also from sales of lots made in Garnett, and also from sales of lots made in this addition before and after the land was appropriated, and from their general knowledge of the values of property. There was, however, a special objection made to the competency of the defendant in error as a witness. He showed that he had never resided in Kansas; that he had owned this land, known as the Chapman addition, since 1867, and had been well acquainted with it since that time; that he platted the land and fixed the prices of the lots; that he had sold some thirty or forty lots in said addition at the prices so fixed by him; that he was acquainted with the values of land and city property in and about Garnett at the time these lots were appropriated by the railway company; that he did not know of any market value for the lots at the time they were appropriated. Upon this foundation he was permitted to testify to the value of the lots so taken. In this we see no error. The fact that there was no market value of the lots in defendant’s addition would not warrant the railway company in appropriating them without compensation. The law does not presume or require impossibilities; it only demands and requires the best proof uuder the circumstances of each case. Where property has a mai’ket value the rule is strict, and requires only that value to be shown; but where it is shown that the property is without a market value, then the law allows the next best evidence to be given to ascertain its value. The property then may be compared with other property; its value may be determined by persons who are shown to be judges or who have knowledge of the values of real estate in that vicinity, and their opinions may be given of the value of the property, which in this case was the best evidence it was possible to procure. Some classes of property always have a market value; other property by reason of its location, or distance from market, or other circumstances, is without a market value; nevertheless it has a value, though the means of ascertaining it is changed where the rule requiring market value cannot be applied. In L. T. & S. W. Rly. Co. v. Paul, 28 Kas. 821, Judge Brewer, speaking for the court, says:
“While on the other hand, the values of real estate, especially in localities where there are few changes in property, are not so absolutely certain, and cannot be determined with absolute exactness; and in respect to them the testimony of witnesses partakes largely of the nature of opinions. And yet from the necessities of the case it has come to be recognized that such testimony is competent. It is the best that, in the nature of things, can be obtained; for a description by a witness of the locality of any given tract, its improvements and surroundings, would ordinarily throw little light upon the question of its value. So many things enter into and affect such value that a witness would be unable to describe them all, or even to comprehend them all fully. Hence it has become pretty generally established that a witness who testifies that he is acquainted with the values of real estate in the locality may give his opinion as to the value of any particular tract.” (See also A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 380; K. C. Rly. Co. v. Allen, 24 id. 33.)
On the question of the values and the rule by which to determine the defendant’s damages, the court instructed the jury as follows:
“4. In determining the value of plaintiff’s lots appropriated as right-of-way, you are to consider the fair market value of the lots taken as to the time of the taking. This does not necessarily mean what it would bring at forced sale, or under peculiar circumstances; but such sum as the property is worth in the market; that is, to persons generally, if those desiring to purchase were found who were willing to pay their just and fair value.
“ 5. If you should find that there was no market for such property at the time, it does not follow that they were worthless, or could be appropriated without fair compensation. You should inquire what was its actual value, its reasonable worth; you should consider its reasonable worth in the hands of a prudent seller, at liberty to sell, at a reasonable time for selling, and usual and reasonable terms and conditions of sale; taking in view the location of the lots and the purposes for which they were held. You should determine such value as the same would be determined by a prudent seller or purchaser. In arriving at this value the opinions of witnesses are taken. Of course the value of their opinions depends upon the means of knowledge, experience and observation that the witnesses are shown to possess. You are not concluded by these opinions of one or more witnesses. You should consider the location, surroundings, the value of other lots in the vicinity at the time, and determine such value from a careful comparison and consideration of the whole evidence, guided by your own observation of the location and situation, as shown by the view you have had of the premises. Of course you will not fix the value from your own knowledge, or opinions formed upon the view, but will make use of your observation in weighing and considering the testimony offered, and applying it to the case. You should not be influenced by any estimate of the owner, based upon fancy, local attachments, or otherwise; neither should you base your estimate upon forced sales made under circumstances of hardship.”
In these instructions we see no error. It was a direction to the jury to determine the market value of the property, in the first instance, and if they found that there was no market value at the time the property was so taken and condemned, then they might consider the evidence of the reasonable worth of the same in the hands of a prudent seller, or a person desiring to purchase, and that in arriving at this value the opinions of the witnesses are to be taken, and that the value of the opinion depended upon the knowledge, experience and observation of the witness; also, that they were to consider its situation, surroundings, and the value of other property in that vicinity, and upon the whole evidence they were to be guided by their observation of the property, as shown to them, and from all this testimony and observation they were to determine its fair market value or real value. This instruction seems to us to have been eminently fair and reasonable under the facts as shown in this case. This disposes of all the substantial claims of error in the record. All the other questions related to the damages allowed to the remainder of the addition not appropriated, which was by the defendant remitted after verdict, and therefore it is not necessary to examine any claim of error in the evidence or the instructions of the court therein.
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was brought in the Shawnee district court by defendant in error as plaintiff, to recover possession of the northeast quarter of section 11, township 13, and range 16 east, in Shawnee county. It was transferred to the superior court of that county, and upon the second hearing was tried by a jury; upon their verdict a judgment was rendered, awarding the west one-half of said quarter-section ,to the defendant, and the east one-half to the plaintiff. The defendant, complaining of the judgment awarding the east one-half to the plaintiff, brings the case here for review.
The plaintiff claimed title from the government, and introduced in evidence a patent from the United States to Geo. H. Case. Pie then introduced, over the objection of the defendant, a record of a deed from Geo. H. Case to Benjamin Hoyt. The name of Geo. H. Case appears in the body of the deed and as the signer of the same, but in the acknowledgment of the said deed it is written, “Personally came before me Geo. H. Crane, who is known to me to be the signer and sealer of the foregoing deed,” etc. The defendant claims that there was not sufficient proof of the execution of the deed from Case to Hoyt, contending that the names Geo. H. Case and Geo. H. Crane are unlike in spelling and pronunciation, which is obviously true; and that it is shown by the acknowledgment that Geo. H. Crane signed and sealed the deed. If this is a defect merely, then it would have been cured by § 28, ch. 22, Comp. Laws of 1879, which provides that all records of instruments in writing, copied into the proper books of the office of the register of deeds prior to October 31,1868, shall be competent evidence, notwithstanding any defects existing in the acknowledgment or execution of the same. The court is of the opinion that such record was not competent evidence to establish a conveyance from Geo. H. Case to Hoyt; that it was more than a mere defect when it was stated in the acknowledg meut that Geo. H. Crane was the signer of the deed. The instrument is faulty, and does not come within the provision of said § 28, and was not therefore competent evidence to establish that Geo. H. Case executed the same. The court is of the opinion that the introduction of the record was material error.
' As the action will be re-tried, and the chain of title from the United States to plaintiff will probably be established, we feel called upon to examine the other questions submitted to us. The southeast quarter of the land in dispute was sold for taxes of 1871, and the tax deed executed on the 27th of May, 1875. It had been recorded more than five years before the commencement of this action, and if it is valid on its face, the statute of limitation has run in its favor. It is contended that it is not valid, because it does not recite in one place in the deed that the taxes, interest and costs were then due and [remaining] unpaid. The word “remaining” is omitted. Our statute provides that the taxes must remain unpaid at the date of sale, or the sale will be void. In the tax deed named it is recited, “that whereas, the taxes assessed on said land for the year 1871 remained due and unpaid at the date of the sale hereinafter mentioned; ” and also again it is recited therein “that the purchaser having offered to pay the whole amount of the taxes, interest and costs then due and remaining unpaid,” etc., said property was stricken off to him. The particular recital in the deed where the word “remaining” was omitted, was in relation to the offering the said land for the payment of the taxes, interest and costs then due and unpaid. We do not feel inclined to attempt to discover a distinction between taxes, etc., then due and unpaid at the time of offering for sale, and the taxes then remaining due and unpaid, while at the same time the other recitals in the deed are full and complete; at most, it was but an irregularity that certainly ought not to be regarded as a defect that could be raised after the five years contemplated by the statute have passed.
. The defendant claimed title to the northeast quarter of the land in dispute, under a tax deed for the taxes for the year 1877, executed September 10, 1881. The statute of limita tion did not run in favor of this deed. (Keith v. Keith, 26 Kas. 27.) In 1877 the entire quarter-section of laud was-assessed as one tract. Some party paid $7.90, one-half of the taxes assessed against it, taking a receipt for the taxes upon the west one-half; then some one else paid one-half of the-taxes remaining unpaid, $3.95, being one-quarter of the whole amount, and took a tax receipt for the southeast quarter. Afterward the northeast quarter of the land was sold for taxes. We think the tax deed based upon such a sale is voidable. The case of Kregelo v. Flint, 25 Kas. 695, is decisive.. Mr. Justice Brewer, in the opinion of the court, says:
“A tract of eighty acres was assessed as an entirety. The-treasurer sold one half in amount for one-half the tax. We held in Shaw v. Kirkwood, 24 Kas. 476, that such a sale is-irregular and voidable. The treasurer is not an assessing officer, and cannot apportion values by amounts. Counsel seeks-to avoid that.decision by testimony that the treasurer correctly apportioned; that one-half in amount was really one-half in value. We do not think such inquiry permissible. The treasurer is not the assessing officer. Until the legislature makes provision for such a contingency, the treasurer has noanthority to receive a portion of the tax on a single tract of land as a payment of the tax on a part of the land, and sell the remainder of the land for the balance of the tax. Such a sale is voidable, and the treasurer cannot uphold the action, upon testimony that he apportioned values and amounts correctly.”
We recommend that the judgment of the court below here versed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiffs in error commenced an action of replevin against James H. Haynes and George Schaaf, for the recovery of the possession of certain specific personal property, alleging that they were entitled to the possession of said property by virtue of default in the terms and conditions of certain chattel mortgages, executed by Haynes and Schaaf to them on said property. While this action was pending and undetermined, Martha J. Haynes, the wife of James H. Haynes, who claims to be the absolute owner of the property, commenced her action in replevin, to recover the possession of the identical property from T. C. Reiley, the sheriff of the county, who held the property by virtue of the writ in the first action, and Richard Hunter, who was plaintiff in the first action, and to whom the chattel mortgages had been given. The case was tried by a jury, at the June term, 1886, and there was a verdict and judgment for Mrs. Haynes, for- the recovery of the possession of the property, its value at the time of detention being found at $867.50, and damages for detention in the sum of $290, and costs. A motion for a new trial was overruled, and the case is here, with several assignments of error occurring during the trial.
I. The first is, (and it is doubtful on the record whether it was eyer raised and passed upon by the court below,) that at the time of the commencement of this action the specific personal property was in the custody of the court, and that by the reason of that fact, replevin at the suit of a third party would not lie. This identical question was passed upon by the court in the case of Gross v. Bogard, 18 Kas. 288, and as Mrs. Haynes claims adversely to both her husband and Hunter, the decision controls this action. Mrs. Haynes can maintain this action in replevin against the officer and Hunter, at whose suit the former process issued, under which the sheriff claims possession.
II. The next proposition of counsel is, that the evidence is not sufficient to entitle Mrs. Haynes to recover. If we should undertake to determine this question in a precise and • formal manner, it would be the trial of issues of fact in this court. The jury and the trial court-have determined that there was sufficient evidence to entitle her to a recovery. If there is any evidence to support the finding of the jury and the judgment of the court, it is sufficient here. We shall not weigh the evidence, nor undertake to determine the credibility of the witnesses; There were' no special findings required of the jury; the general instructions of the court to the jury were not excepted to, and the whole record of the proceedings de notes that there was a free, fair and full trial, with considerable latitude allowed in the introduction of evidence, so that we have no doubt but that both the court and jury were fully advised as to all the facts in the case.
III. It is said that the testimony of Mackay, Julius Beecher, Ole Beecher, A. C. McPherson and Charles Blackburn, or rather certain parts of it, ought not to have been permitted to go to the jury. This testimony consists of the statements of. persons living in the neighborhood of Mrs. Haynes and knowing her ever since she came to Republic county, who testified to the declarations of herself and her husband, when they first moved into the neighborhood, as to the ownership of this specific personal property; that she had always claimed to be the owner of it, had always said so; that it was generally understood in the neighborhood that she was the owner; that by reason of these things it was a matter of reputation, generally known, that she was the owner of the stock; Haynes was her second husband, and she owned the stock before her marriage to him; that these statements as to the ownership were made while the stock was in the possession of Mrs. Haynes, as well by her as by her husband; that she had borrowed money in town on the fact of her ownership. These facts all had a tendency to support her claim, and divest the jury of an impression that her claim of ownership was being used for the sole purpose of saving the property from a chattel mortgage executed by her husband. Declarations by a party in possession of personal property as to the ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res gesten. (Stone v. Bird, 16 Kas. 488, and authorities cited.) This case will be found to be very similar, in the particular features which we are now considering, to the one at bar, and all the criticisms of Mr. Justice Breweb. on the manner in which the objections to the evidence were presented in that case, apply with equal force in this. The single issue in this case is, was Mrs. Playnes the owner and entitled to the possession of the property in suit? Her declarations while she was in possession of the property, made for successive years before this controversy arose, was some evidence to go to the jury, under the proper limitations and restrictions, in support of that issue. So the declarations of Haynes,.with the same safeguards, might go in evidence, and those of George Schaaf are permissible, for they are both parties to the inquiry, represented by the sheriff, and their declarations in disparagement of their own title and in support of that of Mr. Haynes while in possession and control of the property, can be shown. But this rule must be kept within safe and reasonable limits, and it is extended too far when witnesses are allowed to state the common understanding of the neighborhood, or the general reputation as to ownership. This was done by several witnesses in their answers to questions to which they did not make direct responses, but there was no motion to strike out such answers and withdraw them from the jury. The necessity for such a course was very clearly pointed out by the court- in the case of Stone v. Bird, supra, and it is stated that a mere objection to its reception was not enough, but not even that was done in this case. When an improper answer is given to a legitimate question, or where a part of the answer is improper, the party complaining must move to strike out the answer, or the part he considers improper, in order to have it reviewed in this court. In this case witnesses were allowed to make remarks, and refer to the knowledge of the neighborhood, and make statements about “ reputation of ownership,” by addition to proper answers to questions, and possibly in one or two instances to questions so framed, that such answers could be made. But these things are all mixed up with what appears to be the other and material matter, and we cannot say affirmatively that there is error.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action of replevin, brought by Jay Ward, to recover the possession of a book-case and some books, taken on attachment by Hughes, as constable,' as the property of J. R. Myers, at the suit of Eagle & Knox against Myers Bros. Plaintiff claims that he purchased the property in controversy of J. R. Myers in satisfaction of a
debt of $250 owing him by Myers. The defendant claims that the pretended sale by Myers to the plaintiff was made for the purpose of defrauding the creditors of Myers. Plaintiff as a witness on his own behalf testified that the property in controversy was of the value of $250. No objection was made to this testimony, but on the cross-examination it was shown that the plaintiff did not know the market value of the property, and of his own personal knowledge did not know its value. The defendant then moved to strike out all of the plaintiff’s testimony in relation to the value of the property, which motion was overruled by the court. In this we see no error. If there had been no foundation laid for the plaintiff’s testimony in regard to the value of the property, the defendant might for that reason have objected to it; but no objection having been made at that time, his motion came too late.
The defendant on cross-examination also asked the plaintiff whether he had not testified on a former trial of this case, and whether in that testimony he had not given a different statement of facts from that given in his testimony on this trial. Plaintiff answered that he did not know in relation to that matter what his testimony was on the former trial; whereupon the defendant renewed the question, which was objected to, and the objection sustained. The court doubtless sustained the objection to the last question for the reason J 1 that the same question had been already answered, anc[ aiso tliat it was not material to lay the foundation for an impeachment, and that the plaintiff’s declarations and statements at a former trial could be given in evidence without first calling his attention to his former testimony.
Hughes, as a witness in his own behalf, testified that when the book-case was attached, he found certain property belonging to Myers in one of the drawers, consisting of private letters, certain medicines and photographs; that Myers had the key to the case, and that the property so found all belonged to Myers. Defendant was then asked by counsel what kind of medicine it was, and for what purpose it was used; also the contents of the letters and the character of the photographs; which questions the court refused to allow defendant to answer. The purpose of this testimony in the first instance was to show that Ward did not have the exclusive possession and control of the book-case and its contents. This was competent. But when it was once established that-these articles belonged to Myers, and that he had possession of that part of the drawer of the book-case, that was all that was necessary, and it made no difference what the letters contained, for what purpose the medicines were used, or the character of the pictures found therein; and the court committed no error in refusing to allow the witness to testify.
J. R. Myers was called as a witness for the plaintiff, and on direct examination testified to the sale and transfer of the property in controversy by himself to Ward long before the attachment in question. On cross-examination Myers testified that he had no interest in the controversy, and he was then asked this question: “Did you not at the last term of the court, and while the trial was in progress, say to Mr. Eagle that, in case the jury should bring in a verdict in his favor, you would pay him the appraised value of the books, because you did not want to part with them?” This question was objected to, and the objection sustained. The answer, perhaps, ought to have been permitted and the witness allowed to testify, for it was evidence tending to show some interest, and yet of such a vague and uncertain character that we are not willing to reverse the case for that seeming error. The evidence at most only intimated an interest in the property. Witness was also asked on cross-examination if he had not stated at a former trial as a witness, that the name “Ward” had been inserted in the bill of sale after the bill of sale was prepared? The question was first answered “No,” and afterward qualified by the statement that he was not certain what his former testimony was. Afterward, counsel for the defendant offered to read from his notes of the former trial, showing that the witness had so testified; which was objected to, and sustained by the court. In this we see no error.
Again, defendant claims that the court erred in refusing to give to the jury the instructions asked by him. The instructions offered were properly refused, as all that part of the instructions asked that was proper and applicable to the facts of the case was substantially embodied in the instructions given by the court, and the remainder of the instructions not given did not correctly state the law.
We find no substantial error in this case such as would authorize or warrant its reversal. The amount involved is small, and it has been twice tried by a jury, and we are not williug to disturb their verdict.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Two assignments of error are strongly insisted on; the first being the ruling on the motion to strike out and dismiss the second cause of action set out in the amended petition, and the other being the ruling sustain ing the demurrer to the first cause of action alleged in the amended petition.
I. The action as originally commenced in the district court of Allen county was one to rescind a real-estate contract, whereby the plaintiff in error exchanged real estate situated in the city of Humboldt, in Allen county, for farming land situated in the state of Missouri. The plaintiff in error (plaintiff below) was a resident of Allen county; the defendants were residents of Lawrence, Douglas county. The exchange had been consummated by the execution of warranty deeds to the property by each of the parties, long before the action was commenced. The action was properly instituted in Allen county, because a part of the property exchanged is situated in that county, (Code, §46;) and a summons for the defendants issued to and was served by the sheriff of Douglas county. (Code, § 60.) The defendants appeared and filed a demurrer to the petition, but that was overruled, and they then filed an answer. The plaintiff then obtained leave to file an amended petition, and in accordance therewith amended his cause of action for a rescission of the contract, and then added an entirely new cause of action, demanding damages for a breach of the covenants of warranty in the deed by which the defendants conveyed the Missouri lands to the plaintiff in error. A motion was made to strike out and dismiss the second cause of action for damages, for a breach of the covenants of warranty. This was sustained by the _ court.- We think there was no error in such ruling. The action for the cause alleged in the original petition was local, and it was only by reason of that, and that alone, that Reynolds and wife could be compelled to litigate in Allen county, they being residents of Douglas county. Whenever it was sought to depart from the" local action and substitute therefor or add thereto an action transitory in its nature, it ought to have been dismissed, because it has been held by this court that the presumption is in such a case that the statement of the original cause of action was made wrongfully, to procure the service of a summons upon the defendants, in violation of the spirit of §§ 46, 55, and 60 of the code. (Brenner v. Egly, 23 Kas. 123.) The counsel for plaintiff in error ingeniously contend that when the defendants are rightfully summoned under §46, and appear and contest allegations with reference to a cause of action, transitory in its nature, blended with those that are local, they have joined in a general fray, and cannot thereafter be heard to object to the mode of attack or the manner of fighting. As long as the causes of action are strictly confined to those enumerated in § 46 of the code, the persons rightfully summoned have no cause of complaint, but the moment the plaintiff, by amendment, seeks to litigate a question not expressly enumerated in that section, he himself is violating the statute by taking an undue advantage of the defendant, and imposing on the court, and there is nothing that the defendant may have done in the course of the previous stages of the proceeding which can estop him from saying that he is there to litigate the cause of action alleged in the petition which authorized the issue of the summons against him, and none other.
II. The demurrer to the original cause of action was sustained. This was the cause of action to rescind the real-estate contract. It appears that the exchange had been made some time before the action was commenced, and since its consummation Neal had sold a part of the land. In the nature of things, if this contract is to be rescinded, the parties who made it are to be placed with reference to the property in the identical situation in which they were before it was made. The contract must be rescinded in toto, if at all. (Jeffers v. Forbes, 28 Kas. 174.) A party is not permitted to speculate for a time on the probabilities of an advantageous bargain, after he has discovered cause for rescission, but he must act promptly to compel it. He must not only allege that he is in a position to restore all that he has received, but he must show that he is able and willing to place the other party in the exact condition in which he was before the exchange. If he has sold or disposed of a part of the property received in exchange, and then discovers defects in the title of the remainder, his remedy is an action for damages, either for fraud and deceit in the sale, or for a breach of the covenants. (Curtis v. Howell, 37 N. Y. 215.) The amended petition states causes of action entirely inconsistent with each other. One cause of action is based upon the affirmance of the contract of exchange; the other seeks to set aside and rescind the contract for causes which, if well founded, would make it inequitable to enforce it. It is true that the motion to dismiss the second cause of action alleged in the amended petition was heard and sustained before the ruling on the demurrer as to the remaining causes of action was made; but this only emphasizes the fact that the pleader was in doubt as to his remedy, and in his eagerness to avail himself of all, he did not fairly state a cause of action that entitled him to one. As we view the case, there was no error in the ruling on the demurrer.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The questions in this case are similar to those in the case of Kraft v. Baxter, just decided, and under that authority the judgment of the district court will be affirmed. | [
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Opinion by
Simpson, C.:
The material facts as found by the jury iu answer to special interrogatories submitted by both parties, and from the evidence, are as follows: William-.Sadler, a young man, on the 31st day of March, 1885, was employed by the Atchison, Topeka & Santa Fé Railroad Company asa section hand on section No. 5, in Johnson county, at the rate of $1.10 per day. He was employed by the foreman, who had authority from the company to employ and discharge section-men, and he worked under the authority and direc tion of such foreman. Sadler continued in the employment of the company until sometime in .the month of June, when he was ordered by the foreman to use the spike-maul and drive spikes. Sadler objected to this class of work, and informed the foreman of his inexperience, but he was compelled to work with the spike-maul for more than an hour on that day, and on the next day he worked an hour in the forenoon and until about four o’clock in the afternoon, when a spike flew from under the maul when it struck the-spike, and struck Sadler on the left leg, cut the flesh, and fractured the bone; the. wound bled profusely, and produced much pain. Two weeks before this time, Burkett and Ball, two of the section-men, in the presence of Sadler had complained to the foreman of the defective and unsafe condition of the tool, and the foreman told them that the company had promised him new tools for the section, but that they had not come yet. The section gang were engaged in taking up old rails and replacing them with new ones, and the old spikes were used in fastening the new rails. The spike-maul used by Sadler was an old one, worn on the face, aud at one side of the face were “chipped” pieces or a piece broken out. The spike was an old and greasy iron one, about five inches in length, with about a half-inch bent at the top, and very rusty. Sadler struck the spike with the maul, and the spike flew from under the blow and struck him on the leg. When he commenced to work he looked for a moment at the maul, when the foreman called out to him in a loud voice, “ Hurry up; everything is all right,’ ’ and he immediately went to work. Immediately after the injury Sadler’s attention was called to the condition of the maul by Burkett, a fellow-workman, and they examined it and found that it was not only worn out, but was badly rounded and chipped off from the face. He worked for two days after the injury, driving spikes, and thinking the injury was not serious, when the swelling of the limb and the pain compelled him to quit, and place himself in the charge of a physician.
Sadler testified at the trial that he had attempted to examine the maul before he went to work with it; that he “took it up in this shape” (illustrating), and was looking at it; that he saw the edge was a little rounding, when the foreman hallooed out to “ Hurry up; everything is all right; ” that he then went on without further examination; that it was the same maul which he had used in the forenoon, and used in the afternoon from ten o’clock until he was injured, “along in the evening.” The jury in answer to a special interrogatory, found that the plaintiff below knew prior to the accident that the maul which he was using was defective, on account of having been worn around the edges, and on account of having a small piece chipped out of the face of the maul. They also found that the plaintiff below knew at the time he was hurt that the spike he was attempting to drive was old, rusty, and greasy. There is no complaint or allegation in the petition of the defendant in error that the injury was occasioned by the defective condition of the spike. . He bases his right to damages, upon the defective condition of the maul. There were eight mauls among the tools which were for the use of this gang of section-men; and the jury found that there were four mauls in use at the time the injury occurred. The findings of the jury may be formulated as follows:
First: The foreman knew that the maul used by Sadler was defective.
Second: The foreman had promised the section gang in the presence and hearing of Sadler to furnish new and perfect mauls.
Third: Sadler attempted to examine the maul before he used it, but was commanded by the foreman to “Hurry, up; everything was all right.”
Fourth: Sadler was inexperienced in the use of a maul, and in driving spikes, and so informed the foreman before he commenced to use the maul.
Fifth: The foreman gave him no instructions as to its use, so as to prevent injury.
Sixth: Sadler was not guilty of any fault, negligence or want of ordinary care contributing to the injury.
Seventh: The railroad company was guilty of negligence and want of ordinary care in furnishing defective tools and compelling their use.
This case was tried by a jury, with great skill and ability on both sides, and every possible question that could be raised on the state of facts is presented in this record. We want to say in a general way, that we are impressed with the unusual fairness of the trial for a case of this character. The general instructions of the court, and the general verdict of jury, as well as their answers to the special interrogatories submitted by both sides, are all characterized by an absence of passion and prejudice, and a liberal regard for the rights of all, so much to be desired in judicial investigation. We shall not disturb a verdict arrived at by such means, unless there are such grave and material errors as absolutely compel a reversal.
The counsel for the plaintiff in error complain of the admission of the testimony of Burkett; and they say that he was permitted to give his opinion that the spike-maul in use on the section at the time of the accident to Sadler was unsafe. They also complain that the same testimony was given by the witness Weber, over their objection. Both of these witnesses belonged to the section gang; they both testified that they had worked with the mauls; they both described the condition of the maul used by Sadler at the time of the injury, describing its defects, and stating that it was unsafe. We can see no objection to this. If it was expert evidence, the witnesses had qualified themselves for the expression of opinion. They stated to the jury the actual condition of the maul, and on their statement the ordinary, common knowledge of the jury would authorize the conclusion that the maul was unsafe. The testimony of the witness Burkett, that he told the foreman that the tools were unsafe, was admissible for the purpose of proving the knowledge of the company of the defective condition of the maul, if for no other purpose. This was one of the material facts which the plaintiff had to establish, and it could be brought to the knowledge of the company in that manner. We see no objection to it. There is no doubt on the evidence but that the company knew that the maul was defective, and through the foreman had promised to furnish the gang new tools. This promise was made in the presence and hearing of Sadler; and we think he had a right to rely on it under the particular circumstances of the case. He would certainly be bound by any general1 orders or directions given by the foreman to the gang of men with whom he was associated in work on the section. (U. P. Rly. Co. v. Fray, 31 Kas. 739.) And he ought to have the benefit of any promise made by the foreman to the men with whom he was associated. (2 Thompson on Negligence, 1017; Perry v. Picketts, 55 Ill. 234; Parody v. C. M. & St. P. Rly. Co., 15 Fed. Rep. 205.) A sufficient time had elapsed since the attention of the foreman had been called to the defective condition of the mauls in use on the section, for the company to furnish new and perfect tools when this injury occurred; and no attempt is made to explain the delay, or to show that any steps had been taken to replace the mauls. After the defects of the tools have been called to the attention of the company, and a reasonable time has expired within which the company ought to have furnished new or perfect tools, their continued use is gross negligence. (55 Ill. 234.)
It is highly probable that some of the instructions are subject to criticism, but taking them all together they so fairly present the questions raised on both sides, that it is almost impossible that the jury could be misled by them to the prejudice of the plaintiff in error. Taking all the circumstances and facts of the case into consideration, the inexperience of the defendant in error in this particular line of work; his notice to the foreman in that respect; the fact that he was required to work with a defective tool; that he had no sufficient opportunity to examine it; that his attempt to do so was interrupted by the foreman by a command to “Hurry up,” coupled with an assurance that “everything was all right;” the neglect of the company for more than a reasonable length of time to. furnish new tools, after repeated warnings that those in use were defective; the freedom of the jury from passion or prejudice; the evident desire of the court to fully and fairly instruct on all material questions; the verdict of the jury and its approval by the trial court on the motion for a new trial, we are disposed to think that substantial justice has been done, and no error committed that ought in the interests of justice and the due administration of the law to compel a new trial.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The defendant has filed a motion to quash the alternative writ of mandamus, and thereby two questions are raised which go to the sufficiency of the writ. They are as follows: First, that there is a misjoinder of causes of action; second, that the law under which the elections are sought to be called has been repealed; therefore, that the elections, if called, would be void and the bonds invalid.
