text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
Error from Anderson district court. | [
-110,
-4,
-55,
-18,
-70,
-63,
0,
-114,
73,
1,
98,
87,
-17,
-58,
20,
107,
97,
127,
116,
88,
76,
-78,
51,
-30,
-10,
-5,
-25,
-41,
-79,
111,
-4,
-124,
92,
-96,
-118,
31,
70,
0,
-91,
-40,
-50,
3,
-103,
110,
-7,
107,
36,
104,
80,
47,
113,
-18,
-80,
63,
59,
67,
-24,
45,
-11,
41,
-54,
-45,
-77,
5,
127,
7,
-96,
116,
-109,
4,
88,
42,
-108,
-79,
2,
-72,
-74,
-106,
-122,
52,
11,
-69,
12,
100,
98,
1,
77,
-17,
-104,
-120,
7,
126,
-97,
-90,
-106,
40,
107,
-113,
-74,
-75,
116,
87,
111,
124,
109,
-59,
61,
40,
-125,
-17,
-112,
-105,
-51,
-128,
-120,
11,
-9,
19,
48,
113,
-51,
-106,
92,
70,
24,
26,
-46,
-70
]
|
Error from Republic district court. | [
-46,
-4,
-3,
-2,
-110,
33,
16,
-114,
89,
-125,
99,
87,
-17,
-57,
20,
59,
99,
111,
116,
122,
76,
-78,
119,
97,
-10,
-5,
-61,
-43,
-75,
109,
-12,
-84,
76,
-80,
-118,
95,
70,
-128,
-83,
92,
-18,
3,
-115,
-4,
91,
105,
48,
32,
-38,
47,
97,
-18,
-31,
60,
59,
99,
-24,
44,
109,
113,
-53,
-39,
-77,
13,
57,
1,
-95,
119,
-106,
12,
-40,
42,
-114,
61,
0,
-8,
118,
38,
-124,
-75,
35,
-5,
-95,
-26,
98,
-127,
93,
-83,
-72,
-88,
7,
94,
-97,
-90,
-109,
40,
107,
-81,
22,
-67,
84,
-58,
103,
124,
39,
-60,
63,
76,
11,
-18,
-48,
-77,
-52,
-80,
-118,
-61,
-17,
-62,
-80,
49,
-55,
-76,
92,
-58,
17,
26,
-33,
-66
]
|
The opinion of the court was deliyered by
Doster, C. J.:
The Consolidated Electric-light and Power Company was given permission by the city of Kansas City to carry its electric wires on a viaduct constituting a part of one of the streets. This the company did by stringing them on timbers projecting out from the side of the viaduct or bridge. There were a number of wires placed at distances of about a foot to several feet from the ends of the boards constituting the floor of the bridge. The sides of the bridge were guarded by an iron railing or balustrade several feet high, running, substantially speaking, over the ends of the boards constituting the bridge floor. However, many of the boards projected beyond, that is, outside the bridge railing. The electric wires alongside the viaduct were very defectively insulated, their insulating covers having rotted away in many places. This fact the company knew. Small boys were in the habit of climbing over the viaduct railing immediately by the electric wires. This fact the company also knew. Holly Healy, a boy about ten years old, and of the average intelligence and characteristics of boys of that age, climbed over the railing and came in contact with one of the electrically charged wires and was killed. •It is probable that the moment before he had been standing, or rather, moving about on the projecting ends of the bridge boards or the projecting wire supports. Suit was brought by his parents to recover damages for his death. Judgment went in their favor in the court below, to reverse which error has been prosecuted to this court.
The matter principally discussed is the question of the company’s liability under the circumstances stated. As to the boy, who was not at the time on the highway proper, but who was engaged in a dangerous sport immediately outside of it, was the company negligent in maintaining its wires in an uninsulated condition where he was liable to come in contact with them ? To our minds there can be no doubt as to the answer. It was liable. To an adult it might not have been. To a small boy in the buoyancy of sport, and lacking the intelligence and discretion of older years, it was liable, in view of the fact that it knew that children of his class were in the habit of venturing in dangerous proximity to its negligently kept wires.
The place where the boy met his death was one of those denominated in the books “attractive nuisances,” the keepers of which, according to those decisions which we regard as the sounder exposition of the law, are liable to one who, without inculpating fault on his part, is injured thereby. It is true the company did not maintain the bridge and the railing and the elevation above ground, constituting an attractive climbing-place for boys, and it may be that its wires were not themselves attractive playthings for the boys, but it maintained them in such immediate proximity to that which was .attractive as to constitute them an integral part of the whole. It put its wires within the attractive environment. It identified itself in that way with the attractive place. If one maintains a dangerous instrumentality on his own premises immediately against the premises of another, and within the sphere of the attractive influence of something on the latter, and a third one, venturing on the latter, is injured by coming in contact with the former, he would seem entitled to a recovery ; that is, assuming the necessary knowledge to charge the derelict party. The electric company had knowledge in this case. Its counsel attempt to explain that it had not, but it had. We have gone carefully through the evidence, and are convinced.
The principle applicable to this case has been several times declared in this state. It was done in the recent cases of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, and Biggs v. Wire Co. 60 id. 217, 56 Pac. 4, 44 L. R. A. 655. The subject has been thoughtfully considered in the second edition of Thompson on Negligence, volume 1, under the head of “Liability for Injuries to Children,” beginning with section 1024.
It is immaterial that the viaduct railing and its elevation above ground may not have been dangerous. They probably were, but for reasons peculiar to themselves. The boy did no,t come to his death because of dangers incident to the mere act of climbing. Nor is it material that the company’s wires were not attractive. The attractions of the viaduct railing as a place for sport and the defectively insulated wires as instrumentalities of danger were united together as a whole. We assume that the city is not liable, but, if it were charged with liability, it would be no answer to it to say that it did not furnish the element of danger. It would be-sufficient to reply that it furnished the attraction to entice into danger. When the company answers that it did not furnish the attraction, it is sufficient to reply that it furnished the danger to combine with the attraction. It could have neutralized the harmful ingredient of attractiveness in the compound by guarding against the danger, and to require it to do so is not to impose' upon it any greater burden than though it were responsible for both the hurtful constituents.
Other claims of error are made, particularly as to instructions, but none of them is well founded, and the judgment of the court below is, therefore, affirmed.
All the Justices concurring. | [
-80,
104,
-100,
-82,
10,
-22,
58,
90,
63,
-15,
-11,
-13,
-117,
-45,
-115,
97,
-33,
-17,
-48,
51,
-16,
-77,
7,
-117,
-110,
-13,
-15,
-59,
-79,
120,
118,
-33,
76,
112,
-54,
-107,
-26,
74,
-43,
-34,
-114,
21,
26,
-23,
25,
16,
52,
122,
54,
78,
17,
30,
-13,
42,
24,
-21,
-88,
46,
106,
-83,
-45,
121,
-118,
-105,
127,
20,
-78,
6,
-98,
-123,
-24,
60,
-40,
-79,
32,
-20,
115,
-92,
-121,
-28,
33,
-55,
-120,
-30,
98,
0,
5,
-25,
-4,
-56,
54,
-26,
-115,
-90,
6,
56,
3,
-89,
-65,
-33,
96,
20,
6,
-6,
-13,
69,
95,
-20,
3,
-117,
-92,
-45,
-19,
-76,
-106,
-123,
-53,
-87,
34,
84,
-42,
-80,
94,
68,
63,
23,
-97,
-66
]
|
The opinion of the court was delivered by
Ellis, J.:
This action was brought originally in the district court of Kingman county to enjoin the defendants in error from entering upon lands occu pied by the plaintiff below, and sowing wheat thereon in the fall of 1900. A temporary' injunction was granted, which was afterward dissolved, exceptions were taken, and proceedings in error instituted in this court to review such order of the district court. That case is number 11,930, and is decided at this term.
. Afterward the action was tried upon the merits, an injunction was denied, and plaintiff below, as plaintiff in error, brings the cause here for review.
The facts are that in the early spring of 1900 the plaintiff entered .upon the lands in controversy under a written lease, and planted about eighty acres of corn thereon. Such lease contained the following clause:
“That in case said first party shall during the continuance of this lease desire to sow or plow and prepare the ground for the crops of the following season, or to make any improvements thereon, he and his servants and agents may enter upon said premises for such purposes, without let or hindrance, and the party of the second part hereby waives all claims for damages incident thereto.”
In the succeeding September, defendant Boyd entered upon the land in controversy and began to sow wheat in the standing corn, claiming a right so to do under a lease which he asserted was made to him by an agent of the owner of the land with his authority; and to prevent Boyd, the alleged lessee, and Gracey, who claimed to be agent for the owner of the land, from putting in wheat thereon, this action was brought.
The pivotal question in the case was whether the lease to Boyd was made by Gracey, as agent of the landlord, with the latter’s authority. Upon that proposition the evidence was conflicting, but seems to predominate in favor of the determination of the trial court that Gracey was duly authorized to execute such lease as agent for the landlord. The finding of the court upon the matter is conclusive.
Without presenting any authority in support of his contention, counsel for plaintiff in error insists that the right retained by the landlord to enter upon the premises and sow wheat was personal to himself, or at least that it was not assignable or transferable to a lessee. We do not regard the position as tenable, and hold that, in the absence of a stipulation to the contrary, the landlord could grant the right thus reserved to a tenant.
The judgment of the district court is affirmed.
Poster, O. J., Johnston, Cunningham, JJ., concurring. | [
117,
106,
-4,
-115,
10,
96,
106,
-102,
67,
-93,
-26,
87,
-23,
-97,
28,
21,
99,
109,
81,
105,
-58,
-78,
2,
-31,
-14,
-13,
-47,
-35,
-71,
109,
117,
86,
76,
48,
-62,
87,
-58,
-56,
-63,
-36,
-114,
37,
-117,
108,
-39,
0,
52,
59,
18,
75,
101,
-81,
-13,
110,
57,
-61,
-83,
44,
-53,
45,
113,
-16,
26,
-115,
109,
6,
16,
38,
-98,
-123,
-24,
126,
-112,
17,
11,
-24,
115,
54,
-124,
116,
71,
-101,
8,
102,
102,
1,
77,
-17,
72,
-120,
14,
-97,
13,
-90,
-128,
72,
43,
3,
-66,
-103,
119,
20,
38,
-2,
-3,
13,
29,
124,
1,
-118,
-44,
-91,
-121,
56,
-112,
-63,
-21,
7,
-79,
113,
-51,
-90,
88,
102,
112,
-37,
-113,
-75
]
|
Error from Labette district court. | [
-14,
-4,
-71,
-2,
-114,
-95,
0,
-118,
65,
-109,
34,
87,
-19,
-106,
20,
107,
34,
61,
53,
122,
73,
-74,
51,
-31,
86,
-37,
-53,
-43,
-75,
109,
-12,
-128,
94,
48,
-117,
87,
71,
-124,
-83,
92,
-50,
7,
13,
-4,
-37,
107,
56,
33,
30,
44,
113,
-18,
-13,
42,
-70,
99,
-87,
44,
93,
49,
-23,
-15,
-6,
5,
61,
7,
-95,
20,
-109,
4,
-40,
42,
-108,
49,
-126,
-8,
54,
-106,
-121,
85,
9,
59,
-115,
96,
98,
65,
9,
-49,
-72,
-88,
6,
126,
25,
-90,
-105,
45,
105,
-114,
-106,
-75,
116,
86,
102,
126,
101,
-60,
25,
92,
-125,
-18,
-16,
-111,
-50,
-12,
-124,
-55,
-1,
-122,
54,
81,
-35,
-108,
92,
-57,
24,
27,
-50,
-69
]
|
Error from Shawnee district court. | [
-110,
108,
-19,
92,
-116,
65,
1,
14,
83,
-111,
114,
83,
-49,
-58,
20,
123,
66,
111,
48,
120,
-59,
-73,
59,
96,
-10,
-5,
-15,
85,
-75,
109,
-4,
-42,
76,
112,
-118,
-97,
70,
0,
-81,
92,
-116,
6,
-119,
93,
83,
41,
60,
125,
90,
3,
49,
46,
-13,
44,
58,
99,
-24,
44,
77,
99,
-53,
-45,
-13,
-123,
126,
22,
-95,
20,
-106,
14,
88,
-86,
-112,
53,
0,
-68,
-13,
54,
-122,
-9,
13,
-103,
37,
-18,
98,
33,
12,
-17,
-68,
-84,
46,
90,
29,
-90,
-109,
9,
107,
-115,
-74,
-67,
100,
86,
79,
-6,
103,
4,
29,
40,
-125,
-50,
-80,
-101,
-113,
32,
-116,
-101,
-1,
6,
48,
113,
-55,
-28,
92,
-58,
16,
-101,
-34,
-70
]
|
Error from Miami district court. | [
-16,
126,
105,
-18,
26,
65,
5,
-114,
75,
17,
114,
87,
-19,
-61,
20,
105,
-109,
111,
52,
122,
-55,
-78,
55,
2,
-74,
-13,
-21,
-41,
-75,
108,
-10,
-38,
76,
-96,
-54,
-33,
86,
-128,
-17,
88,
-50,
3,
-103,
-51,
-101,
97,
52,
56,
-70,
7,
113,
46,
-32,
46,
27,
67,
-84,
40,
-55,
121,
-53,
-104,
-102,
5,
122,
16,
-95,
84,
-109,
-118,
88,
42,
-108,
53,
0,
-88,
114,
-74,
-122,
52,
15,
-69,
-111,
100,
98,
32,
77,
-17,
-8,
-88,
6,
120,
-98,
-90,
-105,
-83,
107,
-123,
86,
-67,
116,
86,
39,
126,
103,
-124,
29,
108,
-117,
-17,
-16,
-101,
-114,
-80,
-120,
-111,
-10,
19,
52,
112,
-51,
-80,
94,
78,
57,
-37,
-33,
-78
]
|
The opinion of the court was delivered by
Pollock, J.:
Without so deciding, let it be' conceded for the purposes of this case, as found and determined by the trial court, that the original summons was not sealed with the seal of the court, and was therefore absolutely null and void, and may be so declared in this purely collateral proceeding. Also, let it be conceded, as a consequence thereof, that no jurisdiction was obtained over the person of the defendants in the foreclosure action, and that all subsequent proceedings, including the decree, sale, and sheriff’s deed, weré likewise void. What, then, are the rights of the parties? Can this action be maintained and can the judgment entered be upheld?
It was found by the trial court that, after the sale of the premises and the execution and delivery of the sheriff’s deed, the purchaser at the sale, Kelso, believing himself to be the owner, took and retained possession of the mortgaged property. Is this finding sufficient in law to constitute Kelso “a mortgagee in possession” ? At common law, a mortgagee was entitled to possession anc|l to recover possession from the mortgagor upon condition broken. In this state, by force of statute, a mortgage retains but few, if any, of its common-law attributes. It is a mere security contract, incident to the debt. The mortgagor, both before and after default, is entitled to the possession of the premises. The only legal right of the mortgagee is to foreclose the equity of redemption and obtain a decree of sale in satisfaction of his debt. While such are the legal rights of the mortgagor and mortgagee in this state, it does not follow that these legal rights may not be changed or waived by agreement, express or implied. If the mortgagor consents to the mortgagee’s taking possession of the premises for the better-security of his debt, and the mortgagee does take possession, it is clear that the possession thus taken will constitute “a mortgagee in possession.”
In the case at bar, the foreclosure proceedings being, as we have heretofore conceded, abortive and void, the mortgagors were under no legal obligation to yield possession to the mortgagee, but might have stood upon their legal rights and refused to surrender possession until a valid foreclosure decree and sale were obtained and a deed and writ of assistance based thereon had issued to place the purchaser in possession. Upon this legal right, however, they did not insist, but acquiesced in the proceedings had and the possession taken thereunder by the purchaser. Hence, they and those claiming under them must be held to have waived their legal right to possession of the mortgaged premises and to have assented to the possession taken by the mortgagee as purchaser at the sale. This is the precise point ruled on in Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613. It was there held:
“Though an attempted foreclosure be abortive as such, it may take effect as a transfer of the rights of the mortgagee to the purchaser at the sale, and to thos.e who claim under him by conveyance of the interest in the premises apparently acquired by such purchaser at the foreclosure sale.
“If the purchaser at such sale, or his assign, go into possession of the mortgaged'premises with the assent of the mortgagor, under the rights supposed to have been acquired under the foreclosure sale, he will be deemed a mortgagee in possession." ■
In the opinion it was said :
“It follows necessarily from this that a mortgagee, even after condition broken, has no right or remedy except to foreclose his mortgage; that he cannot, merely under his mortgage, either recover or maintain possession of the mortgaged premises. The only logical rule is that, to constitute ‘ a mortgagee in possession,’ the mortgagee must be in possession by reason of the agreement or assent of ^he mortgagor or his assigns that he have the possession under the mortgage and because of it. The right to take possession under his mortgage being taken away, nothing remains but to foreclose, or else make some arrangement for his better security with the owner of the fee. Having no right to take possession under his mortgage, the mortgagee can get none, except by the agreement or assent of the one who owns that right. This, of course, need not necessarily be express. It may be implied from circumstances. Where the mortgagor expressly abandons possession, his assent that the' mortgagee might go into possession under his mortgage might well be implied, especially when he allows him to remain in possession for a considerable léngth of time without objection. But, after all, the assent, express or implied, of the mortgagor, that the mortgagee may take possession under or because of his mortgage is of the essence of ‘ a mortgagee in possession.’
“This assent is .conclusively proved in the present case. Benton, by his permanent removal from the state, abandoned all personal occupancy or possession. Conant demanded the possession from Mrs. Benton under his mortgage, or by virtue of rights supposed to have been acquired under its foreclosure. She surrendered possession in pursuance of that demand, knowing, as she herself testifies, that Conant was coming in under the mortgage, and that her husband knew it too; and after this entry the Conants, and those claiming under them, were allowed to remain in possession over ten years, without objection or assertion of any right in themselves by the mortgagors, or any one claiming under them. The fact that Conant claimed the right to the possession under his foreclosure, and threatened legal proceedings to obtain it, and that Mrs. Benton may at that time have supposed that he had that right, does not alter the legal aspect of the case, or render Mrs. Benton’s act any less a voluntary surrender of the possession to Conant as mortgagee. Mrs. Conant and those claiming under her had therefore the rights of ‘ mortgagees in possession’.”
In Cook v. Cooper et al., 18 Ore. 142, 22 Pac. 945, it was held:
“If, for any cause in the foreclosure suit, the proceeding is ineffectual to foreclose the mortgage, and the mortgagee purchases at a sale under such void proceedings, and enters into the possession under such sale, his relation to the mortgaged premises is that of a mortgagee in possession.”
To the same effect is Miner v. Beekman et al., 50 N. Y. 337 ; and many other cases of that and other states, where, by force of statutory provisions, the mortgage does not operate as a conveyance, or grant the right to possession of the mortgaged premises, but is only a security for the payment of the debt, may be cited in support of the position here taken. It therefore must be. held that Kelso, as mortgagee and purchaser at the invalid foreclosure sale, was entitled to. receive whatever protection the law throws around a mortgagee in possession.
What, are such rights ? Will an action in the na-. ture of ejectment by the heirs of the mortgagor lie to dispossess him of the property until his mortgage debt is paid ? Or, will the heirs of the mortgagor seeking to reclaim the property be required to resort to an action to redeem the property from the mortgage debt, in which action the amount of the debt and all the equities of the parties may be fully investigated, determined, and decreed ? It is contended by counsel for plaintiff in error that ejectment will not lie, but that plaintiff, as heir at law, must resort to an action to redeem. Is this contention sound ?
Upon this proposition there would seem to be a lack of uniformity in the authorities. While in many cases, under facts somewhat similar to those found in the case at bar, it seems that this, court has permitted recovery in an action of ejectment of mortgaged premises against the mortgagee in possession, yet, an examination of these cases will show that the point here presented was neither urged nor determined. (Richards v. Thompson, 43 Kan. 209, 23 Pac. 106; Le Comte v. Pennock, 61 id. 330, 59 Pac. 641; Seeley v. Johnson, 61 id. 337, 59 Pac. 631; Kager v. Vickery, 61 id. 342, 59 Pac. 628, 49 L. R. A. 153, 78 Am. St. Rep. 318.) Hence, the decisions therein are not conclusive of the point presented.
It has always been the rule of this court that a defendant in ejectment, even under a general denial, may interpose any defense which he may have, either in its nature legal or equitable, tending to rebut the right of plaintiff to the possession of the premises, or tending to establish the right of defendant to possession. (Hall’s Heirs v. Dodge, 18 Kan. 277; Wicks v. Smith, 18 id. 508; Clayton v. School District, 20 id. 256; Armstrong v. Brownfield, 32 id. 116, 4 Pac. 185 ; Chandler v. Neil, 46 id. 67, 26 Pac. 470.) This rule, however, does not obtain in the federal courts and in those states where the distinction between actions at law and suits in equity is preserved. (Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Hooper et al. v. Scheimer, 23 id. 235, 16 L. Ed. 452; Lessee of Smith et al. v. McCann, 24 id. 398, 16 L. Ed. 714; Foster v. Mora, 98 U. S. 425, 25 L. Ed. 191; Land and Iron Co. v. Thoney, 89 Mich. 226, 50 N. W. 845 ; Paldi v. Paldi, 95 id. 410, 54 N. W. 903 ; Moran v. Moran, 106 id. 8, 63 N. W. 989, 58 Am. St. Rep. 462.) Hence, in those jurisdictions, the equitable right to withhold possession peaceably obtained until payment of the mortgage debt cannot be interposed as a defense in the ejectment action, such defense being not a legal but an equitable defense. (Humphrey v. Hurd, 29 Mich. 44; Newton v. McKay, 30 id. 380.) In this state all distinctions between actions at law and suits in equity are abolished by section 10 of the code (Gen. Stat. 1901, §4438). Hence, such equitable defense is, under our practice, admitted.
It being shown by the findings made from the evidence that defendant Kelso is “a mortgagee in possession,.’ ’ can the plaintiff and her defendant brother recover possession of the premises in ejectment without payment of the mortgage debt ? It is conceded that the mortgage debt has not been paid. It is admitted that at common law, where the mortgage operates as a conveyance of the title to the property, defeasible upon condition of payment of the mortgage debt, a mortgagee obtaining peaceable possession under his title thus conveyed by the mortgage cannot be ejected, and only a suit by the mortgagor, his heirs, or those holding under him, subject to the mortgage, will lie. Such is undoubtedly the law. But it is insisted by counsel for defendant in error that such is not the rule in those states where a mortgage does not operate as a conveyance of the property, but is a mere incident to the debt secured. This is the legal effect of a mortgage in this and most states of the union. The question- arising for our determination, therefore, is, What is the true rule in those jurisdictions where the distinction between actions at law and suits in equity is abolished, and by statute the mortgage conveys no title, but is a mere incident to the debt ? A decision coming close to a determination of this question was made in this court in Cross v. Knox, 32 Kan. 725, 736, 5 Pac. 32, in which it was said:
“The relation of the defendant to the tract of about twenty-two acres of land to which the plaintiff holds the equity of redemption is that of a mortgagee in possession, and he cannot be dispossessed by an action at law, and the only means for. lawfully obtaining the possession the plaintiff has, is by a redemption of the land from the lien of the mortgage. She had the right to bring suit in equity to redeem, and this suit was properly brought for that purpose. (3 Pom. Eq. Jur. §§1189, 1190.)”
Mr. Jones, in his work on Mortgages, fourth edition, section 674, says:
“A mortgagor cannot maintain, ejectment against the mortgagee in possession so long as there is any question whether the mortgage debt has been paid in full, or there remains any question of account to be settled between the parties. He must resort to a bill to redeem. . . . Even in states where a mortgagee has no right to take possession until foreclosure is absolute, if the mortgagor voluntarily puts the mortgagee in possession, his possession is rightful, and ejectment cannot be brought against him unless some action is previously taken which will terminate his right and render his continuance in occupancy wrongful.”
Again, at section 702, the same author says:
“It has already been noticed that in several state's the mortgagee’s right, before forclosure, to maintain ejectment against the mortgagor, or to recover possession in any way, has been taken away by statute. . . . But even under such, statutes it is generally held that a mortgagee, who has gone into peaceable possession of the premises after a default, cannot be ejected by the mortgagor while the mortgage remains unsatisfied.”
In the case of Cook v. Cooper et al., supra, it was held:
“ Under section 326, Hill’s Code, a mortgagee is precluded from recovering possession of the mortgaged premises after forfeiture by action; but if he can obtain possession of such premises in any lawful or peaceable mode, that is, without force, he may retain possession of such premises, as against the mortgagor or any person claiming under him subsequent to the mortgage, until his mortgage debt is paid.”
In the case of Spect v. Spect, 88 Cal. 437, 26 Pac. 203, it was held :
“A mortgagor who has placed his mortgagee in possession of the mortgaged premises cannot maintain ejectment against him while the debt for which the mortgage was given remains unsatisfied, even though an action by the mortgagee for the recovery of the debt is barred by the statute of limitations.”
In the opinion it was said:
‘ ‘ Whenever a mortgagor seeks a remedy against his mortgagee, which appears to the court to be inequitable, whether it be to cancel the mortgage as a cloud upon his title, or to enjoin a sale under the power given by him in the security, or to recover from the mortgagee the possession of the mortgaged premises, the court will deny him the relief he seeks, except upon the condition that he shall do that which is consonant with equity.
“ In accordance with these principles, it is a settled rule that a mortgagor cannot maintain ejectment against his mortgagee until the debt is paid. (Phyfe v. Riley, 15 Wend. 248, 30 Am. Dec. 55; Hubbell v. Moulson et al., 53 N. Y. 225, 13. Am. Rep. 519 ; Fee v. Swingly, 6 Mont. 596 ; Roberts v. Sutherlin, 4 Ore 220 ; Cooke v. Cooper, 18 id. 142; Frink v. LeRoy, 49 Cal. 314 ; Tollman v. Ely, 6 Wis. 244 ; Brinkman v. Jones, 44 Wis. 512 ; Sahler v. Signer, 44 Barb. 614 ; Madison Av. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. Y. 82; Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546; Wells v. Van Dyke, 109 Pa. St. 335 ; Duke v. Reed, 64 Tex. 705 ; Jones on Mortgages, § 715.)
“The debt is not satisfied or paid by mere lapse of t time. The statute of limitations is a bar to the rem-¿ edy only, and does not' extinguish, or even impair,: the obligation of the debtor. It is available in judicial proceedings only as a defense, and can never be asserted as a cause of action in his behalf or for conferring upon him a right of action. It is to be used as a shield, and not as a sword.”
In the case of Bryan v. Brasius, 31 Pac. (Ariz.) 519, Chief Justice Gooding, in rendering the opinion, said :
“But it is claimed by appellant that the debt se-j cured by the mortgage was barred by the statute of j limitations at the commencement of this action, and-, therefore need not be paid. I do not think a court’ of equity would ever allow the statute to have that* effect. It would be so inequitable and shocking to all sense of right that a court exercising equitable powers, as this court does, and recognizing equitable defenses in an action of ejectment, would never dis turb the possession of a mortgagee in peaceable and quiet enjoyment under legal proceedings, valid or invalid, until the mortgage debt was paid .and all other requirements of equity fully met.”
The above cases arose in states in which the mortgage was of similar legal effect as in our own. Of like import, see Newell on Ejectment, 11; 3 Pomeroy’s Equity Jurisprudence, section 1189 ; Hildreth v. James, 109 Cal. 299, 41 Pac. 1038; Van Duyne v. Thayre, 14 Wend. (N.Y.) 234 ; Phyfe v.Riley, 15 id. 248 ; Miner v. Beekman et al., 50 N. Y. 337 ; Fee v. Swingly, 6 Mont. 596, 13 Pac. 375 ; Johnson v. Sandhoff, 30 Minn. 197, 14 N. W. 889 ; Stark et al. v. Brown, 12 Wis. 572 ; Den v. Wright et al., 2 Hals. (N. J.) 175 ; Duke v. Reed, 64 Tex. 705.
In no jurisdiction where an equitable defense may be interposed to an action in the nature of ejectment for the recovery of real property do we find a different holding. Whether the mortgage there operates as at common law to convey a defeasible title, or as a mere security contract incident to the debt, does not change the rule. In neither case will the mortgagor, or one claiming under him by conveyance subsequent to the mortgage, or by operation of law, be permitted to maintain ejectment against one shown to be a mortgagee in possession of the premises, whether or not, at the time the action is brought to recover possession, the statute of limitations would bar an action by the mortgagee to foreclose his mortgage. Not only is this the law in other jurisdictions having similar statutory provisions with relation to the legal effect of mortgages and the defenses which may be interposed in actions of ejectment, but it so accords with that which is just, right and equitable between the parties in this and all other cases where some technical defect in legal proceedings is relied on to obtain a nullification of such proceedings, and so accords with the acts and acquiescence of the parties therein for many years, that the rule commends itself to our judgment as sound and wholesome. We therefore hold, uponrthe findings made, plaintiff in error to be “a mortgagee in possession,” entitled to retain such possession until the mortgage debt is paid or adjusted. This action of ejectment cannot be maintained against him.
Whether, in the light of the findings made, the heirs, if so advised, may maintain their action to redeem the property from the mortgage debt, is not be fore us for decision, and we do not decide it. Such action, of necessity, would involve a determination of the question whether the sheriff’s deed under which plaintiff in error took possession is an absolute nullity, and subject to be so declared in a purely collateral action, and other questions which we have found it unnecessary to consider or determine in this case.
It follows that the judgment must be reversed, with directions to enter judgment for defendant Kelso, on the findings. It is so ordered.
All the Justices concurring. | [
-79,
-4,
-48,
-82,
74,
96,
-86,
-40,
-56,
-80,
39,
83,
111,
-54,
20,
43,
-11,
123,
85,
105,
79,
-78,
15,
97,
-46,
-5,
-48,
93,
-79,
-34,
-28,
-105,
76,
-96,
-62,
-11,
-26,
-119,
-61,
84,
78,
-121,
-104,
101,
-7,
2,
48,
59,
80,
14,
1,
-99,
-29,
45,
25,
111,
-56,
40,
75,
53,
-48,
56,
-115,
13,
79,
1,
49,
102,
-36,
-25,
120,
8,
-128,
49,
1,
-24,
115,
54,
-122,
52,
75,
-101,
40,
102,
99,
0,
77,
-17,
-35,
-71,
47,
-17,
-65,
-90,
-111,
88,
8,
0,
-74,
-99,
108,
0,
46,
-26,
-25,
-108,
-99,
-20,
15,
-50,
-42,
-73,
13,
124,
-101,
-117,
-34,
-61,
52,
113,
-50,
60,
84,
99,
95,
-101,
14,
-39
]
|
Original proceeding in habeas corpus. | [
-80,
-13,
-71,
47,
42,
-31,
50,
-102,
66,
-77,
103,
115,
-79,
-126,
-124,
113,
111,
-29,
85,
123,
-34,
-85,
103,
-43,
-16,
-45,
-111,
-109,
51,
-19,
-17,
-106,
76,
-96,
-90,
81,
102,
-54,
-17,
-100,
-122,
1,
-103,
73,
-29,
32,
49,
51,
84,
15,
113,
31,
-29,
42,
19,
-41,
-23,
44,
-50,
108,
-111,
-88,
-97,
5,
123,
6,
-96,
38,
-100,
67,
90,
46,
24,
49,
1,
-22,
115,
36,
-122,
-42,
99,
-5,
-88,
98,
114,
3,
109,
-1,
-104,
-104,
54,
-18,
63,
-122,
-112,
89,
74,
64,
31,
-67,
109,
-112,
38,
124,
-7,
-124,
29,
102,
30,
-49,
-108,
-91,
-113,
92,
-98,
78,
-9,
21,
-96,
20,
-115,
-78,
84,
-41,
123,
-101,
-99,
-45
]
|
The opinion of the court was delivered by
Burch, J. :
The reply was not vulnerable to either the motion or demurrer. .The copies of the pleadings, findings and judgment in the first suit disclosed precisely what facts were there litigated, how they were adjudicated, and against whom the decision ran. Any statement the pleader might have made could not illumine them or add anything to the information they imparted. Both the motion and the demurrer were properly overruled.
The misdescription of the real estate did not destroy the sameness of the property or of the lease involved in the two suits. The subject and the evidence of the dealings between the parties remained constant. The testimony relating to the mistake simply conduced to their identity. Nor was it necessary to reform the lease, since by the aid of extrinsic testimony the prop erty was identifiable from its designation as a laundry. [Mumper v. Kelley, 43 Kan. 256, 259, 23 Pac. 558.)
The chief contention of plaintiff in error is that a part of the personal property actually involved in the action was the substituted engine and boiler, which were not described in the lease, and which, if possessed at all were held by virtue of a parol agreement, unenforceable under the statute of frauds. Many pages of the brief are devoted to a discussion of the right of plaintiff to recover on the theory that the action was necessarily upon the status created by the verbal agreement. But the plaintiff did not sue on any parol contract. He based his action upon the written lease, and the defendant cannot create for the plaintiff a new cause of action, read it into the petition, cudgel it to death, and then claim he has destroyed the plaintiff’s cause. The utmost weight, therefore, which can be given to the facts relating to the substitution of personal property is that they establish a contract in parol which supersedes the writing, and defeats it as a basis of recovery. The findings of fact quoted were based upon, and wholly within, the issues in the first case, and from them it is obvious that the effect of the change in engines and boilers was the moot point in the former suit. In that action plaintiff in error asserted that he was relieved of all liability whatever to his lessor ; now he claims that he is liable only in another way. He seeks merely to deduce an additional consequence from the same state of facts. His effort to do so is belated. He should have drawn all his conclusions in the first litigation, and, having failed to do so, the whole matter is res judicata. [McEntire v. Williamson, 63 Kan. 275, 65 Pac. 244, and cases cited ; Boyd v. Huffaker, 40 id. 634, 20 Pac. 459, and cases cited.)
There was no error, therefore, in either the admis sion or exclusion of evidence, or in overruling the motion for a new trial based upon the action of the court in respect to these matters.
Other questions presented by counsel for plaintiff in error have been examined, and, no error appearing in the record, the judgment of the district court is affirmed.
All the Justices concurring. | [
-16,
126,
-39,
-81,
10,
96,
42,
-38,
97,
-127,
39,
-9,
-27,
-45,
-104,
37,
-10,
121,
97,
107,
93,
-77,
7,
-95,
-14,
-45,
-61,
85,
-76,
-49,
103,
95,
76,
48,
-62,
-41,
-26,
-54,
-47,
84,
78,
7,
24,
-20,
-7,
64,
48,
88,
84,
9,
1,
-115,
115,
44,
25,
-49,
105,
40,
-21,
-75,
-16,
-72,
-102,
13,
79,
4,
33,
117,
-100,
71,
-8,
8,
-108,
25,
0,
-20,
115,
-74,
-122,
-44,
37,
-101,
9,
98,
98,
32,
65,
-21,
-20,
-104,
39,
-101,
31,
-90,
-80,
88,
11,
97,
-74,
-99,
125,
16,
39,
126,
-26,
-107,
29,
108,
7,
-113,
-106,
-77,
15,
100,
-98,
5,
-18,
-125,
-92,
64,
-49,
-126,
92,
71,
90,
-101,
-97,
-6
]
|
The opinion of the court was delivered by
Greene, J. :
The plaintiff in error sued to recover damages for a breach of contract made in Kansas to sell real estate situated in Rush county, and, on the ground of the non-residence of the defendant, caused the real estate over which the controversy arose to be attached. The defendant below appeared and filed a motion to discharge the attachment, for the reason that an order of attachment could not issue in an action to recover unliquidated damages for a breach of contract to sell real estate. Upon the hearing of this motion, the plaintiff asked leave to amend his affidavit in attachment. To this application the defendant objected, which objection was overruled by the court. Plaintiff was granted leave to make the requested amendment, to which the defendant excepted. The court then sustained the motion, dissolved the attachment, and discharged the property, for the reason suggested in the motion. Afterward the defendant ajjpeared specially and moved the court to dismiss the action for the reason that it had no jurisdiction over him. This motion was sustained and the case dismissed. The plaintiff in error complains of this judgment.
We are of the opinion that the court below erred in dismissing the action. A defendant in an action may appear specially to challenge the jurisdiction of the court, and such appearance, when made exclusively for that purpose, will not give the court jurisdiction. When the defendant challenged the fight of plaintiff in error to amend his affidavit in attachment, he was not presenting a jurisdictional question. It was said in Gorham v. Tanquerry, 58 Kan. 233, 48 Pac. 916:
“The defendants, upon whom there had been no valid service, appeared and attacked the jurisdiction of the court, and at the same time asked that an attachment, which had been levied upon their property, should be discharged, upon the ground that the affidavit of plaintiff, made to procure the attachment, was insufficient; held, that, having appeared for other purposes and presented other considerations than those of jurisdiction, they made a general appearance and gave the court general jurisdiction over them.”
In that case the defendant appeared and contested the sufficiency of the attachment affidavit; in this case he appeared and contested the right of plaintiff to amend such affidavit. Neither involved a jurisdictional question ; both raised questions other than those of jurisdiction. The appearance of the defendant in this case to contest the right of the plaintiff to amend his affidavit in attachment was such a voluntary appearance in the action as gave the court general jurisdiction over him. The judgment of the court below in dismissing the action was, therefore, erroneous.
The judgment is reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
-112,
104,
-15,
29,
-120,
96,
48,
-104,
-7,
-95,
-89,
83,
109,
-53,
4,
127,
114,
61,
97,
121,
69,
-73,
6,
-53,
-42,
-78,
-62,
85,
-77,
125,
-27,
-33,
76,
32,
74,
-43,
70,
-54,
-59,
-36,
-58,
6,
-119,
-32,
-39,
-64,
48,
121,
0,
11,
113,
-17,
-13,
42,
27,
-61,
-23,
40,
-39,
-71,
-63,
24,
-51,
5,
127,
1,
35,
37,
-100,
2,
90,
42,
-112,
57,
3,
-20,
114,
-74,
-106,
116,
103,
-101,
40,
102,
107,
33,
13,
-17,
-4,
-119,
47,
122,
15,
-25,
-111,
88,
75,
12,
-74,
-103,
61,
18,
7,
116,
-22,
12,
29,
108,
7,
-49,
-110,
-77,
-113,
50,
58,
67,
-17,
7,
-112,
96,
-58,
-92,
92,
67,
24,
-101,
-113,
-72
]
|
Appeal from Pawnee district court. | [
-44,
-18,
-76,
28,
10,
64,
51,
-110,
67,
-3,
55,
83,
-17,
-46,
20,
121,
3,
63,
4,
105,
-45,
-77,
127,
-64,
-70,
-6,
-39,
-41,
-15,
92,
-27,
-9,
75,
-48,
106,
13,
6,
-128,
-17,
92,
-116,
3,
-117,
95,
105,
2,
44,
107,
114,
2,
49,
126,
-13,
42,
26,
-32,
-120,
44,
75,
-65,
81,
-13,
-15,
-123,
124,
22,
-127,
20,
-98,
-59,
80,
-86,
-112,
-79,
0,
-8,
114,
38,
-124,
117,
33,
-101,
-127,
52,
66,
35,
56,
-17,
-96,
41,
46,
92,
29,
-25,
-110,
24,
98,
-85,
-42,
-71,
101,
86,
74,
-6,
-25,
-123,
83,
108,
-125,
-50,
-80,
-77,
-113,
56,
-128,
88,
-21,
-80,
54,
113,
-51,
-30,
92,
69,
27,
-6,
-50,
-72
]
|
The opinion of the court was delivered by
Johnston, J.:
This was an action by Huff & Myers, a firm of contractors, to recover $840.25 from F. M. Jolly & Co., for material and labor furnished in the erection of a building on lots 9 and 10, of block 7, in the town of Almena, against which they seek to enforce a lien. Several parties who claimed an interest in the premises, among whom were Annie Jolly and Charles N. Van Cleave, were made parties defendant. The court awarded plaintiffs a judgment against F. M. Jolly & Co. for $735, and decreed that $136.10 of that sum was a lien on lot 10, but found that the plaintiffs were not entitled to a lien on lot 9, and the decree entered quieted the title of Charles N. Van Cleave to that lot against the claim of the plaintiffs. There were other findings and orders affecting other defendants, who do not complain, and need no particular mention here.
The ground of error assigned is, that the court refused to hold that the plaintiff’s claim was a lien on lot 9; but it appears that F. M. Jolly & Co., with whom they contracted to erect the building; had no interest in the lot, and did not by their contract with plaintiffs charge the same with a lien for the improvements made thereon. F. M. Jolly was the owner of lot 10, upon a portion of which a building was erected, and he and his partner desired‘to erect an addition to that building, and also to purchase lot 9 for that purpose. Lot 9 was owned by the Lincoln Land Company at that time, and W. Harmison had been authorized by an agent of that company at Lincoln, Nebraska, to negotiate for the sale of that and other lots upon certain terms and conditions. Contracts of sale were to be made in writing and forwarded to Lincoln for the approval of the company, and were without force until they were so approved. One-third of the price was to be paid at the time of sale, and the balance in installments at future times. Jolly ascertained from Harmison the price of the lot, and told him he would take it at the price named, but did not then make any payment nor enter into any contract. Shortly afterward they began the foundation of the building, which covered lot 9 and a portion of lot 10; and Harmison, observing that the foundation was commenced, called the attention of Jolly to the fact that no contract had been made, and advised him to get a contract from the company before proceeding with the building. He replied that he would come up that night and make a payment on the lot and have a contract written out, but he failed in this, and neither he nor his partner ever entered into a contract with the company for the purchase of the lot, or made a payment thereon. Shortly afterward the company sold the lot to another, and the purchaser conveyed the same to Van Cleave, the defendant in error.
We agree with the district court, that F. M. Jolly & Co. cannot under the statute be regarded as an owner of the lot, and could not create a lien thereon. It cannot be said that there was a purchase of the lot, or even that a contract of purchase was made. They were warned that to acquire any rights a contract with the company and a payment of money were essential. The possession was not taken by them with the consent of the company, nor does it appear that it had knowledge of the possession, or that the improvement was being made. We are not disposed to place a narrow or illiberal interpretation upon the ownership necessary to the creation of a mechanics’ lien, (Lumber Co. v. Osborne, 40 Kas. 168,) but such a lien can only be created by the voluntary act or sanction of one who is either a legal or equitable owner. The persons with whom plaintiffs contracted neither purchased nor paid for the property; and this the plaintiffs could easily have ascertained. They should have exercised some care and caution as to whether their employers had such an interest in the property as they could subject to a lien for the labor and materials furnished. Under the statute no lien attaches to the building unless the person with whom the contract is made has some interest or estate in the land on which it is situate. The lien is upon the realty with the building attached to the extent of the ownership of the one who contracted for the construction of the building, and no farther; and if there is no ownership, there is no lien on either land or building. (Phillipps, Mech. Liens, §136.)
Judgment affirmed.
All the Justices concurring. | [
-16,
120,
-16,
109,
58,
96,
58,
-104,
121,
-96,
-89,
95,
-55,
-38,
20,
117,
-28,
109,
80,
106,
-26,
-93,
2,
35,
-58,
-77,
-15,
-59,
-80,
77,
-17,
-42,
76,
52,
-118,
29,
-62,
-62,
-107,
28,
14,
-107,
40,
106,
-39,
98,
52,
91,
96,
79,
5,
-18,
-5,
32,
28,
-53,
76,
44,
109,
57,
65,
-16,
-85,
-123,
93,
7,
0,
98,
-104,
67,
-56,
28,
-112,
113,
4,
-32,
115,
38,
22,
-12,
3,
-21,
-88,
-26,
102,
10,
101,
-81,
-20,
-104,
46,
-2,
13,
-91,
-112,
88,
26,
105,
-68,
-99,
120,
22,
-122,
114,
-10,
-99,
89,
108,
11,
-118,
-10,
-27,
-65,
112,
-99,
3,
-37,
-117,
-78,
96,
-115,
-94,
92,
83,
82,
-109,
-114,
-104
]
|
The opinion of the court was delivered by
Horton, C. J.:
On the 3d day of December, 1885, and for about two and one-half years prior thereto, Thomas B. Kier was a brakeman in the employ of the Kansas City, Fort Scott & Gulf Railroad Company on its regular passenger train running between Cherryvale, in Montgomery county, and Arcadia, in Crawford county; the train made daily trips each way, leaving Cherryvale at 7:25 in the morning and return ing at 7:30 in the evening; in going to Arcadia it passed Parsons at 8:21 in the morning, and on its return reached Parsons at 6:37 in the evening; the Parsons station was not on the main line, but was reached by passing over a switch or spur track. The usual way of passing from the main line to the station was as follows: When the train was going east, the spur track was connected with the main track, and the train was run backward over the spur to the station; when going west, the same connection was made, and the train was run forward to the station and then run backward to the main line, when the switch was set in connection with the main line. It was the practice of ICier, and he alleged that it was his duty, when the train was backing out of Parsons, to take a position on the rear end of the train, and when the proper point was reached near the switch, to step to the side of the car and adjust the switch to connect the main line.
At the time of receiving the injury complained of, he had just stepped from the car for the purpose of turning the switch; he was thrown under the moving train of cars in such a position that the cars passed over'his left foot, crushing and mangling the same to such an extent that it had to be amputated, in order to save his life. This action was brought to recover damages of the company for the injury so received. The grounds upon which the plaintiff seeks to charge his injury to the negligence of the company, are set forth in the petition as follows:
“That on the morning of the 3d day of December, 1885, and for a long time prior thereto, the ground where the switch was located was solid and hard, and had beeu in such condition ; that the service required of him in the moving and adjustment of the switch could be done in the manner stated without injury to his person; that he was well acquainted with the condition of the locality and the condition of the track and ground around the switch; that on the morning of the 3d day of December, the passenger train on which he was employed as brakeman left the city of Cherryvale on its regular schedule time for its trip to Arcadia and return to Cherryvale; that it passed through the city of Parsons, and at that time the ground in and about the switch was in its usual good and safe condition, and lie performed his required service in opening the switch in his usual manner as brakeman; that after the passenger train had left the city of Parsons, and before its return on the evening of said day, the company had caused to be deposited in and about the switch several car-loads of cinders, which were by the gross carelessness and negligence of the employés of the company deposited and left in great heaps and piles upon either side of the track and in and about the switch, so that the ground upon either side of the track was raised to the height of fifteen inches, and so spongy and soft that a person stepping from the car would sink into them to a great depth, thereby rendering the ground in and about the track in an uneven, soft, spongy, and dangerous condition; that when the passenger train reached the city of Parsons on its return trip to the city of Cherryvale on the 3d day of December, relying upon and believing the track to be in the same condition as when he passed over the same a few hours before, and without any information or knowledge of any change having been made, or that any cinders had been unloaded and deposited in and about the track and switch, or that the same, by reason of the gross carelessness and negligence of the company and its employés, had been left in the dangerous condition they were in, he stepped from the train for the purpose of turning the switch so that the train could and would pass onto the main track; that in stepping from the car, he did so in the usual and ordinary manner, exercising due care to prevent injury; that when he stepped from the car for said purpose, his feet sank into the cinders, which were soft and spongy, and gave way under his feet, causing him to lose his balance and throwing him under the moving train of cars of the company.”
Upon the trial, the evidence offered on the part of plaintiff tended to establish the foregoing allegations. It is contended by the railroad company that the petition does not state facts sufficient to constitute a cause of action, and therefore that no negligence of the company was proven at the trial. In support of this contention, it is said that the company owes to the public the duty of affording adequate instrumentalities for the transaction of its business and to make transportation safe; therefore that it had the right to haul its ballast and put the same on the track just as it was done in this instance; that the company was not required to notify the plaintiff it was re-ballasting or repairing its road; that it was his duty to be on the constant lookout for ballast, or repairs on the track, either by eyesight or inquiry; that it was his duty to notice the condition of the track, which was open to observation, and if he "failed to do so, it was such neglect, not only of his duty, but also of ordinary precaution for his safety, as to bar recovery for any damages thereby. This court has already decided that—
“The law does not require that a railroad company shall, as between it and its empioyés, guarantee the sufficiency, good order and good condition of its tracks and roadway, but merely requires that the railroad company shall exercise reasonable and ordinary care and diligence to keep its tracks and roadway in a reasonably safe condition.” (Rly. Co. v. Weaver, 35 Kas. 412; see also Rld. Co. v. Ledbetter, 34 id. 331; Rld. Co. v. Wagner, 33 id. 660.)
This court, however, decided in Rld. Co. v. Holt, 29 Kas. 152, that —
“The rule is, even under the common law, that a master' employing servants upon any work, particularly a dangerous work, must use due and reasonable diligence that he does not induce them to work under the notion that they are working with proper and safe machinery, while employing defective and dangerous machinery; and if an employé is injured on that account, and without fault of his own, the master is liable in damages.”
And in Rld. Co. v. Moore, 29 Kas. 633, it is said:
“In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work. . . . And at common law, whenever the master delegates to an officer, servant, agent, or employé, high or low, the performance of any duty which really devolves upon the master himself, then such officer, servant, agent or employé stands in the place of the master and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence.”
In Rld. Co. v. Moore, 31 Kas. 197, the law is declared that—
“At common law, a railroad company is liable to a brake man for injuries caused by the negligence of the road master or foreman, whose duty it was, over a portion of the road, to direct repairs and keep it in a reasonably safe condition.” (See also Rld. Co. v. Fox, 31 Kas. 586.)
Therefore, under the decisions of this court, if the road-bed or yard in and around the switch at Parsons had been changed by the dumping of cinders in heaps or piles after the train had passed through that place on the morning of December 3, going east, and prior to its return in the evening, and the dumping of the cinders left the road-bed or yard in a dangerous condition, then, if it was the duty of Kier, as alleged in his petition, to step from the car while it was moving slowly, for the purpose of turning the switch, and, without ,r r . & ’ ’ having any notice of the recent change in the condition of the road-bed or yard, he stepped from the car in his usual and ordinary manner, exercising proper care, and was thrown under the train on account of the dangerous condition of the road-bed or yard in and about the switch, the railroad company would be liable. With this view, the petition states facts sufficient to constitute a cause of action. (Hall v. Rly. Co., 74 Mo. 298; Hullehan v. Rld. Co., 32 N. W. Rep. 529; Kane v. Rly. Co., [U. S. C.] 9 S. C. Rep. 16.)
Counsel contend that if the plaintiff was entitled to be notified of the changed condition of the road-bed or yard, then every other employé would be equally entitled to like notice; and therefore that the company would be seriously embarrassed in the operation of its road. As we have already decided that a railroad company is liable to any one of its servants operating its road for the negligence of either one of its servants whose duty it is to keep the road in a reasonably safe condition, and who culpably fails to perform such duty or to give proper warning, we deem it unnecessary in this case to give further or additional reasons for the support of the law as declared by this court. It would seem to us, however, not very difficult or expensive, if a bridge, track, roadbed or yard of a railroad company is in a dangerous condition, for the foreman having charge of the section or work, to place thereon at night, danger-signals, like red lights, so as to give warning to all the servants or émployés of the company.
Hathaway v. Rld. Co., 29 Fed. Rep. 489, is cited as decisive against any recovery by the plaintiff. That case was tried in the United States circuit court for the southern district of Georgia, and the opinion was delivered by Speer, J. In many respects the facts in that case are similar to this. In that case the plaintiff was a flagman, and the material deposited upon the track was sand, instead of cinders. That case was taken from the jury on the ground that the facts showed no negligence on the part of the railroad company. If the decision was based upon the theory that there was no evidence tending to show “that the sand was unnecessarily placed at the spot where the flagman was injured, and unnecessarily kept there,” the case might be distinguished from this; but if the decision in that case goes to the full extent claimed for it, that in attempting to repair, or in repairing its track or road-bed, a company may place the same, while making its repairs, in a dangerous condition, and require its émployés to perform duties at night on such a track or roadbed without any warning or notice of its changed and unsafe condition, we are not inclined to follow it.
The various decisions concerning ice and snow upon the track or road-bed are not contrary to the views expressed by us in this and former decisions, because émployés might be required, under some circumstances, to take notice of ice and snow from-the operation of natural causes upon the ground or work where they are employed. Such risks and hazards, according to some of the decisions, are incident to their employment.
It is further contended that Kier was out of his place at the switch — was voluntarily performing a duty not his; therefore that he is barred from recovery by his contributory negligence. The rules of the company introduced in evidence are as follows:
“14. Every conductor must personally open and close switches used by his train or engine, and will be held responsible for the proper adjustment of the switches. When there is more than one train to use a switch, conductors must not leave the switch open for the following train, even when in sight, unless the conductor of the following train is at the switch and takes charge of it.”
“19. Station agents are held responsible for the safety of switches, which must always (except when a man is standing by) be kept locked and right for trains running on the main track. (This is not intended to relieve conductors and others from care of switches they may use; whoever throws a switch upon a side-track must see it back on the main line.)”
The conductor of the train testified that he regarded the opening of the switch as the duty of Kier. Kier also testified that it was his duty to turn the switch; that he performed this duty during his entire service as brakeman on the passenger train; that he did this under the direction of the conductor; and that he had often performed this duty in the same way in the presence of the division superintendent. The conductor testified that he was under the immediate direction and supervision of the division superintendent; that this superintendent-directed the employés on the train in the performance of their duty; that the division superintendent was his superior, and that he obeyed his orders in the operation of the road; therefore, notice to the division superintendent was notice to the company; and when Kier, under the direction of the conductor, opened and adjusted the switch during all the time he was brakeman, in the manner he did; without any complaint or objection on the part of the division superintendent, who saw him perform his work, we do not think it can be said, as a matter of law, that Kier was out of his place at the time of receiving his injury.
We think upon the testimony that the court did not err in instructing the jury as follows:
“ I may say to you, relative to these rules and regulations, t-hey may be modified at the will of the defendant in this action by those having authority to do so, verbally or otherwise, and in charge and control of its business; and if you find or have the right to infer from the evidence which has been offered on the trial of this cause, any of its rules have been so modified by this defendant, by those having authority to do so, then such modification, whether in one form or the other, is to be accepted by you; but if there has been no modification, you would not be justified in so finding.”
It is also contended that the evidence shows that Kier fell over the switch block by his own carelessness, and that the cinders dumped upon the road-bed or yard had nothing whatever to do with his injury. The evidence in the case is greatly conflicting, but as the jury credited &lu. ., , , . / , Kier and his witnesses, and as the trial court ap7 # \ proved the verdict, we cannot disregard this evidence and say that Kier brought his misfortunes on himself by his own recklessness. Whether the defendant was guilty of negligence causing and contributing to his injury, was one of the leading issues in the case.
Upon the evidence and instructions the jury found in favor of Kier; and although there was ample evidence to justify a different verdict, the facts have been determined by the jury adversely to the company; and as there was sufficient testimony before the jury to support the allegations of the petition and the verdict, we cannot interfere.
The evidence of E. O. Brown as to the safety of a person stepping from a moving train going six or seven miles an hour, even if erroneously received, is not sufficient for a reversal. He was only permitted to give his opinion in answer to one question. The testimony of Kier- that he had daily stepped off the moving train to set and adjust the switch while in the service of the company as brakeman, was more conclusive than any mere opinion.
Finally, it is contended that the trial court committed error in instructing the jury upon the law of exemplary, or punitive damages. The verdict was for $7,000; Kier at the time of his injury was thirty-nine years of age; for twelve years he had been engaged in railroading, and intended it as his business in life; as brakeman and car-cleaner he was earning $85 per month, and was in good physical health; therefore, consid ering the injury that he received, the amputation of his foot, the diseased condition of his leg at the time of the trial, and his inability to move around except upon crutches, the verdict was not excessive. The instruction complained of is subject to criticism. Courts, in such cases as this, should not instruct concerning gross negligence, unless the same amounts to' -wantonness, (Rly. Co. v. Rice, 38 Kas. 398; Rld. Co. v. Gants, 38 id. 608; Rly. Co. v. Whipple, 39 id. 531,) and should not instruct upon gross negligence, even if amounting to wantonness, unless there is sufficient evidence before the jury to render it necessary. (Rly. Co. v. Peavey, 29 Kas. 169.)
In this case the evidence as to gross negligence, if any, is very slight; but in view of the damages awarded, we do not think the instruction sufficiently material to reverse the judgment.
In the case of Rly. Co. v. Peavey, supra, we held a similar instruction misleading, where it wa,s apparent from the evidence that the-engineer was not guilty of such gross negligence as implied willful injury. In that case the damages awarded were'excessive, $6,500 being allowed for the loss of a thumb and first finger. The reversal was not solely upon the ground of the misleading instruction on gross negligence, but for other manifest errors, and also for excessive damages.
Other points are presented in the briefs, which we have fully considered, but did not think it necessary to consume time to discuss.
Upon the whole record, we cannot say that any error was committed by the trial court so prejudicial to the railroad company as to justify a new trial.
All the Justices concurring. | [
-80,
106,
-103,
-97,
58,
100,
-70,
18,
113,
-78,
-92,
115,
-83,
-61,
1,
51,
-26,
13,
81,
43,
116,
-13,
86,
-29,
-110,
-13,
115,
14,
49,
74,
100,
-57,
77,
48,
10,
21,
102,
74,
69,
30,
-114,
-92,
-23,
-32,
27,
-120,
-72,
122,
22,
78,
49,
74,
-5,
42,
24,
-61,
-84,
44,
-5,
-88,
-111,
113,
-109,
-123,
118,
6,
34,
4,
-65,
-93,
-108,
59,
-104,
53,
48,
-84,
115,
-92,
-109,
-2,
97,
-55,
68,
98,
103,
33,
5,
-113,
40,
56,
14,
-110,
15,
-89,
34,
24,
99,
5,
-66,
-99,
82,
20,
6,
126,
-32,
1,
81,
108,
-125,
-117,
-80,
-110,
-49,
36,
-106,
79,
-21,
33,
37,
113,
-20,
-66,
93,
71,
50,
-101,
-97,
-68
]
|
Opinion by
Clogston, C.:
The only question presented in this court is, where a contract is consummated by a written bill of sale, including warranties of title, can parol evidence afterward be given to enlarge the contract by showing warran ties of the soundness of the property, not included in the bill of sale ? The plaintiff showed that on the purchase of the stallion in question he received from the defendant a written bill of sale, which is in evidence and is as follows:
“ Know all men by these presents, that I, Isadore Perrault, in consideration of $1,500, paid by S. A. Rodgers, the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer and deliver unto the said S. A. Rodgers the following goods and chattels, viz.: one black stallion; name, ‘Black Prince;’ pedigree, Morgan mare, and Napoleon; weight, 1,600: to have and to hold all and singular the said goods and chattels to the said S. A. Rodgers and his executors, administrators and assigns forever. And the said grantor hereby covenants with the said grantee that he is the lawful owner of the goods and chattels; that they are free from all incumbrances; that he has good right to sell the same as aforesaid, and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever. In witness whereof, the said grantor has hereunto set his hand, this 29th day of October, 1884.”
No claim of fraud or mistake is urged. This leaves, as we said before, but one question. Where a transaction is reduced to writing and there is no ambiguity or uncertainty in its language, the writing alone must speak, and cannot be contradicted by parol, or its terms enlarged or diminished; and where a contract on the sale of chattels is made, and the bill of sale contains no agreement of warranty, none can be added by parol. The rule as laid down in Benjamin on Sales is : “Where the written sale contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter, by inference or implication.” (Sec. 942.) The exception to this rule is where the written paper is in the nature and form of a receipt merely: Held, The parol evidence of warranty is admissible. (Benjamin on- Sales, § 943.)
In Johnson v. Powers, 3 Pac. Rep. 625, it is held:
“If the contract between the vendor and vendee be reduced to writing, nothing which is not found in the writing, except that which is presumed by law from that which is written, can be considered as a part of the contract.”
In Van Ostrand v. Reed, 1 Wend. 424, it was said:
“ Where a contract for the sale of a chattel is consummated by written conveyance, previous representations amounting to a warranty which are not inserted in the contract, cannot be proved in parol in an action of assumpsit on the alleged warranty.”
In Smith v. Williams, 1 Murphy, 426, it was held:
“But where nothing is omitted or inserted in the writing through fraud, accident, or mistake, parol evidence shall not be presented to show that the agreement of the parties was otherwise than the writing sets forth.”
In Shepherd v. Grilroy, 46 Iowa, 193, it was said:
“Where the evidence shows without conflict that the written warranty was given by the vendor to the vendee, the latter could not recover for the breach of an additional parol warranty.”
(See also Silliman v. Tuttle, 45 Barb. 175; Filkins v. Whyland, 24 N. Y. 343; Brown v. Russell, 4 N. E. Rep. 428; Fairbanks v. Meyers, 98 Ind. 92; Chicago Railroad Co. v. Derkes, 3 N. E. Rep. 239; Frost v. Blanchard, 97 Mass. 155; Remick v. Sandford, 118 id. 102.)
This court has held that “a mere bill of parcels, in which nothing appears but the names of the vendor and vendee, the articles purchased, with the prices affixed, and a receipt of payment by the vendor, is not such a written contract as excludes parol testimony of the real agreement between the parties.” (Irwin v. Thompson, 27 Kas. 643; Atwater v. Clancy, 107 Mass. 369; Sutton v. Crosby, 54 Barb. 80; Perrine v. Cooley, 39 N. J. L. 449.)
From these authorities it is clear that the contract or bill of sale in this action consummated the transaction between the parties, and no verbal agreement or warranty made during the negotiations of sale can be shown by parol evidence to add to this bill of sale. For this reason we recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
51,
125,
124,
-115,
88,
96,
40,
-102,
-29,
-53,
39,
83,
15,
66,
24,
107,
-26,
111,
97,
106,
79,
-77,
15,
83,
-46,
-45,
-38,
-49,
53,
73,
-31,
87,
12,
36,
-62,
21,
-61,
-54,
-119,
84,
74,
33,
31,
-19,
-7,
-8,
52,
35,
20,
73,
97,
-58,
-15,
37,
24,
95,
41,
42,
107,
9,
-40,
40,
-69,
15,
63,
2,
-111,
116,
-4,
71,
-8,
14,
-112,
113,
25,
-24,
90,
-74,
-58,
116,
33,
9,
40,
102,
-94,
32,
65,
-3,
86,
-100,
47,
95,
7,
-89,
114,
88,
10,
105,
-66,
-116,
56,
16,
39,
70,
-30,
-43,
28,
44,
23,
-81,
-122,
-93,
29,
108,
30,
14,
-18,
-77,
21,
81,
-49,
-30,
92,
65,
30,
-101,
-122,
-66
]
|
The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below to recover damages for personal injuries received by James Sly, while employed by the Atchison, Topeka & Santa Fó Railroad Company in papering an ice-house which was being erected at Nickerson. Sly was standing on a scaffold, which fell while he was at work; the scaffold was defective, in that the cross-pieces or braces which held and strengthened it had been sawed off so that the paper might be put on the house, and the cross-piece or brace where the accident happened was not made secure or safe by sufficient props. One Dixon, a carpenter, who was working upon the scaffold, testified —
“That he cut off some of the cross-pieces ror braces, and several other workmen also cut off' some; that he stood on trestles below to cut off the cross-pieces or braces; that before these were sawed off,.there was a brace extending from the upright to the cross-pieces or beams to hold them; that when he went to fix the cross-piece or brace that fell, he got a piece two by six inches that was too short; that he put this under the end of the cross-piece or brace temporarily, until he could obtain a piece sufficient to hold it; that while he was hunting for a suitable piece to nail on, Kendall called him away.”
Kendall, in constructing the ice-house, represented the railroad company. He was the boss or foreman of the work; he hired and discharged the employés; he kept their time and paid them. (Railway Co. v. Little, 19 Kas. 267; Railroad Co. v. Fox, 31 id. 586.) Sly was a carpenter by trade, but was putting on paper at the time the scaffold fell.
We think the court below committed errors in the trial of the case, but under the special findings of fact of the jury, which are supported by the evidence, the errors alleged are unimportant. It appears that Dixon was called away from the scaffold by Kendall, when it was in an insecure condition, and the falling of the scaffold and the injury to Sly resulted from the orders of Kendall, the superintendent or “boss” of the work. The errors alleged in the brief concern the admission of evidence; the refusal to give instructions based upon the opinions in this court of Railroad v. Wagner, 33 Kas. 660, and Railroad v. Ledbetter, 34 id. 326, and the giving of instructions which are alleged to have been too vague and general. The trial court permitted a physician to testify that the in juries Sly received would disable a laboring man from his ordinary pursuits all the way from one-half to total disability. "We are inclined to doubt whether this testimony was competent without a further preliminary examination of the witness, but under the circumstances of the case the testimony was not harmful.
Sly was a witness before the jury, and testified in his own behalf. When the scaffold fell, his foot and ankle were hurt —the ankle being dislocated. The jury had full opportunity to observe how much his injuries would disable him in his work. A physician testified that the injuries were permanent; that the ankle-joint was suffering from partial anchylosis, and that there was general atrophy of the injured limb.
Dr. Smolt was the only witness introduced upon the part of the railroad company — he is one of the surgeons of the company. He obtained from Sly a history of the case at the time he was injured, but no questions were asked him concerning the injured foot or ankle, and nothing was offered conflicting with the evidence of Sly as to his injuries. Upon the trial, to affect the credit and show the interest of Dr. Smolt, who was a witness for the company, the court permitted upon his cross-examination questions of his efforts to compromise Sly’s claim to be asked. This testimony was competent for the purpose for which it was introduced, but it was not competent as testimony imputing negligence to the company. Therefore, when the company requested the court upon such testimony to instruct the jury that they could not consider it as making the company liable, the instruction should have been given; but the findings of the jury fix the liability of the company upon the fault of Kendall, the superintendent, and not upon the acts or language of Dr. Smolt, and therefore the failure to give the instruction did not affect the jury, or-prejudice the rights of the company.
In the Wagner and Ledbetter cases, the injuries attempted to be proved were caused by defects in the drawbars of certain cars; but the railroad company in those-cases had no knowledge or notice of the defects prior to the accidents. In this case the injuries did not result from a secret or an unknown defect, but from the failure to supply a sufficient prop to the scaffold, which was wholly caused by the orders of the superintendent of the work. The defect complained of was the result of the affirmative act of the company through its superintendent. Therefore, the instructions requested were not applicable.
While the instructions given were not as full as they ought to have been, and while their language may be criticised, the findings of the jury so clearly fix the liability of the company that the judgment cannot be re-x. j j o versed. (Luke v. Johnnycake, 9 Kas. 511; Edwards v. Porter, 28 id. 700; Woodman v. Davis, 32 id. 344; Salt Works v. Wemyss, 38 id. 482.) There is no complaint that the findings of fact are against the evidence, or that the instructions are erroneous — merely that they are too vague and general.
The other errors alleged are too unimportant to require comment.
There being no substantial error in the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
-16,
122,
-40,
-97,
40,
-24,
58,
88,
97,
-91,
-91,
87,
-19,
-123,
77,
99,
-9,
-51,
84,
35,
100,
-77,
23,
-117,
-62,
-45,
-13,
-59,
-79,
104,
-10,
-41,
76,
48,
-54,
21,
-26,
-56,
-59,
28,
-114,
-123,
106,
-20,
89,
24,
48,
126,
-106,
79,
113,
-98,
-13,
42,
28,
-53,
44,
44,
111,
-83,
-15,
-79,
-110,
13,
77,
16,
-93,
38,
-100,
39,
-52,
60,
-104,
-75,
1,
-8,
115,
-74,
-125,
84,
1,
-117,
77,
98,
98,
32,
29,
-89,
44,
-40,
30,
-65,
-115,
-89,
48,
8,
59,
77,
-65,
-99,
120,
16,
52,
94,
-25,
77,
25,
100,
3,
-117,
-110,
51,
-33,
54,
-106,
39,
-53,
-119,
18,
100,
-34,
-86,
92,
7,
83,
-97,
-113,
-49
]
|
The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Osborne county by Nancy J. Neiswanger against the Missouri Pacific Railway Company, to recover for personal injuries alleged to have been caused through the negligence of the defendant at the city of Beloit, Kansas. The case was tried before the court and a jury, and the jury rendered ageneral verdict in favor of the plaintiff and against the defendant, and assessed her damages at $5,200. The jury also made numerous special findings upon interrogatories submitted to them by the court at the request of the defendant. Judgment was rendered in favor of the plaintiff and against the defendant for $5,200, and the defendant, as plaintiff in error, brings the case to this court and asks for a reversal of such judgment.
The facts of this case appear to be substantially as follows: On May 6, 1886, and at about 5 o’clock p. M., the plaintiff, who resided at Osborne, and who was on her way home, ar rived by way of the Solomon Branch of the Union Pacific Railway at the city of Beloit. She immediately went to the depot or station of the defendant at that place. This depot or station is situated on the south side of the railway tracks, which at that place run east and west. The station house is a frame building, and has a platform all around it from ten to fourteen feet wide. This platform is about three feet high from the ground. At the west end thereof, and near the northwest corner, there are steps four or five in number and from six to eight feet in length, to enable persons to pass from the ground to the platform and from the platform to the ground. At the east end of the platform there is an inclined plane of gradual descent from six to ten feet wide extending eastwardly about fifty feet, intended, among other things, for the same purpose as the steps at the west end. The ladies’ waiting-room is near the middle of the building, with a door on the north side opening from the north platform. When the plaintiff arrived at the depot she inquired of the company’s agent when the next train going west to Osborne would leave, and he told her that it would leave at 9:20 p. M. Shortly afterward her husband arrived from the west to meet her and to return home to Osborne with her. He purchased tickets for himself and her to Osborne, and they checked their baggage to that place. They then left the depot and took a walk through the city, returning to the depot “about dusk,” where they remained waiting for their train. The plaintiff at each time in going to and from the station passed over the steps at the northwest corner of the station platform. The train on which the plaintiff expected to travel in going from Beloit to Osborne did not arrive at 9:20, and it would seem that no one knew when it would arrive; so the plaintiff, with several other passengers, continued to remain at the station waiting patiently for the train to come. At about 11 o’clock that night it became necessary for the plaintiff to retire, and as there were no water-closets or other accommodations of that kind in or about the depot building, it became necessary for her to leave the building, which she did. Two other ladies accompanied her, one with whom she was slightly acquainted, but who had no íqore knowledge of the depot and its surroundings than the plaintiff had, and the plaintiff virtually had none. The other woman was an entire stranger to the plaintiff, but she had some slight knowledge of the place; but the plaintiff at the time did not know it. No inquiry was made of any agent of the railway company, nor was any such agent present or in sight, and the ticket office was closed. The woman passed out of the door of the ladies’ waiting-room onto the north platform, the plaintiff being in the lead. At the west end of the platform, and of the depot, was a public street. Hence they passed eastwardly to the east end of the platform. There were no artificial lights at this place, and indeed none outside of the depot building, and none in the building except some dim lights. There was just enough natural light, however, outside of the building to enable the plaintiff to see the platform and to see the ground, and she could distinguish the one from the other. When she arrived at the platform at the east end of the building, she then walked a few steps southwardly, and then again eastwardly. She saw the east edge of the platform and the ground east of the same, and believing that they were upon a level stepped from the platform intending to place her foot upon the ground, but the ground being three feet below, she lost her balance and fell to the ground, causing the injuries of which she now complains. The two ladies were still with her, and just behind her when she fell. This fall occurred about five feet south of the inclined plane above mentioned. The plaintiff had never before been at this part of the platform. She was picked up and carried into the depot building, where she remained until the train arrived, which was shortly after 12 o’clock that night. She was then placed upon the west-bound train and taken to her home in Osborne. She was then between 52 and 53 years old. Afterward, and on August 9, 1886, she brought this action to recover damages for the injuries which she received by falling from the depot platform as aforesaid.