It appears from the writ that on the 25th day of May, 1887, the petitions of more than two-fifths of the resident tax-payers of Sumner, Roscoe, Albion, Loda, and Bell townships, of Reno county, were presented to the board of commissioners of that county, asking for elections to submit propositions to subscribe to the capital stock of the Kansas Southwestern Railway Company. The • petitions of Sumner, Roscoe, Albion and Loda were duly canvassed, and found sufficient. In the petition of Bell township there was some error, and it was permitted to be withdrawn for correction, but was re-signed and re-filed on May 27, 1887, the date to which the board adjourned. Upon that date the board refused to consider and canvass the petition of the resident tax-payers of Bell township, and refused to fix the date of the elections of the other townships. These proceedings were commenced in this court on June 13,1887; the alternative writ commanding action on June 21, following. We think the motion as to misjoinder well taken. Each township is entitled to a separate election, and the question of the rights of one township is in no wise dependent upon the rights of the others. We do not think the state can join these various and separate causes of action in this proceeding. (Civil Code, §§ 35, 83, 89.) The state, however, will be permitted to file several alternative writs, and an action will be docketed for each of said writs, and the same will be proceeded in without further service. The defendants, however, will have twenty days from this date to make return to said alternative writs. (Civil Code, § 92.) In other cases somewhat similar to this, peremptory writs of mandamus have been awarded against boards of county commissioners for separate elections in sev eral townships. But in these cases no demurrer was filed upon the ground of misjoinder, nor any other objection made therefor. (The State v. Comm’rs of Rush Co., 35 Kas. 150.)
The laws under which the petitions of the several townships were presented, were repealed by chapter 183, Laws of 1887, which took effect July 1, 1887. Section 2 of that chapter contains these clauses:
“Provided, nothing herein contained shall be construed to impair any rights accrued under the acts hereby repealed; provided, that nothing in this act shall affect any aid voted or election pending at or prior to the time when this act goes into effect.”
It was the official duty of the board of county commissioners of Reno county to call the several elections in the various townships. If the board had performed that duty on May 26,1887, or May 27,1887, or on the 21st day of June, 1887, when the alternative writ in this case commanded action, the several elections would have been pending when chapter 183, Laws of 1887, went into effect. Under these circumstances we do not think that the provisions of said chapter 183 prevent this action, or render it nugatory. The rights of the taxpayers of the several townships cannot be defeated by the wrongful action of the board of county commissioners. | [
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The opinion of the court was delivered by
Horton, C. J.:
James M. Bunker, aged thirty-seven, seduced Cecilia Monroe, aged fifteen, in Sumner county, in this state, in 1883. At the time, they were engaged to be mar ried; but soon after, Bunker went to North Carolina, where he remained six months. While he was absent, Cecilia was delivered of a child. Upon Bunker’s return to the state, in the spring of 1884, the father of Cecilia brought an action against Bunker for the seduction of his daughter. Bunker married Cecilia, at Wellington, on May 27, 1884, and the civil proceedings brought against him were dismissed. All the parties lived near Milan, in Sumner county. After the marriage, Bunker and his wife lived about six months at the house of Mr. Monroe, the father of his wife. He had a farm in the neighborhood. Late in the fall of 1884, Bunker and his wife ceased to live together, Bunker remaining at his farm until the spring of 1885. Mrs. Bunker continued to live at her father’s house. In the spring of 1885, Bunker went to Lane county, in this state, to reside. On the 23d day of September, 1885, he obtained a decree of divorce from Cecilia his wife, in the district court of Ness county. In the action, no personal service was made upon the wife. On July 15, 1885, Bunker made an affidavit before Fred. H. Kurtz, a notary public of Ness county, that he was unable to obtain personal service upon his wife, as she was not a resident of the state; and that he had made diligent search to ascertain her whereabouts, but had not been able to find her. On the date of the affidavit, he filed the same in the district court of Ness county, with his petition for the divorce. At the date of the affidavit, his wife was living in Sumner county, where he had left her. On May 13,1887, an information was filed by the county attorney of Ness county against Bunker, charging him with perjury, in willfully, falsely and corruptly making oath to the affidavit of July 15, 1885. (Comp. Laws of 1885, ch. 31, § 148.)
Fred. H. Kurtz, before whom Bunker made the affidavit, was commissioned a notary for Ness county on April 9,1885. He resided in Lane county, and the affidavit was subscribed and sworn to in that county. At that time Lane county, being unorganized, was attached to the.county of Ness for judicial purposes. (Laws of 1881, ch. 99, § 5.) By the provisions of section 134, ch. 24, Comp. Laws of 1885, when an unorganized county is attached to an organized county for judicial purposes, it constitutes and forms one of the municipal townships thereof, and is subject to the same regulations and liabilities as other townships of the county. Its electors are deemed legal electors of the county to which it is attached. The officers of the county to which it is attached have the same powers and perform the same duties in reference to the attached county as they have over the municipal townships of their own county.
The trial of this case was commenced in Ness county, on November 7, 1887. At that time Lane county had been properly organized, the date of its organization being July 15, 1886, one year after the making of the affidavit. The jury returned a verdict of guilty against Bunker as charged in the information, and he was sentenced to be imprisoned in the penitentiary of the state at hard labor for the term of three years. Judgment was also rendered against him for the costs. From the judgment he appeals.
Bunker should have been prosecuted in Lane county, where his offense was committed, not in Ness county. By the common law, the trial of all crimes was required to be in the county where they were committed; it . # J , J • originally carried its jealousy farther, and required that the jury itself should come from the vicinage where the crime was alleged to have been committed. The constitution of the state ordains that the accused shall be entitled to “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The design of this constitutional provision seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witnesses who give evidence before them. The word “district,” like the word “county,” is here used in a restrictive sense, and is intended to designate the precise portion of territory or division of the state over which a court at any particular sitting may exercise power in criminal matters. (Olive v. The State, 11 Neb. 1.) There were no proceedings pending against Bunker in Ness county at the time of the organization of Lane county, on July 15, 1886. After that date, Lane county was no part or portion of Ness county, as a township or otherwise. By the general provisions relating to counties, there must be a district court in each organized county. (In re Wells, 36 Kas. 341.) Bishop on Criminal Procedure says :
“ Where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the state; the trial in the new county.” (Wol. 1, §49.)
In Arkansas, it has been held that—
“ If a new county is formed of territory formerly included in an old county, an indictment for an offense antecedently committed within the territory embraced in the new county may be maintained in the new, under the usual allegation setting out the offense as committed in the new.” (McElroy v. The State, 13 Ark. 708.)
The same doctrine was declared in a New Jersey case, except that while it was held that the trial should be in the new county, it was also held that the indictment should not allege that the offense was committed in the new county, for the reason stated, that “it is seen that at the time mentioned there was no such place as that at which the offense is alleged to have been committed.” (The State v. Jones, 3 Halst. 307.)
In Georgia, also, it has been held that the offender should be tried in the new county, and that the offense might be, or should be, charged as having been perpetrated in the old county. (Jordan v. The State, 22 Ga. 545-555.)
It is claimed, however, that the filing of the affidavit in the district court of Ness county was “ an act constituting, or requisite to the consummation of the offense;” therefore that the jurisdiction of the offense would be in either Lane or Ness county, as having been committed partly in one and partly in another county. (Crim. Code, §§ 20, 23.) Affidavits in judicial proceedings, though touching matters incident or collateral, may be instruments of peijury. (Comp. Laws of 1885, ch. 31, § 148.) Upon the trial of a party on an information for perjury, alleged to have been committed in swearing to an affidavit, it is proper to show that the affidavit was made to be used, or that it was actually used, in a judicial proceeding; and therefore if this case had been tried in a district court having jurisdiction thereof, it would have been competent and perhaps necessary to have shown that the affidavit was filed and used in the divorce case of Bunker «.Bunker, pending in Ness county; but this evidence would have been competent only for the purpose of showing that the facts sworn to were material. To convict a party of perjury, it must be shown that there was an oath authorized by law, an issue or case to which facts were material, and a false statement regarding such facts upon such issue or in such cause. (The People v. Fox, 25 Mich. 492.) Where the oath to an affidavit is required or authorized by the statute, this is made to appear when the purpose for which the affidavit was made is shown. The materiality of an affidavit is sometimes directly averred in an information or indictment; it must, of course, in some way appear.
We think the offense was fully completed in the territory now embraced in Lane county, if peijury was committed by Bunker; and therefore the filing of the affidavit in Ness county did not confer upon the district court of that county jurisdiction of the accused.
The judgment of the district court will be reversed, and Bunker will be returned to the county jail of Lane county, by the warden of the penitentiary, for such further proceedings against him as may be proper.
All the Justices concurring. | [
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Opinion by
Holt, C.:
On September 19, 1883, Jesse C. Crall, the defendant in error, by his son and agent Graham Crall, delivered to the defendant company, at Atchison, Kansas, the following message, leaving out printed matter, etc.:
“To J. B. Smith, Esq., Eureka, Kansas: Ship Bones, sulky and trap to Valley Falls immediately.
Graham Crall.”
The message received by Smith on the same day, at Eureka, omitting printed matter, etc., was as follows:
“To J. B. Smith: Ship Beons, sulky and traps to Neosha Falls immediately. Graham Crolt.”
“Bones” was the name of a trotting horse owned by Crall, and at that time in charge of Smith at Eureka. He immediately shipped the horse, sulky and traps to Neosho Falls, where they remained several weeks before Crall ascertained where they were^ Smith, being only temporarily in charge of the horse, left Eureka, and Crall had no communication from him, nor did he know his whereabouts, until after the horse was found at Neosho Falls, although he made diligent inquiry for him. Trial was had at the February term, 1886, in the Atchison district court, and a jury being waived, the court specially found that the message in the dispatch was very plainly written, in a large, round hand, so that no word in it could have been mistaken for any other word, if examined even with the slightest care; that the weather was fair and pleasant on and during all of the day on which the said dispatch was sent, both at Atchison and Eureka, and that there was no evidence of any electrical disturbance at any place on the line between said points. The seventh finding of fact is as follows:
“There is no similarity in the telegraphic symbols or characters, nor in the sound made by the instrument in forming said symbols or characters, between the words ‘Valley’ and ‘ Neosho;’ and there being no electrical disturbance, the three mistakes in the transmission of said message were the result of the gross negligence of the defendant’s operators, or the gross negligence of the defendant in keeping instruments and appliances that were out of order and not in proper condition for use.”
Crall brought his action against the telegraph company for the expense of keeping the horse, loss of its use, etc.; judgment was rendered for the plaintiff for $136.10, and costs. The defendant company brings the case here for review. For a defense, the defendant relied upon the contract printed above the message sent by Graham Crall. It is as follows:
“THE WESTERN UNION TELEGRAPH COMPANY.
“All messages by this company are subject to the following terms:
“To guard against mistakes or delays, the sender of a mes sage should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination.
“Correctness in the transmission of a message to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz.: One per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No employé of the company is authorized to vary the foregoing.
“No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company’s messengers, he acts for that purpose as the agent of the sender.
“ Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of such delivery.
“The company will not be liable for damages in any case where the claim is not presented in writing, within sixty days after sending the message.”
Immediately above the dispatch, in print, was:
“ Send the following message, subject to the above terms, which are hereby agreed to.”
The defense the telegraph company interposed will require an examination of the legal effect of this contract, to determine the liability, if any, of the defendant to the plaintiff. In the first place it is well enough to consider the circumstances under which such contracts are usually made. The demand for haste and dispatch upon which the business of telegraphy is based virtually compels the sender of a message to accept the terms offered; often he has no choice in the selection of the company to do the work required, and then a single message is of comparatively little interest to the company — simply the remuneration for sending it — while it may be of great importance to the sender. He would probably have his right of action against the company to compel it to make a reasonable contract with him, for to a certain extent telegraph companies are quasi public servants, and owe the public certain duties, as they can exercise the right of eminent domain, and receive franchises. But he does not wish to be forced to compel it to make a fair and reasonable contract; his object is to have his message sent promptly, and he would therefore accept hard conditions at the hands of the company, rather than delay his business and seek redress in the courts. Under such circumstances the parties are not dealing on an equal footing. "When the company has such an advantage, in consequence of the nature of its employment, it can easily dictate terms. It should not, however, be sustained in treating its patrons unfairly and inequitably, and supported in unconscionable contracts made under such circumstances. (Telegraph Co. v. Graham, 1 Col. 230; Tyler v. Telegraph Co., 60 Ill. 421; Gray on Communication by Telegraph, § 48.)
Was the contract itself a valid one? It is not claimed by the defendant in error that the telegraph company is an insurer of a message sent, nor that it cannot make reasonable regulations for carrying on its own business, but it is urged that a telegraph company cannot by contract exempt itself from all ability that may arise by reason of its own negligence in failing to provide suitable instruments, or from negligence of its operators and servants. He cites a long list of authorities that apparently support this contention. However, in disposing of this matter it is not necessary to pass upon the question urged, for in this case it is found by the court that the de fendant company was guilty of gross negligence. The provision in the contract that the company will not be held liable for unrepeated messages, happening by negligence of its servants, beyond the amount received for the sending of the same, is not valid to relieve it from liability against its own gross negligence. It is the duty of the telegraph company, when it receives a message and the money therefor, from the sender, to exercise care and diligence in transmitting it promptly and accurately. No contract should be sustained by the courts which would excuse it from gross negligence or willful misconduct in performing a service undertaken for another for hire. The current of authorities to sustain this principle is unbroken. The interests are many and varied, depending upon the proper performance by it of the work it assumes; and it is against public policy that it should be allowed to stipulate for exemption from the exercise of care and diligence in this duty, which it has voluntarily taken upon itself. This rule does not make the telegraph company an insurer, but it does prevent it from evading its liabilities for its errors arising from gross negligence. (Telegraph Co. v. Griswold,37 Ohio St. 301; Telegraph Co. v. Tyler, 74 Ill. 168; Sweatland v. Telegraph Co., 27 Iowa, 433; Barlett v. Telegraph Co., 62 Me. 209; Telegraph Co. v. Graham, 1 Col. 230; Gandee v. Telegraph Co., 34 Wis. 471; Ellis v. Telegraph Co., 95 Mass. 226; Ayers v. Telegraph Co., 79 Me. 495; same case, 10 Atl. Rep. 495.)
Was the telegraph company guilty of gross negligence? It is so fouud by the court below, and we think the findings are abundantly supported by the evidence in the case. In a message containing nine words besides the address and signature of the sender, there were three mistakes; it was sent over defendant’s own line, on a fair day in which there were no electrical or atmospherical disturbances; and the court especially found that there was no similarity in the sounds, symbols and characters used in telegraphy for the words “Valley” and “Neosho.” There is no good reason, in the absence of atmos pherical or electrical disturbances, why the message should not have been transmitted exactly as it was received. The art of telegraphy has been reduced to comparative exactness and certainty, and it was only by the gross carelessness of the operator, or the culpable imperfections of the instruments and appliances of the company, that such a mistake could have been made in transmitting the message so short a distance upon a calm, fair day.
There is no testimony introduced in this case by the defendant company, and we presume the mere production of the mutilated message would have been sufficient to establish the gross carelessness of the defendant. It would have thrown the burden of proof upon
the defendant, to excuse or explain its mistakes. (Griswold v. Telegraph Co., 37 Ohio St. 301; Rittenhouse v. Telegraph Co., 44 N. Y. 263; Baldwin v. Telegraph Co., 45 id. 44; Telegraph Co. v. Carew, 15 Mich. 525; Telegraph Co. v. Meek, 49 Ind. 53; Turner v. Telegraph Co., 41 Iowa, 458.) The plaintiff did prove in addition, that the weather was favorable for the use of defendant’s wires and instruments.
We believe that the findings of the court are sustained by ample testimony showing gross negligence on the part of the company, and that the contract urged as a defense by the defendant is of no legal force whatever, when it is attempted thereby to relieve the company of its gross negligence.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the state of Kansas, upon the relation of the attorney general, against H. C. Cross, on October 24, 1885, to cancel a certain contract for the sale of seven thousand five hundred and twenty acres of State Normal School lands, at three dollars and fifty cents per acre. The contract was executed July 19, 1884, between H. C. Cross and Nan R. Holmes, the authorized agent for the sale of the lands. The written contract provided that it should not be in force or take effect until indorsed with the approval of the secretary of the board of regents of the State Normal School, duly authenticated with its seal. Upon the date of the contract, the same was approved and signed by H. D. Dickson, secretary of the board of regents, with the seal of the board thereto attached. The sum of two thousand six hundred and thirty-two dollars was paid by Cross; and the balance of the money, twenty-three thousand six hundred and eighty-eight dollars, with interest, was to be paid in installments. The state alleged that the land was sold without any authority of law; and further alleged that the land at the time of the sale was worth five dollars per acre, aud that it could have been easily sold for that amount at that time; that the contract was induced by fraud and bribery upon the part of H. C. Cross.
Cross filed his answer, which contained a general denial; and alleged as a second count or defense, that “on July 19, 1884, in good faith and with the sanction and approval of the board of regents and the land committee thereof, he purchased the lands described in the petition, at the price fixed by the committee, to wit, three dollars and fifty cents per acre; and that thereupon "Van R. Holmes, as agent to sell the lands, executed and delivered to him a written contract, duly signed by him and indorsed with the approval of the secretary of the board of regents, with the seal of the board thereto;” that he paid one-tenth of the purchase-money in cash, and agreed to pay the balance at his option, with interest at seven per cent, per annum, payable semi-annually; that the amount of the purchase-price paid in cash at the date of the contract, less commissions of the agent, was returned by the agent to the treasury of the state and the report of the sale and execution of the contract transmitted to the state auditor, and a copy of the same also delivered to the board of regents; that on January 1, 1885, in accordance with his contract, he paid into the treasury of the state interest amounting to seven hundred and forty-one dollars and fifty-eight cents; that on July 1, 1885, he paid into the treasury of the state the further sum of eight hundred and twenty-nine dollars and eight cents, as interest on the contract; that the board of regents, with full knowledge of all the facts and circumstances connected with and surrounding the purchase of the land and the execution and delivery of the contract, and the payment of the several sums of money into the state treasury, ratified and confirmed the purchase and sale, and also the contract. Cross also alleged that the state of Kansas had not returned or repaid, or offered to return or repay, the several sums of money paid by him upon his purchase and contract, or any part or portion thereof.
The state demurred to the second count or defense of the answer, upon the ground that it did not state facts sufficient to constitute any defense whatever; the demurrer was overruled. The state excepted, and brings the case here.
The first claim made by the state is that the purchase and contract of July 19, 1884, are wholly void, because the sale of the lands at three dollars and fifty cents per acre is in contravention to chapter 189, Laws of 1872, which gave the board of directors of the State Normal School authority to .sell the lands of the Normal School at a price not less than five dollars per acre. In 1877 an act was passed by the legislature to reorganize the State Normal School, and to provide for the sale of its land. (Laws of 1877, ch. 179.) Among other things it was provided therein that the Normal School should be governed by a board of regents, consisting of six persons. The fourth section of that act reads as follows :
“It shall be the duty of the board of regents to sell, or cause to be sold, under the provisions of chapter one hundred and eighty-nine of the Session Laws of eighteen hundred and seventy-two, the lands belonging to said institution, at not less than three dollars per acre; and no appropriation shall be made for this school in the future.”
It is claimed upon the part of the state that this section is void, and in conflict with § 16, art. 2 of the constitution. We do not think the act contains more than one subject. At least, the objects of the act have relation and connections with each other; and therefore we think they .are capable of being united in the same act. (Comm’rs of Cherokee Co. v. The State, 36 Kas. 337.)
The principal contention however is, that said § 4 is amendatory of chapter 189, Laws of 1872, and thereby violates the provisions of § 16, art. 2 of the constitution, which ordains that “ No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.” Several authorities are referred to from Nebraska and other states, fully supporting this claim. On account, however, of the prior decisions of this court, we are unable to follow the authorities cited. At a very early day in the juridical history of the state, in Beach v. Leahy, 11 Kas. 23, it was held that a special law, which was in conflict with a general law, was not therefore necessarily void. Subsequently this court, in Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 77, following Beach v. Leahy, said that §16 of art. 2 was not intended to abolish the doctrine of repeals by implication. (See also Harvey v. Comm’rs of Rush Co., 32 Kas. 159.)
Said §4 provides that lands belonging to the Normal School shall not'be sold for less than three dollars an acre; and while it permits the board of regents to sell the land at this price, under the provisions of chapter 189, it may be treated and regarded as a separate or complete act. Statutes which amend as by implication are not within the provisions of the section referred to. (Cooley’s Const. Lim., 1st ed., 152.)
Again:
“ The mischief designed to be remedied by the constitutional provision cited was the enactment of amendatory statutes in terms so blind that the legislators themselves were sometimes deceived in regard to their effect; and the public, from the difficulty-in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.” (The People v. Mahaney, 13 Mich. 496.)
Said § 4 clearly expresses its purpose, and it cannot be said to have been enacted blindly, nor so inserted in the statute as to deceive the legislators, or the public.
Further, chapter 179, Laws of 1877, has stood upon the statute book over ten years unchallenged. Under its terms the State Normal School has been reorganized, large amounts of school lands have been sold, and contracts executed. Under these circumstances a very strong case indeed should be presented, to authorize this court to strike down the act, or to hold void contracts executed in good faith, within the exact terms of its provisions. Therefore if Cross in good faith purchased the lands from the agent of the board of regents, duly authorized, in strict conformity with the statutes and regulations of the board, paid part of the purchase-money in cash, received his contract, and has since continued to pay as therein required, the contract cannot be canceled or set aside.
The further question is presented, if it be true as alleged in the petition that the contract was procured and obtained by bribery, whether the consideration need to be returned, or tendered by the state, before the contract can be annulled. On the part of the defendant, it is asserted that, even if the contract for the sale of the lands in controversy was obtained by bribery of those having control over the sale of the lands, a court of equity will not rescind the contract, unless the state, seeking relief, shall do equity by paying back what it received on the contract, or at least until it tenders payment before commencing suit. A contract to induce public officers to act corruptly, or to bias them in discharge of their official duties, is against public policy; and such a contract is void.
“It would be going but half the distance required for public security if the courts would but simply deny the aid of their machinery to the corrupt participants. A contract obtained by bribery of those having control over such contracts is obtained by fraud upon the principal; and it behooves the courts to leave the briber where he stands, a/id deny him any benefit from the contract. It is immaterial how small or trifling the bribe was as compared with the amount involved in the contract. Principle accommodates itself only to motives of parties, not to the sum gained by corrupt action.” (Green-hood Pub. Pol. 308, 309.)
In Lindsey v. City of Philadelphia, 2 Phil. 212, Sharswood, J., said:
“ It is important that corrupt contracts with public officers should be sternly repudiated by courts of justice, and that men should understand that in assenting to an allowance to such an officer of part of what they may have a claim for on the public treasury, be that allowance small or great, they absolutely forfeit all their legal rights on the public.”
We think, therefore, upon principle and authority, that if the contract of July 19, 1884, was induced and obtained by bribery of the officials having control thereof, the courts must leave the briber where he stands, and deny him any benefit from his contract. Therefore, if the allegations of the petition be fully established and bribery proved as therein J J r charged, the state will not be required to return or tender the money paid by Cross, in order to have the contract canceled and wiped out. A party ought not to be permitted to induce public officers to act corruptly, and then, when the corruption is uncovered, be allowed to retire from the transaction, with his money returned to him, as if he had acted honestly and in good faith. Such conduct, if tolerated, would sap the condition on which official honesty rests, and legalize temptations which would lead from duty many an official who without such inducements might perform his duty.
The answer contained a general denial, which put in issue the allegations of fraud and bribery. The second defense alleged that Cross made the purchase in good faith and in accordance with the law. The answer therefore was sufficient, and the demurrer properly overruled.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The judgment 'sought to be opened by virtue of the provisions of §77 of the code, was rendered on the 17th day of October, 1881. It was rendered on no other service than by a notice of publication in a newspaper. The three years within which proceedings to vacate are limited, expired on the 17th day of October, 1884. On the 16th day of October in that year, the defendants in the action filed in the clerk’s office a motion, signed by their attorneys, to open the judgment, and be allowed to defend in the action, assigning various causes therefor; and among them are, that the only service made upon the defendants was by publication in a newspaper; that they had no actual notice of the pendency of the suit in time to appear and make a defense. The filing of this motion was all that was done by the defendants within three years from and after the rendition of the judgment. A notice was served on the plaintiff*, Joseph Grubb, at Greencastle, in the state of Indiana, on the 10th day of November, 1884, by registered letter, containing a true copy of the motion filed, and notifying him that said motion would be called for hearing upon the first day of the ensuing term of the district court of Nemaha county, or as soon thereafter as the case could be heard. On the 16th day of April, 1885, an affidavit of Eliza Satterlee was filed for herself and the unknown heirs of Robert Satterlee, reciting that the judgment rendered against herself and her children on the 17th day of October, 1881, was upon no other service than by publication in a newspaper; that during the pendency of this suit neither she nor the children of Robert C. Satterlee had actual notice thereof in time to appear in court and make their defense, and in fact .had no notice of it until September, 1884. On the 26th day of May, 1885, the defendants filed their answer to the original action, but the record does not disclose why the answer was not sooner filed, or that when it was, it was so filed by leave of the court, or in pursuance of some previous arrangement among counsel, or by some order of the court.
Adopting the language of Judge Brewer in Albright v. Warkentin, 31 Kas. 442, we think that when the non-resident defendant seeks to open a judgment and be let in to defend, under the provisions of § 77 of the code, three things are imperatively required by the express terms of the section: First, that the applicant give notice; second, that he file a full answer, and if required by the court, pay all costs, that is, in his answer proffer to pay all costs if the court so require; and third, that he make it appear to the satisfaction of the court by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. We think that the service of the notice, the filing of the answer with a proffer to pay costs if required, and the filing of the affidavit of the want of actual notice of the pend-ency of the action in time, should each and all be done and performed within three years after the date of the judgment, in order to comply with the requirements of that section. The notice should fix a time for the hearing of the application, within the three years. It may be that there will be no term of the court in session at that time, and because of that, the usual declaration in notices of this character ought to be added, “ or as soon thereafter as the same can be heard.” This ruling requires that the parties who seek to open up a judgment, and be let in to defend, must perform every act required of them by the terms of the statute, within the three years. As to matters over which they have no control, such as terms of court that are fixed by law, or no term being held, by reason of the absence or sickness of the judge, or for other reasons, they are not to be held accountable for, but as to all matters that require some affirmative action on their part, they must fully perform within the three years.
It was held in the case cited, “that the application may be made as a matter of legal right, and when a party brings himself clearly within the statute, the court has no discretion in the matter, but must grant the application.” If it is a strict legal right, the party who seeks to exercise it must bring himself clearly and unequivocally within the terms of the statute granting the right. • This has not been done; not one of the three absolutely indispensable prerequisites of the statutes has been complied with. All that was done is, that the day before the limitation expired, a motion to vacate was filed in the clerk’s office; no notice served for more than twenty days thereafter;.no answer filed for months; and no affidavits for weeks; no offer to pay costs ever made; and no averment in the affidavit that was filed of a meritorious defense.
If the other causes assigned for the vacation of the judgment, and so vigorously urged by counsel for plaintiffs in error, are good, and if it is true the court had no jurisdiction, the judgment is void, and can be vacated at any time on motion. We shall not consider them now, because the record does not show that they were ever presented to or passed upon by the court below.
There is no error in the ruling of the court, and we recommend its affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
A. M. Hinsdale brought his action against the Southern Kansas Railway Company, to recover damages for being wrongfully ejected from a freight train. On March 27, 1885, being in the city of Fort Scott and having business to transact that day at Garnett, as a special agent of the Orient Insurance Company, he went over the Fort Scott road in the morning to Iola, and then proceeded to the depot of the Southern Kansas road, where he got aboard the caboose about three-and-a-half o’clock in the afternoon, intending to go to Garnett; he had with him his overcoat and valise; he deposited his overcoat and valise in a seat in the caboose and took a seat near the stove, where he remained a few minutes; then, with another passenger he went up into the cupola of the caboose and stayed until after the brakeman came on the train; and after the train had started and had gone about a quarter of a mile, he suggested to the party with him in the cupola that they go outside, and both of them did, but as it was windy, the party with him went back into the caboose in a few minutes; soon after, it commenced to rain, and he turned to go down into the caboose, when the conductor put his head out of the window and asked him for his ticket; he handed the conductor a silver dollar, but the conductor told him he could not carry him without a ticket, and refused to accept the money; the conductor then told him he must get off, and stopped the train; the train remained standing twenty-five minutes for Hinsdale to get off; Hinsdale told him he did not “get on to get off between stations,” and said “he would not get off until he was put off; ” the conductor then put him off at the place where he had stopped the train, a distance of one and three-quarters miles from the depot at Iola, but in removing him from the train did not use any more force than was necessary. Upon the trial, a verdict and judgment were rendered for Hinsdale for five hundred and twenty-five dollars.