It is claimed by the plaintiff in error, defendant below, that no cause of action was alleged or proved by the plaintiff below in this case. Now if the facts as above stated constitute a cause 'of action, then we think a cause of action was both alleged and proved. The petition of the plaintiff below is in some particulars defective in not stating the facts constituting her cause of action in greater detail and with a more minute and circumstantial particularity; but the petition was not properly objected to or attacked for this reason. No motion was made to require the petition to be made more elaborate or more definite and certain, nor to require that any of its allegations should be made more specific and explicit; nor was it attacked by any written motion or objection, nor even by a demurrer. Under the circumstances we think the petition was and is sufficient, provided the facts of the case as therein stated and as developed by the evidence are themselves sufficient to constitute a cause of action. Among the several allegations contained in the petition are the following: The plaintiff went to the defendant’s depot as a passenger and purchased a ticket. The platform at that place was three feet high; it was in the night and dark when the injuries occurred; no sufficient lights nor any information was furnished; the ticket office was closed, and no agent of the defendant was present from whom any information could be obtained; and the defendant was negligent in not providing “suitable accommodations for passengers and others entitled thereto.” The petition, in fact, alleged that the darkness was greater than the evidence showed it to be. The petition also alleged negligence generally on the part of the defendant, and that the plaintiff was without fault. The only question then is whether the facts as alleged and proved and as above stated constitute a cause of action. The plaintiff in error, defendant below, claims that they do not, and this for the reason that they do not show any negligence on the part of the defendant below, and do show culpable contributory negligence on the part of the plaintiff below. We think the plaintiff in error is mistaken. In our opinion the defendant below was unquestion ably guilty of culpable negligence, aud we cannot gay that the plaintiff below was guilty of any culpable contributory negligence, and the jury found that the defendant was guilty of culpable negligence and that the plaintiff was not; and the verdict of the jury upon these questions is conclusive. (McKone v. Mich. Cent. Rld. Co., 51 Mich. 601; same case, 13 Am. & Eng. Rld. Cases, 29; Buenemann v. St. P. M. & M. Rly. Co., 32 Minn. 390; same case, 18 Am. & Eng. Rld. Cases, 153, 155, note, and cases there cited; Keefe v. B. & A. Rld. Co., 142 Mass. 251; same case, 27 Am. & Eng. Rld. Cases, 137; B. & O. Rld. Co. v. Rose, 27 Am. & Eng. Rld. Cases, 125, 130, note, and cases there cited; A. & G. S. Rld. Co. v. Arnold, 84 Ala. 159; same case, 30 Am. & Eng. Rld. Cases, 546, 555, note, and cases there cited; Moses v. L. N. O. & T. Rld. Co., 39 La. An. 649; same case, 30 Am. & Eng. Rld. Cases, 556; Bennett v. L. & N. Rld. Co., 102 U. S. 577; same case, 1 Am. & Eng. Rld. Cases, 71; Stewart v. I. & G. N. Rld. Co., 53 Tex. 289; same case, 2 Am. & Eng. Rld. Cases, 497; Cross v. L. S. & M. S. Rly. Co., Mich., 37 N. W. Rep. 361; St. L. I. M. & S. Rly. Co. v. Fairbairn, Ark., 4 S. W. Rep. 50; Patten v. C. & N. W. Rly. Co., 32 Wis. 524; Beard v. C. & P. R. Rld. Co., 48 Vt. 101; B. & O. Rld. Co. v. The State, 60 Md. 449; Buffett v. T. & B. Rld. Co., 40 N. Y. 168; McDonald v. C. & N. W. Rly. Co., 26 Iowa, 124; Martin v. G. N. Rly. Co., 16 Common Bench, 179; Birkett v. W. H. J. Rly. Co., 4 Hurl. & Nor. 729.)
For a railway company to construct a platform around its station house three feet high from the ground, inviting passengers and others to enter upon its premises, many of whom are strangers to that locality, and then to keep them waiting at that place for a delayed train from nine o’clock at night until after midnight, without water-closets or other such necessary accommodations, without lights for the platform, or any lights except some dim lights within the station house, without guards or railing for the platform, and without in formation concerning the character of the premises, is certainly culpable negligence as toward passengers who are not acquainted with the premises, and who are there waiting for such delayed train to arrive to carry them to their destination, and who in the meantime find it necessary to retire from the station house and from the platform. But the defendant urges most strenuously that the plaintiff was guilty of culpable contributory negligence; and it cites various authorities, the most favorable of which to its side of the question are the following : Reed v. R. & A. Rld. Co., 84 Va. 231; same case, 33 Am. & Eng. Rld. Cases, 503; Forsyth v. B. & A. Rly. Co., 103 Mass. 510. But upon reason and great weight of authority, we think the plaintiff was not guilty of any culpable contributory negligence. See the numerous cases above cited. Surely, as a question of law, we cannot declare that she was guilty of any such negligence, and the jury declared as a matter of fact that she was not. What more should she have done than she did ? Should she have created a sensation by hunting for the secluded and possibly sleeping agent of the railway company to obtain a light or to procure information, or when she arrived at the edge of the platform should she have got down upon her knees and felt with her hands to ascertain whether the platform and the ground were upon the same level, or not? The jury did not think that she was required to do these things, and their verdict is final.
It is claimed, however, that she ought to have known that the platform was elevated very much above the level of the ground, for the reason that when she first arrived at the station it was still daylight. It appears that prior to the accident she went to and from the platform, but only to and from the west end; and it does not appear that she ever saw or was ever at the east end until the very moment when the accident occurred; and it would seem that with her slight knowledge of the platform she should not be required always and necessarily at her peril to retain in her actual consciousness the exact condition of the entire platform, nor should she be so required, even if at some time prior to the accident she did have full
and actual knowledge of the platform and its condition. At the time of the accident she saw the platform and saw the ground, and believed that they were upon the same level, and trusting to her senses and to her supposed perceptions, she stepped from the platform and fell, and the jury found that in doing so she was not guilty of any culpable contributory negligence, and their findings upon this subject must now be considered as conclusive. See the authorities above cited.
The plaintiff-in error, defendant below, further claims that the court below erred in permitting testimony of two witnesses to be introduced showing that two other persons, a man and a woman, had also fallen from the p 2 same portion of the platform under circumstances of a similar character. Such evidence was competent. (City of Topeka v. Sherwood, 39 Kas. 695, 696, and cases there cited; Morse v. M. & St. L. Rly. Co., 30 Minn. 466, 471, 472, and cases there cited; same case, 11 Am. & Eng. Eld. Cases, 168, 172, 173, and cases there cited.) Such evidence tended to show that the place was unsafe and dangerous. (Dist. of Columbia v. Armes, 107 U. S. 519, 524, 525, 526, and cases there cited.)
' There is a further objection urged against the testimony of one of such witnesses, to wit, Lydia S. Walrath. Her testimony was embraced in a deposition, and the objection now urged against the deposition is that it was taken in the same city in which the trial was had and only one day before the trial, and that no showing was made that the oral testimony of the witness could not be procured. No such objection as this was made in the court below, and probably the court below never considered or thought of any such objection. The only objection urged in the court below against the deposition as a whole was as follows:
“Objection taken by defendant to the entire deposition on the grounds that same is incompetent, irrelevant and immaterial, and not within the issues in this case; and on the further ground that the same is hearsay in its character, and that no foundation has been laid for the evidence; also 'that it is too remote; also upon the ground that it does not appear from said deposition that the said defendant, or any of its agents, servants, or employés, had any notice or knowledge of the circumstances set forth in said deposition. Objection to the introduction of the deposition as a whole overruled, to which ruling of the court the defendant excepts.”
If the objection which is now urged had been urged in the court below, it would have been error for the court below to have permitted any part of the deposition to be introduced in evidence; but no such objection having been urged in the court below nor fairly covered by the objection that was urged, we cannot say that the court below committed any error in permitting a part of the deposition to be read in evidence. The grounds for the objection interposed in the court below are substantially the same as the defendant generally interposed where it objected to the testimony of witnesses, and the objection urged in the court below was evidently intended to apply only to the evidence as evidence embodied in the deposition, and not to the fact that the deposition was not filed in time or that no showing was made that the oral testimony of the witness could not be procured. The part of the deposition which was read in evidence scarcely had any materiality in the case. The facts which it tended to prove were amply proved by other testimony. The testimony read from the deposition was to the effect that Mrs. Walrath had fallen when it was dark from the same place from which the plaintiff fell, and it was introduced for the purpose of showing that such place was unsafe and dangerous; and taking the facts and circumstances of the case as they were unquestionably proved by the other evidence, we would think as a matter of law that the place where the plaintiff fell was under the circumstances unsafe and dangerous. Besides, the other evidence also proved that a woman whose name was not shown, but who was presumably Mrs. Walrath, fell from that place. But upon the objection made to the introduction of this deposition in evidence in the court below, we do not think that the court below erred in permitting a part of the deposition to be introduced in evidence.
We do not think that it is necessary to discuss any of the other points presented by counsel. In our opinion no,material error was committed by the court below, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
106,
-79,
95,
40,
98,
34,
-104,
98,
-95,
-92,
115,
-19,
-55,
1,
123,
34,
29,
-44,
123,
-46,
-109,
71,
-93,
-46,
-77,
-77,
-51,
-69,
89,
100,
-42,
77,
35,
74,
85,
102,
-62,
85,
28,
-114,
36,
-55,
-8,
91,
104,
48,
123,
22,
66,
113,
46,
-13,
43,
24,
99,
41,
61,
107,
-95,
-78,
-8,
-94,
87,
25,
6,
-127,
32,
-108,
7,
-56,
15,
-104,
53,
64,
-8,
115,
-90,
-122,
116,
69,
-87,
12,
98,
103,
97,
29,
-49,
-84,
-88,
14,
113,
-115,
-25,
-124,
88,
99,
5,
-66,
-103,
85,
18,
71,
-6,
-17,
4,
25,
36,
-127,
-54,
-80,
-111,
-97,
34,
-102,
47,
-21,
-91,
51,
101,
77,
-78,
95,
69,
58,
27,
-33,
-66
]
|
The opinion of the court was delivered by
Johnston, J.:
This was an action in the nature of quo» warranto, brought originally in this court, to determine the; title to the office of register of deeds of Gray county. That county was duly organized in July, 1887, and the first election occurred in October, 1887, when J. W. Brokaw was, elected register of deeds. At the general election held in the-county on November 8, 1887, E. J. Clark was voted for as; register of deeds, and upon a canvass of the votes he was declared to have been duly and legally elected to that office,. Soon after the election, he entered upon the duties of the office, and has continued to hold the same ever since that time» Prior to the general election in 1888, S. S. Van Wye announced himself as a candidate for the office of register of deeds, had his name placed on the tickets, and was voted for as such candidate; and upon a canvass of the votes cast afe that election, he was declared to have received a majority of the votes cast, and to have been duly elected as register of deeds. He took the oath of office and filed a bond, and then demanded the possession of the office, together with all the books and papers, from Clark, who refused to surrender the same to him, claiming that his term of office did not expire until the second Monday in January, 1890. Van Wye then began this proceeding, setting up the facts already stated, and also the additional fact that Clark had failed to file a bond and take the oath of office within the time required by law; but he now waives that point and withdraws the allegation. Clark answers, admitting the election of himself and of his predecessor to the office of register of deeds of Gray county; as alleged in the petition, and denies the allegations which the plaintiff has since withdrawn. No testimony was offered in behalf of the plaintiff, and the action is to be determined upon the admitted facts, as the defendant now moves for judgment upon the pleadings.
The plaintiff shows no right to the office. The general election in 1887 was the proper time to elect a register of deeds in each organized county of the state for the regular term beginning on the second Monday of January, 1888. (Comp. Laws of 1885, ch. 36, § 108.) Clark was then chosen, and, so far as the record shows, he was elected for the regular term which expires in January, 1890. His predecessor, chosen at the first election after the organization of the county, was only elected to serve until the next general election, and until his successor was elected and qualified. (Comp. Laws of 1885, ch. 24, § 116.) At the general election when Clark was chosen there should probably have been an election to fill the vacancy or uuexpired term, ending in January, 1888, as well as for the regular term commencing at that time. It is not alleged what the notice of election with respect to this office was, nor what was shown upon the ballots cast. If Clark was voted for to serve out the unexpired term of about two months, which ended in January, 1888, and no person was elected for the regular term in January, 1890, there -would be some room for the contention of the plaintiff. It has been suggested that in a case like this, where an election to fill a vacancy and for a regular term was to be held at the same time, and ballots are cast in the ordinary way, as for a regular term, without designating that they were intended to be cast for the filling of a vacaucy, the presumption would be that the electors intended their votes to be cast and counted for the regular term. We are not left to presumptions, however, in the present case, as the petition of the plaintiff expressly admits that the defendant was chosen for the regular term. He states: “That this defendant took possession of and entered upon the duties of said office of register of deeds of said Gray county, and received the pay and emoluments thereof for nearly two months before the eoman-ucement of the said regular term, beginning on the second Monday of January, 1888, and for which he was elected under the law." In other parts of the petition the defendant's election for the regular term is conceded. It is true that Clark entered upon the duties of the office in advance of the term for which he was elected; but this does not affect the plaintiff or the result of this case. His action in this respect might have been a proper subject of complaint by his predecessor. If no one was elected for the unexpired term between the general election of 1887 and the second Monday of the January following, as seems to have been the case, Brokaw was entitled to hold the office during that time. But for some reason he surrendered it to Clark. The fact that Clark took possession of the office and discharged its duties before he was entitled to do so, cannot operate to deprive him of the office for the regular term for which he was chosen. Judgment must therefore go in favor of the defendant.
All the Justices concurring. | [
-12,
110,
-72,
60,
-88,
-32,
50,
-118,
90,
-125,
-92,
115,
-83,
-62,
28,
41,
-69,
-67,
-43,
123,
-60,
-94,
71,
-93,
23,
-77,
-53,
-51,
55,
-51,
-76,
-41,
72,
48,
74,
53,
70,
64,
-51,
92,
-114,
-121,
-117,
-18,
-40,
80,
52,
123,
48,
-53,
97,
-66,
-13,
46,
20,
99,
105,
44,
-21,
-95,
0,
-69,
-100,
-107,
125,
6,
-109,
39,
25,
-125,
10,
46,
-104,
53,
-108,
-8,
91,
-90,
-121,
-12,
77,
-120,
40,
102,
107,
49,
-27,
-17,
96,
-104,
45,
62,
29,
39,
-105,
80,
10,
46,
-106,
-103,
117,
-112,
6,
118,
-87,
-59,
28,
108,
12,
-113,
-42,
-93,
13,
-68,
-120,
3,
-57,
-93,
20,
113,
-36,
-60,
93,
70,
50,
27,
-113,
-12
]
|
Opinion by
Holt, C.:
We are confronted at the threshold of the examination of this action, with the claim that there has been a settlement between plaintiff and John Beaumont jr., one of the defendants. The defendants claim the law to be, where several unite to do an unlawful act, and in fur therance of the common purpose another is injured, they all are jointly liable for the injury done, “and there could be no severance of the liability of those who committed or aided in the commission of the trespass,” and say if the plaintiff absolutely released one of the joint trespassers from his liability and made a full settlement therefor with him, it would not only discharge the one intended to have been released but all the others as well, who were engaged in the assault upon plaintiff. The plaintiff, without disputing the law to be as claimed by defendants when there has been a settlement for the cause of action, contends that construing the written instrument signed by Hudson favorably for defendants it is at most only an agreement to dismiss the action against John Beaumont jr.; and claims further, that while a release and settlement of a cause of action with one who assisted in inflicting the injury might relieve all others who participated or aided in its commission, yet where the agreement was merely to dismiss the action pending against one of the defendants, or not to sue, it would affect only the one with whom the agreement was made. Plaintiff further claims that Mr. Hudson, when he executed the instrument in writing, had no authority to make any settlement of the character claimed by the defendants; that his authority as attorney for plaintiff’ simply gave him power to prosecute the action in the courts and not to settle it otherwise. (Jones v. Inness, 32 Kas. 177.)
It is unnecessary in this opinion to determine or discuss either of these legal propositions, for the findings, supported by substantial testimony, establish the fact that Mr. Hudson never intended to make a settlement of the cause of action against the defendants or either of them; it also appears that whatever talk there may have been between him and John Beaumont sr. about dismissing the action against John Beaumont jr., it was subject to his approval when Beaumont should call again, which he never did. Moreover, it is shown by the evidence and found by the jury that the plaintiff did not give his assent to what defendants claim was an agreement, in any of its phases. Therefore we are of the opinion there was no agreement or understanding which would preclude the plaintiff from prosecuting his action against any one or all of the defendants.
This action was brought here by William Sharpe alone. It is in evidence that he was the only defendant against whom a judgment would be of any value. The other defendants are insolvent, and the main question practically in this case is, whether the defendant William Sharpe aided, abetted, and encouraged the assault upon the plaintiff? The evidence on this point comes wholly from Mr. Sharpe himself, and his co-defendants, Dayton Sharpe, his son, and Philip Starr, his stepson. When we say it comes from William Sharpe himself, we include the statements that he made in the presence of Dewey, the postmaster, and to Mrs. Anderson, and his action before 'the justice of the peace. That part of the evidence most favorable to Mr. Sharpe shows that he knew of the intention of his son and stepson to take part in the criminal assault upon the teacher of the school in the district where he lived; his efforts to restrain them were feeble; in fact, considering all his own testimony alone, it might fairly be presumed that he had no objections to the “fun,” as he termed it. He stated to them that if they were determined to go ahead in the matter, they should see the grandfather and guardian of one of the other boys about to be engaged in this unlawful purpose, and if he would consent to pay one-half of the costs, he would pay the other half. It is not the intention of this opinion to attempt to lay down the rule of what should be a proper degree of restraint by the parent over his child when he has reason to think that the child is about to engage in an unlawful act; it is well enough to say, however, there is an element in this case which distinguishes it from Edwards v. Crume, 13 Kas. 348, in which it is held that a father is not liable for the wrongful acts of his minor son of which he knew nothing before or at the time of their commission. In this case William Sharpe knew of their intentions to commit a crime, and with that knowledge he “restrained them not.” His relation to them imposed upon him certain duties and liabilities different from those of one who had no control over them. (Hoverson v. Noker, 60 Wis. 511; Strohl v. Levan, 39 Pa. St. 177; Schouler’s Dom. Rel. 361.) But this question is very largely eliminated from the case by the answers of the jury to the questions of fact submitted to them, in which they find that the defendant William Sharpe, aided, abetted, and encouraged the other defendants in this assault. When it is established that one aids, ■abets, and encourages others in the commission of a misdemeanor, he is guilty as principal under the law, and all are liable in a civil action for any damages that may have resulted from their crime.
One of the most serious questions of the case is whether or not the findings of the jury on this point are supported by substantial evidence. The volume of the testimony is in support of the naked statement made by Sharpe himself; he is corroborated by his son and stepson; but it does appear that he made some admissions directly after this affair took place', and when he thought it a good joke, that are not consistent with his version of his talk with the boys. His statements at the post office of what he said to the boys were more in the nature of encouragement than of reproof. He said, “Well, I told the boys that if they would go down and get Mr. Anderson to pay part of the costs, I would pay the balance, if there was any, and duck him.” And of like character was his conversation with Mrs. Anderson, mother of one of the defendants, who, upbraiding him for getting her boy into trouble, said: “Didn’t you send your boys down to Anderson’s, and tell them to tell him if he would stand half of the costs you would stand the other half, and have him ducked?” and he answered, “Yes.” In both of these conversations there was an admission that it was understood between him and the boys that the teacher was to be ducked. From one we learn that he told the boys to “duck him,” and from the other, to “have him ducked.”
The defendants claim there was a condition imposed in the direction or assent to have the plaintiff ducked which would relieve defendant William Sharpe of his liability. But the condition is a peculiar one, and one which the law would not tolerate in such a transaction as this, where they were planning to do an unlawful act; and when it comes from a father to his own son and stepson it is more in the nature of a permission than a restraint. In fact we feel justified in saying, that taking all his directions together, they could well be considered by them as an approval of their plans, and were such as would incite and encourage them to execute their unlawful purposes.
His appearance before the justice of the peace, pleading guilty to the criminal charge against him, paying his own fine and those of the boys, has great weight with us in supporting the findings of the jury. It appears in evidence that this matter was discussed before the justice, and knowing all the circumstances he was willing to allow the records of the justice to show a plea of guilty on his part. We have noted his excuses and explanations for his action there, but his actions are stronger proof to us than his statements of why he did so. Upon the whole record we believe the findings of the jury, that defendant William Sharpe did aid, abet, counsel and advise the ducking of plaintiff, are supported by sufficient testimony to sustain a judgment thereon.
The defendants further complain of the ninth instruction of the court, whi,ch is as follows:
“ 9. The evidence shows that defendant Dayton Sharpe is the son of defendant William Sharpe, and that defendant Philip Starr is a stepson of said William Sharpe, and at the time of the alleged commission by them of the injuries complained of said Dayton Sharpe and Philip Starr were both minors and living with and members of the family of said William Sharpe; under these circumstances said William Sharpe occupied toward his stepson, Philip Starr, as well as toward his own son, Dayton Sharpe, the relation of a parent. The general rule of law, is that a parent is not liable for the torts or wrongs of his children; yet should you believe from the evidence in this case that said William Sharpe knew of the intentions of Dayton Sharpe and Philip Starr, with others, to inflict on plaintiff the injuries complained of, and said William Sharpe made no effort to dissuade his said sons therefrom, and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them to do the act complained qf, and sanctioned the doing of the same, then he would be liable equally with the others, defendants in this case, for all damages the plaintiff may have sustained by reason of the injuries complained of.”
They complain of this part of the instruction:
“William Sharpe made no efforts to dissuade his said sons therefrom; and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them to do the act complained of, and sanctioned the doing of the same, then he would be liable equally with the others, defendants in this case, for all damages the plaintiff may have sustained by reason of the injuries complained of.”
• They claim that the fact that William Sharpe failed to dissuade his sons from committing this offense would not make him liable for the injuries they inflicted upon the plaintiff. Erom the phraseology of the instruction such an inference is not fairly deducible. For it is stated, “and if you should likewise and further believe that with such knowledge of their intentions as aforesaid he encouraged and incited them,” etc. The instruction does not say if he made no effort to dissuade them he would be liable, but if he made no effort to dissuade them, and did encourage and incite them, he would be liable equally with the others. They claim the word “sanctioned” means ratifying and approving the act after it was done, and being so used and construed was erroneous in the instruction, as his liability could not be made contingent upon his approval of the act after its completion. However, the word “sanctioned” may have had reference to the countenancing and approval of the plans of the boys after they were formed and before they were consummated. This instruction, if erroneous as claimed by the defendants, and we are not prepared to say it is, could at most have been only misleading; and there is proof positive that it did not mislead the jury, for the reason that the jury found that this defendant did incite, encourage and counsel the plans of the boys in committing this assault.
The defendants in their motion for a new trial alleged as one of the grounds therefor the prejudice of the jury, and supported it with this affidavit, made by one of the attorneys for defendants:
“The affiant further says, soon after the verdict of the jury was returned in this action several of the jurors were talking in the ante-room of the court house, in which some of them remarked that they wondered if the defendants, the boys that had ducked the school teacher, would carry out their threats to ride the jury on a rail in case they found a verdict against them. I then asked if such threats had been made, and two or three of the jury replied ‘Yes;’ when they were passing in and out of the court house they had heard some of the defendants, that is, the boys that had done the ducking, remark that if the jury found a verdict against them, they would ride the jury on a rail.”
We think that this affidavit, setting forth what the jury said after the verdict, is hearsay. Affiant says two or three jurymen told him that they had heard threats made by some of the defendants, not William Sharpe, that if they returned a verdict against them they would ride the jury on a rail. None of the jurymen themselves, however, testified by affidavit or otherwise in support of the motion. This affidavit was used for the purpose of showing the verdict was the result of the prejudice of the jury. We cannot treat it as evidence, nor can we agree with the defendants that there is any evidence in the amount of the verdict itself which would induce us to believe that it was the product of prejudice against defendants. The court remitted one-half thereof, probably for valid reasons, but from the record as it comes before us we are not prepared to say that the verdict is excessive.
There is evidence showing that the injuries to plaintiff are serious and permanent. The action of the boys was brutal, and under all the environments of the case we think the judgment is reasonable in amount.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
104,
-44,
-82,
-118,
34,
42,
-8,
-59,
-29,
119,
83,
-83,
-53,
0,
117,
101,
109,
85,
91,
3,
-73,
95,
51,
-14,
-109,
-45,
85,
-77,
-17,
124,
95,
76,
36,
-54,
-43,
98,
66,
-123,
86,
-126,
-91,
58,
-20,
-15,
64,
48,
27,
80,
11,
117,
-114,
-29,
43,
48,
-49,
109,
40,
74,
-83,
-48,
40,
-116,
13,
89,
0,
-77,
38,
-100,
15,
-38,
62,
-112,
49,
9,
-24,
115,
-74,
-58,
116,
109,
-117,
8,
98,
103,
33,
-59,
-81,
-104,
-72,
46,
-20,
-115,
7,
-47,
64,
73,
9,
-73,
-65,
123,
64,
-90,
114,
-14,
29,
20,
44,
5,
-49,
-42,
-95,
-49,
114,
20,
99,
-22,
7,
48,
33,
-49,
-26,
93,
101,
88,
-37,
15,
-42
]
|
Opinion by
Clogston, C.:
This was an action in ejectment, brought by the plaintiff against the defendants, to recover possession of one hundred and sixty acres of land. Plaintiff claimed by a chain of title from the government, and defendants claimed title and possession under a tax deed. This deed is challenged upon many grounds. The first ground is, that the delinquent tax notice failed to describe the land as described on the tax-roll, and that the name of the person to whom it was assessed was omitted. This question has been settled by this court, and this omission has been held to be a mere irregularity, and not sufficient to invalidate a tax deed otherwise regular. (Shoup v. C. B. U. P. Rld. Co., 24 Kas. 548.)
The second challenge is, that the delinquent tax notice does not give full three years from the date of the tax sale for the owner to redeem. The delinquent tax notice states that the sale was made September 3, 1878, and that the owner must redeem on or before September 3, 1881. Counsel insist that the owner had all of September 4th in which to redeem, and us the 4th day was Sunday, he had all of September 5th. Counsel are mistaken in their computation of time. By excluding September 3d, the first day or day of sale, and including September 3d, the last day of redemption, we think full three years are given the owner in which to redeem. The deed was not actually executed until September 21, 1881, and the owner had up to that time in which he might have redeemed.
The next objection urged is, that the delinquent tax notice was not published and posted as required by law. The evidence shows that the notice was published March 17, 24, and 31, and April 7,14, and 21,1881. In the three publications the portion objected to in the published notice is as follows: “Was sold for tax September 3, 1878, for the tax of 1877;” and in the last three publications the notice stated, “Were sold September 3, 1878, for the tax of 1877,” etc. Each of these notices was sufficient, and taken together was published for a sufficient time, and notified the owner that his land had been sold on September 3, 1878, for the tax of 1877. This was specific, and there was no material change in these notices that could mislead anyone; hence the publication must be held sufficient.
As to the objection that the notice was not posted in four public places in the county, we think the evidence sufficient to silence that complaint, as there was evidence tending to show such posting, and the law presumes where a deed is regular upon its face that the notice was posted; (Stout v. Coates, 35 Kas. 382;) and where there is some evidence tending to show this fact, this court will not weigh and determine such evidence. Again, the tax proceedings were challenged for the reason that the delinquent tax list for 1878 was insufficient. The delinquent tax notice under which the tax sale was made is as follows:
“Delinquent Tax List eor 1878.—Office of County Treasurer, Harvey County, Kansas, July 10, 1878.—Notice is hereby given that so much of the following lands and town lots, situated in Harvey county, Kansas, as may be necessary, will on the 3d day of September, and the next succeeding days, be sold by the undersigned at public auction, at my office in the city of Newton, for the taxes of the year 1877, including penalties and costs of advertising.
Sec. Town. Range. Amount.
S.W. qr....................12. 24, 1É. 10.88.”
It is claimed that this notice is defective for the reason that no year is fixed for the tax sale, and no place definitely designated where the sale would take place. The notice is dated at the “Office of the county treasurer of Harvey county, Kansas, July 10, 1878,” and it provides that the sale shall take place on September 3d, and the next succeeding days, and be sold for the taxes of 1877. Now upon the face of this reading can it be said that the owner, or anybody interested in this property who sees this notice, would be misled as to the time of sale or place of sale? It is issued from the office of the county treasurer of Harvey county, Kansas, and states that the sale will take place “at my office.” This was signed by the treasurer. Where the date of a notice is fully given in the heading thereof, and afterward in the body of the same another and subsequent date is mentioned by the month alone, such latter date is universally understood to refer to the present or next succeeding month of that name on the calendar. In other words, where September 3d is mentioned, and the date of the notice itself shows the year, and September coming after that month, it is universally held to refer to the first September recurring after the date given; and if this rule is followed in this class of cases, then this notice could not possibly mislead either as to the date or place of sale. In addition to this, the law fixes the time when the sale shall take place, and all property-owners know that when their tax is delinquent one year that the land will be sold in the September of the following year; so that when this notice stated that this land was to be sold for the taxes of 1877, it was known that this sale would take place in September and the succeeding days thereafter of 1878. We are therefore of the opinion that the notice was not so defective as to render the sale voidable.
The last objection urged is, that the land was sold for more than the taxes, interest and penalty due thereon. The taxes were $9.61. Counsel insists that the five-per-cent, penalty attaching June 21,1878, would be 48 cents, making the taxes and penalty $10.09; and to add to this the fee for advertising would make it $10.34 — the amount for which it should have been sold. It is conceded that $9.61 was the true amount of the taxes, and that 48 cents is the amount of the penalty; then the statute provides five cents for making out the list, and 25 cents for the printer’s fee for publishing, and a fee for the treasurer for the tax-sale certificate of 10 cents— making a total of $10.49. The land was sold for $10.48. Section 109 of chapter 107 provides for a sale to pay the taxes and charges thereon, including costs and advertising and fees for selling; and §18 of chapter 39 of the Compiled Laws of 1875 provides the fee for making the list for publication and fees for printing. These statutes fully warrant the fees as charged. The amount that the land ought to have been sold for was at least one cent more than that actually sold for. There was no intentional sale made for a greater sum than that authorized by law; and where it is shown that the sale has been for a trifle more or less, and yet where there is no intention of selling for a greater or less sum than that provided for by law, such discrepancy will not vitiate the tax-sale proceedings. (McQuesten v. Swope, 12 Kas. 32; Genthner v. Lewis, 24 id. 312.)
After a careful examination of this record and the errors alleged by the plaintiff in error, we are unable to say that the tax deed was voidable for any of the irregularities set out, and we therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
124,
-44,
44,
-70,
-32,
42,
-70,
73,
-95,
-90,
87,
-17,
-126,
0,
61,
-31,
105,
117,
120,
-58,
-93,
55,
35,
-10,
-77,
-55,
-35,
49,
77,
-26,
70,
12,
48,
-54,
53,
102,
34,
-115,
92,
78,
-125,
-119,
109,
-39,
64,
52,
107,
76,
79,
113,
-50,
-13,
47,
62,
-61,
72,
40,
73,
63,
-47,
-8,
-69,
5,
107,
7,
-95,
71,
-72,
-62,
-24,
-118,
-112,
57,
0,
-24,
115,
-74,
-106,
116,
13,
-117,
8,
36,
-62,
0,
77,
-1,
-8,
-104,
46,
122,
13,
38,
-47,
88,
19,
76,
-98,
-99,
116,
80,
103,
126,
-28,
-124,
25,
44,
5,
-50,
-44,
-109,
-113,
96,
-120,
3,
-9,
51,
48,
113,
-49,
-90,
92,
103,
120,
27,
-114,
-36
]
|
Opinion by
Holt, C.:
This action was begun in the Shawnee district court by the plaintiff filing his petition for damages, setting forth an unliquidated claim and an affidavit for attachment and garnishment. In the affidavit, he says that Betsey F. Benton his wife, a resident of Shawnee county, Charles E. Tucker and Eliza Tucker, residents of Pottawat-. omie county, are indebted to him. Attachment and garnishment process were issued to the sheriff of Shawnee county, and served on Mrs. Benton, who afterward filed her affidavit in the case for her answer as garnishee, which, omitting caption, exhibits, and verifications, is as follows:
“Betsey F. Benton, being duly sworn, says that she is the garnishee mentioned in the writ, hereto attached, marked ‘A,’ in the case of Almon Benton v. A. B. Searing, in the district court of Shawnee county, Kansas; and she says that at the time of the service of the writs hereto attached to this answer, marked ‘A’ and ‘B/ on her, she was the owner by purchase from Charles E. Tucker and Eliza Tucker his wife, of the following land, as hereinafter described, situate in Jackson county, Kansas; that she purchased said land subject to a mortgage given by Tucker and wife to one Homer J. Ransom, for $1,400 and interest thereon, and in her purchase contract with said Tuckers she was to assume and pay the said mortgage as a part of the consideration for said lands; that said mortgage was sold and transferred to the Littleton Savings Bank, of New Hampshire, and by said bank sold to and transferred to A. B. Searing, and said Searing, on a suit to foreclose said mortgage, wherein, in the circuit court of the United States for the district and state of Kansas, he made said Tuckers and this affiant and garnishee parties defendant, and at the November term of said court, 1886, recovered a judgment on said mortgage against all said defendants above mentioned therein, of foreclosure, for the sum of $1,640.40, which judgment is still in full force and unappealed from, and is a lien on the lands above referred to, in said Jackson county, said lands being as follows: the southeast quarter of section 28, and lot 2 of the southwest fractional quarter of section 27, all in township 5, range 15 east, containing 182T2^ acres, more or less ; that although said judgment is not against her personally, as she did not execute or indorse said mortgage or the note secured thereby, she is bound under her contract with Tuckers to pay the same, with interest. And she says this is the only indebtedness against her of said Searing, and is the only money, credit or property of his that she has in her possession or under her control; and further saith not.”
Afterward service was made by publication. The defendant failed to appear, and a judgment was rendered against him for $2,000, and Mrs. Benton and the Tuckers were directed to pay the clerk of the court the sum of $1,640.40, with interest, etc., and upon the payment of said sum by either of them such payment would be in full satisfaction and bar of the judgment rendered against them in the circuit court of the United States for Kansas, less the costs in that action. Afterward the defendants, appearing specially for that purpose only, moved the court to set aside and vacate the judgment, giving the following reasons:
“1st. Said judgment is void on its face, and utterly without jurisdiction.
“2d. The district court of Shawnee county, Kansas, has no jurisdiction of the defendant, nor of the subject-matter of this action.
“3d. This defendant has not been served with summons in Shawnee county or elsewhere, and no service by publication is authorized by law against this defendant herein.
“4th. It does not appear by the answers of the garnishees, Betsey F. Benton, Charles E. Tucker, and Eliza Tucker, that there is any property or debts owing to said defendant in said Shawnee county, necessary to sustain jurisdiction in this case.”
The motion was overruled; of that ruling the defendant complains. The defendant claims that the jurisdiction of the court depends upon the answer of Betsey F. Benton, the only garnishee served in Shawnee county, and insists that the question to be decided in this action is whether her answer shows that she was indebted to the defendant. It will be noticed that the decree against her in the federal court was not a personal judgment, and it is evident from the answer of the garnishee that the only one there rendered against her was adjudging her right and interest in the land which the Tuckers had mortgaged to be subject and inferior to Searing’s mortgage.
Our statute provides that when the plaintiff believes any person has property of the defendant in his possession, or is indebted to him, in an action where an attachment has issued such person may be served with garnishee process. There is no contention that Mrs. Benton had any property of defendant in her possession, but it is claimed, and she so states, that she was indebted to him. Now it appears from the answers of'all the garnishees that the Tuckers were judgment debtors of defendant under the judgment he obtained in the federal court. • They were not, however, residents of Shawnee county, and an action brought in that county would not give the court jurisdiction of them in Pottawatomie county unless service had first been obtained upon some defendant in Shawnee county. The answer of Mrs. Benton, construed as plaintiff wishes it to be, does not attempt to show that she was indebted to him beyond the sum of $1,640.40, with interest. Hence, in any event, a personal judgment against defendant for $2,000 would have been void as to the excess over $1,640.40, with interest, etc. "When service is obtained by publication there can be a judgment rendered only for the amount of the property attached or held under garnishee process. It cannot be seriously contended that Betsey F. Benton is a judgment debtor of Searing. Under the judgment obtained in the federal court she was not held personally liable for any part of the $1,640.40. There was simply a personal judgment rendered against Charles E. Tucker, and an order to foreclose a mortgage on certain land in Jackson county, describing it, if the judgment should not be paid in a certain time, and that Betsey F. Benton’s right and interest in the land should be held inferior and subject to this judgment and mortgage lien of Searing; there was no attempt to make her a judgment debtor of Searing.
It might be claimed that she was indebted to Searing under the contract made between her and the Tuckers, agreeing that the payment of this note aud mortgage should be a part of the purchase-price of the farm sold by the Tuckers to her. Of the scope of that contract and whether it was parol or in writing, we have no information from the record except the statement in Mrs. Benton’s answer as garnishee, which is, that she was to assume and pay said note and mortgage as a part of the consideration for said land. It might be urged that this made her a debtor of Searing irrespective of any judgment of the court. (Anthony v. Herman, 14 Kas. 495; Life Assurance Society v. Welch, 26 id. 642; Brenner v. Luth, 28 id. 583; Strong v. Marcy, 33 id. 109; Rickman v. Miller, 39 id. 362.) But there is this distinction in the cases cited from this one: in all those cases the party for whose benefit the contract was made was claiming its enforcement; in this case he does not. If the contract was made as shown by the answer of Mrs. Benton as garnishee, unquestionably Searing could, if be had desired, have obtained a judgment against her; and further, the rule may fairly be stated to be, that if it was shown that such contract was in his favor and for his benefit, prima facie he would be presumed to have accepted it; but in this case it is in evidence that he commenced his action for foreclosure of this mortgage and asked for a personal judgment against the Tuckers for the sale of this land, and only claimed that Mrs. Benton’s rights were inferior to his under the mortgage. It may be fairly presumed that he thought his security on the land was ample, and that the personal judgment against the makers of the note was sufficient, and that he did not care for a personal judgment against Mrs. Benton, who is not shown to have any property except the farm she purchased from the Tuckers. In any event, it can be safely said that he did not care to accept the contract between the Tuckers and Mrs. Benton. (Hartman v. Olvera, 54 Cal. 61; Waples, Att. & Garn. 204.)
This disposes of this case, and it is unnecessary to examine the other contention of the defendant, namely, that the district court of Shawnee county could not have garnished a judgment debtor of this defendant in a judgment in the federal court.
We recommend that the judgment of the district court overruling the motion to vacate be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
-10,
109,
-80,
77,
-56,
-28,
8,
-118,
91,
-95,
-79,
83,
-17,
-52,
1,
105,
-14,
41,
-15,
121,
67,
-73,
55,
65,
-48,
115,
81,
77,
-80,
93,
-28,
-42,
76,
48,
74,
-99,
70,
-94,
-61,
-36,
-114,
-128,
-117,
105,
-41,
-64,
56,
-21,
66,
11,
117,
44,
-13,
40,
61,
99,
105,
46,
-21,
45,
-64,
-79,
-71,
87,
125,
19,
-127,
6,
-100,
2,
66,
42,
-112,
53,
0,
-24,
122,
38,
-122,
116,
69,
-117,
77,
102,
99,
51,
-99,
-19,
-68,
12,
47,
-10,
-97,
-90,
-79,
73,
67,
40,
-66,
-99,
93,
81,
7,
-8,
-1,
5,
29,
104,
-121,
-50,
-108,
-79,
13,
62,
-104,
7,
-9,
-121,
33,
113,
-51,
-30,
93,
67,
48,
-101,
-113,
-69
]
|
The opinion of the court was delivered by
Johnston, J.:
The insufficiency of the petition is first presented, and that it is fatally defective will be readily seen. It fails to describe who is plaintiff and who is defendant, either in the title or elsewhere, except as it may appear from the order or position in which the names are placed in the heading. Then there is an omission to name the pleading by inserting the word “petition” after the title of the cause, as the code positively requires. As the case comes to us, probably neither of these objections is so serious as to be fatal; but another and more serious one is raised by the objection to the introduction of any testimony, which was made at the beginning of the trial. It is nowhere stated that Wilhite unlawfully detained the property from the plaintiff, nor is it even alleged that he had it in possession in any way or for any purpose. The gist of the action of replevin under our code is the unlawful detention of the property by the defendant as against the plaintiff; and to maintain the action the plaintiff must allege this fact in his petition. (Wilson v. Fuller, 9 Kas. 176; Hoisington v. Armstrong, 22 id. 110.)
There is a recitation in the record that the affidavit filed in the case was “in due form of law, and sufficient;” and it is suggested that, being so, it must have contained the allegation that the property was wrongfully detained by the defendant, and that this would cure the defect in the petition. In an action of replevin in justice court the affidavit may be treated as a bill of particulars, because the statute does not, require-any additional pleading to be filed in such an action before a justice of the peace, (Starr v. Hinshaw, 23 Kas. 532,) but not so in the district court, where the petition cannot be dispensed with. There the purpose of the affidavit is to obtain an order of delivery, and its allegations cannot be used to supplement or supply the material averments required to be stated in the petition. It is no part of the pleadings in the case, and the facts stated therein form no part of the issues unless contained in the pleadings. (Crawford v. Furlong, 21 Kas. 698; Hoisington v. Armstrong, 22 id. 110.) Granting, then, that the affidavit contained this most important allegation, it did not strengthen the petition, nor did any subsequent pleading in the case supply what was lacking, as the defendant answered by a general denial. While a petition is to be liberally construed when its sufficiency is only raised by an objection to the introduction of any evidence, yet the defect in this petition is so great, by failing to state inferentially or otherwise a wrongful detention by the defendant, that the court should have sustained the objection; and hence there must be a reversal.
As the petition can be and doubtless will be amended when the case is remanded, we have concluded to examine the principal point of controversy between the parties upon the merits of the action, which is the exemption of the property seized and sold by the plaintiff in error. Williams was the head of a family, and his occupation was soliciting life insurance in Emporia and in the surrounding country, embracing. Lyon and adjoining counties. He purchased the horse, harness and buggy for the purpose of carrying on his business, for which they were adapted, and they were being so used when the sheriff levied upon them. In regard to the horse, there can be no question that it was exempt under the fifth subdivision of § 3 of the act relating to exemptions. The language em ployed in that clause is general, and evidently the legislature did not intend to restrict the exemption to persons pursuing any particular occupation, or those making any particular use of the property therein mentioned, or to any particular class of debtors, except that they must be residents of the state and heads of families. Every person who resides in the state and is the head of a family is entitled to the benefits of the exemption, and the animals and articles therein named are absolutely exempt to him, regardless of their use or of his occupation. (Nuzman v. Schooley, 36 Kas. 177.)
It is equally clear that the buggy and harness were exempt to the debtor under subdivision eight of § 3 of the same act, which provides that there shall be exempt “the necessary tools and implements of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business, and in addition thereto stock in trade not exceeding four hundred dollars in value.” Applying the liberal construction to which exemption laws are entitled, and which this court has always given them, the business of soliciting insurance is within the statute quoted, and the buggy and harness must be held to be within the description of tools and implements used and kept by the debtor for the purpose of carrying on his business. This view was substantially held in Davidson v. Sechrist, 28 Kas. 324. There, a resident of the state, not the head of a family, who was an insurance agent and abstracter of titles, claimed that an iron safe, a cabinet and table, and a set of abstracts, were exempt as the necessary tools and instruments used and kept for carrying on his business. The exemption was claimed under the third clause of § 4, and the language there employed is almost identical with subdivision eight of § 3, giving the exemption to heads of families, and which has been quoted. It was held by the court that the phrase “mechanic, miner, or other person” was sufficiently broad to include the insurance agent, and that the property named came within the description of tools and instruments used and kept for the purpose of carrying on his trade or business, and that a contrary holding would not be in accord anee with the beneficent design of the exemption laws. This interpretation applies to the case in hand, and is controlling. The early ease of Gordon v. Shields, 7 Kas. 320, is referred to as an authority against this interpretation. The only question before the court in that case was whether a buggy was included in the term “wagon,” as used in the sixth subdivision of § 3. It is true that the party claiming the exemption in that case was an insurance agent, and the property claimed was used in carrying on his business as such agent; yet the property was not claimed to be exempt under the eighth subdivision of the section, and it received no consideration or interpretation from the court. This is made more apparent in the concurring opinion of Mr. Justice Valentine, who states that in his opinion the property might have been claimed under the eighth subdivision of the section; but as that question was not raised by counsel, possibly the court was not required to examine it.
We think the court correctly held the property to be exempt, but for the error heretofore mentioned the judgment must be reversed, and the cause remanded for such further action as the parties hereto desire to take.
All the Justices concurring. | [
-78,
108,
-36,
-114,
43,
96,
42,
-102,
-47,
-95,
39,
51,
-17,
-58,
-120,
51,
-13,
61,
-15,
121,
70,
-77,
126,
-64,
-14,
-77,
80,
-43,
-79,
-49,
-12,
116,
76,
-80,
-22,
-11,
102,
-56,
-55,
-42,
-118,
45,
9,
-27,
-47,
96,
36,
59,
86,
15,
113,
-98,
-29,
58,
24,
-45,
-53,
40,
-21,
63,
-60,
-80,
-115,
-99,
95,
22,
-79,
38,
-100,
-61,
90,
44,
8,
49,
0,
-24,
-109,
-74,
-126,
-12,
105,
-101,
1,
98,
98,
0,
77,
111,
-8,
-112,
46,
58,
13,
38,
-109,
24,
75,
33,
-74,
-67,
61,
48,
46,
124,
-1,
21,
21,
110,
1,
-53,
-106,
-75,
-81,
56,
-120,
91,
-37,
3,
48,
113,
-57,
-32,
92,
99,
89,
-101,
-114,
-102
]
|
The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to reverse a judgment of the superior court of Shawnee county, given on October 21, 1886, in favor of the defendant in error, for the sum of $800.52. Various grounds of error are assigned and argued, but the record brought up for review is so defective and incomplete that we are not permitted to examine the case upon its merits. The sufficiency of the record is not questioned by the defendant in error, and ordinarily only such questions as are called to the attention of the court are noticed; but in this case the record falls so far short of what is required by the statute, that the defect cannot be overlooked. It purports to be a transcript, but it contains only certain findings of the court, a motion for a new trial, and the judgment. It shows that the case was heard upon pleadings and testimony, but what the pleadings contained, or what the issues in the case were, is not shown. There are two methods of bringing a civil case up for review: one upon a case-made, and the other upon a transcript. In no other way can the appellate jurisdiction of the court to review such cases be invoked or exercised. The case-made may be very brief, much more so than a transcript, and the first-named was devised mainly for the purpose of abridging the record and lessening the expense of review. All that it needs to contain is a brief statement of the issues in the case, and so much of the evidence or proceedings as is necessary to a full understanding of the errors assigned. But even in a case-made the pleadings or a statement of what the issues in the case were should be included. (Shumaker v. O’Brien, 19 Kas. 476.) When the other method of bringing a case up for review is employed, the plaintiff in error cannot shorten the record at his option. The authenticated transcript attached to the petition in error must be a copy of the whole record. It must be a transcript of all that is legally a part of the record in the court below; and what the record shall consist of is pointed out in §417 of the code. It is a cumbrous and expensive method, but the rule is rigid that when that means of review is employed, the transcript must contain the whole record. The case in hand cannot be fairly considered or properly decided on the fragment of record that has been brought up. What was controverted or conceded in thé pleadings, and whether the findings are within the issues framed in the action, cannot be known. How far the findings may have been modified or supplemented by facts conceded in the pleadings or agreed upon by the parties, cannot be ascertained. The clerk certifies it to be a true and correct transcript of the records and proceedings in the case, and at the same time recites that pleadings were filed which are not included in the record. We are not disposed to discourage brevity in the making of records for review, as it is a much-needed reform. It may be accomplished by means of the case-made; but when a review is based on a transcript, it must contain the complete record. (Weaver v. Hall, 33 Kas. 619; Eckert v. McBee, 25 id. 705; Whitney v. Harris, 21 id. 96; Moore v. Cutler, 18 id. 607; The State v. Ricker, 40 id. 14.)
The petition in error will be dismissed.
All the Justices concurring. | [
-80,
-20,
-67,
-68,
-86,
96,
98,
-114,
65,
-127,
-9,
115,
-81,
-62,
12,
107,
-10,
45,
84,
107,
68,
-73,
22,
-63,
-42,
-13,
-10,
84,
-79,
108,
-10,
-42,
76,
-80,
-102,
-107,
102,
66,
-57,
84,
-114,
15,
-103,
77,
-13,
96,
52,
57,
18,
11,
113,
111,
-29,
46,
30,
-61,
-23,
41,
-55,
-87,
81,
-112,
-114,
-123,
125,
4,
-79,
18,
-100,
13,
88,
46,
-102,
49,
2,
-4,
113,
-90,
-122,
-12,
73,
-71,
9,
102,
98,
49,
77,
-17,
56,
-56,
39,
62,
-99,
-89,
-109,
72,
75,
1,
-74,
-99,
61,
114,
15,
-2,
-21,
5,
93,
108,
3,
-117,
-112,
-71,
-49,
116,
2,
75,
-29,
-93,
-112,
113,
-59,
-48,
93,
103,
17,
-101,
-98,
-104
]
|
Opinion by
Holt, C.:
This is an action in replevin for goods taken o.n execution against L. A. Fluke, issued out of justice court. It was tried by a jury at the January term, 1886, of the superior court of Shawnee county, and judgment rendered for plaintiff.
The testimony discloses the following facts: In November, 1884, one Olson rented a store-room at No. 210 Kansas avenue, Topeka, a part of which he sub-let to Charles Nyman for a cigar and tobacco store. In that month Nyman sold his goods and store fixtures, and assigned his lease to L. A. Fluke, who thus became a tenant of Olson. At the time Nyman sold the store he made a contract with the husband. The property was sold for $200, $125 of which was paid by a check, and the balance in three notes of $25 each. The husband offered ■his notes to Nyman, who wished Fluke’s wife to sign them, and she did so. These notes were not produced at the trial. There was some question about the name the wife signed; whatever it was, she prefixed Mrs. thereto. The $125 paid by a check on the Topeka State Bank was signed by the husband, “L. A. Fluke.” On the 6th of November, 1884, the Flukes went together to the Topeka State Bank and there deposited $200; the husband signed the signature-book “L. A. Fluke;” and the entire amount deposited was checked out by him under that name. The business was continued at No. 210 Kansas avenue under the name of L. A. Fluke, and the husband managed and apparently owned it. Pie paid dif.ferent bills — among others for the rent — by checks on the Topeka State Bank signed :‘L. A. Fluke.” Subsequently, owing to non-payment of rent, Olson brought an action of forcible detainer against L. A. Fluke. The summons was served by a constable, who went to their place of business and asked for L. A. Fluke; the husband aud wife were both in the back part of the store at the time, and the husband stepped forward in answer to his inquiry for L. A. Fluke, and the summons was there served upon him. At the return-day the husband appeared aud made an affidavit for continuance as L. A. Fluke. Upon the trial of that case the plaintiff was non-suited on account of a defect in the notice to quit. Another suit was immediately instituted and another summons served upon the husband, who again appeared and obtained another continuance upon his affidavit signed “L. A. Fluke,” and was sworn on the trial as defendant L. A. Fluke. Judgment was rendered in favor of Olson. The goods and fixtures were then taken out of their place of business by the Flukes without any further process.
Afterward another action was brought by Olson, to recover the rent still due for the premises. The summons was served upon the husband personally; judgment was rendered injustice court by default; execution was issued, and the stock and fixtures, which had been removed to another place, were levied upon. The husband claimed them as exempt, being his stock in trade; this claim, however, was soon abandoned. Subsequently his wife, who had been absent in Illinois at the time judgment for- rent was rendered, returned and brought this action in replevin, stating that she was L. A. Fluke, and had never had service of summons made upon her in the action for rent; that her husband’s name was M. S. Fluke; that he had been acting as her agent, and claimed that any judgment rendered against her upon a summons served upon him was void.
The defendant brings the case here. He argues that the judgment for rent against L. A. Fluke cannot be questioned in this action. If the only service made in that action was by summons served upon M. S. Fluke, then he is mistaken. Judgment without service upon a defendant is absolutely void, and can be attacked collaterally. On the trial of this action one fact to be found was, who was L. A. Fluke — the husband, or wife ? If it should be determined that L. A. Fluke was the wife, then whether she had conducted herself in such a manner as to estop her from denying that her husband was L. A. Fluke; and then the further fact whether the property taken on execution was the property of the wife or of the husband.
The testimony brought here presents a peculiar and unusual transaction, and so far as it shows the doings of the husband, at least, a dishonest one. It seems hardly probable that these matters should have proceeded in the way they did without the knowledge of Mrs. Fluke. The fact that she went with her husband to the bank and deposited money there; that he wrote “L. A. Fluke” in the signature-book of the bank with her consent and approval; that he made this trade for the store, offering his note in payment; that- he accepted service of summons while in the same room with her, and went to the justice of the peace and obtained a continuance under the name of L. A. Fluke; that he made an affidavit as L. A. Fluke, and was sworn on trial as L. A. Fluke; the removal from their place of business after judgment without further process; and his attempt to hold this property as exempt as his own after it was levied upon in the action for rent, can be explained upon the theory that the business, property and fixtures were his own, and his name was L. A. Fluke, or as an effort on his part to conceal this whole trouble and attendant unpleasantness from his wife.
It is contended that all this might have been done without the consent or knowledge of the wife, and the case was tried upon that theory, and the verdict could only have been rendered upon such a belief. We repeat, however, that it is at first sight improbable that his wife did not have some knowledge of some of these transactions, especially when we consider their manner of doing business. She testified that she looked after the business herself, and knew what was going on; that she knew there was trouble about the rent; and it is fairly to be inferred that she knew how the place was rented, when rent was due, etc. It is evident that the husband wished both his wife and himself to escape the payment of this debt to Olson, not because it was not honestly 'due, but to defraud him. To do so he pursued methods outside the ordinary powers of an agent, and beyond any authority expressly proven by direct evidence. They both claim that he was acting as her agent, and as such had control of her property. But there is enough evidence of extraordinary and uncommon circumstances to raise a presumption that instead of the relation of principal and agent existing between them, they were both in collusion to defraud Olson of his rent. Under such circumstances, we believe there should have been wide latitude given in the introduction of testimony. The court excluded the statements made by the husband when not made in the presence of his wife. We think this was error. If they were made while he was his wife’s agent, about her business, and within his authority, they were certainly competent as admissions against her interests; if made while he had control and claimed ownership of the property, they might possibly have been competent for that reason; if they were made to advance the plans of both to defraud Olson, as there seems to be a fair inference they were, certainly they would have been competent against her, even though not made in her presence. The rule is too well known to require the citation of authorities, that when two or more agree to carry out some dishonest purpose, the declarations of either made in the furtherance of the common design are evidence against all. We believe there was'sufficient proof to authorize the court to receive in evidence the declarations of the husbánd concerning the property, its ownership, and his relation to it, even though the wife was absent.
For this error in excluding evidence of his statements we recommend that the case be reversed, and remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
-48,
-19,
-8,
78,
26,
-32,
42,
-70,
67,
-128,
37,
115,
-23,
82,
1,
97,
-14,
61,
117,
121,
-124,
-73,
39,
65,
-46,
-77,
-63,
85,
-80,
-23,
-12,
-41,
76,
48,
66,
-99,
66,
-32,
-59,
84,
-114,
-95,
-87,
-32,
-41,
-64,
48,
-91,
102,
65,
49,
78,
-13,
46,
20,
-54,
105,
46,
-17,
-65,
-16,
-31,
-69,
-35,
125,
22,
-127,
38,
-104,
5,
-38,
47,
-104,
49,
16,
-23,
115,
-74,
6,
116,
5,
-113,
4,
98,
98,
51,
-107,
-83,
112,
-116,
47,
-69,
-113,
7,
-80,
88,
3,
47,
-66,
-99,
117,
-111,
15,
-8,
-16,
21,
25,
108,
3,
-114,
-106,
-109,
15,
54,
-122,
29,
-5,
19,
41,
113,
-49,
36,
92,
70,
120,
27,
-50,
-11
]
|
Opinion by
Simpson, C.:
Mary C. Townsend, the plaintiff in error, filed her petition against the city of Paola, a city of the second class, on the 10th day of February, 1886, in which she demanded a judgment against said city in a large sum, for damages on account of a personal injury she received by falling in a. ditch excavated for the purpose of laying water- pipes along one of the streets of said city. She was injured on the night of the 31st day of January, 1886, about the hour of 9 o’clock P. M. Her injuries consisted of a “green-stick fracture” of the smaller ribs; an indentation in the shin-bone, as if the bone had struck against some blunt instrument; it was not broken, but there was a dent in it; there was a concussion at the base of the brain; and bruises on the elbow and shoulder. The most prominent injury was the concussion at the base of the brain; a jarring'of the brain at its base, a disturbance of it causing a flow of blood there, and some inflammation.
At the time of the trial, October term, 1886, she had not recovered from the effects of either the fracture of the ribs, the injury done the bone, or the effects of the concussion of the brain. She was nervous, easily excited, had lost flesh, and her attending physician was uncertain as to whether she would ultimately recover from all the effects of the fall, or not. It might be that in the course of nine months or a year, if all conditions were favorable, that she would. The plaintiff in error at the time of the injury was forty-seven years old, weighed about one hundred and forty-five pounds, and was in good health. A ditch for water-pipes had been.dug near to and parallel with the sidewalk along the west side of Pearl street, running north from Peoria. Mrs. Townsend, who lived on Pearl street, some blocks north of Peoria, started to go home that evening, and went on her usually traveled route. Loose boards had been placed across the water-pipe ditch, and when she struck those at the crossing, supposing it was the sidewalk, went along there for the distance that they extended north, and then stepped off into the ditch, falling heavily, and receiving the injuries complained of. She claims that there were no lights at that point, and none nearer than the northern corner of the block, she having fallen near the southern corner. The attending physician testified that he had visited her in the neighborhood of one hundred times, and that his services were reasonably worth about two hundred dollars. She was nursed for six or seven weeks, during which time she was unable to do any work. The jury returned a verdict in her favor for $550.
There are numerous errors assigned, but on the argument the cause for reversal was rested principally on the alleged error in the instructions of the trial court establishing the measure of damages. The theory of counsel for the plaintiff in error is best presented by a comparison of instruction No. 12, given by the trial court, and the refusal to give instruction No. 2 as requested by the plaintiff in error. The instruction given is as follows:
“If you find that the plaintiff is entitled to recover, the measure of damages is compensation for the loss of time, for the expenses, and for physical pain which had resulted from the injury up to the time oj the commencement of this action; and if plaintiff is still disabled from such injury, such further damages as appear from the evidence to be the natural and probable result of such injuries.”
Instruction No. 2, as requested by the plaintiff in error and refused, was in these words:
“If you find the plaintiff is entitled to recover in this action, the measure of the damages she is entitled to recover, if any, is compensation for the time lost by her; expenses, including physician’s bill, cost of medicines, hire of nurses, and such other expenses as are made necessary by the injury received, from the time of the injury to the present, and such an amount as you may find will compensate her for the physical pain and suffering she has endured since the injury to the present time. And in addition to these, if you find that the plaintiff is still suffering from the injury, and is likely to continue to suffer for a time, or to be permanently injured, or both, then she would be entitled to recover such further sum as you may determine will compensate her for the damages which will naturally and probably result from the injury.”
Eor an intelligent understanding of a proper application of the instruction given, and the one refused, to the facts in , this case, it must be stated that the plaintiff in error offered evidence tending to show that her eyesight was good before the fall, but that her sight was somewhat impaired by the injuries she received; that she was in good health before the accident happened; that for about six years before she was injured she was dependent upon her own labor and exertions for support; that she kept boarders, and canvassed as an agent for the sale of various articles; that she also did embroidery and needle-work of various kinds; and that she is not now able to do any of this kind of work, or to do the ordinary house-work. The elements of damage in cases of this character are loss of time from business or employment; loss of capacity to perform the kind of labor done before the injury, or for which the person is fitted; the expenses incurred for medical services, purchase of medicine, the cost of nursing, etc.; and the physical pain suffered. (Atchison v. King, 9 Kas. 551.)
In estimating the amount of damages to be given for permanent injury, the elements to be considered are the former occupation of the plaintiff, and the amount of money received from it, in addition to physical suffering, and some other elements that particular cases may warrant. (George v. Haverhill, 110 Mass. 506; New Jersey Ex. Co. v. Nichols, 33 N. J. Law, 435; McLaughlin v. Corry, 77 Pa. St. 109; Hall v. Fond du Lac, 42 Wis. 274; Morris v. Chicago &c. Rld. Co., 45 Iowa, 29; Chicago v. Jones, 66 Ill. 349.) These are the rules by which the damages are measured, whether the injuries inflicted were temporary or permanent in their character.
Under the instruction given by .the court, the jury were told to estimate the damages from the time the injury occurred, on the 31st day of January, until the commencement of the action, on the 10th day of February, 1886. This covers only about ten days’ time, and under such an instruction the jury were not allowed to take into account the condition of the plaintiff in error at the time of the trial in October of that same year, or at any time between the commencement of the action and the trial. This instruction was greatly to the prejudice of the plaintiff' in error, and as we view the evidence, accounts for the smallness of the verdict. The Kentucky court of appeals, in the case of Alexander v. Humber, decided in January, 1888, and reported in 6 S. W. Rep. 453, commenting on this question, say:
“A new trial was asked, however, upon the ground that the lower court improperly admitted testimony tending to show permanent injury to the appellee, and also error in refusing an instruction asked by thf appellant. . . . The wrong complained of was not a continuing act, or of such a character that successive actions could be maintained for the results flowing from it. It was one act. The injured party had the right therefore to offer testimony as to, and to recover for, all injuries that were reasonably certain to result from the wrong. If limited to proving her pain, suffering, and injury to the time of bringing her action, and not allowed to show its continuance up to and existence at the time of trial, then it would follow that she would have but a partial remedy. Still more so would this be true if she were not allowed to show that permanent injury had resulted, or was reasonably certain to result from the wrongful act. . . . The wrong being from a single act, the nature and extent of it in all its consequences may be considered. The injured party need not delay suit until all the consequences have been developed. He may recover for past and future suffering and past and future deprivation of health, if they be the direct result of the injury.”
In actions for personal injuries, the plaintiff recovers for permanent loss of earning-power, which includes both the pecuniary loss he has sustained, and that which he is likely to sustain during the remainder of his life. (McLaughlin v. City of Corry, 77 Pa. St. 109; Barbour v. Horn, 48 Ala. 566; Malone v. Hawley, 46 Cal. 409; Fulsome v. Concord, 46 Vt. 135; Sheehan v. Edgar, 58 N. Y. 631, and cases cited; Chicago v. Jones, 66 Ill. 349; City of Chicago v. Elzeman, 71 id. 131.)
The text-writers on the law of damages all say that the injured party is entitled to recover in one action, compensation for all damages resulting from the injury, whether present or prospective. (1 Sedgwick, 7th ed., p. 205, and authorities cited in foot-note; Field, §614; 1 Sutherland, p. 196, and authorities cited in note.)
We are bound to presume that the jury followed the instructions, and assessed the damages only from the time the injury occurred until the commencement of the suit.
The instruction was erroneous, and because of it we recom ruend that the judgment be reversed, and remanded with in- . structions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
104,
-76,
-82,
26,
0,
40,
-118,
113,
-111,
-75,
63,
-83,
-63,
13,
111,
103,
121,
-48,
125,
-13,
-93,
19,
-118,
-14,
83,
39,
71,
-77,
108,
116,
-43,
79,
48,
74,
93,
-26,
10,
113,
88,
-114,
-108,
-119,
-24,
89,
-46,
48,
126,
-112,
14,
49,
-98,
-13,
43,
24,
-49,
41,
40,
107,
61,
-94,
33,
-76,
-123,
-1,
-124,
-128,
-58,
-98,
-121,
-50,
24,
-40,
53,
0,
-88,
50,
-73,
-122,
85,
37,
-117,
-116,
96,
38,
33,
13,
-17,
-24,
-72,
63,
118,
-115,
-91,
-91,
41,
-31,
41,
-67,
-99,
108,
85,
19,
72,
-3,
69,
89,
40,
-57,
-125,
-108,
-79,
-33,
-92,
-112,
-89,
-21,
39,
55,
81,
76,
50,
92,
0,
51,
-101,
31,
-102
]
|
The opinion of the court was delivered by
Pollock, J. :
The matters involved in this litigation are so inextricably confused, and the interests of the parties so interminably intermingled, that it will subserve no useful purpose to attempt an exact or detailed statement of all. It will be sufficient to state such facts only as are necessary to disclose the nature of the propositions discussed and relied on by counsel.
John S. Branner and Jacob Klein were partners. Klein died, leaving as heirs defendants in error Josie Webb and Millie Nichols. Branner, as administrator, settled the individual estate of Klein, the partnership estate of Branner & Klein, and acted as guardian for the Klein heirs. The values of the properties involved are large, and much litigation has arisen between the heirs of Klein, and Branner. Many cases arising between these parties have been determined by this court. (See Webb v. Branner, 59 Kan. 190, 52 Pac. 429 Branner v. Nichols, 61 id. 356, 59 Pac. 633 ; Branner v. Webb, 61 id. 181, 861, 862, 59 Pac. 270, 60 Pac. 1131.) Others, aside from this, are now pending.
Plaintiff in error Hazen, having secured title from Branner and wife to Branner’s undivided interest in much of the partnership real estate during the pend-ency of litigation in which the property was involved, brought .this action in Shawnee county to partition one lot and a portion of two others, in the city of Topeka, belonging to the partnership estate. To this action Branner, the Klein heirs, receivers of certain of the property, theretofore appointed, one Geo. Giles, the owner of a mortgage of $7000 on the property sought to be partitioned and on other portions of the partnership property, and others, were made defendants. Each of the heirs of Klein owned an undivided one-fourth of the property involved. Josie Webb had theretofore recovered a judgment against Branner in the sum of $4500 for rents and profits accruisg on certain of the partnership estate. Millie Nichols had re covered alike judgment in the sum of $4742.20. These judgments were liens upon Branner’s portion of the joint property. Webb and Nichols also had a claim of $20,000 in litigation against Branner, growing out of the settlement of the estates and his guardian accounts. After plaintiff’ had procured his deed from Branner, he mortgaged the property therein described to the Bank of Topeka to secure the sum of $4300. Moses Snattinger held a mortgage on one portion of the joint property to secure payment of the sum of $6000. M. Oswald held a mortgage on another portion of the joint property to secure payment of the sum of $3000.
A change of venue was taken to Jackson county district court, where defendants Webb and Nichols, jointly, by way of answer and amended answer and cross-demand, set forth the foregoing facts in detail; described the joint property;. alleged possession of their interest; the liens upon the joint property ; their right to partition of the same; also, that the deed from Branner to plaintiff was fraudulent and void -t demanded partition, and asked that all parties in interest in the joint property might be brought in and their interests in the joint estate fully adjusted, determined and protected by the decree entered. All parties in interest were brought in, and their rights to and claims on the joint property were fully set forth. During the pendency of this action the undetermined demand of Webb and Nichols against Branner was reduced to judgment, and ascertained to be the sum of $12,196.94, which fact was set forth in a supplemental answer filed in this case.
After issues fully joined, plaintiff, for the mortgagee Snattinger, Snattinger in his own behalf, and mortgagee Giles, moved for a dismissal of the action,'which motion was overruled. After an ineffectual application for continuance, plaintiff and mortgagees, Snattinger, Giles, and the Bank of Topeka, dismissed their several causes of action. Thereupon, upon demand of the defendant heirs, the case was brought on for trial, and, as to all matters except the fraudulent character of the deed from Branner to plaintiff, was tried by the court. This question of fraud was by the court specially submitted to a jury. In answer to a special question, the jury found such deed fraudulent and void. The court made full findings of fact upon the evidence, conclusions of law therefrom, at length, and entered a decree fully adjusting and determining the interest of all parties in the property, and the extent, amount and priority of the liens thereon. It specifically directed the manner of sale of the different parcels of encumbered property and the distribution of the proceeds, to the end that the priority of the liens thereon might be preserved, protected, and paid, and ordered the partition of the remainder of the property after the satisfaction of the liens between the parties in im terest, as provided by law. From this decree the plaintiff, Branner and the mortgagees prosecute this proceeding in error:
The questions raised for determination are mainly matters of practice. The evidence is not in the record and the facts found by the court are conclusive. The findings support the decree entered. From the facts stated, on account of the interlacing of interests and the overlapping of liens, that any effectual, enforceable and protective decree might be entered, it was almost an imperative necessity that all of the joint property and all the parties interested therein should be brought before one court in one litigation. For, in no other manner conceivable could an effectual de cree determining the several rights and protecting the different interests of all parties be obtained. The action of the trial court in so doing constitutes the chief ground of complaint made against the decree entered. The property in dispute being real property, situate in Shawnee county, and the relief demanded being the partition of this property and the determination of the extent and priority of liens thereon, that the district court of Jackson county in the first instance had no jurisdiction, is apparent. What is the rule, however, this action having been commenced in Shawnee county to partition a portion of the joint property, and having been legally removed to Jackson county on change of venue ?.
On principle, it is well settled that the general policy of the law is to avoid a multiplicity of actions. It is also a principle of universal application that a court of equity once having assumed jurisdiction of a subject-matter will reach out and draw into its consideration and determination the entire subject-matter and bring before it the parties interested therein, that a full, complete, effectual and final decree adjusting the rights and equities of all parties in interest may be entered and enforced. A partial or incomplete decree in equity will not be entered. No decree will be granted until all necessary parties are before the court, if jurisdiction can be obtained. This action having been originally commenced by plaintiff in Shawnee county to partition only a portion of the joint estate and adjust the liens thereon, had the case remained in that jurisdiction, that the heirs could by cross-demand for affirmative relief have drawn into the controversy all the joint estate and- all parties in interest therein, and fully determined and adjusted the entire matter in one litigation, would seem sound in principle and well sustained by authority.
In the case of Parker v. Harrison, 63 Miss. 225, Mr. Justice Campbell, in delivering the opinion of the court, said:
“The complainant was a cotenant of all the lands sought to be partitioned, and brought before the court the alienees of her former cotenants, so that their interests would be protected. Surely, they cannot successfully complain of this. It is the right of one of several cotenants to convey his interest in the whole or a part of the joint estate, but this shall not prejudice the rights of a cotenant who has not aliened and desires to obtain partition.
“It is not allowable for a cotenant to split the joint estate into fragments, and necessitate as many separate suits for partition as there may be conveyances. He who has a joint interest in the several parcels may proceed as if no conveyance had been made by any of his cotenants, and bring all parties in interest before the court, which will do justice between the parties according to their several rights.”
In the case of Barnes v. Lynch, 151 Mass. 510, 24 N. E. 783, it was said:
“A conveyance by one tenant in common of his interest in part only of the common estate will not authorize a cotenant to enforce partition of such part against the grantee, leaving the residue unpartitioned.”
In Grady and others v. Maloso and another, 92 Wis. 666, 66 N. W. 808, it was held that one of several persons who together inherited from the same person two tracts of land may, without his complaint being open to the objection of improperly uniting several causes' of action, maintain an action for partition of the two lots against his coheirs and persons to whom they have conveyed an interest in one or the other or both •of the lots.
In Grant v. Murphy, 116 Cal. 427, 48 Pac. 481, 58 Am. St. 188, it was held that, as a general rule, all the parties to an action for partition are actors, each having the right to set up in his pleadings the nature and extent of his interest, and to have the same ascertained and adjudicated by the interlocutory decree ; that this rule,applies where the property must b.e sold for partition as well as in other cases, and a decree which does not adjudicate the interests of the respective parties is ordinarily erroneous.
In Gore v. Dickinson, 98 Ala. 363, 11 So. 743, it was held:
“The court having acquired jurisdiction of the main question — the real subject-matter — it will ascertain the validity and extent of such conveyances, and so mold and adjust its decree as to meet all the equities of the parties growing out of their ownership of and relation to the property.”
Mr. Knapp, in his work on Partition, page 25, says :
“The court, before it will order-a sale of lands in partition, requires that all those that have an interest in them shall be made parties to the action, to the end that the purchaser may get a perfect title.”
At page 89 the same author says :
“It is a general rule that all persons ,who may in any way be interested in the lands sought to be partitioned shall be made parties to the action. . . .
This rule also includes those who have a lien upon the land, or who may be interested in any mortgage, judgment or mechanic’s lien, or, in fact, any lien that may be actually valid against the premises.” (See, also, English v. English, 53 Kan. 173, 35 Pac. 1107 ; Barnes et al. v. Boardman et al. [Mass.] , 32 N. E. 670.)
This being the rule governing the rights of the par ties, had Shawnee county remained the forum, does the fact that the venue of the action was changed to Jackson county limit the jurisdiction of that court to that portion of the joint estate described in the petition and actually involved in the controversy at the time the venue was changed? Or was the jurisdiction of that court coextensive with that of the Shawnee court had the venue remained unchanged? From an examination of the authorities, it would seem to be the general rule that a court taking jurisdiction of a cause by change of venue takes precisely the same jurisdiction which would have obtained in the court from which the venue is changed. In the Encyclopedia of Pleading and Practice, volume 4, at page 487, it is said: “The jurisdiction acquired by a change properly made is in all respects the same as that of the court in which the cause originated.” In the case .of McIlwrath v. Hollander, 73 Mo. 105, 39 Am. Rep. 484, it was held: “A court to which a change of venue has been taken may render any judgment which might have been rendered by the court in which the case originated.” In the opinion it was said :
.“The circuit court of Buchanan county, having regularly acquired jurisdiction of the suit by change of venue, had precisely the same power to render judgment therein which the circuit court of Livingston county had, and for all the purposes of this case the judgment may be regarded as a judgment of the circuit court of Livingston county.”
As the Klein heirs had the undoubted right to have all the joint property partitioned in the one action brought in Shawnee county, notwithstanding the conveyance by Branner to plaintiff, and the interest of all parties therein determined, that the decree might be effectual and an end of litigation, and as the dis trict court of Jackson county, by the change of venue taken, acquired jurisdiction to determine any question and render any judgment in the case that the district court of Shawnee county could have rendered had the venue remained unchanged, it follows that the decree entered is not objectionable upon this ground.
Again, it is contended by counsel for plaintiffs in error that the court had no power to order the sale of the real estate involved in this controversy, or any portion thereof, and the distribution of the proceeds. "We apprehend that this contention is based upon the assumption that, under the statutory provisions for partition of real estate, the only judgment the trial court is warranted in rendering is one determining the extent of the interest of the parties and appointing a commission to make partition in kind, if possible, or, if found and reported by the commissioners that partition in kind cannot be made, to .order a sale on the appraisement made by the commissioners,' in the event none of the parties in interest in the property elects to take the same at its appraised value. Whatever may be .the general rule upon this subject where the property is unencumbered and no insuperable objection to this method of procedure is presented, we do not think the rule applicable to the facts in this case, or that justice could be done the parties by a strict adherence thereto. Section 616 of the code (Gen. Stat. 1901, §5103) provides: “Creditors having a specific or general lien upon all or any portion of the property may be made parties.” Section 629 (Gen. Stat. 1901, §5116) provides:
“ The court shall have full power to make any otder not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
As has been seen, the joint property in this case was composed of several town lots and fractions of lots, encumbered by the specific, overlapping liens of the mortgagees and the general liens of the heirs upon the interests of Branner and plaintiff. The statute grants the power to make the lienors parties. Under the power granted, they were made parties in this case. When made parties, the statute, and the general rules of equity as well, invested the court with full' jurisdiction over them to make all orders necessary to protect their interests, and also to protect the interests of the joint owners of the property. The only manner in which this could be accomplished in this case was by a sale of the property in satisfaction of the liens established, in accordance with the priority of the liens thereon,- and the partition under the statute of the remainder. Any other decree would have been insufficient to meet the equities of the case, would afford no protection to the parties, and be incapable of enforcement under the peculiar complications of the case. Former decisions of this court tend to support this view. (Sarbach v. Newell, 28 Kan. 642; Sarbach v. Newell, 30 id. 102, 1 Pac. 30; Phipps v. Phipps, 47 id. 328, 27 Pac. 972.) The supreme court of Iowa, in passing upon this proposition, in Brown v. Cooper, 98 Iowa, 444, 67 N. W. 378, 60 Am. St. Rep. 190, held:
“The object of partition proceedings is to enable those who own property as joint tenants, or coparceners, or tenants in common to so put such end to the tenancy as to vest in each a sole estate in specific property or an allotment of the lands or tenements. It contemplates an absolute severance of the individual interests of each joint owner, and, after partition, each has the right to enjoy his estate without supervision, let or hindrance from the other. Unless this can be accomplished, then the joint estate ought to be sold, and the proceeds divided.”
Complaint is also made of the trial court in permitting the filing of amended and supplemental pleadings, in refusing to grant a continuance, and in proceeding with the trial after the dismissal by plaintiff and the mortgagees of their several causes of action. Upon consideration, we find these objections without •sufficient merit to entitle them to separate consideration. After dismissal by these parties they participated in the trial, the equities of the mortgagees were fully protected, and ample provision was made for the satisfaction of their liens.
Upon the whole record, it would appear that justice has been done as between the parties by the decree entered. It is therefore' affirmed.
Smith, Cunningham, Greene, JJ., concurring. | [
-48,
106,
-3,
94,
24,
98,
58,
-54,
113,
-111,
-9,
115,
-55,
-49,
13,
125,
82,
25,
80,
107,
-9,
-77,
58,
-96,
-46,
-77,
-47,
-35,
-79,
94,
103,
-42,
76,
48,
10,
-43,
-30,
-62,
-43,
86,
-114,
4,
40,
-16,
-38,
-128,
48,
111,
82,
91,
21,
-116,
-13,
41,
57,
-31,
72,
42,
-119,
45,
-47,
-80,
-117,
-97,
94,
22,
19,
37,
-102,
-25,
72,
58,
-112,
112,
9,
-24,
-13,
54,
86,
116,
37,
9,
8,
-26,
99,
49,
1,
-17,
-4,
-104,
46,
-13,
-115,
-89,
-111,
72,
-93,
9,
-76,
-99,
125,
80,
-125,
-2,
-4,
4,
28,
-4,
11,
-114,
-106,
-111,
11,
127,
-104,
11,
-21,
-61,
53,
96,
-61,
-86,
77,
103,
56,
-77,
-98,
-78
]
|
The opinion of the court was delivered by
Greene, J. :
The defendant in. error recovered judgment against the Bank of Le Roy, Kansas. Durr ing the life of the judgment, but more than ten years after the cause of action accrued against the stockholders of the bank, the defendant in error commenced the present action, seeking to hold the plaintiff in error, a banking corporation of Rhode Island, as a stockholder in the Bank of Le Roy. To avoid the statute of limitations, the petition contained the following allegations :
“That it, the said Mechanics’ Savings Bank, of Westerly, Rhode Island, is a corporation, duly organized under the laws of the state of Rhode Island, and has its domicile at Westerly, in said state, and has been so incorporated for more than fifteen years last past, and during its entire existence has been a resident and citizen of the state of Rhode Island, never having a place of business, domicile or residence in the state of Kansas.”
Judgment was for plaintiff and defendant prosecutes error.
The defendant in error moves to dismiss this cause on jurisdictional grounds. His first contention is overruled, on the authority of Railway Co. v. Morris, ante, p. 532, 70 Pac. 652. .
The summons in error commanded the sheriff to summon the defendant, but did not include the name of the attorney of record in the original case, and was served on such attorney. Counsel contend that the officer is limited in the service of process to the recitals therein, and that such service gave this court nó jurisdiction of the defendant in error. Section 544 of the code (Gen. Stat. 1901, § 5028) provides :
‘ ‘A service on the attorney of record in the original case shall be sufficient. The summons shall notify the adverse party that a.petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first day qf the term of the court, if issued, in vacation, and ten days before the commencement of the term.”
Under this provision of the statute, if the summons is properly issued to the adverse party, it may be served on t-he attorney of record in the original case, and such service is good notwithstanding the name of the attorney is not included in the summons. ,
It is contended that the record does not affirmatively show that the motion for a new trial was filed at the same term at which the verdict was returned and judgment rendered. The verdict was returned and judgment rendered June 26, 1901, and motion for a new trial was filed June 27. There is nothing in the record indicating that the term' had adjourned in the meantime. It also appears that the motion was argued by counsel and considered by the court. Where it is shown that the court considered the motion for a new trial, and it is not shown that it was filed after the term of court at which the verdict was returned, this court will not assume that it was filed after the term. Error is never presumed, but must be affirmatively shown. This court will indulge in no presumptions that the successive steps in this proceeding, which appear regular and timely, were not regularly and timely taken. The application to. dismiss is overruled.
The verdict of the jury was returned and judgment entered thereon June 26, 1861. It is also true that on the 30th day of June, after the motion for a new trial was overruled, another judgment appears to have been entered, but the judgment of June 26 was the act of the court, is in due form, and is held to be the judgment in the cause for the purpose of examining the alleged errors.
The causes alleged in the motion for a new trial are those designated as 2, 5, 7 and 8 of section 306 of the code (Gen. Stat. 1901, §4754). The petition in error was not filed until" more than one year after the entry of the judgment of June 26, 1901, but was filed within one year after the overruling of the motion for a new trial. Therefore, this court can only review such alleged errors as are included in the motion for a new trial. ( Sweet v. Ward, 43 Kan. 695, 23 Pac. 941; Dyal v. City of Topeka, 35 id. 62, 10 Pac. 161 ; Lamme v. Schilling, 25 id. 92; Sanford v. Weeks, 50 id. 339, 31 Pac. 1008.)
Plaintiff in error contends that the court erred in overruling its demurrer to the petition. It will be observed that the overruling or sustaining of a demurrer to a pleading is not mentioned in section 306 of the code, nor is it included in the meaning of the eighth subdivision of the section as an “error of law occurring at the trial.” Pleading is not strictly a part of a trial. The trial does not commence until an issue of fact is joined. Such issue is generally joined in vacation, and it not infrequently happens that the issue is closed at a term of court previous to the one at which the trial is had, and in many instances before one judge and the trial not had until he is succeeded by another. The alleged error in overruling the demurrer to the petition was not an 'error of law occurring at the trial, and cannot, for this reason, be reviewed by this court.
At the trial the plaintiff offered in evidence what purported to be a transcript of the judgment obtaiped against the Bank of Le Roy. The defendant objected to its introduction on the grounds that it was “incompetent, irrelevant, and immaterial.” This objection was overruled, and we think properly so. It is argued that the transcript was not properly authenticated. If that objection had been made it should have been sustained. Objections to testimony should be sufficiently specific to direct the attention of the trial court to the exact question Contended for. This is due the court as well as the opposite party.
It was said in Howard v. Howard, 52 Kan. 469, 477, 34 Pac. 1117: “Objections to testimony should be sufficiently pointed out, in order that the court may rule intelligently upon them, and, unless this is done, they are not entitled to consideration here.” In Johnston v. Clements, 25 Kan. 376, where the objection was based “on all the grounds ever known or heard of,” it was said: “The court should not have entertained these objections. 'Objections made in that form are unfair, both to the court and to the adverse party.” In K. P. Rly. Co. v. Cutter, 19 Kan. 83, a transcript of the record of the proceedings of a probate court of Colorado was admitted in evidence oyer the objection that it was incompetent. It was held by this court that such objection would not raise the question of the. insufficient authentication of the record. In Ferguson v. Graves, 12 Kan. 39, 43, it was said:
“And 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 object-' ing, has been repeatedly decided by this court.” (See, also, MacRae v. Piano Co., 64 Kan. 580, 68 Pac. 54; (Priest v. Robinson, 64 id. 416, 67 Pac. 851.)
A trial court has neither the time nor the opportunity' to examine documentary evidence when offered to see that it is in all respects in due form and subject to no objection. If it is admissible for any purpose, or under any circumstances, it is the duty of the party objecting distinctly to call the attention of the court to such defect. A neglect to do so will deprive such party of having the question reviewed in this court.!'
It is .further urged that the court erred in over-' ruling an objection made to the introduction of a copy of an annual report made by the treasurer of the plaintiff to the secretary of state of the state of Rhode Island, setting out its items of assets and liabilities. The statute of Rhode Island was introduced in evi'dence, showing that such statement was required to be made annually by such corporations. ' This report was offered for the purpose of showing that it included stock in the Bank of Le Roy as an item of assets. Whether the court erred in its ruling on this question is not important, as the treasurer of the bank testified that he had made the report, and that it did. contain such stock as one item of its assets.
There are numerous other alleged errors in the ruling of the court in the admission and exclusion of evi dence, as well as the giving and refusing of instructions, but, upon an examination, we find nothing that requires an extended reference "in this opinion.. The special findings and verdict .of the jury were sufficiently supported by the evidence.
The judgment is, therefore, affirmed.
All the Justices concurring. | [
-14,
110,
-4,
-98,
-102,
96,
58,
-86,
81,
-95,
-91,
-13,
-19,
-61,
20,
57,
-14,
-21,
84,
115,
-27,
-77,
6,
-63,
-46,
-77,
-47,
-43,
-79,
79,
-26,
-34,
12,
48,
74,
-43,
102,
-54,
-63,
-36,
-114,
5,
25,
108,
-7,
88,
112,
120,
80,
14,
97,
62,
-13,
46,
59,
74,
105,
45,
105,
-67,
-48,
-71,
-113,
-123,
111,
21,
33,
23,
-106,
7,
72,
46,
-128,
25,
33,
-7,
118,
-74,
-122,
-44,
107,
25,
9,
98,
98,
0,
69,
-17,
-116,
-96,
38,
26,
13,
-89,
-80,
32,
105,
44,
-74,
-99,
62,
16,
103,
-4,
-20,
76,
27,
100,
1,
-113,
-12,
-77,
-113,
116,
-98,
67,
-13,
3,
-80,
113,
-58,
-24,
92,
7,
115,
19,
-98,
-36
]
|
The opinion of the court was delivered by
Pollock, J.:
This was an action brought by Jennie Dalton to recover damages from the railroad company for negligence in the discharge of its duty toward plaintiff, as a passenger. The facts were that plaintiff, accompanied by her sister, purchased a ticket and took passage upon one of defendant’s trains from Kansas City to Fontana, Kan. The train left Kansas City about 9 :45 p. m., and was due to arrive at Fontana about 11:40 p. m. It was a regular passenger-train, not scheduled to' stop at Fontana except upon signal. The brothers of plaintiff were at the depot at Fontana with a conveyance to carry the sisters to their home, some two and one-half miles in the country. The train was not stopped at Fontana, but plaintiff was carried on to the station of La Cygne, some ten miles beyond her destination. When the train arrived at La Cygne, plaintiff was required to alight therefrom, and was carried back to Fontana on a freight-train, where she was compelled to hire a conveyance to carry herself and sister to their destination in the country.
It was alleged.and shown that plaintiff was caused delay, expense, inconvenience, fright and mental suffering by being carried beyond her destination, in being compelledtorideupon a freight-train in the nighttime, and in seeking for a conveyance to carry her and her sister from Fontana into the country, by reason of the negligence of the servants of defendant company in failing to stop the train at Fontana, and it was alleged in the petition that such negligence was wilful and wanton. No complaint of physical injury • to plaintiff was alleged or shown. Plaintiff had a j general verdict and judgment thereon for the sum of ($300.
In answer to special questions propounded to the jury, the sum allowed in the general verdict was divided as follows : For expense incurred, $4.50 ; inconvenience and trouble, $45 ; loss of time,- fifty cents ; mental suffering, pain, and shock, ,$250. In answer to a special question, the jury refused to find any amount as punitive damages. A-motion fora new trial having been overruled, defendant brings error.
The court- instructed the jury in regard to the measure of damages as follows :
“If the plaintiff recover in this action, she should recover in such sum as the jury shall find from the evidence she is entitled to as a full compensation for the additional expense, if any, which she has necessarily incurred, for the delay and consequent loss of time, if any, and for the annoyance, fright and mental anguish, if any, caused by the negligence of the defendant, its agents or employees.”
This instruction and the findings made by the jury raise the question whether fright, mental suffering, pain, and shock, caused by the negligence of defendant, independent of, and unaccompanied by, physical injury, can be made the basis of a claim for damages. This question would seem to be well settled by the decisions of this court and in other jurisdictions. In The City of Salina v. Trosper, 27 Kan. 544, which was an action for damages against the city for negligence in maintaining an open cellar-way, it was held:
“Damages for mental suffering can be recovered in cases of this kind, where such mental suffering is an element of the physical pain, or is a necessary consequence of- the physical pain, or is the natural and proximate result of the physical injury, and can be recovered in cases of this kind only under such circumstances.”
In West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530, it was held:
“Where an action is brought against a telegraph company to recover damages for a breach of contract in failing to deliver a message announcing a death, held, that damages cannot be recovered by the plaintiff solely for the mental anguish or suffering occasioned by the non-delivery of the message.”
In A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453, in the opinion it was said:
“The jury found that the plaintiff below was damaged sixty-five dollars by reason of peril and fright. Damages of this kind are too remote. A person who is placed in peril by the negligence of another, but who escapes without injury, may not recover damages simply because he had been placed in a perilous position. Nor is mere fright the subject of damages. Fright must be accompanied by some actual injury caused thereby, and traceable directly thereto, to be the subject of damages. Mere fright, unaccompanied by any injury resulting therefrom, cannot be the subject of damages. (Victorian Rly. Comm’rs v. Coultas, L. R. 13 App. Cas. 222.)”
In Shearman and Redfield on Negligence, fifth edition, section 761, it is said :
“Mental suffering, when connected with any bodily injury, is always to be considered in damages. But damages cannot be recovered for mental suffering alone, in an action on personal injuries, caused by any negligence not gross and reckless. There must be some ‘impact’ or other direct injury to person or property, to allow mental suffering to be included in such cases.”
A case very similar to the one at bar is that of Trigg v. The St. Louis, Kansas City & Northern Railway Company, 74 Mo. 147, 41 Am. Rep. 305. It was there held:
“A passenger on a railroad-train who is carried beyond her station, by the negligence of the company, but without any circumstances of. aggravation, and without receiving any personal injury, may recover compensation for the inconvenience, loss of time, labor and expense of traveling back, but not for anxiety and suspense of mind suffered in consequence of the delay, nor the effects upon her health, nor the danger to which she was exposed in consequence of the train being stopped, at her station an insufficient length of time to enable her to get off."
It being neither alleged nor shown that plaintiff received any physical or bodily injury as a result of the. negligence of defendant, and the jury having found by their special verdict that plaintiff was not entitled to recover punitive damages for wilful or wanton negligence, the motion for a new trial should have been sustained, as it was error to permit a recovery on the general verdict for an element of damages which, upon the pleadings and findings of the jury, was improper in this case.
It follows that the judgment must be reversed and a new trial awarded.
All the Justices concurring. | [
-16,
122,
-3,
-67,
42,
104,
34,
-102,
101,
-111,
-90,
83,
-51,
-51,
1,
57,
-18,
-65,
-48,
107,
116,
-93,
7,
-93,
-38,
83,
51,
68,
-79,
74,
-26,
-10,
77,
50,
-54,
85,
102,
74,
85,
28,
-114,
23,
-23,
-32,
89,
106,
48,
120,
6,
78,
113,
-113,
-13,
40,
28,
-46,
45,
45,
-21,
61,
-48,
112,
-117,
-121,
63,
6,
33,
36,
-98,
39,
-56,
56,
80,
53,
1,
-84,
115,
-92,
-122,
-44,
101,
-103,
13,
98,
103,
33,
20,
-17,
-4,
-120,
46,
114,
-115,
-89,
48,
25,
-55,
76,
-73,
-99,
100,
20,
15,
124,
-8,
12,
93,
52,
1,
-53,
-76,
-77,
-81,
36,
-98,
7,
-53,
-95,
50,
100,
-56,
-78,
93,
4,
58,
-101,
-97,
-66
]
|
The opinion of the court was delivered by
Doster, O. J.:
This is an appeal from a judgment of conviction of a violation of the anti-trust law. The information on which the conviction was based reads as follows:
. ‘'I, the undersigned county attorney of said county, in the name and by authority and on behalf of the state of Kansas, give information that on the 20th day of November, a. d. 1900, in said county of Rush and state of Kansas, one E. J. Smiley, secretary and representative of the Kansas State Grain Dealers’ Association, did then and there unlawfully enter into an agreement, contract, and combination, in the county of Rush and the state of Kansas, with divers and sundry persons, partners, companies, and corporations, or grain dealers and grain buyers, in the town of Bison, in said county and state aforesaid, to wit: Humburg & Ahrens, the La Crosse Lumber and Grain Company, the Bison Milling Company, and George E. Weicken, who were at the same time and place competitive grain dealers and buyers, to pool and fix the price the said grain dealers and buyers should pay at the said place and to divide between them the net earn ings of said grain, dealers and buyers, and to prevent competition in the purchase and sale of grain among the said dealers and buyers, contrary to the form of statute in such case made'and provided and against the peace and dignity of the state.”
The proceeding was instituted and conviction had under chapter 265, Laws of 1897 (Gen. Stat. 1901, §§ 7864-7874). A question is raised as to whether the charge was made and judgment pronounced under that or certain other statutes. This will be noticed hereafter. The parts of the act of 1897 which apply to the case read as follows :
“Section 1. A trust is a combination of capital, skill, or acts, by two or more persons,- firms, corporations, or associations of persons, or either two or more of them, for either, any or all of the following purposes :
“First. To create or carry out restrictions in trade or commerce, or aids to commerce, or to carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state..
“Second. To increase or reduce the price of merchandise, produce, or commodities', or to control the cost or rates of insurance.
“ Third. To prevent competition in the manufacture, making, transportation, sale or purchase of merchandise, produce, or commodities, or to prevent competition in aids to commerce.
“Fourth. To fix any standard or figure, whereby its price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, use or consumption in this state.
“Fifth. To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or description by which they shall bind or have to bind themselves not to sell, manufacture, dispose of or transport any article or commodity, or. article of trade, use, merchandise, commerce, or consumption, below a common standard figure; or by which they shall -$gree in any manner to keep the’ price of such article, commodity or transportation at a fixed or graded figure ; or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others, to preclude a free and unrestricted compe-, tition among themselves or others in transportation, sale or manufacture of any such article or commodity ; or by which they shall agree to pool, combine or unite any interest they may have in connection with the manufacture, sale or transportation of any such article or commodityj that it? price may in any manner be affected. And any such combinations are hereby declared to be against public policy, unlawful, and void.
“Sec. 2. All persons, companies or corporations within this state are hereby denied the right to form or to be in any manner interested, either directly or indirectly, as principal, agent, representative, consignee, or otherwise, in any trust as defined in section 1 of this act.”
Subsequent sections of the act contain penal provisions under which appellant was fined and ordered committed to jail. The above statute is assailed with great vehemence by counsel for appellant. Their contention is that it imposes such limitations upon freedom of contract as to constitute a deprivation of the right of property, contrary to the guaranty of the fourteenth amendment to the federal constitution. They say that, instead of being what it purports, an act to prevent unreasonable restrictions upon trade, it is itself such restriction, and is therefore violative of the fundamental right to acquire property by lawful contract. To enforce these contentions, many generalities of language, culled out of the reported decisions and the writings of the commentators, have been quoted, but no concrete instances of holdings by .courts of last resort adverse to enactments of the character' of the one in question have been cited. Two recent decisions by subordinate federal judges ruling against the validity of statutes of a similar kind have been called to our attention. (In re Grice, 79 Fed. 627; Niagara Fire Ins. Co. v. Cornell, 110 id. 816.) The opinions in' both these case's, so far as they discuss the subject of the repugnancy of the acts under consideration to the constitutional guaranty of freedom of contract, are open to the criticism of being without the bounds of the meritorious question at issue. This is perceivable at once. The first-mentioned case involved the "anti-trust " statute of Texas. That statute exempted from its terms the original producer or raiser of agricultural products or live stock. The other case involved the."anti-trust" statute of Nebraska. That statute exempted from its provisions assemblies or associations of laboring men. The making of these exceptions was class legislation, and constituted a denial of the equal protection of the law — , so the judges ruled. That ruling was all-sufficient for the purpose of the cases. Not only that, it was on) the only necessary question in the cases. Hence/ the disposition made of them on the one special feature forbade an opinion on the abstract general question, and rendered all that was said upon it dictum of the baldest kind. The supreme court of the United States recently had a like occasion to declare the law in advance of the presentation of a necessary issue concerning it. It was in the case of Connolly et al. v. The Union Sewer Pipe Co., just decided. (22 Sup. Ct. 431.) That case involved the validity of the "antitrust" law of Illinois, an enactment similar to the statutes of Texas and Nebraska, and like them containing an exception in favor of a certain class. The' court held the statute invalid because, of the exception, but very properly refrained from making pro nouncement of. what the law would be if it had not contained the exception.
The opinions of the judges in the cases of In re Grice, supra, and Niagara Fire Ins. Co. v. Cornell, supra, are not regarded by us as authority. They are, however, adopted as arguments by counsel for appellant, and as such are entitled to consideration. Nevertheless, as arguments, they are barren of reference to adjudged cases, except in the form of quotations of abstract and general statement. The burden of their reasoning is that the statutes under consideration were so broad and comprehensive in their terms as to be inclusive of classes of persons and kinds of business that it would be unreasonable and tyrannical to regulate in the mode attempted. In the case first cited it was said, among other things of like kind :
“Two village grocers doing business at a loss to both could not form a partnership in order to save themselves from bankruptcy. Neither could they form a partnership in order to lessen their expenses, and thus reduce the price of their commodities to the public. Still more, if A. and B., each owning half a car-load of potatoes, should agree to ship together, in order to obtain car-load rates, thus enabling them to sell lower in the markets, they would violate this act.”
In the other case the assumed unreasonableness and tyranny of the statute is illustrated by the following, among others, as typical instances :
“If this law is valid, two or more farmers cannot agree that they will not sell their wheat to a neighboring mill for less than so much per bushel. Two or more farmers cannot agree that the live-stock feeder shall not have their corn except at a certain price. Nothing can be agreed to by the manufacturer, the farmer, the gardener, the contractor, consumer or laborer to prevent the reduction of price.”
If the statutes of Texas and Nebraska were really to be enforced against tbe classes of persons mentioned, and to the utter length stated by the judges in the two cases cited, they well deserved the condemnation they received ; and if our statute is to be held to apply in the like way we should not hesitate to declare it to be violative of the most fundamental principles of constitútional right — that is, we should not hesitate to do so when the question of its invalidity should be presented by some one entitled to complain, to wit, one of the proscribed and oppressed classes; nor shall we hesitate to do so in behalf of appellant in this case, if, upon examination, we find him to belong to one of such classes. However, it was not charged against him, or claimed by him, that he belonged in any such category. It was neither charged nor claimed that his confederacy with the other, persons named in the information was for purposes of a business partnership, or . that he was one of two shippers of produce seeking to lighten freight charges by joining with the other, or that he was a farmer agreeing with his neighbors to hold his grain for an advance in the market;. nor was it charged or claimed that the' acts .performed by him were, as to the examples enumerated, of a like limited scope and a like presumptively harmless and reasonable nature. It was charged and proved against him that he was a buyer of grain on the general open market; that he was an intermediary between the public who produced and sold and the public who bought and consumed, and as such that he conspired with others of like business to prevent competition among themselves, and to pool and fix the price of grain' bought and sold on such market.
Now, whether this fact takes him out of the list of those innocent instances cited in the cases we are dis cussing we will presently inquire. Suffice it to say for the moment that unless he does belong in such list he cannot be heard to complain. He, cannot be heard to object to the statute merely because it operates oppressively upon others. The hurt must be to himself. The case, under appellant’s contention as to this point, is not a case of favoritism in the law. It is not a case of exclusion of classes who ought to have been included, the leaving out of which constitutes' a denial of the equal protection of the law, but it is the opposite of that. It is a case of the inclusion of those who ought to have been excluded. Hence, unless appellant can show that he himself has been wrongly included in the terms of the law, he can have no just ground of complaint. This is fundamental and decisively settled. (City of Kansas City v. Railway Co., 59 Kan. 427, 53 Pac. 468, 52 L. R. A. 321, affirmed under the title Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392; Supervisors v. Stanley, 105 U. S. 305, 311, 26 L. Ed. 1044; Pittsburg &c. R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 71 Am. St. Rep. 302, 311.)
In immediate connection with the subject just discussed, the question arises whether, assuming the general phraseology of the statute to be comprehensive of classes of persons who cannot be rightfully included-therein, the whole enactment becomes nullified thereby. The general doctrine is that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that if the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot 'be separated without violence to the evident intent of the legislature, the whole must fall. These rules are of every-day enforcement in the courts. The latest case in which they were adverted to by us is Hardy v. Kingman County, ante, p. 111, 68 Pac. 1078. The instances in which the application of the rule first mentioned most usually occurs are those where separable words, clauses, sentences or sections of the statute are stricken out, as it were, because constitutionally objectionable. However, the rule is not limited to such instances. It applies as well to exclude from the operation of the statute subjects and classes of things lying without the legislative intent, although comprehended within the general terms of the act, as it does to exclude parts of the verbal phraseology.
Two cases strikingly illustrative of this rule are Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1044, and Commonwealth v. Gagne, 153 Mass. 205, 26 N. E. 449, 10 L. R. A. 442. See, also, to the same effect McKee v. United States, 164 U. S. 287, 293, 17 Sup. Ct. 92, 41 L. Ed. 437; Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377. In the first-mentioned case it was held that a state taxing statute, general in its terms, applying alike to all taxpayers, which did not recognize a certain exception allowed by act of congress in favor of stockholders in national banks, was not for that reason void as a whole, but, limited by the controlling federal law, was valid as to all the persons embraced within the general language employed. In the other case it was held that a state prohibitory liquor law which'did not except from its operation liquors in original packages, but by the generality of its terms included them, which under the commerce clause of the federal constitution, as construed in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed., 128, could not be done, was not for that reason void as to liquors in broken packages, but as to Uf>m was valid and enforceable. This ruling, in nec essary effect, was approved by tbe supreme court of the United States in the case of In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. In that case Rahrer contended that after the decision of Leisy v. Hardin, supra, there was no law in Kansas prohibiting the sale of .liquor in original packages ; that the effect of the subsequent act of congress, popularly called the “Wilson bill,” being an act to subject interstate importations of liquor in original packages to the operation of the local law, could not have the effect to'give vitality to that which as a statute had existence in form only, and not in fact, but that a new state enactment was required. The soundness of this contention was denied, and in denying it the court, after restating the ground of the decision in Leisy v. Hardin, said :
“This was far from holding that the statutes in question were absolutely void, in whole or in part, as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the state.”
When the court did that, it,only did what courts are in the daily habit of doing — limited the language of the statute to the subjects in respect of which it was competent and proper for the legislature to dispense. Throughout the entire history of English and American law the courts have been ruling that the general words of statutes were to be restrained in import and application whenever the taking of them in literal sense would lead to absurd or hurtful consequences, and the same is true under the American system of written constitutions, whenever the taking of general words in their full signification would expose them to conflict with the organic law. It is but an affectation of sensitiveness of regard for the constitution -which often leads courts to beat down the whole of a legislative enactment because of its opposition to the fundamental ordinance in some minor particular, instead of adjusting it to harmonize with the controlling provision. It is not a matter of concern to us that the general language of the statute under consideration may apply to classes of persons who should not have been comprehended therein, and who may have a standing in court to claim exception therefrom. Their cases can be attended to when presented in due form. It is not they but the appellant who is before us. Does he state a case entitling him to exemption from the operative scope of the statute ? One of the oases most strikingly illustrative of the rule of interpretation in question is In re Opinion of the Justices, 41 N. H. 553. It was claimed that certain sections of the statutes of New Hampshire were so broad and general as to be in opposition to what w.as called the “fugitive-slave law” of congress, and the constitutional provision in pursuance of which it was enacted. Replying to this claim, the justices said:
“But if these sections could not be applied in the cases supposed, they are not, therefore, necessarily void. If the intention of any part of the act, determined upon settled principles of legal interpretation, were to obstruct or impede the exercise or enjoyment of any right secured by the constitution of the United States, or by any constitutional law of the United States, that part would be unconstitutional. But if the intention thus determined were merely to establish, regulate, or guarantee rights or privileges consistent with the constitution and laws of the United States, in a mode not in conflict with either, and if the act would constitutionally apply to a large class of cases that do and will exist, it would not be rendered unconstitutional by the fact that, literally construed, its language might be broad enough to extend to a few exceptional cases where it .could not constitutionally apply; since, upon settled principles of construction, the latter are as fully and effectually excepted by necessary implication, as if the statute had contained an express proviso that it should not extend or apply to such cases. The rule of construction universally adopted is, that when a statute may constitutionally operate upon.certain persons, or in certain cases, and was not evidently intended to conflict with the constitution, it is not to be held unconstitutional merely because there may be persons to whom or cases in which it cannot constitutionally apply ; but it is to be deemed constitutional, and to be construed not to apply to the latter persons or cases, on the ground that courts are bound to presume that the legislature did not intend to violate the constitution.”
There are some decisions of the supreme court of the United,States said to be-in opposition to the above-stated theory of construction of statutes. In óur judgment they are not, although the language of some of the opinions confuses' the subject. They were cases in which the court, while admitting the existence of the rule, held it inapplicable to the particular statutes under consideration. The principal ones are : United States v. Reese et al., 92 U. S. 214, 23 L. Ed. 563 ; Trade-mark Cases, 100 id. 82, 25 L. Ed. 550 ; United States v. Harris, 106 id. 629, 1 Sup. Ct. 601, 27 L. Ed. 290 ; and Baldwin v. Franks, 120 id. 678, 7 Sup. Ct. 656. All of these cases raised questions as to the validity of legislation enacted under the special and limited powers of congress. The one first cited involved certain of the provisions of what is known as the “enforcement act” of May 31, 1870, which act sought to give effect to the fifteenth amendment of the constitution, prohibiting discriminations in the matter of suffrage between citizens on account of race, color, etc. The act, however, was directed in general terms against discriminations for any and all reasons, not for the particular reason of race or color.
Inasmuch as the sole power conferred on congress by the fifteenth amendment was one to effectuate by appropriate legislation the prohibition against discriminations between citizens on account of the specific characteristics named, it was held that an act which undertook to prohibit discriminations generally could not be narrowed by construction into a prohibition of discriminations practiced because of race or color. In the Trade-mark Cases the statute under consideration was one which made punishable those who sold or had in their possession counterfeits or colorable imitations of the trade-marks of other persons. Inasmuch as trade-marks are not the subjects of congressional legislation, except as they may be used on articles of interstate commerce, or commerce with foreign nations and the Indian tribes, it was decided that a statute relating, to their use on articles of commerce generally could not be upheld as applicable to the one specific subject in respect to which congress might legislate, there being no hint or intimation in the act of a purpose to have it so confined. The cases of United States v. Harris and Baldwin v. Franks involved the question of the validity of section 5519, Revised Statutes of the United States. That section in general terms sought to make punishable those who conspired to deprive other persons of the equal protection of the laws, or of' equal privileges and immunities under the laws. Inasmuch as congress can interfere to secure equality of legal protection and equality of privileges and immunities only as specifically authorized, as, for instance, under the fifteenth amendment, to prevent discriminations in suffrage on account of race, color, etc., or in execution of the treaty power to prevent the deprivation of treaty rights accorded to citizens or subjects of foreign nations, it was held that the section of the statute cited was too general in its terms to be narrowed by construction into one in execution of any of the specific powers.
The decisions we have thus distinguished from the one we make are philosophic and reasonable. They are bottomed upon the fact of the special and limited powers of congress, and this fact, though not commented on at length as the basis of the judgments rendered, is nevertheless adverted to in all of them, and obviously constitutes the ratio decidendi of the cases. It was plainly expressed by Mr. Justice Woods in United States v. Harris, who said in one part of the opinion: “It must, nevertheless, be stated that the government of the United States is one of delegated, limited and enumerated powers,” and who then in another part tersely remarked : ‘ Those provisions of the law, which are broader than is warranted by the article of the constitution by which they are supposed to be authorized, cannot be sustained.” If we might be allowed to undertake the statement of a rule of interpretation applicable to the class of federal statutes considered in the above-cited cases, it would be that a power which is specifically limited cannot be allowed to express itself in general terms, and a limitation of the general language to the specific power will not be implied. On the other hand, however, a power which is unlimited, except as specifically prohibited, may express itself in general terms, and the specific instances of limitation will be implied as provisos. This furnishes a rational basis of discrimination between rules of interpretation applicable in the respect under con sideration to federal and state legislation. Congress cannot legislate on all subjects, as can a state legislature. Therefore its enactments must show on their face their application to that to which as matter of constitutional limitation they should be confined. For example, a state legislature is empowered to legislate generally in respect to all trusts and conspiracies in restraint of trade, except as limited by the commerce clause of the federal constitution; but, on ■the other hand, congress is not empowered to legislate generally with respect to trusts and trade conspiracies. It can legislate against, them only under the commerce clause of the constitution. Therefore, & state enactment, though broad enough in terms to apply to trusts engaged in interstate commerce, or conspiracies in restraint of interstate trade, will be limited by construction to that to which it can alone legally apply; but a congressional act, being of necessity limited to the one particular class of trusts or trade conspiracies, viz., those engaged in interstate or international trade, must express that limitation on its face. Nevertheless, we do not doubt that if a congressional enactment, general in terms, could be given specific application to subjects lying within its rightful sphere, without the aid of other and qualifying or explanatory words, but which general terms were also inclusive, of subjects lying without such sphere, it would be restrained by construction to those matters in respect of which congress is qualified to dispense, and not be nullified as a whole.
In considering the possible view of the supreme court of the United States of the rule of interpretation of the general language of statutes, it is important to observe that that court does not apply the rule of the Trade-mark and other like cases to state legis lation supposed to be in conflict with the federal constitution or laws, but, on the contrary, applies the one we invoke in this case. It did so in Supervisors v. Stanley, supra, Packet Co. v. Keokuk, supra, and In re Rahrer, supra; and lately did so in Waters-Pierce Oil Company v. Texas, 177 U. S. 28, 42, 20 Sup. Ct. 518, 44 L. Ed. 657. In that case the contention was made that a statute'of Texas was so broad in its terms as to prohibit foreign corporations from engaging in interstate, as well as domestic, commerce, and hence was unconstitutional. This claim and the ■ disposition made of it were stated as follows :
“The claim is, if we understand it, that the statute prohibits all business of foreign corporations, and hence is unconstitutional, as including interstate business, and cannot be limited by judicial construction to local business, and the unconstitutional taint thereby removed. To sustain the contention, United, States v. Reese, 92 U. S. 214, 221, 23 L. Ed. 563 ; Trade-mark Cases, 100 U. S. 82, 25 L. Ed. 550 ; United States v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290 ; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763, 32 L. Ed. 766, and some other cases are cited. They do not sustain the contention. The interpretation of certain statutes of the United States was involved, and the court, finding the meaning of the statutes plain, decided that it could not be changed by construction, even to save the statutes from unconstitutionality . ’ ’
It may be said that the judgment from which the above quotation is made, so far as concerned the point noticed, was rested upon the rule that the federal courts will adopt the. construction which the state tribunals place on their own statutes. Be it so, if that is a sufficient reason. We construe the general words of our statute to be comprehensive only of those cases which are the rightful subjects of legislation of the kind in question. However, we disavow doing so merely in order to shelter the statute under the rule mentioned, but because the ancient, established and wise canon of interpretation requires it to be done. Sporadic and anomalous cases indicating to the contrary may be found, as they may be found to the contrary of every settled, accepted doctrine of the law, but the rule that the general words of statutes will be restricted in application to cases presumptively within the legislative intent has been so long accepted as a cardinal principle that its occasional denial, even by the most learned of courts, fails utterly of adverse impression.
“It happens in two sorts of cases, that it is necessary to interpret the laws. One is when we find in a law some obscurity, ambiguity, or other defect of expression ; for in this case it is necessary to interpret the law in order to discover its true meaning. And this kind of interpretation is limited to the expression, that it may be known what the law says. The other is, when it happens that the sense of a law, however clear it may appear in the words, would lead us to false consequences, and to decisions that would be unjust if the laws were indifferently applied to everything that is contained within the expression. For in this case the palpable injustice that would follow from this apparent sense, obliges us to discover by some kind of interpretation, not what the law says, but what it means; and to judge by its meaning, how far it ought to be extended, and what are the bounds that ought to be set to its sense." (Dwarris, Stat. 138. [Domat’s Rules.] )
It must not be understood from anything we have said that we assume that any of the cases instanced by the judges in In re Grice and Niagara Fire Ins. Co. v. Cornell, supra, were really within the legislative thought when our statute of 1897 was enacted, and therefore that the general words of the act must be restrained to less than the intent they outwardly manifest. Such legislation must be viewed in the light of the fact that the industrial and commercial classes of the country are menaced, or are supposed to be menaced, as never before, by gigantic combinations of capitalistic interests, having for their object the suppression of competition, the control of prices and the monopolization of markets; that this fact more than any other topic constitutes the theme of public discussion and the occasion of public alarm ; that legislators in both state and national assemblies are earnestly besought by their constituents to devise measures to avert what, either rightly or unduly, is conjectured to portend a direful subversion of our entire economic system, and that the enactments of the kind in question are the responses of the lawmaking bodies to the demands of the immediate time. These are the facts of the current period, known and read of all men, and discovering to the courts as well as to everybody else the intent of the legislature. How vain, then, to affect to find the small personal affairs of obscure and irresponsible individuals, totally lackingall the elements of public concern, embraced within the legislative cognizance and made the subjects of hostile legislative fiat.
From very early times it was the policy of the common law to encourage competitive trade, and to discourage contract restraints upon it. The courts refused to enforce stipulations between parties looking to the imposition of such restraints. That rule of policy remains to this day, and to this day the courts continue their refusal to countenance contracts of the character mentioned. To this there has beén and is but one exception or class of exceptions, and it is more seeming than real. It is the case of the sale of a merchandise, mechanical or other like business, or the sale of property for a specific use, or the contract of an apprentice, agent, clerk, or servant. In these and kindred cases it'has been held lawful to insert a stipulation that the seller shall not engage in competitive business with the buyer of his property; or that the apprentice, agent, clerk, or servant, after learning the master’s or employer’s business, shall not set up in opposition to him. The reason for these exceptions is that in such cases the buyer bargains for more than physical property. He bargains for the good-will of his vendor’s business, or otherlike valuable advantage, and the master or employer parts with something more than the wages he pays. He parts with instruction in the business learned — parts not only with the secrets of the general trade or calling, but with the secrets of his own particular business, and parts with the favorable acquaintance of • his own customers or clients. The fact that these and the like constitute the only exceptions to the general rule, and the grounds upon which the exceptions rest, are elaborately set forth in the opinion of Judge Taft in the case of United States v. Addyston Pipe & Steel Co. 54 U. S. App. 705, 29 C. C. A. 141, 85 Fed. 271. In that case the validity of legislation of the character now in question was upheld in an opinion of great strength and cogency, and with citations to a great list of supporting authorities. The case was appealed to the supreme court, which affirmed the decree rendered so far as it sought to enforce the provisions of the act of congress of’ July 2, 1890, known as the “ Sherman anti-trust act,” modifying it only to the extent of excluding from its terms the operations of the appellant company in matters of domestic commerce over which the federal law could not be extended. (Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 248, 20 Sup. Ct. 96, 44 L. Ed. 136.)
A great array of decisions, English and American, will be found cited in the first-mentioned case, all tending to the establishment of the proposition that combinations having for their object the restraint of trade by the prevention of competition are inimical to public policy, their contracts in furtherance of their object non-enforceable, and their agreements of confederacy, followed by acts in prosecution of their purpose, rightful subjects of restrictive and penal legislation. Two of these decisions were made in United States v. Freight Association, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007, and United States v. Joint, Traffic Association, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259. In those cases it was held that agreements between competing railroad companies to fix and maintain non-competitive traffic rates were in violation of the “anti-trust act” of congress, and were subject to be annulled, and the associations formed thereby dissolved at the suit of the government. Counsel for appellant denies the applicability of these cases and that'of the Addyston Pipe & Steel Company, supra, on the grounds : First, that the statute which the decisions enforced was enacted under the authority of congress to regulate commerce between the states; second, that such statute is not directed against agreements or combinations restrictive of competitive trade, but has for its object the suppression of monopolies. The first of these distinctions is founded on
the dictum of the judge in Niagara Fire Ins. Co. v. Cornell, supra. He said :
“The Railroad Traffic Association Case, 166 U. S. 290, 17 Supt. Ct. 540, 41 L. Ed. 1007, has been strongly urged by the attorney-general as upholding the doctrine of this statute. But it does-not, for the reason that the statute under consideration in that case was upheld by reason of the commerce clause of the constitution ; and to that extent the commerce clause controlled the other clauses of the constitution ; and I repeat, that the statute with which I am dealing is a state statute.” \
There is one plainly expressed and one possible thought in this excerpt; First (the possible one), the authority can be exercised in pursuance only of express constitutional grant. That is not true of a state enactment, because the legislature of a state possesses all power not expressly withheld. It is true of a congressional enactment, because congress possesses only such power as is expressly conferred. The express grant of power to congress conferred by the commerce clause of the constitution only put that body on thej' footing as to interstate commerce that the local legis-| lature has as to domestic commerce without an express;' grant and in virtue of its general authority. Thel grant to congress was' not of anything different in na-jj ture from what the states possessed. It was a- grant of the same thing — no more, only to be exercised in a different sphere. As to the other thought — the one plainly expressed by the judge in the above quotation, to wit, that the commerce clause of the constitution controlled, the other clauses of that instrument — we trust we will not be taken to mean disrespect or to impugn motives when we say it is a thought which can' be entertained only by one fatally bent on finding pre-! texts to justify his own mischievous rulings. The' plain import of the language used is that the com-' merce clause is stronger than the other clauses — 'j stronger than the guaranties, of liberty, property, and process of law, contained in the fourteenth amend ment. In other words, the claim is that the commerce clause gives congress the authority to override and set at naught the guaranties of popular right contained in the constitution whenever and wherever necessary to effectuate the power to regulate interstate and international trade. This is the very madness of unreason. The proposition needs but to be stated in the ■ultimate terms to which we have reduced it, and they are the terms to which of necessity it must be finally’ reduced, to show its utter unsoundness.
The second distinction which counsel for appellant seek to draw between the federal cases cited and this case, to wit, the difference between legislation restrictive of non-competitive agreements and restrictive of monopolies, has no more basis upon which to rest than has the first one. The power to regulate is the same in both cases and may be exercised to the same extent. However, the. statute enforced in the Freight Association Cases and the Addyston Pipe & Steel Company case was a statute in prohibition of contracts restrictive of competitive trade as well as in prohibition of monopolies. That statute differs in verbal phraseology, but not in essential particular or effect from ours. It reads :
“Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal,” etc.
“Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several states or with foreign nations, shall be deemed guilty of a misdemeanor,” etc.
The federal court decisions cited were more particularly in assertion of the authority of congress to enact measures in suppression of anti-competitive trade combinations than they were in assertion of its right to prohibit trade monopolies. In the case of United States v. Joint Traffic Association, one of the head-notes reads:
“Congress, with regard to interstate commerce, and in the course of regulating it, in the case of railroad corporations, has the power to say that no contract or combination shall be legal which shall restrain trade and commerce by shutting out the operation of the general law of competition.”
If counsel mean to say that agreements restrictive of trade competition may not be prohibited until they eventuate in monopolies, we reply, without pausing to reason the contrary of the proposition, that the rationale of all the cases, and particularly those of the federal courts commented on above, is opposed to the claim, and in United States v. Addyston Pipe & Steel Co., supra, it was expressly ruled that, “in order to vitiate a contract or combination, it is not essential that its result should be a complete.monopoly; it is sufficient if it really tends to that end and to deprive the public of the advantages which flow from free competition.” That ruling was on a substantiative issue involved in the case, and as made is a quotation from the opinion arguendo of Chief Justice Fuller in United States v. E. C. Knight Company, 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325. If counsel mean to say that acts prohibitive of anti-competitive combinations must express on their face a limitation to combinations constituting or tending to monopoly, a sufficient reply is that .the anti-trust act of congress, above partially quoted, and which has been repeatedly upheld as a valid exercise of legislative authority, does not express any such limitation. Whether an agreement restrictive of trade combinations tends to monopoly is probably a question determinable by the courts as well as by the legislature, but, primarily at least, it is a question in' economic science addressed to ‘the business judgment and experience of the members of the lawmaking body. However, if the legislature should condemn a particular engagement between men on the .score of its tendency to monopoly which the general sense of mankind perceived could not have that •effect, we doubt not-the courts would be competent so to declare, and, so declaring, disapprove the act on the constitutional ground of its interference with the freedom of the citizen ; but beyond such instances we apprehend the judicial tribunals are not authorized to go. The courts may determine without previous legislative declaration that a particular agreement is contrary to public policy, and therefore non-enforceable ; but they cannot adjudge, in opposition to a legislative declaration that a general class of agreements is opposed to the rules of public policy, that such is not the case.
One other topic included in the general subject remains to be discussed. It will be done briefly. It will be observed by an examination of the cases, both those on the subject of anti-competitive trade agreements, and those on the subject of monopolies, that most of them relate to the acts or agreements of vendors — sellers bn the market — and not to. the ac-ts or agreements of vendees — buyers on the market. This has not been because different principles of law apply to the two classes of persons in their trade relations and dealings, but because the oldest and favorite form of forestalling 'and engrossing markets has been to monopolize the supply of trade products and hold them for extortionate prices. The rules of nub- lie policy forbid the making of agreements not to buy on the market as well as agreements not to sell. This is well illustrated by two cases. In Craft v. McConoughy, 79 Ill. 846, 22 Am. Rep. 171, it appeared that the grain dealers of a town had made a compact not to compete with one another in the purchase of grain, but collectively to control the market at fixed prices. One of them sued in execution of the agreement, but the. court denied relief, on the ground that it was a contract in restraint of trade and contrary to public policy. In Chapin v. Brown, 83 Iowa, 156, 48 N. W. 1074, it appeared that the grocerymen of a town, in order to throw the trade in butter entirely into the hands of one of their number., entered into an agreement with one another not to buy butter or take it in exchange for other goods. Suit was brought on the agreement against one of the grocerymen to enjoin him from dealing in butter. The court refused the injunction, because the contract entered into was restrictive of trade competition and tended to monopoly, and was therefore opposed to public policy. See, also, Hilton v. Eckersley, 6 Ell. & Bl. 47.
Now, the agreement entered into by appellant and others named in the information in this case did not differ in any essential particular from the agreements condemned in the cases above cited. In this case it was shown that the parties named embraced all of the grain buyers at the town of Bison ; that they agreed among themselves to divide the grain trade at that place ; that, although the agreement was that any one was at liberty to buy as much grain as he chose and to pay for it such price as he chose, nevertheless, if he purchased more than his allotted share he should pay to the others three cents per bushel for the excess bought; that this agreement was entered into for the express purpose of preventing competition among the buyers, and that it had that effect; that it was entered into for the purpose of pooling the profits of the grain trade and the formation of a grain trust among the buyers, and that it had those effects. Such an agreement would have been void and non-enforceable at common law. It would have been void and nonenforceable because restrictive of trade competition and because of its tendency to monopoly, and for these reasons it would have been declared opposed to the rules of public policy. It is certainly competent for the legislature to make penal the doing of that which the courts themselves recognize as hurtful to the body politic and for that reason refuse to countenance. The legislature of 1897 did that; nor did it do anything more. It is no argument to launch the platitudes of personal liberty and freedom of contract and due process of law, etc., against this statute. What specific prohibition does it contain that the common law has not contained for ages past? Absolutely none.
We-come now to a final question. The first statute for the suppression of unlawful trade combinations enacted in this state was chapter 175 of the Laws of 1887 (Gen. Stat. 1901, §§ 2427-2429). That statute was directed against grain dealers alone. Section 1 reads as follows :
“That it shall be unlawful for any grain dealer or grain dealers, partnership, company, corporation, or association of grain dealers, or any other person or persons, partnership, company, corporation, or association, to enter into any agreement, contract or combination with any other grain dealer or grain dealers, partnership, company, corporation, or association of grain dealers, or any other person or persons, partnership, company, corporation, or association, for the pooling of prices of different and competing dealers and buyers, or to divide between them the aggregate or net proceeds of the earnings of such dealers and buyers, or any portion thereof, or for fixing the price which any grain dealer or grain dealers, partnerships, company, corporation, or association of grain dealers, or any other person or persons, partnership, company, corporation, or association, shall pay for grain, hogs, cattle, or stock of any kind or nature whatever; and in case of any agreement, contract or combination for such pooling of prices of different and competing dealers and buyers, or to divide between them the aggregate or net proceeds of the earnings of such dealers and buyers, or any portion thereof, or for fixing the price which any grain dealer or grain dealers, partnership, company, corporation, or association of grain dealers, or any other person or persons, partnership, company, corporation, or association, shall pay for grain, hogs, cattle, or stock of any kind or nature whatever, each day of its continuance shall be deemed a separate offense.”
The above-quoted section was followed by another, prescribing a penalty. The court, in the instructions to the jury in this case, quoted the act of 1887, and likewise quoted the one of 1897, above discussed. The jury were not told which of the acts was applicable to defendant’s case. The claim is made that the act of 1887 was repealed by the later one, and hence that the defendant may have been convicted under a statT ute which had ceased of existence. It will be observed, that the act of 1897 covers an entire field of which the one of 1887 covered only a part; but the one of 1897 covers, though in general terms, the specific matter embraced in the earlier act. The character of punishment and maximum penalty are the same in the case of both acts, and the appellant’s sentence of conviction was within the terms of either one. Assuming that the act of 1887 was repealed by implication-by that of 1897, what, if any, effect to produce the appellant’s conviction is to be attributed to the court’s reference to the earlier enactment? We think none whatever. The statute of 1887 did not define the offense charged in any other terms than does the later act, nor did it define it in any other terms than the court was required to define it and did define it in the charge to the jury. The facts to be proved under the statute of 1887 were no different from the facts, which, by the act of 1897, were required to be proved against the defendant, and it is impossible to see in what way he could have been prejudiced by the mistake of the court, if mistake it was.
However, it is said that if the statute of 1887 was not repealed by that of 1897, but is still to be classed among the existing enactments, it is unconstitutional, because it is class legislation. It is said that it singles out grain dealers from among all the different classes of persons engaged in domestic commerce and subjects them to penalties for doing that which the other classes are allowed to do without let or hindrance. Grant it (which, however, we do not, except hypothetically and for reply to the proposition ), an unconstitutional statute is no different from a repealed statute. Like a statute repealed, it is no statute at all. Hence, if the appellant could not be harmed by the court’s quotation of a repealed statute, he could not be harmed by the- quotation of an unconstitutional statute. The general rule in criminal as in civil cases is that errors harmless in their nature— nominal errors, but not errors in fact — shall not be ground of reversal. It is expressed in the criminal code, section 298 (Gen. Stat. 1901, §5731): “On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” The above provision of the code has been often interposed against technical and unsubstantial claims of error in criminal cases, and especially in cases where immaterial, but unprejudicial, evidence has been admitted and mistaken, but harmless, instructions have been given.. ( The State v. Hilton, 35 Kan. 338, 349, 11 Pac. 164; The State v. Baldwin, 36 id. 1, 14, 12 Pac. 318.)
Some minor claims of error are made. They do not involve anything fundamental, but relate to unimportant matters of practice. However, we have examined them, and perceive that none of them is well founded. The judgment of the court below is affirmed.
-Johnston, Smith, Cunningham, Gbeene, Ellis, JJ., concurring. | [
-16,
106,
-7,
-115,
10,
-32,
50,
-102,
82,
-95,
39,
83,
-23,
-36,
21,
125,
-25,
77,
-47,
104,
-10,
-78,
19,
-29,
-42,
-13,
-45,
-59,
-79,
77,
-10,
-41,
72,
48,
2,
21,
-26,
-62,
65,
-100,
-114,
0,
41,
-24,
-36,
64,
60,
43,
118,
74,
49,
46,
-13,
46,
29,
-61,
41,
44,
-19,
41,
-31,
-15,
-94,
-51,
125,
22,
16,
66,
-112,
5,
72,
46,
-104,
57,
1,
-24,
123,
-74,
-122,
-12,
73,
25,
13,
42,
99,
3,
21,
-17,
-116,
-100,
46,
-33,
-115,
-121,
-112,
88,
34,
8,
-65,
28,
118,
22,
-125,
-2,
-4,
21,
19,
125,
0,
-114,
-76,
-109,
-97,
118,
-100,
87,
-5,
-89,
51,
113,
-53,
-10,
93,
-57,
122,
19,
-114,
-76
]
|
The opinion of the court was delivered by
Greene, J. :
McManus was informed against for selling intoxicating liquors and for keeping a place where such liquors were kept for sale and sold, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage. A warrant was issued for his arrest, which authorized the officer to whom it was directed and delivered to seize and take into his possession “all intoxicating liquors, glasses, bottles, kegs, pumps, bars and other property used and kept in maintaining said place.” Notice was issued by the clerk of the district court, directed to the sheriff of Kingman county, commanding him to notify the defendants, and all persons, claiming an interest in the intoxicating liquors and other property seized, of the proceedings against it, and that such persons appear, on or before the 10th day of July, 1901, in the district court-room of said county, to show cause wyhy the property so seized should not be publicly destroyed. This notice was served by the sheriff on O. McManus and A. I. Grimes, by delivering to each a copy, and also by posting a copy in the building described in the information.
On the 12th day of July, McManus, W. W. Robbins and Henry Schnitzler jointly and specially appeared in the cause and filed their motion to quash and set aside the pretended notice. This motiop was overruled by the court, to which the defendant and interpleaders excepted. On the same day the defendant, McManus, filed a disclaimer, and Robbins and Schnitzler interpleaded, alleging: (1) A general denial (2) that the information and notice did not state facts sufficient to constitute a cause of action or a public offense ; (3) a denial that the property so seized was used in violation of law, and alleging that they were the owners thereof. Upon the issues thus joined a trial was had. The defendants demurred to the evidence of the state, which was overruled, and defendants not offering any evidence, the court found that the property seized was, at the time of its seizui’e, being used in maintaining a common nuisance upon the premises described in the information ;, that the place where the intoxicating liquors were being sold was kept and maintained by C. McManus, and that such property should be forfeited and publicly destroyed, and rendered judgment accordingly. To this judgment each of the defendants excepted.
The first objection urged by plaintiff in error is that the court erred in not quashing the information and notice. No defects are pointed out in the information, and we think it sufficient. The notice served on McManus was just such notice as is required by section 2495, General Statutes of 1901, and Complied in all other respect with its provisions. This was sufficient. (State v. Barrels of Liquors, 47 N. H. 369; The State v. Brennan’s Liquors, 25 Conn. 278 ; Hine v. Belden, 27 Conn. 384; Johnson v. Williams, 48 Vt. 565.)
Schnitzler and Robbins voluntarily appeared and claimed the property. No complaint can be made by them of want of notice on McManus or themselves. One who appears as a claimant of liquors cannot object that no notice has been given to others. (Commonwealth v. Certain Intoxicating Liquors, 6 Allen [Mass.], 596) Nor can one who has appeared and been admitted to prosecute his claim object, after judgment and forfeiture, to defects in the service of notice on him. ( Commonwealth v. Certain Intoxicating Liquors, 13 Allen [Mass.], 561; The State v. Brennan’s Liquors, 25 Conn. 278 ; The State v. Miller, 48 Me. 576.)
It is contended by plaintiff in error that the law authorizing the condemnatory proceedings is unconstitutional and violative of section' 1 of article 4 and article 14 of the constitution of the United States, as well as sections 1, 5, 10, 18 and 20 of the bill of rights of the state of Kansas. In just what way this statute is in violation of such provisions, or of any one of them, is not observable, and plaintiff in error has not pointed the way to his conclusion.
It is also argued that before this property can be seized, tried, condemned, and destroyed, there must be a conviction of the person who unlawfully used such property. We do not agree with this contention. Section 2493, General Statutes of 1901, reads:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort, for the purpose of drinking’intoxicating liquors as a beverage, or whete intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances and every person who maintains or -assists in maintaining such common nuisance shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, .and by imprisonment in the county jail not less than than thirty days nor more than six months, for each offense.”
It will be observed that not only the place in which such illegal business is carried on, but also all the intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept and used in maintaining such a place, are declared common nuisances.
Section 2494, General Statutes of, 1901, provides for filing a complaint or information charging that the place is kept or maintained as a common nuisance, and for the issuance of the warrant for the arrest of the keeper, and commanding the officer to whom it is directed to search the place described in such complaint or information, and seize and take into his cus tody all intoxicating'liquors, etc., described in the information or complaint which he may find at such place, and safely keep the same, subject to the order of the court. Section 2495, General Statutes of 1901, reads:
“Whenever any intoxicating liquor or other property' shall be seized under such a warrant, whether an arrest, has been made or not, a notice shall issue within forty-eight hours after the return of the warrant, in the same manner as a summons, directed to the defendant or defendants in such action and to all persons claiming any interest in the intoxicating liquors or other property, and fixing a time and place at which all persons claiming any interest therein may appear and answer the complaint made against such intoxicating liquors or other property, and show cause, if any they have, why the same should not be adjudged forfeited and ordered destroyed. . . . At or before the time fixed by notice, any person claiming an interest in the intoxicating liquors or other property seized may file his answer in writing setting up his claim thereto, and shall thereupon be admitted'as a party defendant to the proceedings against such liquor or other property. ... A trial shall be had in a summary manner before the court of the allegations of the complaint or information against the liquors or other property seized ; and whether any answer shall be filed or not, it shall be the duty of the county attorney to appear and adduce evidence in support of such allegations.”
Section 2496, General Statutes of 1901, reads:
‘ ‘ If the court shall find that said intoxicating liquors or other property, or any part thereof, were at the time the complaint or information was filed being used in maintaining a common nuisance, he shall adjudge forfeited so much thereof as he shall find was being so used, and shall order the officer in whose custody it is to publicly destroy the same.”
By the plain and unmistakable provisions of these sections, the property so kept and used is tried in a proceeding in rem, regardless of whether there has been an arrest or conviction of the person charged with maintaining such place. This is the practice in the courts of the United States, where goods have been forfeited for the non-payment of custom revenues. (Origet v. United States, 125 U. S. 240, 8 Sup. Ct. 846, 31 L. Ed. 743.)
It is claimed that, inasmuch as the language of the’ constitutional amendment only prohibits the manufacure and sale of intoxicating liquors, it is not within the power of the legislature, in an effort to enforce and make effective such amendment, to declare a place where intoxicating liquors are sold and kept for sale in violation of law, together with the property kept and used in maintaining such place, common nuisances. The purpose of the amendment was to enable the state, if it so desired, to pass such necessary and reasonable regulation as it might think proper to prohibit the use of intoxicating liquors as a beverage. The regulation of the sale and places where intoxicating liquors are sold has always been a subject of legislative p/nd police control. Many states of the union have had such laws as the one in question in their statutes and have enforced them for the last half-century. Such provisions have always been upheld where they have observed the guaranteed rights of persons and property in providing notice of the seizure of the property, the means by which the owner is to be informed, when and where and before whom the warrant is to be re- • turned, and afforded him an opportunity to defend his property. This statute observes these rights and has made sufficiently ample provisions for the protection of property, (Hibbard v. The People, 4 Mich. 125 ; Fisher v. McGirr and others, 1 Gray [Mass.] , 1, 61 Am. Dec. 881; Sullivan v. City of Oneida, 61 Ill. 242 ; Jones v. Root, 6 Gray [Mass.], 435.)
There are some other alleged errors, but they are not material. The provisions of the statute are ample to protect the owner of property in his rights, and were fully complied with in this proceeding.
The judgment of the court below is affirmed.
All the Justices concurring. | [
-15,
-18,
-84,
-99,
58,
96,
42,
-70,
66,
-121,
-12,
115,
-23,
82,
5,
123,
-93,
111,
85,
120,
-30,
-74,
6,
66,
-62,
-13,
-45,
-43,
-75,
77,
-20,
-47,
76,
52,
-117,
85,
-58,
-30,
-61,
86,
-114,
1,
57,
-55,
81,
24,
48,
123,
64,
74,
97,
79,
-25,
44,
89,
-53,
105,
44,
-55,
29,
112,
-15,
-103,
-99,
111,
6,
1,
34,
-100,
-123,
72,
56,
-104,
49,
81,
-24,
115,
-110,
-124,
52,
31,
-103,
-116,
50,
98,
1,
-35,
-17,
-24,
-116,
47,
31,
-99,
-90,
-70,
65,
75,
64,
-74,
-103,
61,
28,
-125,
118,
-30,
21,
92,
108,
3,
-118,
-78,
-75,
-117,
56,
-126,
23,
-53,
35,
52,
113,
-51,
-2,
124,
100,
113,
27,
-114,
85
]
|
The opinion of the court was delivered by
Smith, J.:
This was a suit in foreclosure. E. E. Parker, plaintiff below, filed his petition against William Cook, Sarah J. Cook, and the Lincoln Mortgage and Trust Company, alleging that the individual parties named above executed and delivered to the Lincoln Mortgage and Trust Company their note in the sum of $900, together with a mortgage on certain of their real estate, to secure payment of the same ;• that the trust company assigned the note and mortgage to one Roberts, who was the plaintiff’s assignor. Against the trust company the following allegation was made in the petition :
“The plaintiff further alleges that the defendant the Lincoln Mortgage and Trust Company is a corporation duly organized, existing and doing business under the laws of the state of Kansas, and that said the Lincoln Mortgage and Trust Company is or claims to be the owner of the fee-simple title to real estate herein described, or has or claims to have an interest in or lien upon said mortgaged premises, the exact nature of which is to this plaintiff unknown, but plaintiff alleges that the said title, estate, lien or interest of the defendant the Lincoln Mortgage and Trust Company, whatever the same may be, is subsequent, inferior and junior to the mortgage lien of this plaintiff.”
The suit was commenced in 1900, and the petition showed that nothing of the principal or interest had been paid within ten years before the action was brought. William and Sarah J. Cook, the makers of the note and mortgage, did not plead in the case but were in default. The Lincoln Mortgage and Trust Company filed a general demurrer to the petition, which was overruled. Electing to stand on its claim of right to have the demurrer sustained, a decree was entered foreclosing the mortgage. It has come here, presenting the one question — that of limitation.
The question is whether, without disclosing its interest in the mortgaged real estate, the trust company was in a position to object that the action was barred by limitation. The nature of the claim of the trust company, or its interest in the property, nowise appeared in the petition. In Ordway v. Cowles, 45 Kan. 447 , 449 , 25 Pac. 862, a holder of a tax deed on mortgaged land sought to interpose, in a foreclosure suit involving the property, that the mortgage was barred by limitation as against the makers. The court said:
“The plaintiff in error insists that the note and mortgage of the plaintiffs below were barred by the statute ; that the notes became due January 1, 1883, and that the five years had completely run before he filed his answer. The suit was commenced on the 14th day of October, 1887, and the five years had not elapsed; besides, we do not think that Ordway can avail himself of the statute of limitations. He claims under a distinct and independent title, in no way derivéd from the mortgagor. Generally, the plea of the statute of limitations is a personal privilege, and a third party cannot interpose the defense. (Baldwin v. Boyd, 18 Neb. 444, 25 N. W. 580; Wood, Lim., 1st ed., §41; 10 A. & E. Encycl. of L. 710; 7 Wait, Act. & Def. 236; Waterson v. Kirkwood, 17 Kan. 9.)”
Under the rule stated, if the trust company had answered, setting up a title not derived from or through the mortgagors, it could not avail itself of the fact that the statute of limitations had barred the right of action against the makers of the mortgage. The proposition presented has received attention in courts of other states and in the federal courts. In Corbey v. Rogers, 152 Ind. 169, 170, 52 N. E. 748, the allegations in the complaint read: “The defendant Corbey claims to have some interest in said estate, but if he has any interest it is subject to plaintiff’s mortgage lien, and said defendant, therefore, is made a defendant to answer as to his interest so claimed.” It was held that, without a disclosure showing his interest in the property, the defendant could not plead the statute of limitations. See, also, Board v. First Presbyterian Church, 19 Wash. 455.
In Blair v. Silver Peak Mines, 84 Fed. 737, it was held that one who is made defendant in a foreclosure suit merely because he claims some interest in the mortgaged property, without any allegation in the bill that he owes any part of the debt, or is in possession of any part of the property, or has any legal title thereto, cannot by demurrer set up the defense of the statute of limitations. In the ease at bar, the trust company might have satisfied the demands of the petition by disclaiming any interest in the property. A party disclaiming would certainly not be in a position to interpose an objection that the plaintiff's demand was barred.
Counsel for defendant in error rest their right to demur on section 18 of the code, which provides that actions like this “can only be brought” within five years “after the cause of action shall have accrued.” The language of the» statute does not help the defendant in error, so long as it has not shown itself to be situated in a position to raise the question of limitation. It did not show that it was in privity with the mortgagors. (Wood, Lim. [Bd ed.] §41.)
The judgment will be affirmed.
All the Justices concurring. | [
118,
108,
-16,
-82,
10,
96,
58,
-118,
-7,
-96,
-89,
83,
-23,
-62,
4,
45,
-10,
57,
-59,
120,
69,
-13,
39,
73,
-46,
-13,
-3,
-35,
-79,
-33,
-27,
-41,
76,
52,
74,
-43,
102,
-24,
-61,
92,
14,
-121,
41,
101,
-39,
2,
48,
-21,
112,
74,
21,
124,
-13,
32,
24,
111,
72,
47,
-53,
-67,
-48,
-80,
-70,
13,
95,
7,
49,
39,
-98,
71,
74,
-118,
-112,
49,
-126,
-24,
114,
22,
-42,
116,
67,
-101,
40,
38,
98,
34,
-59,
-17,
-104,
-104,
46,
-41,
-113,
-90,
-78,
72,
19,
40,
-73,
-103,
124,
20,
71,
-2,
-26,
5,
28,
108,
5,
-54,
-74,
-109,
31,
124,
-102,
3,
-1,
-109,
-96,
112,
-52,
-96,
93,
-57,
31,
-109,
-114,
-72
]
|
The opinion of the court was delivered by
Pollock, J. :
January 1.-1888, Robert Eadie made to A. C. Wilcox his promissory note, in the sum of $350, due five years from date, payable at the Girard National Bank, Philadelphia, Pa., secured by trust deed on property in Greeley county, in which one E. Heliker, of the McKinley & Heliker Investment Company, of McPherson, Kan., was nominated as trustee. This note contained the following stipulation :
“If default be made in the payment of any interest note, or any portion thereof, for the space of ten days after the same becomes due and payable, or in case of a failure to perform any of the covenants contained in the trust deed securing this note, then all of said principal and interest notes, less interest for unexpired time, shall, at the option of the owner and holder of this note, become at once due and payable without further notice.”
The same stipulation, in substance, was contained in the trust deed.
Thereafter, on November 20, 1889, Robert Eadie conveyed the property, subject to the encumbrance, to his brother, Thomas Eadie, who, subsequently thereto, conveyed to one A. B. Kelley. Interest was paid on the loan to January 1, 1890, and was paid at the office of. the McKinley & Heliker Investment Company.
This action was brought December 31, 1897, to recover on the note. Defendant interposed the bar of the statute of limitations. There were a verdict, special findings, and judgment thereon for defendant. Proceedings in error were prosecuted in the court of appeals, which resulted in an affirmance of the judgment rendered. The case is now here for review.
A motion has been interposed here for an order dismissing this case for want of jurisdiction.. The motion is not well taken, and is, therefore, overruled.
From the statement above made, it will be seen that the action was not barred when commenced, as shown on the face of the papers. It is earnestly con tended by counsel for plaintiff in error that no competent evidence was offered to establish a plea of the statute. In support of this plea defendant offered, and was permitted to show, the payments of interest on the loan at the office of the McKinley & Heliker Investment Company; the trust deed containing, in substance, the stipulation above quoted ; and, in order to make such stipulation operative, and set in motion the running of the statute of limitations, the receipt of a letter by the brother of defendant, in January, 1891, and its contents, calling attention to the default in the payment of interest, referring to the stipulation contained in the note and trust deed, and declaring the entire amount due and payable, according to the terms of the option. This letter was not produced at the trial. Thomas Eadie, however, testified that he had made search for it; that he was unable to find it, and believed it either lost or destroyed. There was also some feeble testimony tending to show, and the jury found, that this letter was written by one Charles Zilly, treasurer of the McKinley & Heliker Investment Company.
Plaintiff, who at the time lived in McPherson, Kan., •testified in the most positive terms that he at no time, either directly or indirectly, either wrote or authorized the writing of any such letter, or the exercise of the option contained in the note and trust deed. Zilly, a witness for defendant, testified that he was at the time treasurer of the McKinley & Heliker Investment Company ; that he had the books of that company before him, which contained a record of the Eadie loan ; that it was the custom of the company to keep copies of all letters written ; that the letter-book contained no copy of such letter as the one Eadie claimed to have received ; that it was not the custom of the company to exercise the option; that he had no recollection of such letter’s having been written, and that he would have written such letter if any had been sent.