This is another one of the class of cases in which the real struggle is with the findings of fact as returned by the jury. Some of the answers to the special questions submitted are not only against the current of testimony, but the entire evidence. Other answers are not frank, but evasive, and several are not responsive to the questions asked. (U. P. Rly. Co. v. Fray, 31 Kas. 739.) The jury specially found that Hinsdale did not do anything to ascertain what regulations, if any, existed for the carrying of passengers upon the freight trains of the railway company. The evidence shows that the company had a rule or regulation forbidding the conductors of its freight trains to carry on such trains any passenger who had not a ticket, a pass, or a stock contract. It is the duty of a passenger to inform himself of the regulations governing the transit and conduct of the trains, if such rules are reasonable. If a passenger disregards the regulations adopted by a company as to the purchase of tickets, or the running of trains, by failure upon his part to make any inquiries, and such neglect is not induced by the company’s agent having authority in the matter, the company is not liable therefor. (21 Cent. L. J. 253; Rly. Co. v. Nuzum, 50 Ind. 141; Beaucamp v. I. & G. N. Rly. Co., 56 Tex. 239; Logan v. St. L. K. C. & N. R. Rld. Co., 76 Mo. 288.) A railway company has the clear right to make a rule that no one shall be carried as a passenger on its freight trains without tickets, passes, or stock contracts; but in all suck cases the company must furnish convenient facilities to the public for the purchase of tickets, by keeping open the ticket office a reasonable time in advance of the hour fixed by its time table for the departure of the trains. (Rld. Co. v. Rose, [Neb.] 8 N.W. Rep. 213; Rld. Co. v. Nelson, 59 Ill. 110; Rld. Co. v. Bartram, 11 Ohio St. 457; Thompson on Carriers, 377.) In this case the ticket office was open, and the agent at the depot was selling tickets for the train. Hinsdale had ample time and opportunity before the train started upon which he attempted to take passage, to have ascertained that it was necessary for him to purchase a ticket in order to ride.
The conductor testified that after Hinsdale got upon the train and before it started, he went into the caboose and asked “ if all the gentlemen had tickets; ” there was one person in the car who said that “he did not have any ticket,” and the conductor then “told him it was a necessary article to have to ride upon the train;” after that, the train remained at the station for from twenty to thirty minutes; the party who said he was without a ticket subsequently went and got a ticket, and rode upon the train. One of the brakemen testified that Hinsdale and another passenger were up in the cupola of the caboose before the train started, and that he said loud enough for them to hear, “All must have tickets to ride upon this train.” This was also corroborated by the evidence of another employé. Upon this matter Hinsdale testified:
“ Ques.: Didn’t you hear the brakeman make a statement that no passenger could ride upon that train without first getting a ticket, or in substance that ? Ans.: I don’t know that I did.
“ Q,. Do you know that you did not ? A. I have no knowledge.
“Q. Do you swear you did not ? A. I did not, to the best of my knowledge and belief.
“Q,. You don’t pretend to say that he did not say it ? A. I do not.
“Q,. And in your presence? A. Possibly he might have done so.
“ Q. And within three feet of where you stood ? A. I wouldn’t hear all he said-
“ Q,. Do you pretend to deny that the conductor informed the passengers present that they must procure tickets ? A. No, sir; I don’t deny that, but I did not hear him.
“Q,. Did you hear any remark about tickets at all? A. I am satisfied I heard no remark about tickets; if I did, it entirely slipped my memory.”
The jury specially found that Hinsdale had no knowledge that it was necessary for passengers to have tickets to be carried upon freight trains. If Hinsdale was prevented from hearing the announcements of the conductor and brakeman, on account of being in the cupola of the caboose, a place intended only for trainmen, then his want of knowledge was the result of his own fault or conduct. If the conductor or brakeman, or both, went into the caboose after all the passengers were aboard, and announced, loud enough for all the passengers to hear, that it was necessary for all persons who desired to ride upon that train to procure tickets 1 before it started, and in ample time for all wishjng to rpje £0 procure tickets, then sufficient publicity was given to the rule of the company; and reasonable facilities having been afforded for compliance therewith, any passenger neglecting so to do might be ejected from the car in a proper place and manner. In the absence of a statute regulating this matter, there is no requirement at common law to eject any person who shall fail to comply with such a reasonable regulation at one place rather than another. The convenience of the party is not to be consulted, but the law never permits one to wantonly expose another to injury; therefore no one should be ejected while the car is in motion, so as to endanger his life, limb, or person.
Several witnesses testified that they did not hear the announcements of either the conductor or brakeman concerning the necessity for the purchase of tickets. Such evidence, being of a negative character, is not estimated so highly as testimony of one who swears positively that a statement was made, or something done. (K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kas. 702.) In any event, if the failure to hear the announcements on the part of Hinsdale was his own fault, either on account of being in the cupola or engaged in telling a story to a fellow-passenger, the company was not negligent in giving publicity to its regulations concerning the purchase of tickets for that teain; and this view of the case seems to have been wholly disregarded by the jury in their findings. The jury found specially that the plaintiff, in the use of ordinary care and caution, could not have ascertained that he was required to purchase a ticket before being carried upon a freight train. This finding is without any evidence for its support, and is also against the positive evidence of the conductor and brakeman. If Hinsdale had applied at the company’s office for a ticket, and found it closed, or if he had made inquiries of the conductor or brakeman and got no answer, or if he had been induced by the ticket agent or conductor to take the train without the purchase of a ticket, he would have been excusable for being upon the train without a ticket. None of these things occurred. After the train stopped and he was notified by the conductor to leave, he should have submitted for the time being. The fact that he caused himself to be ejected from the car, can add nothing to his cause of action. A party will be entitled to as much damage for any wrong or injury quietly endured as if he violently resisted. (Rld. Co. v. Griffin, 68 Ill. 499; Rld. Co. v. Connell, 112 id. 295. See also S. K. Rly. Co. v. Rice, ante, p. 398.) Where a party upon a train is explicitly informed by the con- *• 1 . . J ductor that he cannot retain his seat and must leave the car, he then knows that he cannot proceed longer upon the train, but must leave, and resort to his legal remedy the same as though he had been ejected.
“ If, after this notice, he waits for application of force to remove him, he does so in his own wrong; he invités the use of the force necessary to remove him, and if no more is applied than is necessary to effect the object, he can neither recover against the conductor nor company therefor. This is the rule deducible from the analogies of the law.” (Townsend v. Rld. Co., 56 N. Y. 295; Hall v. Rld. Co., 15 Fed. Rep. 57.)
It is contended on the part of Hinsdale that he was properly in the caboose without a ticket, because the railway company had not published in the station house, or caboose, the regulation requiring passengers to provide themselves with tickets before entering the car of a freight train; and also that it was usual for the company to carry passengers on its freight trains without tickets, notwithstanding the existence of the rule to the contrary. If the railway company gave the actual notice of the regulation in the caboose, as testified to by the conductor and brakeman, then actual notice was brought home to the passengers before the train left the station; and the alleged excuses for Hinsdale’s continuance on the train without a ticket will not avail. If Hinsdale had used this train often, before and after the adoption of the rule as to the purchase of tickets before entering the caboose of a freight train, without objection for want of a ticket, then of course he would be excusable for not having provided himself with a ticket, if no announcement was made by the conductor or brakeman, as testified to. [Railway Co. v. Greenwood, 79 Pa. St. 373.) But a single instance of fare having been accepted by a conductor in violation of this rule would not justify a person in disregarding the same, if previous notice thereof had been given by posters in the station house.
Four hundred dollars of the judgment seems to have been given for the use of the words “bummer” and “beat” by the conductor, as damages for injury to Hinsdale’s feelings; and one hundred and twenty-five dollars for injury for the use of the words “bummer” and “beat,” by the conductor to Hinsdale, on account of bringing him into ignominy or dis grace. This is not an action for slander or libel; and the jury attempted to aggravate the damages for the use of the words “bummer” and “beat.” Even if Hinsdale was rightfully expelled from the train, the conductor had no right to treat him in a malicious or insulting manner; but if it be admitted that the conductor used the language alleged by ° 0 ° J Hinsdale, while he might recover on account of the words for injury to his feeliugs, he cannot, jn ail ac(-i011 0f this kind and upon the pleadings filed in this case, also recover damages because the words tended to bring him into ignominy or disgrace. As we read the record, however, it is very doubtful whether the conductor used any severer language to Hinsdale than that “ if he was not trying to beat his way and was a gentleman, he would get off.”
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action in the nature of quo warranto, brought originally in this court on November 16, 1887, by J. E. Rule, under article 29 of the civil code, against J. H. Tait, to oust him from the office of treasurer of Sherman county, and for damages. Rule claims that he, instead of Tate, was and is entitled to the office. On November 1, 1887, Tait surrendered the office to Rule, and Rule is now holding the same; hence the only questions now to be determined are: What amount of damages shall be recovered, if any? and, Who shall pay the costs of the suit? We think the evidence introduced on the trial clearly establishes Rule’s right to recover. The town of Eustis was designated as the temporary county seat of the county; three county commissioners were appointed, Rufus R. Edwards, Lemuel J. Gandy, and O. D. Dickey; and J. H. Tait was appointed county clerk. "The first election held in that county was held on November 8, 1886. Rule and Tait were opposing candidates for the office of county treasurer, and Rule received a majority of the votes. .A partial canvass of the returns was had on November 12, 1886, but no legal canvass was made with respect to the office of county treasurer. Tait, who was the county clerk at the time, and Edwards, one of the county commissioners, examined the returns and found that Rule was elected treasurer, and Tait made out a certificate of election for Rule, but never delivered it. Tait and Edwards also declared Eustis to be elected the permanent county seat of the county, while the other two commissioners declared that Sherman Center was .elected the permanent county seat of the county; while in fact no place received a majority of the votes cast, and therefore no place was elected the permanent county seat of the county, and Eustis remained the temporary county seat. These other two commissioners went to Sherman Center and attempted to complete the canvass, and to institute the county government at that place. Rule filed his bond there with their county clerk, who was not the county clerk, and attempted to do business there as county treasurer, and attempted to draw his salary there; but for the purposes of this case, and for reasons which we need not state in full, we think we should treat everything done at Sherman Center as a nullity. The new county commissioners who were elected at that election, and who were in favor of Eustis as the county seat, carried on the county government at Eustis. On November 22,1886, this new board of county commissioners declared the office of county treasurer vacant, and appointed Tait to fill the vacancy. On December 13,1886, Tait qualified, and on January 1,1887, took possession of the office. On April 25,1887, the full returns of the election held on November 8. 1886, were canvassed by the board of county commissioners in pursuance of a mandate of the supreme court, when it was found that Rule was duly elected to the office. This was the only legal can vass for that office. On April 30,1887, Rule filed his bond at the proper place and with the proper officer, and attempted to qualify for the office. The bond was sufficient, but the county board refused to approve the same. Afterward, and on November 7,1887, the board did approve the same in pursuance of a mandate from the supreme court. On November 10, 1887, Rule demanded the office of Tait, but Tait refused to surrender the same to him, when on November 16,1887, Rule commenced this action to obtain the office from Tait, and for damages as aforesaid, and on November 21, 1887, Tait surrendered the office to Rule. It appears that the salary for this office during the time Tait held the office, was at the rate of $>700 per annum. We find that Rule was in strict right entitled to the office from and after April 30, 1887, when he tendered his bond to the county commissioners and attempted to qualify, and we find that his failure to obtain the office was the fault of Tait as well as the fault of the county board. If a proper canvass of the election returns had been made on November 12, 1886, and if Rule had properly qualified at any time thereafter, and within twenty days after receiving official notice of his election, he would have been entitled to take possession of the office upon such qualification. This, it will be remembered, was not a general election, but was the first election held in the county — a special election — and county officers elected at such an election may qualify and take their offices immediately. We find all the facts necessary for Rule to recover, in his favor, and in addition to awarding him the office which has already been surrendered to him, it is our opinion that he should recover from Tait the whole amount of the salary due the office, and which Tait has received, from April 30, 1887, up to November 21, 1887. We have not stated in detail all the facts which we find to be true, nor do we think that it is necessary.
The judgment of the court will be in favor of Rule, and against Tait, for the possession of the office, and also for $389, and the costs of suit.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
According to the allegations of the petition, the plaintiff was not entitled to the relief prayed for. He does not ask to set aside the contract and the proceedings under which the defendant obtained the land, but he virtually seeks a confirmation of these by asking for the difference between the price paid by the defendant for the land at the judicial sale, and the sum which it is alleged to have been then actually worth. From the allegation concerning the bona fide character of the indebtedness, we must assume that the original transaction between Leavitt and Files was free from fraud or unfairness. Leavitt borrowed $975 from Files on December 1,1881, more than two years before he was adjudged to be insane. He then gave a note payable in one year from date, with interest at 10 per cent., and executed a mortgage upon a tract of land which he owned, to secure the payment of the money. Default being made, the mortgage was foreclosed in May, 1883, and the land was not sold under the decree of foreclosure until January 24, 1884. Leavitt was not adjudged to be of unsound mind until all these proceedings had taken place, nor until May 16, 1884. The proceedings to recover the money, and for the foreclosure as well as in selling the property to satisfy the debt, appear to have been orderly and deliberate. There is no allegation that Files took or sought to take any advantage of Leavitt in any of the proceedings. The sale was not made for more than eight months after the order directing the sale had been made. It was then duly advertised and the land sold to the defendant Files, but there is no intimation that he attempted to stifle competition, or that the sale was not openly and fairly conducted in all respects. There is an allegation that Leavitt was insane and utterly incapacitated to make a contract, and that the defendant had knowledge of his incapacity; but this averment is coupled with one alleging the fairness and good faith of the defendant. Generally speaking, the contract of one insane is invalid, for the reason that the rational consenting mind is lacking. The rules respecting such contracts and the liability thereon, were quite fully considered and stated in Gribben v. Maxwell, 34 Kas. 8. That was an action to set aside a conveyance made by an insane person before an inquisition and finding of lunacy. The party with whom he dealt had no knowledge of his incapacity, and made the purchase in good faith and for a reasonable consideration, and it was decided that before the conveyance could be set aside, the consideration received must be returned, or offered to be returned. The result of that consideration and the authorities there cited is, that a contract made as this one was may be set aside if the parties can be placed in statu quo; but where it is entered into in good faith and without taking advantage of the lunatic, there should be a tender or an offer to restore the amount paid. It would be inequitable and un just to allow him to recover the property and to retain the price paid by the purchaser besides. No offer to return the amount paid by the defendant was made. Indeed, as has been stated, the plaintiff does not repudiate the contract, or seek to have it set aside. He attacks the contract on account of his ward’s incapacity, but does not ask that it be annulled. He both repudiates and confirms. He would have the contract and proceedings held sufficient to give the defendant a good title to the land, but too defective to relieve him from liability to Leavitt’s estate. In effect, the plaintiff asks the court to modify the contract of purchase made by the defendant, by requiring him to pay $1,150 more than he agreed to pay, and when the contract is so modified, to enforce it. He seeks to compel the making and enforcement of a new and entirely different contract from that made by the parties, and this although the contract has been fully executed. This-cannot be done. No obstacle seems to lie in the way of a redemption of the land, as it was sold to, and so far as the record shows, is yet owned by, the defendant. This is the plaintiff’s remedy, and in such an action the rights of the insane person may be fully protected without doing injustice to the defendant, who confessedly dealt fairly and in good faith with him.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Jesse McFarland was prosecuted upon an information, under § 35 of the crimes act, charging him with taking away Joanna Green, a female under the age of eighteen years, without the consent of her mother, for the purpose of concubinage. He was convicted and sentenced on October 10,1885, to the penitentiary at hard labor for the term of five years. He filed his appeal in this court on December 8, 1886. It was assigned for hearing at the March session of the court for 1887; then continued to the May sitting, and again to the July sitting. On July 7, 1887, the appeal was dismissed upon motion of the attorney general, for want of prosecution. Subsequently, new notices of appeal were served; and the appeal was again filed in this court, on October 11, 1887.
We cannot, however, consider the alleged errors, because the only certificate attached to the record is as follows:
“State of Kansas, Cherokee County,ss. — I, J. A. Whitcraft, clerk of the district court within and for the county and state aforesaid, in the eleventh judicial district of said state, hereby certify that the foregoing and annexed pages contain a true, correct, full and complete copy of all journal entries in the case of The State of Kansas, plaintiff, against Jesse McFarland, defendant, No. 828, as the same appears on file and of record in my office.
“ In testimony whei’eof, I have hereunto set my hand and affixed the seal of said court, at my office, in the city of Columbus, in said county and state, this 3d day of November, 1885.[ J. A. Whitcraft, Clerk District Court.
[Seal District Court.] By L. A. Vincent, Deputy.”
The certificate of the judge to the bill of exceptions is as follows:
‘•'State of Kansas, Cherokee County, ss. — I, George Chandler, judge of the eleventh judicial district of the state of Kansas, do hereby certify that the foregoing and attached copy of the testimony is all the testimony introduced upon the trial of said cause, and that the same contains all the objections, together with the ruling of the court, and the exceptions thereto. I do further certify that the foregoing and attached copy of the instructions given by this court upon the trial of the case of The State of Kansas v. Jesse McFarland is true and correct; that such instructions were given by the court upon such trial, and each and every one of the same was excepted to by the defendant at the trial; that the instructions hereto attached and forming a part of this bill of exceptions are the instructions asked for by the defendant and refused by the court, and to which ruling of the court the defendant at the time excepted, and excepts; and inasmuch as the above and foregoing does not otherwise appear of record, the same is by the court allowed and directed to be made a part of the record herein. Geo. Chandler, Judge.
“Filed Oct. 13, 1885. — J. A. Whitcraft, Clerk District Court.
“Attest: J. A. Whitcraft, Clerk District Court.
[Seal District Court.]”
There is no certificate of either judge or clerk that a full transcript of the case is in this court; and, by the most liberal construction, there is no reference, in the certificate of the clerk or of the judge, to any copy of the information, or of the motion for a new trial. (Shumaker v. O’Brien, 19 Kas. 476; Whitney v. Harris, 21 id. 96; The State v. Lund, 28 id. 280; The State v. Nickerson, 30 id. 545; The State v. Cash, 36 id. 623.) As there is no certified transcript of all the record filed in this court, no question relative to the errors alleged is presented for review.
Again, as the case was dismissed July 7, 1887, and never reinstated, and as the case under the new notice of appeal was not filed within two years after the judgment was rendered, the appeal was not taken within the time prescribed by the statute. (Crim. Code, §§ 282-284.)
As the judge has certified that all of the testimony introduced upon the trial of the case is preserved in the bill of exceptions, we have taken the trouble to read the same. Under the authority of The State v. Hughes, 35 Kas. 626, and The State v. Walker, 36 Kas. 297, there was a “consensual” marriage between McFarland and Joanna Green, in October, 1884; and at the date of McFarland’s conviction, Joanna McFarland (formerly Green) was his lawful wife, with all that the term implies. McFarland could not on December 10, 1884, or at any time after the marriage ceremony at Carthage, Missouri, sell or deed away his homestead, without the consent of his wife Joanna. If he has sold or deeded away any other of his real estate in Kansas since his marriage with Joanna, then, if she shall survive him, one-half in value of all such real estate will descend to her. This, however, is mere dictum.
We cannot upon the record, as it is presented to us, interfere with the verdict of the jury, or the judgment of the trial court; and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendant in error brought this action against A. H. Rogers, to recover possession of lot number 243 on- James street, Kansas City, Kansas. The plaintiff claimed title as assignee of the Mastín Bank of Kansas City,. Missouri; the defendant claimed title under a tax deed. Judgment was rendered for the plaintiff for the possession of the lot, subject to the payment by the plaintiff of the amount of $152.09, a lien for taxes upon the premises.
Plaintiff in error says that the petition does not state a cause of action; that there was not sufficient evidence introduced to sustain one, and that the deed from the Mastín Bank to plaintiff was not competent evidence in the case. He claims that because the Mastín Bank was incorporated under the laws of the state of Missouri, and doing business in that state, the petition must have averred and the evidence shown that the bank had the power under the statutes of that state to make assignments of real estate for the benefit of its creditors, and that it was necessary to aver and prove that such assignment had been duly recorded, as provided by § 1, ch. 6, Comp. Laws of 1879. His brief is elaborate, and probably his claim is correct in regard to the law of assignments, but we think he is concluded by the pleadings in this case. The plaintiff avers that he is the duly-qualified and acting assignee of the Mastin Bank, and that averment is not denied under oath by the defendant. We believe that averment to mean that all necessary steps have been taken by plaintiff under the laws of Kansas to authorize him in a court of Kansas to bring his action as an assignee of the Mastin Bank of Kansas City, Missouri. There is no evidence whatever- in regard to the assignment, nor was there any evidence offered of the laws of Missouri concerning assignments for the benefit of creditors. In the absence of such testimony, it is to be presumed that the laws of Missouri are similar to our own; and it is to be presumed under such averment, that the necessary steps to make the assignment valid under the laws of Missouri were taken, and also that all steps necessary under ch. 6, Comp. Laws of 1879, were fully complied with to make it a valid assignment in this state.
It is further objected that the deed under which Coates held as grantee was improperly admitted in evidence. It was admitted in the trial that the title to the real estate in question was in D. E. James, deceased, and that Jenny James was the duly-appointed administratrix of his estate; that the deed was made by her to Thos. J. Bigger and Margaret A. Bigger his wife; from Bigger and wife to Jno. J. Mastin, and from Jno. J. Mastin to this plaintiff. In the deed from Jno. J. Mastin and wife to the plaintiff it is recited:
“Said property was conveyed to me in part settlement of the large indebtedness of said Bigger to the Mastin Bank, . . and said indebtedness was due to said bank and not to me; but being cashier thereof, the deed was taken by me in my name for the use and benefit of said bank, and which property I acknowledged to hold and to have at all times held in trust for said bank and for its use and benefit, to which it belongs.”
The deed of itself is no proof of the assignment of the Mastín Bank to Coates, yet if that assignment is admitted by the pleadings, this certainly is proof that the title and interest of the bank was in reality conveyed to this plaintiff. That being the case, it was competent evidence.
In regard to the tax deed under which defendant claims, we will state that it seems to be substantially like the one declared to be invalid in the case of Cable v. Coates, 36 Kas. 191.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This proceeding springs up for review a judgment rendered in an action brought by C. A. Leighton against Elias Smith to recover the value of certain grass which Smith cut and carried away from the premises of Leighton. On July 10, 1883, and for some time prior thereto, one V. Lillard owned a quarter-section of land in Lyon county, which on that day he sold and conveyed by warranty deed, without reservation, to C. A. Leighton. Before that time he had leased the land to Elias Smith for the year 1883, and Smith had sub-let it to A. Hill, who was in possession before the sale of the land, and in May, 1883, Lillard made a verbal sale of some grass growing on a certain meadow of the premises, for $65. About the last of July or the first of August, 1883, Smith cut and took the grass from the ¡premises; and subse quently, when Leighton demanded compensation for the grass, Smith stated that he was ready to pay for the same as soon as he learned to whom payment should be made. Trial at the April term, 18'86, when Leighton recovered $75.78, which is the amount Smith agreed to pay for the grass, together with 7 per cent, interest. The defendant brings the case to this court.
The first error assigned here is the admission in evidence of the record copy of the deed from Lillard to Leighton, conveying the premises upon which the grass grew. The original deed was admissible in testimony for the purpose of showing whether there had been any reservation made by Lillard when the land was conveyed. The copy of the deed was not the best evidence, and was not admissible unless a proper foundation was laid for the introduction of secondary evidence. Only a general objection, however, was made to the introduction of the copy. If the original deed was not in the possession or control of the plaintiff, the record copy could be introduced in evidence, and being admissible under certain circumstances, a general objection was not available for purposes of error. It has frequently been held “that where evidence is apparently admissible for any purpose, or under any circumstances, the court does not err in admitting the same, unless the reasons for its exclusion are given by the party objecting.” (Ferguson v. Graves, 12 Kas. 43; Botkin v. Livingston, 16 id. 41; Cross v. National Bank, 17 id. 336; K. P. Rly. Co. v. Cutter, 19 id. 83; Humphrey v. Collins, 23 id. 549.)
It is next contended that the court erred in excluding evidence offered by Smith, and also in directing the verdict in favor of Leighton. We think the result reached is substantially just and correct. Smith claimed the right to the grass by virtue of a parol agreement with Lillard, by which he was to pay $65 for the grass when cut; and also claimed that the purchase-price of the grass was for the rent of the meadow land on which it grew. The land upon which the grass stood was conveyed to Leighton subsequent to the parol agreement, and while the grass was yet green and growing. It is stated that the grass was growing on an inclosed and cultivated meadow; but it does not appear whether it was an annual or perennial growth. It is a general rule that growing grasses, whether wild or cultivated, are a part of the land, and require an agreement in writing for their sale and severance from the land. Smith contended that this agreement is within some of the exceptions to the general rule, and sought to bring it within the claimed exceptions by offering to show that Leigh-ton knew of his lease upon the land, and of the sale of the grass prior to his purchase of the land; which offer was refused. However, as the case comes up, we need not examine the sufficiency of this contention, or the competency of the testimony. In the deed of conveyance from Lillard to Leigh-ton there was no reservation of the grass, or exception of any kind. In such a case, and as between grantor and grantee, it is well settled here that the growing crops pass to the grantee. (Garanflo v. Cooley, 33 Kas. 137; Chapman v. Veach, 32 id. 167; Babcock v. Dieter, 30 id. 172; Smith v. Hague, 25 id. 246.) When the conveyance was made and delivered, it carried with it the right to the crops and to collect all unpaid rents; in other words, Leighton was substituted as owner and landlord in place of Lillard. There being no reservations, Lillard from that time forth had no claim upon the crops or the rent due from the tenants. Smith had not paid for the grass, and whether the amount agreed to be paid is treated as the purchase-price of the grass, or as rent-money for the meadow, is immaterial. Smith was owing the price of the grass to some one, and he refused to pay only because he did not know to whom it was due. The amount found by the jury as the value of the grass is the same as that which Smith had agreed to pay for the same, with interest to the time of judgment, and the payment of this judgment will discharge Smith from all liability for the grass.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
In November, 1884, M. S. Burson and C. H. Griffin were in partnership, in Garnett. Griffin sold his interest to one C. M. Rogers, son-in-law of Burson, for $7,450, receiving in payment therefor the sum of $2,300 in cash, $500 to be paid in thirty days, a note, secured by mortgage on the stock for $1,850, and the assumption of the payment of $2,800 debts due by the firm of Griffin & Bur-son. G. J. Rogers, the father of C. M. Rogers, advanced to his son the sum of $1,000 in cash,, which was a part of the $2,300 paid for the goods, and agreed to let him have in addition the money to meet the payment of $500 within thirty days; he took a note from his son for $1,500 secured by mort gage upon the goods in question. The father turned over to his son a note amounting to $594, which was collected; $500 hereof was applied on the payment of the $500 due Griffin *n thirty days, and a note was given by the son to the father for the $94 excess.
In January, 1885, some of the creditors of C. M. Rogers, which was the title of the firm of Rogers & Burson, pressed their claims for payment, when Rogers sold his stock of goods to one Carey. The circumstances of the sale were as follows: Newton, a partner of G. J. Rogers in another business in Garnett, went to a bank in that city and told the assistant ■cashier that he would like $1,250 for a short time, and asked him to bring it down to his place of business, which he did; Newton handed the money over to Carey, taking his note for $1,250 indorsed by G. J. Rogers; Carey turned the money ■over to C. M. Rogers, who handed it to G. J. Rogers, his father, who credited it upon the note held by him against his son for $1,300 for money advanced to him some three years before, for which a note was given which was not due until five years from the date of the note; G. J. Rogers, having indorsed the amount on the note against C. M. Rogers, handed the money back to Newton, who in turn gave it back to the •assistant cashier; no note was given to the bank for the money. Carey took possession and proceeded with the business for a short time, and when creditors threatened him he turned the goods back to C. M. Rogers. In the meantime, Griffin pressing his claim under his mortgage and threatening to foreclose it on the stock of goods for a balance of $900 remaining unpaid, G. J. Rogers bought the note and took an assignment •of the mortgage, giving his note for $900. Griffin, while Carey was in possession of the goods, also brought suit against C. M. Rogers for $900 balance due on debts assumed by C. M. Rogers when he bought the goods, and in that action garnished G. J. Rogers. Shortly after, G. J. Rogers took possession of the goods, C. M. Rogers consenting. G. J. Rogers sold the goods to Griffin for $3,300, who gave a note to G. J. Rogers for $1,500, amount of first mortgage, surrendered his note against Rogers for $900, given to pay for note and mortgage assigued, and the release of the claim in suit, wherein he was garnishee.
Rogers had indorsed a note at the bank for his son for $500, which he had been compelled to pay, and also gave his note for $43 and at another time for $44 for overdraft of C. M. Rogers, and held his sou’s note for $94 excess over $500 in the note given his son, in December. The firm of C. M. Rogers had turned over to G. J. Rogers certain accounts which had been partially collected, but there was still due G. J. Rogers $124 on these accounts. In January the plaintiff in error obtained a judgment in a justice’s court against C. M. Rogers and M. S. Burson, and served G. J. Rogers with a garnishee summons; he answered that he was not indebted to the firm for any amount; the case was brought in the district court on the judgment of the court below against C; M. Rogers, M. S. Burson, and against G. J. Rogers, because his answer as garnishee was not satisfactory. The district court found the facts substantially; findings nine, ten and eleven are as follows:
“ 9. About February 13,1885, the creditors of C. M. Rogers were pressing for payment, the firm still being insolvent, the creditors threatening said Carey with suits, and said C. H. Griffin having already brought suit, on February 5, 1885, garnished said G. J. Rogers on a claim for $900 (about) balance due on debts assumed by C. M. Rogers when they bought the stock (and which they had' failed to pay.) Carey becoming alarmed, voluntarily turned back the stock to C. M. Rogers, with the accounts accruing while so in his possession, and received from C. M. Rogers his $1,250 note above referred to. Thereupon G. J. Rogers erased the indorsement of $1,250 credit on said $1,300 note; immediately thereafter C. M. Rogers, being in possession of the said stock, gave up the same on demand of- G. J.. Rogers, mortgagee, under his said mortgage, to wit: the $1,500 mortgage made to him, and.the-balance of the $1,850 mortgage so assigned to him; which mortgages were then valid and subsisting liens on said property.