Upon this testimony, it is the contention of counsel for plaintiff in error: (1) That the genuineness 'of the letter was not sufficiently established to permit proof of its contents in evidence ; (2) that conceding the letter to be genuine, and to have been written by Zilly, and the contents as stated, then the evidence fails to show any authority on the part of .Zilly, as treasurer of the investment company, as agent of plaintiff, or otherwise, to bind plaintiff in the exercise of this option.
Without commenting on or deciding the first proposition stated, we shall refer to the second alone, as its determination is of vital importance in the case. In this consideration, let it be conceded that Zilly, as treasurer of the investment company, wrote the letter in question to Thomas Eadie, and that the objection thereto, and to the proof of its contents, were properly overruled. Let it further be conceded that Zilly, or the investment company which he represented, was the agent of plaintiff for the purpose of receiving payment and remitting to plaintiff the interest on the loan, and it is impossible to claim more for the evidence found in the record or the special findings of the jury, yet, we think that the second contention made is fatal to the recovery in this case.
It will be remembered that this note, by its terms, did not mature until January 1, 1893. The letter relied on as declaring the option and setting in motion the statute of limitations was found to have beenwritten by Zilly three years before maturity of the note. The rule as to the proof of the fact of agency, and the power of an agent to bind Ms principal, is stated by Mr. Mechem as follows :
“As bas been seen, the law indulges in no bare presumptions that an agency exists; it must be proved or presumed from facts ; that the agent cannot establish his own authority, either by his representations or by assuming to exercise it; that an authority cannot be established by mere rumor or general reputation ; that even a general authority is not an unlimited one, and that every authority must find its ultimate source'in some act of the principal. Persons dealing with an assumed agent, therefore, whether the assumed agency be a general or a special one, are bound, at their peril, to ascertain not only the fact of the agency but the extent of the authority, and incase either is controverted, the burden of proof is upon them to establish it.” (Mech. Ag. § 276.)
In Lester v. Snyder, 12 Colo. App. 351, 55 Pac. 613, it was said:
‘ ‘ Although a mortgagee has authorized an agent to collect interest, and to receive payment of the principal when due, the agency does not extend to receiving payment of principal before maturity.” (Smith v. Kidd et al., 68 N. Y. 130, 23 Am. Pep. 157; Doubleday v. Kress, 50 id. 410, 10 Am. Rep. 502; Schermerhorn v. Farley, 58 Hun, [N. Y.] 66, 11 N. Y. Supp. 466; Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302.)
Applying these principles to the case at bar, we find nothing in this record which would in any manner either authorize Zilly to collect the note in suit before maturity, or empower him to exercise the option contained in the note and trust deed of declaring the principal sum due and payable three years before the date of maturity stipulated in the note for the purpose of collection, or setting in motion the running of the statute of limitations. The effect of this option, when declared, being to change entirely and supersede the contract existing between the parties as expressed in the note and trust deed, it must be shown that Zilly was authorized by the owner to declare the option before his act in so doing will bind plaintiff. The entire absence of proof of any authority on the part of Zilly to exercise the option contained in the note and trust deed for the owner and holder renders a reversal of the judgment imperative.
It follows that the decision of the court of appeals and the judgment of the trial court must be reversed.
All the Justices concurring. | [
-10,
108,
-112,
-34,
-54,
96,
42,
-102,
97,
96,
-74,
83,
105,
-62,
20,
105,
70,
61,
-63,
107,
-57,
-78,
23,
65,
-45,
-13,
-47,
-35,
-79,
-35,
-26,
-42,
76,
116,
-62,
21,
-26,
-22,
-63,
-36,
-114,
-115,
41,
-28,
89,
8,
48,
59,
51,
8,
113,
110,
-13,
43,
29,
66,
105,
47,
-55,
-67,
80,
-80,
-113,
-59,
127,
23,
-109,
4,
-100,
79,
-24,
46,
-112,
55,
11,
-24,
114,
-74,
-58,
-12,
109,
25,
9,
118,
98,
33,
69,
-17,
-40,
-100,
46,
-10,
-115,
-89,
-14,
89,
43,
44,
-100,
-103,
61,
20,
6,
118,
-82,
-115,
17,
44,
1,
-118,
-10,
-109,
-97,
60,
-101,
3,
-5,
-95,
49,
96,
-49,
-27,
76,
71,
123,
19,
-114,
-80
]
|
The opinion of the court was delivered by
.Pollock, J.:
This action was brought by Lulu Carter, daughter, and administratrix of the estate, of David Carter, a widower, deceased, against the Coffeyville Mining and Gas Company, to recover damages j for the death of deceased by wrongful act. The facts| necessary to a determination of this controversy are,' in substance, as follows: Defendant put down and| was the owner of-a natural-gas well on lot 14, block 62, in the city of Coffeyville. East of this gas-well about fifty feet there was erected a two-story brick building. Immediately south of this building, and adjacent thereto, stood a small frame building used as a blacksmith shop. David Carter was a blacksmith, and, on the 21st day of May, 1896, was working at his trade in this shop. By reason of defects in thej, materials used, or theN manner of construction of the| gas-well, gas escaped. therefrom through crevices in-1 the earth to a cellar or basement underneath the brick' building. This accumulated gas, from some cause unknown, was exploded, which explosion demolished the brick building and threw the south wall thereof upon the frame blacksmith shop, instantly killing Carter.
There is much testimony in the record tending to show that, at the time the brick building was constructed, and thereafter, gas from the well escaped through crevices in the earth into the bottom of the cellar ; that the water in drinking-wells in the vicinity of this gas-well, free from gas before the boring of the well, afterward be.came contaminated by gas and' unfit for use. The cellar, or basement, under the brick building was rented by one Irwin, and had been closed for about ten days prior to the death. Matches had been lighted therein the day preceding the accident without harm. At the time'of the explosion, Irwin had gone to the cellar with some colored help, to carry out water therefrom. The explosion followed upon opening the cellar door.
At the trial there were verdict and judgment for. plaintiff. The jury, upon request of defendant, also made special findings of fact. Defendant brings error.
Many assignments of error are urged upon our attention. We shall examine separately only such as we deem of sufficient importance to merit special attention. It is first contended that there was error m denying the motion of de- ° fendant for judgment on the statement of the case to the court and jury, made by counsel for plaintiff. This court has held that, where the opening statement of counsel for plaintiff, made to the court and jury, contains an admission of facts which absolutely precludes a recovery by plaintiff, the court is warranted in acting upon such admission and entering judgment against plaintiff. (Lindley v. A. T. & S. F. Rld. Co., 47 Kan. 432, 28 Pac. 201.)' Is the rule applicable to this case ?
The contention of counsel for plaintiff in error is based upon two grounds : (1) Counsel for plaintiff, in his opening statement, admitted that the manner in which the gas in the cellar of the brick building became-ignited was unknown to plaintiff; (2) the acts of negligence relied upon for recovery are set forth in an amended petition, filed more than two years after the death of Carter, and it is claimed that the cause of action for such negligence was barred by the statute of limitations. As to the second ground, little need be said. Defendant did not raise the question of the statute of limitations either by demurrer or answer to the amended petition. The cause of action set forth in the amended petition is merely an enlargement on that stated in the original petition. It is the same cause of action, and was not 'barred by the two-year limitation found in section 422 of the code (Gen. Stat. 1901, §4871). (Railway Co. v. Ludlum, 63 Kan. 719, 66 Pac. 1045.)
As to the first ground, it is argued by counsel for plaintiff in error that the proximate cause of the death of Carter was the ignition of the accumulated gas in the cellar, and not in permitting the gas to escape from the well and accumulate in the cellar, and, in consequence, that the admission made by counsel for plaintiff in the opening statement of her case to the court and jury is an admission of want of knowledge and lack of proof upon a vital issue of fact, fatal to a recovery, and warranted the court in entering judgment thereon. To this contention we do not agree. Defendant was employing for its profit a subtle and highly explosive, agency. The rule at common law is that, where an agent so introduced is controllable by care, attention, or science, he who receives the benefit must assume the responsibility. There was not pleaded, nor was an attempt made to show, contributory negligence on the part of deceased. In this condition of the record, it was wholly immaterial how the gas became ignited. In Koelsch v. The Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 34 Am. St. Rep. 653, 18 L. R. A. 759, it was held :
“The fact that an explosion of gas "which has accumulated in a cellar by negligence of a gas company was caused by the act of a third person in lighting a match will not relieve the gas company from liability.” (See, also, Kansas City v. Gilbert, ante, page 469, 70 Pac. 350.)
The motion for judgment was properly overruled.
The next claim of error arises upon the reception of testimony, and especially that of plaintiff, a witness *n ber own behalf, wherein she was permitted to state that she was, and for years had been, in bad health, and that her father was kind and affectionate toward her and his other children. It is insisted that this was error, and many cases are cited in support of the contention made. In an action for personal injuries not resulting in death, and of such nature are the cases cited, the character of evidence offered and received is inadmissible. (Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; The City of Galion v. Lauer, 55 Ohio St. 392, 45 N. E. 1044 ; Dayharsh v. The Hannibal & St. J. Ry. Co., 103 Mo. 570, 15 S. W. 554, 23 Am. St. Rep. 900.) The case at bar is an action to recover damages for death by wrongful act. The rule is different. Here plaintiff in her representative capacity is seeking recovery of damages for the death, for the benefit of herself and the other children of deceased. In such case regard is had alone to the necessities and wants of the surviving children. While, as has been held by this court, no inflexible rule can be laid down governing all cases, as each case must be ruled by its peculiar circumstances, yet, from the authorities, it is safe to say that while the stathte limits the amount of recovery in«any given case to $10,000, within this limit just compensation for the loss sustained by the wrongful death is not by law meted out with miser hand.
Whatever made the life of the deceased of pecuniary value to his surviving children, whether arising, on the one hand, from the ability and disposition of the deceased to contribute to the survivors, as evidenced by his capacity to earn money and accumulate prop erty, his inclination to provide support, the condition of his health, the probable duration of his life, or, on the other hand, from the necessity that the survivors receive assistance as measured by the number, age, sex, health or condition in life of the surviving children who are left dependent on the life for care, support, maintenance, and education, may be shown in estimating the pecuniary and just measure of value of such life. Hence, it was competent in this case to show the ill health of plaintiff and the strength of the attachment of the father for his children, as revealed in his treatment of them, as tending to show the extent of the dependency of the children on the' father, and the probability of his continuing to contribute to their support. This court, in K. P. Rly. Co. v. Cutter, 19 Kan. 83, said :
“In determining the amount of such compensation, much must be left to the good sense and sound judgment of the jury upon all the facts and circumstances of the case. No uniform and precise rule can be laid down for estimating the value to the survivors of the life of the ■ deceased, for the elements which go to make up such value are personal to each case.”
In the opinion, Mr. Justice Brewer said :
“In the very nature of things*it seems to us an exact and uniform rule for measuring the value of the life taken away to the survivors is impossible. The eleménts which go to make up the value are personal to each case. All that can well be done is to say that the jury may take into consideration all the matters which go to make the life taken away of pecuniary value to the survivors, and, limited by the amount named in the statute, award compensation therefor.” (See, also, A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443 ; McKeigue,Adm’x,etc.,v. The City of Janesville, 68 Wis. 50, 31. N. W. 298 ; Hetherington v. North Eastern Railway Co., 9 Q. B. Div. 160; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406 ; Hall v. Galves ton, H. & S. A. Ry. Co., 89 Fed. 18 ; Felton v. Spiro, 47 U. S. App. 402 ; Tetherow v. The St. Joseph & Des M. Ry. Co., 98 Mo. 74, 14 Am. St. Rep. 617, 11 S. W. 310 ; Abbott and another v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910.)
The remaining questions arise upon the special interrogatories requested and submitted to the jury. In this regard, it is insisted that the court erred in refusing to submit special questions numbered 34, 36, and 37, requested by defendant. In these questions the jury were asked to find the amount awarded plaintiff by way of punitive damages, for loss of companionship, and loss of love and affection. As the court in its instructions limited the amount of plaintiff's recovery to the pecuniary loss suffered by his surviving children, the general verdict being for compensatory damages only, and as the jury in answer to special question number 35 fixed the actual damages sustained at the sum of |3000, the amount of the judgment rendered, no error was committed.
Again, it is urged that defendant was entitled to judgment on the special findings made by the jury. In answer to special questions 29 and 38, the jury found that the death of Carter was not accidental. In answer to special question 39, it was found that the negligence of the defendant was the cause of the death. In answer to special questions 40 and 45, it was found that the gas-well was not con- ° structed in a safe, careful and prudent manner, but that the officers of the company were negligent in the construction of the well, and in laying pipes therein in such manner as to permit the escape of gas therefrom. As the findings made are neither contradictory nor destructive of plaintiff's right of recovery, the motion for judgment was properly denied. (Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633.)
The final contention made is that the answers returned to special questions are so inconsistent, and evince such bias and prejudice of mind on the part of the jury as to entitle defendant to a new trial of the action. An examination of the record discloses the fact that a portion of the special questions submitted at the request of defendant remain unanswered ; that answers returned to others are not complete or responsive to the questions asked; but, as defendant at the trial neither insisted upon answers to the questions unanswered, nor upon more direct and specific answers where they were incomplete, but remained content therewith, such error, if any, is waived.
As the answers returned are neither contradictory of, nor inconsistent with, one another or the general verdict, the verdict must stand, and judgment thereon be affirmed.
All the Justices concurring. | [
-15,
106,
-63,
-51,
24,
-32,
42,
-102,
69,
-79,
-75,
87,
-83,
-117,
29,
107,
90,
93,
-48,
122,
-10,
-105,
19,
111,
-46,
-5,
51,
-59,
-77,
92,
-10,
-41,
76,
32,
74,
-35,
-90,
72,
69,
84,
-122,
13,
-119,
-32,
89,
0,
48,
122,
116,
15,
17,
6,
-13,
46,
29,
-49,
41,
44,
-21,
61,
81,
48,
-118,
-107,
-99,
16,
35,
102,
-108,
-89,
-56,
26,
-40,
-75,
1,
-88,
115,
-92,
-124,
-12,
39,
-87,
12,
-32,
98,
35,
21,
-87,
104,
-120,
47,
-66,
-115,
-89,
-80,
9,
41,
36,
-98,
-99,
107,
82,
-121,
126,
-26,
29,
93,
-68,
5,
-114,
-76,
113,
15,
57,
-102,
-39,
-21,
-93,
51,
96,
-51,
-86,
89,
69,
114,
25,
-97,
-8
]
|
Appeal from Miami district court. | [
-43,
-10,
124,
-82,
26,
64,
5,
-66,
67,
49,
119,
87,
-83,
-13,
4,
105,
-101,
63,
37,
123,
-37,
50,
55,
1,
-66,
-6,
-21,
-41,
-4,
92,
-9,
91,
76,
-79,
-22,
-43,
86,
-128,
-17,
88,
-50,
3,
-101,
77,
21,
65,
32,
98,
50,
15,
53,
46,
-31,
46,
26,
-62,
-56,
-84,
-39,
105,
-47,
-104,
-88,
5,
60,
16,
-127,
20,
-97,
-125,
82,
10,
-112,
49,
0,
-24,
115,
-90,
-124,
52,
75,
-69,
-128,
36,
96,
1,
89,
-17,
-88,
-95,
22,
72,
-66,
-90,
-110,
57,
104,
-63,
-44,
-65,
124,
5,
39,
126,
69,
-107,
95,
109,
-50,
-57,
-80,
-77,
-113,
48,
-128,
-104,
-26,
19,
116,
113,
-55,
-46,
94,
71,
59,
-33,
-51,
-70
]
|
The opinion of the court was delivered by
Greene, J. :
This is an original proceeding in quo warranto to compel the defendants to surrender to the plaintiffs the offices of board of directors of the Fort Scott Cemetery Association, together with all books, papers, maps and plats and other property belonging to such association. The material facts are undisputed and, summarized, are as follows : In 1869 thirty persons associated themselves together for the purpose of purchasing land upon which to plat and maintain a cemetery. Their agreement was :
“Fort Scott, May 29, 1869.
“We, whose names are hereto subscribed, agree to pay our equal pro rata part of two thousand dollars with which to purchase of W. Harris eighty acres of ground for the cemetery, one-half payable on demand and one half on the 1st of August, 1869.”
The subscriptions were made, the land purchased, and a portion thereof platted into lots for the purpose of sepulture. Application was made and a charter granted to “The Fort Scott Cemetery Association.” This charter provided, that the capital stock should- be $3000, divided into thirty shares of $100 each, and authorized the association to purchase, hold, plat and convey lots for sepulture.
There was no subscription to the capital stock. No stock was actually issued or sold. It was agreed between the original incorporators that when the land was purchased and platted each should receive free a family burying lot. This agreement was carried out and the lots deeded to such persons in accordance therewith. Thereafter lots in the cemetery were sold by the association as occasion required and the money used in maintaining the grounds.
About 1879 H. E. Cooper began to purchase of the oi’iginal incorporators what he conceived to be their stock in the corporation, and continued so to do until he had purchased nineteen of such supposed shares. This, however, did not include a sale or purchase of their lots. Some time in 1880 a stock book was procured and stock regularly issued to Cooper for these nineteen supposed shares. Afterward M. J. Coventry, one of the defendants, purchased from Cooper these shares, and thereafter puchased from the other original incorporators until he had secured the interest of twenty-seven of the thirty and caused the corporation to issue to him certificates representing such shares. No certificates were ever issued to purchas-' ers of lots.
All elections prior to the one set out by the plain tiff herein seem to have been held on the theory that the original incorporators and those who succeeded to their interests as stockholders, as distinguished from lotowners, were the only persons who could participate in an election, or in the management of the business of the corporation. On the 14th day of September, 1900, a meeting was held for the purpose of electing a board of directors. Those owning shares issued to the original incorporators, or their assigns,' were the only ones present and voting. The defendants herein were elected directors, M. J. Coventry was elected president and manager, and F. H. Coventry secretary and treasurer. It is by virtue of this election that the defendants are in possession of the books, records, papers, maps and plats of said association and are claiming to be the board of directors and officers of the corporation.
Article 4, section 2, of the by-laws reads:
“Meetings of stockholders may be held at any time in the city of Fort Scott, Kan., upon a call . . . or by any five of the stockholders. Five days’ notice of such meeting shall be given by mail to each stockholder, so far as practicable. Such notice may be given by the secretary or any one of those joining in the call.”
On the 3d day of September, 1900, J. D. McCleverty, C. A. Lakin, J. W. Davis, M. V. Barnett, and John Glunz, being at the time lotowners but not holding any shares of stock in the association, issued a call for a meeting of the members of the cemetery association to be held at the court-house at the city of Fort Scott on the 18th day of September, 1900, at three o’clock p. m., for the purpose of electing a board of directors and transacting other business. This notice was published for ten days prior to the date of such meeting in the only daily paper published in Fort Scott, and 305 of these notices, enclosed in envelopes and properly stamped were deposited in the post-office at Fort Scott, Kan., addressed to as many different lotowners who at the time received their mail at said post-office.
On the 18th of September, 1900, at the hour designated in such notice for the convening of the meeting, there were present fifty-one lotowners and seventy-two other lotowners represented by proxies. At this meeting the' plaintiffs herein, J. D. McCleverty, J. W. Davis, C. A. Lakin, Jas. A. Moulton, and M. V. Barnett, were elected directors of such corporation. On the same day said person's qualified, and then organized by electing from the members of the board proper officers. A formal demand was thereafter made oh the defendants for all books, papers, maps and plats belonging or pertaining to said association then in the possession of the defendants. This demand was refused. It is by virtue of this election and the demand thus made that plaintiffs ask possession of these offices, the property of the association, and that the defendants be ousted therefrom.
It is contended by defendants that this is a private corporation for profit and that the. original incorporators, and those to whom their interests as stockholders have been assigned, constitute the corporation, and the only persons who are entitled to vote in the election of its directors or take part in the management of its business. If this be true, defendants are properly in office and should not be disturbed. If, however, this association is not a private corporation for profit and there are no stockholders, but the business is conducted by a board of directors elected by the lotowners, they are holding without authority, and the plaintiffs have been legally elected and are entitled to the relief prayed for.
As this association was incorporated in 1869, we must look to the law in force at that time to determine the rights of the parties. Subdivision 7 of section 5, chapter 23, General Statutes of 1868, in enumerating the purposes for which private corporations may be formed, provides that they may be formed for the maintenance of a public or private cemetery. Article 15 of chapter 23, General Statutes of 1868, with reference to cemeteries, reads :
“ Sec. 124. Cemetery corporations shall have power to divide the land of the cemetery into lots and subdivisions, for the purposes of the cemetery, and to tax the property for the purpose of its general improvement.
“Sec. 125. Such corporation shall have power to convey, by deed or .otherwise, any lot or lots of the cemetery for purposes of sepulture. When such lots shall have been surveyed and platted, the survey and plat shall be recorded in the office of register of deeds of the county wherein the same are situated, and shall not be afterwards changed or altered. No lots shall be sold or disposed of until such plat shall have been recorded. All the ground held by such corporation for burial purposes, while so held, shall be exempt from public taxation. Every lot sold and conveyed in such cemetery shall be held by the proprietor for the purposes of sepulture only, and shall not be subject to attachment or execution.
. “Sec. 126. All owners of lots purchased of any such corporation shall become members thereof, and be entitled to vote in the election of its officers, and upon any other matters, to the same extent as stockholders in other corporations.”
We may remark that these sections are unchanged, and are now sections 1381, 1382 and 1383 of the General Statutes of 1901. It appears from section 1383 that it was not intended that stock should be issued in a cemetery corporation, else it would not have provided that owners of lots should become members of the corporation and be entitled to vote on all matters.
Under the general provisions of the corporation law, all owners of stock are members of' the corporation and are 'entitled to vote in the election of its officers. In the light of this general statutory provision the language of section 1383 would have no meaning. It was intended that, instead of the corporation’s being controlled by stockholders, it should be controlled by the lotowners. There seems to be much reason for this outside the statutory provisions. A stockholder, if there could be one, need not own a lot or have a relative interred therein. The only incentive he would have in maintaining the ground would be to induce persons to purchase lots, and when the lots were disposed of his interest would cease, while a lotowner has a continuing and increasing interest in the property of the cemetery, in its decoration and improvement, and making it a place where his dead are to be buried, and where, he expects finally to rest. It is his constant desire to have such place ornamented, and the entire ground well preserved and made inviting as a place of interment, as well as a place to which his friends may resort. This idea is well expressed in Close v. Greenwood Cemetery, 107 U. S. 466, 478, 2 Sup. Ct. 267, 276, 27 L. Ed. 408 :
‘ ‘ This was not to be a mere graveyard in which each lot-holder acquired a piece of ground in which to bury his dead, and at the same time become chargeable with the sole care of his particular lot; but the lot-holders themselves became subject to by-laws and regulations having reference to the institution as an entirety, and the perpetual preservation of the cemetery as an ornamental and convenient place for interment and for resort by the relatives of the dead.”
If the lotowners may not participate in the election of its officers and the management of the affairs of the corporation, and it is purely a private corporation owned and managed by stockholders for profit, the idea of perpetuity at once vanishes. Having sold all the lots, the profits end, and their interest ceases. There is no further inducement to stockholders to maintain the organization or keep up its grounds.
Is this corporation public or for profit ? Many reasons may be found in the law for concluding that it is public and none supporting the contrary idea. For instance, the property so platted and held is exempt from taxation. It has not been the policy of the state, even if it were constitutional, to exempt private property from taxation. No reason can be suggested why a private cemetery corporation operated for profit should receive any more grace at the hands of the legislature than a private corporation organized for any other purpose. Another instance indicating that it is a public corporation is the limitation placed upon the corporation in its disposition of the property. It can sell “by lot or lots” and for the purpose of “sepulture” only, and the plat, when recorded in the office of the register_of deeds, “shall not be afterwards changed or altered.” Similar limitations are not found in the law governing other private corporations. Private corporations are left to manage their property with as much independence and freedom as natural persons.
In construing a statute precisely like ours, m Cemetery Co. v. Cemetery Ass’n, 93 Tex. 569, 57 S. W. 27, 55 L. R. A. 503, the supreme court of Texas said:
“When the Oakland cemetery corporation laid out its lands into lots and subdivisions and caused a plat of the land to be made and recorded in the office of the county clerk of Dallas county, the land so laid out was irrevocably dedicated to use as a place of burial for the dead, just as effectually as if the statute had stated that it should be so dedicated. The use prescribed is public in its nature, and of a character that necessarily excludes any concurrent use of the same property. Consequently, the use is exclusively for purposes of sepulture. After the. dedication of the land, the legal title remains in the corporation only for the purpose of conveying the lots to those who desired to use them for the purpose of burying the dead. No power'is given by the statute to such corporations to convey the property for any other pur-, pose, and the fact that the lots and subdivisions are made unchangeable, and that the power is restricted to conveyances of ‘ any lot or lots . . . for purposes of sepulture,’ operates as a limitation upon the power of the corporation to convey the land to ‘a lot or lots,’ and for the uses named. Upon dediqation, the dominion of the corporation over the land as .owner in fee simple was surrendered, and the corporation became, in effect, a trustee to sell and convey the lots for the purposes specified, and to carry out the purposes enumerated in the statute, with the right to appropriate the proceeds of the sale to itself in payment of the land. Each lotowner became a member of the corporation in the sense that he- was entitled to participate in all elections for officers to manage the corporate business, and each was interested not only in the particular lot conveyed to him, but in the entire ground of the cemetery, to be kept as an entirety, and to be perpetuated and cared for by a corporate body.”
We. are of the opinion that this is a public corporation ;. that in the election of its officers and the management of its business it is controlled by the lot-owners ; that there are no stockholders, and the' shares of stock issued in this corporation were unauthorized, and the sale or assignment conveyed nothing to the purchasers, and that the plaintiffs are entitled to the relief demanded. It is ordered that the defendants deliver to the plaintiffs all books, papers, maps, plats, surveys, and records, and all other property whatsoever belonging to said corporation, and that defendants, and each of them, be ousted and removed from the offices now held by' them, and that the costs hereof be paid by them.
All the Justices concurring. | [
-12,
108,
-16,
-34,
58,
-32,
40,
-70,
88,
-96,
39,
91,
41,
-54,
0,
123,
-30,
61,
81,
104,
-26,
-77,
55,
-53,
82,
-45,
-5,
-51,
49,
77,
-90,
85,
77,
52,
74,
-35,
-10,
-32,
-61,
-38,
-50,
-115,
-119,
105,
-37,
96,
52,
51,
18,
78,
85,
30,
-77,
42,
25,
-29,
105,
44,
-21,
-87,
-64,
-72,
-86,
-121,
-1,
15,
19,
32,
-72,
-61,
-56,
46,
80,
17,
0,
-24,
83,
38,
22,
116,
111,
-71,
12,
34,
103,
1,
-12,
-17,
16,
-104,
14,
-74,
-115,
-121,
52,
89,
66,
72,
-68,
-99,
125,
16,
-89,
-10,
-30,
29,
25,
44,
5,
-49,
-106,
-127,
-81,
120,
-104,
67,
-37,
-121,
48,
81,
-51,
50,
93,
71,
127,
-111,
-114,
-39
]
|
Error from Wyandotte court of common pleas. | [
-110,
104,
-7,
-3,
-104,
1,
32,
14,
31,
-107,
118,
83,
-51,
-122,
20,
59,
-14,
41,
113,
90,
-59,
-74,
113,
98,
118,
-46,
-13,
71,
-73,
109,
-4,
-56,
76,
112,
-118,
-97,
70,
64,
-115,
92,
-114,
2,
8,
-19,
83,
73,
60,
104,
-104,
73,
49,
110,
-29,
47,
58,
67,
-22,
44,
-51,
57,
-54,
-109,
-77,
13,
123,
22,
-127,
20,
-111,
74,
76,
-118,
-104,
49,
3,
-68,
114,
54,
-121,
119,
37,
91,
-83,
-24,
66,
97,
12,
-17,
-80,
-88,
14,
-98,
25,
-90,
-110,
9,
107,
-87,
-74,
-99,
100,
86,
103,
-34,
-26,
4,
93,
72,
-125,
-50,
-8,
-79,
-51,
-96,
-116,
67,
-1,
102,
20,
81,
-59,
-44,
92,
-121,
17,
27,
-34,
-74
]
|
Appeal from Riley district court. | [
-41,
-32,
-3,
108,
-118,
-64,
66,
62,
67,
49,
103,
83,
-17,
-42,
1,
107,
-53,
47,
100,
107,
91,
-73,
51,
-31,
-54,
-5,
-35,
86,
-68,
94,
-10,
-9,
76,
112,
-118,
-35,
70,
-64,
-17,
-44,
-114,
3,
-65,
93,
121,
35,
44,
96,
62,
15,
53,
62,
-9,
40,
24,
-62,
-56,
108,
-37,
43,
25,
-45,
-104,
-99,
52,
19,
-96,
-124,
-104,
-125,
16,
42,
-112,
-79,
0,
-20,
115,
-90,
-124,
-74,
11,
-103,
-119,
-94,
114,
3,
28,
-17,
-75,
-87,
23,
92,
-67,
-90,
-110,
25,
106,
-96,
-44,
-67,
117,
38,
71,
126,
109,
-92,
95,
109,
-114,
-33,
-80,
-109,
-113,
16,
3,
26,
-57,
19,
-78,
81,
-51,
-108,
84,
-57,
27,
-37,
-36,
-104
]
|
The opinion of the court was delivered by
Greene, J. :
This was replevin brought in the district court of Comanche county by plaintiffs in error against the defendants in error to recover the possession of 170 head of cattle. The defendants recovered judgment, and plaintiffs prosecute error to this court.
This litigation grew out of a contract entered into between the plaintiffs and defendants in the fall of 1898, by which plaintiffs delivered to defendants 1150 head of one- and two-year-old Arizona steers. Defendants agreed to care for said steers from the time of their arrival, and to feed them Kafir-corn, sorghum, hay, etc., at such times and in such quantities as would carry them through the winter in a strong and. thriving condition, and to return all cattle received, except those that should die during the winter from ^natural causes, and pay $27.50 per head for all others they would be unable to deliver. For such services the defendants were to receive $2.50 per head for feeding the cattle so returned.
The defendants refused to return the cattle in question, but retained them for a balance of the unpaid feed bill claimed to be due them.
The plaintiffs below contended that, by reason of lack of feed and care, 170 head of cattle starved or otherwise perished ; that they were entitled to credit on the feed account for the value of those so lost at' the raté of $27.50 per head, and, if so credited, defendants were fully paid.
The defendant contended that these cattle not re turned died from natural causes, and therefore they .were not responsible.
A mass of conflicting evidence was introduced on both sides to maintain the issues thus joined. The first alleged error is that the issues were not joined ten days before the convening of the court at which plaintiffs were compelled to go to trial; that they were not prepared, and were prejudiced thereby. j
The action was commenced so recently before the convening of the court at which it was tried that, had the defendants taken the full time allowed to answer, the cause would not have been at issue ten days prior to the convening of that term of court. The defendants, however, waived this right as to time and answered immediately; thus the issues were made up more than ten days before the convening of the court. The issues having been joined more than ten days before the convening of the court, the cause was properly triable at that term. No other reason having been assigned why the cause should not have been then tried, the court in this respect committed no error.
While testifying, one of the plaintiffs was asked: “You may state if these cattle were fed a sufficient quantity of feed to bring them through the winter in a good, strong and thriving condition.” To this an objection was made for incompetency, and was sustained. This is alleged as error. This witness resided in Kansas City, was not at the place where the cattle were kept, and did not see them but once, and only for a short time, between the time they were delivered to defendants and the time when they were returned in the spring. Por this reason he did not show himself qualified to testify upon this question, and the objection was properly sustained.
There are other errors complained of in the ruling of the court in sustaining objections to evidence offered by plaintiffs and in overruling objections made to questions asked of witnesses for defendants. On an examination, we find that no prejudicial error was committed in this respect.
It is also claimed that the court erred in refusing to permit a second counsel to cross-examine one of the witnesses for the defendants. The conduct of a trial is largely within the discretion of the trial court. In this instance there is no reason assigned why it was necessary for the second counsel to engage in this cross-examination. There is nothing in the record showing that the counsel who had conducted a part of the cross-examination was not familiar with the cause and competent to pursue the cross-examination to the end. In the absence of such showing, or that the plaintiffs were prejudiced thereby, this court cannot say this was an abuse of discretion.
Error is predicated on the giving of instructions. We think the instructions given, so far as they go-, fairly state the law and are confined to the facts in issue.
Another error complained of is the refusal of the court to give the special instructions asked by the plaintiff, especially the following :
“The burden of proof is on the plaintiffs to prove the issues and claims made by them by a preponderance of the evidence ; that is, that they are the owners of said cattle and are entitled to the immediate possession thereof. But by the terms of the contract the defendants are to assume the burden of proof and prove that all cattle which have died during the time said cattle were in their possession weré lost from causes other than from want of proper feeding.”
We think this instruction states the law correctly and should have been given. If the instructions had been signed by the parties as required by section 275 of the code (Gen. Stat. 1901, §4722), a refusal to give this .would have been reversible error. The instructions were not signed and this court will presume they were refused for such reason. (Morisette v. Howard, 62 Kan. 463, 63 Pac. 756.)
'Complaint is also made of the conduct of counsel for defendants, consisting of prejudicial statements made by him to the jury in his argument of the cause. If these statements were prejudicial, and affected materially and substantially the rights of plaintiffs* it would be good cause for a new trial.
The statement complained of is : “Gentlemen of the jury, you should return a verdict for McNair, and enable him to pay for the feed he has put into these cattle and to pay the men employed by him.”
We are unable to see how this statement affected materially the substantial rights of the parties. It certainly could not have been accepted by the jury as a reason why they should return a verdict for the defendants, and while it was not a proper statement to make and the court should have withdrawn it from the jury, it is not of such material and substantial character that this court could say it probably influenced the jury to the prejudice of the rights of plaintiff.
An application was made to set aside the sixth and seventh special findings of the jury for the reason that there was no evidence to sustain such findings. These findings are within the issues joined by the pleadings and are questions of fact, upon which contradictory evidence was submitted at the trial. The jury, who heard this evidence and who were competent to- determine the weight .anti credibility to be-given the testimony, found on these questions.
Under the rule long established by this court, we jmay not now enter into an examination of the testimony to determine upon which side it preponderates. The judgment of the court below is affirmed.
Smith, Pollock, JJ., concurring. | [
-16,
110,
-43,
-115,
10,
96,
40,
-118,
71,
-85,
39,
87,
-55,
-45,
20,
121,
103,
61,
85,
104,
-58,
-73,
19,
64,
19,
-13,
-45,
-57,
49,
109,
-28,
-43,
72,
16,
-118,
85,
38,
-32,
-63,
-36,
-50,
7,
-119,
-19,
89,
16,
56,
109,
54,
67,
36,
46,
-13,
46,
29,
-61,
105,
44,
121,
45,
65,
-15,
-70,
13,
63,
7,
1,
102,
-114,
5,
-40,
110,
-112,
49,
17,
-4,
122,
52,
-122,
116,
37,
-103,
12,
50,
102,
1,
92,
-51,
88,
-120,
47,
-65,
-113,
-26,
-112,
0,
107,
0,
-74,
29,
116,
86,
39,
118,
-11,
-116,
-99,
-20,
-121,
-114,
-112,
-77,
-113,
60,
-104,
23,
-37,
-89,
19,
113,
-51,
-30,
88,
71,
112,
-101,
-113,
-42
]
|
The opinion of the court was delivered by
Greene, J. :
The Council Grove Investment Company was a business corporation other than a railway or bank. On March 9, 1897, the Farmers’ and Drovers’ Bank recovered a judgment against it for $6265.28 in the district court of Morris county, and caused an alias execution to issue to the sheriff of said county against the property of the corporation, which was returned on the 1st day of March, 1899, nulla bona. One A. W. Hickman also recovered a judgment against said corporation in said court for $2580.43. On March 18, 1899, on the application of the Farmers’ and Drovers’ Bank, the district court of Morris county appointed the defendant in error, Henry T. Hamer, receiver of the debtor corporation, to close up its affairs.
The receiver commenced this action in the district court of Morris county against W. F. Waller, as a stockholder, to recover his unpaid subscription and statutory liability to satisfy such judgments.
The defendant filed his answer and plea in abatement, alleging, among other facts, that he had a good and meritorious defense to the cause pleaded in the petition, but that he should not be compelled to plead it, for the reason that certain other persons (giving their names and number of shares owned by each) were stockholders in said corporation, and had not paid into' the corporation the full par value of their stock or their statutory liability'; that the receiver should not be permitted further to prosecute the action against him until all the stockholders were brought into court, to the end that a final ascertainment of the debts of the corporation and an adjustment and settlement of the liabilities of the stockholders to the corporation, and as between themselves, might be had.
To this plea in abatement the plaintiff demurred, which demurrer was sustained. Thereafter, upon leave of court, the defendant demurred to the petition for the reasons : (1) That the plaintiff had no legal capacity to institute and maintain the present action ;
(2) that the petition did not state facts sufficient to constitute a cause of action against the defendant;
(3) that there was a defect of parties plaintiff; (4) that there was a defect of parties defendant. This demurrer was overruled, and thereafter the defendant answered. Trial was had and judgment rendered for plaintiff, from which the defendant prosecutes error to this court.
The important question in this case is, Should th<> demurrer to the plea in abatement have been sustained ?
( Prior to the enactment of chapter 10, Laws of 1898, ,the creditor of a business corporation, other than a railway or bank, might proceed against the individual stockholders only: (1) By motion after judgment and execution against the corporation returned nulla bona; (2) by action after dissolution, either by expiration of time, judgment of dissolution, or suspension of business for more than one year, as provided in sections 32 and 44 of the corporation act (Gen. Stat. 1868, ch. 23).
Chapter 10 of the Laws of 1898 repealed said sections 32 and 44, and substituted therefor sections 14 and 15 (Gen. Stat. 1901, §§1302, 1315), as follows:
“If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property upon which to levy such execution, such corporation shall be deemed to be insolvent ; and upon application to the court from which said execution was issued, or to the judge thereof, a receiver shall be appointed to close up the affairs of said corporation. Such receiver shall immediately institute proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders, equal to the par value of the stock held by each. . All collections made by the receiver shall be held for the .benefit of all.creditors, and shall be disbursed in such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all' claims against such corporation, together with all costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, as the court may direct; and in the event any stockholder has not paid the amount due from him, the stockholders making payment shall be entitled to an assignment of any judgment or judgments obtained by the receiver against such stockholder, and may enforce the same to the extent of his proportion of claims paid by them.”
“The stockholders of every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected by a receiver for the benefit of all creditors.”
It will be observed that an entirely different remedy is provided by the latter statute. It provides, substantially, that upon the return of an execution unsatisfied a receiver may be appointed; the corporation is deemed to be insolvent; its affairs are to be closed up by the receiver, and he is also required to institute proceedings against all stockholders to collect unpaid subscriptions on capital stock, together with the statutory liability upon the same. These collections may be held by him as a fund for the benefit of all creditors, such fund to be disbursed as the court may direct.
If the amount collected exceeds the debts of the corporation and expenses incident to the receivership, the surplus fund is to be distributed by the court equitably among the shareholders from whom collections have been made, and, as a.means of saving and adjusting the rights of the stockholders among themselves and against each other, where one or more has paid an undue proportion of the indebtedness of the corporation, such stockholder is entitled to an order of the court assigning any judgment obtained by the receiver against a stockholder or stockholders from whom collections have failed.
There exists no other statute by which the creditor of an insolvent or dissolved corporation may proceed against its stockholders. It follows, therefore, that if a creditor desires to make a stockholder respond for the debts of the corporation he must proceed against him in the mode thus prescribed and no other.
The two creditors reduced their claims to judgments against the insolvent corporation and caused executions to issue thereon against its property, which were returned nulla bona. Thereafter one or both applied to the court for the appointment of a receiver. Up to this point all proceedings were in conformity with the provisions of chapter 10, Laws of 1898. This action was then brought by the receiver against one stockholder to recover not only his unpaid subscription,-but also what is generally known as his statutory liability, which, by the provisions of said act, is made a part of the assets of the corporation and recoverable by the receiver.
The facts contained in the plea in abatement, which for the purpose of the demurrer are taken as true, are that other stockholders (whose-names were given) had not paid into the corporation the par value of the stock owned and held by them, and had paid none of their so-called statutory liability.
It is clear that the statute quoted cannot be conveniently and adequately carried out unless all the stockholders, or, at least, all who can be brought within the jurisdiction of the court, are joined as defendants in one proceeding, instituted by the receiver. If, for example, a fund is collected from the stockholders in excess of the amount required to pay the debts, and the stockholders have been sued in separate suits, it would require other suits to be brought by each stockholder from whom collections had been made, and who believed himself entitled to a share in the distribution of the surplus fund, to establish his right to such share. If a portion of such fund had been collected out of court upon assessments made by the receiver and a portion by suit, and there remained an excess to return to the stockholders, the court óould not make such a distribution until it had been judicially ascertained who were entitled to such distribution and in what proportion. This would necessitate fresh suits between all contributing stockholders, whether the collections had been made in or out of court, for the purpose of establishing rights and determining adverse claims to the fund.
It is argued by defendant in error that this procedure cannot be adopted, in view of the decisions of this court in Abbey v. Dry-goods Co., 44 Kan. 415, 24 Pac. 426, and Howell v. National Bank, 52 Kan. 133, 34 Pac. 395, where it was held that the liabilities of stockholders to a creditor of a stockholder are several and not joint. These decisions were a correct interpretation of the law of procedure as it stood at that time; but, as suggested, the statute which governed the procedure when those decisions were made has been repealed and a mode adopted which authorizes the joining of all stockholders in one action. While the liability of the several stockholders to the creditor, of a corporation is still several, under the statute quoted the receiver must proceed against them jointly.
This act provides a complete system for collecting the assets and paying the debts of an insolvent corporation, and of adjusting the liabilities of the stockholders between themselves. To do this, the receiver must bring in all stockholders that are within the jurisdiction of the court, that in one proceeding the court may ascertain and determine the indebtedness of the corporation, the amount each stockholder should pay, and, if one has paid more than his proportion, award him such relief against the other stockholders as may appear just. The receiver having failed to comply with this plain statutory requirement, the demurrer to the plea in abatement should have been overruled.
One other question is argued by counsel for plaintiff in error which may arise upon a future trial. It is contended that the act of 1898, as applied to the facts in this case, is retroactive in its operation and impairs the obligation of the contract sued on in this case. Suffice it to say that, as to the plaintiff in error, it does not impair his obligation or deprive him of any right he had prior to its passage.
For the reasons stated, the judgment of the court below is reversed and the cause remanded.
Smith, Pollock, JJ., concurring. | [
116,
110,
-40,
-100,
-126,
-32,
42,
-8,
88,
-95,
-89,
119,
-55,
-56,
16,
61,
-25,
125,
80,
66,
68,
-78,
71,
-22,
-110,
-77,
-53,
-3,
-79,
77,
-28,
-41,
-51,
48,
74,
21,
-26,
-64,
-53,
92,
-114,
25,
9,
64,
-39,
72,
48,
-5,
118,
77,
49,
28,
-13,
52,
53,
75,
105,
44,
-19,
-71,
-48,
-8,
-86,
69,
127,
23,
33,
6,
-100,
35,
-40,
-84,
-104,
49,
1,
-23,
114,
-74,
-122,
84,
13,
-103,
13,
34,
98,
3,
69,
-17,
88,
-104,
14,
-2,
-115,
-121,
-14,
88,
83,
40,
-65,
-99,
92,
18,
-90,
-12,
-18,
4,
17,
108,
1,
-50,
-10,
-109,
-113,
-12,
-102,
19,
-21,
-81,
48,
96,
-50,
98,
93,
-57,
122,
19,
-50,
-15
]
|
Error from Dickinson district court. | [
-110,
-14,
-8,
14,
-54,
-95,
32,
12,
1,
-47,
102,
87,
-17,
-58,
20,
123,
105,
15,
36,
106,
67,
-74,
119,
-30,
-10,
-14,
-61,
-41,
-73,
93,
-4,
-124,
76,
-80,
-54,
29,
6,
-128,
-83,
92,
-50,
3,
9,
-11,
-37,
9,
44,
101,
-38,
37,
113,
108,
-16,
63,
59,
99,
-87,
44,
-43,
121,
-55,
-47,
-77,
13,
127,
6,
-94,
84,
-42,
79,
88,
-86,
-108,
49,
-128,
-8,
114,
-90,
-61,
53,
33,
-69,
-119,
108,
98,
33,
13,
-49,
-8,
-88,
14,
126,
-99,
-90,
-105,
24,
107,
-120,
-74,
-67,
117,
86,
39,
-4,
102,
-124,
25,
76,
-126,
-17,
-16,
-111,
-51,
48,
-120,
79,
-1,
-106,
50,
113,
-55,
-10,
124,
-42,
56,
27,
-34,
-66
]
|
The opinion of the court was delivered by
Doster, O. J. :
This was an action for damages sustained by the plaintiff, a small boy, by coming in contact with an electrically charged wire which had fallen down, and which, after falling down, the defendant, the city, had negligently allowed to remain upon one of its sidewalks. The accident occurred on a Saturday afternoon. According to some of the testimony, the wire had been down since the preceding Thursday, and according to other testimony it had been down about eight hours, and the jury, in answer to a question whether it had been down “for at least several hours prior to the injury to plaintiff,” answered that it had. The wire, which caused the injury was a broken telegraph or telephone wire which had fallen across or near by a “span wire” of an electric street-railway line, and which span wire had evidently be come charged with electricity through some defective insulation. There was no evidence of actual notice to the governing officers of the city of the broken and dangerous condition of the wire. A few minutes before the accident a policeman discovered the pendent end of the wire lying on the sidewalk. He coiled it up and laid the coil at the foot of a post at the edge of the sidewalk, and started to report the fact of its being down. He should have remained in proximity to the wire, so as to warn passers-by against it until he could have been relieved from the duty. Such seems to be the charge of negligence so far as he was concerned. The policeman did not receive any shock from the wire, but evidently it soon became charged, because presently the plaintiff came in contact with it and received his injuries. It is probable that the act of the officer in shifting the wire caused it to come in contact with the electrically charged span wire above and receive a current from that source.. .
The jury returned a general verdict in favor of the plaintiff, and were also asked and made answer to special questions, of which those material to notice were as follows:
“16. Did the policeman, Mosby, remove the wire by which the plaintiff was injured from the sidewalk and place it at the foot of pole of the street-railway at the place where the accident to the plaintiff occurred about five minutes before the accident happened? Ans. Yes.
“17. If you answer the preceding question in the affirmative, state if the police officer, Mosby, was negligent in placing and leaving such broken wire as he did. A. Yes.
“18. If you answer the last question, that the police officer, Mosby, was negligent, state if such negligence was the direct cause of the plaintiff’s injuries. A. Partly.
“19. If you answer question No. 17 in the affirmative, state if the act of the policeman, Mosby, in placing the wire at the foot of the pole supporting the span wire of West Side Railway Company at the place of the accident was one direct cause of the accident, without which it would not have occurred ? A. Yes.”
No ordinance imposing on policemen any duty in respect of dangerous conditions of street travel was introduced. Judgment went against the city, to reverse which it has prosecuted error.
The plaintiff in error claims that the petition charged the city with negligence in allowing' the wire to remain down after sufficient lapse of time to impart constructive notice of its dangerous condition, whereas, as is further claimed, the above-quoted findings and other incidents of the trial show that recovery was allowed for the negligence of the policeman, and that, such being the case, the judgment was erroneous, because, as is also contended, a policeman in law is a mere peace officer of the state, and not an agent of the city, qualified, in the lack of statute or ordinance, to charge the latter with responsibility for his negligent acts. . The criticism of the petition is not well founded. Its allegations were sufficient to permit a recovery on the theory of the city’s liability for the negligence of the police officer, assuming him to have been a legally authorized agent, as well as to recover on the theory of constructive notice by lapse of time. There are many decisions holding cities exempt from liability for the negligent acts of a policeman in cases where they have not been constituted by statute or ordinance the agents of the municipality. The case of Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490, is one, and City of Columbus v. Ogletree, 96 Ga. 177, 22 S. E. 700, and Cook v. City of Anamosa, 66 Iowa, 427, 23 N. W. 907, are others.
However, it is not necessary to determine the question of the city’s liability for the negligence of the policeman, Mosby. The findings of the jury are not to be interpreted as founding the recovery on his acts. A charge of dangerous condition of the street resulting from a broken electric wire falling and resting on the sidewalk was made. The evidence and findings did nothing more than show that such generally dangerous condition was given specific character and force by the negligent act of the officer, just as such character and force might have been given by the like act of any other person. The general act of negligence charged and proved was the leaving of the broken wire to hang from above to the sidewalk below, exposing the public to those dangers which some specific occurrence, like the act of the policeman, Mosby, might bring into play. The claim of negligence in this respect was submitted to the jury under appropriate instructions, and, therefore, a finding of the truth of the claim must be regarded as included in the general verdict.
If one puts a dangerous mechanical contrivance in the public highway — one liable to do harm if disarranged or meddled with — and some meddler does disarrange or set it in motion, to the injury of another person, it is no answer to say that the one whose act proximately in point qf time or physical volition caused the injury was not the agent of the one who exposed the machine to the hazard of being meddled with. True, it was the act of the policeman in changing the position of the pendent wire so as to receive the electric current from the defectively insulated span wire above that produced the injury, but in law the responsible cause of the injury, or an equally responsible cause of it, was the negligent act of the city in allowing the wire to hang down, subject to the chances of being so moved about as to be made into a conductor of the electric current above.
Some other but minor claims of error are made, but none of them is well taken.
The judgment of the court below is affirmed.
All the Justices concurring. | [
-80,
124,
-48,
-114,
10,
96,
58,
-40,
81,
-79,
-69,
115,
9,
-61,
29,
97,
-101,
-5,
80,
43,
86,
-13,
7,
-22,
-106,
-45,
50,
-59,
-79,
108,
-26,
-33,
77,
48,
-54,
-43,
102,
66,
-51,
86,
-126,
21,
-125,
105,
19,
66,
-76,
56,
50,
75,
49,
-116,
-13,
42,
24,
-49,
105,
44,
74,
-79,
-61,
121,
-88,
-123,
-3,
22,
-77,
6,
-98,
-91,
-8,
28,
-39,
49,
0,
-24,
115,
-73,
-126,
-12,
97,
-119,
-124,
-30,
34,
0,
77,
103,
-4,
-120,
46,
-18,
-123,
-90,
4,
104,
11,
-83,
-65,
-97,
35,
16,
38,
-2,
-13,
93,
83,
108,
7,
-122,
-92,
-47,
-17,
-90,
-106,
-38,
-53,
3,
16,
117,
-50,
-78,
94,
68,
91,
27,
31,
-66
]
|
Error from the Labette district court. | [
-14,
-4,
-71,
-2,
-114,
-95,
4,
-118,
65,
-109,
34,
87,
-19,
-106,
20,
107,
34,
61,
53,
122,
-55,
-74,
51,
-63,
-42,
-37,
-53,
-43,
-75,
109,
-12,
-128,
94,
112,
-117,
87,
71,
-124,
-123,
-36,
-50,
7,
13,
-4,
-37,
107,
24,
33,
30,
109,
113,
-82,
-77,
42,
-70,
99,
-87,
44,
93,
49,
-23,
-15,
-6,
5,
61,
7,
-95,
20,
-101,
0,
88,
42,
-108,
49,
-126,
-8,
55,
-74,
-121,
85,
9,
-69,
-115,
96,
98,
65,
9,
-49,
-72,
-88,
6,
126,
25,
-90,
-105,
-119,
105,
-116,
-106,
-75,
116,
86,
102,
126,
101,
-60,
27,
92,
-125,
-18,
-48,
-111,
-50,
-16,
-124,
-55,
-1,
-122,
54,
81,
-35,
-108,
92,
-57,
24,
26,
-50,
-69
]
|
The opinion of the court was delivered by
Smith, J.:
The plaintiffs below sought to enhance their damages by alleging and offering testimony to show that the cause of the breach of contract on the part of the ice company was that the latter had agreed to deliver all the ice manufactured by it to another company in violation of the anti-trust laws. The motive which actuated the defendants below in violating their contract with the Wylies was an immaterial consideration. The ice company, having refused to deliver ice as it agreed, was guilty of a violation of its contract and liable for such damages to the plaintiffs below as they suffered by the breach. The intent with which the contract was violated did not furnish a cause of action,’but the fact of the breach, disassociated from the reasons for it. The wilfulness of a party in refusing to carry out a contract does not in any way change the rule of damages. It is the same whether the breach results from mistake, accident, or inability to perform it, or whether it be wilful and malicious. (3 Par. Cont. 166; Stranahan Co. v. Coit, 55 Ohio St. 398-407, 45 N. E. 634.)
The failure of the defendants below to furnish ice as they agreed gave a cause of action to the obligees in the contract. The breach was then complete. That there was a trust or combination formed by the defendants below and another ice company was a matter collateral to and apart from the affirmative acts of defendants below in violating the contract. While the formation of such combination might have furnished a reason for the breach, such cause could not be inquired into in an action for damages resulting from it. The cause or motive was not the foundation of the right of action. (National Distilling Co. v. Cream City Importing Co., 86 Wis. 352, 56 N. W. 864.)
It follows from this that no recovery could be had for attorneys’ fees, and that evidence concerning the motives which induced the defendants below to violate their agreement to deliver ice was improperly received. The inquiry should have been confined solely to the amount of damages suffered by the plaintiffs below by a failure to receive the quantities of ice which the company agreed to furnish during the season.
The trial court gave the following instruction to the jury:
“You are instructed that, if you find from the evidence that the plaintiffs sold ice to joint-keepers to be used in connection with the business of selling beer, whisky, or wines, or any other intoxicating liquors, and that they, or either of them, expected after May 1, 1898, to sell ice to joint-keepers to be used in connection with their business as aforesaid, with the knowledge of the use of such ice in said business, and the same was to be out of ice which they allege the Crystal Ice Company agreed to furnish them, then said business of furnishing such ice to such joint-keepers was tainted with illegality, and they cannot recover in this action, for any such ice they intended or expected to sell or would have sold to said joint-keepers.”
We do not think it concerned the defendants below what disposition the plaintiffs would have made of the ice. The contract to furnish and receive it, made between the parties to this action, was in no manner tainted with illegality.' The commodity contracted about was a legitimate article of commerce.
“One party to the action, when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to himself nor to his injury, and not necessarily connected with, or leading to, or causing or producing the wrongful act complained of.” (Button v. The Town of Wauwatosa, 29 Wis. 21, 26, 9 Am. Rep. 534.)
The defendants below cannot excuse themselves and obtain immunity from their own wrongful acts by showing that the plaintiffs might have been guilty of some other and independent wrong or violation of law had the ice been delivered to them. The agreement between the parties to this action contained nothing to the effect that the ice contracted to be delivered was to be used for illegal purposes. To support their action for damages the plaintiffs below alleged the breach of a contract, lawful in all respects. (Waters v. Railroad, 110 N. C. 338, 14 S. E. 802, 16 L. R. A. 834; Gray v. W. U. Telegraph Co., 87 Ga. 350, 13 S. E. 562, 14 L. R. A. 95; Hardy v. Stonebraker, 31 Wis. 640.)
Assume that plaintiffs below at the time the contract was made had paid the ice company in advance for all the ice they needed during the summer. Upon failure of the company to deliver the ice, could it, when sued for a return of the money paid, defend on the ground that the Wylies intended to sell the ice for unlawful purposes? Certainly not. In this case the contemplated illegal acts of the plaintiffs below had no relation to the obligation of the ice company to perform its contract. (Wood v. Erie Rail- way Company, 72 N. Y. 196-200, 20 Am. Rep. 125.) In the case cited it was said:
“A wrong-doer is not protected in the invasion of the rights of another, because such a party happens to be transacting business in violation of a special statute.”
The court further instructed the jury that the plaintiffs below might recover damages sustained by them in purchasing materials to be used in carrying on the ice business, said damages being limited to the difference in value of the property bought after the contract to furnish ice was entered into and the value of the same at the time the contract was violated. We think that if the plaintiffs below recover the profits lost they are lully compensated. If the contract had Ijeen carried out the gain would have been the profits of the business for the season. In that case the material, wagons, etc., would have been on hand. The procuring of wagons, harness, etc., to handle the ice should be treated as an investment made in the business out of which the profits were to come. (Fontaine v. Baxley, 90 Ga. 416, 17 S. E. 1015.)
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-14,
-6,
-8,
-83,
10,
96,
58,
-37,
69,
-95,
55,
87,
-23,
87,
12,
107,
-19,
123,
80,
106,
84,
-93,
31,
2,
-42,
-45,
-13,
-63,
-79,
-49,
-43,
-36,
76,
48,
-62,
-43,
-18,
-117,
-43,
-36,
66,
36,
40,
-23,
-11,
2,
52,
27,
118,
74,
97,
-116,
-29,
38,
25,
71,
-87,
40,
-21,
61,
-15,
-16,
-88,
13,
125,
22,
-79,
54,
-68,
69,
-56,
14,
-112,
49,
9,
-24,
114,
-74,
-126,
116,
13,
25,
13,
98,
98,
0,
25,
-17,
76,
-36,
55,
-1,
-99,
-90,
85,
88,
-117,
65,
-65,
-99,
52,
16,
-89,
74,
-10,
21,
-97,
100,
7,
-125,
-10,
-15,
-113,
-26,
-106,
3,
-50,
-126,
18,
112,
-49,
-88,
92,
69,
123,
-101,
-113,
-101
]
|
The opinion of the court was delivered by
Smith, J. :
The El Capitan Land and Cattle Company, a corporation, sold cattle to C. T. and C. L. Bradley, and took from them a note for $11,315.50 in payment therefor. The note was made payable to J. A. Hocket, an employee of the plaintiff in error, who had no interest in it. Payment of the note was afterward guaranteed by Hocket and the El Capitan com pany, and it was turned over to the Zeb. F. Crider Commission Company. The note was secured by a chattel mortgage executed by the Bradleys on 409 head of cattle. M. E. Richardson was president of the plaintiff in error corporation, defendant below.
While the note was held by the Zeb. P. Crider Commission Company it made the following agreement in writing, which was delivered to one of the officers of the El Capitan company, to wit: .
“Sterling, Kan., January 25, 1899.
“Whereas, we hold notes or proceeds of-notes belonging to-the El Capitan Land and Cattle Co., as follows, viz. : C. L. and C. T. Bradley for the amount of $11,315.50, and A. D. Martin note for $14,411, and G. A. Butler note $2420', on which we were to retain, by order of Mr. M. E. Richardson, $5285.40, which was for his individual use : now, it is agreed as follows : We are to return to said company the note of G. A. Butler at once, but we are to retain»the Bradley and Martin notes .until the indebtedness owing our company by M. E. Richardson and' Sam Haston is liquidated and paid ; when, upon the payment of the amount of the indebtedness of M. E. Richardson, viz., $5285.40, we will return said notes, if unpaid, at that, time, and, if paid, the money to be returned in place of said notes ; and we will agree to advance the money now advanced by the El Capitan company for providing feed, and, also, any more money that may be required to purchase more feed to carry them through the winter. Zeb. P. Crider Com. Co.
Per Zeb. P. Crider, Pt.”
After a sale of the cattle mortgaged to secure the payment of the note sued .on, and after deducting $5285,.40, the amount owing by M. E. Richardson individually to thé Zeb. F. Crider Commission Company, there remained a balance of $3449.65. The note was then assigned and delivered by the commission company to the plaintiff below, the Boston-Kansas City Cattle Loan Company. It is not claimed that the latter was an innocent purchaser for value before maturity, There- were verdict and judgment against the El Capitan Land and Cattle Company in the court below.
This statement of facts is sufficient to present the single legal question involved. It is this : May the officers of a corporation make a contract binding on the company by which its property is diverted from the use and benefit of' the corporation and applied to the payment of the individual debt of its president ? It is a fundamental principle that the officers and directors of a corporation are trustees for its stockholders. (Sargent v. K. M. Rld. Co., 48 Kan. 672, 29 Pac. 1063.) This fiduciary relation forbids the doing of any act by them by which' the corporate assets are applied to any use except such as may serve the purpose of the corporation. It is as much beyond the power of the officers or directors of a corporation to pledge its property to secure the personal debt of its president as it is to use it in pledge for the payment of the obligation of a total stranger. In either case the stockholders are equally wronged. Section 1285 of the General Statutes of 1901 provides:
“No corporation created under the provisions of this act shall employ its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation.”
The El Capitan Land and Cattle Company, at the time it turned over the Bradley note to the Zeb. F. Crider Commission Company, did not owe the latter anything. The transaction was had purely for the accommodation of M. E. Richardson, president of the plaintiff in error company, and, in legal effect, did not' differ from a lending of the credit of the corporation by an indorsement or guaranty by plaintiff in error of Richardson’s personal note. In 7 A. & E. Encycl. of L. (2d ed.) 798,' it is said:
“A corporation, as has been seen, may issue and indorse negotiable bills and notes whenever it is necessary or usual in the course of its authorized business ; but by the overwhelming weight of authority, a corporation has no power to issue or indorse, for the accommodation of others, bills or notes in which it has no interest, unless, as is seldom if ever the case, such power is expressly conferred.” ( See, also, Rahm v. Bridge Manufactory, 16 Kan. 277; Ryan v. Leavenworth, A. & N. W. Ry. Co. et al., 21 id. 365 ; 4 Thomp. Corp. §§4637, 5739.)
Counsel for plaintiff in error tendered to the court requests for instructions to the jury in effect that a pledge of notes belonging to the company to secure the payment of "Richardson’s debt did not bind the corporation, which requests were refused. In this the court erred.
The judgment of the court below will be reversed and a new trial ordered.
, Doster,, C. J., Pollock, J., concurring. | [
114,
126,
48,
-83,
58,
112,
40,
-102,
77,
-88,
-73,
83,
-51,
66,
20,
101,
-27,
45,
65,
106,
-10,
-77,
5,
97,
-46,
-13,
-15,
-99,
-79,
92,
-82,
-44,
77,
52,
-118,
-99,
-26,
-10,
-55,
20,
-50,
-123,
-87,
-28,
-3,
8,
52,
43,
50,
75,
65,
-97,
-13,
40,
29,
-45,
45,
44,
-1,
45,
-48,
-8,
-70,
-116,
95,
22,
19,
66,
-34,
7,
-40,
46,
-112,
49,
9,
-56,
122,
-74,
-122,
84,
109,
-87,
8,
50,
98,
16,
-35,
-17,
88,
-104,
46,
-6,
13,
-90,
20,
88,
26,
96,
-66,
-99,
-88,
0,
-121,
118,
-14,
5,
-100,
104,
3,
-101,
-106,
-94,
-113,
120,
-100,
27,
-5,
-89,
33,
112,
-51,
-94,
93,
69,
122,
17,
-114,
-48
]
|
The opinion of the court was delivered by
Greene, J.:
The plaintiff in error sued the defendant in error in the court below. In the petition he alleged that it was a banking corporation engaged in loaning money and receiving deposits; that on September 25, 1900, he secured from it a loan of $892, and executed his promissory note and chattel mortgage securing its payment, and thereupon the bank delivered to him a deposit slip showing that he had deposited therein $892. The petition also alleged that the plaintiff had purchased certain cattle at an agreed price of $900, and had informed the bank that the money which he had. caused to be placed to his credit was. to be used in payment therefor, and the bank agreed to remit said sum of $892 to the bank at Abilene, to be deposited to the credit of George Kleopfer in payment of said cattle; that thereafter the bank refused to make such remittance, and refused, upon demand' of plaintiff, to pay to him the amount of money so deposited; that by reason of such neglect he was unable to retain the possession of the cattle so purchased and was compelled to redeliver them to said George Kleopfer, and was thereby damaged in the difference between the agreed purchase-price and the actual value of the cattle. To this petition the defendant below demurred, which demurrer was sustained. Prom this ruling the plaintiff prosecutes error.
It is argued that the demurrer was properly sustained, because the money so deposited was for the benefit of George Kleopfer, and the refusal of the defendant to remit to George Kleopfer, or to pay the money to Henry Kleopfer, did not result in any damage to Henry Kleopfer. The second reason assigned for sustaining the demurrer was that there were no allegations in the petition showing that the plaintiff sustained any damage for which he could recover.
The petition fairly showed that Henry Kleopfer had on deposit in the bank $892, subject to check or order. It was the duty of the bank to pay it out upon the check or order of the depositor. This it refused to do. It violated its contract and is liable- at least for nominal damages. The law implies nominal damages for every tort and the breach of every contract.
A third reason assigned is that, if the plaintiff gave his note and mortgage to the defendant, and the defendant expressly or impliedly agreed to pay the plaintiff the amount of money evidenced by the note and mortgage, but refused to do .so upon demand, a cause of action would have at once accrued for the breach, and the plaintiff could have maintained an action for his damages, which would be the amount due, with interest. To avoid this admitted liability, however, it is contended that the petition shows a settlement between the plaintiff and the bank and that the promissory note and chattel mortgage were by the bank released, canceled, and surrendered, and, therefore, there was nothing upon which plaintiff could recover. This is not a fair interpretation of the petition. The allegation is: “That the promissory note and chattel mortgage referred to in paragraph 4 of this amended petition were by the defendant surrendered, released and canceled on this the 17th day of October, a. d. 1900.” There is no allegation that this was accepted a-s a settlement of plaintiff’s damage. Whether the payment of interest is the measure of the liability of a bank for the non-payment of money to its depositor depends entirely upon the circumstances of each particular case. In Johnson v. Mathews, 5 Kan. 118, 122, the court said:
“A party is always entitled to recover, on the breach of a contract, such damages as are the natural, direct and proximate result of such breach ; and he is also entitled to recover such other damages as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
It is said in Sutherland on Damages, section 77:
“Where the obligation to pay money is special and has reference to other objects than the mere discharge of a debt, as where it is agreed to be done to facilitate trade, and to maintain the credit of the promisee in a foreign country; to take up commercial paper; pay taxes ; discharge liens; relieve sureties; or for any other supposable ulterior object, damages beyond interest for delay of payment, according to the actual injury, may be recovered. A banker may be liable for damages not measured by. interest for refusing to pay the check of his customer who has provided funds subject thei’eto.” (American Nat. Bank v. Morey, 69. S. W. [Ky.] 759.)
Since the petition did not state facts from which it could be determined that the defendant knew that if it failed to keep its contract plaintiff would be unable to retain the possession of the cattle so purchased, and thereby deprived of the profits of his pux’chase, the loss of profit cannot be an item of damage, not having been in the contemplation of both parties at the time they made the contract as the probable result of a breach of it.
The judgment of the court below is therefore reversed, and the cause remanded with instructions to ovei'rule the demurrer to the petition.
All the Justices concurring. | [
112,
110,
-111,
-113,
10,
96,
42,
-118,
69,
-95,
39,
83,
-23,
-42,
4,
125,
-25,
61,
117,
104,
-10,
-77,
7,
64,
-46,
-78,
-15,
-43,
-79,
111,
-26,
-43,
13,
18,
-54,
-43,
-26,
66,
-63,
-44,
-114,
-124,
41,
-27,
-7,
-64,
48,
125,
84,
74,
97,
-81,
-13,
42,
61,
75,
-23,
44,
121,
61,
-32,
-79,
-113,
-123,
127,
7,
17,
71,
-102,
5,
-38,
46,
-104,
49,
17,
-24,
122,
-74,
-122,
84,
111,
-103,
13,
98,
98,
48,
53,
-51,
-104,
-120,
47,
-98,
-115,
-90,
-112,
72,
-125,
36,
-74,
-99,
44,
6,
7,
-12,
-2,
-100,
27,
-20,
7,
-113,
-108,
-13,
-81,
124,
-102,
91,
-9,
-93,
-79,
113,
-50,
-94,
92,
71,
122,
-101,
-114,
-39
]
|
Error from Shawnee district court. | [
-110,
108,
-19,
92,
-116,
65,
1,
14,
83,
-111,
114,
83,
-49,
-58,
20,
123,
66,
111,
48,
120,
-59,
-73,
59,
96,
-10,
-5,
-15,
85,
-75,
109,
-4,
-42,
76,
112,
-118,
-97,
70,
0,
-81,
92,
-116,
6,
-119,
93,
83,
41,
60,
125,
90,
3,
49,
46,
-13,
44,
58,
99,
-24,
44,
77,
99,
-53,
-45,
-13,
-123,
126,
22,
-95,
20,
-106,
14,
88,
-86,
-112,
53,
0,
-68,
-13,
54,
-122,
-9,
13,
-103,
37,
-18,
98,
33,
12,
-17,
-68,
-84,
46,
90,
29,
-90,
-109,
9,
107,
-115,
-74,
-67,
100,
86,
79,
-6,
103,
4,
29,
40,
-125,
-50,
-80,
-101,
-113,
32,
-116,
-101,
-1,
6,
48,
113,
-55,
-28,
92,
-58,
16,
-101,
-34,
-70
]
|
The opinion of the court was- delivered by
Doster, O. J.:
This was an action in debt to recover the amount of a lumber bill. The plaintiff alleged in its petition as follows :
“That it is and was at all the times hereinafter stated a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Texas.”
The defendants demurred to the petition for the reason that it showed on its face a lack of legal capacity to sue. The demurrer was overruled, atrial had, and judgment rendered for plaintiff. Proper objections to the sufficiency of plaintiff’s evidence were made and overruled. The defendants have prosecuted error .to this court.
The ground of the demurrer to the petition was that the pleading showed the plaintiff to be a foreign corporation and failed to show that it had complied .with the requirements of chapter 10, Laws of 1898, the last provision of section 12 of which act reads as follows:
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state, that the státements provided for in this section have been properly made.” (Gen. Stat. 1901, §1283.)
The above-mentioned act has been held to apply to foreign as well as domestic corporations. (The State v. Book Co., post, 69 Pac. 563.)
The demurrer was not well taken. The petition did not show on its face that the plaintiff lacked legal capacity to sue. It did not show anything on the subject, and, as against a demurrer, it did not need to make such showing, because demurrers to petitions will only lie when the defect affirmatively appears on the face of such pleadings.
“But this point cannot be raised by a demurrer, upon the ground that the complaint shows on its face that the plaintiff has no capacity to sue, for the complaint does not show anything of the kind. The most that can be said is that the complaint fails to show that the plaintiff has been invested with power to sue, but such omission affords no ground for demurrer, as it is based upon a defect (if defect it be) in the complajnt, and not upon what it shows on its face. The code, in section 165, allows a demurrer only when it appears upon the face of the complaint ‘that the plaintiff has not legal capacity to sue,’ and, as that does not appear upon the face of the com-plaint in this case, it is clear that the demurrer cannot be sustained on the first ground, as the code does not provide for a demurrer on the ground of any omission in the complaint, except an omission to state facts sufficient to constitute a cause of action.”
( Cone Company v. Poole, 41 S. C. 70, 24 L. R. A. 289.)
The answer in the case alleged that the plaintiff had not complied with the statute before quoted by obtaining the certificate therein mentioned. There was no evidence whether it had made'such compliance. If the burden rested on plaintiff to make such showing, and it failing, as it did, to. make it, judgment should not have been rendered in its favor, and the defendants’ motion for new trial should have been sustained. However, such burden did not rest on plaintiff. It is true that the filing of the statements and the performance of the other acts required by the statute before mentioned, including the procurement of the certificate, are conditions prerequisite to the doing of business ; they constitute a license to do business ; but, inasmuch as the statements filed and acts performed are made and kept of record in a public office, and but one public office, that of the secretary of state, they are as accessible to one person as another, and, therefore, whoever asserts they have not been filed or performed takes on himself the burden of proving such negative fact. The case is fully within the exception to the rule laid down in The State v. Wilson, 62 Kan. 621, 64 Pac. 23, 52 L. R. A. 679, in stating which exception, as applied to the character of case then under consideration, it was said :
“In' other words, where evidence to prove the negative averment is not peculiarly within the knowledge of the defendant, but is also within the knowledge and control of, or, upon reasonable effort and by the exercise of proper diligence, may be secured by, the state, then •the prosecution is bound to produce such evidence, and, failing to do so, the defendant ought to be acquitted.”
The above considerations obviate the necessity of determining what is a doing of business in this, state by a corporation of another state engaged in interstate trade.
The judgment of the court below is affirmed.
All the Justices concurring. | [
-78,
126,
-39,
-84,
-85,
96,
34,
-102,
89,
-93,
39,
-9,
-23,
-62,
-128,
117,
-15,
41,
81,
26,
94,
-78,
3,
-30,
-42,
-109,
-55,
-107,
48,
74,
-19,
93,
76,
48,
-54,
-43,
103,
-126,
-59,
28,
78,
4,
25,
77,
-7,
-120,
48,
-55,
116,
11,
113,
-116,
115,
40,
25,
-53,
43,
45,
-3,
-71,
-64,
-72,
-102,
29,
95,
23,
33,
86,
-104,
7,
74,
46,
-128,
-71,
19,
-20,
51,
-74,
-122,
116,
43,
-103,
41,
114,
99,
3,
5,
-25,
-34,
-88,
38,
-5,
-99,
-90,
-112,
24,
11,
41,
-73,
-99,
60,
4,
7,
118,
-2,
21,
-103,
108,
7,
-113,
-10,
-77,
-65,
102,
26,
19,
-18,
-93,
16,
117,
-60,
-14,
92,
71,
25,
27,
-114,
-40
]
|
Error from Labette District court. | [
-14,
-4,
-71,
-2,
-114,
-95,
0,
-118,
65,
-109,
34,
87,
-19,
-106,
20,
107,
34,
61,
53,
122,
73,
-74,
51,
-31,
86,
-37,
-53,
-43,
-75,
109,
-12,
-128,
94,
48,
-117,
87,
71,
-124,
-83,
92,
-50,
7,
13,
-4,
-37,
107,
56,
33,
30,
44,
113,
-18,
-13,
42,
-70,
99,
-87,
44,
93,
49,
-23,
-15,
-6,
5,
61,
7,
-95,
20,
-109,
4,
-40,
42,
-108,
49,
-126,
-8,
54,
-106,
-121,
85,
9,
59,
-115,
96,
98,
65,
9,
-49,
-72,
-88,
6,
126,
25,
-90,
-105,
45,
105,
-114,
-106,
-75,
116,
86,
102,
126,
101,
-60,
25,
92,
-125,
-18,
-16,
-111,
-50,
-12,
-124,
-55,
-1,
-122,
54,
81,
-35,
-108,
92,
-57,
24,
27,
-50,
-69
]
|
The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Greenwood county by Archie Kinman against the St. Louis & San Francisco Railway Company, under the act of 1874 relating to the killing of stock by railroad companies. (Gen. Stat. 1889, ¶¶1251-1256.) While it appears that the defendant’s railway in the present case was inclosed with a good and lawful fence, yet it would seem that the plaintiff had a private crossing over the defendant’s right-of-way, and that a gate for the benefit of the plaintiff was placed by the railway company in one of the fences at this crossing; and the only wrong or negligence charged against the railway company was that the gate was not provided with a sufficient fastening, and that by reason thereof the plaintiff’s stock in some manner passed through the gate and upon the defendant’s right-of-way, where four of them were killed and four injured by the defendant in the operation of its railway. Whatever defect there was, however, with reference to the gate, was known by the plaintiff, and the jury so found; but how the gate came to be open, or how long it had been open when the cattle passed through the same, is not shown. No one seems to have known anything about it, and the jury could not tell. Nor did any one see the cattle pass from the plaintiff’s field onto the defendant’s right-of-way. The jury found a general verdict in favor of the plaintiff and against .the defendant, and assessed.the plaintiff’s damages at $119, and found a reasonable attorney’s fee to be $50, and also made special findings of fact; and the court rendered judgment in accordance with the general verdict for the damages assessed and the attorney’s fee; and the defendant, as plaintiff in error, brings the case to this court for review.
Among the errors assigned are errors of the court below in the admission of evidence. Under the statute above referred to, before an action of this kind can be properly instituted, it is necessary that the plaintiff should first demand payment of the railway company for his killed or injured stock; and this demand should be made upon some proper agent of the railway company. Sections 2 and 3 of the act read as follows:
“Sec. 2. In case such railway company or corporation, or the assignee or lessee thereof, shall fail for 30 days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney’s fee for the prosecution of the suit, and all costs, in any court of competent jurisdiction in the county in which such animal was killed or wounded.
“Seo. 3. The demand mentioned in section 2 of this act may be made of any ticket agent or station agent of such railway company or corporation, or the assignee or lessee thereof.” (Gen. Stat. of 1889, ¶¶1253, 1254.)
It will be seen that under this statute the demand may be made upon any ticket agent or station agent of the railway company; and upon general principles we think it could also be made upon any agent of the railway company having authority to collect or settle such claims; and one of the material questions involved in this case is, whether the plaintiff made any such demand before commencing this action. The only evidence upon this subject reads as follows:
“ Q,ues. State if you had any conversation with the station agent, claim agent, or any of the agents of the defendant, about the killing of this stock. Ans. I did.
“Q,. Now state what that conversation was concerning the killing of this stock. A. I had a conversation with Mr. Spellman; I believe he introduced himself as the company’s agent, from Wichita.
“Q,. Spaulding, was it not? A. Spellman or Spaulding —some such a name; he claimed to be the company’s agent, from Wichita; he came out to see me there about the matter, and I tried to settle with him.
“Q,. State what he said and what you said. Just go on and state what was said right there. A. Well, he proposed settling with me.
“Q. You just state whether the claim agent was there — came there — and talked with you about the payment of the damages that you had sustained by the killing of those animals and the crippling of them. A. He said that it was his business to settle with me, and he came there to see if we could settle.
“Q,. Now, you may state if you told him the amount of money you wanted his company to pay you for the damage and killing of your critters, that you have brought this action for. A. I did.
“Q. You may state what you told him — just tell the jury the amount that you told him you wa’s damaged and that you wanted him to pay you for. A. I told him the damage was $119.
“Q,. You told him you wanted your pay? A. Yes, sir, I did.”
Proper objections and exceptions were taken to all this evidence. It would seem to us that all this evidence was incompetent, and that it was not shown that any proper demand was ever made by the plaintiff upon any proper agent of the railway company. What kind of an agent “Spell-man” or “Spaulding” or the man with “some such name” was, is not shown. Indeed, it is not shown by any competent evidence that he was any kind of an agent of the railway company at all. The first question above quoted was to ascertain whether the witness ever “had any conversation with the station agent, claim agent, or any of the agents of the defendant” about the killing of the stock. The witness answered that he had; but what kind of an agent did he have the conversation with ? Was it an agent to procure ice, or water, or lights, or some other kind of an agent ? But the witness does not even know that he was an agent at all, except that “Spellman,” or “Spaulding,” or whatever his name might have been, “introduced himself as the company’s agent, from Wichita.” This was not sufficient. “Agency cannot be proved by proof of the oral declarations of the supposed agent himself.” (Mo. Pac. Rly. Co. v. Stultz, 31 Kas. 752; French v. Wade, 35 id. 391.) And without proof of a proper demand upon a proper agent of the company, of course the plaintiff cannot maintain his action. Such an action could not be maintained at common law at all; and it can be maintained under the statute only by a substantial compliance with the statute. It does not appear from any competent evidence in this case that the statute has been complied with on the part of the plaintiff below. The court below erred in admitting the foregoing testimony.
Several other questions are presented by counsel for plaintiff in error, defendant below, but we do not think that it is necessary to consider them.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-16,
124,
-99,
-115,
42,
106,
42,
-40,
67,
-93,
-91,
-45,
-115,
67,
17,
99,
-26,
-67,
81,
43,
86,
-77,
7,
-29,
-109,
-13,
-13,
-51,
49,
106,
-28,
-41,
77,
32,
74,
21,
-26,
-32,
65,
94,
-50,
46,
-85,
-19,
75,
112,
52,
123,
22,
78,
53,
-34,
-21,
46,
28,
-45,
41,
40,
-5,
45,
-79,
-7,
-94,
71,
119,
2,
-93,
6,
-100,
35,
-56,
62,
-104,
53,
1,
-8,
115,
-90,
-122,
116,
97,
-103,
8,
102,
103,
33,
93,
-49,
108,
-104,
47,
121,
-115,
-90,
4,
24,
11,
5,
-106,
-99,
80,
82,
-121,
-2,
-17,
12,
25,
60,
3,
-118,
-78,
-77,
-17,
36,
-112,
7,
-53,
-91,
51,
97,
-49,
-86,
93,
69,
48,
-101,
-113,
-74
]
|
The opinion of the court was delivered by
Horton, C. J.
It is contended upon the part of the railway company that Moore is not entitled to recover, because the special findings of the jury show that there was no negligence in any of the oth,er employee of the company; further,, because Moore voluntarily and without objection undertook to perform the work in which he was engaged, in the manner it was done, with full knowledge of all danger and risk, and that he was guilty of contributory negligence. Moore, in his petition, alleged that on December 8, 1886, the railway company had a material yard at Arkansas City, in this state; that he was employed there in loading and unloading-upon railroad cars steel rails, etc.; that the company negligently failed to have a sufficient number of competent laborers to perform the work required; that it employed unskillful and incompetent laborers; that it failed to provide a sufficient number of cars to enable the work to be carried on with safety ; that the foreman of the company negligently omitted to give proper supervision in the loading and unloading of steel rails, etc., and that the empl.oyés of the railway company, other than Moore, carelessly and negligently performed their work and labor, so that a steel rail weighing 560 pounds was thrown and fell with great force upon the foot and ankle of Moore, greatly injuring the same. The answer contained a general denial, and alleged that the negligence was the result of inevitable accident and want of care on the part of Moore.
From the evidence of Moore, it appeared that some two- months prior to the accident he was employed by the railway company in its material yard at Arkansas City, this material yard being used as a place to receive and forward materials along the line in the construction of the railroad. Most of the time he was engaged in loading and unloading steel rails from one car to another, but when not engaged in this, he, with other men, was required to do whatever other work they might be put to. Eails would come into this yard loaded on cars, and would have to be unloaded and placed upon flat cars to be taken out on the line of the road. Prior to the accident, the general method adopted was as follows: Two flat' cars adjoining each other would be placed next to the car which contained the rails intended to be unloaded* What was known as a “dolly,” consisting of a round iron eight inches through and resting in a frame, would be placed at the end of the flat car adjoining the stock car, or other car containing the rails. Two or three men would lift an end of the rail from the stock car and place it on this dolly. A hook attached to a rope would be hooked in the hole of the bolt near the eñd of the rail, and six men would take hold of this rope and pull the rail along until the other end reached the dolly. This rope was about 10 feet long. The rails were about the length of a flat car, that is, 30 feet, so that in doing this work it would be necessary to run upon the adjoining flat car, and when the rail was pulled nearly off the dolly, one end of it would rest upon the flat car and the other end upon the dolly. A man at the dolly, with a steel fork, would turn the rail over and off the dolly, letting it drop upon the bottom of the flat car. This dolly was some 8 or 10 inches in height. On the day of the accident, two empty flat cars were run together. At the north and south ends of these two cars, two other cars, one being a coal car and the other a stock car, both loaded with rails, were placed. A gang of men was set to work to unload the rails in the same manner from the stock car onto the flat car adjoining it. Moore, with a gang of men, consisting of the same number as had always been employed, was set to work to unload the steel rails from the coal ear onto the flat car adjoining it. The difference in the method of doing the work on the day in question from the way in which it had been done prior thereto was, that the respective gangs would have to run upon the other cars which were being loaded; that is, Moore and a gang would have to go a short distance on the adjoining flat car, which was at the same time being loaded by another gang with steel rails, and the other gang in their turn, would have to go upon the flat ear which was being loaded by the plaintiff and his gang. After they had been working some little time, Moore, with a gang, started to run a rail onto the flat car, and had proceeded onto the other car, just at the time when the man at the dolly on the other car was turning the rail over in order to let it drop from the dolly. ' The rail dropped off the dolly, rolled, and struck plaintiff’s foot and nearly cut his big toe off at the front joint, and also smashed the toe next to it, and otherwise injured his foot. The men on the other car had gone back, and the man at the dolly was in the act of throwing a rail over, when Moore got on the car. He was near the middle of the car when it fell on him.
Moore testified, among other things, that —
“ Ques. When you were standing over there, some of the parties, whose business it was to do that, turned the rail over? Ans. We were not standing, we were running.
“Q,. How far had you got when this rail rolled onto you? A. I don’t know; I was running; when it fell upon my foot I didn’t think about measuring the distance; I was far enough so I saw the north end of their rail was upon the car, was down on the car; the south end was up I suppose eight inches, maybe ten — I judge eight inches; that was far enough so that when it fell over it fell and kind of rolled and the ball struck my ankle here; the rail was that high where I was.
“Q,. As high as your ankle? A. Yes, sir.
“Q. You knew how these rails run out there? A. Yes, sir.
“Q. You had been working at that for some time? A. Yes, sir.
“Q,. You knew all about it, how they shifted the cars to load on these flats? A. Yes, sir.
“Q,. You knew they came out upon the car, and one end would be down on the car and the other on the dolly? A. Yes, sir.
“Q,. You knew when that was done some one would go and turn it over to its place? A. I knew it would be done; I knew it should have been done before we got there. When we got our rail started we could n’t stop and they knew it, consequently they should not have turned their rail until we got stopped and got off.
“ Q,. Did you see them there before you started with your rail? A. I suppose I did.
“Q,. Then why did you start with your rail the time you saw them there? A. Why does a man do anything working for a foreman when he tells you to do it?
“Q. Was there a foreman there? Was George Brown there? A. If he was not, he should have been.
“Q,. Didn’t you state a while ago that Brown was not there when you received your injuries? A. No, sir; I said I was not certain whether he was right there at the time or not.
“Q. I will ask you, if you saw them there before you started, which you say you did, why did you start that rail the time you did until they got away? A. I was not running the steel gang myself.
“Q. You were running the steel? A. I was helping.
“Q. You were one that helped to run the steel; when you saw them at the place they were putting the rail down, why did you start when they were supposed to be at the other end when you started? A. I don’t know why; if I didn’t, somebody else would; if I had refused to go with the rest of the gang they would have got somebody in my place.
“Q. You knew they would turn the steel over the way they did? A. I knew they would do it; I thought they would wait until we got out of the way of it.
“ Q. When was it they turned the steel over; how far on the car did you get? A. I.do n’t know just how far I had got; one end of the rail was on the car, the other end, I suppose, was eight inches up; the dolly, I expect, was near the end of the rail, within three or four feet; the rails are 30 feet long; I got far enough so that when the rail fell the ball struck me on the ankle.”
The jury made the following special findings of fact:
“Q. Was the defendant guilty of negligence? If so, in what did it consist? State fully. A. Yes; by unloading on curve; by lack of flat car, and absence of boss.
“Q,. Were any of the employés of the defendant guilty of ■ negligence? If so, who, and in what did it consist? A. No.”
The special findings of fact of the jury show that none of the employés of the railway company were guilty of negligence. Of course, if none of the employés of the company were guilty of negligence, Moore is not entitled to any recovery. A railway company, in the operation of its road, and in carrying on its work, can only act through its agents or employés. (Insurance Co. v. Munger, ante, p. 178.) If the agents or employés were not negligent, the company was not negligent. But if, as claimed by Moore, the jury intended to only find that none of his fellow-servants or co-employés were negligent, it is equally conclusive, considering the statements of Moore, testified to by him upon the trial, that no liability was established against the company. This court has decided several times that —
“While it is the duty of an employer, whether a railroad company or other corporation or person, to make the work of his or its employés as safe as is reasonably practicable, yet when the employé, with full knowledge of all the dangers incident to or connected with the employment as it is conducted, accepts the employment, or, having accepted the same, continues in it with such full knowledge, and without any promise on the part of the employer, or any reason to expect on the part of the employé, that the employment will be made less dangerous, the employé assumes all the risk and hazards of the employment.” (A. T. & S. F. Rld. Co. v. Schroeder, 47 Kas. 315; Rush v. Mo. Pac. Rly. Co., 36 id. 129; Clark v. Mo. Pac. Rly. Co., 48 id. 654; 29 Pac. Rep. 1133.)
Moore knew that the steel rails were being unloaded on a curve; he knew of the lack of a flat car and of the absence of the boss; he, therefore, had full knowledge of all the risks and hazards of his employment. As the jury found that the employés of the railway company, or, as this finding is inter preted by tbe plaintiff below, the co-employés of the company, were not guilty of any negligence, if Moore, knowing the dangerous character of the work, undertook the same, although unwillingly, for fear of losing his employment, and was injured, he has no cause of action. (See cases above cited, and Leary v. B. & A. Rld. Co., 139 Mass. 580; Coyne v. U. P. Rly. Co., 133 U. S. 370; Aerkfetz v. Humphreys, 145 id. 418.)
In view of the findings of the jury and the evidence of Moore, the judgment of the district court must be reversed, and the cause remanded, with direction to the court below to render judgment for the railway company.
All the Justices concurring. | [
48,
120,
-36,
-100,
58,
-30,
42,
26,
85,
-92,
-91,
83,
-83,
-121,
20,
59,
-30,
95,
-44,
43,
-10,
-109,
7,
-21,
-45,
-109,
115,
-123,
-111,
74,
-28,
-42,
76,
48,
-50,
21,
103,
72,
69,
88,
-50,
37,
-117,
-24,
57,
88,
48,
122,
52,
79,
17,
-98,
-5,
42,
24,
-61,
105,
40,
107,
56,
-64,
-7,
-118,
-123,
103,
4,
-93,
4,
-98,
-95,
-8,
25,
-104,
49,
16,
-4,
115,
-92,
-121,
-12,
105,
-103,
9,
98,
99,
33,
29,
-25,
104,
-120,
63,
-66,
-115,
-92,
62,
57,
99,
71,
-97,
-35,
43,
18,
-108,
-2,
-25,
13,
88,
100,
-127,
-113,
-80,
-63,
-49,
44,
-106,
123,
-53,
-127,
22,
101,
-36,
-94,
93,
5,
83,
-101,
-97,
-98
]
|
Opinion by
Stbang, C.:
February 28,1888, the Rock Island Lumber and Manufacturing Company obtained judgment for $565.83, against the plaintiff, Jane T. Sexton, and also a foreclosure of a mechanic’s lien. Afterward two motions were filed by the plaintiff to set aside and vacate said judgment. Upon both of these motions evidence and arguments of counsel were heard, after which they were overruled. On the 15th of May following, the plaintiff filed her petition in the court to vacate and modify said judgment, and at the same time procured a restraining order to issue, enjoining said company, its agents and servants, and the sheriff of the county, to refrain from selling the plaintiff’s property on said judgment. The defendant filed a motion to dissolve the restraining order, and the plaintiff a motion for a temporary injunction. These motions were heard at the same time. The motion to dissolve was overruled, and the temporary injunction was allowed. Afterward the injunction proceeding was heard on its merits and dissolved, and from such judgment of the court the plaintiff comes here for error. In the case of the Rock Island Lumber and Manufacturing Company against Jane T. Sexton and others, for the recovery of a judgment for the lumber sold by said company that went into the house of said Jane T. Sexton, and for a foreclosure of a mechanic’s lien against said house, the sheriff’s return of service on the summons, so far as it relates to the plaintiff in error, is as follows:
“Received this writ this 4th day of November, 1887, at 1 o’clock p.m., and, as commanded by the writ, I summoned the within-named Jane T. Sexton by leaving a certified copy of the within summons and the indorsements thereon at the usual place of residence on the 5th day of November, 1887.”
Jane T. Sexton made no appearance in answer to said summons, and judgment was taken against her by default Febru ary 28, 1888. March 7, 1888, the plaintiff in error filed a motion to set aside and vacate the judgment so rendered as aforesaid, for the reason that the return of the sheriff does not show that the service of the summons in the case was ever had on Jane T. Sexton. That motion was heard and by the court overruled. Was such return of service sufficient? It was not as complete as it might have been, but was it a substantial compliance with the statute? The sheriff in his return says: “ I summoned the within-named Jane T. Sexton by leaving a certified copy of the within summons and the indorsements thereon at the usual place of residence.” If the sheriff had said her usual place of residence, the return would have been complete. What does this return of the officer import? It conveys the idea at least that the copy of the summons was left at the usual residence of some person. Whose residence? At whose residence is a copy of the summons to be left, when it is served by leaving a copy at the usual place of residence? At the residence of the party to be summoned. Jane T. Sexton was the party to be summoned in this case, and the sheriff says, in his return, “ I summoned the within-named Jane T. Sexton.” We think the fact that the return declares that the proper person, Jane T. Sexton, was served, taken in connection with the allegation that the copy was left at “the usual place of residence,” sufficiently indicates that the copy of the summons was left at the usual place of residence of Jane T. Sexton.
The service of summons being held good, it gave the court jurisdiction of the person of the defendant therein named. It was her duty then to have answered the petition in the case, and appeared and contested the trial thereof. Not having filed any answer, and having made no appearance at the trial to set aside the service of the summons, nor for any other purpose, she could not afterwards be heard to complain of any errors committed on the trial of the cause. The presumptions are in favor of the record. It was her duty to have been in court at the trial of the case, to challenge any error in the admission of evidence, and save her exceptions to the ruling therein. If the court had had no jurisdiction of the defendant at the trial of the case, the judgment rendered might have been set aside, subsequently, on motion. But the court below held that it had jurisdiction, obtained by service of summons on the defendant, and in that we think the court was right. Admitting that the defendant was served, the record shows no excuse for a failure to answer, since she did not appear and file a motion to set aside the service of the summons.
We do not think there is anything in the record to show any fraud in procuring the judgment; nor do we think the record shows any perjury in the case. A witness may be mistaken on some point of his evidence in a case, and yet not be guilty of perjury. Robinson may have been mistaken in relation to what paper he served on the plaintiff in error, but it is apparent from the record that it was simply a mistake, and could not amount to perjury.
We think the court was right in refusing to set aside the judgment. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
116,
-4,
-116,
-118,
-24,
40,
-102,
83,
97,
37,
-45,
-19,
-14,
16,
45,
111,
-23,
113,
106,
-59,
-93,
7,
35,
67,
-109,
-47,
-49,
-72,
111,
-12,
-41,
72,
32,
-54,
-107,
-26,
-128,
-51,
20,
78,
-121,
-119,
-19,
-7,
14,
52,
-85,
68,
65,
113,
-114,
-77,
109,
90,
-61,
41,
40,
-17,
32,
112,
-71,
-70,
-114,
127,
6,
-109,
38,
-104,
67,
-24,
44,
-128,
53,
9,
-24,
115,
-74,
-122,
116,
99,
-119,
9,
102,
99,
19,
69,
-17,
-40,
-104,
38,
-66,
-115,
-90,
-95,
40,
3,
72,
-66,
-107,
117,
16,
20,
94,
-18,
-52,
28,
108,
1,
-58,
-10,
-93,
-113,
48,
28,
-125,
-49,
-93,
54,
113,
-51,
41,
92,
4,
49,
-101,
-113,
-65
]
|
The opinion of the court was delivered by
Valentine, J.:
This case, as brought to this court, presents many novel features, and numerous errors are alleged; but, with the views that we entertain, it will not be necessary to discuss many of them. The case, or a very similar one, was commenced on July 3,1891, before a justice of the peace of Harper county, in the name of the state of Kansas, and against the defendant, Walter Lund, and others, by filing a complaint charging the defendants in two separate counts, (1) with selling intoxicating liquors in violation of law, and ( 2) with keeping a place where intoxicating liquors were kept for sale and sold, and where persons were permitted to resort, etc., in violation of law. The defendant was arrested and a hearing was had before the justice of the peace, which hearing seems to have been treated by the justice of the peace and all the parties as a preliminary examination. The record of the justice of the peace shows that, “by consent of all parties, the defendant, Walter Lund, was bound over to court;” and the defendant, with proper sureties, entered into a recognizance that he would “ appear before the district court of Harper county on the first day of the next term thereof, and not depart the same without leave.” Afterward the justice of the peace filed the papers of the case and a transcript of his proceedings with the clerk of the district court, and the clerk numbered the same “291.” Afterward, and on September 28, 1891, the county attorney of Harper county filed an information in the district court charging the defendant and the others in one count with substantially the same offenses as were charged in the complaint filed in the justice’s court, and this was also numbered “291,” and the case was afterward prosecuted under that number. The information was verified by the oath of H. E. Wooley. That portion of the information which charges the offenses reads as follows:
“And in said place the said Walter Lund, August Dreward, and John Jones, whose real name is to me unknown, as well as divers other persons, with the knowledge and consent of the said Walter Lund, August Dreward, and John Jones, as aforesaid, on said day and at said time unlawfully did sell, barter, give away, aud keep for sale, barter, and use, intoxicating liquors, and did then aud there unlawfully keep said place where persons were unlawfully permitted to resort, for the purpose of drinking intoxicating liquors as a beverage, to the common nuisance of the people of the state of Kansas, and in violation of the act of the legislature approved February 19, 1881.”
Afterward, and on October 7, 1891, the defendant filed in the district court a motion to dismiss the action, for the reason that the same had been commenced before a justice of the peace, and that the district court had no jurisdiction, which motion was by the court overruled. Afterward, and on January 7, 1892, the defendant filed the following motion:
“Comes now the above-named defendant, Walter Lund, and moves the court to require the plaintiff in this action to ■separately state the different offenses set forth in the information filed herein, and to. set out the said separate offenses, to wit, the offense of selling liquor unlawfully, and the offense of keeping a common nuisance, in separate counts, that this defendant may know what he is required to defend against.”
Which motion was by the court overruled. Afterward, and on January 25, 1892, the information was again verified by the oath of Milo A. Hare. Afterward, and on January 25 and 26, 1892, the case was tried before the court and a jury, and during the trial, and after the state had introduced all its evidence and had rested its case, the defendant filed and presented a motion asking the court to require the state to elect on which sale, as shown by the evidence, it would rely for a conviction, which motion the court overruled. Afterward the court instructed the jury, substantially, that two offenses were charged in the information against the defendant, one for selling intoxicating liquors, etc., and the other for keeping the place where they were kept, and where persons were permitted to resort, etc. The court, in speaking of the supposed offenses charged, used the word “ charges,” and also the words “ either of the charges;” and also instructed the jury, among other things, as follows:
“The jury may find the defendant not guilty as to one of the charges and guilty as to the other, or they may find him guilty upon both charges, or they may find him not guilty as to both charges.”
Afterward the jury rendered a verdict, as follows:
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant guilty of selling intoxicating liquor as a beverage; and we further find the defendant guilty of keeping the place as a place where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage.”
Afterward, the court sentenced the defendant to imprisonment in the county jail for 30 days, and to pay a fine of $100 and the costs of suit, and to stand committed to the county jail until the fine and costs were paid; and the defendant appeals to this court.
The first question presented in this court is upon the contention of the 'defendant that the district court did not have-any jurisdiction to hear and determine the case, and this for the reason that the action had been originally commenced before a justice of the peace. It is claimed that the justice of the peace had jurisdiction to hear and determine the case finally, and no power to hold a preliminary examination with respect thereto, and that he could not properly send the case to the district court, all of which is true and correct. (In re Donnelly, 30 Kas. 191, 424.) In other words, it is claimed that the case could not go to the district court as from a preliminary examination, and that it did not go to such court as on an appeal, all of which is also correct, and therefore it is claimed that it did not go to the district court at all from the justice of the peace, and therefore that the district court did not and could not obtain jurisdiction to hear and determine the case. The fact, however, is, that the district court could, and, as we think, did, obtain jurisdiction in another way. It has original jurisdiction in such cases, and could hear and determine them without their ever having been instituted before any justice of the peace at all. We think when the justice of the peace and the parties treated the proceedings before him as a preliminary examination, and when they all consented that the defendant should be “ bound over to court,” meaning the district court, they abandoned all proceedings before the justice of the peace, made them a nullity, and the justice of the "peace lost jurisdiction of the case, and when the county attorney afterward filed the information in the district court he virtually and in effect commenced a new action in that court. This also decides some other questions presented by the defendant to this court. For instance, the court below permitted testimony to be introduced tending to prove sales of liquors and the keeping of the premises which occurred after the commencement of the proceedings before the justice of the peace but before the information was filed in the district court, and the court below afterward, by giving and refusing instructions, held that this was correct. And with the views that we entertain of the ease we also think it was correct. In our opinion, the court below did not err in overruling the motion to dismiss, nor in permitting evidence to be introduced tending to show the defendant’s guilt at any time within two years prior to the filing of the information.
The next question to be considered is, whether the court below erred or not in refusing to require the state to separately state, in separate counts, the different offenses charged in the information. We think the court erred in this. Two offenses were charged in the information, and the court below so understood it, as is shown by the evidence permitted to be introduced and the instructions given. The case was evidently tried upon the theory that two offenses were charged, and the jury found the defendant guilty of both; and while the court sentenced the defendant for the commission of one only, no one can tell which one that was. The court may have sentenced him for selling intoxicating liquors in violation of law, or it may have sentenced him for keeping a nuisance in violation of law. Also, as evidence was introduced tending to show different sales of intoxicating liquors, the court erred in refusing to compel the state to elect on which sale it would rely for a conviction. (The State v. Schweiter, 27 Kas. 500, 512; The State v. Crimmins, 31 id. 376, 379; The State v. O’Connell, 31 id. 383; The State v. Guettler, 34 id. 582.) In the case of The State v. Crimmins, supra, the following language is used:
“If any other rule were adopted, the defendant might be charged with the commission of one offense, tried for 50, compelled to make defense to all, be found guilty of an offense for which he had made no preparation and had scarcely thought of, and found guilty of an offense which was really not intended to be charged against him; and in the end, when found guilty, he might not have the slightest idea as to which of the offenses he was found guilty of. Also, if evidence was introduced tending to prove 12 or more different offenses, the jury might find him guilty without any two of the jurors agreeing that he was guilty of any particular one of such offenses. One juror might believe that he was guilty of one offense, another juror of another, and so on with respect to all the jurors and all the offenses, each juror believing that the defendant was guilty of some one of the offenses which the evidence possibly tended to prove, but no two jurors agreeing that he was guilty of the same identical offense.”
This applies only to the charge of selling intoxicating liquors. It does not apply to the charge of keeping a nuisance. (The State v. Estlinbaum, 47 Kas. 291.) Where a person is properly charged, under § 13 of the prohibitory liquor law, as amended in 1887 (Gen. Stat., of 1889, ¶ 2533), with keeping a place as a nuisance where intoxicating liquors are kept for sale or sold, or where persons are permitted ’to resort for the purpose of drinking, etc., any number of sales may be shown, and the state is not required to elect upon which sale-it will rely for a conviction. But in the present case, however, the defendant was charged with, tried for and convicted of selling intoxicating liquors in violation of law, and his sentence may have been for that very offense. There is nothing in the record showing the contrary; hence the refusal of the court below to require the state to elect upon which one of the sales shown by the evidence it would rely for a conviction was material error. For the foregoing errors, the judgment of the court below must be reversed. There is no necessity for the state to resort to violations of law for the purpose of convicting any one of violating the law.
We think it is not necessary to discuss or decide any of the remaining alleged errors. The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-12,
-22,
-96,
31,
58,
-32,
34,
-102,
66,
-79,
-10,
115,
-23,
-46,
1,
123,
-22,
93,
85,
120,
-30,
-73,
23,
1,
-46,
-13,
89,
-59,
-79,
75,
-28,
85,
75,
52,
10,
85,
-94,
-64,
-63,
84,
-114,
5,
9,
-56,
83,
8,
52,
123,
3,
18,
113,
47,
-9,
41,
28,
-61,
105,
60,
-53,
30,
80,
-79,
-104,
93,
-51,
70,
-125,
2,
-100,
5,
72,
60,
-104,
49,
74,
-24,
115,
-92,
-122,
116,
69,
-119,
45,
38,
102,
33,
29,
-21,
32,
-120,
63,
-65,
-99,
-25,
-112,
80,
99,
41,
-98,
-99,
54,
112,
-121,
-8,
-29,
-124,
17,
-72,
-124,
-54,
-76,
-109,
-113,
56,
-128,
55,
-37,
-89,
48,
117,
-59,
-26,
92,
68,
80,
-101,
-113,
52
]
|
Per Curiam:
We have carefully reexamined the record, and find the statement contained in the opinion handed down, that “the defendant below made no showing or offered to show that the mortgage (which was a lien or encumbrance upon the blocks purchased) had in fact been paid,” is correct. 47 Kas. 757. If the mortgage was released or discharged before the trial, as is now claimed, this should have been shown upon the trial. If any evidence had been offered showing such release or discharge, and the trial court had ruled it out, we would promptly reverse the case. The only release offered in evidence was the one found in book “K” in the office of register of deeds of Ellsworth county, releasing or discharging the northwest quarter of section 17, township 15, range 8. That release was wholly immaterial, because it did not refer to blocks 7 and 13, or to the southeast quarter of section 17, which was platted into blocks, and of which blocks 7 and 13 were a part. If there was, at the time of the trial, any release of the mortgage on the southeast quarter of section 17, it was gross negligence on the part of the attorney representing the defendants in not offering the same as evidence. As the mortgage upon the trial was not shown to have been released, or even paid, the question of reasonable time for such release or the payment was not properly in issue. If there had been no release or payment of the mortgage at the time of the trial, more than a reasonable time had already expired.
Upon one title-bond, the last installment or payment of the purchase-money was due July 21, 1888; upon the other, the last payment was due December 20, 1888. The evidence shows that all of the payments were made. The purchaser was entitled, when he performed his part of the contract, to have the other party perform his part. Upon the first title-bond, about seven months had expired after the time for the last payment before this action was commenced; upon the last title-bond, more than a month had expired after the last payment was due before the answer was filed. The answer referred to the mortgage as an encumbrance, but did not allege its payment or release. Concerning the mortgage, the answer alleged:
“That as to the allegations respecting encumbrances on above blocks Nos. 7 and 13, the records of Ellsworth county show, first, that in 1885, in a deed from John Getty and Arthur Larkin and their wives to one Cochrine and one Houston, conveying west half of section 17, township 15, range 8, the grautees therein assume ‘ payment of a mortgage now on record against all of said section 17 for $4,400 and interest, the same being balance now unpaid; second, that on December 16, 1886, Cochrine, one of the grantees in last-named deed, and his wife, conveyed to Moses Houston, the other grantee in above deed, southwest quarter of section 17, township 15, range 8, free from everything except a certain mortgage on said section 17 given to one Rumsey; third, that on December 27, 1886, Moses Houston and wife conveyed to the Ells-worth Improvement Company southwest quarter section 17, township 15, range 9, the same free and clear of all encumbrances, subject to the payment of one-half of a certain mortgage debt on section 17 in favor of W. A. Rumsey, now on record; fourth, that plaintiff is one of the members of the Ellsworth Improvement Company, and was such when said company accepted the last-named conveyance.”
There was some evidence offered of the attempts made by John Getty, the grantor of the defendant below, and also of said defendant, to have the mortgage referred to released or satisfied, and these offers were ruled out. But there was no attempt to show that the mortgage had been paid or discharged. The ruling out of the unsuccessful efforts to release the existing incumbrance was not material error. The efforts of Getty and the defendant below to clear up the title were of no benefit to the plaintiff below, unless such efforts were successful. In view of the allegations of the answer, if the mortgage was paid and released after the filing thereof, a supplemental answer should have been filed alleging the dates of payment and release, and then the defendant below could have shown the facts alleged, and could also have shown his efforts to have the release made and the cause of the delay in obtaining the release. As there was no evidence offered showing or tending to show that the mortgage or incumbrance was paid or released, the instructions of the trial court were not erroneous.
The motion for a rehearing will be denied. | [
-16,
104,
-108,
-19,
74,
-32,
-86,
-104,
73,
-91,
33,
83,
111,
-58,
20,
45,
68,
105,
117,
120,
70,
-77,
63,
65,
-46,
-77,
89,
-43,
-67,
111,
-92,
-107,
76,
48,
-62,
21,
102,
-126,
-47,
92,
-114,
-123,
-104,
68,
-5,
64,
52,
43,
84,
76,
17,
-2,
-13,
39,
21,
95,
73,
42,
79,
29,
-48,
105,
-69,
-123,
127,
6,
-109,
84,
-100,
-63,
-24,
-66,
-112,
49,
2,
-24,
122,
-74,
-122,
118,
73,
27,
40,
102,
98,
33,
-59,
-17,
-28,
-116,
7,
-2,
-113,
38,
-110,
72,
11,
42,
-74,
-99,
117,
0,
38,
-4,
-22,
-108,
92,
108,
15,
-49,
-14,
-109,
31,
126,
-118,
-125,
-2,
-121,
116,
112,
-49,
114,
92,
102,
24,
59,
-114,
-67
]
|
The opinion of the court was delivered by
Valentine, J.:
This was an ordinary action in the nature of ejectment and for rents and profits, brought in the district court of Osage county on July 19, 1888, by "W. D. Martin and D. M. Cooper against B. F. Garrett, Anna Garrett, Louis Shutz and wife, for the recovery of the southwest quarter of section 9, in township 15, range 17, in said county. The answer of Shutz and wife was simply a general denial, and that they were the tenants of B. F. Garrett. The answer of the Garretts, who were husband and wife, was, first, a general denial; second, that they held and owned the property and had been in possession thereof for more than five years under a duly-recorded tax deed; and, third, that they held and owned the property under a decree quieting the title in their grantors. The plaintiffs replied to the third defense, claiming that the decree quieting the title was without jurisdiction, and void; and they demurred to the second defense, upon the ground that it did not state facts sufficient to constitute a defense, which demurrer the court overruled, and the plaintiffs standing upon their demurrer, judgment was rendered in favor of the defendants and against the plaintiffs for costs; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
The second defense of the defendants Garrett reads as follows:
“Defendants B. F. Garrett and Anna Garrett, for second answer, say: That at the time this suit was commenced said defendants were in the actual possession of the premises in plaintiffs’ petition described, and had been for more than five years prior to the commencement of this action in the continuous and uninterrupted possession of said described premises, under and by virtue of a certain tax deed to said premises made, acknowledged and delivered to one J. D. Vawter, and his assigns, under and from whom these defendants have possession and title to said premises, which said tax deed is dated May 10, 1875, and was duly filed for record in the office of the register of deeds of Osage county, Kansas, on May 20, 1875, and recorded in tax deed record ‘A,’ on page 225, in said office. A copy of which said tax deed is hereto attached, marked ‘exhibit A,’ and made a part hereof. And that if said plaintiffs ever had any cause of action against said J. D. Vawter, or these defendants, that the same was, at the commencement of this suit, and also at the time mentioned in paragraph 1 of plaintiffs’ petition, completely barred by section 141 of the tax laws of 1876 (Compiled Laws of Kansas, 1885, ch., 107, § 141), because this action was not commenced within five years from the time of recording the said tax deed.”
It appears from the tax deed that it was executed on May 10,1875, upon a tax sale made May 8,1872,'for the taxes of 1871, amounting to $29.19, and the subsequent taxes which had been paid for the years 1872, 1873, and 1874, amounting to $112.88; and the tax deed was recorded on May 20,1875. The principal objection urged by the plaintiffs against the tax ■deed is to that portion of the tax deed which reads as follows :
“Now, therefore, I, Wm. Y. Drew, the county clerk of the county aforesaid, for and in consideration of the sum of $268.02, taxes, costs and interest due on said lands for the years 1871 to 1874 inclusive, to the treasurer paid as aforesaid, and the accrued interest, cost of advertising and making and recording tax deed, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said J. D. Yawter, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said J. D. Yawter, his heirs and assigns forever, subject however to all rights of redemption as provided by law.”
The only question which we need to consider in this case is, whether the tax deed in dispute is void upon its fáce, and so absolutely and utterly void that it could not be made good or be cured by the operation of the five years’ statute of limitations enacted for the cure of defective tax deeds, and by more than five years’ continuous possession of the property under the tax deed. Such statute of limitations is contained in § 141 of the tax law of 1876, which reads as follows:
“Sec. 141. Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
The limitation contained in § 116 of the tax law of 1868 is precisely the same, except that it is only two years instead of five.
It is first claimed that the tax deed is void upon its face for the reason that it is not in the exact form prescribed by the statutes. But the statutes do not prescribe any inflexible or unvarying form for tax deeds. It was decided by this court, as early as 1870, as follows:
“A tax deed is not void upon its face by reason of slight irregularities. The statute does not require that a tax deed shall be in the exact form prescribed by the statute, but only substantially in that form.” (Bowman v. Cockrill, 6 Kas. 311, 324, 325.)
And this decision has ever since been followed. A slight or unimportant departure from the statutory form of a tax-deed will not invalidate the tax deed or render it void upon* its face.
It is also claimed that the stated consideration for the tax deed is excessive. Now, even if this were true, the tax deed does not show it upon its face. The tax deed was for the-taxes for the years 1871, 1872, 1873, and 1874, and for all lawful penalties, costs and interest thereon up to the date of the execution of the tax deed. The amount of the taxes for the year 1871 is shown; also the aggregate amount of the taxes for the three years 1872, 1873 and 1874 is shown, but all without the penalties, costs and interest thereon; and what the separate taxes for any one of these three years were, or what the penalties, costs or interest thereon were, is not shown. The bulk of the aggregate amount of the taxes paid for these-three years may have been paid for and in the year 1872, ^nd may then have drawn interest at the rate of 50 per cent, per annum up to the date of the tax deed, which was executed in. 1875. (Laws of 1869, chapter 122.) Hence the real consideration for the tax deed may have been largely more than that expressed in the tax deed.
It is further claimed that the tax deed shows that the costs of the making and recording of the tax deed were placed in-the tax deed as a part of the consideration therefor. If this were true, we would think it would be erroneous; but it cannot make any difference whether it is true or not in this case.. The plaintiffs and their grantors never offered to-redeem the-land from the taxes, but they permitted the parties claiming under the tax deed to hold the property for more than five years,, without any offer from them to redeem it from the taxes, and if they should now recover the property they would have to pay the costs of the tax deed and for recording the same. (Tax Law of 1868, § 117; Tax Law of 1876, § 142.) Indeed, the- tax deed had been executed and recorded more than 13 years when this action was commenced, and it does not appear that any offer was ever made to redeem the land from the taxes.
Still another question is presented by the plaintiffs. It appears that James Mabon was the purchaser of the land in controversy at the tax sale in 1872, and he assigned his tax-sale certificate to J. D. Vawter on May 20, 1874, and the tax deed, which was executed and recorded in 1875, recites that the taxes for the years 1872, 1873 and 1874 were “paid by the purchaser, as provided by law.” Now the taxes of 1874 were not due when the assignment was made, and they were probably paid, when they became due, by the assignee of the purchaser; but whoever may have paid them, they were evidently paid for the benefit of the holder of the tax-sale certificate, and the recital in the tax deed, which was in exact conformity with the form prescribed by the statute, whether strictly accurate or not, will not render the tax deed void under the facts of this case. While the plaintiffs claim that the form prescribed by the statute for tax deeds should have been strictly followed in all the other cases, yet they claim that it should not have been followed in this particular instance, and possibly it should not. But the statute further provides, that no “mere irregularity of any kind in any proceeding shall invalidate any such proceeding or the title conveyed by the tax deed.” (Tax Law of 1868, § 113; Tax Law of 1876, § 139.) See also the sections of the statutes heretofore cited.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
-18,
-79,
93,
104,
-32,
34,
24,
75,
-111,
38,
87,
-53,
-56,
1,
109,
98,
13,
-43,
123,
98,
-74,
23,
-93,
18,
115,
81,
-51,
-79,
76,
-28,
71,
72,
48,
74,
-107,
-58,
-32,
5,
28,
-114,
78,
56,
-60,
95,
64,
52,
43,
114,
75,
113,
-82,
-29,
42,
29,
83,
9,
45,
-53,
45,
81,
-8,
-82,
-41,
95,
2,
49,
6,
-108,
-61,
72,
10,
-104,
53,
12,
-8,
115,
-90,
-122,
116,
1,
-117,
41,
38,
103,
51,
-123,
-17,
124,
-103,
10,
-45,
-103,
39,
-15,
72,
35,
8,
-74,
-99,
125,
82,
7,
126,
-18,
21,
25,
120,
14,
-117,
-42,
-109,
15,
56,
-118,
3,
-5,
-89,
32,
113,
-57,
100,
94,
71,
24,
-109,
-113,
-16
]
|
Opinion by
Green, C.:
This was an action brought by Carter & Suggs against R. B. Kepley and V. Kaczynski upon a written contract, by the terms of which the former agreed to deliver 2,000 loads of sharp river sand to Kepley for the agreed price of 65 cents a load. The sum of $500 was agreed upon as liquidated damages to be paid by the party failing to comply with the terms and conditions of the contract. Kaczynski signed the following guaranty for Kepley:
“In consideration of the premises above set forth, I do hereby guarantee that the said party of the first part will pay to said second parties the sums of money specified as they shall become due. Y. Kaczynski.”
The plaintiffs below asked for damages against both defendants in the sum of $6,175 for a breach of the contract; $32.50 for sand delivered and not paid for, and $500 as liquidated damages. Kepley and Kaczynski each filed separate answers. The former alleged that the plaintiffs had delivered inferior sand, by which he had been damaged in the sum of $500; that he had paid for all the sand delivered to him. The latter alleged in his answer that the defendant Kepley had paid for all sand delivered, and that by reason of such payment he was not liable for any other sum or amount upon the contract. The plaintiffs only replied to the answer of Kepley. The case was tried by the court and a jury, and resulted in a verdict and judgment for the plaintiffs for $267.50. The plaintiffs in error bring the case here upon a number of assignments of error.
It is first urged that no judgment could be taken against Kaczynski, because the plaintiffs failed to reply to his answer, and that the court erred in saying to the jury, “that the plain tiffs deny all of the allegations contained in the answer of both defendants inconsistent with the allegations contained in plaintiffs’ petition.” The answer to this assignment of error is, that the defendant Kaczynski waived the filing of a reply by proceeding to trial without objection, and he cannot now complain. (Cooper v. Machine Co., 37 Kas. 231.) The court refused to give the following instruction: “If Kepley has paid for all the sharp river sand delivered, the defendant Kaczynski is not liable in this action.” This, or some similar instruction, should have been given. Kaczynski obligated himself to pay to Carter & Suggs the sums of money specified, as they should come due. Under a fair construction of this language, what is understood to be covered by the sums specified in the contract? Could it mean anything more than the price of the sand? It is true that the sum of $500 is agreed upon as fixed and liquidated damages, to be paid by the failing party, but we do not think this is covered by the guaranty. Kepley agreed to pay 65 cents a load for the sand, less 10 per cent, upon the completion of each block, and the remaining 10 per cent, upon the delivery of the entire quantity specified in the contract. This payment, in our opinion, is what the guaranty given by Kaczynski covered. His obligation was not that Kepley would perform all of the conditions of the contract, but that he would pay the sums specified as they should become due. It would not be presumed that there would be a failure upon the part of either of the contracting parties. So we think the guaranty, by the fair intendment of the language used, did not include the payment of liquidated damages. Text-writers and courts have clearly enunciated the doctrine that the liability of a guarantor is not to be extended beyond the precise terms of his obligation. It will not be implied that he agreed to do more than was expressed in his contract. “It is now too well settled to admit of doubt that a guarantor, like a surety, is bound only by the strict letter or precise terms of the contract of his principal, whose performance of it he has guaranteed; that he is in this respect a favorite of the law, and that a claim against him is strictissimi juris.” (Kingsbury v. Westfall, 61 N. Y. 356; Mining Co. v. Kunnel, 87 Ind. 560; 1 Brandt, Suretyship and Guaranty, § 93.)
It has been held by this court that the liability of* sureties cannot be extended by implication, and they have the' right to stand on the exact letter of their contract. (Henrie v. Buck, 39 Kas. 381; Edwards v. Ellis, 27 id. 344; Hays v. Closon, 20 id. 120.) As the judgment of the district court must be reversed as to the plaintiff in error Kaczynski, we do not consider it necessary to consider the other assignments of error, as his rights are more diretftly affected, and there is no material error apparent in the record as to the other plaintiff in error. It is recommended that the judgment of the district court be reversed as to the plaintiff in error Kaczynski, and that a new trial be granted him; and that the judgment be affirmed as to the plaintiff in error Kepley.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
-24,
-72,
77,
72,
97,
56,
-120,
13,
33,
55,
87,
-19,
70,
28,
113,
-89,
121,
112,
106,
69,
-93,
35,
98,
-46,
-109,
-7,
-123,
-80,
-49,
-20,
-41,
77,
-108,
-54,
-59,
70,
2,
-59,
94,
78,
4,
24,
-20,
-3,
73,
52,
59,
116,
67,
113,
-116,
115,
41,
-111,
71,
-114,
46,
-49,
41,
-55,
-32,
-97,
-115,
111,
18,
-77,
20,
-100,
-121,
-38,
14,
-112,
53,
8,
-32,
122,
54,
-58,
116,
97,
-103,
-120,
98,
99,
32,
5,
-27,
124,
-80,
46,
-2,
-113,
-92,
-111,
104,
65,
9,
-74,
-99,
112,
4,
46,
118,
-6,
29,
-99,
108,
3,
-114,
-48,
-32,
47,
-68,
-116,
-101,
-25,
2,
-75,
85,
-49,
-88,
92,
71,
48,
-101,
15,
-41
]
|
Opinion by
Simpson, C.:
At the March term, 1892, of the district court of Wyandotte county, the appellant, Joe McClain, was convicted of the crime of obtaining illicit intercourse, under promise of marriage, with one Emma Jansen, a female of good repute, under the age of 21 years. He was sentenced to three years’ hard labor in the state penitentiary, and adjudged to pay the costs of prosecution. From this sentence he appeals to this court.
I. His first complaint is, that the trial court erroneously overruled his motion for a continuance. The information against him was filed on the 5th day of March, and the case-was called for trial on the 19th day of March. The complaint was filed before a justice of the-peace on the 18 th day of February, 1892, and his preliminary examination occurred on the-5th dayof March. His motion for a continuance was filed on the 19th day of March, and alleged that he could not safely proceed to trial, because one Fulton, of Parkville, Mo., was the guardian of the prosecutrix, and he would testify that he had been acquainted with Emma Jansen, the prosecutrix, for more than six years; was her guardian; and that her age is 23 years; that he has in his possession the family bible of the father and mother of Emma, and that the birth record in said bible, in the handwriting of the father, shows that Emma is now past 23 years of age, having been born in the year 1868. There was no showing of diligence, or no allegation as to the distance of Parkville, Mo., from Kansas City, Kas. Two of the standing witnesses in this court that testify in every case, and whose evidence becomes a part of every record filed in the clerk’s office — the map of the country, and our knowledge of the local surroundings— agree that the absent witness resided within 10 miles of the court-house of Wyandotte county. We think that within 14 days the appellant should have made some effort to procure the attendance of the guardian, and the affidavit for continuance should have given some reasonable excuse for the failure. In a word, there was absolutely no showing of a single act or intention of diligence.
II. One of the most important contentions of the appellant arises from the evidence. He alleges that the evidence does not sufficiently show a promise of marriage, at the time the seduction took place, to support the verdict of guilty. There seems to be no doubt but that at one time a promise •of marriage had been made, and the day fixed; but before the time arrived a quarrel occurred, and the wedding did not take place. The original promise rests on the express statement of the girl and the admissions of the appellant. They subsequently kept company, and at the time the first act of sexual intercourse took place this promise was renewed; but counsel for appellant do not quote all that was said by appellant at that time. Their construction is, that she said, “You will not marry me,” and he replied, “What makes you think so?” But the record twice discloses that he said, in addition to the inquiry, “What makes you think so? — I will.” There was other evidence of the promise contained in the statements of witnesses to whom there was express admissions that he had intended to marry her. We regard the promise of marriage, at the time the séduction took place, as being well established.
III. There is a serious contention that there was no proper or positive proof that Emma was under age of 21 years. The defendant offered no proof as to her age, but the specific complaint is that the only proof consisted in her own declarations, and in a statement that her father told her so and so. She testified that she would be 21 years of age on the 22d day of May next (the trial was in March). On cross-examination, she could not state the year she was born in, but that her father had it written down, but did not know whether it was in a bible or not. That her father told her the day and month of her birth, but she made no statement about the year. She also stated that she had seen the record of her birth, but it was so long ago that she did not recollect exactly what it was. To sum it all up, it amounts to this: That the only evidence of her age is her own statement that she would be 21 years old in the month of May succeeding the trial in March. Is this sufficient proof of age, in a criminal prosecution for felony, in which age is one of the constituent elements of the crime? In 1 Eussell on Crimes, p. 693, authorities are cited to the effect that in cases of this character clear and distinct evidence ought to be given of the age of the prosecutrix. Again, it is said that in a matter of so much importance the best evidence ought to be adduced.
In the case of West Virginia v. Cain, 9 W.Va. 559, it being a prosecution for selling intoxicating liquor to a minor, the minor was permitted to testify to his own age, notwithstanding that it was shown that his father and mother were living. The supreme court of appeals of that state say:
“At this day of general intelligence, I think it is not improper, in a case like this, to allow the minor to testify as to his age. It is, perhaps, true, that the evidence of the minor may not be as satisfactory as to the fact as the evidence of his father or mother, or some other person who was present at his birth. Still, his statement should be received, and permitted to go to the jury as evidence, to have such weight as it is entitled to under the circumstances.”
This case is cited and followed in that of Hill v. Elridge, 126 Mass. 234, wherein it is said:
“It is quite clear that one may testify from his own knowledge of himself whether he was 21 or 16 years of age at a certain time, and that such weight may be given his testimony as the court or jury trying the case may think it entitled to receive.”
The latter is a civil action, and the same ruling is made in Cheener v. Congdon, 34 Mich. 296, and Watson v. Brewster, 1 Pa. St. 381.
In this case there is some evidence tending to show that the father and mother of the prosecutrix had been dead for years before the trial or the commission of the offense. The weight of the evidence (it being competent) was a question for the jury, and the verdict having received the approval of the trial court, we are satisfied to recommend that the judgment of conviction be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
48,
-18,
-7,
31,
-102,
-128,
100,
24,
82,
-77,
-28,
83,
105,
-34,
68,
105,
42,
109,
84,
121,
-64,
-105,
39,
65,
-78,
-77,
-7,
-43,
51,
77,
-28,
-11,
72,
112,
74,
-43,
70,
74,
-107,
92,
-114,
-127,
-87,
-20,
-48,
74,
52,
127,
76,
10,
49,
-66,
-25,
43,
28,
-61,
105,
44,
78,
63,
-31,
-80,
-66,
-41,
-51,
22,
-93,
38,
-112,
1,
72,
62,
-104,
17,
0,
-8,
115,
-124,
-122,
116,
101,
-119,
13,
98,
98,
33,
-68,
-17,
-87,
-103,
31,
22,
-99,
39,
-112,
65,
75,
44,
-74,
-99,
103,
84,
15,
114,
-28,
4,
24,
104,
3,
-113,
-80,
-111,
77,
116,
-98,
-77,
-21,
37,
4,
113,
-51,
102,
92,
86,
57,
-101,
-114,
-79
]
|
The opinion of the court was delivered by
Johnston, J.:
This was an action brought by the First National Bank of Frankfort, Kas., to recover upon a promissory note executed on the 14th day of May, 1883, by H. H. Lowery and Mary E. Lowery to Walter Bowman and Henry Bowman Brady, for $1,500, payable October 1, 1886, with interest at the rate of 8 per cent, pér annum, and also to-foreclose a mortgage executed by the Lowerys upon the same day to secure the payment of the note. The bank alleged in its petition that the payees named in the note, for a valuable consideration, had sold and delivered the note to it before the maturity thereof, and that it was then the holder and owner of the note and coupons as well as the mortgage deed, and was entitled to sue and maintain its action thereon. It was also alleged that default had been made in the payment of the interest due upon the note, and that, according to the terms of the note and mortgage, the whole amount was then due, and that on the first day of October, 1885, there was due the bank thereon the sum of $1,620. There was a further allegation that, subsequent to the execution of the mortgage, the Lowerys had by a deed of general warranty conveyed the land to Jeremiah and Catharine O’Keeffe, and they were made defendants in the action. The O’Keeffes filed an answer, setting forth several defenses, the first of which was a general denial. The Lowerys answered, admitting the execution and delivery of the note and mortgage, for which they received the full amount of $1,500; and the bank replied, denying all the allegations set forth in the answer and cross-petition of the O’Keeffes. At the May term, 1889, a trial was had by the court without a j ury, upon the issues so formed, and the bank offered in evidence the note and coupons, also the mortgage, which were admitted over the objection of the O’Keeffes. No other evidence was offered by either party, and the court awarded judgment against the makers of the note, and decreed the foreclosure of the real estate described in the mortgage.
The O’Keeffes now contend that the proof offered is insufficient to sustain the judgment that was rendered. They claim that, as the issues were formed, proof was necessary that the bank was the owner and holder of the note. The note was not indorsed by the payees, and there was no written transfer of the same to the bank, and, as its ownership of the note had been denied, it was incumbent upon the bank to prove that it was the owner and holder of the same. We think the proof offered was sufficient. The note and mortgage were in the possession of the bank and were produced by it at the trial. A negotiable note may be transferred without written indorsement and by mere delivery. The possession of the note and its production at the trial furnished prima fade evidence of ownership in the bank, as between the contending parties in this action. If the controversy had been between the payees and a stranger, a different presumption would arise; but here neither the payees nor the makers are questioning the ownership of the note by the bank; and, as against the plaintiffs in error, who only claim an interest in the premises mortgaged to secure the payment of the note, the bank, holding possession, is prima facie the owner.
Some of the considerations presented by the plaintiffs in error would be entitled to great weight if the payees were contesting the ownership of the unindorsed paper with a stranger in possession; but when the bank produced and read the note in support of its title, it furnished presumptive evidence upon which it might safely rest; and nothing being shown to repel the force of the presumption, it was entitled to recover. (Williams v. Norton, 3 Kas. 295; Washington v. Hobart, 17 id. 275; Eggan v. Briggs, 23 id. 710; Savings Association v. Barber, 35 id. 488; Durein v. Moeser, 36 id. 441; King v. Gottschalk, 21 Iowa, 512; Tuttle v. Becker, 47 id. 486; Gill v. Johnson, 1 Metc. [Ky.] 649; Jackson v. Love, 82 N. C. 405; Robertson v. Dunn, 87 id. 191; Garner v. Cook, 30 Ind. 331; Gano v. McCarthy, 79 Ky. 409; Pom. Rem., § 140.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-14,
104,
-80,
-18,
-54,
96,
42,
-102,
-62,
-96,
-76,
115,
-5,
-57,
17,
101,
-26,
45,
-28,
105,
68,
-77,
55,
105,
-46,
-13,
-15,
77,
-79,
-36,
-28,
-41,
76,
52,
-54,
-35,
-26,
-32,
-63,
80,
14,
-83,
57,
108,
-3,
64,
52,
-69,
112,
74,
21,
-82,
-13,
45,
29,
74,
104,
47,
75,
61,
-48,
-16,
-113,
-113,
95,
7,
17,
118,
-100,
67,
-54,
14,
-104,
53,
1,
-8,
114,
-90,
-122,
116,
65,
11,
41,
102,
98,
16,
-27,
-21,
-68,
-120,
38,
-9,
-123,
-90,
-110,
89,
3,
32,
-68,
-99,
-36,
64,
-121,
124,
-1,
-99,
25,
108,
7,
-53,
-42,
-109,
47,
60,
-102,
11,
-9,
-117,
-72,
113,
-52,
0,
77,
82,
115,
-101,
-114,
-7
]
|
The opinion of the court was delivered by
Johnston, J.:
Mary E. Dyer brought this action to prevent the sale of a quarter-section of land which had been levied on by John Fisher, as sheriff, to satisfy a judgment in favor of J. E. Hayner & Co., which had been obtained against W. H. Dyer, her husband, for the sum of $286. The judgment creditor appears to have claimed that, although the legal title to the land was in Mary Í!. Dyer, her husband was the real owner, or at least had an equitable interest in the land, which could be properly subjected to the payment of his debts. At the trial there was considerable testimony offered in regard to the transactions between the husband and wife since their marriage, and also as to the property held, acquired and sold by each, in an effort to show that the legal title to the land had been placed in the wife for the purpose of defeating the creditors of the husband. It does not appear, however, that there was any debt of the husband not provided for other than the one in question of $286. It was shown that, at the time of their marriage, in 1876, each owned real estate, and that that belonging to the wife was subsequently sold and converted into money. The husband owned the larger body of land, but it appears to have been heavily incumbered, and he claims that he was owing a large sum of money to his brother, Caleb W. Dyer, and, being unable to pay this debt, he conveyed his real estate to his brother, on December 1, 1880. He retained possession of the land, however, claiming to have rented it from his brother, and on September 25, 1883, the same land was reconveyed to his wife. There was included in these transfers 60 acres of the quarter-section upon which the execution was levied, and the sale of which is sought to be enjoined by this action. The remaining 100 acres of the quarter-section levied upon were purchased by Mary E. Dyer from George M. Shay on March 20, 1883. The 100-acre tract was never owned by the husband, and was not included in the transfer about which so much testimony has been given.
The court found that the 60-acre tract which was included in the transfer, the good faith of which was questioned, was owned by Mary E. Dyer, and was not subject to the payment of her husband’s debts. This finding practically holds that the transfers were not fraudulent, nor made with the intention of cheating and defrauding the creditors of the husband. Mary E. Dyer is found to be the legal and equitable owner of the only land involved in these transfers, and the injunction against the sale of the same to satisfy the husband’s debts was made perpetual.
As to the 100-acre tract which was levied upon, the court found that at the commencement of the action William H. Dyer had an equitable interest in the same to the extent of $200; and further, that when William H. Dyer contracted the indebtedness upon which the judgment was founded, he was the legal owner of the 100-acre tract, and that it was conveyed to Mary E. Dyer, with her knowledge and consent, for the purpose of cheating the creditors of William H. Dyer. This finding is not sustained by the evidence. In the first place, the testimony does not show that the legal title to the 100-acre tract was ever in W. H. Dyer; and, in the second place, it fails to show that he holds an equitable interest therein to the extent of $200, or any other amount. It is true that after Mary E. Dyer determined to purchase the land he negotiated the purchase, and, as a cash payment of $300 was required at once, he borrowed that sum for a short time upon his own note, which was secured by a chattel mortgage. Afterward, Mary E. Dyer made a loan upon her real estate and raised a fund, a part of which was used to pay off this $300 debt. The note given by W. H. Dyer was paid and discharged in October, 1883; and whatever may have been his claim upon the land prior to that time, there is nothing in the evidence showing an interest or trust estate in him after full payment had been made of the note which he had given. It appears that he has no money invested in the land; and further, it does not appear that there was any agreement or understanding that she should hold the legal title in trust for him on any account.
The claim that there was an attempt to defraud his creditors is without support so far as the Shay land is concerned, and is negatived by the first finding of the court so far as the 60-acre tract is concerned. There is some testimony tending to show that the 60-acre tract may have been transferred to defeat creditors; and if the court had decided that it was subject to levy and sale under the execution, its finding could not have been disturbed in this court. The trial court, however, by its decision has declared' in favor of the honesty of that transaction, and adjudged that Mary E. Dyer holds both the legal and equitable title to that land. As the record does not show that W. H. Dyer' has any equitable interest in the remaining portion of the tract levied upon, the finding of the court is without support, and its judgment must therefore be reversed.
All the Justices concurring. | [
-16,
110,
-3,
-81,
-70,
96,
42,
-104,
114,
-94,
-76,
83,
43,
-46,
1,
57,
98,
93,
81,
104,
86,
-14,
23,
-93,
-110,
-13,
-47,
-35,
-80,
76,
-26,
-57,
13,
32,
-54,
-75,
-26,
-64,
69,
24,
-114,
-115,
-87,
72,
-39,
112,
52,
107,
116,
74,
81,
-114,
-77,
44,
61,
66,
104,
47,
-21,
57,
16,
-72,
-65,
-114,
111,
10,
17,
96,
-120,
-89,
-56,
106,
-112,
49,
0,
-20,
123,
-90,
-106,
-12,
109,
-103,
8,
102,
102,
1,
-27,
-17,
120,
-104,
14,
114,
-123,
-90,
-64,
88,
3,
72,
-68,
-99,
101,
16,
-122,
-10,
-18,
-100,
92,
108,
4,
-113,
-108,
-91,
13,
124,
-118,
86,
-13,
37,
-80,
113,
-51,
-86,
76,
102,
115,
27,
-114,
-8
]
|
Opinion by
Strang, C.:
October 12, 1888, defendants in error, who were plaintiffs below, obtained a personal judgment against these plaintiffs for the sum of $1,401.93, and also for a foreclosure of a mortgage on the southwest quarter of section 24, and the northwest quarter of section 25, all in township 22 south, of range 2 east, in Harvey county, Kansas. Upon said judgment, the court directed an order of sale to issue to the sheriff, commanding him to appraise, advertise and sell said lands. The order of sale was issued, the land duly appraised at $2,740, advertised and offered for sale, but returned “not sold for want of bidders.” November 24,1888, another order of sale was issued to the sheriff, again commanding him to appraise, advertise and sell said land. Under this second order the lands were reappraised at $2,014, and afterward advertised and sold for $1,343, to the judgment creditors. February 27, 1889, the court set aside the sale made on the second order of sale and appraisement, and also set aside the appraisement heretofore made, and directed a new order to issue and a new appraisement to be made. Thereupon, another order of sale was issued, upon which the lands were again appraised, this time at $2,654, advertised, and sold to Camp and Ellett, the creditors in the judgment on which the order of sale issued, for $1,769, which said sum was not paid by the purchasers, and the property was again advertised, and sold to said Camp and Ellett for $1,770, which sale was afterward confirmed by the court.
The contention of the plaintiffs in error is, that the court erred in ordering a second appraisement of the land before it had been twice offered for sale under the first appraisement, and that such error was not cured by any of the subsequent proceedings in the case. The land did not sell when first offered for sale, because no bids were received therefor. The sheriff returned the property “not sold for want of bidders.” An alias order of sale was then obtained, under which the sheriff', without any order of the court therefor, procured the lands to be reappraised, instead of offering them for sale the second time under the first appraisement. This was a mistake of the sheriff, and the court seems to have treated this second appraisement as a nullity, aud regarded the sale made on the alias order as having been made under the first appraisement. We do not discover any error in this. The sheriff had no power at that time to order a new appraisement of the lands. No order of the court had been obtained directing a second appraisement, and we think the court was justified in treating such appraisement as void. The first appraisement had not been set aside by the court, and was therefore the only effective appraisement in existence when the lands were the second time offered for sale. The amount for which the lands sold on this offer was less than two-thirds of the existing appraisement, and was therefore set aside by the court. The court then ordered a new appraisement. We think that was a proper thing to do at that stage of the case, and therefore not error. A new order of sale was then issued, and a new appraisement of the property had, at a valuation of $2,654. The land was then advertised and sold for $1,769. It was afterward discovered that this amount was a few cents less than two-thirds of the last appraisement. The purchasers, therefore, did not pay the purchase-money, and the land was once more sold to the same purchasers for $1,770, which sale was afterward confirmed by the court. The difference between the first and last appraisements was less than $100. There seem to have been a good many mishaps, and a good deal of blundering on the part of the officer making the sale of the lands, but we do not think the court below committed any serious mistakes in the case. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
108,
-71,
45,
24,
96,
40,
-118,
67,
-80,
54,
87,
-19,
-54,
1,
109,
70,
45,
-75,
121,
70,
-93,
31,
-125,
-62,
-77,
-39,
-51,
52,
77,
-26,
-41,
72,
48,
74,
21,
-58,
-96,
71,
-36,
-114,
-121,
-119,
68,
-39,
40,
52,
59,
68,
66,
113,
46,
115,
42,
29,
83,
72,
44,
-21,
57,
65,
-8,
-70,
-59,
127,
5,
1,
6,
-102,
7,
-56,
-82,
-112,
53,
0,
-8,
123,
54,
-122,
116,
13,
9,
45,
38,
102,
33,
-76,
-17,
96,
40,
47,
-97,
-113,
-25,
-90,
88,
99,
32,
-74,
-99,
116,
22,
7,
-4,
-18,
-124,
28,
-8,
-121,
-37,
-106,
-77,
46,
62,
-120,
-117,
-13,
-121,
48,
113,
-51,
-94,
94,
71,
48,
-69,
-114,
-8
]
|
The opinion of the court was delivered by
Johnston, J.:
At the April term, 1891, of the district court of Bourbon county, the defendants were convicted of grand larceny, and the punishment imposed was the imprisonment of each at hard labor in the state penitentiary for a term of five years. The only question assigned upon their appeal is the alleged misconduct of the county attorney in the closing argument of the case. The defendants were charged with stealing a quantity of silk, which was found in their possession when arrested. They did not testify in their own behalf, and they claim that the county attorney said to the jury: “Why did these young men not explain to you, gentlemen, the circumstance of their having in their possession the silk?” And they contend that the county attorney referred to the fact that they failed to testify in their own behalf. The county attorney, however, denies using the language attributed to him; and he states that what he did say referred to the fact that they made no explanation of their possession of the stolen silk when they were arrested, and which was found in their possession. The statement, whatever it may have been, is only shown by the affidavits of the contending parties, which were filed upon the motion for a new trial. These affidavits form no part of the record, for the reason that they were not preserved in a bill of exceptions. It has been decided that “affidavits on a motion in the court below, to become a part of the record so as to be reviewable by the supreme court, must be included in the bill of exceptions or the case-made.” (Backus v. Clark, 1 Kas. 303; Altschiel v. Smith, 9 id. 90; McIntosh v. Comm’rs of Crawford Co., 13 id. 177.) The question presented is not properly before us for consideration, and therefore the judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
-18,
-3,
29,
58,
-32,
38,
-104,
80,
-93,
-12,
115,
-23,
86,
9,
123,
-14,
109,
85,
123,
-52,
-73,
55,
81,
-78,
-13,
-6,
-43,
-79,
111,
-28,
-3,
76,
48,
-54,
-43,
102,
-56,
-61,
92,
-114,
7,
-72,
78,
83,
96,
52,
123,
6,
11,
-11,
-66,
-29,
42,
28,
-61,
41,
44,
75,
63,
112,
113,
-100,
-51,
77,
20,
-77,
6,
-104,
4,
-24,
46,
-104,
49,
3,
120,
115,
-92,
-126,
116,
11,
-117,
45,
102,
102,
1,
29,
-49,
-72,
-56,
46,
127,
-99,
-89,
-112,
65,
107,
-55,
-106,
-35,
119,
80,
-89,
120,
-27,
84,
93,
108,
1,
-113,
-108,
-77,
15,
44,
-120,
19,
-21,
34,
48,
113,
-59,
98,
92,
87,
113,
-101,
-113,
-14
]
|
Opinion by
Strang, C.:
Action to recover damages for the conversion of certain merchandise. J. T. and A. D. Kelley, hardware merchants in the city of Salina, Kas., received from their mother, the defendant herein, $7,000, and gave their notes and a mortgage upon a stock of hardware as alleged security therefor. The mortgage was executed June 15, 1888, and filed immediately for record in the office of the register of deeds. June 21, 1888, the Baker Wire Company commenced a suit against Kelley & Kingman, a firm that was succeeded by Kelley Bros., and issued an attachment therein, which was levied by the plaintiff in error, the sheriff of Saline county, upon a portion of said stock of hardware, and removed and sold it. Mrs. Kelley, the mortgagee, commenced this suit against the sheriff for the conversion of the goods. The defendant below admitted the taking of the goods on the attachment, alleged that they were the property of A. D. and J. T. Kelley, doing business as Kelley Bros., and that the mortgage under which Mrs. Kelley claimed the goods was made to hinder and delay the creditors of Kelley Bros., and was fraudulent and void. The case was tried by a jury, and a verdict and judgment rendered in favor of Mrs. Kelley, sustaining her mortgage, and giving her damages in the sum of $1,049. Motion for a new trial was overruled, and the defendant brings the case here for review.
The first complaint of the plaintiff in error relates to the sixth paragraph of the court’s instruction. The exception relates to the following language in the instruction: “And that it was agreed at the time, outside of said mortgage, by the par ties thereto, that the mortgagors should retain possession of said property and sell the same for plaintiff as her agents, and account to her for th^ proceeds of such sales after deducting reasonable expenses for making the same, the said mortgage is valid.” It is alleged against this part of the instruction that there is no evidence to base it upon. Plaintiff in error claims that there is no evidence in the case showing that any agreement between the mortgagors and the mortgagee was made, at the time the mortgage was delivered, for the mortgagors to remain in possession and sell the goods for the mortgagee.