“10. After so obtaining possession, G. J. Rogers, mortgagee, sold said stock at private sale to C. H. Griffin (whose suit against C. M. Rogers for $900 was still pending as afore said,) for a consideration of $3,300, paid as follows, viz.: by the release of the said claim so in suit for $900, and upon which said G. J. Rogers had been garnished; by the surrender of said note for $900, given for G. J. Rogers for the balance of said $1,850 mortgage, and by giving his promissory note to G. J. Rogers for the balance, $500 being the sum due on said G. J. Rogers’s mortgage. Thereupon G. J. Rogers released said mortgage and gave possession of the stock to C. H. Griffin, who has since held the same. Griffin received with the goods as a part of the purchase, the accounts accruing during said Carey’s possession, and said sum of $142.91 net proceeds of his sales. The said consideration of $3,300 was the fair value of the property, effects and moneys received by Griffin therefor, and the sale was made with the consent of C. M. Rogers, mortgagor.
“11. Of the notes and accounts so turned over to G. J. Rogers as collateral security, he has collected altogether the sum of $560, but has rightfully paid out of the same for said firm the sum of $90, leaving $470 applicable to the claims for which he received said notes and accounts as security, leaving the firm now indebted to him in the sum of $124, for which he holds the balance of said notes and accounts as security.”
Judgment was rendered in favor of the plaintiff, against C. M. Rogers, M. S. Burson, and in favor of G. J. Rogers for costs. The plaintiff company brings the case to this court.
The plaintiff complains of the judgment in favor of G. J. Rogers, and says that both the turning over of the stock of goods by C. M. Rogers to his father, and the sale by his father to Griffin, were fraudulent. His other objections being incidental to those named, we shall briefly consider them all without specifically naming them. G. J. Rogers took possession of the goods under two mortgages, one given to him by C. M. Rogers for $1,500; when it was executed, only $1,000 was advanced thereon. Under some circumstances that might be a badge of fraud, but it is shown that very shortly afterward the remaining $500 was paid to his son by a note, which was soon collected and the proceeds applied in payment of the goods. The other mortgage was made by C. M. Rogers to Griffin for $1,850, but payments had been made thereon un til the balance remaining unpaid was $900; he then assigned ■ it to G. J. Rogers, who paid full value for it. The goods were taken possession of under these mortgages by the consent of C. M. Rogers. G. J. Rogers then sold them to Griffin for $3,300, which sum the court found to be their true value. Griffin paid for them by executing his note tó G. J. Rogers for $1,500, surrendering a note for $900 which he held against Rogers, and releasing him from his liability of $900 as garnishee in an action against C. M. Rogers. We perceive no fraud in these transactions which has hindered, defrauded or delayed plaintiff in the collection of its debts. G. J. Rogers and Griffin were more alert and active than the plaintiff, and although one was the father and the other a party to both the sale and repurchase, we cannot say that they did not protect themselves in a legitimate way. The scheme of selling the stock of goods to Carey did not affect this plaintiff. We believe, beyond all question, that it was a mere sham, and in the fraud both C. M. Rogers and G. J. Rogers participated. It was a very silly and dishonest transaction, but it was also a harmless one. Its consideration might be entirely left out of the decision of this case, so far as its legal effect on this plaintiff is concerned. By it no part of the goods was taken out of the stock; no money or property of the firm of C. M. Rogers was placed beyond the reach of this plaintiff; the goods were turned back by Carey, the indorsement on the note was erased, ■everything was placed in the same condition it was before the sham sale, and no one was injured or defrauded.
We think that all the findings of the court below are sustained by the evidence, and that the conclusions of law are ■correct. We therefore recommend that the judgment of the ■court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was tried by a jury, in the Cherokee district court, at the April term, 1885. There was a verdict in favor of plaintiffs below, defendants in error, for $5,000. The court overruled a motion for a new trial, upon the condition that the plaintiffs would remit all of the verdict in excess of the sum of $1,187.41; plaintiffs consenting, a judgment was rendered for such amount.
This action was based upon the following alleged facts: John N. Miller died, in Cherokee county, Kansas, in August, 1882, leaving as his heirs his widow, Mary V. Miller, defendant, and Mary E. Edgerton, his adopted daughter, one of the plaintiffs. The day before his death he attempted to make his will, but before it was completed he was taken with a chill, and never signed it. He left property to the value of between $10,000 and $20,000. By the terms of his proposed and partially-completed will, he left $300 to his adopted daughter; $1,000 in money, and his homestead, and all his personal property excepting his moneys and credits, to his wife; also small bequests to other relatives and friends. In that part of the will, the last he was able to dictate, he left all the residue of his property to his wife. At the time of his death, his adopted daughter was about to be delivered of a child; and about the first of September following the widow went to her home, carrying with her the paper partially prepared as the will of John N. Miller, and on the back thereof she had written an instrument which she wished her and her husband to sign. She told Mrs. Edgerton at that time that it had been the earnest and long-cherished desire of her husband to aid poor and deserving children in obtaining an education. Mrs. Edgerton was probably well acquainted with her father’s intentions in this direction before this time. Mrs. Miller stated to her his efforts in making the will, and said she had drawn up a contract on the back of the proposed will, and wished her to sign it, so that his wishes might be fulfilled. At this time Mrs. Edgerton was in bed with a babe a few days old, and after a little conversation Mrs. Miller left the papers with Mrs. Edgerton in order that she might talk the matter over with her husband, and went away, returning the next day, when the papers were handed back to her, unsigned. Nothing was said on that day about signing the contract. Some ten days after, she again went to see Mr. and Mrs. Edgerton, and after some conversation the contract on the back of the will was signed by Mrs. Miller, Mrs. Edgerton, and her husband. A few days after this, and after Mrs. Miller had consulted with her attorney, she went again to Mrs. Edgerton to get a new contract in regard to the estate of John N. Miller. After considerable discussion a contract, or indenture as it was called, was made, by which Mr. and Mrs. Edgerton sold and conveyed all their right and interest in the estate of John N. Miller to Mary V. Miller, the consideration expressed in the contract being $1,321, and “other considerations hereinafter mentioned.” At that time Mrs. Miller paid Mrs. Edgerton $100, and very shortly thereafter $400 more, and in addition gave her note for $500, which was paid the year following; she also delivered up a note amounting to $321, which John N. Miller had held against her in his lifetime. Afterward this action was brought by the Edgertons against Mary V. Miller, they claiming that they were entitled to one-half the estate of John N. Miller, and saying that at the time of the last above-named contract between themselves and Mary V. Miller, there was a contemporaneous oral agreement, which provided that as rapidly as the estate of Mr. Miller was reduced to money and collected by Mary V. Miller, one-half of the net proceeds were to be turned over to them.
The case was tried upon the theory that there was a contemporaneous oral agreement made at the time of the contract between Mrs. Miller and the Edgertons in regard to the disposition of the proceeds of the estate. The plaintiff in error complains of several of the rulings of the court, but we shall consider but one question in reviewing the case, and that is, whether it was error to admit proof of the contemporaneous oral agreement alleged by the plaintiffs.
It is contended by the defendant that such parol agreement did not explain or in any manner tend to facilitate the performance of the contract in writing between these parties. She claims that the subject-matter sought to be controlled by the parol agreement was embraced in their written contract, and insists that the well-known rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument, is applicable. That rule must govern our decision, unless the evidence brings it within 7 ° one of the exceptions to it. The plaintiffs say, however, that the parol agreement is concerning the consideration nominated in the written contract, and can be fully inquired into; and cite a long list of authorities to show that the consideration expressed in a deed is not conclusive between the parties, and that proof may be given to show a state of facts different from that expressed, although it may vary, enlarge, or even contradict in that respect the written contract. We shall refer only to those authorities that apparently most strongly tend to support the claim of the plaintiffs.
In Hannan v. Oxley, 23 Wis. 519, the action was for partition of land, in which two daughters claimed the land as heirs-at-law of their father, and the widow as defendant claimed the entire estate by virtue of a deed from her husband to herself; the consideration named in the deed was $600, but in the trial the defendant was permitted to show, after the money consideration expressed in the deed had been attacked, that there was the further consideration of love and affection named as a consideration at the time of executing the deed, but not expressed therein. It was contended because the deed recited no such consideration, that it could not be proven.
Mr. Justice Paine, speaking for the court and citing authorities, says:
“ I shall not attempt to review the authorities upon the subject, but refer to the following as showing that the recitals in a deed are not conclusive between the parties as to the consideration or its payment, but that, in a case like this at least, where there is no question as to the rights of creditors, parol evidence may be introduced to show an additional consideration to that expressed and consistent with it, for the purpose of sustaining a deed.”
It will be noticed 'that the evidence was admitted to show a j consideration consisten t®with the one expressed, and for the purpose of sustaining a deed. It is obvious that the rule therein enunciated is not applicable to the facts proven in this action.
In the case of Laudman v. Ingram, 49 Mo. 212, it was attempted to show by parol that in addition to the consideration expressed in the deed, there was a further agreement that the grantee was to pay the taxes on the land. In the opinion of the court, delivered by Mr. Justice Adams, it is said:
“We know the general rule to be that all stipulations and declarations anterior to and contemporaneous with a written agreement are merged in the writing, and cannot be proved by parol. But the exception, if it be an exception, is equally as well established, that one may by parol evidence prove additional considerations not inconsistent with those recited in a deed.”
In the case of Morris v. Tillson, 81 Ill. 607, the question arose whether a consideration expressed in a lease for rent of three years in advance, did not include a debt already due. Although it was expressed on the face for rent to become due, it was there held that the recital of payment of the consideration in a lease might be contradicted, provided it is not sought by the evidence offered to impair the lease, or vary its legal effect.
In the celebrated case of McCrea v. Purmort, 16 Wend. 460, the question was whether, when the consideration expressed in the face of the deed was acknowledged to have been paid in money, it could be proved by parol that it was in fact paid in a different manner; it was held it could be shown, and the authorities upon the question were collated and reviewed. Among other authorities cited was Morse v. Shattuck, 4 N. H. 229, and the language in that opinion is copied with approval. Mr. Chief Justice Richardson says in this connection :
“It is perfectly well settled that a consideration expressed in a deed cannot be disproved for the purpose of defeating the conveyance, unless it be upon the ground of fraud.”
The case of Rhine v. Ellen, 36 Cal. 362, was an action for the purchase-money for the sale of a mine. The mine was sold to several parties for $32,000. In the petition it was averred that the defendant Ellen bought one-eighth part, and was to pay therefor $4,000, and that instead of the consideration being jointly due from all the grantees, each one was to pay his proportionate share. The defendant denied the consideration to be as alleged by plaintiff, but said that, if after one year he should elect to take the share, then he was to pay for it, but if he declined to take it, then plaintiff was to pay him for all moneys expended by him in organizing a stock company to operate the mine, and all assessments and expenses paid for improving it. The distinction between that action and this one is best shown, perhaps, by quoting a portion of the opinion:
“ The action is not brought upon any express covenant or promise found in the instrument. The promise is implied by law from facts shown dehors the instrument and contrary to its express acknowledgment. ... In fact, the suit is not upon the conveyance at all. The whole agreement relied on for the recovery is outside of the conveyance, and that instrument is not offered as the contract sued on, but it is offered for a collateral purpose, as an item of evidence, to show a performance on his part. . . . The words of conveyance of land are the operative words of the contract, and constitute the contract itself. But the acknowledgment of payment of the consideration and of its amount are but the acknowledgment of the existence of facts. The former cannot be contradicted, but the latter may be shown to be otherwise than as acknowledged.”
We have examined the authorities carefully, and stated them at considerable length, to show that they do not sustain the theory contended for by plaintiffs. The evidence offered of a parol contract in this action not only tends to change radically the consideration of the indenture, which would probably be permissible, but it defeats and destroys the written contract itself. This action was brought to recover money had and received out of the estate of John N. Miller, deceased, and appropriated wrongfully to defendant’s own use. In their petition plaintiffs claimed that the “pretended deed” was obtained from them by deception, misrepresentation, and fraud; the charge of fraud was, however, abandoned at the trial of this action. Of course if that had been established, an action could have been sustained; it was tried on the theory that plaintiffs were entitled to one-half of the value of the estate under a parol contract. If there had been no contract or conveyance, that would have been Mary E. Edgerton’s share in the estate, as one of the heirs of John N. Miller. It is not disputed that there was a contract entered into between the parties about the estate after Miller’s death; the defendant claims that it was all-expressed in writing; the plaintiffs say and.introduced evidence and tried the action on the theory that there was a contemporaneous parol contract about the consideration, different from that expressed in the deed. Let us examine the part of the deed relating to its consideration. First, it provides:
“ That the said Mary E. Edgerton and William Edgerton, her husband, for and in consideration of the sum of thirteen hundred and twenty-one dollars, to them duly paid by Mary V. Miller, and other considerations hereinafter mentioned, do by these presents sell,” etc.
The other considerations are further set forth in the deed as follows:
“It is further agreed and understood, that said Mary V. Miller agrees and promises to settle the estate of said John N. Miller, deceased, and apply the proceeds thereof in accordance with the terms and stipulations of a certain instrument drawn by direction of the said John N. Miller in his lifetime, dated August 15,1882, and intended by him as his last will and testament, but not signed by him; and the said promise and agreement of said Mary V. Miller to so settle and apply the proceeds of said estate as directed in said will, and the contract of the parties hereto indorsed on said will, forms a part of the consideration for this conveyance.”
The parts of the will that are applicable are as follows:
“ I give, devise and bequeath unto my beloved wife, Mary V• Miller, the homestead property where I now live, in Baxter Springs, Kansas; also, my household property of every description, and all my other personal property excepting my moneys and credits, and also one thousand dollars in money, to be paid her by my executors hereinafter named, to have and to hold the same to her and her executors and administrators and assigns forever.
“I give and bequeath to my adopted daughter, Mary E. Edgerton, three hundred dollars at my wife’s decease, unless she shall choose to pay it sooner.
“I give and bequeath to my beloved wife, Mary V. Miller, all the residue of my personal property, for her use and benefit so long ás she shall remain my widow.
“And lastly — I do nominate and appoint my said wife, Mary V. Miller, to be my executrix of this, my last will and testament.”
The contract indorsed on the same was as follows:
“Know all men by these presents: That we, Mary V. Miller, Mary E. Edgerton, and William Edgerton, the sole heirs of or to the estate of John N. Miller, deceased, do here enter into a solemn agreement that his, the said John N. Miller’s last will and testament as dictated by him and not signed, as appears in the above and foregoing instrument, be carried into effect as nearly as possible according to his expressed provisions ; and further, that after his funeral expenses and j ust debts are paid, and the several donations that are made by said will are paid out, that the income of his estate, except that which is needed for the maintenance of his widow, shall be used for charitable purposes, mostly the education of poor children; it being the fervent desire that the aim and ambition of his very busy life be now answered, that the income of his estate be used to relieve suffering and to assist in educating those who cannot educate themselves.”
We suppose it will be conceded that the instrument intended as the last will of John N. Miller, and the contract indorsed thereon, are a part of this contract or conveyance. They all constitute but one contract. They were , evidently treated as such by the parties, and the unfinished will and the contract indorsed thereon are as much a part of this contract signed upon the 14th day of September, 1882, as though they had been written out in full and embodied in its face.
It has been said that the doors have been thrown open wide when the consideration of a deed is to be inquired about, and that oral evidence is admissible to show its actual consideration, but in the absence of fraud, accident, and mistake, it has this limitation at least: such evidence is not competent when it alters and defeats the deed itself. In that case all contemporaneous stipulations and agreements are merged in the written instrument, and cannot be established by parol evidence. The oral evidence admitted on the trial, in effect would change this instrument from a deed which it purports to be, into an agreement whereby the defendant is bound to reduce the estate to money and give the plaintiff one-half of the proceeds, without compensation for services in so doing. This indenture not only conveyed all the interest the plaintiffs had in the estate of John N. Miller to defendant, but it was in addition thereto a contract which provides for the application of its proceeds. The very consideration of the conveyance mentioned on its face, is a written contract of the parties, It stipulates that the income of the estate shall be used to relieve suffering and assist in educating those who cannot educate themselves. The plaintiffs claim by virtue of a parol agreement that one-half of the estate is to be paid to them as a consideration for their deed to defendant. They ask that it shall defeat and destroy their written contract made at the same time. This ought not to be allowed. Their pretext for this is, that it is a part of the consideration of a deed, and therefore it can be contradicted. .Their reason assigned is not sound. The consideration of a deed may be contradicted in certaixi cases, to be sure; but this contract, although a part of the consideration, still retains its nature, and should be governed by the ordinary rules relating to contracts in writing. It follows that the evidence admitted to establish a contemporaneous parol agreement was incompetent; it was error to admit it.
We recommend that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The original action out of which this proceeding grows was brought by Horner, defendant in error, against the city of Olathe, to recover a balance due him for excavating a reservoir for water works. That action was tried at the March Term, 1885, before Hon. W. R. Wagstaff, j udge, and a j ury. A j udgment was rendered for plaintiff, but not for the full amount claimed by him, and he made a motion, for a new trial, which was overruled, on July 14, 1885. He filed his petition for a new trial, alleging as the grounds therefor newly-discovered evidence. This action was heard at the March term, 1886, before S.B., judge pro, tern.
To fully understand what such newly-discovered evidence was, it will be necessary to refer to the deposition of one R. C. Pearson, used in the original trial of this action. After stating that he was a civil engineer, his deposition proceeds:
“I was employed as engineer in the actual construction of the water works of the city of Olathe, Kansas, from June 25th, 1883, until about August, 1883, and again from January 1st, 1884, to about May 10th, 1884, and as such engineer I made measurements for excavating said water works; and for more specific mention of said measurements see paper marked ‘Exhibit A,’ hereto attached.”
Exhibit “A” is as follows:
“The City of Olathe, to Mr. T. L. Horner ■ — Dr.:
TO WORK OH TUB WATER WORKS. Ou. Yds. Oil. Ft.
1. To stripping under banks.......................1,244 12
2. To core pit................'.................... 629 17
3. To extra excavation on north end............... 237 1
4. To creek-bed, clearing and filling................ 888 24
5. To extra south end.............................1,111 3
6. To around filter................................ 201 18
7. To under filter, Pyke’s estimate.................. 760
8. To extra west side....................'.......... 77 21
9. By Pyke’s estimate.............................5,150 25
1,952
3,198 25
Total at 24 cents per cu. yd., $767.58.”
Pearson, in speaking about item number 4 in the exhibit, was made to say in his deposition:
“I have never given any estimate of this said item to the council; I am familiar with the ground of the water works reservoir, and the general outline of the creek-bed through it. In my best judgment, about 888 square yards and 24 cubic feet of excavation were done in the creek-bed through the reservoir.”
The alleged newly-discovered evidence is that Pearson would testify that he meant 888 cubic yards and 24 cubic feet, instead of 888 square yards and 24 cubic feet. The briefs of both parties deal quite extensively with the question of surprise, but as it is not alleged in the petition for a new trial as one of the grounds upon which relief is sought, we shall not attempt to discuss that question, as it is not before us in the record. The only question that we shall consider is, whether the testimony introduced on the hearing of this petition establishes that any evidence material for the plaintiff has been newly discovered, which he could not with reasonable diligence have discovered and produced at the original trial, or that he co.uld not with reasonable diligence have discovered and produced at the hearing of the motion for a new trial. In the first place, it is a very doubtful question whether the evidence claimed to have been newly discovered was material in this case. It is that the witness Pearson would testify that he meant in his deposition to have said that the amount of the excavation of the creek-bed was 888 cubic yards, instead of 888 square yards. The measurement of an excavation by square yards is something unheard of; the measurement must necessarily be cubic, and the statement that there was 888 square yards of dirt ex cavated is an absurdity; square measure has relation only to the length and breadth, while cubic measure has reference to the length, breadth, and thickness; the one applies to surfaces, and the other relates to solids. It is further stated that the excavation amounted to 888 square yards and 24 cubic feet; such a measurement as that is an impossibility; the fact that 24 cubic feet is a part of the measurement would seem of itself to be sufficient to notify plaintiff that this deposition was intended to have reference to the measurement of solids; but we are not left in doubt in regard to this matter, for he affixes an exhibit to his deposition, which is made a part thereof, and item 4 of that exhibit is as follows: “Creek-bed, clearing and filling 888 cu. yds. 24 cu. ft.;” and adding the eight items of the exhibit, the total is 5,150 cubic yards and 25 cubic feet. That amount is obtained by including the 888 cubic yards and 24 cubic feet, and that total multiplied by the price per cubic yard was the basis in part to establish the amount due. It seems improbable that a jury conld have been misled by the error in the deposition, which is clearly a clerical one.
But is this evidence newly discovered ? The plaintiff contends that it is, and says that Pearson himself would testify that if he made the statement 888 square yards, it was false. The question to be decided in another trial would be,-not whether the deposition of Pearson was false, but, what was the amount of the excavatiou ? Did the plaintiff know before the trial what that measurement was, or could he have known it by the exercise of reasonable diligence ?, It is in evidence by the plaintiff himself, that some time before the original trial, the plaintiff and Pearson went to Dr. Pyke’s house, in Kansas City, and on this trial he testified as follows:
“Q. Did you not in that conversation discuss while at Dr. Pyke’s house, some of you, some of you three, this very question of the amount of excavation in the creek-bed through the reservoir? A. Yes, sir; that was discussed.”
He also testified that he knew that Pearson had gone to Texas, and he gave his address to the attorney for the city, who in turn gave him notice that he would take depositions at the place where he said Pearson lived. He did not attend the examination of Pearson when his deposition was taken, for the reason, as he states, “I was satisfied in my mind he would not give anything but what was correct.” Pearson also testified concerning that discussion at the house of Dr. Pyke in the presence of the plaintiff:
“Q,. I will ask you whether or not there was any discussion at that time concerning the anount of excavation in the creek-béd through the reservoir? A. My recollection of it is, that it was the only thing we did discuss, and the only thing that was discussed at all.
“Q. Was that prior to this case in the district court? A. It was.
“ Q,. I will ask you. to state to the court whether or not at that time you and Pyke together, or in conjunction with Mr. Horner, talked that matter over and reached any figures, or came to any agreement about the number of yards of the excavation there was in the creek-bed. A. Well, it had all slipped my mind until I heard him speaking about it awhile ago. My recollection of it is that we did determine on that 888 and 24 feet.
“Q,. 888 cubic yards? A. 888 cubic yards and 24 cubic feet.”
This question of the amount of the excavation of the creek-bed was inquired into in the original action. Dr. Pyke, one Keighton and the plaintiff himself testified concerning the amount. The plaintiff himself says in his application for a new trial:
“Q,. State whether or not Mr. Keighton gave any estimate as a witness to that jury as to the amount of excavation in the creek-bed ? A. I think he did.”
The evidence called newly discovered is additional evidence upon the same point controverted before, and simply adds to what has been testified. It is cumulative in its character, and is not sufficient to justify the granting of a new trial. (Baughman v. Penn, 33 Kas. 504.)
We do not believe from the testimony of the plaintiff himself and the record that comes here that there was ány newly- discovered evidence, which was material to the cause, which could not have been discovered before the trial by the exercise of proper and reasonable diligence on the part of the plaintiff. While it is with great hesitation that we set aside an order granting a new trial, yet we feel justified in doing so this time. One of the reasons usually given for upholding an order of the lower court granting a new trial, is eliminated from this case. The judge of the court, when this case was originally tried, was not the judge who presided at the time the application was made for a new trial; as a matter of fact, the trial court had overruled a motion for a new trial. Having heard the witnesses and having seen all of the incidents and circumstances of the trial, it can fairly be presumed that the judge was satisfied that the verdict was supported by the evidence. A new trial might give the parties another opportunity, and possibly a fairer one, for the determination of their controversy, yet, in the interest of putting an end to litigation, it appears to us that the judgment in the original action should be allowed to stand.
We recommend that the judgment of the lower court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an, action brought by Charles H. Goodrich, as administrator of the estate of William Olson, deceased, against the Missouri Pacific Railway Company, to recover for personal injuries received by Olson, and alleged to have been caused by the negligence of the railway company. A trial was had before the court and a jury, at the February term, 1886. After the plaintiff had introduced all his evidence, and rested, the defendant demurred to the evidence upon the ground that it did not prove any cause of action; and the court below sustained the demurrer. Afterward, and within proper time, the plaintiff filed a motion for a new trial, upon various grounds, which motion the court below sustained and granted the new trial asked for; and this is the only ruling of which the plaintiff in error, defendant below, now complains.
The plaintiff in error, defendant below, presents to this court two alleged errors, to wit:
“1. The court below had no power to entertain a motion for a new trial after it had sustained a demurrer to the evidence, and entered judgment. There is no authority given in the statute for such a proceeding.
“ 2. The court below erred in sustaining the motion for a new trial, because on the pleadings and the evidence the action of the court in sustaining the demurrer to the evidence was right.”
We think the court below had power to entertain the motion for a new trial. Such is proper practice. Indeed, unless a motion is made for a new trial after a demurrer to evidence has been sustained, the supreme court cannot consider any errors of law committed by the court during the trial. (Gruble v. Ryus, 23 Kas. 195, 196; Pratt v. Kelley, 24 id. 111, 112.)
Neither do we think that the second point made by the plaintiff in error is tenable. A demurrer to evidence admits every fact and every conclusion which the evidence most favorable to the other party tends to prove. (Christie v. Barnes, 33 Kas. 317, 318.) And generally where a new trial has been granted, the supreme court will require a much stronger case before it will interfere and reverse, than where a new trial has been refused. (City of Ottawa v. Washabaugh, 11 Kas. 124, 127.) We think the court below erred in sustaining the demurrer to the evidence, and therefore that it did not err in granting the new trial. We think it is not necessary to comment upon the evidence.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In August, 1887, Robert Tilney was convicted on a charge of grand larceny, and sentenced to confinement at hard labor in the state penitentiary for a term of four years. The information on which the conviction rests charges that he “did then and there unlawfully and feloniously steal, take, and carry away national bank notes, United States treasury notes, and United States silver certificates, money of the amount and value of one thousand dollars.” It was contended in the trial court, and the same point is here made, that the information is fatally defective in not describing with sufficient certainty the money alleged to have been stolen. This point was raised at different stages of the prosecution : Eirst, by a motion to quash the information; second, by an objection to the introduction of testimony; and finally, by a motion in arrest of judgment — each of which was overruled, and exceptions were taken. It Mull be observed that three kinds of money are charged to have been stolen, but the number, denomination, or amount of each kind, or of any of the notes or certificates, is not stated. No reason is stated for the meager and indefinite description given, nor is there any statement of inability on the part of the prosecution to give a more particular description of the money claimed to have been stolen.
We cannot hold the information to be sufficient. While the criminal code of our state has relaxed somewhat the common-law rules respecting matters of form in criminal pleading, still in matters of substance there has x ° , , been practically no change. The constitution ordains that in all prosecutions the accused is entitled to demand the nature and cause of the accusation against him; and § 104 of the criminal code enacts that “ the indictment or information must be direct and certain, as it regards the party and the offense charged.” In a prosecution for larceny, a definite description of the property stolen is important and necessary, in order that the court may determine whether that which is imputed against the defendant amounts to a crime, and whether it has jurisdiction of the same; and also to inform the defendant of the precise charge and enable him to prepare for his defense; and further, to enable the court to properly pronounce judgment, and to make that judgment available as a bar to any subsequent prosecution or conviction of the defendant for the stealing of the same property. These requirements are not satisfied by the general description that was given in the present case. The rules of law and fairness to the accused require that as definite a description as the nature of the property stolen will admit of should be given; and where the grand jury or prosecutor is unable to give a definite description, the fact should be stated. In The People v. Ball, 14 Cal. 101, an indictment for larceny describing the money as “$3,000 lawful money of the United States,” was held to be insufficient. The court remarked that “ in an indictment for larceny, money should be described as so many pieces of the' current gold or silver coin of the country, of a particular denomination, according to the facts.” In a prosecution for larceny in Michigan, the information described the property as “$135 of the property, goods and chattels of John C. Connell,” and gave no excuse for the want of greater particularity. The court held that by the well-settled principles of common-law pleading the defendant was entitled in fairness to either a statement of the kind, denomination and number of the pieces, notes or bills claimed to have been stolen, or to an allegation of some excuse for the omission, and held the information to be fatally defective. (Merwin v. The People, 26 Mich. 298.) The supreme court of Kentucky held an indictment to be insufficient which charged that the defendants took and carried away “one lot of treasury notes called greenbacks, the issue of the treasury of the United States of America, and one lot of Kentucky bank notes, and fifteen dollars in gold coin.” In deciding the case, the court stated that “a minute description of all the treasury and bank notes might be impossible and therefore is not required, but a nearer approach to it than this indictment makes may be presumed to have been easy and ought to have been required.” (Rhodus v. Commonwealth, 2 Duv. 159.)