We think the evidence establishes an agreement outside of the mortgage, by which the mortgagors were to remain in possession and sell the goods for the mortgagee and account to her for the proceeds of such sales, and that such agreement was carried out between the parties thereto. Whether the agreement was made at the date of the mortgage or not we are unable to say; but the evidence tends to prove that' it was, and the verdict of the jury includes a finding to that effect. Nor do we think it material whether the agreement was co-temporary with the making of the mortgage, if it was made and the mortgagors were in possession of the goods, selling them for the mortgagee under said agreement, when the sheriff levied his attachment and removed a portion of the goods. The verdict of the jury includes a finding that they were, and we think there is plenty of evidence in the record to support such finding, and therefore evidence upon which to base the instructions complained of.
We think our views in relation to the instruction just considered disposes of the complaints with respect to instruction 16. Plaintiff complains of the action of the court in refusing the fourth instruction asked by the defendant below. This instruction is sufficiently covered by instruction 17 given by the court, and therefore this objection is not tenable.
The next contention of the plaintiff in error is, that the court erred in the measure of damages adopted at the trial of the ease. It is alleged that the proper measure of damages was the value of the goods taken in Kansas City, St. Louis, or Chicago, or some other wholesale point, with the freight to Salina added, while the court held that the measure of damages was the value of the goods in Salina, where they were converted. We think the court was right.
It is alleged that the court erred in permitting the defendant in error to state, over the objection of the plaintiff in error,, what her intention was in taking the chattel mortgage from her sons. This court, in the case of Gardom v. Woodward, 44 Kas. 758, has settled this contention against the plaintiff in .error. In that case the court says:
“Upon a question of fact as to whether a sale of personal property was made for the purpose of hindering, delaying and defrauding the creditors of the seller, it is competent for the seller as a witness to testify directly as to whether he in fact intended by the sale to hinder, delay or defraud his creditors.”
It is also claimed that the case should be reversed for the reason that the court expressed an opinion on a question of fact in issue in the case in the presence of the jury. The record shows that, in stating his ruling upon a question of the admissibility of evidence, the court used the following language in the presence of the jury, in speaking of a note and mortgage offered in evidence: “ It seems to me that it is plain, from the mortgage here, that this is simply a mistake of the date of the year.” The note appeared to be dated nearly a year subsequent to the date of the mortgage given to secure it. It was claimed that there was a mistake of a year in the date of the note. The alleged debt for which the note was given was created in November, 1887. The note was made about three months afterward, but was intended to be dated as of the date of the creation of the debt — November, 1887 — but was actually dated November, 1888. It is error for a court to express an opinion on a question of fact being tried by a jury, in the presence of a jury; but in this case the error of the court was not material, because the undisputed evidence showed a mistake had been made in the date of the note. The error of the court, not being material, is not a ground for reversing the case. These being all the questions presented to this court, it is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
121,
-72,
44,
8,
-32,
40,
-102,
107,
-96,
-89,
87,
-23,
-58,
9,
45,
87,
93,
112,
105,
-58,
-77,
7,
43,
-46,
-109,
-39,
-41,
-72,
77,
100,
-41,
76,
52,
66,
-43,
66,
-128,
-59,
-36,
-54,
-92,
43,
108,
-7,
0,
52,
-85,
52,
8,
113,
46,
-14,
42,
29,
67,
75,
42,
-17,
60,
-15,
-8,
-70,
-51,
127,
7,
-111,
37,
-100,
37,
-40,
10,
-112,
53,
-112,
-23,
122,
-74,
-122,
116,
15,
-117,
9,
98,
102,
34,
-127,
-17,
44,
-100,
47,
-1,
-99,
-89,
-112,
88,
-117,
41,
-65,
-99,
100,
16,
4,
-12,
-22,
4,
29,
-20,
7,
-18,
-108,
-105,
-83,
54,
-104,
11,
-2,
-121,
-80,
113,
-51,
32,
93,
6,
56,
-101,
-114,
-7
]
|
Opinion by
Simpson, C.:
This was a prosecution under § 9 of the act of March 8, 1887, chapter 165, now ¶ 2532, General Statutes of 1889. The appellant was charged with having violated this section of the statutes, as mayor of Dodge City, in Ford county. He was convicted, and fined $100, and his office of mayor declared forfeited. Said section provides that—
“It shall be the duty of all sheriffs, deputy sheriffs, constables, mayors, marshals, police judges and police officers of any city or town, having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions of this section, he shall, upon conviction, be fined in any sum not less than $100 nor more than $500; and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said-office. For a failure or neglect of official duty in the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action.”
The information charged that —
“On the 7th day of April, 1891, in said county of Ford and state of Kansas, one Adolph Gluck was duly elected mayor of the city of Dodge City, Kas., and thereafter said Adolph Gluck duly qualified as required by law and entered upon the discharge of the duties of mayor of said city — said city of Dodge City then and there being a city of the second class, duly organized and incorporated under the laws of Kansas; that on the 20th day of June, 1891, the said Adolph Gluck was, and ever since has been, the duly-acting and qualified mayor of Dodge City, Kas.; that on or about the 27th day of June, 1891, in the county of Ford and state of Kansas, said Adolph Gluck became possessed of actual notice and knowledge that one Chas. Heinz and one Chas. Wright were then and there keeping and maintaining and operating certain rooms on the second floor of the brick building located on the east 19 feet of lot 34 and the east 6 feet of lot 32, Front street, Dodge City, Ford county, Kansas, (the property of said Adolph Gluck,) as a place where intoxicating liquor was sold, bartered and given away contrary to law, and as a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and as a place where intoxicating liquors were kept for sale, barter and delivery ill violation of law; that said A. Gluck then and there and afterwards became possessed of actual knowledge of the persons by whom said described violation of law could be proven; that said Adolph Gluck continued to receive, and now has, actual notice and knowledge of said violation of law; that said Adolph Gluck has, in said county and state, unlawfully, wholly and entirely failed and neglected to notify the county attorney of Ford county of said described violation of law, or to furnish said county attorney with the names of persons by whom said violation could be proven.”
The contention of the plaintiff in error is, that the information is not good, because, first, it does not charge that there was a violation of law, stating with reasonable certainty the facts necessary to show a violation; second, it does not show that the accused had notice or knowledge of the facts constituting such violation; third, it does not show who was county attorney at the time these alleged violations occurred. None of these contentions are controlling. It was not necessary to allege the particular person who was acting as county attorney. It is not analogous to an action for obstructing legal process, or resisting an officer. In such a case the official capacity of the officer and the identity of his person must be alleged and proven; here it does not make any difference who was county attorney, or whether he was a de jure or defacto officer. “County attorney” is the designation of an office, and it is immaterial what person was discharging the duties of that office. Neither is the information bad for duplicity, conceding that more than one offense is set forth in the information. We think the case of The State v. Schweiter, 27 Kas. 499, is conclusive. In a word, all that is required in an information under this .section of the statute is, to aver the official capacity of the defendant; the fact that he has knowledge or notice of the violation of the law, and that he failed to notify the county attorney of such violation. As-to the defendant, the offense must be fully pleaded, but it is not necessary to technically plead the violations of the law that come to the knowledge or notice of the accused. We-find no error in the action of the trial court overruling the various motions directed against the information.
We cannot consider the various assignments of error with respect to the instructions, because they are not embodied in the bill of exceptions. It is true that there is a reference to them in the bill of excepttions, but it recites the “ foregoing,” and does not name the instructions as an exhibit, they being-almost the last thing in the record, and coming long after, not only the formal part of the bill of exceptions, but the bill itself, as signed by the trial judge. (The State v. Smith, 38 Kas. 194.)
During the time the jury was deliberating, the trial judge-twice visited the jury-room and held conversations with the jury, neither the defendant or his counsel being present. This conduct of the trial court is made a cause for a new trial. There is no dispute about the facts of these visits, but the evidence of the jurors, as well as that of the trial judge, shows-that the conversations had with the jury were to the effect that they must act according to the evidence, and take the law as given them by the instructions. We impute nothing wrong to the trial judge in this particular instance, and it is plain that he said nothing tending to prejudice the jury against the-defendant; and yet such visits ought not to be permitted under any circumstances; but while the court criticises the practice, and in a proper case would hold it, if accompanied by any evidence tending to show a prejudicial effect, a sufficient cause for reversal, there is nothing to show in this record that any such result was either anticipated or attempted in this particular case.
We recommend that the judgment of conviction be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-80,
107,
-72,
93,
-86,
-32,
54,
-104,
90,
-77,
-89,
95,
-55,
24,
5,
61,
123,
125,
-43,
121,
-61,
-74,
31,
35,
-110,
59,
-53,
-43,
55,
77,
-12,
-35,
10,
112,
74,
-99,
7,
98,
7,
92,
-126,
-126,
43,
-62,
-46,
72,
52,
59,
97,
-117,
113,
-82,
-9,
42,
28,
115,
-20,
44,
-35,
-82,
96,
-77,
-5,
-51,
126,
22,
3,
66,
-100,
-123,
-32,
47,
-104,
49,
0,
-8,
115,
-90,
-122,
-10,
45,
-53,
-115,
98,
98,
49,
-67,
-17,
-72,
-120,
-98,
-5,
-99,
-89,
-107,
81,
75,
12,
-74,
-103,
101,
-110,
7,
-8,
-31,
-107,
25,
104,
-126,
-98,
-76,
-77,
109,
116,
2,
51,
-57,
-93,
51,
113,
-50,
118,
95,
7,
-80,
27,
30,
85
]
|
The opinion of the court was delivered by
Horton, C. J.:
This was an action.in the. court below to recover the possession of certain wheat, of the value of $400, brought by Jane Taylor against F. D. Wilson, sheriff of Barton county, and E. McBride, a creditor of A. G. Taylor, father of Jane Taylor. Jane Taylor claims to own the wheat described in her petition, which F. D. Wilson, as sheriff, had levied upon under an execution in favor of McBride, upon a judgment against her father, A. G. Taylor. The wheat was grown on the southwest quarter of section 28, in township 19 south, of range 14 west, in Barton county. This land was deeded to Jane Taylor by A. G. Taylor on the 8th of July, 1887. The wheat was sown in the fall of 1887 and the spring of 1888, and harvested in the summer of 1888. The case was tried1 before the court with a jury. The verdict was in favor of Jane Taylor, for $403.30, and judgment entered accordingly. The defendants below excepted, and bring the case here.
It is claimed that the trial court refused to permit testimony concerning what Jane Taylor and her father had said as to the means they intended to employ to defeat McBride’s judgment against A. G. Taylor. The instructions of the trial court were not excepted to, and it appears from the instructions that the land deeded to Jane Taylor by her father, A. G. Taylor, was a homestead. If the land was a homestead, A. G. Taylor could have made a valid conveyance of it without consideration, and Jane Taylor, the grantee, could hold it free from any claim of her father’s creditors.
It is no fraud on a creditor for the debtor to deal as he will with property which the law exempts from attachment or seizure for the debt. (Hixon v. George, 18 Kas. 253, and cases cited; Bish. Contr., §1207; Delashmut v. Trau, 44 Ohio, 613.)
If the property was a homestead or exempt, the questions ruled out by the trial court were wholly immaterial. If Jane Taylor owned the land deeded to her by her father, it is clearly evident from the testimony that she owned the wheat and other crops grown thereon. The wheat in dispute was not sown until long after the 8th of July, 1887, the date of the deed. The statements of A. G. Taylor and Jane Taylor, offered in evidence, were made before the conveyance of the land to Jane Taylor, and while the action of McBride against A. G. Taylor was pending; therefore they did not concern the subject-matter in this action, and also for that reason were immaterial.
Perceiving no material error in the case, the judgment of the trial court will be affirmed.
All the Justices concurring. | [
-15,
108,
-7,
-115,
-54,
-30,
40,
-104,
121,
-94,
-73,
115,
-21,
-41,
0,
41,
98,
109,
81,
106,
-58,
-74,
19,
-61,
-45,
-13,
-61,
-35,
-79,
75,
-26,
-41,
77,
48,
66,
-35,
-26,
0,
-63,
80,
-114,
-122,
-85,
-55,
-44,
114,
52,
59,
114,
77,
117,
46,
-13,
46,
61,
-25,
107,
44,
107,
41,
16,
-8,
-70,
-114,
95,
30,
-112,
38,
-104,
3,
-54,
30,
-72,
53,
0,
-8,
115,
-90,
-122,
-44,
107,
-103,
44,
102,
102,
49,
108,
-18,
-72,
-119,
46,
-2,
-99,
-89,
0,
76,
-62,
104,
-68,
-99,
117,
80,
38,
-12,
-23,
76,
29,
116,
5,
-57,
-76,
1,
-117,
-72,
-102,
1,
-29,
51,
49,
81,
-52,
-78,
93,
101,
122,
-103,
-50,
-17
]
|
Opinion by
Green, C.:
On the 24th day of February, 1888, Poorman Bros., who were doing a milling business at Anthony, sold a car-load of flour to H. G. Gorton, doing business at Norwich, in Kingman county. The flour was shipped upon a written order, of which the following is a copy:
“In consideration of this order, it is expressly agreed that the title to these goods shall be and remain in Poorman Bros, until such goods are paid in full; and said Poorman Bros, shall have the right, at apy time they may deem themselves insecure, to retake possession of such part of the goods as may be left in stock; and the purchaser agrees to take a receipt for such returned goods at above prices and pay the balance of invoice in full.”
At the time the flour was received, Gorton was involved, and to secure the payment of preexisting debts, he executed mortgages upon all of the goods in his store, including the flour which was undisposed of. The mortgagees took possession of the property, placed an agent in charge of the store, and a few days later sold the entire stock to C. T. Witman, who took immediate possession of the stock pf goods. This was an action in replevin, brought by Poorman Bros., to recover the flour on hand at the time Gorton mortgaged the goods. The plaintiffs alleged in their petition that, by the terms of the contract, Gorton was to receive the flour in his store for the purpose of sale at retail, and when so sold he became indebted to the plaintiffs for the goods actually sold; and any goods remaining on hand in stock in his store were to be the property of the plaintiffs. The court sustained a demurrer to the evidence of the plaintiffs, and instructed the jury to return a verdict for the defendant.
It is urged that the court erred in sustaining this demurrer. It is established by the evidence that the flour was shipped from Anthony on the 25th day of February, and some $200 worth sold. A demand was made for the flour unsold on Saturday, the 31st day of March, and a subsequent demand was made the Monday following; but the goods were not found in the building which had been occupied by Gorton, but had been moved three or four doors south, to the defendant’s store. There was no evidence other than the order for the flour as to the terms of the sale. It will be observed that there is nothing in the written contract expressly authorizing the purchaser to sell at retail or in any other way. Poorman Bros, had the right at any time they deemed themselves insecure to retake possession of such part of the goods as might be left in stock. The fair intendment of the parties doubtless was that the flour was to be sold at retail, but there was no evidence to support the allegations of the petition that the goods were to be so sold. Again, the plaintiffs alleged that the flour remaining on hand in stock in the store of the purchaser in Norwich was to be and remain the property of the plaintiffs. There was no evidence to establish the fact that the property replevied was in stock when the demand was made upon the defendant.
The plaintiffs in error insist that the order for the flour was a contract reserving title and should be enforced; and cite numerous authorities of this court where such contracts are held to be valid. All of the cases referred to are where certain specific property, such as organ, wagon and fire-proof safe and other articles subject to identification were in dispute. Courts make a distinction between such articles and goods such as are in dispute in this action, when placed in the hands of a person who may keep similar articles for sale, and the buyer is permitted to deal with the property in a way inconsistent with the ownership of the seller, or in any way which would necessarily destroy his lien or right to the property. (Ludden v. Hazen, 31 Barb. 650.) It has been said:
“Exceptions to the general rule in regard to contracts reserving title exist where the possession of the purchaser is coupled with the usual indicia of title and authority to sell; or with the apparent power to dispose of the property super-induced by the acts of the vendor; or perhaps, where the conditional sale is made with knowledge to a regular dealer in the article.” (McCombs v. Guild, 9 Lea, 81.)
Poorman Bros, placed it within the power of Gorton to dispose of the flour in question; just how, it does not appear from the evidence. They must necessarily have known that he was a dealer in such goods. It does not appear from the evidence that he was restricted to sales by retail. He mortgaged his entire stock of goods for a bona fide indebtedness, and the defendant purchased the same from the mortgagees. We are of the opinion that the demurrer to the evidence was properly sustained; that there was no error in the judgment of the district court, and it should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
105,
-68,
-115,
-70,
104,
56,
-102,
72,
34,
39,
83,
-19,
-10,
17,
45,
103,
109,
-43,
105,
-44,
-93,
35,
34,
-62,
-13,
-63,
-59,
-80,
-55,
-91,
-33,
76,
48,
66,
21,
-58,
-128,
-63,
28,
-114,
-127,
-87,
-25,
-1,
0,
48,
42,
84,
75,
101,
46,
-9,
44,
30,
-53,
73,
42,
-19,
57,
-47,
-23,
56,
15,
47,
23,
-112,
38,
-112,
3,
-40,
30,
-112,
117,
-112,
-24,
115,
-90,
-122,
84,
43,
-119,
13,
98,
102,
48,
-123,
-19,
-56,
-116,
46,
-41,
-99,
-89,
-128,
104,
3,
34,
-65,
-99,
55,
80,
50,
126,
106,
-99,
28,
108,
3,
-50,
-108,
-125,
-89,
-68,
-116,
11,
-50,
-106,
48,
113,
-49,
-78,
93,
39,
48,
27,
78,
-15
]
|
The opinion of the court was delivered by
Johnston, J.:
This action was brought by E. H. Nelson before a justice of the peace against the St. Louis & San Francisco Railway Company, to recover damages alleged to have been sustained through the failure and neglect of the company to construct cattle-guards at the points where the defendant’s road enters and leaves the plaintiff’s fenced premises. In his bill of particulars, he alleged in substance his ownership of the land; that it was fully improved and fenced; the building of the railway through the same; and that for more than three years the company had neglected and refused to erect and maintain cattle-guards at the point where the railway enters his pasture, by reason of which he had lost the use of the pasture; and that during the three years he and his family had been compelled to expend time and labor in guarding his cattle and horses to prevent them from leaving the pasture and trespassing upon the lands of others. He asked damages for the loss of the pasture, and for the time and labor expended in guarding his stock, in the sum of $290. An appeal was taken to the district court by the defendant, where, on the defendant’s motion, the court required the plaintiff to amend his bill of particulars by alleging the number of days he guarded the cattle during each year, who guarded the same, and the value of such services for each year separately. At the opening of the trial, the court sustained an objection to the introduction of testimony, upon the ground that the plaintiff’s bill of particulars did not set forth a cause of action in his favor and against the defendant, and instructed the jury to return a verdict in favor of the defendant. Error is assigned on these rulings.
The facts alleged by the plaintiff, if proven, are certainly sufficient to warrant a recovery in his favor. The contention of the railway company is, that Nelson cannot recover for the loss of the use of his pasture, nor for guarding his own stock to prevent .them from escaping from his pasture. It is said that the object of the law is to protect the land-owner from the trespasses of the animals of other proprietors, and it appears to be conceded that, if Nelson had incurred necessary expense in guarding his pasture or crops against the trespassing animals of his neighbors, he could recover for the same; but it is contended that this is the extent for which a recovery can be had. No such limitation is found in the provisions or purpose of the statute. An injured party can recover all damages necessarily resulting from the neglect and refusal of the company to perform its statutory duty by completing the plaintiff’s enclosure. The loss of the pasture, or the expense necessarily incurred in an effort to prevent the cattle from straying from the pasture, is the direct consequence of the company’s neglect and refusal, for which he is as much entitlen to recover as he would be for the expense incurred in preventing the incursion of the trespassing animals of other proprietors upon his premises. The same principle of compensation applies in the one case as in the other. This was determined in the case of C. K. & N. Rly. Co. v. Behney, 48 Kas. 47; same case, 28 Pac. Rep. 980. In that case, it was alleged that the company had built its railway through a pasture, and had failed and refused to make and maintain cattle-guards where the road entered and left the pasture, and it was held that “the plaintiffs had a right to show that it was necessary to herd their cattle in order to prevent them from straying away from their pasture, and to avoid the loss of their pasture, and possibly also the loss of their cattle, and to prevent the cattle from injuring the plaintiff’s own property outside of their pasture, and also to prevent their cattle from trespassing upon the property of others.” Following the rule in that ease, it must be held that the plaintiff’s bill of particulars in this case set forth a cause of action in his favor, and that the court erred in sustaining an objection to plaintiff’s evidence, and in directing a verdict in favor of the defendant.
The judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
-15,
126,
-68,
-67,
42,
104,
-86,
-101,
83,
-71,
-90,
83,
-119,
-101,
20,
97,
-17,
-67,
81,
106,
-42,
-77,
87,
99,
18,
-13,
-13,
-51,
49,
76,
100,
-58,
77,
20,
-54,
21,
-26,
-22,
73,
-44,
-114,
37,
43,
-19,
-7,
96,
60,
107,
54,
86,
49,
-66,
-5,
42,
20,
-45,
-87,
47,
107,
37,
-111,
-15,
-86,
-113,
127,
6,
17,
102,
-99,
7,
-56,
126,
-104,
49,
1,
-24,
115,
-92,
-105,
116,
105,
-103,
8,
70,
99,
33,
125,
-17,
72,
-120,
44,
-6,
-113,
-90,
-124,
0,
35,
98,
-98,
-99,
-112,
20,
-121,
126,
-28,
-51,
29,
44,
1,
-53,
-106,
-89,
-81,
56,
-108,
21,
-53,
-95,
49,
112,
-124,
-94,
76,
69,
118,
-101,
-113,
-99
]
|
The opinion of the court was delivered by
Horton, G. J.:
The charter of the Bank of Lyons provided for seven directors, and those who had been elected directors were Bell, Porter, Deupree, Stiner, (all residents of the state,) .Grey, Webb, and Slatten. Slatten lived in Missouri, and sold his stock in 1888 or 1889, and had nothing to do with the bank subsequent to that time. Grey was, at the time of the assignment, traveling in New Jersey, his whereabouts not being known. Webb lived on a farm, some distance from Bethany, in Harrison county, Missouri, and had’ not been in the state of Kansas or participated in the management of the bank since 1888. Bell, as president, and Porter, as cashier, had had the exclusive management of the affairs of the bank for two or three years, and this with the knowledge and presumably with the consent of the board of directors. The four resident directors, namely, Bell, the president, Porter, the cashier, Deupree, and Stiner, met together on the afternoon of the 16th of September, 1891, at the request of the cashier, for the purpose of discussing the condition of the bank and determining what should be done. The bank was then insolvent. Seeing that any further efforts-to conduct the business of the bank would be futile, they unanimously adopted a resolution directing the president and secretary to make the deed of assignment, which they did, executing the same in due form and attesting it by the common seal of the corporation. No notice of the meeting was given to Webb, Grey, or Slatten, but both Webb and Grey subsequently participated in the meeting of creditors and the election of R. B. Shumway as assignee.
The principal question for determination in this case is, whether the deed of assignment executed by the president and secretary of the Bank of Lyons to R. B. Shumway for the benefit of its creditors is wholly void. The general rule is, that the directors of a bank or other corporation have-no implied authority to act singly; they can act only as a board. It is also the general rule, that where no provision, is made in the statute, or in the by-laws of a bank or corporation, for the notice required for regular meetings of the directors, or the mode of calling special meetings, all meetings must be called by special notice, to be given to each director. (Beach, Priv. Corp., §§279-283; Railway Co. v. Comm’rs of Anderson Co., 16 Kas. 302; Scott v. Paulen, 15 id. 162; Aikman v. School District, 27 id. 129; National Bank v. Drake, 35 id. 564.)
Under all the circumstances of this case, however, we cannot declare the deed of assignment invalid because the directors Grey, Webb and Slatten were not notified of the meeting of September 16, 1891. They were all outside of the state; they were beyond the reach of any notice that would be beneficial; they were really inaccessible. Slatten had sold his stock, and had taken no part in the management of the bank for several years. Grey’s whereabouts were unknown. Webb lived in Missouri, but had not participated in the management of the bank for several years. If an effort had been made to give each of these directors notice, it would have been going through a form, without accomplishing anything. It is not usually necessary to do a vain or useless thing. At the time of the assignment, the assets of the bank were not sufficient to satisfy all demands against it in full. In such cases, the courts always proceed upon the principle that equality is equity, and, if possible, of apportioning the property pro rata among all the creditors. If the bank had continued its business and received deposits after the 16th of September, its officers would have been guilty of an offense under the statute. If the bank had closed its doors on the 16th of September without any assignment, its assets would have been attached and sacrificed. The courts favor an equal distribution of assets when a party or corporation is insolvent. Unless the resident directors had acted promptly, they could not have acted at all. There was not time to properly serve notices upon the absent directors. A majority of the directors were present at the meeting and acted; they acted unanimously and in the interest of the bank, and for the benefit of all of its creditors and stockholders. Subsequently the two absent directors, Grey and Webb, recognized the assignment by participating in the meeting of the creditors and assisting in electing the assignee. Slatten, having no' stock or no interest in the bank, seems indifferent. He has taken no exception to the assignment. The bank, as a corporation, makes no objection to the assignment; therefore we think that the assignee, having been properly selected by the creditors of the bank, and having taken charge of its assets and property, should proceed to discharge his duties as such assignee and comply with the law.
A similar case is decided in Chase v. Tuttle, 55 Conn. 455. In that case two of the directors, by reason of being absent from the state, did not receive the notification of the meeting. A sufficient number, however, received notice and attended the meeting to constitute a quorum; and, under the circumstances, the court declared that it would seem unreasonable to hold that a majority of the whole number, being present, could not do a legal act binding the corporation. The exigency demanded immediate action, to save the property and to save expense. It is easy to see how disastrous might be the consequences were we to adopt the principle contended for by the defendants. The situation of the absent directors might be much more remote and inaccessible than in the present case, requiring several months to reach them by actual notice. Must the corporation remain paralyzed all this time, without ability to protect itself? (See also Halifax Sugar Refining Co. v. Francklyn [Ch. Div. 1890], 8 Rly. & Corp. L. J. 91—93; Edgerly v. Emerson, 23 N. H. 555; Bank v. Flour Co., 41 Ohio St. 552.)
The demurrer will be sustained, and the peremptory writ of mandamus will be issued as prayed for.
All the Justices concurring. | [
-76,
110,
-8,
-4,
10,
98,
62,
-70,
120,
-96,
-91,
-45,
-23,
88,
5,
125,
118,
13,
-47,
107,
-28,
-74,
23,
-22,
-46,
-109,
-37,
-51,
-79,
77,
-12,
-43,
72,
48,
10,
21,
-58,
-64,
67,
20,
-114,
5,
40,
72,
-39,
-128,
48,
127,
18,
75,
-43,
-70,
-77,
40,
24,
70,
104,
44,
121,
45,
80,
-79,
-70,
-122,
111,
23,
19,
1,
-104,
3,
72,
46,
-104,
49,
-119,
-24,
93,
-90,
-122,
-16,
15,
57,
44,
126,
103,
2,
52,
-21,
-14,
-71,
38,
-42,
-99,
-57,
-108,
25,
-126,
45,
-106,
-101,
93,
23,
2,
-4,
-22,
-123,
24,
108,
1,
-49,
-10,
3,
-113,
125,
-102,
11,
-5,
-93,
48,
113,
-52,
-20,
93,
68,
58,
19,
-114,
-79
]
|
The opinion of the court was delivered by
Horton, C. J.:
On the 25th day of April, 1889, Patsie Dean was elected and afterward duly qualified as clerk of School District No. 21, of the county of Ellis, in this state. He immediately entered upon the discharge of the duties of the office, and has ever since occupied, and was at the times hereinafter stated occupying, the office by virtue of the election. The annual meeting of school district No. 21, for 1891, was held on the 12th day of August, and at that meeting Bernard Martin claims that he was elected clerk of the school board of the district. On the 12th day of August,' 1891, he qualified as such clerk, and on the same day demanded in person of Patsie Dean the records, books and papers belonging to the office. Dean refused to deliver them to him. He then filed a complaint before a justice of the peace of Ellis county, alleging that Dean, “ unlawfully, willfully and wrongfully refused to deliver to him the records and books of the clerk of said school district, or any part thereof.” A motion was filed before the justice to quash the complaint, which was overruled. The defendant, upon trial, was found guilty and sentenced to pay a fine of $10 and costs, and to be committed until the fine and costs were paid. He appealed to the district court of Ellis county, and in that court defended upon the ground that there was no legal election held for the office of clerk of the school district on August 12, 1891; that the complainant, Bernard Martin, had never been elected, and that he never had entered upon the discharge of the duties of the office, or attended any meetings of the board of the school district. The trial court dismissed the action and discharged the defendant. The state excepted, and brings the case here.
The defense was presented somewhat irregularly by way of a plea in abatement. It seems to be conceded that the defendant, at the time of the trial, was still in the possession of his office, claiming to be the clerk of the school district, and also claiming that his successor had not been elected or qualified. The state admitted that no contest, action of quo warranto or other proceeding had been instituted to determine the defendant’s right to the office. Waiving the question whether the case is properly here for decision upon its merits, clearly the judgment of the district court must be sustained. A civil action in the nature of a quo warranto would have been a proper remedy in a case of this kind; but a criminal action is not the proper way to settle the title or possession of an office. (Hunt v. Cemetery Association, 27 Kas. 734.)
A person having at some prior time been legally elected the clerk of a school district, still in the possession of the office, claiming the rightful possession thereof, and also claiming to be legally entitled to hold the same, cannot be convicted under § 52, chapter 92, General Statutes of 1889, relating to schools, (Gen. Stat. of 1889, ¶ 5613,) for neglecting or refusing to deliver the records, books and papers belonging to the office to one not in possession of the office, but claiming the same under a subsequent election.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-76,
-20,
-20,
60,
10,
-31,
26,
-106,
82,
-93,
97,
83,
-83,
-45,
12,
121,
115,
109,
-43,
107,
-58,
-78,
3,
97,
50,
-13,
-5,
-42,
-67,
-20,
-12,
-41,
72,
50,
-54,
21,
70,
64,
-61,
80,
-122,
39,
-87,
78,
89,
-128,
52,
57,
122,
79,
101,
-66,
-13,
108,
28,
67,
-55,
45,
89,
-69,
-64,
-15,
28,
15,
109,
23,
-109,
-90,
-38,
-121,
-24,
46,
-104,
49,
-124,
-8,
59,
-90,
-122,
-12,
13,
-119,
8,
102,
106,
19,
-84,
-17,
-88,
-119,
47,
54,
29,
-26,
-109,
89,
-22,
13,
-74,
-103,
113,
-44,
3,
-10,
-29,
-123,
94,
108,
13,
-49,
-42,
-109,
15,
60,
-126,
11,
-53,
50,
48,
113,
-52,
-12,
88,
66,
49,
-101,
-61,
-11
]
|
The opinion of the court was delivered by
Johnston, J.:
It is contended that the findings' require the entry of judgment in favor of Swigart, who holds under the unwarranted entry of Cummings, the guardian of the Volgymore heirs. As stated in the findings, the guardian entered a tract of public land in Sherman county as an additional soldier’s homestead entry, and a final receipt showing the entry was issued by the register and receiver of the local land office.. Soon afterward the land was conveyed to a town company, and a few months later the company conveyed the portion in dispute to the plaintiff in error. Before the patent issued or the legal title had passed from the United States, it was discovered that Joseph Volgymore, then deceased, had previously used the right and had made a similar entry about 10 years before in California. Thereupon, the final entry made by the guardian of the heirs of Volgymore was canceled, and subsequently the land was entered by Walker, whose qualifications are unquestioned, and the regularity of the steps taken by him to acquire the land is not challenged.
The only question presented is as to the power of the United States land commissioner to set aside the entry and to cancel the final receipt which had been issued. We have no doubt of the power of the commissioner. It is not claimed to have been exercised erroneously or fraudulently, and, if he is warranted in taking such action in any case, it will be presumed to have been regularly and legally done in this case. The action of the local land officers is final, but is subject to the supervision and control of the commissioner and his superior officer, the secretary of the interior. Until the patent issues, the commissioner, under the direction of the secretary, is vested with full power to review and correct any error in the preceding steps takeu in the disposition of the land, and may inquire into and arrest any act of fraud committed against the government. Their power does not end with the issue of the final receipt. This was practically decided in Darcy v. McCarthy, 35 Kas. 722; and most of the adjudicated cases upon the question sustain that view. (Pierce v. Frace, 26 Pac. Rep. 192; Jones v. Meyers, 26 id. 215; Hastres v. Brennan, 50 Cal. 211; Judd v. Randall, 29 N. W. Rep. 589; Forbes v. Driscoll, 31 id. 633; Vantongeren v. Heffernan, 38 id. 52; Bernard’s Heirs v. Ashley’s Heirs, 18 How. 45; Bell v. Hearne, 19 id. 252; Harkness v. Underhill, 1 Black, 316; Marquez v. Frisbie, 101 U. S. 473; United States v. Schurz, 102 id. 378; Steel v. Smelting Company, 106 id. 447; Randall v. Edert, 7 Minn. 450; Gray v. Stockton, 8 id. 529; Ferry v. Street, 11 Pac. Rep. 571.)
When Swigart purchased the land he was aware that no patent had been issued, and took it subject to a reexamination and to the right of the department to cancel the entry for sufficient reasons. No appeal has been taken from the order of cancellation, and having been made with authority, Swigart had no title to the property, and hence the judgment of the district court must be affirmed.
All the Justices concurring. | [
-16,
-6,
-4,
30,
59,
96,
42,
-70,
120,
-87,
36,
19,
107,
-62,
-108,
49,
-15,
-83,
-16,
106,
-58,
-77,
3,
-79,
82,
-77,
-47,
-35,
51,
76,
-92,
-57,
76,
36,
-54,
117,
70,
72,
-59,
-42,
-50,
-91,
24,
69,
-7,
-48,
48,
47,
84,
-113,
113,
-66,
-13,
46,
17,
-61,
41,
46,
-21,
-67,
72,
-71,
-85,
5,
-33,
22,
48,
39,
-102,
-57,
-56,
58,
-112,
57,
-128,
-8,
123,
54,
-110,
116,
79,
-103,
40,
70,
106,
32,
125,
-17,
-8,
-104,
15,
-2,
13,
38,
20,
24,
64,
44,
-106,
-99,
117,
0,
38,
96,
-26,
-36,
25,
108,
3,
-117,
-42,
-91,
47,
120,
-120,
18,
-33,
-117,
48,
112,
-50,
-18,
92,
67,
113,
27,
-113,
-46
]
|
The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Harper county on August 25,1891, in the name of the state of Kansas, by T. J. Beebe, county attorney, against the city of Anthony, and its mayor, city clerk, and councilmen, and the county clerk and county treasurer, for the purpose of having certain city bonds declared void, etc. The prayer of the petition reads as follows :
“ Wherefore, plaintiff prays judgment that said bonds be adjudged null and void, and of no force or effect whatever; that during the pendency of this action the said defendants be temporarily enjoined from making said levy attempted to be made as above set out, and, upon the final hearing of said action, that they and their successors in office be permanently enjoined from levying or attempting to levy any taxes whatever for the payment of any interest upon said bonds or any part thereof; and for costs of suit.”
A temporary injunction was allowed, and afterward certain amendments were made to the petition, with a prayer to enjoin the collection of the taxes, and the defendants demurred to the petition, upon the following grounds, to wit: “ (1) That the plaintiff has no legal capacity to sue; (2) that there is a defect of parties plaintiff; (3) that there is a defect of parties defendant; (4) that the petition does not state facts sufficient to constitute a cause of action.” On November 6, 1891, the court overruled this demurrer, and, the defendants standing upon their demurrer, the court then rendered a final judgment as prayed for in the plaintiff’s petition; and the defendants, as plaintiffs in error, bring the case to this court for review, alleging, among other things, errors of the court below in overruling said demurrer, and in rendering said judgment.
It is alleged in the petition below, that the city of Anthony, which is a city of the second class, on October 1, 1888, issued funding bonds to the amount of $50,000, and that the same were void, for the following reasons :
“1. They were not funded according to law. 2. The said warrants taken up, and for which the funding bonds were issued and delivered, were illegal and fraudulent and void, and did not constitute or evidence any legal or existing debt against said city of Anthony. 3. The funding bonds so issued were issued wholly and solely for the purpose of taking up and in lieu of the illegal, fraudulent and void warrants of said city as alleged, and for no other purpose whatever. At the time said $50,000 of funding bonds were issued, the bonded indebtedness of said city, exclusive of bonds issued for improvements, for which a special tax is levied, bonds issued in aid of railroad companies in securing and paying for lands for right-of-way, depot grounds, and terminal facilities, and bonds issued to refund existing bonded indebtedness, exceeded 10 per cent, of the assessed 'value of all the taxable property within said city, as shown by the assessment books of the year previous to the one on which the last issue of bonds was made.”
To whom these bonds were issued, or in whose hands they now are, or whether in the hands of innocent and bona fide purchasers or not, is not stated or shown; and the bondholders are not made parties to this action. The amount of the bonds issued in the present case was $50,000; but what the amount of the previously-issued and outstanding bonds was, is not stated or shown. Nor is it stated or shown what was the value of all the taxable property within said city as shown by the assessment books of the previous year. (Second-class City Act, §41; Gen. Stat. of 1889, ¶797.) Nor is any copy of any one of the bonds given; nor is it stated or shown what any one of the bonds shows upon its face. If the bondholders had been made parties to the action, they might have shown that the bonds were all regularly issued, and that the amount thereof did not exceed 10 per cent, of the assessed value of the taxable property within the city; and they might also have shown that neither the bonds nor any record of either the city or the county shows any irregularity in the issue of the bonds, or any excess in the amount thereof, or anything else that would invalidate them or éven cast doubt upon them. But, as above stated, the bondholders were not made parties, and there is no statement or showing why they were not made parties. We think “there is a defect of parties defendant,” as was claimed by the demurrer of the defendants below to the petition of the plaintiff below. The bondholders are the only persons who could be made real parties in interest as defendants in this controversy. They are the only ones whose rights will be substantially affected by declaring the bonds to be invalid or by enjoining the offi cers from levying or collecting any taxes to pay them or to pay any interest thereon. The present defendants have no interest in having the bonds declared to be valid, and their interests are probably on the other side. In all probability their interests would require that the bonds should be held to be invalid and that no taxes should ever be levied or collected to pay anything on. them. Of course the judgment rendered in the present case cannot affect the ultimate rights of the bondholders nor any of their rights, further than to cause delay. The judgment cannot be considered as an adjudication against them.
But no attempt should be made to adjudicate their rights without giving them an opportunity to be heard. There are sufficient real controversies in all countries, between real parties in interest, to be litigated in the courts of justice, without resorting to fictitious controversies between nominal parties, or between parties whose interests may all be on the same side. Of course a temporary injunction may sometimes be issued against a merely nominal party to restrain him from doing something that might affect the plaintiff’s rights before service of summons could be had upon any real party with adverse interests; but that case is not this case. This case is an attempt to adjudicate finally upon the ultimate rights of the real parties in interest without giving them any hearing, and without even making any attempt to give them a hearing, or any opportunity to be heard. For cases with respect to a defect of parties, see the following: Injunction to restrain the state treasurer from paying certain money, The State v. Anderson, 5 Kas. 90; injunction to restrain the collection of city assessments, Gilmore v. Fox, 10 id. 509; injunction to restrain the collection of taxes, Hayes v. Hill, 17 id. 360; Voss v. School District, 18 id. 467; A. T. & S. F. Rld. Co. v. Wilhelm, 33 id. 206; mandamus to compel the levy of certain taxes, Cassatt v. Comm’rs of Barber Co., 39 id. 505.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
-16,
-18,
-80,
110,
74,
-64,
32,
-119,
82,
-79,
-91,
87,
-87,
106,
4,
125,
-30,
61,
52,
123,
68,
-78,
7,
99,
-110,
-77,
-35,
-35,
-79,
-3,
-26,
86,
74,
52,
106,
-99,
70,
-62,
-59,
92,
-114,
-123,
-119,
-60,
-37,
9,
52,
123,
115,
11,
-11,
-86,
-13,
40,
24,
99,
-24,
44,
89,
-85,
112,
-15,
-67,
-123,
-33,
71,
-111,
101,
-100,
71,
104,
-66,
-112,
49,
64,
-24,
123,
-90,
-122,
118,
5,
-103,
44,
118,
34,
17,
-67,
-17,
-80,
-120,
7,
-13,
-103,
-90,
-105,
88,
106,
-119,
-74,
29,
93,
22,
7,
-6,
-26,
-123,
28,
108,
-121,
-50,
-42,
-77,
-81,
-80,
-127,
83,
-5,
-94,
48,
113,
-51,
116,
94,
103,
48,
-69,
79,
112
]
|
Opinion by
Strang, C.:
Action on a contract to enforce payment of certain subscriptions, which were in writing and attached to the petition in the ease. A demurrer was filed to the petition of the plaintiff, and sustained by the court. An amended petition was then filed and a general demurrer was interposed thereto. This demurrer was overruled. An answer was then filed stating some five different grounds of defense, the first of which was a general denial. The plaintiff replied to the second ground of defense; filed a motion requiring the defendant to separately state and number his defenses set up in his third count,''and a demurrer to the fourth and fifth grounds of defense. This motion and demurrer were both overruled. The defendant then filed his motion asking for a judgment on the pleadings, because there were no replies to the third, fourth and fifth grounds of defense. The plaintiff, however, with leave of court, replied thereto. Afterward, when said cause came on for a hearing, the defendant moved again for a judgment on the pleadings, which motion was sustained by the court. Motion for new trial was overruled, and the plaintiff brings the case here for review, assigning as grounds for reversing the judgment of the court below the rulings of the court on the demurrers to the fourth and fifth grounds of defense set up in the answer of the defendant, and also the action of the court in rendering judgment for the defendant on the pleadings.
The first question discussed by the plaintiff in its brief relates to the action of the court in entering judgment in favor of the defendant on the pleadings. The defendant, in the fifth count of his answer, alleges that the plaintiff had no-authority to carry out the stipulations of the two subscriptions sued on, and, as a part of said count, attached a copy of the charter under which the plaintiff had its existence. The reply to this count was not verified, and the court held that, as a want of authority was alleged and not denied under-oath, such want of authority must be taken as true, and therefore the plaintiff’s action must fail.
In this action of the court it seems to have confounded the-allegation of a want of authority with an allegation of authority, and applied the statutory rule with respect to the latter allegation to the former. The statute provides that an-allegation of authority in a pleading must be taken as true unless denied under oath; but we do not understand that any such rule prevails in respect to an allegation of a want of authority. Indeed, this court held, in Railroad Co. v. Walz, 40 Kas. 433, that an allegation of the non-existence of authority is not to be taken as true because the denial of the same is not verified. It follows that the court erred in rendering judgment for the defendant on the pleadings. This error necessitates a reversal of the judgment, and we will not consider a further question in the case.
It is recommended that the judgment of the district court be reversed, and remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
48,
124,
-40,
-17,
-118,
96,
48,
-72,
97,
-45,
103,
83,
-23,
-29,
4,
113,
-13,
105,
80,
104,
68,
-78,
47,
-64,
-10,
-13,
-23,
85,
-77,
79,
-18,
30,
76,
48,
-62,
-43,
71,
-126,
-63,
88,
-114,
0,
-103,
109,
-15,
66,
48,
57,
64,
15,
49,
-9,
-13,
36,
17,
-53,
-87,
44,
-38,
-75,
-64,
-15,
-97,
13,
127,
11,
-79,
53,
-100,
67,
-56,
46,
-128,
57,
1,
-24,
123,
-74,
-122,
116,
75,
-71,
12,
102,
98,
32,
-32,
-18,
-100,
-72,
47,
58,
-99,
-90,
-45,
121,
43,
8,
-74,
-99,
116,
20,
7,
118,
122,
-99,
-100,
109,
7,
-53,
-42,
-77,
-113,
116,
30,
-57,
-26,
-78,
0,
85,
-60,
-80,
92,
99,
25,
27,
-51,
-103
]
|
The opinion of the court was delivered by
Johnston, J.:
This is an appeal from a conviction for unlawfully selling intoxicating liquor. In an information containing a single count, it was charged that Walter Lund —
“On or about the 15th day of May, 1891, and on divers other days and times between that time and the time of the filing of this information, at the city of Harper, in the county and state aforesaid, did then and there unlawfully keep the place known and described as the back part of the north room of the opera house, situated on lot 9, block 21, in the city of Harper, Harper county, Kansas, and said . and Walter Lund, with the knowledge and consent of said . . . agent of the owner of said buildings and said place, and then and there and said other days and times unlawfully did sell, barter, and give away, and keep for sale, barter, and use, intoxicating liquors, in violation of the act of the legislature of the state of Kansas, etc., to the common nuisance of the people of the said state of Kansas.”
It was assumed by both court and counsel that the information charged two distinct offenses, namely, the unlawful selling of liquors, and the keeping of a common nuisance. At the trial, testimony was offered tending to show numerous sales of liquor during the year 1891, at the place named in the information. After the evidence of the state was sub mitted, the defendant asked the court to require the state to elect on which offense charged in the information the state would rely for a conviction. The request was granted by the court, and the state elected to rely upon a sale of intoxicating liquors. The defendant then moved the court to require the state to elect on which particular sale claimed to have bean proven it would rely for a conviction. The motion was granted, and the state elected to rely “upon a sale of beer made to C. S. Lloyd and to W. H. H. Smith in the month of May, 1891.” The defendant then requested that the state be required to indicate one or other of the sales made to C. S. Lloyd and to W. H. H. Smith in May, 1891, on which it would rely for a conviction, which request was denied by the court. The defendant then asked the court that the state be required to make its election more definite and certain, and that it be required to state on what particular sales made to C. S. Lloyd and what particular sales made to W. H. H. Smith the state would rely for a conviction in the case. This request was granted by the court, and the state then designated the sales made “to Dr. C. S. Lloyd on or about the 20th of May, 1891, and upon the sales made to W. H. H. Smith and Dr. C. S. Lloyd from the 9th to the 11th of May, 1891.” A further effort was made by the defendant to have the election made more definite and certain, and to have the election confined to a single sale, but each request was denied.
The court instructed the jury that the defendant was charged with the unlawful sale of intoxicating liquors, and that he could not be found guilty of any other or different sale than those upon which the state had elected to rely for a conviction. They were further advised that the state had elected to rely upon the illegal sale of beer to Doctor Lloyd on or about May 20, 1891, and upon the illegal sale of beer to Doctor Lloyd and to W. H. H. Smith between the 9th and 11th of May, 1891, and that, if the jury found the defendant guilty, they must designate in their verdict upon which sale or sales they found the defendant guilty. The jury returned a verdict finding the defendant “guilty of selling beer to C. S. Lloyd and Smith, May 9 to 11, 1891.” A motion for a new trial was made, the principal grounds of which were the refusal of the court to compel a more restricted, definite and certain election on the part of the state, but the motion was overruled, and the defendant was sentenced to pay a fine of $ 100 and to be confined in the county jail for the period of 30 days.
The numerous decisions upon the subject of election in like cases compel a reversal of the judgment in this case. It is difficult to see why the information was held to charge more than one offense. The language employed indicated a purpose to charge the defendant with keeping a place where intoxicating liquors were unlawfully sold, and where persons were permitted to resort for the purpose- of drinking such liquors as a beverage; in other words, the keeping of a common nuisance. If it had been so treated, the state would not have been required to elect upon what sales it would rely for conviction, and the testimony produced seems to have been sufficient to have sustained such a charge. However, the information was regarded by both the court and counsel as charging two offenses in a single count: One, the unlawful sale of intoxicating liquors, and the other, the keeping of a common nuisance. The state elected to try the defendant for the unlawful sale of intoxicating liquors on or about the 15th day of May, 1891. With that interpretation of the information and election, it was the duty of the court to require the state to select and rely for a conviction .upon one of the several sales about which testimony was given. There was testimony offered tending to show numerous sales to both Lloyd and Smith during the month of May, 1891, and testimony of many sales to each and to both during the times named in the election and in the verdict. The uncertainty and indefiniteness of the election no doubt confused the jury, and led them to return such a comprehensive and indefinite verdict. There was error in not requiring a more definite election, and error in the charge of the court in not restricting the jury to a single sale. (The State v. Schweiter, 27 Kas. 500; The State v. Crimmins, 31 id. 376; The State v. O’Connell, 31 id. 383; The State v. Guettler, 37 id. 582; The State v. Lund, ante, p. 209; same case, 30 Pac. Rep. 518.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-79,
-22,
-4,
30,
58,
-32,
42,
-98,
66,
-75,
-75,
83,
-23,
18,
65,
121,
-85,
95,
85,
105,
-54,
-77,
23,
-63,
-42,
-69,
-37,
-57,
-67,
75,
-28,
117,
8,
52,
74,
53,
-90,
-61,
-63,
28,
-118,
5,
11,
-24,
91,
40,
52,
123,
35,
18,
113,
47,
-9,
44,
94,
-58,
73,
44,
-53,
30,
80,
-71,
-104,
-115,
111,
6,
-125,
2,
-100,
-123,
64,
124,
-102,
49,
76,
-24,
115,
-92,
6,
116,
71,
-119,
45,
98,
102,
33,
29,
-21,
32,
-119,
-81,
15,
-99,
-25,
-112,
80,
97,
40,
-98,
-103,
-73,
16,
-121,
-4,
-29,
-43,
-47,
44,
-124,
-38,
-76,
-77,
-113,
57,
-128,
87,
-37,
39,
48,
101,
-51,
-20,
124,
86,
114,
27,
-114,
116
]
|
The opinion of the court was delivered by
Johnston, J.:
This is a proceeding brought by the Chicago, Kansas & Western Railroad Company to compel the defendants to issue and deliver to plaintiff the bonds of Chase county in accordance with the vote of the people and the contract of the parties. Several phases of the controversy have already received the consideration of the court, and some preliminary questions have been determined. [C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kas. 223; same case, 43 id. 760. See, also, C. K. & W. Rld. Co. v. Evans, 41 Kas. 94.) It has been finally submitted upon the merits, and the large volume of testimony which has been taken relates mostly to the sufficiency of the petition upon which the election was ordered. The alternative writ alleges in substance that a legal petition was presented to the board of county commissioners of Chase county on October 12, 1886, asking that an election be called to submit to the voters of the county a proposition to subscribe for $80,000 of the capital stock of the railroad company; that the petition was signed by 828 resident tax-payers of the county; that the board duly considered the petition, and found and determined that it contained the signatures of more than two-fifths of the resident tax-payers of the county, and thereupon ordered an election to be held on November 16, 1886, to determine whether the subscription should be made upon the terms and conditions contained in the order for the election; that an election was duly held, and the returns canvassed, and the result found and declared to be in favor of the subscription, and that the county clerk upon the order of the board thereupon subscribe for $80,000 of the capital stock of the company; and that the company thereupon constructed and completed its road in accordance with the terms of the subscription made by the county; and it is finally alleged, that the defendants refuse to issue and deliver its bonds or to carry out the terms of the subscription.
Three principal objections are urged by the defendants against the allowance of the writ: First, the insufficiency of the petition presented to the board of county commissioners on October 12, 1886, for the calling of an election; second, non-compliance with the conditions of the contract of subscription made between the county and the company; and, third, the insufficiency of the demand made by the company for the issuance of the bonds.
The leading consideration in the case, and the one upon which the most effort has been expended by the parties, is the sufficiency of the petition which was the basis of the call for an election. It was regular in form and appeared to contain a sufficient number of signatures, and it recited that the signers were residents and legal voters of the county. Upon a canvass of the petition, the board of county commissioners found and determined that it contained more than two-fifths of the resident tax-payers of the county, and thereupon ordered an election in accordance with the prayer of the petition. The sufficiency of the petition was not challenged by any one until after the election was held, the bonds voted, the subscription made by the county, and the railroad built, nor until after steps had been taken by the plaintiff to obtain the execution and delivery of the bonds. Notwithstanding the finding and declaration of the board of county commissioners that the petition was legal and sufficient, the defendants have endeavored to show that all who signed it were not legal petitioners, and that it did not contain the requisite number of legal signers.
The plaintiff insists that it has shown the petition to have been sufficient in every respect, but it contends that this inquiry is no longer open, and that the defendants by their acts and acquiescence are estopped from asserting that the petition was not signed by two-fifths of the resident tax-payers, if it really had been defective in that respect. The last contention has already received-the attention of the court, and the doctrine of estoppel in a case substantially like this one has been applied and sustained. (H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 Kas. 70; same case, 28 Pac. Rep. 1078.) As has been stated, the election was called upon what appeared to be a valid petition, and which was found and determined by the county board to be formal and legal. A large majority of the legal electors of the county voted in favor of the proposition, and the county board canvassed the result, and declared that the bonds had been voted in accordance with the vote of the people, and, upon the order of the county board, a legal subscription was made to the capital stock of the company, upon the faith of which the company proceeded to construct the railroad in accordance with the terms of the proposition, and it is claimed that the railroad company has substantially complied with all the conditions of the proposition. If there has been such compliance» the case falls fairly within the ruling in the Kingman county case, and entitles the plaintiff to the allowance of the writ. The two cases were pending at the same time, and the counsel in the present case appeared in the Kingman county case, and were heard at length in argument upon the question of estoppel.
We see no cause to disturb the ruling nor to enlarge upon the reasoning of the decision made in that case; neither do we find any room for a distinction in the facts of the two cases; nor any reason why the ruling in the Kingman county case is inapplicable here. The defendants attempt to distinguish the cases, for the reason that some persons connected with the railroad company assisted in securing the petition and the calling of the election. The obtaining of signatures and the presentation of the petition appear to have been in the hands of a committee of the citizens of Chase county, and this committee was assisted to some extent in its work by persons who were officers or agents of the company. It does not appear, however, that the company or any of its officers or agents had any knowledge of the defects in the petition, if any existed; nor is it shown that any insufficiency in the petition was called to the attention of the company until after the road was completed aud the conditions of the contract upon its part carried out. No knowledge of defects, no bad faith, nor attempt to mislead on the part of the company is shown, and no reason is seen why the plaintiff cannot avail itself of the principle of estoppel. The fact that the capital stock was received and retained by the township in the King-man county case, and not in this case, will not prevent the application of the rule here. The exchange of stock for bonds is subsequent in point of time to the expenditure of money on the faith of the contract and the completion of the road by the company; and hence, the tender or receipt of the stock does not affect the question of estoppel.
It is insisted now, however, that the company did not substantially comply with the conditions of the contract between it and the county. The contract required that the company should build, complete and put in operation, by lease or otherwise, on or before the 1st day of June, 1887, a railroad, from a connection with the Ellinor extension, at some favor able point in the valley of the South Fork, on the Cottonwood river, in the county pf Chase, to the north line of the county; and one of the conditions was, that the company should “ establish and maintain a division terminus, with such division facilities as may be necessary in the operation of the Chicago, Kansas & Western railroad, at a point situated between the cities of Strong City and Cottonwood Falls, Chase county.” The proof shows the establishment of a division terminus with such division facilities at a point on the line of road between Cottonwood Falls and Strong City. It appears, however, that it is a little east of a direct line between the points named; and it is contended that for this reason there is a non-compliance with the conditions of the contract. There is nothing substantial in this objection. It was the contract and purpose of the parties that the division facilities should be located on the line of the road, and nothing in the proposition indicates that the company was required to build a straight line of road between the points named. It was doubtless the intention of both parties that diversions from a direct line should be made wherever it was necessary in order to obtain a good road-bed. The division facilities in this case are only a few rods east of a direct line between the towns, and no reasonable interpretation of the contract would hold that there was a non-compliance with respect to the location.
It is said that the contract was not complied with in respect to the building of bridges across the Cottonwood river at Cottonwood Falls, and over Fox creek a short distance west of Strong City. Bridges were built at both points, and the road was in operation, from its initial point on the Ellinor extension to the north line of the county, on the 31st day of May, 1887. They were what is known as pile bridges, and such as are in common use on western railroads, and the same as were built over such streams by tne Chicago, Kansas & Western and the Atchison, Topeka & Santa Fé railroads. A short time after the opening and operation of this road, there was substituted for the bridge at Cottonwood Falls what is known as a Howe truss bridge; and over Fox creek, where the road was built parallel with that of the Atchison, Topeka & Santa Fé railroad, the plaintiff joined with the Atchison company in the construction of an iron bridge. The fact that other bridges were substituted for these later in the year, and the fact that when these first bridges were built the company had in contemplation the putting in of a better class of bridges, does not prove that these first built were insufficient to meet the requirements of the contract between the county and the company. It appears, too, that one end of the Cottonwood bridge was dislodged by a freshet shortly after it was constructed; but the-testimony clearly shows that both bridges were up to the standard of railroad bridges in this state, over such streams,, both as to expense and durability.
It is also said that the plaintiff had no track over Fox creek for a time. The testimony satisfactorily shows, however, that on the 1st day of June, 1887, the plaintiff had a track of its own from the initial point on the Ellinor extension to the north line of the county. Some of the testimony tends to show that the track at Fox creek was subsequently-taken up and another track used for a time; but if this-was done it was during the substitution of the iron for the wooden bridge at that point, and the mere temporary use of another track under the circumstances, and for a short time, could not be regarded as a breach of the contract. At Strong City, and for a short distance west of that point, the plaintiff’s line of road runs parallel with that of the Atchison Topeka & Santa Fé Eailroad Company, and by an agreement with the latter company, the plaintiff obtained the right to-occupy a portion o|t the right-of-way of the Atchison roa 1. In accordance with that agreement and license the road was-built, but no deed or conveyance of the easement was ever made to the plaintiff. The Atchison company agreed to deed the right-of-way, but for some reason the execution of the-conveyance was overlooked. The failure to execute a form d conveyance, however, is no defense in the present case. The plaintiff has entered upon the possession of the right-of-way under the agreement, has constructed its road relying upon the agreement, and has expended money upon the faith of it, and therefore the plaintiff cannot be disturbed in its possession. It does not appear, however, that the plaintiff’s right of possession has ever been questioned by the Atchison company, or by any one else. A reading of the testimony very clearly shows a substantial compliance with the conditions of the subscription. (S. K. & P. Rld. Co. v. Towner, 41 Kas. 72; C. K. & W. Rld. Co. v. Makepeace, 44 id. 676.)
The finding of the district court in the case of C. K. & W. Rld. Co. v. Evans, 41 Kas. 94, was to the same effect. Although the decision in that case has no binding force in this, it discloses that at a trial in the immediate locality, and with the witnesses personally present in the court, it was found that the “railroad company complied with and fulfilled each, every and all of the propositions and conditions which it was required to fulfill and comply with in order to carry out its part of said subscription, and it fully did and performed each, all and every of the several things which it was to do and perform under and by the terms of the proposition, . . . and within the time therein required.” It appears, therefore, that the plaintiff has earned the bonds of the county, and was entitled to the delivery of the same after June 1, 1887, upon demand.
It is claimed as a defense, however, that no legal demand was ever made upon the board of county commissioners for the issuance and delivery of the bonds. It appears that, after the completion of the road, and about the middle of June, 1887, the members of the board were notified that their presence was required at the county seat to take action with reference to the bonds, and that they responded to this call, when an agent of the plaintiff visited Cottonwood Falls and deposited $80,000 of the capital stock of the plaintiff with the county treasurer, and then delivered bonds prepared for signing in the county clerk’s office, where members of the board were, and requested the execution of the same. The county commissioners, however, were not in session as a board; and, while it was evident that the individual members of the board were unwilling to execute and deliver the bonds, no action was taken by them in an organized capacity. Neither was any formal demand made when they were sitting as a board, and a demand upon the individual members is not sufficient in a case where a demand is required. It would seem, therefore, that no formal demand was made prior to the commencement of this proceeding. But such a demand is not always necessary in order to maintain mandamus. If, when this action was begun, the board had shown a willingness to perform its duty, but had also set forth that no demand had been made upon it, the board certainly would have been entitled to a judgment for costs. But where the course and conduct of the officers are such as to show a set- . tied purpose not to perform the imposed duty, the' writ may be awarded without any formal demand. The action of the officers before and since the commencement of this action clearly shows that a formal demand would have been unavailing. The commencement of this proceeding was at least a sufficient demand, and the defendants, instead of indicating a willingness to execute the bonds, expressly denied the right of the plaintiff to the bonds, and denied the existence of any obligation or duty to issue and deliver them. Having distinctly manifested their purpose not to perform this duty, the question of a formal demand is no longer important. It appears that it would have been useless and foolish, and the law rarely requires the doing of a useless act. (Shoemaker v. Simpson, 16 Kas. 43; Hall v. Draper, 20 id. 137; Raper v. Harrison, 37 id. 243; Chinn v. Bretches, 42 id. 316; The State v. Common Council of Rahway, 33 N. J. L. 110; Cleveland v. Board of Finance, 38 id. 259; Tracy v. Irwin, 85 U. S. 549; Dill. Mun. Corp. [4th ed.], §867, and cases cited.)
We think the judgment should be for the plaintiff, and, therefore, the peremptory writ of mandamus will be allowed.
All the Justices concurring. | [
116,
110,
-68,
-98,
-86,
96,
51,
-102,
83,
-15,
-92,
83,
-119,
-54,
20,
115,
-6,
61,
-44,
106,
68,
-109,
87,
-29,
-110,
-77,
-13,
-51,
-77,
73,
-12,
-41,
77,
52,
-118,
21,
102,
-54,
69,
-98,
-114,
-115,
41,
-24,
-37,
-88,
60,
115,
54,
67,
113,
-2,
-13,
40,
24,
-29,
105,
61,
-21,
-87,
-111,
-15,
-70,
-57,
125,
6,
17,
70,
-103,
-123,
-56,
62,
-104,
53,
6,
-4,
115,
-90,
-122,
-10,
105,
-87,
72,
102,
99,
1,
-76,
-17,
60,
-120,
14,
-110,
29,
-25,
-74,
24,
-85,
3,
-74,
29,
86,
82,
-121,
-2,
-81,
5,
17,
124,
-128,
-53,
-78,
35,
15,
52,
10,
71,
-53,
-95,
48,
96,
-51,
-78,
92,
71,
50,
27,
-113,
-68
]
|
Opinion by
Green, C.:
H. B. Woodbury was charged with taking, stealing and carrying away two bushels of wheat, of the value of $1.25, from the farm of A. G. Mead, in Osborne county. He was tried and convicted before a justice of the peace, and appealed to the district court. The original complaint was amended in the district court, and the defendant was charged with malicious trespass, under ¶ 7157 of the General Statutes of 1889, and also with disturbing the peace and quiet of D. G. Robertson, Chauncey Bowen, and James Worley, by hindering, molesting and delaying them in threshing wheat owned by A. G. Mead. Upon the trial in the district court, the defendant was found guilty of disturbing the peace, and adjudged to pay a fine of $5 and costs, rom this judgment of conviction he appeals.
It is insisted by the appellant that the evidence introduced upon the part of the state failed to show that he committed the offense of which he was found guilty. It is disclosed by the evidence that a crop of wheat had been raised upon the farm described in the complaint by George Myers, who cultivated the premises as the tenant of the defendant. A. G. Mead obtained a sheriff’s deed for the place on the 23d day of June, 1891, while Myers was still in the occupancy of the land. The wheat was cut and stacked by the tenant and was being threshed, on the 16th day of November, 1891, when the defendant, with several other parties, went to the place to obtain, as he claimed, his share of the crop. D. G. Robertson was also present, with the other parties named in the complaint, to secure the landlord’s share of the wheat for Mead. It seemed to have been conceded that Myers was entitled to the tenant’s share of the crop. The real controversy was over the landlord’s share. Robertson and his party claimed it for Mead, under the sheriff’s deed, and the defendant claimed it under a lease with Myers. Robertson attempted to take possession of one-half the grain, and one of the men under him struck one of the defendant’s men with a scoop shovel. There was no evidence that the defendant disturbed the peace and quiet of any one. There seemed to have been an honest contention upon the part of each one of the claimants for the landlord’s share of the crop of wheat, and the controversy should have been settled by a civil action, rather than by resorting to the criminal code to have property rights adjudicated. The constable who had the writ for the arrest of the defendant and the four men with him testified that he had a warrant for four or five men. In case they interfered with the measuring of the grain, he was to make the arrest; and as soon as.they did he made the arrest. It was obvious from this evidence that the object o'f the complaining witness in procuring the warrant was to obtain possession of disputed property through a criminal process. Such methods should not be tolerated by the courts.
It is recommended that the judgment and sentence of conviction be set aside, and the defendant discharged.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam:
The case of The State v. Woodbury, No. 8433, also from Osborne district court, grew out of the same transaction that the case of The State v. Woodbury, just decided, was based upon, and the facts of this case are the same as the facts of that case.
This case is therefore reversed, on the authority of that case, and for the reasons therein stated. | [
116,
104,
-104,
-115,
42,
-32,
42,
-102,
66,
-93,
-93,
87,
-23,
-105,
1,
49,
34,
101,
85,
-23,
-58,
-90,
51,
-45,
-14,
-5,
-53,
-47,
51,
77,
-81,
-44,
79,
48,
-126,
61,
103,
-64,
-27,
-36,
-114,
4,
-85,
122,
-44,
0,
48,
63,
86,
11,
113,
46,
-9,
46,
29,
-57,
65,
44,
-49,
45,
113,
-7,
58,
13,
43,
15,
-128,
102,
-72,
3,
-62,
110,
-110,
113,
3,
-8,
-5,
-128,
-122,
-44,
7,
-119,
-116,
98,
102,
49,
-116,
-17,
32,
-83,
38,
-1,
-99,
-90,
-60,
72,
66,
32,
-66,
-103,
114,
82,
38,
-6,
-27,
-51,
13,
120,
-91,
-50,
-108,
-107,
-113,
-88,
-104,
-47,
-21,
47,
49,
113,
-113,
-82,
93,
37,
112,
-101,
-113,
-75
]
|
The opinion of the court was delivered by
Horton, C. J.:
This was an action instituted in the court below by L. C. Challiss and a large number of other taxpayers of the city and county of Atchison, in this state, to restrain the sale of certain lots and tracts of land for taxes alleged to have been illegally levied thereon, and to have such taxes so levied declared void. A demurrer was filed to the petition by the defendants for various reasons. At the September term, 1891, the trial court sustained the demurrer, upon the ground that the petition did not state facts sufficient to constitute a cause of action. The plaintiffs excepted, and bring the case here.
It appears from the recitations in the petition, that on Monday, March 3, 1890, at a meeting held by them, the several township and city assessors of Atchison county agreed to assess the real property of the county for the current year upon the basis of 25 per cent, of its actual cash value. On June 10, 1890, a majority of the board of county commissioners, sitting as a board of equalization, believing that the assessors of certain townships and of the city of Atchison had returned the assessed valuation of the lands in their townships and the lots in Atchison at a much less proportion than the basis of agreement made by the assessors, in order to equalize the assessed valuation of lands in the townships and the lots in the city of Atchison, that all might be assessed equally upon the basis of 25 per cent, of the actual cash value as agreed upon by the assessors, directed that the assessed values of lands in Shannon township, for the year 1890, as returned by the assessor of the township, be increased 24 per cent.; that the assessed values of lands in Lancaster township, for the year 1890, as returned by the assessor of the township, be increased 4 per cent.; that the assessed values of lands in Grasshopper township, for the year 1890, as returned by the assessor of the township, be increased 7J per cent.; that the assessed values of lands in Mt. Pleasant township, for the year 1890, as returned by the assessor of the township, be increased 5 per cent.; that the assessed values of lands in Walnut township, for the year 1890, as returned by the assessor of the toAvnship, be increased 1J per cent.; that the assessed values of lots in the city of Atchison, for the year 1890, as returned by the assessor of the city, be increased 61 per cent. The county clerk was instructed to add to the value of each tract of land as returned by the assessors of the townships, and to the value of each lot as returned by the assessor of the city of Atchison, the percentage of increase of value as made and determined by the board. To this order, one of the commissioners, Mr. Kiper, objected, and filed his protest, upon the ground that it was unjust, unfair, and inequitable, and not a proper exercise of the equalization power of the board. Under the law as declared by this court, the ruling of the court below cannot be reversed or modified. It was declared in Fields v. Russell, 38 Kas. 720, that—
“Where the board of county commissioners meets as a board of equalization, under the provisions of article 11, chapter Comp. Laws of 1885, such board has the right to raise or lower the assessment of any township by its own motion, and without a hearing or evidence upon individual assessments.”
It was said in the Fields case that—
“Counties are divided into commissioner districts, and the board is supposed to know the value of property in the county; and when the commissioners meet as a board and find that some townships have been assessed at a higher rate than others, it is the duty of the board, under this law, to equalize these assessments.” See also Gillett v. Treasurer of Lyon Co., 30 Kas. 166; Ritchie v. Mulvane, 39 id. 241.
In the Gillett case, Mr. Justice Brewer, speaking for the court, said:
“Prior to 1876 the law was settled that personal-property assessments could not be changed except after notice to the owner. (Commissioners v. Lang, 8 Kas. 287; Railway Company v. Commissioners, 16 id. 587; Railroad Company v. Smith, 19 id. 233.) At the same time the board of equalization had power to correct the assessment of real estate without personal notice to the owner. (Railroad Company v. Russell, 8 Kas. 558; Railroad Company v. Commissioners, 16 id. 587.) . . .
“In 1876 a radical change was made in the tax law. By § 74 of the tax law of that year, (being chapter 107, Comp. Laws of 1879,) the board of equalization is in terms given jurisdiction over the equalization of the valuation of personal property to the same degree as over real property. . . . The county board of equalization has power now to change the valuation of personal property, as it has that of real estate, by raising or lowering the same, and the old rule was changed by the legislation of 1876. We may add, in conclusion, that the various assessors of Lyon county met and agreed upon a basis of assessment; that afterward this basis of assessment was ignored by the assessors of certáin townships, and that the only action of the commissioners was in raising the assessments in these townships to the basis agreed upon at such meeting. This is simply an additional reason for sustaining the action of the county board.”
In Adams v. Beman, 10 Kas. 37, the syllabus reads as follows :
“In 1870, the laws of Kansas required that all property should be assessed at its true value, and also required that deductions for indebtedness should be from credits only; but notwithstanding these provisions of law, the township assessors for Shawnee county for that year, in pursuance of an agreement among themselves, illegally and intentionally assessed all the personal property in said county, except moneys, credits, and shares in national banks, at only one-third of its actual value, and assessed moneys, credits and shares in national banks at their full value; and they also illegally permitted the persons whom they assessed to deduct the amount of their indebtedness from their moneys and credits. Held, That said assessment, though illegally and improperly made, does not render all the taxes founded thereon void, nor does it authorize an injunction to restrain the collection of two-thirds of the taxes levied on moneys, credits, and shares in national banks.”
It is forcibly contended in this case, as it was urged in the Adams case, nearly 20 years ago, that as the statutory rule of assessment was disregarded by the local assessors of Atchison county and city, and as the real estate was only raised or equalized at a valuation of 25 per cent, of its actual cash value, this court should not only condemn the conduct of the officers in disregarding their statutory duty, but should also proceed further, and declare the taxes levied upon such assessments fraudulent and void. The allegations in the petition about the “arbitrary, unjust, illegal and unlawful” order and action of the board of equalization are mere epithets, not the statement of specific facts. A pleading is to be construed most strongly against a pleader, and hence the order of the majority of the board of equalization must be construed to qualify or limit the other allegations in the petition, as the order is made a part thereof. The protest of one member of the board is not as effective as the action of the majority. The statute permits a majority of the board of county commissioners, sitting as a board of equalization, to equalize the valuation of real and personal property. (Gen. Stat. of 1889, ¶ 6922.)
The plaintiffs are not entitled to an injunction on the ground that the assessors and the board of county commissioners equalized the value of the property described at less than its true value. Although it is alleged in the petition that the property was returned by the assessor at its true value in money, considering the other allegations and the arguments in this court, it may be assumed, we think, that the property had been assessed at less than its true value. If the property had been actually assessed or equalized beyond its true value in money, a different question would be presented. If we were to decide that the failure of the board of equalization to fix the value of the' property in Atchison county and city at its true value in money avoided the taxes levied on the increased valuation, it would logically follow that all the taxes would be invalid on account of the failure of the assessors to comply with the provisions of the statute. (Gen. Stat. of 1889, ¶¶6861, 6904.)