An indictment which described the property as “sundry pieces of silver coin made current by law, usage and custom within the state of Alabama, amounting together to the sum of $530.15,” was held not to describe the money with sufficient precision, and it was said that the number and denomination of the coin should have been stated. (The State v. Murphy, 6 Ala. 845.) In Stewart v. Commonwealth, 4 Serg. & R. 194, the indictment charged the larceny of sundry .promissory notes amounting to the sum of $80, and the judgment of conviction was reversed because of an insufficient description. In The State v. Longbottoms, 11 Humph. 39, the indictment for larceny charged the defendant with having stolen “ ten dollars in good and lawful money of the state of Tennessee.” It was held that this was an insufficient description of the thing stolen, and that the money should be described as so many pieces of current gold or silver coin, and the appropriate name of the coin given. Under a statute which declares that a person who obtains by false pretenses money or property which may be the subject of larceny, shall be deemed guilty of larceny, an indictment framed which describes the property as “$90 in United States currency ” was held to be insufficient to sustain a conviction. (Leftwich v. Commonwealth, 20 Gratt. 716.) Mr. Bishop, in treating of this subject, referred to a case where the money stolen was described as “sixty dollars of the current gold coin of the United States,” and the description was upheld by interpreting it to mean sixty one-dollar gold pieces; but that eminent author remarked that “this is pushing the rule to construe ambiguities in a way sustaining the indictment quite as far as in reason it will bear. On the other hand, simply to describe the subject of the larceny as so many dollars, or so many dollars in money, without further particularization, is by all deemed ill.” (2 Bish. Crim. Pro., §703. See also Barton v. The State, 29 Ark. 68; Merrill v. The State, 45 Miss. 651; Crooker v. The State, 47 Ala. 53; Brown v. The People, 29 Mich. 232; The State v. Hinckley, 4 Minn. 345.) The same doctrine is recognized in The State v. Henry, 24 Kas. 457. There the defendant was charged by information with stealing “national bank currency and United States treasury notes of the amount and value of $164.” No question was raised about the sufficiency of the charge until after a trial. When a motion in arrest of judgment was made, the charge was considered to be very indefinite and defective, but it was held that the defendant was too late with his objection, and that he could not take chances of an acquittal upon the merits of the action and then object to the information for not stating the offense in as definite terms as it might have done.
In The State v. McAnulty, 26 Kas. 533, the sufficiency of a description of coin alleged to have been stolen was challenged. The information alleged the larceny of sundry silver coins, current as money in the state of Kansas, of the aggregate value of $50, and gave the denomination of most of the coins stolen, ending with an averment that “a more particular description of any and all of such money cannot be given, as informant has no means of obtaining such knowledge.” With this description, coupled with the allegation of inability to give a better description, it was held that the information was not fatally defective. The court remarked that—
“Where the indictment or information states the collective value of coins stolen, and the denomination of a portion thereof, and states that a more particular description cannot be given, for want of sufficient knowledge, we are of the opinion that upon a verdict of guilty, stating the value of the property stolen, a verdict may be legally rendered.”
It is true, that there are cases holding indefinite descriptions to be adequate, but those to which our attention has been called were decided under statutes which dispensed with greater particularity in describing the money stolen, or were cases where the best description available to the prosecution was given, coupled with an averment that a more particular description could not be given. In order to prevent a failure of justice, considerable latitude should be allowed in charging the larceny of money, because where a parcel of money consisting of a great number of notes or coins is stolen and has not been recovered, the owner will generally be unable to specify with legal certainty the bills and coins taken. In such cases, however, the charge should contain as particular a description as the prosecutor can give; and if it is then indefinite, he should allege his inability to give a more particular one as an excuse for the omission. (The People v. Taylor, 3 Denio, 91; Bish. Crim. Pro., § 705.) It cannot be said of this case that the objection of the defendant came too late, for he questioned the sufficiency of the charge at the first opportunity and on every proper occasion. Nor was there any averment here that a more particular description of the money could not be stated; and, indeed, under the theory of the prosecution such an averment could not have been truthfully made. It is claimed by the state, and testimony was offered to prove, that certain money found on the person of the defendant when arrested was that which was stolen, and one witness testified that three or four of the notes so found, amounting to $70 or $80, are the very ones which were feloniously taken. All of the money so found and identified has been under the control of the prosecution since the arrest of the defendant and before the filing of the information. It would seem, therefore, that an accurate description of the money so found and identified might have been alleged; and hence no good reason appears for the failure to give a specific description of the property stolen, or at least a portion of the same; and if the description of a part was unknown, an allegation of that fact would be a sufficient excuse for the omission. .
In view of all these considerations, the information must be held insufficient, and therefore there must be a reversal of the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunníngham, J. :
The plaintiff in error was plaintiff in the court below. Its action was for the purpose of compelling the defendant in error to convey to it the legal title to certain lands in Barton county, Kansas, the equitable title to which the plaintiff in error claimed to hold, the allegations of the petition being such as to show that an agent of the plaintiff, without its knowledge or consent, had taken the title thereto, while acting for and on behalf of the plaintiff, and thereby had wrongfully become a trustee of such title for the benefit of the plaintiff, and that the defendant had obtained such title with full knowledge and in contravention of plaintiff’s rights. The defendant answered by several defenses, one of which was as follows :
“It admits that plaintiff is a corporation organized and existing under the laws of the United Kingdom of Great Britain and Ireland, and avers that plaintiff is a corporation, more than twenty per cent. (20%) of the capital stock of which is owned by persons who are not citizens of the United States ; that plaintiff is not competent or qualified, under the laws of the state of Kansas, to acquire, hold or own real estate in said state, as prayed for in its petition.”
To this defense plaintiff demurred, which demurrer was by the court overruled, and, plaintiff standing upon the demurrer, judgment was rendered against it, from which judgment it brings error to this court.
This action was had while chapter- 3 of the Laws of 1891 was in full force. The question is, therefore, whether a foreign corporation, when more than twenty per cent, of its stock is owned by those other than citizens of the United States, at that time may compel a conveyance to it of the legal title to land wrongftilly taken by its agent in his own name.
By sections 1 and 2 of chapter 3 of the Laws of 1891 it was provided that no corporation, like the one specified in defendant’s answer as above quoted, could acquire title to or take or hold any real estate in the state of Kansas. By section 5 of the same chapter it was provided that real estate held or owned in violation of the act should be forfeited to the state of Kansas, and the county attorney of the county in which the real estate was situated was directed to enforce such forfeiture by a civil action. Another section provided for the sale of such lands and payment of the costs of such action, and directed that the pro ceeds of such sale should be paid into the treasury of the state of Kansas, and there remain subject to the order of the person or persons entitled thereto. The entire act must be read together, and from it we deduce the conclusion that the title which was or should-become vested in the alien was liable to be defeated at the instance of the state by an action in its name only; that if the state elected to waive a forfeiture by neglecting to bring an action therefor, the alien would continue to hold and enjoy the real estate ; that the question of the power of such alien to take and hold such title could not be raised by a private individual. This indeed was the rule at common law, the rule being thus stated in the American & English Encyclopedia of Law (2d ed.), volume 2, pages 70, 72 :
“It is well settled that at common law an alien may take real estate by act of the parties, as by deed or grant, or devise, or by other act of purchase, but he cannot hold against the state. Under this rule, therefore, an alien takes a defeasible estate, good against all excepting the state, and good against it until it institutes proceedings and obtains a judgment by inquest of office or office found, or some legislative act equivalent thereto.”
See, also, 1 Washburn on Real Property (5th ed.), 79. In Racouillat v. Sansevain, 32 Cal. 376, 386, it was held:
“The question as to the rights of a non-resident alien to hold property at common law, and, as we understand it under the civil law, was a matter between the alien and the government, and could not be called in question in a collateral proceeding between individuals. The proceeding, at common law, to divest an alien of property purchased, is by an inquest of office ; and, till office found, an alien may hold real estate. Under the civil law there was some analogous proceeding.”
Many authorities might be cited to the same effect. The defendant, however, claims in its brief:
“Where the corporation does not have the power, under its charter, or under the laws of the state of its creation, to hold real estate, or, where legal title has ¿ not passed, any want of authority or capacity in the ] •corporation to acquire and hold real estate in another j state can be questioned by a private suitor, against' whom suit is brought by the corporation.” ;
We must dissent from the correctness of this claim when applied to the facts of this case. Here the agent of the plaintiff wrongfully took this title, and the defendant, with knowledge of this wrong, received the title from the agent, giving no consideration therefor. This being so, the defendant cannot be heard to defend this wrong by urging the statutory disability of the plaintiff to take'title to the land. Equity will require that it convey' to the plaintiff the title which it is wrongfully withholding, and then .the state may, if it choose, pursue the forfeiture which the law gives to it as against the alien. The state is competent to care for itself and protect its own interests. It does not need the interference and help of the defendant.
It is also contended by the defendant that, while an action in ejectment would lie in behalf of the alien where such alien held the complete title, yet that rule does not here apply, inasmuch as the alien has only the equitable title. We are unable to distinguish upon principle between the right of an alien to recover the possession of land when it holds the legal title, and its right to recover the legal title and possession as against a wrong-doer when it holds the equitable title.
In In the matter of Leefe, 4 Edw. Ch. 395, it was held that a trustee appointed by the court who held title to certain lands could not successfully defend an action brought by an alien to recover title thereto, the court announcing the doctrine that “the government alone can take advantage of an alien’s disability to hold lands.” In The Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 623, it was held that the capacity of a corporation to enforce its rights to real estate under an equitable title held by it could not be questioned by the trustee who held the legal title. (See, also, Runyan v. Coster, 14 Pet. 122, 10 L. Ed. 382.)
It is of no concern to the defendant that the statute has laid upon the plaintiff this disability. It cannot urge the disability to defeat the rightful owner. That the title, if vested in the plaintiff, would, under the statute, escheat to the state affords no reason why the defendant should retain it. To allow this would not only wrong the plaintiff but defraud the state, because the defendant, having defeated the plaintiff by this plea, might, if assailed by the state, say that it was not an alien, and not under the ban of the law, and could not, therefore, be defeated of its title. More than this, even an alien has rights under the statute, it being therein provided that, after the costs of the action to enforce the forfeiture are paid, the balance belongs to the alien.
Under our statute (Civil Code, §595; Gen. Stát. 1901, §5082), an equitable title may be, and frequently is, all there is of much value in respect to the title to land. The disabilities iaid upon the holder of the equitable title only, by the common law, have largely vanished from our practice. The attaching of a naked legal title to the paramount equitable one is not infrequently but a matter of form.
Of course, the plaintiff could not recover had the legal title to the land been taken in the name of another for the purpose of escaping the forfeiture denounced by the statute. The law would in such case leave the parties where they had placed themselves. Nor is this a case'where an executory contract is sought to be enforced. What the rule might be in such a case it is not necessary for us to announce.
The defendant insists that the last clause of the defense, at which the demurrer was leveled, contained the allegation, “that plaintiff is not competent or qualified, under the laws of the state of Kansas, to. acquire, hold or own real estate in said state, as prayed for in its petition,” was an independent allegation, and excluded the discussion of the incapacity of the plaintiff to hold as set up in the first part of said defense. The ' contention of the defendant in this respect is untenable. This last-quoted clause is separated from the other portions by a semicolon, and it does not purport to be an independent allegation. It is simply a conclusion from facts pleaded in the former portions of the defense. If it were otherwise, and was pleaded independently of the other facts, still it would not state a defense, as it contains no allegation of fact, simply a conclusion of law.
For the error in overruling plaintiff’s demurrer to the second defense of defendant’s answer, and in rendering judgment against the plaintiff, the judgment of the court below' will be reversed, and the case remanded for further proceedings.
Johnston, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was a suit in the nature of a creditor’s bill, brought by. James B. Naylor against the Beerys, to subject a town lot to the payment of a judgment held by him against them. The petition alleged that on April 12, 1893, the plaintiff’s assignor recovered a judgment against Minnie A. Beery and husband for the sum of $823.33, and a decree foreclosing a mortgage given to secure the debt on which the judgment was based; that the mortgaged property was sold and $84 realized therefrom, which was credited on the judgment; that execution had been issued for the collection of the deficiency and returned nulla bona; and that in March, 1893, the defendants Beery deeded to Charles A. Clark a lot in Cimarron, for the purpose of defeating the plaintiff below in the collection of the balance due on his judgment. The prayer of the petition reads :
“ Wherefore the plaintiff prays that the said conveyance may be decreed null and void, that the said pretended deed may be declared fraudulent and set aside, and the said real estate, to wit, lot (16) sixteen, in block (12) twelve, in Reeve addition, be declared subject to the judgment of the balance of the said judgment in favor of .this plaintiff, in the sum of eight hundred and seventeen ($817.20) dollars and twenty cents, with interest at the rate of ten per cent, per annum from and after the 20th day of September, a. d. 1893, and that the said land may be sold to satisfy the said judgment and costs, and for such other and further relief as may be equitable.”
A copy of the journal entry of judgment was attached to the petition, in which it was recited that both personal and constructive service of summons was had on the Beerys in the foreclosure suit. The answer of plaintiffs in error, after a general denial, was confined to a special denial that any service was had on them in the foreclosure suit, with an averment that the judgment was void. A trial was had before the court, who found that the judgment was rendered on personal service of summons had on the defendants, the Beerys. It was further found that the deed from Beery and wife to Clark was based on. a valuable consideration, and .was not a device to keep the property from being subjected to the payment of the judgment.
The court, in its conclusions of law, found that the plaintiff below was entitled to a personal judgment against Beery and Beery, and judgment was entered against them for the sum of $1332.81. This ruling of the court is assigned as erroneous, and is the only question in the case.
There are two good reasons why the contention of plaintiffs in error must be sustained : First, there was no allegation or prayer in the petition indicating that a personal judgment was sought. The petition in no manner apprised defendants below that another and a new judgment was sought to be obtained against them in the action. Second, if plaintiff below had set up a cause of action on his judgment and prayed for another judgment in this creditor’s suit, he would be prosecuting an action ‘‘for the recovery of money,” in which case, under section 4713 of the General Statutes of 1901, the defendants below would have been entitled to a jury trial. In this case a money judgment was rendered against the Beerys in a purely equitable action, in which there was no claim for the recovery of money. (Gillespie v. Lovell, 7 Kan. 419, 424; Cavenaugh v. Fuller, 9 id. 233 ; Chandler v. Richardson, ante, p. 152, 69 Pac. 168.)
In response to a demand for a jury trial, the plain tiff below could have truthfully answered that the petition did not disclose any claim for the recovery of a money judgment, but that the suit was purely equitable, and had for its sole purpose the subjection of property fraudulently conveyed to the payment of a judgment already in force. The trial court in rendering a money judgment did that which was not sought for in the pleadings, and if the judgment given had been prayed for the defendants below would have been entitled of right to a jury trial on the issue raised, in which the validity of the judgment was disputed.
We have considered the case on the substituted record filed by counsel for the defendant in error. The judgment of the court below will be reversed and a new trial ordered.
Doster, U.J., Pollock, J., concurring. | [
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The opinion of the court was delivered by
Doster, C. J.:
Many claims of error are made in this case. We have examined all of them, but none is well founded, and but one seems to call for explanation and formal decision. One Milner was a mortgagor of cattle. The First National Bank of Madison was the assignee of the mortgage. It sued the Drumm-Flato Commission Company for a conversion of the cattle to the latter’s use. One of the defenses was that the bank had negligently permitted the cattle to become intermixed with other cattle of the same class and characteristics belonging to another person on which it, the Drumm-Flato company, held a mortgage, whereby a confusion of goods occurred, and that the company had no knowledge of the bank’s interest in the cattle claimed by it, because the latter had failed to deposit and file its mortgage with the register of- deeds. The Drumm-Flato company did not claim to be a creditor of the mortgagor of the cattle in question nor a purchaser or mortgagee of them. Its objection to the non-record of the bank’s mortgage was not, therefore, well taken. The statute does not apply to its case. The law concerning notice by the record of chattel mortgages is as follows :
“Every mortgage or conveyance intended to operate as a mortgage of personal property . shall be absolutely void as against the creditors of the mortgagor, and as against'subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited'in the office of the register of deeds in the county where the property shall then be situated,” etc. (Gen. Stat. 1901, §4244.)
It will be observed that the protection of the above statute is not extended to one who takes the property of another under the mistaken belief that it is his own. In order to come within its terms, he must be a creditor of the mortgagor, or a subsequent purchaser, or a subsequent mortgagee. The Drumm-Flato company was none of these.
The judgment of the court below is affirmed.
All the Justices concurring.
Cunningham, J., not sitting, bavins; been of counsel. | [
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The opinion of the court was delivered by
Cunningham, J.:
The first question which confronts us in this action is whether, under our garnishment laws, an executor or administrator may be charged as garnishee in respect to funds in his hands belonging to an heir or legatee, in cases where the estate has not been fully settled and where no order of final distribution has been made. Both parties to this action agree that this is substantially the color which the question assumes ; for while Nelson was summoned as garnishee in his individual capacity, and not as executor, it appears that he had possession of no funds in his individual capacity, and the order of the court went further and directed that the sheriff should demand, and had a right to receive, from the estate of Christian Nelson such of the moneys, property and effects which, under the provisions of the will of said Christian Nelson, would be the share of Emma C. Davis. Viewed in this aspect, the question is, Under our garnishment law, may funds in .the hands of an executor or administrator of an estate be reached by a garnishment proceeding in an action against a distributee, before' an order of distribution has been made, and while' the estate remains unsettled ? Many authorities are cited to sustain both sides of the contention. It is laid down in the American and English Encyclopedia of Law, volume 14, second edition, page 828, that the great weight of authority is that executors and administrators cannot be thus charged. If we were to construe the language of the statute literally, it would seem to require the contrary holding, for its language is :
“Any creditor shall be entitled to proceed by garnishment in the district court of the proper county against any person . . . who shall be indebted to or have any property, real or personal, in his possession or under his control belonging to such creditor’s debtor.” (Gen. Stat. 1901, §4634.)
The garnishee in his answer is required to disclose whether he holds title or possession to personal property, effects or credits belonging to the defendants, or in which they are anywise interested. We do not, however, find ourselves at liberty to enter upon a con sideration. of the proper'construction of this statute, or a discussion of the reasons given by the courts in their holdings.
Our garnishment statute was adopted in 1889. It was taken practically verbatim from the law of Wisconsin. The supreme court of that state, in the case of The J. I. Case Threshing Machine Co. v. Miracle, Ex’r, Garnishee, 54 Wis. 295, 11 N. W. 580, decided in 1882, had this exact point before it, and there held :
“An executor or administrator is not subject to garnishment before a final order for the distribution of the estate is made; and w;here he is summoned as garnishee before the making of such order, judgment cannot be taken against him therein after the order is made. Whether he is subject to garnishment after such final order is not here determined.”
Under the rule that, where a state adopts a law from another state, it adopts as well the construction of that law which the courts of that state have put upon it, we must hold that this is not an open question with us, and until further legislation is had in this state an executor or administrator cannot be charged as garnishee in an action against an heir or devisee, in respect to property or effects in his hands as such executor or administrator, and before a final distribution of the estate has been made.
There is, however, a question in the case which seems to us to reach deeper than the one of which we have spoken. As has been said, no pleadings were filed except the affidavit for attachment and garnishment by the plaintiff, the affidavit denying all liability filed by Nelson, and the notice given by the plaintiff that he elected to take issue on the answer of the garnishee, Nelson. However, the whole case proceeded upon the theory that the conveyances under which Nelson was holding, and claimed a right to hold, were fraudulent. It was on this theory that the case was tried, submitted to the jury, and verdict found. It was substantially “an action for relief on the ground of fraud,” and as such must have been brought within two years. Now, as the evidence showed that these conveyances were made more than two years before the bringing of this action, the plaintiff must show that he had no knowledge of the fraud, in order to take his case out of the statute of limitations. (Young v. Whittenhall, 15 Kan. 579.) This he did not do; hence we think he failed to establish his right to recover in the action. This infirmity in the evidence was pointed out by Nelson by demurrer' to the evidence of the plaintiff, which demurrer was erroneously overruled by the court.
It may be objected that this was not an action for relief on the ground of fraud; that it was simply a proceeding against a garnishee ; but-legal proceedings, like things, are what they are in essence and not what they may be named. The essential thing in this proceeding was that the plaintiff desired to be relieved from the legal consequences of the execution of these conveyances, and for this purpose he charged that they were fraudulently made. That he charged this by his evidence, rather than by a formal petition, could make no difference in the nature and essence of his action, nor limit the right of the party against whom the relief was sought to urge the bar of the statute of limitations.
It is suggested, however, by the defendant in error, that this action was brought in less than two years after the notes became due. We are unable to see how this would affect the issue. An action might have been brought even before the notes were due and attachment had in such action. An action for relief on the ground of fraud must be brought within two years from the commission or discovery of the fraud. That the debt for the recovery of which the plaintiff sues was not due within that time, does not serve to extend this period of limitation.
We are of the opinion that the defendant Stull was not entitled to the cancelation of these conveyances after the expiration of two years from their ^execution without showing that he discovered their fraudulent character within the period of two years before the action was commenced, and as he did not so show, the court was in error in granting him the relief which it did.
The judgment of the court below will be reversed, and the case will be remanded for further proceedings.
Johnston, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendant in error recovered judgment against the city of Emporia for personal injuries sustained while in its employ by the falling of one of its .electric-light poles upon him. The city prosecutes this proceeding.
The assignments of error are : (1) Refusing to set aside the special findings of the jury ; (2) overruling defendant’s demurrer to the evidence for the reason that plaintiff’s evidence conclusively proved that he knew of the danger and assumed the risk; (3) refusing to give certain instructions ; (4) giving certain instructions; and (5) admitting incompetent, irrelevant and immaterial testimony. It will be observed that to determine the alleged errors it will be necessary to examine all the proceedings had in the court below. This voluminous record is not indexed. Rule 9 provides:
“Counsel for the plaintiff in error shall number the pages of the record, and shall fully index the pages, showing the pleadings, testimony, instructions, verdict, findings, and all other material parts of the record, before the clerk shall receive or file it. . .
The indexing of the record is a comparatively easy matter for counsel who have tried the cause and prepared a case-made. The index relieves this court of a great amount of labor which can more profitably be expended in other lines of duty. If counsel wish this court to examine records to determine questions arising at the trial, such as are presented in this cause, they must comply with the rule and make an index.
For the reasons herein indicated this cause is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
Plaintiff in error, as sheriff of Atchison county, levied several orders of attachment on, and took possession of, a certain stóck of boots and shoes as the property of Pearl Dickey. The stock was in the possession of T. D. Hosmer. Hosmer replevied as owner. 'J'he contentions of plaintiff at the trial were that Dickey had sold the goods with the fraudulent intent to hinder, delay and defraud her creditors, and that Hosmer knew this fact at the time he purchased, or had knowledge of sufficient facts to arouse the suspicions of an ordinarily prudent man. Plaintiff recovered and defendant prosecutes error.
There is sufficient evidence in the record to sustain the verdict and findings of the jury, and the judgment thereon, if it shall be determined that the court committed no material error in excluding or admitting evidence, in giving or refusing instructions, or in submitting special questions. An examination of the record convinces us that no prejudicial error was committed in the admission or exclusion of evidence. The evidence amply proved, and the jury found, that Pearl Dickey disposed of the stock with the fraudulent intent to defraud her creditors. To show that Hosmer had knowledge of this fact, the defendant undertook to prove, among other things, that A. J. August, of St. Joseph, Mo., was a partner of Hosmer in this transaction, and that August had knowledge of the fraudulent intention of Dickey, and, therefore, his partner, Hosmer, was chargeable with such knowledge. It is alleged here that the court erred in refusing to give an instruction upon this question, submitted by the defendant, as follows :
“If the jury believe from the evidence in this case that A. J. August and the plaintiff were partners in the .business in which the plaintiff was engaged at the time of the claimed purchase of the stock in controversy from the Dickeys, and that said A. J. August knew or had knowledge of such facts as would put a reasonably prudent man upon inquiry, and which, if followed, would lead to the knowledge that the agent or representative-of Mrs. E. P. Dickey sold the stock or negotiated the sale of the stock in controversy in this case, and that such agent did so with the purpose of hindering, delaying and defrauding'the creditors of said People’s Shoe Store, that would be notice to the plaintiff in this case of such fraudulent purpose and intention, and he cannot evade the effect of the notice which his partner had, or might have had, as stated above.”
Generally a court should instruct the jury in the law of the case upon the theory contended for at the trial by either party, where there is evidence in support thereof; but it would not only be confusing to the jury,,but might be prejudicial error, to instruct in the law applicable to facts upon which no substantial evidence had been offered. There is no evidence in the record tending to prove that A. J. August had any knowledge of the fraudulent intent of Dickey. Consequently there was no prejudicial error in refusing the instruction.
Error is also assigned because of the exclusion of certain questions asked of witness Dickey as to the amount of her liability to one of the attaching creditors. This was unimportant. The liability of Dickey to the attaching creditors was not a controverted question ; her liability, or the amount thereof, was not questioned. •
It is objected that the witness McClain was not permitted to testify how long August had been engaged in purchasing stock from failing merchants. This becomes unimportant in view of the fact that it clearly appeared in the evidence, and is undisputed, that he had been thus, engaged for at least eight years.
The court instructed the jury that the burden' of proof of the intention of fraud was on him who asserts it. It is objected that this instruction does not correctly state the law applicable to this case. The contention is that, when the defendant established the fraudulent intent of Dickey in disposing of her property, the burden was then on Hosmer to prove that he was an innocent purchaser for a valuable consideration. The rule sought to be invoked is applicable in an action brought by a vendor to recover possession of his property against a vendee who has purchased the property from one who fraudulently obtained the title. It has no application, however, in actions like the present one. The instruction given in this case has been held by this court to be correct. (Baughman, Sheriff, v.Penn, 38 Kan. 504, 6 Pac. 890 ; Dodd, Brown & Co. v. Hills & Kramer, 21 id. 707 ; Long Bros. v. West & Co., 31 id. 298, 1 Pac. 545 ; McPike & Fox v. Atwell, 34 id. 142, 8 Pac. 118.)
Objection is made that the court erred in submitting to the jury the special questions requested by the plaintiff. There were forty-three of these questions, and the objections were “that each and every of said questions involved one or more of the following specific defects, and grounds of objection thereto, and each and all thereof are objectionable, for that they disregard the rule of law applicable under the code and to the particular questions of- fact- in the respects following.” There is no specific objection pointed out to any one of these questions. This general objection cannot be sustained, especially where some of the questions are unobjectionable. The objections were too general to give the court any information as to the nature of the defects of which complaint was made. It is due to the court and to the opposite party that, where objections are made to special questions, they should specifically point out the particular defect of which complaint is made in each of said questions.
There are numerous other contentions, which generally involve questions of fact. We have not deemed them of sufficient importance specially to .refer to them. Suffice it to say that we find nothing prejudicial.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
On the 8th day of February, 1899, defendant in error procured a personal judgment against plaintiff in error and her husband, George A. Emmert, in the sum of $1407 and for costs, and a decree of foreclosure of a mortgage given to secure payment of the debt. On the 18th day of March thereafter George A. Emmert died. At the date of his death he was a member of the Marysville lodge of Ancient Order of United Workmen-, and held a beneficiary certificate for $2000 payable to his wife. He was also a member of the Marysville camp of Modern Woodmen of America, and held a beneficiary certificate for $1000, payable to his wife. At this time the mortgaged property had not been sold under the decree. On the 15th day of April plaintiff in error received a draft of $2000 from the Ancient Order of United Workmen in payment of its certificate, and on April 17 received a draft from the Modern Woodmen of America in the sum of $1000 in payment of its certificate. These drafts were by plaintiff in error indorsed and delivered to the First National Bank of Marysville, and the proceeds deposited to her credit in open account. On May 15 defendant in error brought this action against plaintiff in error on the decree and judgment theretofore rendered in the foreclosure action. He also caused garnishment proceedings to be instituted and garnished the proceeds of the beneficiary certificates remaining in the hands of the bank at that time, in amount, $2650. The bank answered according to the facts. The defendant answered, and also moved the court to discharge the garnishment upon the ground that the money held by the bank was exempt to her. This motion was by the court overruled. The mortgaged property was sold under the decree for the sum of $800. Thereafter, a supplemental petition was filed in this action and a judgment for the remainder of the personal judgment, and costs in the foreclosure action, and costs in the garnishment action, in amount $995, was awarded to plaintiff, and the garnishee was ordered to and did pay this amount into court for the benefit of plaintiff to be.applied in satisfaction of such judgment. The remainder of the fund' in the hands of the garnishee, upon motion of defendant, was released from garnishment process. The defendant brings error.
A motion has been made by defendant in error to dismiss this proceeding on the ground that the garnishee is a necessary party in this court, and for the further reason that plaintiff in error, by applying to the court below for the release of the funds in the hands of the garnishee in excess of the judgment of plaintiff and costs of both actions, accepted a benefit under the judgment and acquiesced therein. We do not agree with this contention. The fund garnished was the property of the defendant. How it can be contended that, after plaintiff had secured payment into court out of this fund for his benefit the full amount of his demand and all costs to the last cent, defendant, by procuring the remainder of her money which plaintiff did not demand and to which he had no color of right, accepted benefits under the judgment, or acquiesced therein, we are at a loss to understand. How the garnishee, after performance of the order commanding payment into court, as demanded by plaintiff, of that portion of the fund claimed by him, and the release of the remainder of the fund to defendant from the process of the court,’ can be prejudiced by any disposition this court may make of the case, is not apparent. The motion to dismiss is therefore overruled.
We find it necessary to consider and determine but one of the many questions discussed by counsel in their brief and argument. This question is important and goes to the very vitals of the controversy. It is this : Was the fund in, the hands of the bank, the proceeds of the beneficiary certificates, subject to seizure by the process of garnishment to satisfy the judgment against plaintiff in error? Chapter 163, Laws of 1895 (Gen. Stat. 1901, § 3463), provides as follows:
“Section 1. In case any life insurance company, fraternal order or beneficiary society shall have issued or shall hereafter issue any policy or policies of insurance or beneficiary certificate upon the life of an individual and payable at the death of the assured, or in any given number of years, to any person or persons having an insurable interest in the life of the assured, all such policies and their reserves of the present value thereof shall inure to. the sole and separate use and benefit of the beneficiaries named therein, and shall be free from the claims of the assured, and shall also be free from the claims of the person or persons affecting such insurance, their creditors and representatives, and shall be free from all taxes and the claims and judgments of the creditors and representatives of the person or persons named in said policy or policies of insurance.”
The title to this act reads: “An act to exempt from legal process to beneficiaries the proceeds of life-insurance policies and beneficiary certificates.” That this act is inartistic in form, inaccurate in language, and imperfect as a model of legislative exactness, will readily be conceded. The question, however, is whether the act, aided by the language employed in the title, contains a sufficient expression of legislative will to indicate the intent of that body to exempt to the beneficiary the fund in question. We are of the opinion that it does. That the fund in the bank was the remaining portion of the proceeds of the beneficiary certificates, in which defendant was named as beneficiary, was conceded at the trial and found by the court. That the title to the act clearly shows the intent of the legislature to exempt such proceeds to the beneficiary, free from seizure by legal process, is clear. The body of the act, after providing that all such policies and their reserves of the present value, as enumerated in the act, “shall inure to the sole and separate use and benefit of the beneficiaries named therein,” proceeds to enumerate and classify the exemptions created. By this classification, it is seen that life policies and beneficiary certificates, and their proceeds, are exempt: (1) From all claims against the person whose life is insured ; (2) from all claims which the person or persons effecting the insurance and the creditors and representatives of such person or persons may make against the policy or its proceeds ; (3) from taxation; (4) from all claims and judgments of creditors and representatives of the person or persons named in the'policy. While this fourth classification is not clear, yet we conceive, from an examination of the language of the whole act and the title thereto, that the legislature intended the policy or beneficiary certificate, or the proceeds therefrom, to be exempt to the person named in the policy or certificate as beneficiary from all legal process issued for the collection of any claim or judgment of' any creditor or representative of the beneficiary in the policy.
By the language, “and shall be free-from the claims and judgments of the creditors and representatives of the person or persons named in said policy or policies of insurance,” reference is had to the person or persons named in the policy as beneficiaries, and not to the person named in the policy as the insured. Two reasons may be given for this determination. First, the plural, persons, is used, which can apply to beneficiaries, and, in the very nature of things, cannot apply to the assured, the assured in a policy always being but one person, and the beneficiaries in the policy often being more than one. Again, the statute had already created an exemption from all claims of creditors and representatives of the assured and the person or persons effecting the insurance, whether the assured or another. Hence, to give this portion of the act any effect, it must apply to the exemption granted the beneficiary named in the policy.
In this interpretation we are. aided by former decisions of this court. In Mitchell v. The State, 61 Kan. 779, 60 Pac. 1055, Mr. Justice Smith said:
“ The legislative intent is made clearly manifest by the title of the act above set out. We cannot ignore the language of the title, which in this case furnishes the light by which we may read the purpose of the legislature.”
In Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753, this court held:
“If necessary to give effect to the evident intent of a legislative enactment, its language may be completed by reading into it such inadvertently omitted words as may be requisite to express its .obvious sense.”
In the opinion, Mr. Chief Justice Doster said:
“If the words be of doubtful meaning'; if they be inartistically arranged ; if the syntax be violative of the rules of composition; if ellipsis, tautology or redundancy occur, the statute must be examined in other lights than those afforded by the mere words employed, and chief among these lights are those afforded by the evident purpose and intent of the legislature and the entire context of the statute.
“Another important rule is that all parts of the act must, if possible, be given a meaning and be allowed to stand.”
In arriving at this conclusion,-we also take into con sideration the'prior decisions gf this court, placing a liberal construction on statutes creating exemptions, to uphold the exemption. (Mallory v. Berry, 16 Kan. 293.)
Counsel for defendant in error direct our attention to the case of Reighart v. Harris, 6 Kan. App. 339, 51 Pac. 788. We have examined this decision. It is squarely in point and directly opposed to the construction here placed upon this act. We are unwilling, however, to yield our assent to the doctrine there announced. Its authority is therefore denied.
Our attention is also called to the case of Cranz v. White, 27 Kan. 319, 41 Am. Rep. 408. That case arose upon the construction of a federal statute, and the act is held to protect pension money due, or to become due, only until it has reached the hands of the pensioner, and not to protect the proceeds deposited in bank, as was the fund in this case. The federal act, however, is different from the one we are here construing, and that decision is not in conflict with the views herein expressed.
It follows that the judgment must be reversed and case remanded for further proceedings in conformity to this opinion.
Smith, Cunningham, G-kbnnjí, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The defendant in error, Wangerin, executed his note for sixty dollars’ to one Mc-Naspy, as payee. The note was written by the payee upon a printed blank, and in such form that, after Wangerin had signed, McNaspy was enabled to place in the scroll prepared for the figures representing the number of dollars the figure “1” before the figures “60,” and to write in the line prepared for the written amount and before the word “sixty” the words “one hundred and.” This was all done in such manner that no one would be able to discover the change or alteration by the closest scrutiny, and thereby the note appeared to be one executed by Wangerin for the sum of $160. This note was sold for its full value to the plaintiff in error, in the regular course of business, before maturity, and- without notice of any changé. The question is whether the bank can recover either the face of the note or the original consideration of sixty dollars from Wangerin. The district court held that it could not.
The authorities.are at variance on this proposition, the greater weight, and,, as we think, the better reasoned, being that no recovery can be had on the note. The cases holding the contrary rule do not agree on the reasons therefor. Some place it on the ground of negligence on the part of the maker, in this, that in the drawing of a negotiable promissory' note, which might or probably will be-sold to an innocent holder, he is bound, at his peril, to see that the instrument is executed in such form that an alteration therein could not be made so as to deceive and mislead an innocent holder thereof ; that it is the duty of the maker to use all such reasonable means as are necessary to guard against the alteration of the note so as to defraud the indorsee. Others hold that the maker is estopped from denying the execution of the note by the equitable doctrine that, where one of two innocent parties must suffer from the wrong doing of a third, he must suffer who has made it possible for such third party to commit the injury. It does not very clearly appear from the argument of the plaintiff in error which one of these principles it invokes, though it undoubtedly is willing to avail itself of either.
We think the former ground is not available, because the proximate cause of the injury to the indorsee was the fraudulent and criminal act of McNaspy in raising the amount of the note, and not the negligence of Wangerin in its execution. Wangerin cannot be held to be negligent for not anticipating that McNaspy would, or might, commit this act of forgery, such acts being unusual and not to be anticipated. Indeed, we think it may be safely held that on one can ever be charged with negligence for his failure to make it impossible for another to commit a crime.
The equitable principle is not fairly stated by the quotation from plaintiff in error’s brief, that “where one of two innocent parties must suffer loss by the fraud of a third, he who has made the loss possible by his negligence must bear the burden of loss.” It would be better to say that where somebody must be the loser by reason of a deceit practiced, he who employs and puts trust and confidence in the„deceiver should'be the loser rather than the stranger. In order to estop one by the acts of another, such other must be in some way clothed with an agency to act for the one sought to be estopped, and the maxim does not apply where the party who did the injury did so without warrant or authority, express or implied, from any one. In this case, as McNaspy can in nowise be said to be the agent of Wangerin, the latter cannot be estopped by an unauthorized, much less by a felonious, act of his.
In 1877, Chief Justice Gray, speaking for the supreme court of Massachusetts, in Greenfield Savings Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67, after a full review of all the cases on both sides of this question decided up to that time, said :
‘The alteration of a promissory note by one of the makers, by increasing the . amount for which it was made by the insertion of words and figures in blank spaces left in the printed form on which it was written, avoids the note as to such makers as do not consent thereto, even in the hands of a bona fide holder for a valuable consideration.”
Since that time, the supreme court of Kentucky, alone of all the courts of last resort in this country, in Bank of Commerce v. Halderman, 58 S. W. 587, following its former, decision, has taken the contrary view. On the other hand, the view expressed in Greenfield Savings Bank v. Stowell, supra, has been sustained in the following cases : Cape Ann National Bank v. Burns, 129 Mass. 596 ; Exchange Nat. Bank v. Bank of Little Rock, 58 Fed. 140, 7 C. C. A. 111, 22 L. R. A. 686; The Knoxville National Bank v. Clark, 51 Iowa, 264, 1 N. W. 491, 33 Am. Rep. 129; Fordyce v. Kosminski, 49 Ark. 40, 3 S. W. 892, 4 Am. St. Rep. 18 ; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378, 3 L. R. A. 576, 14 Am. St. Rep. 371; Cronkhite v. Nebeker et al., 81 Ind. 319, 42 Am. Rep. 127 ; Searles v. Seipp, 6 S. Dak. 472, 61 N. W. 804. The same principle is also announced in Bigelow’s Law of Bills, Notes, and Cheques, 216, 221; 2 Parsons’s Notes and Bills, 549; 1 Randolph’s Commercial Paper, section 187. We think the same general principle has been announced by this court in Horn v. Newton City Bank, 32 Kan. 518, 4 Pac. 1022.
Many cases can be found supporting the'rule, and probably the law is that, where an instrument, as uttered by the maker thereof, is in an incomplete form, having blanks which palpably invite addition or change, the maker will be held to have empowered the payee to fill such blanks as his agent, and when such instrument, so changed, is found in the hands of an innocent holder, it should be enforced against the maker ; but the case at bar is not of that kind. Here the instrument was complete in every respect when delivered to the payee, and we must hold, following the proper reasoning, and as we think the great weight of authority, that where a negotiable instrument is delivered to a payee, complete in all of its parts, the maker thereof is not liable thereon to an innocent holder, after the same shall have been fraudulently altered so as to express a larger amount than was written therein at the time of its execution.
It is, however, insisted that the plaintiff in error is entitled to recover in this action the original amount for which the note was given. The petition, besides setting out the note in its altered form, discloses all of the facts of the transaction, among them that the note was given March 26, 1896. This action was not commenced until July 20, 1900. Admitting that had action been commenced in time and upon proper allegations a recovery could have been had as for money had and received, yet in this case the petition on its face shows that more than three years elapsed between the date of the transaction and the bringing of the action, and hence recovery is barred by the statute of limitations. It follows that recovery cannot be had either on the note, for that is not the contract of defendant, or on the original transaction, as that is barred by the statute of limitations.
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
Valentine, J.:
On January 24, 1883, in an action then pending in the district court of Wabaunsee county, in which M. T. Green, Frank Colpetzer, and Robert Pierce, who were partners in business under the firm-name of the Chicago Lumber Company, were the plaintiffs, and School District No. 63, of Wabaunsee county, Kansas, and S. J. Martin were the defendants, a trial was had as between the plaintiffs and the school district, and a verdict and judgment were rendered in favor of the plaintiffs and against the school district for the sum of $477.41, and such judgment was declared to be a lien upon lot number 28 in Ensign’s addition to East Eskridge, in the county of Wabaunsee; and a judgment was also rendered in favor of the plaintiffs and against S. J. Martin upon a default for the sum of $545.75, and for costs of suit. Within proper time the school district filed a motion for a new trial; and this motion was overruled on October 12,1883. Afterward many proceedings were had with reference to the case which are now immaterial, and which we shall not now take the trouble to mention; but finally, and on June 15,1887, the school district filed a motion in the district court to set aside and vacate the aforesaid judgment against itself. Afterward, and on July 16, 1887, an alternative writ of mandamus was allowed by the judge of the district court, and issued, ordering the school-district board to levy a tax to pay said judgment or to show cause why it should not do so. The school board made return to this writ. On July 22, 1887, the motion to set aside and vacate said judgment, and the issues tendered by the alternative writ of mandamus and the return thereto, were heard by the court, and decided. The court overruled the motion, and awarded a peremptory writ of mandamus; and to reverse the order overruling the motion and the judgment awarding the peremptory writ of mandamus, the school district as plaintiff in error, and no one else, brings the case to this court, making the Chicago Lumber Company, and no one else, the defendant in error. The plaintiff in error sets forth in its brief filed in this court its various grounds for reversal, as follows:
“1. The judgment was void, it being a money judgment, in a proceeding to foreclose a mechanics’ lien and a money judgment against Martin, the contractor, without personal service.
“2. The decree of foreclosure is against property not decribed in the plaintiff’s statement for a mechanics’ lien.
“3. The petition was not sufficient in law to authorize a judgment thereon against the school district.
“4. The court had no jurisdiction over Martin, the contractor, and the judgment was void as against the school district.
“5. The school district did not authorize its attorneys to enter a general appearance to the action before Martin, the contractor, was made a party, and that their appearance was made inadvertently, and they were misled, caused by the approval, by the trial judge, of service by publication, when in fact there was no service on Martin.
“6. The school district is aggrieved by this verdict and judgment, and prejudiced thereby.
“7. The district has a valid defense to the action.”
The plaintiff in error also sets forth in its brief filed in this court its various grounds for reversal in a much more elaborate form than above, but they are too voluminous to be copied into this opinion, and it is not necessary to copy them, for the above gives their substance. If the judgment rendered on January 24, 1883, in favor of the Chicago Lumber Company and against the school district, is, upon the showing made to the court below, void, then of course the court below erred in not sustaining the motion to set aside such judgment, and also erred in granting a peremptory writ of mandamus to enforce the judgment. But if such judgment is not void, then no such error was committed. If the judgment is not void, it is immaterial now, and in this proceeding, how irregular it may be. It is also immaterial whether the judgment rendered in favor of the Chicago Lumber Company and against Martin is regular or irregular, valid or void. Martin is not complaining. But neither judgment is void. It may be that the judgment rendered against the school district is slightly irregular in form, but if so, still the irregularity does not render it void. The judgment is nevertheless to be enforced in accordance with the provisions of § 31, article 4, chapter 122 of the Laws of 1876. (Compiled Laws of 1885, p. 827, ¶5492.) The judgment against Martin is also very irregular, and can affect him only so far as it has reference to the property mentioned in the judgment. The court unquestionably had jurisdiction of the school district and of the subject-matter of the action, and had the right unquestionably to render against the district, substantially the very judgment which it did render against it. The property described in the judgment is lot number 28 in Ensign’s addition to East Eskridge. The property described in the mechanics’ lien is described in precisely the same manner, except that the description leaves out the word “East.” This, from anything appearing in the case, can make no possible difference, as it was not shown that there was any other Ensign’s addition to Eskridge, or any other Ensign’s addition to any part of Eskridge, than Ensign’s addition to East Eskridge. (See also Cordes v. The State, 37 Kas. 51.)
We think no error was committed by the court below; and both the order overruling the motion to vacate and set aside the judgment, and the judgment granting a peremptory writ of mandamus, will be affirmed.
All the Justices concurring. | [
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Per Chtriam:
This case was decided in this court on January 5,1889, (21 Pac. Rep. 284,) and in due time a motion for a rehearing was filed, which motion has now been presented to this court. Nearly every point presented by counsel in their original briefs has been again presented by counsel in their oral argument upon the motion for the rehearing. It is unnecessary, however, to again discuss any point which has already been .discussed in the former opinion, for we think that such opinion correctly states the law and the facts of the case as far as it goes. Nor do we think that it is necessary to discuss at this time any of the points made, except one with reference to the statute of limitations, which point was presented in the original briefs, but overlooked by this court when the case was formerly decided. This was an action of ejectment, and also for profits and damages. But it is not necessary now to consider the action with respect to anything but the damages claimed and the statute of limitations supposed to bar the same. The defendant, among other defenses, pleaded the two-years statute of limitations as a bar to any- recovery for damages. (Civil Code, § 18, subdiv. 3.) The facts upon which this question is raised are substantially as follows: It appears from the pleadings and the evidence that the railway company constructed its railroad over the plaintiff’s land in 1879 and in 1880, commencing about September 1, 1879, and completing the road about March 1, 1880; and it has continuously operated its railroad across the plaintiff’s land ever since. During the construction of this railroad the company injured the plaintiff’s land by making cuts and fills, digging down banks, filling up hollows, making embankments in low places, digging ditches, cutting down and carrying away timber, injuring the grass and injuring two springs and a stream, and building a bridge. The greater portion of the injury done to the plaintiff’s land was done in 1879 and in 1880, but the railway company has also continuously occupied the plaintiff’s land, continuously trespassed ■ upon it, and continuously done injury to it and upon it from the time when it first entered upon the land to the present time. This case was commenced on January 16, 1886; and the defendant during the trial objected to such of the evidence as tended to show trespasses or damages committed by the defendant upon the land prior to January 16, 1884, upon the ground that all such trespasses or damages were barred by the aforesaid statute of limitations. After the evidence was all introduced the defendant asked the court to give the following among other instructions to the jury:
“7. The plaintiff is not entitled to recover any damages for trespass on the land described in his petition committed in the years 1879 and 1880.”
“10. The jury cannot award the plaintiff any damages done to the land described in his petition more than two years before the 16th of January, 1886.
“11. The plaintiff is not entitled to recover from the defendants in this action anything on account of timber ¡that was cut down or removed from the land in question in the years 1879 .and 1880.
“12. The plaintiff is not entitled to recover from the defendants in this action anything on account of the digging up of the soil-or tramping down the herbage on the land described in his petition in the years of 1879 and 1880.”
These instructions the court refused, and in lieu thereof gave the following, and only the following:
“2. It follows that the plaintiff is entitled to recover the possession of said 4TYo aores- He is further entitled to recover as damages: 1st, the fair market value of the use of said supposed right-of-way for the three years next preceding the 16th day of January, 1886, when the action was commenced.”
“4. Nothing can be allowed for timber cut and removed unless the evidence shows it was done by the railway company, and nothing can be recovered for such timber cut by the company unless done within two years next preceding the commencement of this action.”
Under the instructions given by the court and the evidence, the jury awarded the plaintiff the sum of $428.50 as damages. The instructions as given by the court were substantially correct as far as they went. A plaintiff recovering in ejectment may recover for rents and profits for three years next preceding the commencement of his action, and only for three years. (Gatton v. Tolley, 22 Kas. 678; Seibert v. Baxter, 36 id. 189; Hill v. Meyers, 46 Pa. St. 15.) And in such a case he may recover damages for timber wrongfully destroyed by the defendant for two years next preceding the commencement of his action, and only for two years. (K. P. Rly. Co. v. Mihlman, 17 Kas. 224; Frankle v. Jackson, 30 Fed. Rep. 398; Silsby Mfg. Co. v. The State, 104 N. Y. 562; same case 11 N. E. Rep. 264; Corlick v. Swinburne, 105 N. Y. 503; same case 12 N. E. Rep. 427.) In both cases the proper statute of limitations applies, and bars all recovery for all rents, profits or damages for the period in excess of the particular period prescribed by the statute, although the wrong may have been a continuing and continuous wrong, and for a much greater period of time than that fixed by the statute. And all trespasses upon real •estate are governed by the same rule with respect to the bar of the statutes of limitations that the wrongful destruction of timber is. “An action for trespass upon real property” can be brought only within the period of two years next after the commission of the trespass. (Civil Code, §18, subdiv. 3.) And it can make no difference that the action is coupled with the one for ejectment, or that the trespass has been continuous for more than two years.
Both the judgment of this court and the judgment of the court below will be modified as follows: The judgment of the court below rendered upon the first count of the plaintiff’s petition and relating to ejectment, will be affirmed; and the judgment rendered upon the second count of the plaintiff’s petition and relating to damages, will be reversed, and with respect to such damages a new trial will be granted. | [
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Opinion by
Simpson, 0.:
The defendant in error commenced this action against the plaintiffs in error in the district court of Cowley county, in December, 1885, to recover on two promissory notes executed by the plaintiffs in error: one dated on the 7th day of June, 1883, for $132.50, payable in nine months, and one dated on the 9th day of June, 1883, payable in twelve months, for $132.50; both bearing 10 per cent, interest from date, and both payable to the order of John Thompson. It is alleged that Thompson indorsed them to John H. Broadus, and Broadus to the plaintiff, both indorsements being before maturity, and for value.
The plaintiffs in error answered: 1st. A general denial of everything alleged in the petition; 2d, that they did not receive any consideration for the making of said notes, and that the defendant in error knew of such want of consideration at the time the notes were signed by them; 3d, they allege that these notes in suit were executed by them to take up two other certain notes of $125 each, each dated March 6, 1883, one payable January 1, 1884, and the other March 6, 1884, both bearing interest at the rate of 10 per cent, per annum, which notes were given to one Taylor Plolbrook; that the consideration of the same was a pretended sale or assignment of an interest in a pretended patent right, to wit, the right, title and interest of Taylor Holbrook in certain letters patent from the government of the United States, bearing date September 1, 1868, and denominated “The Great Heat Economizer and Fuel Saver,” numbered 81,714, for, to, and in the county of Chautauqua, state of Kansas; that said letters and said patent had expired at the time of said sale, and were wholly void and valueless for any purpose whatever; that said sale was felonious, fraudulent, and deceptive; that said two notes which were given were wholly without consideration and void; that the notes sued upon in this action have no other consideration, standing or basis than said two notes, and are therefore, wholly without consideration and void — all of which the defendant in error knew at the time said notes were signed by the plaintiffs in error, and before he acquired any pretended interest in said notes; 4th, they repeat and incorporate the allegations of the second and third defenses as a part of this defense, and allege further, that the pretended invention covered by the letters patent numbered in the third defense, was without novelty or utility, and was not properly patentable, and was wholly valueless, and that the sale of the right of Chautuaqua county, state of Kansas, under said letters patent, was fraudulent and deceptive, and was the only consideration for the two notes in the third defense mentioned; that said two notes were the only consideration for the two notes sued on; and that all these things were known to the defendant in error before the notes sued upon were signed by these parties, and before he acquired any interest in said notes; 5th, they repeat and incorporate the allegations of the second, third and fourth defenses, and make them a part of this defense; and further allege that the defendant in error is not the real owner of the notes sued upon, and is not the real party in interest as respects these notes; that one S. W. Phenix, of this county, is the actual owner of said notes, and that he has brought this action in the name of James S. Sterritt, who has no interest in said notes, to attempt to avoid the equities and defenses thereto; that the said Phenix at the time he became the owner of said notes, well knew the facts respecting their inception and making, and well knew all the facts set forth in these various defenses; 6th, they allege that John Thompson, the payee in the two notes sued on in this action, did not indorse said notes at any time, or receive ariy value for said notes from anyone, and that it is not true as alleged in each cause of action set forth in the petition, that John Thompson, the payee in said notes, indorsed the same for value. This defense is sworn to.
Trial was had at the January term, 1887. The trial court held upon the pleadings, that the burden of proof was on the defendant in error, who introduced evidence tending to prove the following: 1st, that the payee in the notes sued on, to wit, John Thompson, indorsed his name on the notes, and that they were transferred by said indorsement to one J. H. Broadus, and that the latter, for a valuable consideration, transferred said notes before their maturity to the plaintiff; 2d, that Broadus took said notes without knowledge of any of the defenses set up in the defendants’ amended answer. Thereupon the plaintiff rested.
The defendants, to prove the issues upon their part, introduced evidence tending to show that the payee in the notes sued on, John Thompson, never indorsed said notes, and that the same were delivered to Broadus without the indorsement of the payee thereon; that at the time and place they were delivered to Broadus, he threatened the defendants that unless they made and delivered the notes sued on to him, he would cause proceedings to be taken to arrest one V. R. Woods, son-in-law of Joseph W. Calvin, one of the defendants, then in the state of Colorado, upon the alleged criminal charge of sell ing mortgaged property, the property mortgaged to secure the payment of the first notes referred to; the said Broadus based his demand upon the fact that he held the notes for which the notes in suit were executed in renewal. The defendants then introduced V. R. Woods as a witness, and he testified that he was the same person who executed the original notes, and was then asked, “ What consideration did you receive for these notes?” This question was objected to, and the objection sustained. The defendants then offered to prove by this witness, and by other witnesses in the court-room, that the only consideration of the notes originally executed and of the notes sued upon, was the right to sell in Chautauqua county the worthless patent as hereinbefore stated, and that it appeared from the letters patent and from former deeds and assignments of them, that John H. Broadus had been the owner of said worthless patent right at one time, and that the written instrument showing that Broadus was a former owner, was in. the possession of the witness W. R. Woods at the time he made and delivered the original notes, for which the notes sued on were given in renewal. The written instrument was included in the offer made. The court ruled that before the matters mentioned in said offer could be introduced in evidence by the defendants, they must first introduce evidence to show that Broadus had notice or knowledge of the things in said offer mentioned at the time he took the notes sued upon in this action from the defendants. This ruling was duly excepted to. The defendants’ counsel then announced to the court that they relied upon the offer to prove that fact, and had no other evidence; whereupon the court ordered the jury to bring in, without leaving their seats, a verdict for the amount claimed in the plaintiff’s amended petition. To this direction an exception was saved. A motion for a new trial was filed and overruled, and the ruling excepted to, and a judgment was rendered on the verdict.
It is the settled law of this state, that when negotiable promissory notes payable to “order” are transferred before maturity by delivery merely, and not by indorsement, the assignee obtains merely an equitable interest in the notes, not the legal title thereto, and he must . _ .. . . . _ p . be prepared to meet ail equitable defenses that may be set up against the notes, in the event he brings a suit to enforce their payment. (McCrum v. Corby, 11 Kas. 465; Hadden v. Rodkey, 17 id. 429; The State v. Lee, 32 id. 360; Hatch v. Barrett, 34 id. 223.) It is said in these cases that there is no statute in this state that authorizes a negotiable promissory note, payable to “order,” to be transferred free from all or any equitable defenses or claims, except by indorsement. In this case the record recites that the plaintiff introduced evidence tending to show that Thompson, the payee in the notes, had made an indorsement; that the defendants introduced evidence tending to show that he had not made the indorsement. This disputed question should have been j urY3 and the court erred in directing a verdict, if the makers of the notes had introduced or offered to introduce (and that offer was improperly rejected) evidence tending to prove that there was no consideration for the notes.
We are now to inquire whether the record shows any evidence of the want of consideration in the original notes. This statement is made upon the theory that the notes sued upon are renewals of the original notes given for the patent right. This is not only denied by counsel for the defendant in error, but even if it were true, they claim in their brief that the makers of the notes sued upon cannot plead want of consideration in the original notes, and hence in these notes, because they are not privy to the contract under which the original notes were executed. To state their contention more definitely, it is that the makers of the renewal note, who are strangers to the original note, or to the contract by which it was executed, cannot defend against the renewal note by proving a total failure of consideration of the original note. This does not seem to be the law. The general rule, as laid down in the text by Daniel in his work on Negotiable Instruments, is, that if the1 consideration of the original note be illegal, a renewal of it will be open to the same objection and defense; (p. 163, § 163;) but if at the time the renewal was executed, the parties signing knew of the fraud in the original, they will be regarded as purging the contract of fraud, and cannot then plead it. The test, therefore, is knowledge or want of knowledge of fraud in the original at the time of the execution of the renewal, and not privity with the original contract under which the first note was executed.
While the test laid down in Daniel was not expressly mentioned in the case of Geiger v. Cook, 3 Watts & S. 266, yet in that case there was a renewal of the original note, and action brought on it, and the court say:
“If, however, the consideration of the note now sued on was nothing else than the former note, and the former note was void for want of consideration, this was the only mode in which the defendant could show that the present note was without consideration.”
This court, in the case of Fraker v. Cullum, 21 Kas. 551, say that—
“ Where a note is executed by an accommodation-maker, and is afterward without his consent or knowledge materially altered by an indorsee and holder thereof, such note is thereby rendered invalid; and afterward, where such maker, without having any knowledge of such alteration, executes new notes in lieu of the altered one, such new notes are given without any sufficient consideration therefor, and except in the hands of an innocent holder for value, their payment cannot be enforced against the maker.”
It is established, therefore, that in this state the condition upon which the defense can be made is want of knowledge of the illegality of the original note, when the renewal note is executed. Of course it must necessarily be that under certain circumstances the giving of a new note would preclude the party from denying the consideration of the old one, but we think that in this particular case evidence tending to show that there was no consideration for the original note, and hence none for the notes sued upon, ought to have been admitted. There was evidence introduced, according to the recitations of the record, that the execution of the notes sued upon was induced by threats of Broadus to have the maker of the original notes arrested for the sale of property mortgaged to secure these notes, he being a kinsman of those who signed the renewal notes. It is true that these threats of Broadus were not pleaded as a defense to the notes, but if true they establish the knowledge of Broadus respecting the inception of the original notes, and the consideration of the notes sued upon. This view is strengthened by the peculiar tactics of the defendant in error at the trial; he does not go on the witness stand and testify that he had no knowledge of the equities of the makers. He contents himself by showing that he was a purchaser for value and before maturity, and then rests-upon the presumption in bis favor of want of knowledge of the defenses. But he does offer evidence tending to show that Broadus had no knowledge of these defenses. If he purchased for value before maturity without knowledge, the knowledge of Broadus would not affect his title to the notes. The attitude in which the question is presented by the record • seems conclusive that .the makers ought to have been allowed to show by "V. R. Woods, the maker of the original note, that there was no consideration for it, and that the original letters patent ought to have been received in evidence, because they show at one time that Broadus was the owner of the patent, and consequently had knowledge of their expiration by operation of law. They were also entitled to prove that the patent was void for want of novelty and utility. It has been decided by the court in several cases that a note given for such a patent is without consideration. (National Bank v. Peck, 8 Kas. 660; McKee v. Eaton, 26 id. 226.) Enough was shown in this case, by evidence introduced and offered, to establish the fact that Broadus was the connecting link between the past transactions and the present arrangement. He owned the letters patent before the execution of the original notes. He was in possession of the original notes, at the time the notes sued upon were given, and surrendered them. He induced the execution of the renewal notes,, and the defendant in error claims through his indorsement. All this shows a straight and unbroken line of obligation on the part of the makers of both the original and renewal notes to Broadus. (Campbell v. Sloan, 62 Pa. St. 481.) Counsel for defendant in error claim that the delivery of the original notes to the makers of the notes sued upon is a sufficient consideration to constitute the notes in controversy a valid obligation against these plaintiffs in error, and cite authorities establishing that proposition. We have examined them, and if there was any consideration for the original notes, they would be applicable; but we have found no case that so holds when there is a total failure of consideration of the original notes; when that appears, then other principles control.