While the county officials ought to be censured for a willful disregard of their duties in not assessing property at its true value, yet this court will not invalidate the taxes levied, on the ground solely that the assessors intentionally or accidentally assessed property at less than its value. (Adams v. Beman, supra.) Theoretically, it might be said that all taxes ought to be void unless property is valued precisely as the terms of the statute require, but such a construction would be fatal in its consequences and cause “confusion worse confounded.” The serious results of such a ruling are fully stated in the Adams case. We must look to practical results and not to theories only. If we were to hold that the taxes levied as alleged in the petition were wholly void, this would not punish the county or city assessors, nor the county commissioners. It would, however, be disastrous to the people of Atchison in carrying on the financial affairs of such county and city. If the legislature were to provide for the infliction of severe penalties upon assessors or other officials who willfully disregard their duties, or if the selection of assessors were changed, so that they would be relieved from the influence of those by whom they are elected, and whose property they are required to assess, perhaps the vicious practice now so generally prevailing concerning the low assessment of property might be remedied. But a decision of this court annulling the taxes levied upon property at less than its true value would be no efficient remedy, and would cause untold complications. Under such a decision, it might be impossible to collect any taxes within the state.
It is finally contended that the order of the county board of equalization was made on the 10th day of June, 1890, and not on the first Monday of June, 2890, which was the second day of that month. (Gen. Stat. of 1889, ¶ 6922.) The statute prescribes that the county board of equalization shall meet on the first Monday of June, and “then proceed to equalize the valuation of real property.” It appears from the allegations in the petition that the board of equalization did meet on the first Monday of June, 1890, and on the 10th day of June made the order complained of. We think, if the board met on the day appointed by the statute, it had authority to ad- „ , , . iourn from time to time to act upon and complete the equalization of the property of the county. (1 Desty on Taxation, p. 499.) It is specially prescribed by the statute relating to assessment and taxation, that “the failure of any officer or officers to perform the duties assigned him or them upon the day specified does not work an invalidation of the proceedings.” (Gen. Stat. of 1889, ¶ 6993.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-16,
-18,
-79,
-83,
106,
-32,
74,
-99,
72,
-79,
-76,
87,
-23,
-45,
1,
115,
-5,
29,
81,
106,
70,
-73,
83,
-93,
-46,
-77,
-37,
-33,
-79,
76,
-26,
-42,
78,
52,
-53,
-107,
6,
98,
67,
84,
-114,
-115,
41,
-64,
89,
64,
60,
125,
50,
75,
49,
14,
-5,
40,
28,
-29,
-24,
44,
-37,
-71,
-111,
-15,
-72,
-113,
95,
15,
1,
70,
-4,
1,
-56,
42,
-112,
57,
64,
-24,
115,
-90,
-122,
116,
5,
-119,
12,
38,
103,
33,
-76,
-49,
-8,
-120,
47,
-14,
-115,
-90,
-121,
88,
82,
-32,
-74,
-103,
116,
84,
-121,
-14,
-29,
5,
29,
108,
15,
-114,
-76,
-101,
-113,
52,
-126,
75,
-5,
-85,
48,
97,
-51,
70,
92,
67,
18,
-69,
-98,
-8
]
|
The opinion of the court was delivered by
Valentine, J.:
It appears that on June 29, 1887, John E. Gardner and Thomas W. Scott entered into a written contract, whereby Gardner agreed to sell and convey by warranty deed, within 30 days, a certain tract of land in Ness county, “ free and clear of incumbrances of whatever nature or kind,” and Scott agreed to pay Gardner therefor $16,000, one-half on the delivery of the deed, and the remainder in three equal annual installments, and it was further agreed by the parties, as follows:
“And for true and faithful performance of all and every of the covenants and agreements above mentioned, said parties bind themselves each to the other, in the penalty sum of $1,000, as liquidated damages to be paid by the failing party.”
At the time of this agreement there were two mortgages on the land, amounting in the aggregate to about $1,200. About the time of this agreement Gardner became sick with typhoid fever, and therefore could make but little effort to accomplish the payment of these mortgages, or to procure a release thereof within the 30 days, but possibly if he had been well he could' not have done these things,, for the reason that the mortgages were not to become due for three or four years • and it does not appear that they have yet been paid, satisfied, or released. Within the 30 days, however, Gardner and wife executed a general warranty deed for the land, purporting to-convey the same free and clear from all incumbrances, and tendered the deed to the assignee of Scott, to wit, Adam Rinard ; but Rinard refused to accept the same. Whether the failure on the part of Gardner to procure an extinguishment of these mortgages within the 30 days allowed, and to convey the land to Scott,or his assignee, free and clear from all incumbrances, was a benefit or an injury to either Scott or his assignee, is not shown. And whether Scott or his assignee complied with the conditions of the agreement on their part, it is hardly necessary for us now to consider. We might say,, however, that Scott’s assignee offered to Gardner a draft for $8,000, aud three promissory notes for the remainder of the purchase-money, and no objections appear to have been made by Gardner to this proposed manner of paying for the land.
We shall not now consider the question as to whether Scott or his assignee fulfilled their part of the agreement, nor-shall we now consider any other question going to the merits of the case, for the reason that the defendant in error has raised in this court the preliminary question that no copy of the plaintiff’s pleading upon which the case was tried in the-court below has been brought to this court, and that what such pleading was is not shown. It appears that on October 7, 1887, the plaintiff, Adam Rinard, filed his petition in the court below and commenced this action, claiming the aforesaid “ penalty sum of $1,000, as liquidated damages to be paid by the failing party.” (Condon v. Kemper, 47 Kas. 126; Heatwole v. Gorrell, 35 id. 692; Land Co. v. Perry, 23 id. 140.) Afterward, and on October 24, 1887, Gardner, the defendant below, filed a demurrer to such petition, upon the ground that it did not state facts sufficient to constitute a cause of action, and on January 28, 1888, the court below sustained this demurrer; whereupon, the counsel for the plaintiff asked leave of the court to amend his petition, “ which leave was granted and the petition was so amended.” But no amendment or amended petition appears in the record. Afterward, and on February 1, 1889, the case was tried before the court and a jury, and after the plaintiff had introduced all his testimony, the defendant demurred to the same, upon the ground that it did not prove any cause of action against the defendant, which demurrer was sustained by the court; and to reverse this ruling of the district court, the plaintiff, as plaintiff in error, brings the ease to this court.
When the court below sustained the defendant’s demurrer to the original petition, the ease was virtually ended .upon that petition. The case could not be tried, and of course was not tried, upon that petition; and as neither the amendment thereto nor any amended petition is contained in the record, we cannot tell what was tried. We cannot know what were the issues; what the allegations of the amendment were; or how much the plaintiff admitted or denied in his pleading, we cannot tell; and therefore we cannot tell whether the court below erred or not when it sustained the defendant’s demurrer to the plaintiff’s evidence. Upon the pleadings and the evidence, the decision of the court below may have been absolutely correct; but whether it was or not we cannot tell. The decision of this preliminary question raised by the defendant in error disposes of the entire ease in this court, and it is not necessary for us to consider any of the other questions presented by counsel.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-16,
108,
-44,
-65,
122,
96,
40,
-102,
88,
-96,
-89,
91,
-23,
-57,
1,
47,
-86,
45,
85,
106,
-10,
-14,
54,
32,
-110,
-77,
81,
-52,
-75,
89,
-28,
-41,
72,
52,
-54,
-107,
-26,
-119,
-47,
92,
-50,
-89,
-119,
-19,
-39,
64,
52,
95,
64,
72,
85,
-82,
-13,
42,
29,
67,
105,
42,
-21,
56,
-47,
-72,
-86,
-123,
91,
5,
-111,
99,
-104,
-125,
-56,
14,
-112,
49,
1,
-8,
91,
54,
-106,
116,
13,
-117,
-120,
38,
103,
33,
85,
-17,
-64,
-104,
14,
-2,
-115,
-90,
-124,
88,
34,
44,
-68,
-99,
93,
4,
-90,
118,
-29,
-116,
13,
108,
46,
-117,
-108,
-125,
-115,
124,
-104,
19,
-42,
-81,
53,
113,
-49,
-96,
77,
65,
58,
-101,
-113,
-6
]
|
Opinion by
Green, C.:
Charles B. Eckel brought an action against the Missouri Pacific Railway Company to recover damages and attorney’s fees for a mare alleged to have been killed by the negligence of the railroad company in the operation of its railroad, in Butler county. It seems that the right-of-way was not fenced on the north side of the railroad. South of the railroad, and near the south line of the right-of-way, there was a wire fence constructed and owned by the owner of the adjoining laud, running east and west parallel with the track. North of the railroad, and partially on the right-of-way, there was a traveled road, which had been used as such for several years, but was not a regularly laid out highway. The mare in question had been kept in a pasture about a mile and a half from where the accident occurred, but escaped from the inclosure on account of a storm which blew down the fence. She passed over an adjoining field, on the railway track, going in a southwesterly direction. It appears from the evidence that she became frightened by an approaching train from the east, and she either ran or was thrown off of the track into the barb-wire fence on the south line of the right-of-way, where she sustained such injuries that she died in a short time. At the December term, 1889, the plaintiff obtained a judgment against the railroad company for $96 damages and $45 attorneys’ fees.
It is contended by the railroad company that the facts do not authorize a recovery under ¶ 1252 of the General Statutes of 1889. It is urged that, because the mare was not struck by the engine or cars of the railway company, and did not come in contact with any property owned, constructed or operated by the company, there is no liability. The proposition, as stated by the plaintiff in error, is this: If a horse, while running at large, becomes frightened at a passing train, and in his flight from the train crosses an unfenced railroad and runs against a wire fence located on the land of another, and which fence was constructed, owned and controlled by him, is the railway company liable, under the statute, for the injuries sustained? It is conceded that the question might be answered in the affirmative if it can be said that the object of the fence required by the statute is to exclude animals from the lands of other persons, and thus possibly prevent an injury. We assume it to be one of the objects of the law to require railroad companies operating lines of railroads in this state to fence the same so as to prevent animals from being on such roads. This court has said:
“Animals straying upon a railroad track is one of the recognized sources of danger to travel; and with the increased speed of railroad trains, experience amply demonstrates the necessity of inclosing railroad tracks through inclosed fields, as well as elsewhere, with good and sufficient fences; and to insure safety and protection to the traveling public, all these necessary precautions are demanded. It is not the land-owner who is benefited. The railroad company, in obeying the law, protects its passengers and its property interests as well. The protection is three-fold. ... In the exercise of the ordinary police powers of the state, it has been held reasonable to require railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is the protection to the traveling public against accidents occurring through collision of trains with stock.” (Mo. Pac. Rly. Co. v. Harrelson, 44 Kas. 253.)
As stated by Judge Brewer, in the case of Railroad Co. v. Jones, 20 Kas. 527, the language of the statute is very broad, and extends to those cases where animals are injured in any other manner whatever in the operation of such railway.
In a very recent case it was held by this court, that where an animal was pasturing on the right-of-way of a railroad at a place where it ought to have been fenced but was not, and was frightened by the sounding of a whistle upon an engine drawing a train of cars, and ran along by the sid.e of the track on the right-of-way into a wire fence running at right angles with the railroad, and was injured, the company was liable under the statute. (Mo. Pac. Rly. Co. v. Gill, ante, p. 441; same case, 30 Pac. Rep. 414.) In this case the mare got on the right-of-way and was frightened by the cars, and was either struck or ran off of the track into the fence, located near but not on the right-of-way, and was killed. "Was the animal injured by reason of the failure of the railway company to fence its road? It seems from the evidence that the mare was frightened, while on the right-of-way, by the passing train, and, on account of such fright, ran into the fence and was injured. Was not the operation of the train without a fence inclosing the right-of-way the proximate cause of such injury? The company left the road unfenced. It knew that animals were liable to stray upon the right-of-way, and thus be in danger from the operation of its trains. We are of the opinion that the railway company was liable under the statute.
It is next urged that the court erred in refusing to submit certain interrogatories to the jury in regard to a highway on the north side of the railroad track, and also refused to instruct the jury that if there was a road traveled by the public as a highway along the north side of the railroad, and a portion of such road was on its right-of-way, the company would be excused from fencing its road on that side, and would not be liable for damages to stock occasioned by the failure to construct a fence. It was established by the evidence that this traveled road was from 20 to 60 feet from the railroad track; it was not a regularly laid out road. We do not think, under the facts of this case, the company was excused from fencing its road. There was space sufficient between the traveled way and the track to have built a fence. The fact that it was a traveled road and not a pasture makes the necessity for a fence-all the greater.
The final objection urged is, that the instructions of the court were erroneous and misleading. After quoting the statute, the court said to the jury: “The foregoing does not apply to any railway or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence, which prevents such animals from being on such road.” The criticism is made that the court gave the jury to understand that the road must be inclosed with such a fence as would actually prevent the animals from going upon the track. The language of the statute is: “ This act shall not apply to any railroad company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road.” We do not think the words “which prevents,” as used in the court’s charge, instead of the language of the statute, “to prevent,” misled the jury.
An affirmance of the judgment of the district court is recommended.
By the Court: It is so ordered.
All the Justices concurring. | [
-14,
124,
-99,
-83,
-55,
107,
-72,
-102,
67,
-53,
-28,
83,
-113,
-48,
-127,
33,
-30,
-67,
85,
43,
-12,
-78,
83,
-77,
-110,
-45,
-77,
-59,
-101,
72,
96,
-57,
77,
32,
74,
85,
103,
106,
-55,
92,
-114,
108,
-101,
-23,
25,
-16,
56,
107,
22,
78,
49,
-97,
-21,
42,
24,
-25,
41,
46,
47,
-83,
-128,
121,
-69,
7,
126,
6,
-126,
68,
-67,
39,
-56,
58,
-104,
21,
16,
-8,
115,
-74,
-105,
84,
1,
-103,
8,
98,
99,
33,
13,
-49,
-122,
-120,
47,
92,
-113,
-89,
0,
24,
19,
7,
-97,
-97,
18,
86,
71,
124,
-20,
-123,
93,
-72,
1,
-49,
-106,
-89,
-17,
100,
-108,
5,
-53,
-75,
3,
113,
78,
-30,
79,
68,
60,
-101,
-113,
-1
]
|
The opinion of the court was delivered by
Valentine, J.:
This action was brought in the district court of Greenwood county on January 20, 1887, by Henry Tower against S. B. Green, to recover $155.15, alleged to be half the amount, with interest and costs, of a certain debt which Daniel Pees owed to H. C. Jackson, and for which Tower and Green were sureties, and which Tower was compelled to pay, Pees being insolvent. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendant, and assessed the amount of the plaintiff’s recovery at $95.60; and also, in answer to certain special interrogatories submitted to them, made special findings; and the court rendered judgment in accordance with the general verdict; and the defendant, as plaintiff in error, brings the case to this court for review.
It appears that originally, and from December, 1884, to August 22, 1885, the plaintiff and the defendant were partners, engaged' in a general hardware business at Madison, under the firm-name of Tower & Green. Pees purchased a team of horses of Jackson upon credit, it being understood beforehand that both Tower and Green would become sureties for the amount. Afterward, and'on April 18, 1885, Pees gave the promissory note now in question (and two others) to Jackson for $135, due in 12 months after date, payable at the Emporia National Bank, and drawing interest at the rate of 12 per cent, per annum. Pees signed his name thereto, and then Tower wrote under Pees’ name “Tower,” and then Green wrote, “& Green,” immediately following the word “Tower,” so that the firm-name of Tower and Green, to wit, “Tower & Green,” appeared to be signed to the note. All this seems to have been for the accommodation of Pees alone. Tower and Green received no consideration for their signa— tures; and the transaction had no connection with the partnership affairs. On August 22, 1885, the firm of Tower •& Green was dissolved, and by the terms of the dissolution Tower was to continue the business and Green was to retire, all of which was done, and Tower was to collect the partnership accounts, settle the partnership business, and assume and pay the partnership debts. In addition to this, on September 4, 1885, Tower gave to Green a receipt for $265.06, in full of all accounts to date. Afterward, and on June 4,1886, Jackson recovered a judgment before a justice of the peace upon the aforesaid note against Pees and Tower and Green for the amount of $152.22, and execution was issued thereon, and Tower paid the same, with costs, amounting to $162.82; and Pees being insolvent, Tower commenced this action in the district court against Green, his co-surety, for contribution. The general verdict and special findings of the jury, omitting title and signatures, read as follows:
“Verdict: We, the jury in the above-entitled cause, do upon our oaths find for the plaintiff, and assess the amount of his recovery at $95.60.”
“special findings.
“1. Was the note in controversy signed by Tower & Green as sureties? A. It was.
“2. Was it a partnership or an individual liability? A. Each individually signed the note.
“3. When the partnership was dissolved, who assumed the liabilities of the partnership? A. Tower.
“4. Who signed the note in controversy as 'principal? A. Pees.
“ 5. If you find that the plaintiff has paid any part of the judgment, when did he pay it? A. August 6, 1886.
. “6. If you find that Daniel Pees is principal, was he solvent or insolvent at the time of the commencement of this action? A. Insolvent.
“7. If you find that Daniel Pees is principal upon the note in controversy, what demand, if any, has the plaintiff made of said Pees for the repayment of the money plaintiff has paid out on the judgment sued on? A. The evidence does not show any demand.
“8. If Daniel Pees gave a chattel mortgage to Henry Tower, what was said chattel mortgage given for — that is, to secure the payment of what? A. To secure the payment of a note of $141 and some cents.”
The above-mentioned chattel mortgage and note of $141 have nothing to do with this case.
The first alleged error is, that the court below permitted a transcript of the aforesaid judgment to be introduced in evidence, which transcript it is claimed showed upon its face that the judgment was rendered one hour too soon, and before the justice of the peace had acquired sufficient jurisdiction to render it; and therefore it is claimed that the transcript showed that the judgment was void. It,appears that the summons was made returnable on June 4, 1886, at 10 o’clock A. M. There is no question with regard to the service, but the only alleged irregularity is that the judgment was rendered too soon. The record with reference to the manner of rendering the judgment reads as follows: “June 4, 1886, 10 o’clock a.m. The plaintiff present by his agent, Geo. O. Lovett. The defendants, being three times called, still fail to appear. Upon hearing the proof and allegations of the plaintiff, I do render judgment by default. It is therefore,” etc.; and here follows the judgment.
Sections 73 and 83 of the justices’ act read as follows:
“Sec. 73. The bill of particulars of the plaintiff must be filed at the time the action is commenced, and that of the defendant must be filed at or before the hour named in the summons for the appearance of the defendant, unless further time be given by the justice, for good cause shown.”
“Sec. 83. If either party fail to appear at the time specified in the summons, or within one hour thereafter, or fail to attend at the time to which the trial has been adjourned, or fail to file the necessary bill of particulars, the cause may proceed at the request of the adverse party; and in all cases where a counterclaim or set-off has been filed before the dismissal of the cause by the plaintiff, the defendant shall have the right to proceed with the trial of his claim.”
Now, it does not appear from the record that any one of the defendants in the justice’s court filed any bill of particulars “at or before the hour named in the summons for the appearance of the defendants,” or at any other time, as prescribed by § 73 of the justices’ act. Nor does it appear that any one of the defendants made any appearance in the case at any time during the day on which the case was set for trial, or at any other time. Nor does it conclusively appear that the-judgment was rendered within less than an hour after the time specified in the summons for the appearance of the parties, and all presumptions should be in favor of the regularity of the proceedings, and not against them. Besides, we do think that the justice of the peace was without jurisdiction to render a judgment prior to the expiration of the hour. Of course, in cases where the defendants do not appear, the judgment should not be rendered until the hour has elapsed; but if the defendants do not appear at all what difference can it make? Besides, it makes but very little difference in the present ease whether the judgment shall be considered as void or as valid, for the debt was valid and Tower paid it, and he is now entitled to contribution.
The next alleged error is with regard to the court’s permitting leading questions to be asked, but as no particular leading question is designated, we do not think that it is necessary to make any comment. We might say, however, that we have not observed any prejudicial error in this regard.
The next and last alleged error is the court’s refusal to require the jury to answer the second question submitted to them more specifically and definitely. The court instructed the jury substantially that the fact that the note was signed in the firm-name was prima fade evidence that it was a firm liability, but that this prima fade fact might be overcome by testimony, and that the burden of proof was upon the plaintiff, so that evidently the jury understood what was intended to be submitted to them by the question; and they answered accordingly. The question was substantially to ascertain whether the note in question constituted a partuership liability or an individual liability; and the jury by their answer unquestionably intended to say that it constituted only an individual liability and not a partnership liability; and such we think was intended to be the case by Tower and Green, not only when they signed the note, but also when they dissolved their partnership. Evidently, when they dissolved their partnership they did not have in contemplation this note. This note was not due at the time, nor for about eight months afterward. They were not the principals on the note, but were merely sureties, and in all probability neither of them at that time had the slightest supposition that either would ever be required to pay anything on the note. At the time this note was given, two other notes of the same kind were also given, one of which was paid by Pees before the dissolution of the copartnership, and the other was paid by him afterward. After the dissolution, and after the payment of this second note, but before the third one, the one now in controversy, became due, which was about eight months after the dissolution of the copartnership, Pees became insolvent and could not pay such third note. We think that the answer of the jury to the second question was sufficiently definite and certain, and sufficiently intelligible to be understood, and the court below did not err in refusing to require the jury to make a more certain and definite answer.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
-76,
108,
121,
-34,
88,
-32,
8,
26,
80,
2,
-89,
87,
-119,
-30,
1,
105,
100,
77,
85,
122,
-90,
-73,
3,
99,
-109,
-13,
-53,
-51,
-75,
76,
-28,
-41,
74,
48,
74,
-99,
-58,
-62,
-31,
92,
-114,
13,
41,
-28,
-39,
64,
52,
-55,
114,
75,
113,
14,
-14,
44,
28,
75,
104,
60,
73,
-87,
80,
-5,
-118,
-123,
63,
28,
50,
34,
-100,
7,
74,
46,
-104,
53,
0,
-24,
121,
-90,
-122,
-12,
105,
-103,
13,
-90,
103,
33,
-123,
-17,
-40,
-108,
36,
-4,
-99,
-89,
-128,
108,
34,
9,
-66,
-99,
127,
22,
-89,
-10,
-81,
-99,
25,
108,
3,
-114,
-78,
-109,
-113,
-70,
-98,
-101,
-17,
-85,
50,
113,
-49,
50,
92,
68,
122,
-109,
-113,
-12
]
|
The opinion of the court was delivered by
Horton, C. J.:
This was a criminal action in the court below against A. J. Salisberry, under § 1 of chapter 113, Gen. Stat. of 1889, ¶ 7157, being the act to prevent trespasses, in which he was charged with having cut and carried away 14 acres of rye, to which he had no right or interest, the same being the property of Jasper Cresswell. The defendant was convicted at the September term, 1891, and this appeal is brought to reverse the judgment. The facts are substantially as follows: During 1879, Salisberry placed a preemption filing upon the land from which he cut the rye, and continued to occupy the same thereunder until the 5th day of August, 1882, at which time he relinquished to the United States his interest therein, under the preemption filing, but on the same day he placed a homestead filing thereon. At the time of the homestead entry, the defendant was qualified to homestead land under the laws of the United States. Under his homestead filing, he immediately took possession of the land, and was continuously in the exclusive possession thereof until the 31st day of January, 1891. After the 5th day of August, 1882, Jasper Cresswell filed a contest upon the land. On the 31st day of January, 1891, the secretary of the interior decided the contest in favor of Cresswell. During the season of 1890, while defendant was in the actual possession of the land, under his homestead filing, contesting and litigating with Cresswell, and endeavoring to perfect his title, he sowed the rye, and when it ripened, in the month of June, 1891, in the absence and without the consent of Cresswell, he cut and carried the rye away. Cresswell, with the consent of Salisberry, had taken actual and exclusive possession of the land and crop in March, 1891.
It was decided in Freeman v. McLennan, 26 Kas. 151, that crops sowed on land by a stranger to the title, and without authority and consent of the owner, belonged to the owner of the soil. The right or title Salisberry claimed at the time he sowed the rye was subsequently decided against him. After this decision, and in March, 1891, Salisberry relinquished the possession of the land to Cresswell, and Cresswell took peaceable possession thereof. At the time that Salisberry cut and carried away the rye, it is conceded that the land on which it was grown was not his own, and that he had no interest or right therein. We do not think he had any right or interest in the rye grown on the land after Cresswell took possession thereof, in March. The decision in the contest established that Salisberry was never entitled to the land; his alleged title was no title; therefore, under the provisions of ¶ 7157, he was properly convicted. (The State v. Armell, 8 Kas. 288; The State v. Blakesley, 39 id. 152; Haag v. Cooley, 33 id. 390.)
It cannot be claimed upon the facts agreed to that Salisberry was a tenant or lessee, or had any rightful possession from Cresswell. The case of Rathbone v. Boyd, 30 Kas. 485, is not analogous. In that case, the party making the entry not only sowed the crop, but remained in possession of the land until the crop was actually harvested, and after it was harvested his mortgagee sacked and took possession of it. If, in this case, Salisberry had continued in possession of the land after the rye had been cut and harvested, the Rathbone ease would apply.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-16,
106,
-8,
-115,
42,
96,
42,
-104,
82,
-85,
-89,
83,
-23,
-45,
20,
97,
-29,
77,
81,
107,
-58,
-25,
23,
-61,
19,
-13,
-61,
-3,
-71,
108,
-25,
87,
14,
52,
-62,
17,
-26,
-88,
65,
-100,
-114,
-123,
-87,
89,
-47,
120,
52,
59,
82,
75,
81,
-66,
-13,
46,
21,
-61,
-88,
44,
-55,
61,
-63,
-72,
-118,
13,
127,
18,
50,
98,
-116,
-123,
-54,
126,
-112,
21,
0,
-7,
123,
-90,
-106,
-44,
15,
-69,
8,
98,
111,
49,
109,
-81,
120,
-104,
14,
126,
13,
-90,
68,
80,
67,
64,
-68,
-97,
52,
-112,
-90,
114,
-21,
-35,
29,
120,
37,
-117,
-106,
33,
-121,
-72,
-108,
2,
-37,
-89,
-79,
97,
-50,
46,
93,
103,
113,
-101,
-114,
-41
]
|
Opinion by
Green, C.:
This was a prosecution against I. N. McBeth under § 107 of the crimes act. The defendant was charged with unlawfully and maliciously injuring the doors of a certain building, owned by the defendant and two other persons, while the same was occupied by tenants. The evidence upon the trial established the fact that Brooks & Co. leased from the defendant, W. M. Kinnison, and C. H. Clark, the building in question, by the month, for a meat shop, and had paid the rent until the 1st day of November, 1890. On the 25th day of October, Brooks & Co. moved most of their things out of the building and locked it up. The defendant offered to refund the rent from the time the building had been vacated to the expiration of the month, and asked to be permitted to take possession of the building, which was refused. He then forced open the back door, which had been fastened by a bolt upon the door and a socket which held the bolt on the casing of the door frame. The socket was secured by two screws, which came out and the door opened. He entered the building through the back door and opened the front doors, and put a tenant in possession of the build ing. The socket was replaced upon the casing of the back door frame on the same day. There was no evidence to show: that there was any other injury done to the doors or building. The defendent was tried and convicted, and sentenced to pay a fine of $10 and costs, and ordered to be committed to jail until the fine and costs were paid.
The language of the crimes act, under which the defendant was prosecuted, so far as it affects the offense charged, reads as follows: “Every person who shall willfully, unlawfully and maliciously break, destroy or injure the door . . . of any shop or building being the property of another.” The defendant was charged in the information with willfully, unlawfully and maliciously breaking, destroying and injuring the front and back doors of said shop, and with breaking the locks of said doors and breaking open the same while closed,, and forcibly entering the building. It is urged that, under the state of facts as disclosed by the evidence, no offense was committed under this provision of the statute. We think that the words “break or destroy,” as used in this section of the crimes act, mean to destroy the completeness of anything.. Now, can it be said that any of the doors to this building .were broken, injured, or destroyed? A door is defined to be “ a movable barrier of wood, metal, or stone, or other material, consisting sometimes of one piece, but generally of several pieces together, and commonly placed on hinges, for closing a passage into a building, room, or other inclosure.” (2 Cent. Dict., p. 733.) The evidence clearly established the fact that the doors were not damaged in the least. Two small screws were pulled out of the casing which inclosed the back door, and these were replaced the same day. This was the extent of the injury. Under this state of facts, we do not see how it can be said that an offense was committed under this section of the statute. The doors were not damaged; and the' slight injury in forcing the screws out of the casing of the door frame could hardly be said to be an injury to the door. We do not think the statute was intended to cover such a case as this. Honest disputes as to who is rightfully entitled to the possession of property should not be settled by the aid of the criminal law.
We are of the opinion that the verdict and judgment of the court are unsupported by the evidence. It is recommended that the judgment of conviction be set aside, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
-48,
-5,
-8,
45,
8,
-24,
42,
-38,
19,
-127,
36,
-97,
-19,
-48,
69,
105,
-9,
77,
-43,
109,
-51,
-77,
39,
3,
-10,
-69,
-109,
-59,
57,
109,
-11,
127,
12,
49,
-62,
61,
-126,
-62,
-27,
-36,
-118,
37,
56,
-30,
-43,
16,
52,
43,
64,
15,
49,
28,
-77,
46,
84,
-49,
41,
40,
109,
-81,
-15,
-71,
-112,
29,
45,
18,
-93,
39,
-68,
7,
-40,
28,
-104,
53,
1,
-88,
115,
-68,
-60,
124,
7,
-113,
9,
98,
98,
32,
-117,
-5,
-24,
-84,
47,
107,
-67,
-89,
16,
88,
3,
43,
-65,
-103,
112,
16,
6,
114,
-27,
-44,
25,
108,
-123,
-53,
-44,
-109,
-113,
40,
-108,
57,
-22,
3,
49,
113,
-49,
-66,
88,
4,
82,
-101,
-116,
-43
]
|
Per Curiam:
It was stated in the original opinion handed down “that where an action is brought upon a writing or memorandum for or concerning the sale of land, if the party sought to be charged in the action .signed the same by himself or agent, he is liable thereon, and he cannot successfully plead as a defense that the plaintiff has not signed.” (47 Kas. 386.) Under the statute of frauds, the only signature required is that, of the party against whom the contract is to be enforced. The contract is good or not at the election of the party who has not signed. In this case, it is conceded that Nicholas Anderson and Sophia, his wife, signed the written memorandum. By the effect of the decisions, the contract could have been enforced against them at the election of W. W. Guthrie, the party who did not sign.
The contention upon the motion for a rehearing is, that Guthrie signed, because his name appears in the body of the memorandum. We see no good reason to change the views heretofore expressed by this court. The authorities are not uniform as to how far the writing by the party of his name-must be with the intention of signing. There is some conflict of authority on the question. If the memorandum-signed by Anderson and wife had recited that “I, W. W. Guthrie, agree with N. Anderson, or N. Anderson and wife,” etc., under some of the authorities the name or signature thus inserted would be considered a signing within the statute. (1 Benj. Sales, § 262.) It is not necessary that the signature of a party to a memorandum, under the statute requiring á signing, should be at the bottom or end of the memorandum, but it may be at the top, in the middle, or inserted in any other part of the paper. But in all cases the name of the party to be charged must be affixed in such a manner as to authenticate the instrument. The signature may be by mark, initials, pencil, type-writing, print, or stamp, if the party to be charged intended by the mark, initials, pencil, print or stamp to affix the same as his signature, with the purpose to ■complete or authenticate the contract as his own contract, and to indicate his intention to' be bound thereby. In this case, the memorandum signed by Anderson and wife recited, “ the undersigned, husband and wife, owners,” etc., “ . . . sell the same to W. W. Guthrie, . . . and ... to execute and deliver deed ... to W. W. Guthrie.” It was nowhere recited in the memorandum that “W, W. Guthrie has agreed” or “proposes,” etc. In fact, there is no agreement anywhere in the memorandum on the part of W. W. Guthrie to do anything.
In support of the motion for a rehearing, the mo3t important cases referred to are Wise v. Ray, 3 G. Greene (Iowa), 430; Penniman v. Hartshorn, 13 Mass. 87; and Clason v. Bailey, 14 Johns. Ch. 486.
In the Wise-Ray case, the written contract was signed by James Wise. In that case, Ray brought his action against Wise, who had signed the contract. He properly recovered his damages for a breach thereof.
In the Penniman-Hartshorn case, Silas Penniman wrote the body of the contract or memorandum and signed the same at the bottom thereof. Hartshorn, in his own handwriting, on the top of the contract or memorandum, signed “Harts-horn & Arnold, of Providence.” The writing of Hartshorn, under the circumstances, was a signing, and evidently was intended to be the signatures of Hartshorn and Arnold, the parties charged.
In the Clason-Bailey case, Clason, through his agent, Townsend, purchased of Bailey & Voorhees 3,000 bushels of rye at a dollar a bushel, payable on delivery. Thereupon a written memorandum was made by Townsend, the authorized agent of Clason, which, after giving date, read: “Bought for Isaac Clason, of Bailey & Voorhees, 3,000 bushels of good merchantable rye,” etc. Subsequently, Clason refused to receive and pay for the rye, and Bailey & Voorhees brought their action against him to recover damages. The court, in its opinion, said: “ It is admitted that Clason signed this contract by the insertion of his name by his authorized agent.” Of course, under such an admission, Clason, the party charged, was liable upon the memorandum.
Other cases are referred to, which are claimed to be contrary to the opinion handed down; but, after a critical examination of them, we do not think that any are exactly similar to the case decided.
The memorandum in this case seems to have been expressly written so as not to need the signature of Guthrie, and so that he could not be charged thereon.
The motion for a rehearing will be overruled. | [
-78,
-3,
105,
-51,
-118,
-32,
-86,
-38,
-71,
-95,
-81,
115,
-1,
-37,
-100,
97,
-15,
47,
112,
107,
76,
-94,
15,
65,
118,
-13,
67,
17,
-79,
-17,
-1,
85,
76,
-92,
-64,
-11,
102,
-126,
-127,
-100,
74,
33,
9,
-28,
-8,
-29,
48,
99,
0,
11,
117,
-33,
-29,
44,
55,
70,
-85,
8,
111,
72,
-64,
-80,
-97,
-100,
127,
7,
-109,
-9,
-120,
-57,
-24,
8,
-112,
17,
3,
-24,
51,
-66,
22,
-12,
9,
41,
8,
98,
106,
0,
-47,
-5,
-120,
-104,
15,
110,
29,
-89,
17,
89,
41,
39,
-66,
-99,
55,
17,
39,
118,
-20,
21,
57,
104,
10,
-85,
-58,
-77,
-107,
122,
-116,
3,
-25,
35,
16,
81,
-52,
52,
92,
67,
59,
19,
15,
-78
]
|
Opinion by
Green, C.:
It is contended in this case that the findings and judgment of the district court are not supported by the evidence; and it is urged that there was error in the findings and decision of the court in relation to what the evidence fairly established. The defendant in error ob jects to the consideration of these assignments of error, upon the ground that the case-made does not show that it contains all of the evidence; that the only statement to that effect is found in the certificate of the judge; and the questions presented for review involve a consideration of the evidence, and that we cannot therefore examine the questions raised by counsel for the plaintiff in error.
It does not appear from an inspection of the record that all of the evidence is here. It is true that the certificate of the district judge states that it contains all of the evidence, but this is not sufficient. (Hill v. National Bank, 42 Kas. 364, and authorities there cited.) We cannot, therefore, review the questions presented by counsel for plaintiff in error.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-77,
-2,
-19,
-36,
10,
-32,
34,
-86,
65,
-95,
103,
83,
-83,
-53,
20,
121,
-78,
63,
84,
98,
-42,
-73,
55,
-63,
-14,
-78,
-5,
-43,
-79,
127,
-10,
-100,
76,
48,
-54,
-43,
102,
72,
-57,
80,
-114,
-97,
-104,
79,
-39,
-96,
36,
51,
118,
7,
116,
93,
-93,
44,
26,
-61,
105,
44,
75,
49,
80,
-15,
-114,
-115,
77,
4,
-77,
52,
-100,
12,
-40,
34,
-48,
-79,
0,
-24,
34,
-74,
-126,
116,
105,
-71,
13,
98,
98,
1,
28,
-18,
56,
-100,
39,
63,
15,
-90,
-110,
8,
-23,
41,
-106,
-67,
100,
114,
6,
124,
-26,
85,
30,
100,
15,
-113,
-110,
-79,
-97,
116,
-102,
-29,
-1,
-125,
16,
96,
-51,
-32,
92,
100,
25,
-37,
-50,
-74
]
|
Opinion by
Green, C.:
On the 8th day of September, 1887, Sarah J. Hobbs commenced an action in the district court of Edwards county for the partition of certain real estate, and made H. F. Spencer and J. B. Shatzer, partners as Spencer & Shatzer, defendants, for the reason that they claimed a mechanic’s lien upon the property, which lien was alleged to be invalid and of no binding force. The defendants, Spencer & Shatzer, filed their answer and cross-petition on the 28th day of October, 1887, setting up their lien statement, which they alleged was filed on the 25th day of January, 1886, and within 60 days after the completion of the building; that on, the 27th day of January, 1886, they commenced an action in the district court to foreclose such lien; that said action was dismissed on the 12th day of March, 1887, without prejudice to a, future action. To this action and cross-petition a general denial was filed. The case was tried by a jury, and a judgment was obtained in favor of Spencer & Shatzer, upon their cross-petition, establishing their mechanic’s lien. The plaintiffs in error bring the case here for review.
The first assignment of error is, that the court erred in receiving evidence, under the answer and cross-petition of Spencer & Shatzer, because the action was not commenced within one year after the filing of the mechanic’s lien. By the allegations of the answer, it seems that the first action of Spencer & Shatzer to foreclose their mechanic’s lien was prematurely brought. It seems that the material for which a lien was claimed had been furnished to a subcontractor. Under § 632 of the code of civil procedure, the owner of the building is not liable to an action by the contractor until the expiration of 60 days from the furnishing of the material. The action must, therefore, have been dismissed for that reason. The court must have held that a new action could be commenced within one year after the dismissal, under § 23 of the code. This question has already been settled in favor of the claimants for a lien.
“Where an action to foreclose a lien for materials furnished for a building is prematurely brought, and the judgment is rendered in the ease against the plaintiff for that reason, held, that such judgment is not a bar to another action brought subsequently and in proper time against the same parties to foreclose the same lien.” “And where the plaintiff commenced his action within less than one year after his failure in the first action, though more than one year after the building was completed, held, that by virtue of the provisions of § 23 of the civil code, the action is not barred by the one-year limitation prescribed by § 4 of the mechanics’ lien law.” (Seaton v. Hixon, 35 Kas. 663.)
The plaintiffs in error assign a number of other errors in their brief, but they are not argued. We have examined them and do not regard them as material. It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
-16,
98,
-36,
110,
-118,
-32,
40,
-104,
73,
-128,
-25,
87,
-19,
-62,
21,
117,
-13,
105,
85,
105,
69,
-90,
19,
35,
-46,
-77,
65,
-43,
-80,
77,
-12,
95,
76,
52,
-54,
-107,
-58,
-128,
-115,
92,
14,
-115,
27,
108,
-15,
96,
52,
115,
84,
13,
49,
-82,
-77,
46,
29,
-49,
72,
56,
-21,
61,
-48,
113,
-103,
13,
127,
2,
-95,
69,
-108,
70,
-22,
28,
-112,
21,
0,
-23,
115,
-74,
-42,
118,
67,
11,
40,
102,
98,
34,
-115,
-17,
-24,
-104,
14,
-10,
-115,
-90,
-95,
9,
11,
9,
-65,
-97,
76,
16,
39,
118,
-18,
-107,
89,
108,
14,
-121,
-42,
-64,
-113,
118,
-120,
7,
-18,
-125,
48,
101,
-49,
-76,
94,
102,
57,
-69,
-50,
-52
]
|
The opinion of the court was delivered by
Valentine, J.:
On September 18, 1888, the Kansas City, Wyandotte & Northwestern Eailroad Company instituted condemnation proceedings to procure a right-of-way through the south half of the northwest quarter of section 13, in township 2, of range 10, and, through other lands in Marshall county. Patrick Kennedy was and is the owner of said land. It appears that 3.65 acres of his land were taken for the right-of-way, for which the commissioners awarded him. $185, and in addition thereto he was awarded $35 for damages to the land not taken; total, $220. He appealed to the district court, and in that court the railroad company filed a motion to require him “to file a petition or bill of particulars setting up the items constituting his damage by reason of the condemnation of right-of-way over plaintiff’s land.” This motion was overruled by the court. A trial was then had before the court and a jury, which resulted in a verdict in favor of the plaintiff, Kennedy, and against the railroad company for $769.64, and a personal judgment in favor of Kennedy and against the railroad company for the amount of the verdict; and the railroad company, as plaintiff in error, brings the case to this court.
The brief of the plaintiff in error sets forth three grounds for reversal, but its counsel in their oral argument abandoned the-first one, and presented to this court only the second and third. The second is with regard to the aforesaid motion to require the plaintiff, Kennedy, to file a petition or bill of particulars. We think this matter rested wholly within the judicial discretion of the trial court, and we cannot say that such court abused its discretion. No affidavit or other evidence was presented in support of the motion, and nothing was presented in the case tending to show that without the petition or bill of particulars the railroad company would in any manner or degree be embarrassed in presenting any defense which it might wish to present. It did not show that the petition or bill of particulars would be of any benefit to it.
The third alleged error is, that the court below rendered an ordinary personal judgment against the railroad company for the damages assessed against it, when in fact the judgment should have been in the nature of an award of damages such as is usually rendered in condemnation proceedings, and for costs; and the case of St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 240, 247, is cited. In this respect we think the court below did commit error, and therefore its judgment must be modified so as to make it a mere award of damages, as the railroad company contends it should be. The case will therefore be remanded to the court below with the order that the judgment be modified in accordance with the views herein expressed.
All the Justices concurring. | [
-16,
102,
-72,
-99,
-86,
106,
34,
-104,
65,
-95,
-90,
115,
-51,
-54,
0,
43,
-18,
-67,
-43,
59,
68,
-125,
7,
-29,
-110,
-77,
113,
77,
-75,
72,
100,
87,
77,
96,
74,
21,
-26,
-54,
77,
94,
-114,
44,
-88,
-52,
-39,
72,
60,
123,
22,
79,
17,
-114,
-5,
40,
24,
67,
41,
46,
-5,
41,
-48,
-16,
-74,
-41,
95,
4,
33,
36,
-100,
3,
72,
59,
-104,
53,
2,
-4,
115,
-90,
-121,
-12,
5,
-103,
9,
-26,
103,
49,
21,
-49,
124,
-104,
14,
-34,
-119,
-25,
-94,
24,
99,
37,
-106,
-99,
84,
86,
7,
126,
-20,
5,
29,
108,
3,
-117,
-74,
-77,
-113,
44,
-98,
83,
-53,
-75,
50,
96,
-52,
-32,
94,
67,
56,
-101,
-113,
-107
]
|
The opinion of the court was delivered by
Pollock, J.:
Appellants Henry Dreany, the »vice-president, treasurer, and general manager, and J. P. Shotts, the president, of the La Crosse Lumber and Grain Company, a corporation, were arrested and tried upon a charge of combining and entering into an unlawful agreement with others named to pool and fix the price to be paid for grain at the town of Bison, Kan. This appeal is prosecuted from a judgment of conviction. Many grounds of error are assigned. We shall refer only to such as are deemed material to the issue.
Ic is first contended by counsel for appellants that the information is fatally defective and should have been quashed because all those who are alleged to have entered into the unlawful combination, in so far as known by the prosecuting officer of the state, should have been jointly charged in the information ; and because neither the terms of the agreement entered into nor its nature are pleaded. This being a prosecution for a conspiracy in restraint of trade, the information should allege the names of all those par-' ties to the conspiracy known to the prosecuting officer. This the information does allege. But while this is true, it.is not incumbent upon the prosecution jointly, to charge all those alleged to have participated in the unlawful undertaking. (Heine v. Commonwealth, 91 Pa. St. 145; People v. Richards, 67 Cal. 412, 7 Pac. 828, 56 Am. Rep. 725 ; United States v. Henry Miller, 3 Hughes [U. S.] 553, Fed. Cas. No. 15,774, 56 Am. Rep. 724.) The information alleged:
“ Defendants did then and there unlawfully enter into an agreement, contract and combination in the county and state aforesaid in the name of the La Crosse Lumber and Grain Company aforesaid, with divers and sundry other persons, partnerships, companies, and corporations, to wit: (naming them), who were at the said time and place competitive grain buyers and dealers at Bison, Rush county, Kansas, which said agreement, contract and combination was designed and entered into with the intent then and there and thereafter to establish, settle and fix the price the said grain dealers and buyers should pay for grain at said place, to divide the net earnings and proceeds of said grain buyers and dealers at said place, and to prevent competition between said grain dealers and buyers in the purchase, sale and transportation of grain by the said grain buyers and dealers at said place.”
We are of the opinion these allegations contain a sufficient statement of the persons confederating together, and the nature of the contract entered into, fully to apprise defendants of the nature and character of the. offense charged, and that the motion to quash was properly overruled.
Under the provisions of the criminal code, defendants jointly tried were each entitled to challenge peremptorily four jurors. (The State v. Durein, 29 Kan. 688.) At the trial, there were contended for by the prosecution, and the court awarded to the state, two peremptory challenges for each defendant on trial.Counsel for appellant insist that this is error. With this insistence we agree. The criminal code, section 198 (Gen. Stat. 1901, §5640), provides:
“The defendant in every indictment or information shall be entitled to a peremptory challenge of jurors in the following cases, as follows: . . . Fourth. In cases not punishable with death or imprisonment in the penitentiary, to the number of four, and no more.”
Section 199 (Gen. Stat. 1901, § 5641) provides:
“In all criminal trials the state may challenge peremptorily half the number of jurors allowed the defendant by the preceding section.”
Mr. Thompson, in his work on Trials, volume 1, section 45, says:
“Although the defendants, so jointly indicted, may severally be permitted the statutory number of challenges, this does not increase the number allowed to the state beyond the number allowed to it in the case of a single defendant. The prosecution cannot complain of this, since it is a matter of its own choice to proceed against the defendants jointly, when it might have proceeded against them severally.”
The authorities in states having statutory provisions somewhat similar to our own fully support this rule. (Mahan et al. v. State of Ohio, 10 Ohio, 232 ; Savage and James v. The State, 18 Fla. 909 ; State v. Earle and Garvey, 24 La. Ann. 38, 13 Am. Rep. 109 ; State of Louisiana v. Jean Gay, 25 id. 472; Wiggins v. The State, 1 Lea [Tenn.] 738; Schaeffler v. The State of Wisconsin, 3 Wis. 717.)
Again, the record shows that at the trial counsel for defendants were accompanied by the official court stenographer of the twentieth judicial district, acting in the capacity of a private stenographer for counsel, employed by defendants for the purpose of taking notes of the testimony and performing other clerical matters in the progress of the trial for the use of counsel for defendants. Upon objection made by the county attorney, such private stenographer was refused by the court permission to take notes in open court of the evidence of witnesses and other matters occurring in the progress of the trial. This was error. It is the right of one put upon trial for a criminal offense to have a public trial, to be represented by counsel, and in all things to have opportunity for a full and fair investigation of the charge brought against him, and to prepare for and present his defense thereto. If, in the progress of this trial, counsel for defendants desired the services of a private stenographer or clerk to assist them in the discharge of their duties, defendants had the right to employ such assistant, and had the right to his presence in the court-room and his aid during the trial. It is error to deny such right, if request therefor is made, as in this case, in a proper manner, and such request is reasonable, and the person so employed demeans himself properly toward the court. As tending to support this position, see People v. Hartman, 103 Cal. 242, 37 Pac. 153; People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294.
Again, it is contended that the court erred in the reception of parol evidence as to the contents of the written agreement executed by the parties alleged to have participated in the conspiracy. It appears from the record that the county attorney served notice on defendants to produce this written agreement at the trial. It does not appear that such writing was in the possession, or under the control of defendants. It does appear that, the written instrument was not in the possession, or under the control, of the prosecuting attorney. It is clear that if such writing were shown to be in the possession of the defendants they could not be compelled, by notice or otherwise, to produce it as evidence to be used in a prosecution against them. It is further apparent that if such writing were shown to be in the possession of defendants it would be as completely lost to the prosecution, so far as any power' existed to procure it as evidence upon the trial,, as though it were lost or destroyed altogether; and in such case parol evidence of its contents has been held admissible by this court. ( The State v. Gurnee, 14 Kan. 111.) .As the writing in question was not in the possession, or under the control, of the prosecution, and as it was not within the power of the state to produce it at the trial,.we are inclined to the opinion that it was not error to receive secondary evidence of its contents, after proof duly made of its existence and execution. Mr. Wharton, in his work on Criminal Evidence (8th ed.), section 216, says:
“In criminal issues, the fact that the indictment charges the defendant with stealing, or in other way misappropriating a particular document, is a sufficient notice to the defendant to produce the document ; and under such circumstances, parol evidence of the document is admissible without due notice to produce. Nor is it necessary that the indictment should aver the loss or destruction of the document. The same rule has been applied under an indictment for administering an unlawful oath to enable the. prosecution to prove by parol the paper from which the oath was read without notice to produce the .paper.”
Again, it is contended that the evidence was wholly insufficient to warrant a conviction of defendant Shotts. It was admitted upon the trial that he was the president of the LaCrosse Lumber and Grain Company. It was not shown, however, that he was present at any meeting of the parties preliminary to the making of the unlawful agreement. He did not sign the same, and it was not shown that he had any knowledge of the unlawful agreement or in any way actively participated in the matter. Noi was it shown that the agreement was signed by the corporation of which he was the president. The evidence was therefore utterly insufficient to connect him' with the guilty transaction or to sustain a conviction against him.
Other errors are' assigned, but as they are such as will probably not recur upon a further trial, they need not be considered.
It follows that the judgment must be reversed, with directions to grant defendant Dreany a new trial aüd to discharge defendant Shotts. It is so ordered.
All the Justices concurring. | [
48,
110,
-7,
-99,
10,
96,
58,
-70,
93,
-95,
38,
83,
-51,
86,
4,
121,
-25,
93,
80,
106,
100,
-73,
51,
-61,
-46,
-77,
-39,
-59,
-79,
79,
-27,
-36,
76,
16,
10,
85,
-26,
-62,
-47,
30,
-114,
5,
40,
-24,
-48,
64,
48,
47,
86,
78,
113,
-82,
-13,
40,
24,
-61,
41,
44,
-17,
45,
65,
-15,
50,
-49,
77,
22,
51,
6,
-104,
69,
-24,
62,
-104,
48,
9,
-23,
123,
-106,
-58,
-12,
45,
25,
13,
106,
99,
1,
-59,
-81,
12,
-112,
46,
-33,
-99,
-89,
-112,
8,
67,
8,
-97,
-99,
84,
112,
-90,
-4,
-8,
-115,
31,
124,
-127,
-58,
-74,
-125,
31,
118,
-102,
87,
-21,
-94,
50,
112,
-59,
-86,
93,
7,
18,
27,
-114,
-76
]
|
The opinion of the court was delivered by
Johnston, J. :
In 1897 this-case was before us, and. it was then determined that the city was answerable to residents for damages resulting from the precipita tion of sewage and river-water upon their premises. (King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88.) That holding was based on the averments of the petition that the sewers were so low that when a freshet occurred the water and sewage were backed up on the premises of the plaintiff, causing great injury. The alleged negligence of the citjrwas the failure to provide suitable flood-gates with which the mouths of the sewers could be closed during a rise of the river. At the second trial of the case the averments of the petition were well sustained by the testimony produced, and the jury found that in 1892 the sewage was backed up through the manholes and catch-basins of the sewer by high water, and that it could have been avoided by placing flood-gates over the mouths of the sewers. The lack of flood-gates was the only negligence alleged, and that is the negligence upon which the verdict and judgment are based.
A number of errors are assigned, which will be briefly noticed. When the cause 'was remanded for a second trial the petition was amended by striking out the averment that Nina King was the owner of the property injured. In the original petition it was alleged that James King and Nina King were the owners of the property, and, as the amendment was made after the statutory period for bringing such an action had expired, it is argued that the amendment introduced a new cause of action which was then barred. ' The amendment did not introduce a different cause of action, and it was, in fact, immaterial. The fact that the Kings sued jointly does not require that there shall be a joint recovery or none at all. The common-law rule was that the several plaintiffs in an action must all recover jointly or all utterly fail, but our code, section 396 (Gen. Stat. 1901, §4845), provides that “judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” If no amendment had been made, and the proof had shown that James King owned the entire interest in the property and had sustained the entire loss, he would have recovered for that loss.. (Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961.) The fact that Nina King, impleaded with him, had failed to establish the right of recovery would not affect his right to recover for the actital damages sustained by him, and, hence, the amendment was unnecessary and immaterial and did not change the cause of action.
The cause of action arose in favor of the plaintiff below when the overflow occurred and» the injury was inflicted. The complaint made was not against the plan of the sewers, but it was rather that they were not properly completed by placing flood-gates over the mouths of the same. The sewers were not built upon the plaintiff’s property; they did not constitute a trespass upon his property, and his rights were not invaded until the water was backed through the sewers and precipitated upon his property. Not until that time did a cause of action accrue in his favor, and, hence, the right of action was not barred when the proceeding was begun. (Union Trust Company v. Cuppy, 26 Kan. 754.)
It is contended that ordinary high water would not have occasioned injury to King’s property, and that the city, in constructing the sewers was not required to anticipate or guard against an extraordinary freshet. It is true that the flood of 1892 may be said to have been an unusual one, but, although unusual, it was such as had occasionally occurred, and which the city should have anticipated, and provided against. The testimony shows that such floods had occurred at irregular intervals, and that they would again occur might reasonably have been expected. It is true that floods unprecedented and so extraordinary as to have been beyond reasonable anticipation are not to be provided against, but while floods like the one which occasioned the injury were of rare occurrence in. that vicinity, they had occurred so often in the past as to warrant the belief that the region was subject to them, and that, under the laws of nature, they would occur again. Ordinary care and foresight, therefore, required the city to provide against floods which were or should have been anticipated, and floods were shown to have occurred so frequently that those who constructed the sewers should have anticipated floods like that of 1892, and should have guarded against them by placing flood-gates at the mouths of the sewers. (Union Trust Company v. Cuppy, supra; The Mayor of New York v. Bailey, 2 Den. 433; Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61; O. & M. Ry. Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087 ; Railway Company v. Nicholson, 25 S. W. [Tex. Civ. App.] 54; Ang. Water. § 33.)
The testimony with reference to defects, other than the absence of flood-gates, was properly excluded from the jury, as that was the only negligence alleged, and the findings of fact made show conclusively that the neglect to provide the flood-gates was the sole ground upon which the recovery was had.
The complaint that additional findings, requested by the city, were not made by the court is not good. The findings were not requested until after the court had announced its findings, overruled the motion for a new trial, and entered final judgment. The request came too late, and no error was committed in refusing it. ( Wilcox v. Byington, 36 Kan. 212, 12 Pac. 826 ; Smythe v. Parsons, 37 id. 79, 14 Pac. 444; Allen v. Dodson, Sheriff, 39 id. 220, 17 Pac. 667.)
The evidence is sufficient to sustain the findings and the judgment of the court, and none of the grounds of error assigned justifies a reversal. The judgment is affirmed.
Doster, O.J., Ellis, J., concurring. | [
-16,
104,
-4,
-18,
-40,
103,
8,
-40,
73,
-79,
-27,
119,
13,
-61,
29,
101,
-13,
125,
-16,
59,
-60,
-93,
15,
-126,
-42,
-13,
-5,
-35,
120,
124,
-4,
119,
76,
48,
-120,
-43,
102,
-62,
81,
-36,
-114,
-102,
10,
-59,
-47,
82,
52,
106,
70,
71,
117,
-100,
-13,
43,
17,
-57,
-51,
44,
-53,
60,
81,
-79,
-120,
5,
94,
20,
-96,
-74,
-108,
-127,
-22,
44,
-104,
17,
9,
-24,
50,
36,
-122,
-11,
101,
-101,
12,
98,
102,
8,
1,
-21,
-72,
-128,
6,
-54,
-113,
-90,
-108,
24,
75,
33,
-74,
-103,
125,
20,
39,
-6,
-2,
-107,
95,
108,
5,
-125,
-44,
-77,
11,
-92,
18,
-127,
-57,
3,
-94,
113,
-50,
-22,
92,
69,
18,
-37,
-98,
-36
]
|
Error from Reno district court. | [
-45,
-22,
-20,
110,
42,
65,
18,
-114,
83,
-125,
51,
23,
-83,
-122,
20,
123,
97,
47,
116,
123,
-44,
-78,
119,
97,
-10,
-37,
-40,
-41,
-65,
109,
-4,
-20,
92,
48,
-118,
21,
70,
-128,
-81,
-36,
38,
-121,
-119,
124,
89,
0,
60,
33,
114,
47,
97,
126,
-31,
46,
62,
67,
-84,
46,
-19,
117,
-22,
-37,
-13,
13,
27,
7,
-95,
86,
-41,
15,
80,
42,
-100,
61,
0,
-8,
50,
54,
-122,
53,
75,
-69,
-92,
100,
98,
0,
93,
-113,
-80,
-84,
-123,
122,
25,
-91,
-110,
8,
107,
-93,
-106,
-75,
36,
-106,
111,
126,
109,
-124,
125,
100,
-126,
-18,
-16,
-77,
-52,
-96,
-116,
-53,
-9,
99,
48,
113,
-51,
-48,
-36,
70,
17,
26,
-42,
-66
]
|
The opinion of the court was delivered by
Poster, C. J. :
This is a proceeding in error from a judgment of the district court sustaining a demurrer to the plaintiff’s evidence in an action for the wrongful conversion of plaintiff’s money by defendants. One Morris was indebted to the plaintiff, the People’s National Bank of Rock Island, Illinois. The indebtedness was secured by mortgage on cattle. Morris was also indebted to the defendants, the State Bank of Holton, Kan., and to John Q,. Myers, the president of said bank, residing at Holton. One John D. Myers was the agent of the People’s National Bank, and also resided at Holton. Morris put one Ogee in charge of the cattle for shipment and sale, and sent them to Davis, McDonald & Davis, a commission firm at St. Joseph, Mo., with direction to instruct them to remit the proceeds of sale to John Q. Myers. This was done. Onreceipt of the money John Q. Myers credited it on the indebtedness due to himself and to his bank. Neither he nor his bank had liens on the cattle, but they had actual knowledge of the existence of plaintiff’s mortgage on them. The plaintiff’s agent, John D. Myers, demanded the money, the proceeds of the cattle sale, but was refused, whereupon action was instituted. It is clear to us that the action is maintainable. One who through the design or misdirection of another receives money, which he knows belongs to a third person, cannot retain it for application on his own debt, due from the one who designedly or mistakenly gave it to him. This proposition seems so evidently equitable as not to require argumentation. Cases quite like this one in which the principle as stated has been applied are: Union Stock Yards Bank v. Gillespie, 137 U. S. 411, 11 Sup. Ct. 118, 34 L. Ed. 724; Farmers’ and Mechanics’ National Bank v. King, 57 Pa. St. 202, 98 Am. Dec. 215; Burtnett v. F. N. Bank of Corunna, 38 Mich. 630; National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693 ; Farmers’ and Merchants’ Bank v. Farwell, 7 C. C. A. 391, 58 Fed. 633 ; Cady v. South Omaha National Bank, 46 Neb. 756, 65 N. W. 906; Alter v. Bank of Stockham, 51 Neb. 797, 73 N. W. 667; Rock Spring National Bank v. Luman, 6 Wyo. 123, 42 Pac. 874.
The principal contention of the defendant is that there was a variance between the plaintiff’s petition and proof, and therefore that the demurrer to the evidence was rightly sustained. The petition alleged that Morris, the mortgagor, instructed Ogee, his agent, to direct Davis, McDonald & Davis, the commission firm, to send the proceeds of the cattle sale to John D. Myers, the plaintiff’s agent, but that by mistake the remittance was made to John Q,. Myers. The proof was that Morris had'not given such instructions to Ogee, but on the contrary had instructed him to cause the remittance to be made to John Q,. Myers. That did not constitute a variance justifying the court in sustaining the demurrer to the evidence. The substantive litigated fact in the case was the ownership of the money derived from the sale of the cattle, not the mistake or design of any of the parties in putting it in the h*ands óf John Q,. Myers. The question as to how the latter got the money, whether by direction of Morris or the mistake of Davis, McDonald & Davis, was immaterial, except as explanatory of the fact of his getting it. The money not being his, the inquiry as to how he got it was immaterial to the question of his right to keep it. “No variance between the allegations in the pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” (Civil Code, § 133 ; Gen. Stat. 1901, § 4567.) A departure from the pleadings in those mere incidents of evidence which are not inherent in the substantive issues of the case, and which has not misled the adverse party to his prejudice, does not constitute a variance between the allegations and the proof.
The judgment of the court below is reversed, with directions to overrule the demurrer to the evidence, and for a new trial.
Johnston, Cunningham, Ellis, JJ., concurring. | [
-80,
-18,
-47,
-83,
10,
96,
42,
-102,
81,
-96,
-75,
83,
-19,
-62,
20,
125,
-10,
61,
84,
104,
-44,
-78,
7,
-21,
-46,
-77,
-111,
-51,
-79,
77,
-28,
-52,
77,
16,
-54,
-43,
102,
-62,
-61,
-36,
-114,
5,
41,
-59,
-7,
0,
48,
107,
20,
74,
1,
-67,
-13,
42,
25,
-62,
105,
40,
107,
33,
-48,
-16,
-86,
-113,
127,
6,
-109,
68,
-120,
69,
-8,
46,
-112,
51,
1,
-56,
122,
-74,
-122,
116,
109,
-103,
9,
34,
98,
-94,
112,
-17,
-44,
-104,
46,
-33,
-99,
-90,
-48,
24,
11,
9,
-66,
-99,
102,
21,
6,
-4,
-25,
21,
30,
108,
21,
-98,
-10,
-77,
-113,
60,
-102,
-117,
-1,
39,
-96,
113,
-49,
-94,
93,
71,
122,
19,
-114,
-99
]
|
The opinion of the court was delivered by
Greene, J.;
T. L. Logan, as mortgagee, replevied from J. A. and E. A. Rhodes certain property covered by a mortgage, purporting to have been signed by J. A. andE. A. Rhodes, husband and wife. E. A.«Rhodes answered denying the execution of the mortgage, and alleging that part of the mortgaged property was ex empt, and that, as to such property, the mortgage was void. John Alexander interpleaded, claiming the remainder of the property. At the trial a general verdict was returned for the plaintiff and judgment rendered thereon, to reverse which John Alexander and E. A. Rhodes prosecute this proceeding.
It is urged that the court erred in the admission of certain testimony given by B. W. Reed and the plaintiff below. The testimony was hearsay. We are of the opinion, however, that, as applied to the issues in this case, it was not sufficiently important or prejudicial to justify a reversal of the judgment.
On the part of E. A. Rhodes, complaint is made that the court erred in giving instruction No. 9. It reads :
“No mortgage of exempt personal property is of any force unless the same is given with the joint consent of husband and wife, where that relation exists ; however, it is not necessary that this consent should be evidenced by writing. It is enough to bind both husband and wife, if the husband executed the mortgage with the knowledge and consent of the wife, or if she knew the mortgage was to be given by the husband to secure Logan, and remained silent fill Logan parted with his money ; or, if, after the mortgage was executed and delivered, the wife received knowledge of its existence and failed to make objection within a reasonable time, then this is proper evidence that she adopted and ratified the act of the husband in giving the mortgage. You must take into consideration all the circumstances surrounding the giving of the mortgage, the acts of the parties in showing the property, the conversations at the time, and all the antecedent facts connected with the loaning of the money. If from this evidence you reach the conclusion that Mrs. Rhodes knew Logan expected to take the mortgage, and that her husband was going to execute the mortgage and she kept silent, or if she afterward learned that the mortgage had been. executed and had opportunity to notify Logan that she had not authorized the same, and did not expect to be bound thereby, and failed to do so in a reasonable time, then it would be your duty to find for the plaintiff as against defendahts, Rhodes and wife.”
This instruction does not state the law correctly, and was prejudicial to the contentions of Mrs. Rhodes. A chattel mortgage on exempt personal property, executed by the husband alone, is void, notwithstanding the wife knew at the time that her husband intended giving the mortgage and that the mortgagee would accept it, and made no objections thereto, or that she afterward learned that the mortgage had been given and had an opportunity to, and did not, inform the mortgagee that she had not signed the mortgage and would not be bound thereby. Nor will such conduct on her part estop her to deny its execution. The statute in force at the time this mortgage was executed was section 3, chapter 120, General Statutes of 1897 :
‘ ‘ It shall be unlawful for either husland or wife (where that relation exists ) to create any lien by chattel mortgage or otherwise upon any personal property owned by either or both of them, and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this state, without the joint consent of both husband and wife ; and from and after the time when this act shall take effect [ 25th May, 1889] no such mortgage of personal property shall be valid unless executed by both husband and wife.”
This statute declares that it shall be unlawful for either husband or wife to create any lien by mortgage or otherwise upon exempt personal property without the joint consent of both, and that no such mortgage shall be valid unless executed by both. There are two precedent conditions requisite to a valid chattel mortgage on exempt personal property" when the marriage relation exists: (1) It must have been given with the joint consent of both husband and wife; (2) it must be executed by both. Knowledge and acquiescence on the part of one are not sufficient; there must be an active participation by both. It is not necessary, however, that both or either should actually perform the physical act of signing the instrument ; either may authorize the other or some third party to sign it for him or her, and, if so signed, it would be effective to bind such party.
It appears from the evidence that Alexander is Mrs. Rhodes’s brother ; that Rhodes and wife commenced operating a hotel at Syracuse in April, 1899 ; that the furniture claimed by Alexander was purchased and placed in the hotel by him, and that it was intended either as a present or a loan to Rhodes and wife and used thereafter by them as though it was their furniture. This furniture was insured by Rhodes in his own name, and, when he and his wife removed from Syracuse to Larned, it was shipped by him in his own name to Larned and there placed in the hotel with his property and used in conducting the business. While at Larned, and prior to the execution of the mortgage in question, Rhodes mortgaged this furniture to A. H. Moffett. Alexander lived at Syracuse, and it does not appear that he was known in Larned, or was about the hotel while it was being operated.
Upon the issues joined between Alexander and Logan, the court instructed the jury as follows :
10. “The possession of personal property raises a presumption of ownership in the possessor. If, in fact, Alexander was the owner of the property which is the subject of this action, and.he permitted defendant Rhodes and wife to remove the same from a distant part of the state to Pawnee county, and they afterward shipped the same to Larned, in said county, in the name of the defendant J. A. Rhodes, and Rhodes and wife held themselves out to the public as the owners of the property, used the same in their business, and- mingled it with other property purchased by them ; and if you further find that defendant Alexander made no effort to inform the public as to the rights in the property, then the court instructs you that it is your duty to weigh all said circumstances in detail, and if, after full and fair consideration, it is your belief, under the evidence and circumstances proved, that a man of ordinary business prudence, at the time Logan made the loan, would have been justified in acting on the belief that Rhodes and wife owned the property, it will be your duty to find for the plaintiff.
11. “Where one of two innocent parties must suffer for the wrong-doing of a third, the penalty must fall upon him that places power in said third party to do the injury. If both Logan and Alexander were acting in good faith, and Alexander permitted his property to be so used as to raise a reasonable belief in the minds of others that the property belonged to third persons, and such third persons afterward secured a loan from Logan on said property, then Alexander has no right to the possession of said property till Logan’s loan is satisfied.”
It is contended by Alexander that these instructions are erroneous and prejudicial; that by instruction No. 10 the jury were told that if Rhodes and wife were in possession of the goods at Syracuse and shipped them to Larned in the name of Rhodes, they were circumstances tending to discredit Alexander’s claim of ownership.
It will be observed that there are more evidential circumstances enumerated in this instruction than those mentioned. The language is :
“If in fact Alexander was the owner of the property which is ¡the subject of this action, and he permitted defendant Rhodes and wife to remove the same from a distant part of the state to Pawnee county, and they afterward shipped the same to Earned, in said county, in the name of the defendant J. A. Rhodes, and Rhodes and wife held themselves out to the public as the owners of the property, used the same in their business, and mingled it with other property purchased by them ; .and if you further find that defendant Alexander made no effort to inform the public as to the rights in the property. . . .”
These were circumstances to be considered in determining whether a man of ordinary business prudence would be. justified in acting on the assumption that Rhodes and wife were the owners of the goods.
This objection is groundless. The possession of personal property is some evidence of ownership ; and certainly where one is put in the exclusive possession of such personal property as beds and bedding and other like household and hotel furniture, is knowingly permitted by the owner to mingle it with his own, ship it to a distant point in his own name with his own furniture, holding himself out as such owner, and there among strangers engage in business, using such property as his own, and no effort is made by the alleged owner to inform the public to the contrary, such circumstances are proper matters for consideration in determining whether a reasonably prudent man would be justified in acting on the belief that the persons thus in possession were the actual owners.
It is also argued that the giving of this, as well as instruction No. 11, was error, in that they leave out of consideration all question of the good faith of Logan in believing that Rhodes did own the property at the time he loaned the money. The eleventh instruction informs the jury:
‘ ‘ If both Logan and Alexander were acting in good faith, and Alexander permitted his property to be so used as to raise a reasonable belief in the minds of others that the property belonged to third persons, and such third person afterward secured a loan, from Logan on said property, then Alexander has no right to the possession of said property till Logan’s loan is satisfied.”
These instructions, read together as they should be, inform the jury that the mortgagee under such circumstances must act in good -faith, or he cannot recover. It is doubtful if it was necessary in this case for the court to go to that extent, as Logan’s good faith was not questioned.
For the reasons herein stated, the judgment is affirmed as to Alexander and reversed and remanded for further proceedings as to E. A. Rhodes.
All the Justices concurring. | [
-94,
108,
-79,
-115,
106,
64,
-86,
-40,
113,
-112,
-89,
-13,
-21,
-54,
20,
107,
-28,
47,
84,
104,
-44,
-77,
54,
-32,
-14,
-13,
113,
-43,
-75,
124,
-28,
85,
13,
36,
-62,
93,
102,
-118,
-63,
16,
-114,
-121,
40,
-27,
-39,
-62,
52,
47,
-48,
73,
97,
-114,
-13,
43,
29,
79,
104,
42,
75,
57,
80,
-8,
-113,
-123,
91,
3,
-109,
53,
-104,
101,
-40,
8,
-112,
49,
1,
-24,
123,
-74,
-106,
-10,
109,
-101,
9,
102,
98,
16,
68,
111,
-40,
-104,
46,
126,
-121,
-89,
-109,
72,
3,
97,
-66,
-99,
109,
80,
39,
-10,
-30,
-99,
60,
108,
31,
-117,
-106,
-109,
-83,
-4,
-102,
27,
-13,
-101,
16,
113,
-51,
-88,
93,
96,
122,
-103,
-114,
-75
]
|
The opinion of the court was delivered by
Smith, J. :
This was an action on an award of arbitrators for loss covered by an insurance policy issued by plaintiff in error to Richard Arnold, indemnifying him against damage by wind-storm, cyclone, or tornado. The residence of the defendant in error was damaged by a wind-storm. After electing to repair, which the insurance company had the right to do under the conditions of the policy, a dispute arose between the insured and the agents of- the company as to the extent of the repairs which the latter intended to make, and thereafter it was agreed between the parties, in writing, to submit the matter to arbitrators, who, by the terms of the articles of submission, were authorized to “arbitrate and determine the actual cash loss and damage done by the wind.” It was provided in the agreement as follows :
“This appointment is without reference to any other question or matters of difference within the terms and conditions of the several policies of insurance of the said companies, and is not to be taken as a waiver on the part of the said companies of any of the conditions of their policies, should they elect to avail themselves thereof ; but is of binding effect only so far as regards the actual loss and damage to the property covered by the several policies of insurance. . The consideration of this agreement being the avoidance of future misunderstandings and.litigation as to the amount of said loss and damage.”
The by-laws of the company, made a part of the policy, contained the following provisions with respect to the right of the company to repair, and of arbitration in case of loss :
“This company reserves the right to repair, replace or rebuild the property damaged or destroyed with other like kind or quality, and if they elect to do so,j, they shall, within thirty days after the final proofs, are in, notify the loser of their decision.”