As there was some evidence introduced tending to show that the payee in the notes sued upon did not indorse them; and as there was some evidence introduced tending to show that Broadus had knowledge of the equities and defenses of the makers, and other evidence offered to show his knowledge, and that there was want of consideration for the original notes; and as the plaintiffs in error ought to have been permitted to introduce other and further evidence on that question; and as all these things were matters to be determined by the jury, the trial court erred in excluding the evidence, and in its direction to the jury; and for these errors we recommend that the judgment be reversed, and the cause remanded with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This is an action of mandamus, brought originally in this court by James H. Easter against J. G. Traylor, clerk of the district court of Lyon county, to compel the defendant to issue an order of delivery in a replevin action brought in the district court of that county by Easter against Waldo Worster, the sheriff of that county, for the recovery of certain personal property. The property in question is forty-five barrels and sixty-two cases of bottled beer. The defendant Traylor in his return to the alternative writ of mandamus, answers that the property in question is and was in the custody of the said Waldo Worster, sheriff of Lyon county; that the same had been previously seized by him in a criminal action, wherein the state of Kansas was the plaintiff and R. P. Hill, Charles Harris, J. G. Birchfield and Richard Walker were the defendants, and wherein the defendants were charged with selling and keeping for sale intoxicating liquors in violation of law; and the defendant Traylor further answers that he was, in an action brought by A. M. Flory, county attorney of Lyon county, in the name of the state of Kansas, against himself, Traylor, and the said Worster, enjoined by the judge of the district court from issuing- to any person any order of delivery in any action of replevin for the recovery of the property in question. There is no pretense or claim that Easter was a party to any of these pro ceedings. The clerk of the district court is purely a ministerial officer, and whenever an action of replevin is brought, and in such action the proper affidavit for an order of delivery and the proper undertaking are filed in the clerk’s office, it is the clerk’s duty to issue the order of delivery. (Civil Code, §§177,178.) If the defendant in the replevin action has any defense or defenses, it is for him to set them up in that action; and he may set up as many defenses as he may have. Intoxicating liquors are not contraband nor outlawed in this state. They are still property in legal contemplation, and may be legally manufactured and sold for certain purposes, and may be legally used for almost any purpose for which intoxicating liquors may ever be used. That the property was and is now in the custody of the sheriff, and in one sense in the custody of the law, is no defense to the clerk in refusing to issue the writ of replevin. He must obey the law. And the law requires him to issue it. In numerous cases it has been held by this court that such a defense as the above would not even in the replevin action be a good defense to the officer having the custody of the property. Among the cases, see Ament v. Greer, 37 Kas. 648. Neither is the order of the district court enjoining the clerk from issuing the writ of replevin any defense to the clerk in this action. Easter certainly has a right to his writ of replevin notwithstanding that order, and notwithstanding anything that has been shown or claimed in this case.
The peremptory writ of mandamus will be allowed. | [
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Per Owriam:
It was decided in C. K. & W. Rld. Co. v. Evans, ante, p. 94, 21 Pac. Rep. 216, that—
“ The plaintiff must conform strictly with the provisions of the statute, and cannot bring anyone in as a defendant, or proceed against any person, other than the officers named in the statute; nor can any matter be litigated in such special proceeding except the mere question of contesting the validity of such election.”
Under that authority, the order and judgment of the district court must be affirmed. | [
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Per Curiam:
On January 27, 1888, a judgment was rendered in the district court of Crawford county in favor of the plaintiff and against the defendant, in an action in which R. G. Rombauer was the plaintiff and James Patmor was the defendant. W. C. Perry was the attorney of record for the plaintiff, and John T. Voss and Ed. Van Gundy were the attorneys of record for the defendant. Afterward, and at the instance of the defendant, a case was settled, signed and authenticated for the supreme court, and on November 19,1888, the defendant, as plaintiff in error, brought the case to the supreme court, making the plaintiff below the defendant in error. On the same day a summons was issued from the supreme court, directed to the sheriff of Shawnee county, and on the same day it was served by one of the sheriff’s deputies upon the said W. C. Perry by delivering to Perry what purported to be a true copy of the summons. This copy seems to have been sufficient and perfect in every particular, except as follows: In the copy the name of James Patmor was given as James Palmer, and the name of R. G. Rombauer was given as R. G. Rambauer. In all other respects the copy of the summons seems to have been correct and unobjectionable. It describes the judgment as having been rendered in the district court of Crawford county in favor of the defendant in error, who was plaintiff below, and against the plaintiff in error, who was defendant below, and the names of John T. Voss and Ed. Van Gundy were indorsed upon such copy as the attorneys for the plaintiff in error. On February 9, 1889, the defendant in error, by his attorney W. C. Perry, filed a motion in this court for the purpose of having the aforesaid service of summons set aside and quashed, and the motion has now been presented to this court for decision.
We think the motion should be overruled. The service of the summons was made by an officer, and by a proper officer for such purpose, and was served upon the attorney of record of the defendant in error, a proper person upon whom to serve the writ. (Civil Code, § 545.) And the copy of the summons, although defective in some particulars, described the case with such particularity that there could not have been any possible doubt or mistake with reference to the case intended; and the defects in the copy of the summons were not from any fault or neglect on the part of the plaintiff in error or his attorneys, but arose wholly from oversight or mistake on the part of the officers. Whether the defects in the copy of the summons are such that they would render the service of the summons voidable if the motion to set aside the service had been made earlier, it is not necessary now to decide, for the defendant in error and his. attorney waited nearly four months after the service of the summons was made upon the attorney before either filed any motion attacking the service,- and the motion that was filed was not filed until more than one year had elapsed from the time of the rendering of the judgment complained of, and until after the entire time prescribed by statute for bringing a case to the supreme court had transpired. As to the service of writs upon the right person by a wrong name, etc., see Freeman on Judgments, § 154.
We think the service was not void, and as it was not void, it will not, under the circumstances of this case, be set aside. | [
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The opinion of the court was delivered by
Horton, C. J.:
The only question in this case is the measure of damages for a breach of the covenant of warranty in the conveyance of real estate. The land was purchased from T. E. Smith, his wife joining in the deed, November 1, 1869, for $600; after the date of the deed, the land was at all times subject to the control and disposition of the plaintiff, who rented the same for grazing purposes during the years 1882 and 1883 for $30; at the time of the conveyance to the plaintiff the title of the land was in T. E. Smith, but was based solely upon a tax deed executed April 22,1865; on February 18, 1886, the plaintiff voluntarily yieldéd the land to John W. Flora on account of his paramount title; Flora at the same time paid to the plaintiff the taxes, interest, costs and penalties to which the plaintiff was entitled under the tax law; the amount received by the plaintiff for taxes, interest, costs and penalties upon the tax deed paid prior to her purchase, was $684.02; she also received from Flora for taxes, costs, interest and penalties to which she was entitled subsequent to her pur^ chase, $715.98; at the time that the plaintiff yielded possession of the land, in February, 1886, it was worth $2,400. It is the contention of the plaintiff that as her measure of damages, she is entitled to the purchase-price of the land, to wit, $600, with interest thereon at 7 per cent, per annum from November 1,1869, making a total of $1,356. It is immaterial whether the tax deed gave possession or not. No one contested the plaintiff’s possession; she had full control of the land, and through her tenant, actual occupation, because it appears that she rented the land for grazing purposes during the years 1882 and 1883,'and was not held to account to anyone for the rents or for the benefits which she received flowing directly from the conveyance to her. It was solely by reason of the tax title and interest conveyed by T. E. Smith and wife that the plaintiff received so large a sum of money from Flora, when she voluntarily suffered eviction. As the land had a usable value, and as the plaintiff' had the possession thereof from the purchase to her eviction, with the opportunity of enjoying all of its benefits without liability to account for the mesne profits; and as she received in return of the taxes, interest, penalties, etc., an amount in excess of the consideration paid by her for the land, we do not think she ought to recover further or other damages from the defendants. (Stebbins v. Wolf, 33 Kas. 765.) If the plaintiff had not obtained possession of the land, or if the land had no usable or beneficial value, or if the plaintiff had been compelled to account for the mesne profits while the land was under her control, different questions would be presented for our consideration. It would be unjust, it seems to us, to say to the defendants under the facts of this case, that they should páy interest upon the purchase-money, and yet be allowed nothing for the use and benefits that the plaintiff has derived and had the opportunity to derive from the possession of the land which she obtained under the conveyance to her.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
By chapter 301, Laws of 1895, the legislature sought to vacate the lots, blocks, streets and alleys of four additions to the city of Hutchinson. Sections 1 and 5 of said chapter read:
“Section 1. That all lots, blocks, streets and alleys in G. O. Millar’s north addition to the city of Hutchinson, Reno county, Kansas, be and the same are hereby vacated; and that the fee in such streets and alleys shall revert báck to and be in the owners of such lots and blocks; such real estate being the northwest quarter of section number seven (7), township number twenty-three (23), range number five (5) west, in said county.”
“Sec. 5. Said lands so' vacated in the city of Hutchinson shall be and remain within the boundary of said city and be a part thereof, notwithstanding any law to the contrary.”
At the time the above act was passed, chapter 66 of the Laws .of 1893 (Gen. Stat. 1901, § 636) was in force. Section 2 of the latter act reads :
“Sec. 2. If any town site, or portion of a town site containing more than five acres, shall hereafter be vacated by the board of county commissioners or by act of the legislature, and such town site, or portion of a town site, is at the time a part of a city of the first, second or third class, the act of vacation thereof shall of itself detach the same from such municipal corporation, and it shall no longer be a part of such city, nor included within the cox-porate limits thereof.”
In November, 1899, the plaintiff in error was the owner of the tract of land known as G. C. Millar’s north addition to the city of Hutchinson, consisting of 126 acres. He sought to enjoin the collection of city taxes levied on the same for the reason that since the vacation of the addition by the act of 1895 the property was no longer a part of the city, nor included within its corporate limits, by the express language of the act of 1893. A general demurrer was sustained to his petition.
It is conceded on both sides that section 5 of the act of 1895 is void, for the reason that it conflicts with section 5 of article 12 of the constitution, which ordains that provision for the organization of cities shall be made by general law. (City of Wyandotte v. Wood, 5 Kan. 603 ; Gray v. Crockett, 30 id. 138, 1 Pac. 50; Callen v. Junction City, 43 id. 627, 633, 23 Pac. 052, 7 L. R. A. 736.) In Gray v. Crockett, supra, it was held that no special act of the legislature having for its purpose an enlarging or' contracting of the limits or boundaries of a city is constitutional.
Counsel for plaintiff in error contends that section 5 of the law of 1895 is distinct and severable from the remainder of the act, and that its constitutional invalidity in such case cannot affect the other sections; that the act of vacation may stand though section 5, attempting to retain the property within the city, may fall. This contention would be sound if we could say that the legislature would have enacted the other sections of chapter .301 of the Laws of 1895 with section 5 omitted. We must consider that the legislature had in mind the law of 1893, above referred to, when it passed the act of 1895. The passage of a special law vacating the lots, blocks, streets and alleys of an ad dition to a city would bring the land vacated within the operation of section 2 of chapter 66,-Laws of 1893, which provides that the act of vacation, ipso facto, excludes the addition from the corporate limits.
It is clear that the purpose of the enactment of section 5 in the special act was to keep the vacated property within the city and subject to its jurisdiction notwithstanding that the general law after the passage of the special one would exclude it. Having a purpose and design in the use of section 5, can we say that the legislature would have passed the law vacating the land with that section omitted? It must be answered in all cases that the legislature, when it passes a law, intends that every part of it is to be given effect.- When it appears, as it does here, that the passage of the invalid section may have been the inducement or compensation for the passage of the constitutional sections, then a removal of the void part must cause the whole act to fall. This question was ably discussed by Mir. Justice Brewer, in C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453. The case of Slauson et al. v. The City of Racine, 13 Wis. 398, quoted from at page 459 of the opinion, is nearly parallel in its facts with the ease at bar. We are firmly of the opinion that it was the fixed purpose of the lawmakers to keep the land within the city by the insertion of the provisions of section 5 in the act, and that the law would not have passed without the inclusion of that section. We hold, therefore, that the whole of the special act is void.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
T. M. Rodman, an employee of the receivers of the Union Pacific Railway Company, was killed by an engine of defendant on its line of road in Kansas City, on the 14th day of April, 1896. On the 1st day of August, 1896, Amanda Rodman, his widow, commenced an action against the receivers of the Union Pacific Railway Company and the Missouri Pacific Railroad Company of Missouri, to recover damages for the death of Rodman by wrongful act, in accordance with the provisions of section 422a of the civil code (Gen. Stat. 1901, §4872). That action was removed to the circuit court of the United States for the district of Kansas, and thereafter, on the 1st day of December, 1898,-was dismissed therefrom by plaintiff, without prejudice to the bringing, of a future action.
Meanwhile, the widow having been duly appointed and qualified as administratrix of the estate of deceased, this action was commenced by her in her representative capacity in the court of common pleas of Wyandotte county against the Missouri Pacific Railway Company of Kansas, on the 28th day of December, 1898, to recover damages for the death of the deceased, under the provisions of section 422 of the code (Gen. Stat. 1901, §4871). The defendant answered, among other defenses, denying jurisdiction in the state court to try or determine the controversy, and also pleaded in bar tbe limitation contained in the act under which suit is brought. The trial court sustained a demurrer to the evidence offered by plaintiff and entered judgment for costs in favor of defendant. Plaintiff below brings error.
The questions arising upon this record for our determination are well defined, clearly presented, and important. It is affirmed on the one hand, and denied on the other, as follows: (1) That, the former action having been properly removed into the federal court, the loss of jurisdiction by the state court over the subject-matter was absolute and final, not alone as to the action so removed, but as to this action brought after dismissal of the former action from the federal court; (2) that the pendency of the former action, wherein the widow in her personal capacity was plaintiff, and the receivers of the Union Pacific Railway Company and the Missouri Pacific Railroad Company, alleged to be a corporation of the state of Missouri, were defendants, did not operate to suspend the running of the general statute of limitations as to the present action, wherein the widow in her representative capacity, as administratrix, is plaintiff, and the .Missouri Pacific Railway Company, alleged to be a Kansas corporation, is defendant; (3) that section 422 of the civil code creates a right of action for damages for death by wrongful act, in the absence of which no such right of action would exist, and prescribes as a condition to such right of action the time within which the right must be exercised ; and, as the present action was not brought within the prescribed time, the right was lost, and this notwithstanding the pendency of the prior action and its failure otherwise than upon the merits within one year next preceding the bringing of this present action.
Upon the first question raised the authorities are divided. Decisions from courts of high standing and undoubted authority are not wanting in support of this contention of defendant in error, notably, the decision of the supreme court of Ohio in Railway Co. v. Fulton, Adm’r, 59 Ohio St. 575, 53 N. E. 265, 44 L. R. A. 520, and that of the supreme court of Georgia in Cox v. The East Tennessee, Virginia &, Georgia Railroad, 68 Ga. 446. "We think, however, both the weight of authority and the better reasoning are against the conclusion reached in these decisions.
When, in an action pending in a state court, cognizable in and removable to the federal court, there is filed in due time a proper petition and bond for removal to the federal court, the state court, ipso facto, loses jurisdiction, and any further proceedings taken by the state court in that action, or a subsequent action brought on the identical subject-matter, between the same parties, during the pendency of the action removed to the federal court, or after final judgment therein, is coram non judice, and void. But when the federal court, by dismissal, relinquishes its jurisdiction over the subject-matter of the action and the parties without adjudication of the merits, the plaintiff may again invoke the jurisdiction of the state court, and that court may properly proceed to a determination of the controversy irrespective of, and unaffected by, the former removal to, or jurisdiction in, the federal court. (Gassman v. Jarvis, 100 Fed. 146 ; Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354; Hughes v. Green, 28 C. C. A. 537,84 Fed. 833; Chamberlain v. Eckert, 2 Biss. 124.)
Thb conclusion reached in this case renders it unnecessary to express any opinion on the second proposition stated. For, conceding the case at bar to be, in parties and subject-matter, sufficiently identified with tbe action first brought and removed to the federal court, and therefrom dismissed without prejudice prior to a determination of the merits, and within one year next preceding the commencement of this present action, to have conserved a right of action governed by the general statutes of limitations, yet, we do not think plaintiff can recover. Section 422 of the civil code, provides :
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
Section 422a provides:
“That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or, where there is no widow, by the next of kin of such deceased.”
Under this section, Amanda Rodman, as widow, brought the action which was removed to the federal court and dismissed therefrom without prejudice, within a year next preceding the bringing of the present action. Section 23 of the code (Gen. Stat. 1901, § 4451) provides:
“If any action be commenced within due time and a judgment thereon for the. plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.” '
The question is, Did the pendency of the former action and the saving terms of this section suspend the operation of the limitation provided in section 422, and permit the bringing of the action at . bar more than two years after the cause of action arose? The question here presented is one of first instance in this court. Our decision is therefore untrammeled by any former controlling opinion, and is based upon, and induced by, an examination of many decisions arising upon kindred statutes, and the reasoning therein employed. The precise question has seldom arisen. Questions analogous in their nature are of frequent occurrence.
At common law, or in the absence of section 422, no right of action would exist in this state in favor of any one to recover damages for the wrongful death of Rodman. (Insurance Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580; Dennick v. Railroad Co., 103 id. 11, 26 L. Ed. 439; The Harrisburg, 119 id. 199, 7 Sup. Ct. 140, 30 L. Ed. 358.) The general character and purpose of the act, and the nature of the limitation therein contained, has many times received the consideration of the courts. This court in Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57, in considering the act of Missouri creating a right of action for wrongful death, said:
“The right thus conferred is a conditional one, and the plaintiffs in such action must bring themselves clearly within the prescribed conditions necessary to confer the right of action.”
In the opinion, Mr. Justice Johnston said:
“The provision designating when and by whom the suit may be brought is more than a mere limitation— it is a condition imposed by the legislature, which qualifies the right of recovery and upon which its exercise depends. The supreme court of Missouri has recently examined and interpreted this statute, and, in an elaborate opinion, reaches the conclusion that the right is a conditional one, and the condition, being annexed to the right as given in the statute, modifies the same, and in fact forms a part of the right itself.”
In The Harrisburg, supra, Chief Justice Waite, delivering the opinion of the court, in speaking of the statutes of the states of Massachusetts and Pennsylvania, said:
“The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is. a condition attached to the right to sue at all. ... It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.”
In Boston & M. R. R. v. Hurd, 108 Fed. 116, 56 L. R. A. 193, it was said :
“It has been universally held that, where a special statute of this character gives a remedy with an expressed limitation in the statute, the limitation is inherent in the right of action, and follows the remedy wherever there is an attempt to obtain it.”
In Taylor v. The Cranberry Iron Co., 94 N. C. 525, it was held :
“The provisions of this statute, limiting the time within which the action must be brought, is not a statute of limitations. The statute confers a right of action which did not exist before, and it must be strictly complied with. As there is no saving clause as to the time of bringing the action, no explanation as to why it was not brought will avail.”
Mr. Tiffany, in his work on Death by Wrongful Act, section 121, says:
‘ ‘ These special limitations differ in some. respects from those created by the ordinary statutes of limitation. Inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. The right is given subject to the limitation, and a subsequent changó in the period of limitation will not extend the period so as to affect an existing right of action.”
In the American and English Encyclopedia of Law, volume 8, second edition, page 875, it is said :
“It seems that provisions in the statutes authorizing actions for wrongful death which limit the time within which the actions shall be brought are not properly statutes of limitation as that term is genererally used. They are qualifications restricting the rights granted by the statutes, and must be strictly complied with. As the statutes confer a new right of action, no explanations as to why the suit was not brought within the specified time will avail unless the statutes themselves provide a saving clause.” (See, also, George, Adm’r, v. The Chicago, Milwaukee & St. Paul Ry. Co., 51 Wis. 603, 8 N. W. 374; Hanna, Administrator, v. The Jeffersonville Railroad Company, 32 Ind. 113 ; Best v. Town of Kinston, 106 N. C. 205, 10 &. E. 997.)
The precise question here under consideration arose iri Gerren v. Hann. & St. Jo. R. R. Co., 60 Mo. 405. It was there held:
“Under section 5 of the damage act, the new suit brought against a railroad, after non-suit, must be commenced within one year after the date of the injury. Section 19 of the chapter concerning limitations, authorizing the commencement of a new action within a year from date of non-suit, has no application to causes, the time for bringing which is not ‘prescribed by that chapter, but otherwise limited.”
Also, in L. S. & M. S. Ry. Co. v. Dylinski, 67 Ill. App. 114, it was held :
“Actions for damages resulting from the death of a person caused by the wrongful act of another may be commenced within two years after such death. The time is not extended by a non-suit in a previous action.”
Many cases have arisen in which it has been held that minority or other legal disability of.the party entitled to bring and maintain the action will not operate to extend the time prescribed in the statute for the bringing of the action, in the absence of a saving clause in the act itself. (Foster v. Railroad Co., 72 Miss. 886, 18 South. 380 ; Murphy v. The Chicago, M. & St. P. Ry. Co., 80 Iowa, 26, 45 N. W. 392; Rest v. Town of Kinston, supra; O’Keif, Admr., v. Memphis & Charleston R. R. Co., 99 Ala. 524, 12 South. 454; Louisville & Nashville Railroad Company v. Sanders, &c., 86 Ky. 259, 5 S. W. 563.)
In Beebe v. Doster, 36 Kan. 666, 14 Pac. 150, this court held the general provisions of the statute of limitation,* ineffectual to extend the special limitation of five years contained in section 141 of the tax law providing for the bringing of an action to recover lands sold for taxes, notwithstanding the non-residence of the defendant. It has also held that the contrac tual limitation contained in a policy of insurance is not governed or controlled by the general 'statutes of limitations. (McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. 478.)
A review of the authorities bearing on the question controverted compels us to hold that the scope and effect of the act above quoted is not merely to provide a remedy for a cause of action existing independent of the act itself, but to create a cause or right of action where, prior to the passage, or in the absence of the act, none existed. As a part of the right of action itself, as a condition imposed upon and in limitation of the exercise of the right granted, it is provided that the action upon which recovery is had must be commenced within two years from the time the right of action arose. No excuse pleaded for delay in the commencement of the action for more than two years will avail, for the reason that no such excuse can in law be held sufficient.' A limitation upon the time in which a preexisting right of action may be exercised is governed by the general statutes of limitation, and, in consequence, falls within the saving provisions of section 23 above quoted. But the limitation in time of the commencement of the action here brought under this statute is imposed as a condition upon the exercise of the right itself,-is special and absolute in its nature, and is unaffected by the general provisions of section 23.
We are cited by counsel for plaintiff in error to cases in which it is claimed a doctrine contrary to the conclusion here reached is announced. We have examined the cases cited, and find but one in which the precise question here considered was either raised or determined. The exact question was presented and considered in the case of Swift v. Hoblawetz, 10 Kan. App. 48/61 Pac. 969. No authorities are cited in its support, nor are reasons given for the conclusion reached. Its authority is denied.
It follows that, the facts appearing on the face of the petition, the demurrer lodged against it'should have been sustained. Failing in this, the action of the trial court in sustaining a demurrer to the evidence offered by plaintiff, and entering judgment in favor of defendant, is right, and must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gkbene, J.:
In writing the opinion of the court in this case, we are paying a tribute to the learning of our lately deceased associate, Justice Ellis. Last April this cause was dismissed by this court in an opinion (not reported) written by him, holding that it had no jurisdiction over this litigation. In that opinion he did not concur. His insistence that the court had made a mistake greatly influenced it in granting' a rehearing, and, finally, in overruling its former opinion and adopting the views then entertained by him.
This was an action to recover damages 'claimed to have been sustained by the plaintiff, resulting from the negligence of the railway company, its agents and servants, in the shipment of two cars of cattle from Kansas City to Spivey, Kan. The cause was tried at the November, 1900, term of the district court of King-man county. A motion for a new trial was overruled, and on January 26,1901, final judgment for $250 was rendéred for plaintiff. The defendant below prosecutes this proceeding in error.
The defendant in error challenges the jurisdiction of this court on the grounds that his judgment became final on January 26, and that this court did not have jurisdiction at that time to entertain proceedings in error to review a judgment of the district court where the amount in controversy was less than $2000. In the former opinion it was held :
‘ ‘ The law of 1895 creating appellate courts, by grant ing to such courts exclusive appellate jurisdiction in ordinary civil actions ‘where the amount or value’ did not exceed $2000, and by repealing all acts and parts of acts inconsistent therewith, divested the supreme court of jurisdiction in such cases, and after the expiration of the courts of appeals, on the second Monday of January, 1901, the former jurisdiction of the supreme court did not revive and was not restored until the adoption of chapter 278, Laws of 1901, which took effect on March 5, 1901.”
With this view then entertained by the court, the cause was dismissed. Afterward, upon application of the plaintiff in error, a rehearing was granted and a reargument ordered on the following propositions
“Í, Is the act of March 5, chapter 278, Laws of 1901 (Gen. Stat. 1901, § 5019 ), in expressed terms retroactive ?
‘‘2. If so, does your case fall within the following terms of that act; that is, does such act create a distinction between judgments rendered prior to January 14, 1901, and those subsequently rendered?
“3. If so, did the legislature have the power to pass a retrospective act granting, the right to prosecute an appeal or proceeding in error from a final judgment, there being no prior law granting the right to prosecute an appeal or proceeding in error from such final judgment to this court?”
After this argument, the justices were unable to agree that, if'it were conceded that the act of 1901 is in expressed terms retroactive, and the present case within the saving clause of the act, the legislature had the power to pass a retrospective statute granting the right to prosecute an appeal or a proceeding in error from a final judgment.
The importance of the question, involving as it did a great number of cases, and the. insistence of Justice Ellis that the .court in its former opinion had misconstrued the act of 1895, led the court to a re examination of that act, after which it is now of the opinion that its original opinion was not a correct interpretation thereof. Pertinent to a better understanding of that act, as applied to the question under consideration, are the constitutional and statutory provisions which follow. Section 3 of article 3 of the constitution provides:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus'; and such appellate jurisdiction as may' be provided by law.”
Section 1 of chapter 27, General Statutes of 1868 (Gen. Stat. 1901, § 1894), is as follows :
“The supreme court shall be a court of record, and, in addition to the original jurisdiction conferred by the constitution, shall have jurisdiction in all cases of appeal and proceedings in error from the district and other courts in such manner as may be provided by law. . . .”
Section 542 of chapter 80, General Statutes of 1868, reads:
“The supreme court may reverse, vacate or modify a judgment of the district court, for errors appearing on the record. . . .”
The only modification of this general appellate jurisdiction found in the statutes, prior to the passage of chapter 96, Laws of 1895, is chapter 245, Laws of 1889, which provides :
“No appeal or proceeding, in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($100), except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying the case involving less than one hundred dollars ($100) shall certify to the supreme court that the case is one belonging to the excepted classes.”
It will thus be seen that up to the time of the passage of chapter 96, Laws of 1895, creating the courts of appeals, the supreme court had general appellate jurisdiction in all civil actions, except those enumerated in chapter 245, Laws of 1889. If this court has no jurisdiction to hear and determine the proceedings in error in the present case, it is by reason of the provisions of chapter 96, Laws of 1895, above referred to. Section 1 of this act reads :
“Except as herein otherwise declared, the jurisdiction of the supreme court, and the procedure therein, shall be as is now provided by law.”
It becomes important, therefore, to ascertain the exceptions contained in this act.
“Sec. 9. Said courts of appeals, within, their respective divisions, shall have original jurisdiction, concurrent with and to the same extent as is now given by law to the supreme court, in quo warranto, mandamus, and habeas corpus. They shall also have exclusive appellate jurisdiction as now allowed by law in all cases of appeal from convictions for misdemeanor in the district and other courts of record; also in all proceedings in error, as now allowed by law, taken from orders and decisions of the district and other courts of record, or the judge thereof, except probate courts, in civil actions before final judgment, and from all final orders and judgments of such courts, within their respective divisions, where the amount or value does not exceed two thousand dollars, exclusive of interest and costs. . . . All other cases of appeal and proceedings in error shall be taken as now provided by law.”
“Sec. 17. The terms of the judges so elected shall commence on the second Monday in January, 1897, and continue for the term of four years and until the second Monday in January, 1901, on which date said court shall expire. . . .”
“Sec. 21. When the courts of appeals shall cease to exist by limitation of law, all cases then pending and undetermined therein shall be certified and delivered by the clerks of said courts to the clerk of the supreme court.
“Sec. 22. All acts and parts of acts inconsistent with this act are hereby repealed.”
Transposing the language of section 1, it would read : “The jurisdiction and procedure in the supreme court shall remain as now provided by law, except as herein otherwise declared.” The exceptions are declared in section 9, and are: (1) That, instead of the supreme court’s having exclusive original jurisdiction in cases of quo warranto, mandamus, and habeas corpus, it shall have concurrent original jurisdiction with the courts of appeals; (2) that, instead of having exclusive appellate jurisdiction in appeals from convictions for misdemeanors from the district and other courts of record, it is divested entirely of any appellate jurisdiction in such proceedings ; (3) that it is divested generally of jurisdiction in all proceedings in error from the district and other courts, except the probate court, in civil actions before final judgment, and from all final orders and judgments of such courts within their respective divisions, where the amount or value in controversy does not exceed $2000, exclusive of interest and costs. The present litigation, by reason of the amount involved, falls within the classes enumerated in the third subdivision of section 9, as above expressed. The jurisdiction of which the supreme court was divested by the act was conferred upon the courts of appeals, and, by the terms of section 17, it was provided that such courts should expire ou the second Monday in January, 1901.
Was it the intention of the legislature permanently to divest the supreme court of appellate jurisdiction in all that class of cases enumerated in the act, or did it only intend that such jurisdiction should be suspended during the existence of the courts on which it was conferred ? There are no provisions in this act conferring jurisdiction of these cases on any other court after the expiration of the courts of appeals; therefore, we are of the opinion that the legislature only intended to suspend the operation of the general provisions of the statute during the life of the courts of appeals, and that, upon the expiration of such courts, in the absence of any statute further staying the operation of such provisions, they became at once operative and effective, and the jurisdiction of the supreme court over all classes of litigation enumerated in the act of 1895 immediately thereafter attached and became reinstated, as though no such act had been passed.
It is argued that section 22 repeals all provisions of the statute conferring jurisdiction on the supreme court, and, as that court can only exercise such jurisdiction as is expressly conferred on it by statute, therefore a new act is necessary to restore this lost jurisdiction. There is little force in this argument. The language'in section 22 is : “All acts and parts of acts inconsistent with this act are hereby repealed/’ This is not a general repeal of all former statutes, but oilly such as might in any way interfere with the operation of the act of which it is a part.
The former judgment rendered herein is overruled, and the motion to. dismiss is also overruled.
The cattle in question were shipped under a con tract which contained, among others, the following conditions:
“In order that any loss or damage to be claimed by the shipper may be fairly and fully investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company or to the nearest station agent, or if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock-yards until the expiration of three hours after the giving of such noticeand a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damage. . . .”
The plaintiff removed the cattle from the station at Spivey to his pasture in the country without giving notice of any injury. To avoid this obligation on his part, he alleged in his reply that the injuries for which he sued to recover damages were not discovered by him before removing the cattle from the yards, nor in time to comply with the provisions of the shipping contract. Upon the issues thus joined testimony was offered, both to sustain and to controvert the contention of plaintiff. Testimony was also offered fending to show that the injuries sustained by the cattle were such as would naturally occur in shipping and were known to plaintiff when they were removed from the yards.
The shipping contract in question, like any other contract, should be construed in the light of surrounding circumstances and with a view to carrying into effect the actual intention of the parties. It cannot be said that the company expected that the shipper would be compelled to notify it within three hours after the arrival of. the cattle of any injuries which they had sustained which were not observable; nor can it be assumed that the shipper contemplated, when signing the contract, that he was bound to such unreasonable requirements. The plaintiff was bound by the conditions in the contract, and he could not recover for any injuries sustained by the cattle which were obvious when the cattle were turned over to him, or which a reasonably careful man similarly situated would have observed, until he had fully complied with the conditions of the contract by giving the stipulated notice. Whether the cattle sustained any injury by reason of the negligence of the company, its agents or employees, or whether such injuries, if sustained, were discoverable by the defendant before removing them from the yards at Spivey, were questions of fact which the jury, upon conflicting evidence, found against the plaintiff in error. Such findings will not be examined, nor the evidence weighed by this court, when it appears that every material and essential fact necessary to sustain the findings is supported by some evidence, although it may be weak and conflicting.
The court, among its other instructions, gave the following:
“By special contract, the liability of a common carrier may be limited, but while this is true, it cannot stipulate against its own negligence, and, if it is guilty of negligence, it is liable therefor notwithstanding the terms of the written contract that may have been entered into. A special contract was entered into in this case concerning the fifty-seven head of cattle claimed to have been shipped by Mr. Morris, and both the plaintiff and defendant are bound by that contract, and the plaintiff under the terms of said contract cannot recover in this action. But if you find from the evidence in the case that the defendant, in the shipment of said cattle, was guilty of negligence, then it cannot protect itself from liability by the terms of the contract, and is liable in this action for such an amount as you find- from the evidence the plaintiff has been damaged by the negligence of the railroad company in the transportation of said cattle.”
Complaint is made that this instruction, in effect, was that, if the cattle were injured through the negligence of the railway qompany, its agents or employees, the plaintiff ought to recover for such injuries regardless of his compliance with the conditions of the shipping contract. If this instruction stood alone, or if it were not made plain by other instructions that the court did not have in mind and did not intend to express to the jury this idea, it would be erroneous ; but upon an examination of the other instructions, it is easily discoverable that the court was not stating a rule applicable to the cause on trial, but was trying to formulate and state the general principle that a common carrier cannot stipulate against its own negligence. In connection with the above instruction, the court gave the following :
“The contract of shipment in this'case contains the following clause : ‘In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated, and the fact and nature of said loss be preserved beyond dispute, and by the best evidence, it is agreed as a condition precedent to his right to recover any damage for a loss or injury to his said stock, during the transportation thereof, the shipper, or his agent in charge of- said stock, will give notice in writing of his claim therefor to some officer of the company, or to the nearest station agent, before said stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee.’ In this connection, I say to you that if you find from the evidence in this case that the cattle in question, at the time that they were unloaded, were then injured, or had been injured on the trip from Kansas City to Spivey by the negligence of the railroad company in transporting them, and that the plaintiff Morris had knowledge of such injuries, and having said knowledge he unloaded said cattle and removed the same from .the place of destination without giving the notice in writing provided for in the section of the contract above quoted, the removal of the said cattle in violation of the provisions of the said section of the said contract would be a complete bar to his right to recover in this action for any damages which he may have sustained by reason of the negligence of the company in the shipping of the said cattle, but this would not apply to damages which he may have sustained which he did not know of and were not readily to be seen.”
"While the contention of plaintiff in error in regard to this proposition is not without force, it appears to us, however, that as the jury in this latter instruction were plainly and distinctly informed that the plaintiff could not recover for any injuries which were easily discoverable, or which were known to him before removing the cattle and within time to give the notice as stipulated in the shipping contract, and, as it appears from the pleadings that the plaintiff in error was not seeking to recover for injuries that were discoverable or which he had discovered prior to removing the cattle or within time to give such notice, it cannot be said that the instruction was prejudicial.
The judgment of the court below is affirmed.
All the Justices concurring, Burch, J., not sitting. | [
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The opinion of the court was delivered by
Smith, J. :
Counsel for the railway company contend, first, that there was no evidence proving or tending to prove that the person who, it is claimed, pushed the plaintiff below from the car was in the employ of the railway company in the capacity of a brakeman or otherwise. Many decisions .are cited confirming the general rule that the declarations of a person are not competent to prove his authority to act as agent for another. It will be noted, however, that counsel for defendant below, upon cross-examination of the. plaintiff, interrogated him as follows :
“Ques. He said he was the head brakeman of that train? Ans. Yes, sir.
“Q. You supposed he had authority to run it, did n’t you? A. Yes, sir.”
These responses, now claimed to be incompetent, would not have been extracted from the witness except for their supposed benefit to the railway’s side of the case. Having sought to profit by the use of such testimony in its behalf, it cannot now be permitted to complain that the adventure was disastrous. It cannot avail a party bringing such testimony before the jury to invoke authority in denial of its competency. This testimony, coupled with the fact that the person who stated the capacity in which he was employed had a brakeman’s stick in his hand, and was engaged, when plaintiff approached him, in letting off a brake on the car, was prima facie evidence that he was a brakeman in the employ of the railway company.
The second contention of defendant in error is that, “assuming that the person who pushed plaintiff, if he was pushed, was a brakeman in the service of the railway company, then his act complained of was not in the discharge of any duty he owed the company.” The argument is that, in pushing the plaintiff from the car, the brakeman was acting on his own account, piqued by the refusal of O’Banion to pay him the amount demanded for passage on the train. It cannot be said that a brakeman situated as this one was, in charge of the front end of the train, did not have general authority to remove trespassers therefrom. [K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 Pac. 172, 59 Am. Rep. 596.)
In U. P. Ply. Co. v. Mitchell, 56 Kan. 324, 327, 43 Pac. 244, the authority of . a brakeman to eject trespassers was recognized by the approval of an instruction given to that effect. In Elliott on Railroads, volume 3, page 1962, the author notes the rule prevailing in this state, as announced in the case of K. C. Ft. S. & G. Rld. Co. v. Kelly, supra, that the ejection of trespassers is within the scope of the implied authority of a brakeman. If it were clear that in pushing O’Banion from the car the brakeman did so for the purpose of extorting money from him, or inflicted punishment on him in that way for not paying the sum demanded, then we might say that the brakeman was not, when so doing, engaged in the performance of any duty imposed on him by reason of, his employment as agent of the railway company. The brakeman owed a duty to his employer (the railway company) to remove trespassers from the cars which made up the train, and if, in the discharge of such duty, he recklessly or in a wilful, wanton or malicious manner performed it, and ejected a trespasser in a way to cause bodily injury, the railway company was liable for his acts. (U. P. Rly. Co. v. Mitchell, supra.)
Different minds might arrive at different conclusions, after considering the testimony introduced on behalf of plaintiff below, concerning the reasons -which impelled the brakeman to act as he did. "We are asked to determine that the motivé which actuated him in ejecting the plaintiff was a desire.for personal gain to himself, and that he was not influenced by any obligation of duty which he owed the railway company to keep trespassers from riding on the train. To arrive at the impelling motive in the case was a matter peculiarly within the province of the jury. After a demand for money made by the brakeman, and up to the time of plaintiff’s forcible ejection from the car, though the intervening time w$s short, there was a locus pcenitentix during which the servant’s continuing duty to his employer might have asserted itself and overcome his desire for personal gain, causing him to act solely in the interests of the company and not for his own benefit.
We cannot conclude, considering all the testimony given by the plaintiff below, that his injuries were the result of a wilful attack made on him by a person acting independently of and outside of the range Of his employment, when the servant who caused his injuries was, immediately before and directly after the plaintiff was hurt, satisfactorily proved to have been in the service of the company. The intent and purpose with which acts are done can be better ascertained by a jury composed of persons drawn from different vocations in life than by a body of professional men all engaged in one calling. Mr. Thompson, in his Commentaries on the Law of Negligence, says:
“It is obviously a question of fact for the determination of a jury whether, at the time of the particular act or omission by the servant, which caused the injury, the plaintiff’s servant was acting within the scope of his employment, or acting outside of it to effect some purpose of his own. (Yol. I, § 615.)
“Whether the person whose immediate negligence or misconduct caused the particular injury was acting at the time as the servant of the person sought to be charged frequently depends on such a variety of facts that it falls outside of any definite rule, and for that reason becomes, under proper instructions, a question of fact for the jury.” (Id. §616.)
The judgment of the court below will be reversed and a new trial ordered.
Doster, C.J., Pollock, J., concurring.' | [
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The opinion of the court was delivered by
Cunningham, J-.:
This is an original proceeding in habeas corpus. The petitioner is confined in the penitentiary, at Lansing, Kan., by virtue of a judgment of the district court of the fourth judicial district of the territory of Oklahoma, for Kay county. The return of the warden sets up in full the order of that court for the confinement of the petitioner. To this return petitioner demurs. We greatly doubt whether, in this condition of the pleadings, the question sought to be raised is properly presented, but, waiving this, we look into the merits of the petitioner’s application.
He rests his right to be discharged upon the following claim. The statutes of Oklahoma provide :
“If the offense charged in the indictment be punishable with death or imprisonment in the territorial prison for life, if it be made to appear by the affidavit of the accused and two disinterested persons that a fair and impartial trial cannot be had in such county, the change must be granted.” (Stat. 1893, § 5138.)
The offense charged against the petitioner was of the kind mentioned in this statute. It was made to appear by his affidavit and that of two disinterested persons that a fair and impartial trial could not be had in Kay county, and an application was based thereon for a change of venue as therein provided. This application was refused, and the trial of the petitioner resulted in his conviction and the sentence, by virtue of which he is being detained by the respondent. His claim is that, as the statute directs that the change of venue must be granted when the application is made in the form as therein indicated, upon the making of such application the court lost jurisdiction of the case, and all acts of the court thereafter were wholly without warrant in law and void. We are not able to give our assent to this proposition. Undoubtedly it was error on the part of the district court of Kay county not to grant the change of venue as asked for, the application being in accordance with the requirements of the statute. For its refusal to do so the order would, beyond question, have been reversed upon proper proceedings to the higher court. Such refusal, however, was but error, and did not defeat or oust the court of jurisdiction.
The case of Lincoln v. Territory of Oklahoma, 8 Okla. 546, 58 Pac. 730, is cited by the petitioner in support of his contention. Some of the language of the court in that case supports the petitioner’s claim. This case, however, was one in which a like order of a district court was attacked upon direct proceedings, so that the language found therein which would lend color to the petitioner’s contention is entirely obiter dictum.
The contrary rule has been announced by this court in Barnhart & Brother v. Davis, 30 Kan. 520, 2 Pac. 633. The statute therein discussed (Gen. Stat. 1901, §5306) provides, in substance, that if a party files an affidavit stating that he cannot have a fair trial in that court, the trial should be changed to some other justice of the peace. Proper application was made, but the justice refused the change, and this court upon these facts announced the law to be as follows :
“Where a sufficient application for a change of place of the trial is made before a justice of the peace under the provisions of article 7, chapter 81, Compiled Laws of 1879, and the party making the application confesses judgment for the costs before the justice, it is the duty of .the justice to change the trial of the case to some other justice of the peace, as pro vided in the statute; but even if the application be sufficient, and is overruled, the ruling is simply erroneous. The justice does not lose his jurisdiction over the case, and the judgment subsequently rendered is not a nullity, or void for want of jurisdiction.”
In the case of The City of Ottumwa v. Schaub, 52 Iowa, 515, 3 N. W. 529, the court held:
“A motion for a change of venue, though properly made and erroneously overruled, will not deprive the court of jurisdiction to proceed in the trial of the case.”
' Another statement from the same opinion is as follows:
“It was held by this court in Finch v. Martin, 46 Iowa, 384, that upon proper application a change of venue should be granted from the court of a mayor to that of a justice of the peace. But upon the filing of a motion for a change of venue the mayor does not lose his jurisdiction over the cause. If the motion is overruled, the ruling is simply erroneous. The judgment subsequently rendered is not void for want of jurisdiction. It follows that upon the appeal of this cause to the district court that court acquires jurisdiction, and that the motion to dismiss the appeal was properly overruled.” (Page 516.)
We are compelled to deny the application of the petitioner for discharge from custody upon his writ of habeas corpus.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
Robert Hawthorn Burton was informed against, tried, and convicted of murder in the district court of Marion county. On a former trial he was convicted of murder in the first degree, but on appeal the judgment of conviction was set aside for errors committed, and a new trial was awarded. (The State v. Burton, 63 Kan. 602, 66 Pac. 633.) The principal facts of the homicide are related in the report of the former appeal, and a restatement of them here is not necessary.
On this appeal the main and controlling considerations assigned for reversal arise upon the irregular actions of the jurors, and of those near to and in con-trol of them. In behalf of the defendant, it is said that unusual interest was taken by the people of the community in the trial and its result, and especially in the second trial, and that, to avoid any improper influences on the jury from commingling with the people who had decided opinions in regard to the killing of Hoffman, or who had especial interest in securing the conviction of the defendant, counsel requested the court to have the jury kept together under charge of a sworn officer during the trial, but the request was refused. In our state the law allows a separation of the jury, with the permission and under px’oper admonition of the court, until a final submission of the case. There are cases where the court in its discretion may well order the jury to be kept together, and away from the excitement and prejudices of the community, from the beginning of the trial. If there is danger that the enemies or friends of the accused will endeavor to reach and influence the jury, or that the jurors, in commingling with the public during the trial, will be exposed to improper extraneous influences or be affected by the passions and prejudices existing outside the court-room, it is the duty of the court to keep the jury together under the restraining supervision of an officer and beyond the reach of the outside parties and influences. Believing that such dangers existed in this case, the defendant requested that the jury be kept together during the trial under the care of a bailiff duly sworn.
It is charged, and the testimony offered on the motion for a new trial showed, that three brothers of the deceased, Hoffman, who attended the trial, as well as certain witnesses for the state, took occasion to mingle with, and make themselves agreeable to, the jury at every recess and adjournment of the court, and that when friends or attorneys of the defendant approached them the conversations with the jurors would cease, so that it was difficult to learn what they were saying, but they appeared to be holding private and confidential conversations with the jurors. One of the strange things in the case was the fact that William Hoffman, one of the brothers of the deceased, who had come from Colorado to attend the trial, although not a witness, roomed and slept a night with one of the jurors after the trial commenced. The juror had been assigned to another room, but for some reason was changed to the room occupied by Hoffman. They had conversation together, but the juror stated that the facts of the case were not discussed, and he further stated that he was not aware that his roommate ^was a brother of the man who was killed by Burton. There was proof to show that William Hoffman [offered to treat two of the jurors to drinks of malt ale at his expense, but they declined the offer. During ^the deliberations of the' jury, the sheriff and a deputy of his, neither of whom was sworn as bailiff in the case, entered the jury-room and held some conversation with the jurors, although nothing was said of the pending case. The occasion for their going was that the court had directed the sheriff to furnish supper for the jury to the bailiff. Instead of allowing the bailiff to,take the food to the jury, they carried it •into the jury-room, and one of them states that the jurors “jollied” them about the supper that was fur- • nished. Misconduct of a more serious character occurred during the deliberations of the jury.
^ The crucial point in the case was whether there was a necessity, or an apparent necessity, for the shooting of Hoffman. It was claimed by the defendant that Hoffman was a violent and desperate man, who had threatened the life of the defendant. One of the jurors stated to his fellows that he knew that Hoffman was nothing but a bluffer, and that he would ■ not have hurt anybody. A similar statement appears •¡to have been made by another of the jurors, and these [were not based upon the testimony in the case, but ^rested upon personal knowledge. Another juror stated |in the jury-room that a former jury had found the defendant guilty of murder in the first degree, and there was no reason why a different verdict should be 'ren dered now. There was further testimony that a juror stated to his fellows that everybody in Marion believed the defendant to be guilty of murder in the first degree. Several of the jurors testified positively that these extraneous and prejudicial statements were made. It is true that a greater number of the j irors testified that they did not make them, or hear them made, but they coupled with it the further statement that such statements might have been made in the jury-room, but, if so, they did not think they were based on the personal knowledge of the jurors.
We think the state wholly failed to meet the positive testimony that the prejudicial statements of an evidentiary nature were made, and in such case the burden rests on the state to prove that the defendant suffered no prejudice from misconduct and improper influences. It is true the jurors testified that they were not affected by the statements and extraneous influences, but that kind of testimony is hardly sufficient in a case involving the liberty of a prisoner for life. Jurors will generally hold the opinion, and honestly too, that they are not prejudiced by improper influences ; but who can -say that these statements, based on the personal knowledge of their associates, did not unconsciously influence their judgment and action? Who can say that they were not affected by the information wrongfully introduced in the jury-room that another jury had at another time found the defendant guilty of the highest degree of the crime with which he was charged? Nor is it easy to show that the defendant suffered no prejudice from the testimony from the outside that the public of Marion county believed he was guilty of murder in the first degree.
It is the aim of the law to surround a trial by such safeguards as will exclude all external and improper influences from the jury, and thus protect the rights of the defendant and prevent the conviction of the innocent. It has been said by this court:
“We cannot be too strict in guarding trials by jury, from improper influences, and in compelling a rigid and vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials. The verdict, when returned into court, must command entire confidence. It must be secure from all improper bias, and even from the suspicion of improper bias.” (The State v. Snyder, 20 Kan. 306, 310.)
When jurors, in their zeal to secure a finding of guilty against the accused, bring before their fellows material statements and facts based on personal knowledge, which were not given in evidence, confidence in their verdict is necessarily shaken. If such matters had been admitted in evidence in court, where the defendant had opportunity to meet and disprove them, it would have been material error; and where they are introduced before the jury when the defendant is absent, and without opportunity to challenge or meet them, they are still more hurtful and erroneous. In the nature of things, these extraneous statements were very prejudicial, and, as they were not shown to be without prejudice to the defendant, they necessarily vitiate the verdict and require a new trial. (A. T. & S. F. Rld. Co. v. Bayes, 42 Kan. 609, 22 Pac. 741; The State v. Woods, 49 id. 237, 30 Pac. 520; The State v. McCormick, 57 id. 440, 46 Pac. 777, 57 Am. St. Rep. 341.) This error, although sufficient of itself to accomplish a reversal, is somewhat emphasized by other irregularities and misconduct which have been mentioned. Some of them were manifestly without prejudice, while, as to others, it is not so easy to say that the jury were free from impartial influ enees, or that the defendant suffered no prejudice from them.
While we are reluctant to set aside a second conviction, we cannot sanction a verdict in a capital case surrounded with so many opportunities for improper influences, and where extraneous and prejudicial facts and statements were put before the jury while they were determining the rights of the defendant to life and liberty.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
Smith, Cunningham, Greene, Burch, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was a proceeding instituted in the probate court of Saline county, in the matter of the settlement and distribution of the estate of Nathaniel Head, deceased. O. S. Holden was an heir at law of Nathaniel Head, and was entitled to a share of the estate, which was in course of administration. A partial distribution of the funds belonging to the estate had been ordered by the probate court, and before making distribution the administrators applied to the court for a citation requiring Holden to appear and show cause why certain sums due from him to the estate on account and on a promissory note should not be retained from his distributive share, and that the court should determine and direct.how much should be paid to Holden out of the funds of the estate. In response to the citation, he appeared and alleged that he had no knowledge of any*¿ndebtedness on account; that the note mentioned had been paid at maturity; and, further, that if anything had been due from him to the estate on either accounts or note, it was barred by the statute of limitations. He asked the court to order the administrators to make payment of his distributive share without deductions on account of his alleged indebtedness to the estate.
Upon a hearing the probaté court held that he was indebted to the estate and that the amount of the same should be retained out of his distributive share, and ordered distribution upon that basis. He appealed to the district court, and when he reached that tribunal he asked that the proceedings be dismissed because the probate court was without jurisdiction in such cases. The application was denied, and the court, upon the proof offered, found that Holden was indebted to the estate upon the account and the note in the sum of $902.44, and that the amount should be deemed a part of the fund for the distribution, and retained from the share which the defendant would otherwise 'be entitled to receive.
Several grounds of error are alleged here, and. the first is that the probate court had no jurisdiction to determine the alleged indebtedness of Holden to the estate, nor to render judgments on such ordinary liabilities against living persons. This cannot be regarded as an action by the administrators to recover money from Holden, nor to obtain a judgment in favor of the estate against him. It was within the power of the probate court to ascertain the extent of the estate and in whose hands the funds or assets of the estate were held; and, also, to make such distribution as the law requires. Holden was claiming a share of the estate, and it devolved on the probate court to determine the amount of this share, and whether any portion of it was already in his hands. Before distribution could be made, it was necessary to ascertain the full amount of the fund to be distributed, and this could not be done until' it was determined how much of the fund Holden held. It was said in Proctor v. Dicklow, 57 Kan. 125, 45 Pac. 88 :
“That court haying jurisdiction to make distribution of the estate, it follows- as a necessary incident to its jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate.” (See, also, Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435 ; Lietman’s Executor v. Lietman, 149 Mo. 112, 50 S. W. 307, 73 Am. St. Rep. 374; Woern. Adm. §142.)
Any one interested in the distribütion can invoke this jurisdiction, and, therefore, it was competent for the administrators to apply to the probate court to have determined how much of Holden’s share re- ¡ mained to be paid, and as an incident it must decide the -extent of his indebtedness to the estate. It is to be noted that a judgment for the amount of the indebtedness against him was not asked, but it was rather to determine what amount of the fund should be paid to him ; and it may, be further remarked that he appeared in the probate court without questioning its jurisdiction, and. asked for a decision as to the amount of the share to which he was entitled.
Exception was taken to the admission of a book of accounts purporting to have been kept by Head, and which contained an- account with Holden. It was found among the effects of the deceased two days after his death. It was in his handwriting and contained numerous accounts of others than Holden, and apparently it was the only book of accounts kept by him. ' The account in question was under the name of Charles S. Holden, and was constituted of entries of debit and credit running over a considerable period of time, and while not as formal or regular as would have been kept by a merchant, we find nothing on its face to throw discredit upon it. No particular form of keeping accounts is prescribed by law in order to make them admissible in evidence, and the question of the competency of accounts is to be determined from their appearance and character, the employment and education of the one who keeps them, the manner in which other and similar accounts were entered, and the circumstances of the case. The same degree of formality and regularity is certainly not expected of a man like Head, who was an aged farmer of limited education, as would be of an expert accountant, but, although the account was not in line with the best methods of bookkeeping, we think it was sufficiently formal and intelligible, and sufficiently identified to make it admissible.
Holden set up the statute of limitations as a bar to any reduction of his share because of indebtedness to Head or his estate. The indebtedness, or at least a portion of it, would have been barred if_ an ordinary action to recover it had been brought. Is the statute applicable when the question is whether the indebtedness of an heir to an estate shall be retained out of his distributive share? We think the bar of the statute cannot be interposed in such cases. The theory of the law, and it is an equitable one, is that the indebtedness of an heir of the estate should be regarded as assets of the estate already in his hands, and that his legacy or share is to that extent satisfied. It would be grossly inequitable to allow an heir to obtain his full share Of an estate while he was withholding a portion of the same that was already in his hands. It has been said that “it is against conscience that he should receive anything out of the fund without deducting therefrom the amount of that fund which is already in his hands, as a debtor to the estate.” This is not a mere question of set-off, but of equitable lien and right of retainer. (Smith v. Kearney, 2 Barb. Ch. 548.) Our statute of limitations is one of repose and does not raise a presumption of payment, as in some of the states. The lapse of time does not extinguish an obligation nor satisfy a debt, but the statute simply bars the remedy and prevents the use of the obligation or debt as a cause of action of affirmative defense. Some of the courts have held that the statute of limitations applies, and that there can be no deduction from a distributee’s share'on account of an indebtedness which is barred. (Milne’s Appeal, 99 Pa. St. 483; Allen v. Edwards, 136 Mass. 138.) But the better, and probably the greater number of, authorities hold to the contrary view.
In Courtenay v. Williams, 3 Hare’s Ch. 539, the chancellor said that the proper answer to be made to a legatee who asks for the payment of his legacy without first paying his debt, even in a case where the remedy at law for the collection of his debt was barred by the statute of limitations, is : “You ask for a portion of the assets of the testator, but you are yourself a debtor to the testator’s estate, and his assets are diminished pro ta/nto by your default. It is against conscience that you should take anything out of the estate until you have made good what you owe it.”
The supreme court of Indiana in a well-considered case adopted the doctrine that a distributee is not entitled to receive his share while he retains in his own hands a part of the fund out of which his own and the shares of other distributees are to be paid, and that his indebtedness to the estate may be deducted, although a recovery upon the same would be barred by the statute of limitations. It was there said, in speaking of the right of retainer :
“This right is not one of set-off, but is founded on the principle that the administrator or executor has an equitable lien on the share of the distributee or. legatee until the latter has discharged the obligation which he owes to the estate. The heir or legatee, as the authorities affirm, is not, in accordance with justice or good conscience, entitled to be awarded and receive his share as long as he is a debtor to the estate and thereby has in his own hands a part of the fund upon which the payment of his own share and the shares of others depend. To allow a distributee to receive his share of the fund in the hands of the' administrator for distribution, while the former is in default in the payment and discharge of his own obligations to the estate, would serve to diminish the fund, and result, perhaps, to the prejudice of others. By permitting the distributee to receive his share,^hile he retains a part of the fund in his own hands, out of which his share ought to be paid, might, and frequently would, result in awarding to him a portion of the fund greater than that received by other equally entitled distributees. These principles, in reason, do and must apply when the recovery of the debt which the distributee owes to the estate is barred by the statute of limitation. The statute of limitation is one of repose, and is only a bar to the remedy, and not to the debt itself, simply leaving it unpaid without any legal remedy on the part of the creditor to enforce its payment by suit, in the event the debtor relies on the statute as a defense. Measured, however, by a moral standard, and one in accord with good conscience, the debtor is still under an obligation to pay his debt, although a recovery thereon under the law may be barred by the lapse of time.” (Holmes v. McPheeters, Ind., 49 N. E. 450.)
In Missouri, where the statute is similar to our own, it was said: . •
“It matters not by what name the proceeding is called, whether retainer, advancement, set-off, or assets in the hands of the legatee, the practical result is the same, and it rests upon wholesome principles of right and justice which can be administered in probate courts without the aid of a cohrt of conscience. The reason, necessity and wisdom of the rule is strikingly illustrated in this case, where an insolvent non-resident legatee seeks to diminish the distributive share of ot'hers by claiming a part of the estate, while he owes the estate twice -as much as his legacy amounts to. It is wholly immaterial whether the debt of the legatee is barred by limitation or not, the right to write it.off against the legacy remains unimpaired by any lapse of time.” (Lietman’s Executor v. Lietman, supra. See, also, Tinkham v. Smith, 56 Vt. 187; Armour v. Kendall, 15 R. I. 198, 2 Atl. 311; Rogers v. Murdock, 45 Hun, 80 ; Matter of Bogart, 28 id. 466; Wilson v. Kelly, 16 S. C. 216; Garrett v. Pierson, 29 Iowa, 304 ; Succession of Bougere, 28 La. Ann. 743 ; Coates v. Coates, 33 Beav. 249 ; Fiscus et al. v. Fiscus, 127 Ind. 283, 26 N. E. 831; 2 Woern. Adm. §564 ; Jeffs v. Wood, 2 P. Wms. 128.)
We find no error in the record, and, therefore, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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