“In case the executive committee or adjuster and parties sustaining loss fail to agree upon the amount of damages or loss, the same shall be submitted to three disinterested persons as arbitrators, one of whom shall be selected by the claimant, one by the adjuster, and the third by these two persons. Said arbitrators shall be sworn and shall have authority to examine and determine all matters of dispute, and shall make a fair and impartial award in writing to the company ; and no suit shall be commenced against the company until such arbitration shall be had. The award of such arbitrators shall be final and conclusive upon both parties as to the amount of loss sustained, but of no other question or facts pertaining thereto ; but shall not decide as to the legal liability of the company or'the insured.”
There was an award in favor of the plaintiff below of $253.08, as the amount of loss and damage to the property, itemized as follows :
$25.60 on taking off siding.
10.00 on nailing boxing.
25.50 putting on siding.
7.68 on nails.
10.00 repairing foundation and leveling house.
3.50 on repairing roof.
19.00 on chimneys.
7.00 on porch repairing.
2.00 screen door.
3.00 repairs shutters.
16.50 600 ft. extra siding.
109.20 plaster, outside walls.
12.00 hauling material.
$251.08
2.00 spouting.
$253.08
The company declined to pay the sum fixed by the arbitrators, on which refusal the plaintiff below brought suit and recovered judgment for the amount, with interest, of which judgment the insurance company complains.
Under its contract to indemnify the insured, the company was bound in repairing the loss to restore the building to the condition existing before the storm. This, as the jury found, would cost $253.08. It is difficult to understand what purpose was to be accomplished by the arbitration if the company, could repudiate the award. If the company had proceeded and expended the amount found by the arbitrators to be necessary to repair the building, it would have saved nothing, and the result would have been the same-to it as if it had paid the amount at once.
If there was no waiver of the right to repair by the submission to the arbitration, the award settled nothing and involved the policy-holder in a controversy out of which no benefit whatever could result to him, leaving the option to repair still to be exercised by the company. The reasoning in Elliott v. Fire Insurance Co., 109 Iowa, 39, 79 N. W. 452, 453, commends itself as sound. It is there said :
“Without arbitration, the company may ascertain the actual loss; and this, it would seem, is quite sufficient to enable it to make a just election of the method it will pursue in recouping the damage. That an election to rebuild is a waiver of the right to arbitrate is not questioned, as this, eo instante, converts the policy into a building contract. (Zalesky v. Insurance Co., 102 Iowa, 512, 70 N. W. 187, and 71 N. W. 433 ; Wynkoop v. Insurance Co., 91 N. Y. 478.) The demand to arbitrate is an election to make payment, for that there is no good reason to measure the extent of the loss in money save for the purpose of liquidation. Arbitration may require a trial, and invariably involves considerable expense. Can it be supposed that the parties, in making the contract, intended such an outlay by the insured, merely to advise the company by which method (payment or rebuilding) it could escape at the smallest expense and confer the least advantage on the assured? If so, the company may await.arbitration, and then make payment or rebuild as best subserves its interest, though in either event the assured is bound. In other words, under such an interpretation the company may speculate at the assured’s expense without possibility of loss to itself. The law ought not to countenance a legal contest, even before arbitrators, the sole purpose of which is to enable one of the parties to make choice of methods in discharging its obligation to the other to the former’s advantage, unless expressly so stipulated, but should rather construe the demand for arbitration as an election of that method which will be directy promoted by such a. course. That the purpose of arbitration contemplated was the ascertainment of the amount of the damages, with the view of payment, appears from the fact that it might be demanded by either party, while the option of rebuilding was reserved to the company alone.”
In the case quoted from, the policy provided that the' award should be conclusive as to the amount of the loss, but should not determine the liability of the company, the company reserving the option to repair, rebuild or replace property destroyed or damaged. See, also, McAllaster v. Niagara Fire Ins. Co., 156 N. Y. 80-85, 50 N. E. 502.
Platt v. Ætna Ins. Co., 153 Ill. 113, 38 N. E. 580, 26 L. R. A. 353, 46 Am. St. Rep. 877, is an authority for the contrary view. In the New York case cited no reasoning is employed, and the matter is dismissed with the statement that the parties having contracted that the arbitration should not affect the right to rebuild, their agreement is conclusive. It will be noticed that in the stipulation to submit to arbitration it is said : “The consideration of this agreement being the avoidance of future misunderstandings and litigation as to the amount of said loss and damage.” If the award was of no binding force, then the purpose for which it was made, as indicated above, was misstated. If the insurance company could disregard it, no misunderstanding or litigation was avoided. The law does not look with favor on stipulations made in relation to business matters which bind the parties to engage in futile controversies, or perform foolish' acts which accomplish nothing but to make, expense and consume time.
The judgment of the court below will be affirmed.
Greene, Pollock, JJ., concurring. | [
-78,
-4,
-48,
-84,
24,
32,
56,
-38,
89,
-23,
-89,
83,
-35,
-21,
21,
119,
-73,
121,
80,
66,
82,
-93,
23,
-78,
-41,
-45,
-13,
-59,
-80,
127,
124,
92,
8,
40,
-118,
-43,
-26,
-64,
69,
24,
-50,
-122,
-88,
-19,
-39,
66,
56,
107,
86,
91,
84,
-101,
-29,
44,
25,
67,
45,
41,
121,
-95,
-45,
49,
-54,
-115,
127,
0,
49,
84,
-66,
39,
90,
14,
-112,
53,
-120,
-24,
115,
-74,
-122,
116,
109,
-101,
0,
98,
103,
0,
81,
-49,
-40,
-104,
39,
70,
31,
-90,
-105,
88,
42,
12,
-82,
-99,
108,
16,
54,
126,
-1,
21,
31,
32,
3,
-125,
-74,
-89,
-35,
96,
-104,
15,
-18,
-126,
36,
101,
-49,
-88,
95,
69,
62,
-103,
79,
-104
]
|
Error from Neosho district court. | [
-110,
-7,
-32,
-49,
-116,
-127,
0,
-114,
69,
-41,
118,
87,
-19,
-114,
20,
121,
98,
45,
52,
120,
67,
-78,
55,
67,
-74,
-13,
-21,
-41,
-79,
93,
-4,
-96,
76,
-16,
-118,
31,
71,
-96,
-89,
92,
-50,
2,
9,
-27,
81,
43,
60,
32,
-38,
14,
49,
46,
-31,
47,
58,
99,
-52,
44,
-47,
105,
-24,
-13,
-80,
13,
125,
6,
-127,
116,
-105,
-126,
92,
42,
-112,
53,
0,
-8,
118,
22,
-121,
117,
79,
27,
-119,
110,
66,
1,
24,
-17,
-72,
-116,
15,
126,
-99,
-89,
-105,
24,
107,
-113,
-106,
-99,
100,
86,
47,
124,
103,
-124,
121,
12,
3,
-50,
-16,
-109,
-52,
-80,
-116,
11,
-1,
-57,
48,
113,
-35,
-12,
-38,
-58,
57,
-101,
-49,
-80
]
|
The opinion of the court was delivered by
Pollock, J.:
John A. Whitcraft died at the residence of his nephew, Horace H. Standish, in Wyandotte county, on the 6th day of January, 1898. At the date of his death he was the owner of two certificates of deposit of $1000 each, issued by the First National Bank of Emporia; also, real estate and oth'er personal property in Lyon county. For many years prior to his death Whitcraft had been a resident of Lyon county. Om the 19th day of January, 1898, Horace H. Standish filed his petition in the probate court of Lyon county, praying his appointment as administrator of the estate of Whitcraft. On the same day John W. Logan and others filed their petition praying for the appointment of W. F. Ewing as administrator of such estate. These petitions each alleged the death of Whitcraft, late of Lyon county, Kansas, deceased; that he died leaving no last will and testament, so far as the petitioners knew or believed, and that he died seized of money in bank, mortgages and real estate in Lyon county, Kansas. On the 21st day of January there was a hearing on these applications' and that of Standish for his appointment was denied, and that of Logan and others for the appointment of Ewing was granted. Ewing ', was appointed, letters of administration were issued to him, and he qualified and gaye bond as' such ad-(minis trator.
Thereafter, on the 13th day of February, 1898, Standish made application to the probate court of Wyandotte county for probate of an alleged oral will of Whitcraft, and for the appointment of defendant in error Mallison, as administrator, with will annexed. To this proceeding, Ewing, as administrator, appeared in the probate court of Wyandotte county, filed his plea in abatement, alleging his prior appointment and qualification as administrator by the probate court of Lyon county, and want of jurisdiction in the probate court of Wyandotte county to make the appointment prayed. Upon a hearing, this plea was overruled, and it was found that Whitcraft was at the date of his death a resident of Wyandotte county. Thereafter an order was made admitting the nuncupative will to probate, and appointing defendant in error Mallison administrator with .will annexed. No appeal was taken from the proceedings of either probate court.
This action was brought by Mallison, as administrator with will annexed, to recover from the receiver of the First National Bank of Emporia, then insolvent and in the hands of Morton Albaugh, as receiver, by order of the comptroller of the currency, on the certificates of deposit. Ewing, as administrator, was made party defendant, and answered, setting up his appointment by the probate court of Lyon county, his qualification under such appointment, and his right to the funds of the estate. Plaintiff replied, pleading an adjudication by the probate court of Wyandotte county and an estoppel of Ewing to claim under this appointment. There was judgment for plaintiff. Defendant Ewing brings error.
The merits of this controversy depend on the actions of the probate courts of Lyon and Wyandotte counties, and the effect of the appearance of the administrator appointed by the probate court of Lyon county in the probate court of Wyandotte county, and there contesting the jurisdiction of that court over the estate he was appointed to represent. It is admitted that the jurisdiction of the probate court of Lyon county was first invoked, and that court first assumed jurisdiction over the estate; that plaintiff in error was appointed administator of the estate and letters of administration were issued to him ; and that he qualified, as provided by law, before the jurisdiction of the probate court of Wyandotte county was invoked. That Standish, first to invoke the jurisdiction of the Lyon county court, after defeat in that court, was the first to invoke the jurisdiction of the probate court of Wyandotte county, is admitted.
This controversy arises over the exercise of jurisdiction by the separate tribunals. The petition of Standish, verified and filed in the probate court of Lyon county, seeking his own appointment as representative of the estate, among other things, alleged the following:
“The petition of the undersigned, Horace H. Standish, respectfully represents that John H. Whitcraft, late of the county of Lyon, aforesaid, departed this life at the residence of this petitioner, at Kansas City, Kan., in Wyandotte county, on or about the 16th day of January, 1898, leaving no last will or testament, as far as your petitioner knows or believes.”
In legal contemplation, this allegation means that the deceased was last a resident of Lyon county (Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237), and left no will, and was made for the purpose of inducing the probate court of Lyon county to assume jurisdiction over the estate of the deceased. Although such allegation would not confer jurisdiction on the probate court of Lyon county to administer the estate of the deceased if the requisite jurisdictional facts did not exist, for jurisdiction cannot be conferred by consent of parties, yet, it may well be doubted whether, after the probate court of Lyon county acted judicially on the admission and declaration contained in this allegation of residence of the deceased, an admission of a jurisdictional fact solemnly made on the oath of the petitioner, Standish should not be debarred from denying the truth of this allegation for the purpose of either invoking the jurisdiction of the Wyandotte court or denying the authority of plaintiff in error as representative of the estate. A party should not be permitted thus to belie himself. In support of this position, see Railway Company v. Ramsey, 22 Wall. 322, 22 L. Ed. 823; Turner v. Billagram, 2 Cal. 520 ; Miltimore v. Miltimore, 40 Pa. St. 151; Potter v. Adams’s Executors, 24 Mo. 159 ; Lovelady et al. v. Davis, Ex’r, 33 Miss. 577 ; Ela v. McConihe, 35 N. H. 279 ; Hines and Bryan v. Mullins, 25 Ga. 696 ; Samuel Brown v. Ezekiel S. Haines and others, 12 Ohio, 1; Mandeville v. Mandeville et al., 35 Ga. 243 ; Harbin, Adm’r, v. Bellet al., 54 Ala. 389. However, we do not rest our decision upon this ground.
It is a principle of universal application, essential to the orderly administration of justice, in order to avoid conflict between tribunals of coequal authority, that the court first acquiring jurisdiction shall be allowed to pursue it to the end, to the exclusion of others; and that it will not permit its jurisdiction to be impaired or subverted by a resort to some other tribunal. This general principle was announced by this court in the criminal case of The State v. Chinault, 55 Kan. 326, 40 Pac. 662, and writers on criminal law and criminal cases arising in other jurisdictions are there cited in its support. The doctrine is not confined to criminal cases. It is alike applicable in civil practice. ( Sharon v. Terry (C. C.), 36 Fed. 337 ; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287 ; Gaylord v.Ft. W. M. & C. R. R. Co., 6 Biss. 286, Fed. Cas. No. 5284 ; Union Mut. L. Ins. Co. v. Chicago University (C. C.), 6 Fed. 443, 10 Biss. 191; Mason v. Piggott, 11 Ill. 85; Bank of B. Falls v. R. & B. R. Co. et al., 28 Vt. 470; Stearns & al. v. Stearns & al., 16 Mass. 167; Home Insurance Co. v. Howell, 24 N. J. Eq. 238; Hines & Hobbs v. Rawson, 40 Ga. 356, 2 Am. Rep. 581; Wilkinson v. Wait, 44 Vt. 508, 8 Am. Rep. 391; Merrill v. Lake and others, 16 Ohio, 373, 47 Am. Dec. 377.)
In Stearns & al. v. Stearns & al., supra, it was said:
“When different courts have concurrent jurisdiction, the one before whom proceedings may be first had, and whose jurisdiction first attaches, must necessarily have authority paramount to the other courts ; or, rather, the action first commenced shall not be abated by an action commenced between the same parties, in relation to the same subject, in the same or any other court.”
In Home Insurance Co. v. Howell, supra, it was held :
“This court, having the authority to hear and determine the subject-matter in controversy, and having first obtained possession of the controversy, is fully at liberty to retain it until it shall have disposed of it. The general rule is that as between courts of concurrent and coordinate jurisdiction, the court that first obtains possession of the controversy must be allowed to dispose of it, without interference from the coordinate court.”
In Brooks v. Delaplaine, 1 Johns. (Md. Ch.) 351, it was said:
‘ ‘ When two courts have concurrent jurisdiction over the same subject-matter, the court in which the suit is first commenced is entitled to retain it. This rule would seem to be vital to the harmonious movement of courts whose powers may be exerted within the same spheres, and over the same subject and persons. . . . Any other rule will unavoidably lead to per petual collision, and be productive of the most calamitous results.”
The statute (Gen. Stat. 1901, § 2806 ) provides :
“Upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by. the probate court of the county in which the deceased was an inhabitant or resident at the time of his death.”
The words “inhabitant” and “resident” are usually synonymous. (Bouvier, subj. “Residence”; Lee v. City of Boston, 2 Gray [Mass.] 490.) Hence, but one court was possessed of jurisdiction'to administer the estate of deceased — the probate court of the county of his residence at the date of death. But if it were possible to assume that either the probate court of Lyon county or the probate court of Wyandotte county might have rightfully acquired jurisdiction over this estate for the purpose of appointing an administrator or proving a will, the action taken by the Lyon county probate court being first in point of time, if in its nature judicial, and that court in-fact had jurisdiction, it will retain the same to the end, to the exclusion of jurisdiction in the probate court of Wyandotte county, unless the appearance of the administrator appointed by the probate court of Lyon county in the probate court of Wyandotte county to contest the jurisdiction of that court may be held to have deprived the probate court of Lyon county of jurisdiction once acquired, or to estop the administrator appointed by the Lyon county probate court from asserting non-jurisdiction in the Wyandotte probate court.
That the action of a probate court in appointing an administrator of an estate is in its nature judicial, and, where jurisdiction obtains, not subject to collateral attack, would seem to be well settled by this court. In Taylor v. Hosick, Adm’r, &c., 13 Kan. 518, it was held:
“Where a probate court has jurisdiction to appoint some person administrator, and makes an appointment by issuing letters of administration to a person not a relative or creditor of deceased, and without citing any of the relatives or creditors to appear and either take or renounce the administration, held, that although the appointment may have been erroneous, yet the letters of • administration cannot be attacked collaterally, and especially not by a person who is neither a relative nor a creditor of the deceased.”
In the opinion it was said:
“Letters of administration can be attacked collaterally only when the probate court for some reason has no jurisdiction to make the appointment, and never when the court has merely committed an error by appointing one person (who is eligible), when the court should have appointed some other person.” (Page 527.)
In Brubaker v. Jones, 23 Kan. 411, it was held :
“Where an inhabitant of a county dies intestate, leaving an estate to be settled, the probate court of such county has power to appoint an administrator for such estate, and it is immaterial how the probate court ascertains these facts. When these facts exist, and the appointment is made, the appointment will be held valid, when attacked collaterally, although the probate court may have made some mistakes in making the appointment. And when letters of administration are issued, such letters will be held to be prima facie evidence for all facts necessary for the validity of such letters.”
In Railway Co. v. McWherter, 59 Kan. 345, 53 Pac. 135, it was held :
“Letters of administration granted to a minor are not void, nor will the removal of the administratrix from the state operate ipso facto as a revocation of the letters. Neither the fact of her minority or of her removal will constitute a defense in an action prosecuted by her as administratrix.,”
In the opinion it was said:
“We deem it unnecessary to make extended comments on any of these claims or to consider whether they would have availed in a direct attack in the probate court on the letters of administration. The letters were in the plaintiff’s hands at the time the action was tried, and no proceedings had ever been instituted to cancel or revoke them. The plaintiff was then more than eighteen years of age. She was administratrix in fact, and her authority to act was not open to collateral attack by the defendant. (Davis v. Miller, Adm’r, 106 Ala. 154, 17 South. 823 ; Succession of Dyne, 12 La. Ann. 155 ; State, ex rel., v. Rucker et al., 59 Mo. 17 ; The State v. Smith, 71 id. 45.) ” (Page 353.)
It has been many times held by this court that where a probate court without jurisdiction assumes to act, an order appointing an administrator and. granting letters of administration is void. (Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420 ; Estate of Mallory v. B. & M. R. Rld. Co., 53 id. 557, 36 Pac. 1059 ; Railway Co. v. Bennett, 58 id. 499, 49 Pac. 600.)
Upon authority, therefore, two propositions are clear: (1) The granting of letters of administration by a probate court is the exercise of judicial authority, and the letters granted, if regular in form, are prima facie evidence of the regularity of the prior proceedings ; (2) such letters are void if the court making .the appointment had no jurisdiction to grant them.
The controversy in the court below did not arise on an appeal- from an order revoking the letters of administration granted by either probate court. The letters of both contending parties stand unrevoked.
As the case, however, arose on the conflicting claims of two persons pretending to represent the estate, each holding letters of administration, and as, under the law, it is impossible for more than one probate court of the state rightfully to claim jurisdiction over the estate of a deceased resident, or be permitted to administer such estate, it was the duty of the trial court to determine which of the two contesting parties rightfully claimed the assets of the estate in litigation.
The essential jurisdictional facts required by the statute are: (1) The death; (2) an estate to administer; (8) the residence or inhabitancy of the deceased at the time of his death. It is conceded that the death occurred and that an estate is left to be administered; hence, unlike prior cases in this court in which administration proceedings have been declared void, the jurisdictional facts warranting administration in some court stand admitted. The sole question in dispute over which the conflicting claims to jurisdiction arose is, Of what county was the deceased an inhabitant or resident at the time of his death ? This identical question of fact of necessity must have been presented to, and determined by, the probate court of Lyon county, for where jurisdiction depends on the finding of a particular fact alleged or essential to support jurisdiction, the exercise of jurisdiction implies the finding of such fact. (Erwin v. Lowry, 7 How. 172 ; 12 L. Ed. 655 ; Wyatt’s Adm’r v. Steele, 26 Ala. 639.)
Again, the determination of this fact by that court was first in point of time; its proceedings are in due form of law; a copy of the letters issued is found in the record ; they are regular, and to this court and all other courts are prima facie evidence of the regularity of all prior proceedings, including the jurisdiction of the court to issue the same. If in the case at bar. as in the case of People’s Savings Bank v. Wilcox, 15 R. I. 258, 3 Atl. 211, 2 Am. St. Rep. 894, cited by counsel for defendant in error, it stood admitted in the record that Whitcraft was not, in fact, a resident of Lyon county at the date of his death, or if the record contained a finding of such fact from the evidence, a want of jurisdiction in the probate court of Lyon county would appear, and we would be justified in holding its proceedings void. But no such admission or finding appears in the record. True, it was found by the probate court of Wyandotte county that the deceased at the time of his death was a resident of Wyandotte county, and, as a consequence, that the probate court of Lyon county was without jurisdiction ; and because of such determination the trial court refused to receive any evidence as to the actual residence of the deceased at the date of his death, but held the proceedings in the probate court of Wyandotte countyres judicata and conclusive. If, however, the proceedings in the probate court of Lyon county were not conclusive upon the question of jurisdiction in that court, no more were the proceedings in the probate court of Wyandotte county, unless the proceedings in that court were affected by the appearance therein of plaintiff in error.
The place of residence, like the question of death, or the existence of an estate to be administered, is a collateral, jurisdictional question of fact, and the actual fact of residence by the deceased in the county of the court at the time of death being essential to uphold the jurisdiction of a probate court, it is not concluded by the decision of the court that such fact does exist, but it may be inquired into in a proper collateral proceeding for the purpose of showing want of jurisdiction in the court making the determination. This is the general rule as to judgments in this state. ( Mastin v. Gray, 19 Kan. 458, 27 Am. Rep. 149 ; Pray v. Jenkins, Ml id. 599, 28 Pac. 716.) The true rule appears to be:
“Where the jurisdiction depends upon some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be questioned collaterally and disproved, even though the jurisdictional fact be averred of record, and .was actuallv found in evidence by the court rendering the judgment.
“But on the other ha.nd, where the question of jurisdiction is involved in the question which is the gist of the suit, so that it cannot be decided without going into the merits of the case, then the judgment is collaterally conclusive, because the question of jurisdiction cannot be retried without partly, at least, retrying the case on its merits, which is not permissible in a collateral proceeding unless other parts of the record show affirmatively that t'he finding cannot be true.’’ (17 A. & E. Encycl. of L., 2d ed., 1084 and 1085; People’s Savings Bank v. Wilcox, supra; Beckett v. Selover, supra.)
We are, therefore, of the opinion upon this branch of the case, that the district court erred in refusing to permit an inquiry into the actual residence of the deceased at the time of his death, and in holding the proceedings had in the probate court of Wyandotte county res judicata.
The remaining question, Is plaintiff in error estopped from asserting jurisdiction in the court appointing him and from denying the jurisdiction of the Wyandotte probate court? becomes easy of solution. If the Lyon county probate court had jurisdiction, the Wyandotte court did not have, and any proceeding therein or order made was void, and any participation therein was binding on no one. On the other hand, if the probate court of Wyandotte county had juris diction, the proceedings therein were valid and conclusive because res judicata. Jurisdiction rests in the probate court of the county of the residence of the deceased at the time of his death. This essential, collateral, jurisdictional fact is concluded by the finding of neither court, but is the question left open for separate determination, fo# on the determination of this fact depends the right of either probate court to take any step or make any valid order in relation to the estate of deceased, whether it be the appointment of an administrator or the proof of a will.
It follows that the judgment will be reversed, for further proceedings in conformity with this opinion.
All the Justices concurring.
Cunningham, J., not sitting, having been of counsel. | [
-16,
104,
-12,
-99,
56,
-32,
18,
-104,
112,
-15,
-28,
83,
-51,
-102,
5,
125,
58,
13,
-47,
121,
-27,
-105,
31,
-87,
-46,
-13,
-71,
-49,
-70,
93,
-74,
-42,
73,
120,
10,
-107,
6,
-56,
-57,
92,
-116,
4,
9,
-24,
83,
0,
62,
111,
18,
27,
-43,
42,
-13,
43,
31,
-61,
105,
44,
89,
-84,
88,
-79,
-86,
-105,
-36,
30,
3,
38,
-112,
-61,
72,
62,
-40,
17,
72,
-20,
115,
-74,
-122,
-12,
39,
-55,
44,
-26,
67,
99,
-68,
-19,
-96,
-102,
14,
-66,
-99,
-89,
-110,
89,
-30,
37,
-74,
-103,
127,
80,
11,
-6,
-26,
6,
92,
40,
0,
-49,
-10,
-75,
77,
56,
-103,
27,
-5,
-113,
32,
113,
-99,
98,
93,
-57,
48,
-101,
-121,
-72
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action of partition brought in the court below by one tenant in common against her cotenants. The real estate in controversy con sists of several tracts of land which, at the commencement of the action, were in the possession of defendants below. The petition contains no demand for possession. The question arises on these facts whether the action can be maintained. In Scarborough v. Smith, 18 Kan. 399, it was held that in such actions there may properly be joined a claim for possession. The question presented seems not to have been decided by this court in a case where it was directly involved. Under our statute, a partition suit has relation solely to a division of real estate, according to the respective interests of the claimants. The nature of the proceeding and the relief that may be afforded are shown by the following sections of the code:
' “When the object of the action is to effect a partition of real property, the petition must describe the property, and the respective interests of the owners thereof, if known.” (Gen. Stat. 1901, § 5101.) .
“The answers of the defendants must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs or any of the defendants.” (Id. § 5104.)
“After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly.” (Id. § 5105.)
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition betwen the parties, and to secure their respective interests.” (Id. §5116.)
Section 5084, General Statutes of 1901, found under the title of “Actions concerning real property,” reads :
“In an action|by a tenant in common of real property against a cotenant, the plaintiff must . ' . state in his petition that the defendant either denied the plaintiff's right, or did some act amounting to such denial.”
It is a settled doctrine of the common law that one joint tenant or tenant in common cannot maintain a suit for partition unless he be in possession.or seized of the lands when the suit is brought. (Adam, v. The Ames Iron Company and others, 24 Conn. 230; Tied. Real Prop. § 262.) In states having a code like ours the rule of the common law has been adhered to. (Hutson v. Hutson, 139 Mo. 229, 40 S. W. 886.) In Estes v. Nell, 140 Mo. 639, 650, 41 S. W. 940, 941, it was said:
“ It is well established in this state that where one is in the possession of land claiming it adversely against all others, one out of possession cannot maintain a suit against him for partition without first establishing his right in an action of ejectment, but after having done so he may maiptain his action for partition against the person or persons in possession.”
See, also, London v. Overby and wife, 40 Ark. 155; Hardy v. Mills, 35 Wis. 141; Weston v. Stoddard et al., 137 N. Y. 119, 33 N. E. 62, 20 L. R. A. 624, and note on page 626. In the case last cited, it was held that prior to 1880, under the statutes of New York, a tenant in common of real property must wait until he has gained possession in an action or proceeding at law before he can insist upon a division of the property between himself and his cotenants. The case was decided, however, in 1893, under a statute which authorized the litigation in an action of partition of all questions of title between cotenants and their privies who might be parties to the action. In California it was held, under a code of that state, that a tenant in common who had never been in occupancy of the land might maintain a suit in partition against a cotenant whose possession was adverse or hostile. In the opinion, the court said that their code declares that any right, title or interest in the land may be put in issue, tried and determined in the action. (Martin v. Walker, 58 Cal. 590.) See, also, Peterson v. Fowler, 73 Tex. 524, 11 S. W. 534.
In the case of Delashmutt v. Parrent, 39 Kan, 548, 557, 18 Pac. 712, 717, while the point raised here was not directly involved, the court said :
“The title of the plaintiff being disputed, ejectment was the appropriate if not the only remedy which could be employed to determine the title of the adverse claimants to the property. The theory of partition is, that there is a common and undisputed ownership by which the share of each owner is to be set off, or, if partition cannot be made, the court may permit any one of the owners electing to take the same at an appraised value, or may order a sale of the property and a division of the proceeds among the parties according to their respective interests, Some of the courts have gone to the extent of holding that the title of parties owning common property and claiming adversely must first be established by ejectment before partition proceedings can be maintained. (Sedgw. & W. Title to Land, § 166.) Under our code, however, the fact that the property is held adversely to the plaintiff will not defeat an action of partition when brought in connection with or as part of another action for the recovery of real property. Under our rules of pleading, the two causes of action may be united in one action, or they may, when so pleaded, and no objection is made, be treated as a single cause of action. (Scarborough v. Smith, 18 Kan. 399.) ”
We are clear that the petition in this case did not state a cause of action, and for that reason the judgment of the court below must be reversed. A plaintiff in a suit of this kind, to obviate a multiplicity of actions, ought to have his possessory rights determined in the same proceeding where partition is prayed for. Two actions are unnecessary where complete relief can be obtained in one.
On the other questions involved, we think, under the findings of íact, that the conclusions of law were correct. There was no valid delivery of the deeds executed by Walter Burrell which were found in his house at the time of his death.
The objection to the service upon the minors who were defendants below is highly technical, and, as no objection was made to it in the trial court, it cannot be considered here. It appears that the minors were personally served with summons. This is not denied. If the objection had been made in the court below, an amendment of the return of the sheriff could have been made.
The judgment of the district court will be reversed and the cause remanded for a new trial.
Cunningham, Greene, Pollock, JJ., concurring. | [
-45,
122,
-44,
60,
74,
96,
40,
-8,
113,
-15,
39,
87,
109,
-54,
16,
37,
-78,
125,
81,
107,
71,
-13,
31,
-126,
-42,
-45,
-45,
85,
-67,
-51,
109,
22,
76,
36,
-118,
-9,
-58,
-30,
-59,
92,
14,
-83,
40,
109,
-31,
64,
60,
107,
18,
79,
69,
-61,
-13,
44,
25,
-47,
73,
41,
-49,
41,
-16,
-8,
-114,
-115,
127,
6,
51,
52,
-4,
-25,
104,
74,
-112,
49,
-128,
-24,
115,
54,
22,
116,
71,
-101,
40,
-94,
99,
8,
65,
-17,
-8,
-104,
46,
-66,
-115,
38,
-47,
88,
11,
72,
-66,
-103,
116,
0,
-89,
126,
-30,
5,
94,
-20,
-113,
-86,
-42,
-77,
7,
120,
-103,
1,
-22,
-125,
48,
49,
-51,
-88,
92,
-25,
25,
-5,
-114,
-36
]
|
The opinion of the court was delivered by
Doster, O. J.:
This was an action by the board of county commissioners of Kingman county against Charles B. Hardy, as register of deeds, and the sureties on his official bond, to recover fees collected by him and not accounted for as required by chapter 131, Laws of 1897. Judgment went against the defendants, to reverse which they have prosecuted error.
Chapter 131, Laws of 1897 (Gen. Stat. 1901, §§ 3023-3070), is entitled “An act fixing the fees and salaries of certain officers and persons therein named.” It applies principally to county officers. It specifies the compensation, by way of fixed salary, which they shall receive, schedules a list of fees which they are entitled to charge the patrons of their offices as additional compensation, and provides that a portion of the fees collected shall be covered into the county treasury. The provision in that respect relating to the register of deeds is as follows (Gen. Stat. 1901, §3035):
“And if, in any one year, the fees charged shall be more than the sums above specified in their respective counties, the said registers of deeds shall pay to the county treasurer of their respective counties one-half of such excess, when collected, taking duplicate receipts therefor, one of which they shall file with the county clerk, and such money shall become part of the general fund of the county.”
Section 14 of the act reads as follows:
“The county treasurer, county clerk, county attorney, clerk of district court, sheriff, probate judge and register of deeds shall keep a book to be called ‘fee-book/ to be provided by the county commissioners. They shall keep a true and accurate account of all fees by them charged and collected, setting forth against whom said fees are charged, by whom paid, for what service rendered, and the date of such charges, rendition, and payment. Said book shall be open to public inspection during office hours. Each of the officers named in this section shall, on the first day of the regular session of the board of county commissioners in the months of January, April, July and October of each year make out and 'file with the county clerk and present to said board a true and itemized statement verified by affidavit, which statement shall show all .fees by him charged and collected during the preceding quarter and the fees due and uncollected, against whom charged, by whom paid, for what service, and the date thereof, and the number and page of the fee-book in which such items are entered: Provided, That if any of the officers herein named in this section shall fail to keep a full and correct account of fees charged and received, or shall fail to make the report herein provided for to the board of county commissioners, or shall fail to pay the money due the county as shown by such report, or if he shall fail to deliver to the board of county commissioners on demand for their inspection the fee-books herein provided, he shall forfeit to the county ten dollars for each day he shall negligently fail so to do : Provided further, That if such failure shall continue for fifteen days he shall forfeit his office : And provided further, That nothing contained in this section shall prevent the prosecution of any such officer under any other law of this state for his failure, neglect or refusal to perform any of his official duties: Provided further, That if any board of county commissioners shall neglect to audit, or shall audit and order to be paid any quarterly or other instalment of th¿ salary of any of the aforenamed officers receiving a salary, until the report be made and ¿worn to. by said officers as herein provided, each member of said board voting in favor of such order shall be subject to a fine of $100, to be recovered for the use of the common-school fund as in other cases.”
Hardy, the register of deeds, charged and collected fees in excess of his salary, but he did not turn the one-half into the treasury. The suit was to recover the portion due the county, and, also, to recover the penalty of ten dollars per day authorized by the above section for failure to make payment. The court ren dered judgment for the portion of excess fees due the county, but refused to enforce the penal provision.
Two principal claims of error are made. The first is that the title of the act is not broad enough to include the subject of accounting to the county for fees collected by the officer. It is said that the obligation to keep an account of fees received, and to pay a portion of such fees to the county treasurer, is not a “fixing” of fees, and therefore is not comprehended within the title of the act. The argument is that to fix the fees of an officer is to declare what they shall be, and to authorize him to charge and collect them —not to impose on him the obligation to account to some one else for them. This argument places upon the word “fixing” a construction entirely too literal. One upon whom the obligation to know the fees of a public officer is cast is not permitted to look merely at the section which schedules them, but he is required to look at all portions of the act which gives them, because he is required to look for conditional and modifying clauses as well as for the main provision. What one part of the statutes fixes with seeming definiteness may be qualified or controlled by other parts. So looking in this case, it is perceived that what is given by one section of the act is in part taken away by another; that while 'one section permits the officer to charge and collect, another permits him to retain only as to one-half. That is a fixing of his fees at the one-half of that which he is authorized to charge and collect.
This view is made clearer because of the fact that twice heretofore this court has upheld the right of the legislature, as against other constitutional objections, to require public officers to cover portions of their fees into the treasury. (County of Neosho v. Leahy, 24 Kan. 54; Comm’r of Cherokee Co. v. Chew, 44 Kan. 162, 24 Pac. 62.) There is much legislation of the kind in the statutes of this state. The titles of the acts in question in the two cases cited were the same as the title of the present one. Hence, it can be said that the legislative policy of the state has been to uphold them as against all objections thus far made. Inquirers into the subjects embraced in the titles of acts of such character are therefore chargeable with a knowledge of that legislative policy and that course of decision, and they must therefore broaden their conceptions of the possible cognate subjects involved in the titles of such acts ; that is to say, that the titles of the acts must be interpreted in the light of the legislative practice and.the course of judicial decision, as well as by the literal meaning of the words employed.
The other principal claim of error is that the provision contained in section 14, above quoted, which imposes a penalty of ten dollars per day, to be paid to the county for each day’s failure to account for the excess fees,-is violative of section 6 of article 6 of the constitution, which requires fines for breaches of the penal laws to be appropriated to the support of the common schools. That provision, so it is said, is an integral part of the whole chapter, without which no part of it can stand. The proposition reduced to its necessary terms is that it cannot be presumed that the legislature would have passed any of the act but for the penal provision in question as an inducement to the remainder. Stated that way, and that is the way it must be stated in the ultimate, its unsoundness becomes manifest. It is not necessary for us to determine whether the provision that “he shall forfeit to the county ten dollars for each day,” etc., is to be understood as a diversion of the penal sum from the school fund. The plaintiffs in error were not adjudged to pay the penalty. They were relieved from it on the ground that it could not be constitutionally assessed against them; hence, they make a claim of invalidity of the penal clause as a premise from which to argue the invalidity of the whole act.
We may assume, as counsel do, that the forfeiture of the penalty to the use of the county is a diversion of it from the school fund, and therefore unauthorized, but it does not follow therefrom that the whole act must fail, nor even that the proviso requiring the officers to account for and pay a portion of the fees must fail. It is only where one portion of an act is conditioned on another, only when the enactment of one portion was induced by the enactment of another, only when the concurrence of the two is necessary to! the making of a complete whole, or, to state it with! inore exactness, only when it is clear that in the legislative judgment the two were regarded as concomi-j tant, that the striking down of one brings on the fall of the other. The subject of the constitutional interdependence of the different parts of statutes was elaborately considered in Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453, and the rule, as we have attempted to state it, is drawn from that case. In our judgment it is not reasonable to suppose that the legislature would have omitted the requirement on county officers to account for and pay into the treasury a portion of the fees collected by them because it could not constitutionally impose upon them a money penalty for their delinquency; ' or, to state it in another way, it cannot be thought that the legislative supposition of a right to impose the penalty for a failure to account was the inducing cause of the requirement to render the account.
Other claims of error of a minor nature are made. We haye carefully examined into all- of them. None of them is well founded, and the judgment of the court below is affirmed.
All the Justices concurring. | [
48,
108,
-80,
-35,
58,
96,
10,
8,
73,
-127,
-90,
127,
-23,
66,
16,
53,
-13,
45,
81,
106,
70,
-78,
71,
-94,
-94,
-77,
-119,
-59,
55,
77,
-76,
-43,
77,
48,
-54,
85,
70,
34,
71,
80,
-114,
3,
-119,
65,
-55,
64,
52,
61,
2,
75,
49,
-49,
-21,
62,
53,
67,
109,
44,
-39,
-87,
17,
-79,
-110,
-99,
125,
7,
-127,
103,
-104,
-127,
-56,
46,
-104,
29,
-112,
-8,
123,
-74,
-126,
84,
105,
-103,
12,
106,
102,
17,
125,
-57,
-72,
-120,
14,
-74,
-99,
-89,
-110,
88,
27,
15,
-98,
-107,
119,
20,
2,
-10,
-28,
-123,
29,
108,
3,
-114,
-46,
-125,
-33,
62,
-120,
67,
-49,
35,
52,
113,
-49,
-14,
93,
78,
48,
27,
-105,
-48
]
|
Error from Shawnee district court. | [
-110,
108,
-19,
92,
-116,
65,
1,
14,
83,
-111,
114,
83,
-49,
-58,
20,
123,
66,
111,
48,
120,
-59,
-73,
59,
96,
-10,
-5,
-15,
85,
-75,
109,
-4,
-42,
76,
112,
-118,
-97,
70,
0,
-81,
92,
-116,
6,
-119,
93,
83,
41,
60,
125,
90,
3,
49,
46,
-13,
44,
58,
99,
-24,
44,
77,
99,
-53,
-45,
-13,
-123,
126,
22,
-95,
20,
-106,
14,
88,
-86,
-112,
53,
0,
-68,
-13,
54,
-122,
-9,
13,
-103,
37,
-18,
98,
33,
12,
-17,
-68,
-84,
46,
90,
29,
-90,
-109,
9,
107,
-115,
-74,
-67,
100,
86,
79,
-6,
103,
4,
29,
40,
-125,
-50,
-80,
-101,
-113,
32,
-116,
-101,
-1,
6,
48,
113,
-55,
-28,
92,
-58,
16,
-101,
-34,
-70
]
|
The opinion of the court was delivered by
Cunningham, J.:
This was an action for personal injuries suffered by plaintiff in error, occasioned by his falling from the platform of the railroad company’s depot at Bogue, Kan. Plaintiff was at the time, and had been for more than three months, engaged in delivering the United States mail to the -mail clerk on the trains of the company. An east-bound mixed train carrying a mail-car passed through Bogue shortly after five o’clock a. m. It was plaintiff’s custom to sleep in the depot and get up in time to attend to the mail delivery. He did this on the morning of October 24, 1899, and, lighting his lantern, passed out on the platform. Occasionally the train, instead of stopping so that the mail-car would be in front of the platform, would pass beyond the east end of it. When this was the case, plaintiff would wait until the en gineer had backed the train so that he could put the mail-sack aboard without getting off the platform. The morning in question was very dark and cloudy. The mail-car passed beyond the east end of the platform. In response to the shout of the conductor to hurry and get the mail on, plaintiff set his lantern down about the middle of the platform and walked-briskly to the east end. As he approached where he supposed the end to be he slackened his pace, but, being mistaken as to where the end of the platform was, he stepped off the same, fell to the ground, a distance of about eighteen inches, and was injured. The plaintiff was seventy-four years old and his eyesight was very poor. The claimed negligence on the part of the company was that no light was furnished on the platform, and no steps or guard-rail maintained at the place where plaintiff fell off.
It appears clearly that plaintiff was fully advised as to the character and surroundings of the depot platform and the place where he fell of; that he had occasionally, in passing to and from the platform, got up and down at this place; that he knew no railing or steps were there, and no claim is made that the company had at any time maintained a light on the platform. Plaintiff testified that, as. he approached where he supposed the end of the platform to be, he slowed his pace somewhat to look for it, and being asked why he slowed his pace, replied: “Knowing that the end of the platform was there some place, and that it was a pretty big step down, and dangerous to step down without knowing where it was; I didn’t intend to go any further than to the end. That was why I slowed up. I got to the end without seeing it and fell off.”
A. demurrer to plaintiff’s evidence was sustained by the court below. We think the court' was correct in doing so, and .this for two reasons : No negligence was shown on the part of the company, and plaintiff’s own evidence showed affirmatively that his injury came to him because of his own careless and negligent acts.
It is true, a railroad company owes a duty to its passengers, and, perhaps, to all others who are there on proper business, to use ordinary care in constructing and maintaining platforms about its depots. It is not required to make it impossible for one to injure himself. Such ordinary precautions must be used to prevent injury as suggest themselves to a reasonably prudent person. It is within the common knowledge of every one at all familiar with shch matters that neither steps nor guard-rails are provided at all points around depot platforms. In the nature of things they could not be and the road be able to respond to the demands of the public on it. No showing was made, or attempted, that a railing could have been provided at the point where plaintiff fell, consistent with the duty which the company owed to the public, or that, had steps been there, the accident would not have occurred; indeed, it is obvious that steps would in no way have served to prevent the accident.
Further, it is beyond question that the plaintiff’s own carelessness and negligence caused the injury. He well knew where the platform ended; the distance it was raised from the ground; that if he passed a certain distance to the east he would fall from the platform; that no light was maintained; that no guard-rail or steps were there; that his eyesight was poor, and that he was closely approaching the place of danger. It was his duty under all these- circumstances to approach, the end of the platform with such caution as would insure his safety. There is no claim that he was under the orders of the conductor, or that he was in any manner bound to, respond to the urgent requests of the conductor to hurry up. Indeed, he testified that on occasions theretofore when the mail-car had been carried beyond the platform, if he waited, the engineer would back up. Again, he chose, knowing all the dangers of advancing, to set his lantern down and go forward in the dark. Sprely, one so reckless cannot recover compensation for calamities whictí. he has pulled down upon himself.
“Where there is danger, and the peril is known, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and therefore does so at his own risk.” (Corlett v. City of Leavenworth, 27 Kan. 673.)
“Where the plaintiff’s testimony shows’that his own negligence contributed directly to the injury, he has failed to make out' a prima facie right of recovery, and a demurrer interposed to this evidence should be sustained.” (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 591, 24 Pac. 1101.)
The judgment of the trial court will be affirmed.
All the Justices concurring. | [
-80,
120,
-44,
-97,
58,
98,
42,
-102,
101,
-107,
-92,
115,
-51,
-63,
-115,
113,
-9,
63,
-48,
43,
84,
-13,
7,
-94,
-110,
-45,
99,
-107,
-77,
106,
100,
-61,
77,
32,
10,
21,
-26,
74,
69,
30,
-50,
37,
-88,
-20,
57,
8,
32,
120,
-122,
79,
113,
-97,
-13,
42,
24,
75,
12,
61,
105,
-31,
-56,
-15,
-126,
-123,
127,
22,
-93,
4,
-98,
-121,
104,
25,
-40,
53,
64,
-4,
114,
-92,
-109,
-12,
105,
-7,
68,
102,
98,
97,
5,
-81,
-68,
-72,
46,
54,
-115,
-25,
6,
24,
-85,
13,
-66,
-99,
-76,
20,
6,
124,
-1,
89,
89,
32,
-125,
-117,
-76,
-79,
-49,
32,
-106,
-9,
-21,
-91,
-110,
101,
-52,
-78,
92,
69,
120,
-101,
-97,
-98
]
|
The opinion of the court was delivered by
Ellis, J.:
These proceedings in error were brought by the city of Kansas City, Kan., et al., to review a judgment rendered May 19, 1900, in the court of common pleas of Wyandotte county, enjoining the collection of assessments levied by said city for the cost of repaving Kansas avenue from the west end of the bridge over the Kansas river to the west line of Mill street. For this improvement a petition was presented to the mayor and city council on the 8th day of February, 1898, signed by the resident property-owners of 4704 front feet, out of a total of 5290 front feet, of the lots facing the part of said street proposed to be paved- For 3141 feet of these lots the petition was signed : “Kaw Valley Townsite and Bridge Company, by Charles F. Morse, manager, by authority of the board of directors. Attest: E. E. Richardson, secretary.” Said town site and bridge company is a Kansas corporation. It is, and was at the trial belo'w, «• earnestly contended by defendants in error that said| Morse had no authority to sign such petition for said| corporation, and it is certain that the court of common | pleas based its decision herein upon a finding not given in the record that such authority did not exist. Upon the filing of such petition, and on the same day, the mayor and city council adopted a resolution declaring it necessary to repave said Kansas avenue, agreeably to the prayer of said petition.
On the 8th day of March, the city engineer submitted to said city a detailed estimate of the cost of such improvement, in accordance with the requirements of paragraph 747, General Statutes of 1901. It is urged, on behalf pf the defendants in error, that said detailed statement was required by law to have been filed prior to the adoption of said declaratory resolution.
On the 19th day of July, 1898, the council passed an ordinance ascertaining the cost of said repaving, and levying special assessments, the collection of which was enjoined .as aforesaid. That ordinance was first published on July 21, but, as many errors appeared in such publication, the city clerk caused the same to be republished on the following day, and entered in his record the fact that it was published in the Kansas City, Kan., Gazette on July 22, 1898. This suit was brought within the thirty days limited by paragraph 766, General Statutes of 1901, if the publication of the ordinance occurred on July 22, but the city, as plaintiff in error, contends. that the publication on July 21, although in part erroneous, was legal, and it insists that the action was barred because it was not brought within thirty days thereafter.
Considering these propositions in inverse order, we do not think that, after the publication of July 21 was abandoned and ignored by the city clerk, the city may now be heard to say that ° ** such publication caused the special statute of limitations, above cited, to begin to run, and we think this action was brought within the time therein limited. The duty of causing such publication to be made devolved upon the city clerk, and included an obligation on his part to cause such ordinance to be accurately published. When the first attempt to fulfil that duty proved abortive, and he determined that which had been done to be insufficient, in the discharge of the responsibilities resting upon him it was within his province, as a ministerial officer, to decide and act precisely as he did, and the corporation which he represented ought not to be permitted to dispute his authority so to do. (Dill. Mun. Corp. §§96, 531.)
The pertinent part of section 747, General Statutes of 1901, cited supra, reads as follows :
“Before the building of any bridge or sidewalk,, or any work on any street, or any other kind of work or improvement, shall be commenced by the c^y council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the official newspaper of the city for at least three consecutive days, and the mayor and council shall l'et the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate. If no responsible person shall propose to enter into contract at a price not exceeding the estimated cost, all bids shall be rejected, and the same proceedings as before re peated, until spme responsible person shall, by sealed proposal, offer to contract for the. work at a price not exceeding the estimated cost. In no case shall the city be liable for anything beyond the estimated cost, or the original contract price for doing such work or making such improvement.”
It is quite apparent that the purpose of this section is to prevent fraud and imposition in the letting of contracts, as well as to inhibit the creation of a liability against the city by the mayor and council before the maximum cost of a proposed improvement shall be known. In effect, it is provided that the preliminary things to be done by those who control the financial affairs of a city shall not be completed, so that in due course contractors, or others who perform the actual work of construction, may be permitted to incur expense for which the city is held to respond, until after those empowered to act for such city are fully advised of the extent of the undertaking, and the amount for which the city will become amenable because thereof.
The insistence of counsel for defendants in error that such detailed statement must be filed before the passage of the declaratory resolution by the council finds no warrant in the letter of the statute, and is not sustained by a consideration of its aims and purposes. Presumably such declaratory resolution will be sufficiently specific to apprise taxpayers of the general nature of the contemplated improvement, and to afford data from which some idea of the probable cost likely to be incurred may be ascertained, and, as the principal matter for consideration by such taxpayers is whether or not the betterment intended is really necessary, a sufficient basis for a protest, such as is permissible under section 780, General Statutes of 1901, is furnished them. Besides, in the case of a city of over 25,000 inhabitants, a petition for paving must be filed, as was done in this case, which petition must “state the width of the paving, and a specific description of the material to be used.” (Sec. 730, supra.) We conclude, therefore, that the declaratory resolution of the. city council, to which we have referred, was not prematurely passed, and the subsequent proceedings were not rendered defective because the detailed statement had not been filed at the time such resolution was adopted. This construction results in harmonizing the several sections of the statute referred to, and is consonant with their terms and evident intent, and in furtherance of the ends sought to be attained.
The principal matter of controversy in this case is whether the general manager of the Kaw Valley Town-site and Bridge Company had authority to sign such petition for paving, and the ° A A ° agreed statement of facts, after reciting that said Morse was such general manager, contains the following:
“Sixteenth. Neither the charter, constitution, nor by-laws, nor any other «paper or record of the Kaw Valley Townsite and Bridge Company, expressly confers upon said C. F. Morse, nor any other person, specific authority to sign said petition, or any petition to pave or repav^ said street, or any street, or in any manner refers to that subject; the question of paving or repaving Kansas avenue or any other street had never been considered by the board of directors of said company before said petition was presented and acted upon, nor afterwards except as hereinafter stated.
“ Seventeenth. On the 12th day of September, 1898, Charles F. Adams was president and E. E. Richardson was secretary of the Kaw Valley Townsite and Bridge Company, and Charles F. Adams, Charles F. Adams, 2d, Charles F. Merriam, H. H. Hunnewell, John A. Burnham, and Nathaniel Thayer, all of Bos ton, Mass., and C. W. Blair, of Leavenworth, Kan., and E. S. W. Drought, of Kansas City, Kan., and L. E. James, of Kansas City, Kan., were the directors of said company; C. W. Blair, E. S. W. Drought, and L. E. James, immediately upon being elected directors, filed with the company a written waiver of notice of all special meetings of the board of directors of the company.
“Eighteenth. On September 12, 1898, Charles F. Adams 2d, Charles F. Merriam, H. H. Hunnewell, John A. Burnham, and Nathaniel Thayer, directors of said company, met in Boston, Mass., in pursuance to a call for a meeting of the board of directors, and adopted a resolution, which was entered upon the record of the proceedings of the said board of directors under said date of September 12, 1898, in words following to-wit;
“‘Whereas, On February 8, 1898, C. F. Morse, general manager of the Kaw Valley Townsite and Bridge Company, signed a certain petition presented to the mayor and council of Kansas City, Kan., to have Kansas avenue paved from the west end of the bridge over the Kansas river to the west line of Mill street; and
“ ‘ Whereas, Said general manager has been authorized by the board of directors of said company to perform this and similar acts :
“ ‘Resolved, That the action of General Manager Morse in signing aforesaid petition is hereby ratified and approved.’
“Charles F. Adams, C. W. Blair, L. E. James, and E. S. W. Drought, directors of said company, were not present at said meeting and had no notice thereof, but C. W. Blair, L. E. James and E. S. W. Drought had waived notice thereof, as stated in paragraph 17 of this agreed statement.
“Nineteenth. That on January 18,1899, at the regular annual meeting of the stockholders of the Kaw Valley Townsite and Bridge Company, called and held in accordance with the by-laws of said company, the proceedings of the board of directors of said com pany were reported, and by a unanimous vote of the stockholders the following resolution was adopted :
“ ‘ Voted: That the acts and proceedings of the board of directors and executive committee from June 13, 1898, to September 12, 1898, both dates inclusive, as the same appear in the records of the company as presented to this meeting, be and the same are hereby fully ratified and approved.’ ”
“ Twentieth. Charles F. Morse has been the general manager for and had charge of the business of the Kaw Valley Townsite and Bridge Company at Kansas City, Kan., ever since the organization of the company, in July, 1879, and as such general manager he had signed the name of the Kaw Valley Townsite and Bridge Company to petitions for the following special improvements in Kansas City, Kan., to wit:
“May, 1888. — For. paving of Kansas avenue between Fourth street and Sixteenth street with cedar blocks. April, 1888. — For grading Osage avenue between First street and western city limits. April, 1888. — For grading Kansas avenue between Fourth street and state line. April 8, 1888. — For paving Osage avenue between First street and western city limits. April, 1889. — For grading and paving Eighth street from Osage avenue to Kansas avenue. The petitions for the improvements last above mentioned were signed : ‘ Kaw Valley Townsite and Bridge Company, by Charles F. Morse, manager.’
“That with the actual knowledge of C. F. Morse, general manager, and E. E. Richardson, secretary and treasurer, and L. E. James, E. S. W. Drought, C. W. Blair, directors, said special improvements prayed for in said petitions were made by the city of Kansas City, Kan., in pursuance and by reason of said petitions, and special assessments were made against the property of said company to pay therefor, and said special assessments have been paid by said company to the amount of over $77,000 without objection.”
It will be observed' that the attempted ratification by the board of directors of the town site company did .not occur until after this suit was brought. In the view we have taken of the case, it is not necessary for us to decide whether such ratification would relate back to the time of the signing of the petition, notwithstanding the intervention of the rights of the plaintiffs below in this action. We do not determine the question, but think that, in principle and upon authority, it is a matter of grave doubt whether such retroactive effect can be accorded to an act of ratification in a case like the present.
It will be noted that this is a town site and bridge-company, and, while we are not apprised of the extent of its real-estate holdings, the record in this ca!se shows that upon the street in question, which is one of the principal thoroughfares of Kansas City, it owned approximately three-fourths of the abutting lots opposite the pavement sought to be constructed, and, from the agreed statement of facts above quoted, it appears that for grading and paving in said city, within the past few years, it had paid out $77,000. Presumably this town, site company has its lots for sale, and is desirous of doing that which will render such lots more valuable and salable, and it may, with propriety, be assumed that its general manager is invested with power to conserve and carry out those purposes. It cannot be doubted that the building of good streets adds materially to the value of the property on either side thereof, and to favor such improvements, to urge and aid their accomplishment, are but manifestations of good business policy on behalf of such corporation. The owners of a major portion, or, as counsel for defendants in error say, substantially all of the stock of the town site company, are residents of a distant state, while their interests are represented by a person designated by them as “general mana ger,” who resides at the place where their property is located, and who, from necessity, must frequently act without consultation with them, and upon his own judgment. He is not styled an “agent,” but is given the broad and comprehensive title of “ general manager,” and those with whom the corporation deals, as well as the public generally, are authorized to infer that he has the general management and control of the property and interests of the company placed in his hands. As to them, with some limitations which it is not necessary to consider, he is the corporation itself.
“A general manager of a corporation has been defined to be a person who really has the most general control over the affairs of the corporation, and who has knowledge of all its business and property, and can act in emergencies on his own responsibility; who may be considered the principal officer.” (14 A. & E. Encycl. of L., 2d ed., 1002.)
In the case of The Wheeler & Wilson Manuf’g Co. v. Lawson and another, 57 Wis. 404, 15 N. W. 400, the court, speaking of “general manager,” said :
“The very term implies a general super vision, of the affairs of a corporation in all departments; perhaps to a greater extent than is implied by the term, any other single officer so-called, such as president, cashier, secretary, treasurer, etc.” (See, also, R. E. Lee S. M. Co. v. O. & G. S. & R. Co., 16 Colo. 122, 26 Pac. 327 ; Spangler v. Butterfield, 6 id. 356.)
In the case of the A. & P. Rld. Co. v. Reisner, 18 Kan. 458, 460, this court said :
“In other words, the general agent of the company is virtually the corporation itself. It has been usual in the constructing and operation of railroads in this state for some person therewith connected to act as general manager, or general agent, of the railroad being constructed or operated ; and such general man ager or general agent has had, while occupying this position, the full control of all the company’s affairs and complete direction over its treasury. General manager, and general agent, are synonymous terms.”
In that case, from the mere fact that a witness testified that one Mr. Hyde was the general agent of a railroad at Atchison, as well as its station agent there, this court pi'esumed that, as such general agent, he had authority ‘ ‘ to employ a hotel-keeper to furnish board and attendance at the expense of the company .to a brakeman injured while working for such company.” (See, also, Atchison & N. R. Co. v. Reecher, 24 Kan. 228; Pacific Rld. Co. v. Thomas, 19 id. 256; Central Branch Rld. Co. v. Ingram, 20 id. 66.)
In the case of St. L. Ft. S. & W. Rld. Co. v. Grove, 39 Kan. 731, 735, 18 Pac. 958, it was said:
“As the general manager of a railroad company has full control of all the company’s affairs, and complete direction over its treasury, we must assume that Miller had authority to employ Grove, or direct Forbes to employ him.”
In Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, it was said in the syllabus :
“A general agent of an insurance company can modify the insurance contract or waive a condition of. a written .policy by parol.”
“A provision in an insurance policy respecting encuixxbrances on the property insured may be waived by the insurance company or its general agent; and this although the policy contains a printed stipulation that fio agent of the company or any person other than the president or secretary shall have authority to waive any of the terms or conditions of the policy, and all agreements by the president or secretary must be signed by either of them.”
In the opinion, at page 505, it was said, referring to the last provision above mentioned:
“This provision, however, may be modified by the company to the same extent as any other; and whatever the company can do may be done by its general agents.”
Under the facts above given and the authorities cited, we think it our duty to presume that Morse was in fact authorized to enter into any lawful engagement on behalf of his principal, the natural tendency of whi<$L would be to render its property more desirable and valuable. That such corporation regarded improvements of that kind as promotive of its interests, and that it had, long before the controversy in this case arose, impliedly authorized said Morse to act for it in signing petitions for paving the streets of Kansas City, may be fairly inferred from the fact that he had thus signed several others which had resulted in the payment of large sums in taxes by such corporation.
“The fact.and scope of an agency may be determined, not alone by what the principal may tell the agent to do, but also from what he knows, or in the exercise of ordinary care might know, as to what the agent is doing.” (Cain v. Wallace, 46 Kan. 141, 26 Pac. 446.)
In the case of Bronson’s Executor v. Chappell, 12 Wall. 681, 688, 20 L. Ed. 436, 437, it was said:
“If business has been transacted in certain cases, it is implied that the like business may be transacted in others. The inference to be drawn is, that everything fairly within the scope of the powers exercised in the past may be done in the future, until notice- of revocation or disclaimer is brought home to those whose interests are concerned.”
In the case of Allen v. City of Portland, 35 Ore. 444, 58 Pac. 515, the authority of a Mr. Pittock to sign a petition for a street improvement for a corporation was in issue. The court said:
“Authority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objection, as well as in the case of individuals.” (Citing Sherman v. Fitch, 98 Mass. 59.)
A similar rule has been held to exist even, as to servants. In A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, it was said in the syllabus :
“As such servants were then on the company’s premises, performing this duty for the company, in the presence of other servants, and as they had performed similar services on prior occasions, held, that it will be presumed that they were acting within the scope of authority given to them by the railroad company.”
It is also worthy of consideration that in the second clause of the preamble adopted by the board of directors on September 12, 1898, it is recited that “said general manager has been authorized to perform this and similar acts.” True the tense is faulty, but we cannot doubt that the word “has” was intended to have the significance and meaning which would have been given to “had,” if the latter word had been chosen instead.
If, then, we are required to presume that Morse was authorized to sign the petition and bind the town site company, and if the evidence above referred to strongly tends to prove such fact, it becomes important to inquire whether there is any evidence in the record which will sustain the finding of the court below to the effect that he was not so empowered. The general finding must be construed as -a holding that Morse had no power to act in the premises, and if there be any evidence in the record to justify it the conclusion of the trial court must prevail. Reliance is placed on the sixteenth paragraph of the agreed statement of facts, as affording grounds for the determination of the court below. It will be noted, however, that it is stipulated merely that the records of the corporation do not show that Morse had any “specific authority to sign said petition or any petition.” Now, it is clear that no specific authority was necessary, for an agent may have implied as well as express power to perform an act, and his principal is as much bound by the former as the latter, even as to the parties themselves. The latter clause of said paragraph does not sustain the trial court, because the fact that the corporation had previously paid out so large a sum as $77,000 for grading and paving taxes, without any consultation by its board of directors over the matter of paving streets, tends to show that such matters were left wholly to the representative of the company who was upon and near the property, and, therefore, knew better than any other officer could the necessities and opportunities presented.
The fact that after this suit was commenced a resolution of ratification was adopted by the board of directors cannot be held to sustain the finding, for, as above stated, such resolution contains a recital that said Morse performed the act in pursuance of authority with which he was then invested. Such a resolution would probably not be admissible to prove the fact that Morse had been previously given dominion over the matters therein referred to, but it is competent evidence to rebut an inference which might be drawn to the contrary from the act of ratification, which, of course, would be unnecessary, although harmless, if the agent had acted clearly within the scope of Ms agency. A.s the agreed statement of facts confessedly contains all that bears upon the matter, we conclude that there was no evidence adduced at the trial which tended to dispute, or could be regarded as overcoming, the presumption and proof of the authority of Morse to sign the petition on behalf of the corporation.
The judgment of the court of common pleas is reversed, and a new trial granted.
Doster, C.J., Johnston, J., concurring. | [
-12,
106,
-80,
-34,
-54,
66,
26,
-119,
89,
-79,
-92,
123,
-115,
-53,
4,
113,
-9,
61,
-48,
123,
-27,
-73,
71,
-54,
-110,
-13,
-13,
-51,
-7,
93,
-12,
-41,
76,
48,
10,
-99,
6,
-62,
85,
92,
-50,
-114,
8,
-60,
-39,
64,
54,
123,
50,
67,
53,
30,
-13,
40,
24,
-61,
-24,
44,
95,
-88,
89,
-8,
-88,
-107,
124,
21,
0,
38,
-100,
-123,
-56,
-81,
-104,
49,
-111,
-88,
119,
-90,
-121,
-10,
101,
-37,
12,
-6,
98,
35,
5,
-17,
-8,
-100,
14,
-48,
-119,
-89,
-74,
24,
67,
101,
-74,
-35,
117,
18,
7,
122,
-26,
4,
-101,
40,
-125,
-118,
-16,
-15,
-49,
60,
-127,
81,
-17,
11,
48,
113,
68,
102,
93,
-57,
17,
-109,
-97,
-72
]
|
The opinion of the court was delivered by
Smith, J.:
The appellant, A. F. Poole, was informed against in the district court, charged with burglary and larceny. It was alleged that he burglariously broke into and entered a certain building,commonly called a hen-house or chicken-coop, be-¡ longing to one N. T. Caldwell, in which building merchandise and -valuable personal property were then and there kept and deposited, with the felonious intent to steal and carry the same away. It was further charged that, being in said building, the appellant did take, steal and carry away four hens, of the value of fifty cents each. He was convicted of burglary in the second degree and larceny, and sentenced to the penitentiary at hard labor for a period of seven years.
It is contended by counsel for appellant that the building into which he was charged to have broken and entered, not having been alleged to be within the curtilage of a dwelling-house, is not covered by the use of the words “or other building,” in the second subdivision of section 2059, General Statues of 1901. That section reads :
“Every person who shall be convicted of breaking and entering in the night-time — First, any building within the curtilage of a dwelling-house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares or merchandise, or other valuable thing, kept or deposited, with intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree.”
The argument is that the words “other building” refer to buildings of the same general character to those particularly mentioned, and that a chicken-house is not comprehended within the words “shop, store, booth, tent, warehouse,” for the reason that it does not partake of the character of such buildings, and that, under a well-settled rule of construction, where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words are to be treated as referring to matters ejusdem generis with such class.
We were much impressed on the argument by the reasoning of counsel for appellant in support of this contention. We find, however, that the question has been decided against the position taken by them in' the case of The State v. Rogers, 54 Kan. 683, 39 Pac. 219, where this same section of the statute was befpre the court for construction. It was there held that a court-house was included within the words “or other building,” in' the second subdivision of the statute above set out. In the case mentioned the doctrine contended for by counsel was given much consideration. The court said :
“We think the legislature intended to include buildings of other classes than those specifically mentioned. We are very clear that banks, offices, and buildings used for many other purposes, are within the protection of the statute if valuable things are kept in them.”
In the present case, the chicken-house alleged to have been burglarized was twenty feet long and eight feet wide, with doors and a board roof. The court gave to the jury an instruction setting forth the elements of burglary in the seeond degree, as it is defined by statute. Following this, the court gave the jury this instruction
“If you believe, from the evidence in this case, that the building described in the information was an enclosed building, about twenty feet long and about eight feet wide, with a partition therein, and that the building was constructed with doors to be used in entering the building, and was built and used by the complaining witness as a building within which to keep his chickens, then I instruct you that would constitute a building, as contemplated by our statute.”
Section 2059, General Statutes of 1901, above set out, makes it a necessary ingredient of the crime of burglary that the breaking and entering should be in a building in which there shall be at the time some human being, or goods, wares or merchandise or other valuable thing kept or deposited. The instruction given informed the jury that it was sufficient if the evidence against the appellant showed that the building was built and used by the complaining witness as a building “ within which to Jceep his chickens. ” All of this might have been true, and yet, at the time of the breaking and entering, the building might have been without contents and entirely empty. The breaking and entering a building, though it be generally used as a chicken-house, and built for that purpose, would not constitute burglary unless at the particular time it contained goods, wares or merchandise, or other valuable thing. The prejudicial omissions from this direction to the jury were not supplied by any other instructions.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices .concurring. | [
-16,
120,
-36,
-2,
26,
-32,
42,
-72,
65,
-120,
-92,
-109,
-23,
79,
4,
97,
97,
125,
84,
113,
-59,
-73,
39,
-125,
-78,
-13,
-13,
-43,
-72,
77,
-19,
125,
72,
36,
-62,
93,
102,
-120,
65,
92,
-114,
33,
-72,
-29,
-15,
80,
44,
59,
-92,
14,
1,
-99,
-93,
42,
26,
-53,
41,
44,
75,
61,
-16,
-7,
-100,
13,
111,
31,
-93,
38,
-68,
-121,
-14,
12,
-100,
17,
0,
-7,
115,
-108,
-124,
124,
95,
-101,
4,
34,
98,
8,
-51,
-53,
104,
1,
62,
-17,
-67,
-90,
-111,
89,
1,
69,
-65,
-99,
120,
16,
38,
126,
-25,
21,
25,
108,
-127,
-113,
-112,
-109,
-51,
40,
-104,
-5,
-21,
-89,
49,
113,
-52,
-94,
92,
65,
115,
-69,
-114,
-48
]
|
The opinion of the court was delivered by
Johnston, J.:
Mary Nelson brought an action for damages against George Stirn, in which she alleged that Stirn maliciously and wantonly assaulted, beat and struck her with a hammer upon the head and arms, breaking one of her arms and inflicting other serious injuries. The trial resulted in her favor, the jury awarding her damages in the sum of $1375.
The principal error assigned here is the reception of testimony given in behalf of the plaintiff to corroborate and sustain one of her own witnesses. Lettie Nelson, her daughter, gave material testimony as to the assault upon her mother, and to contradict and impeach her the defendant introduced a witness who testified that on the evening after the assault he had a conversation with Lettie Nelson, in which she made statements of the occurrence entirely inconsistent with those given on the trial. To meet this attack on the credit of the witness, and to corroborate and sustain her testimony, plaintiff offered evidence to show that, at a preliminary examination of the criminal prosecution of Stirn for the same assault, Lettie Nelson gave testimony which was substantially the same as she gave in the case on trial. The impeaching statement was claimed to have been made on the evening following the assault in the morning, and the corroborating statement about five or six days later. Is such testimony competent and admissible ?
As a general rule, evidence that a witness has at other times made statements similar to those given in testimony is not admissible. Ordinarily the repetition of a declaration does not give weight to it, nor credibility to the one who makes it. Testimony as to statements which are not of the res gestse are generally regarded as hearsay, and testimony so easy to manufacture, and, therefore, so dangerous, is carefully excluded, except in rare cases. Indeed, some courts make no exception whatever to the exclusion of such testimony, while others recognize exceptions and are more or less liberal in its admission.
In The State v. Petty, 21, Kan. 54, this court recognized an exception to the rule, and allowed supporting statements where a witness was assailed and contradicted by proof of prior inconsistent declarations. The court carefulty confined the admission of such testimony to cases where the witness was charged with a recent fabrication and where the confirmatory statements were made anterior to the date of the alleged fabrication. It was expressly held that before, such testimony could be received it must clearly appear that the corroborating statements were madej antecedently to the contradictory declarations given, in evidence. i
In The State v. Hendricks, 32 Kan. 559, 4 Pac. 1050, the reception of such testimony was again considered and the rule of the Petty case somewhat extended. It was held : j
“If a witness be impeached by proof of his having previously made statements out of court inconsistent with his testimony in court; he may then be corroborated by evidence of other statements made by him out of court in harmony with his testimony, if made immediately after the occurrence of which he has testified took place, and made before he has had any reason or ground for. fabricating an untrue or false statement.”
In the practical application of the rule, there is little difference between confirmatory statements made before and those made contemporaneously or immediately after the occurrence of which testimony was given. If made immediately after the occurrence about which the witness has testified, there would be little, if any, danger that he had been improperly influenced, while, if later statements were admitted, it. would enable a witness to neutralize the effect of former statements, which, for reasons good or bad, he might desire to modify or destroy. In this case, however, the confirmatory statements received were not made immediately after the assault, nor immediately after the making of the contradictory statements, but were made five or six days after that time. The intervening time was brief, it was true, but long enough for some one to discover the effect of the first statement in establishing a right to damages by the evidence of the witness, and long enough so that the witness might have been subjected to disturbing influences. It would be difficult to fix a limit of time that would give competency to such statements if they could be received when made after the lapse of five days.
Whatever may be the rule in other states, and there is considerable diversity in the decisions, we have no disposition to* extend the rule of the Hendricks case, nor to countenance the admission of supporting statements made so long after the occurrence which is the subject of testimony. The rule of the Petty case was reaffirmed in Cloud County v.Vickers, 62 Kan. 25, 61 Pac. 391. We refer to the following additional authorities, and these and the cases therein cited illustrate the different views that have been taken as .to the admission of this kind of testimony : Elliott v. Pearl, 10 Pet. 412, 9 L. Ed. 475; Conrad v. Griffey, 11 How. 480, 13 L. Ed. 779 ; 1 Greenl. Ev. 469 ; 1 Whart. Ev. 570 ; Rapal. Wit. §224; 3 Rice, Ev. §233; 29 A. & E. Encycl. of L. 823.
It is contended that the impeaching testimony was of little weight; that there was no motive on the part of the witness for fabrication; and, further, that if the evidence was erroneously admitted, it was not sufficiently material to justify a reversal. While the testimony in favor of the plaintiff below is strong and convincing, we cannot say that the erroneous testimony did not affect the verdict. For this error, the judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-80,
-22,
-88,
-1,
40,
97,
40,
-70,
97,
-125,
-12,
115,
-31,
-64,
8,
47,
63,
111,
81,
105,
-58,
-77,
23,
65,
-14,
-46,
-79,
87,
-79,
-18,
-4,
124,
77,
114,
74,
-43,
102,
-54,
-49,
84,
-124,
-98,
-88,
-56,
91,
-64,
32,
59,
116,
7,
113,
-10,
-13,
42,
28,
-50,
-87,
41,
79,
-3,
64,
-79,
-122,
-115,
77,
2,
-77,
54,
-98,
6,
-40,
44,
-104,
-79,
0,
-88,
115,
-74,
-126,
-44,
111,
-119,
72,
98,
98,
49,
-19,
39,
44,
-116,
103,
118,
-97,
-89,
-112,
96,
75,
105,
-73,
-39,
116,
16,
43,
104,
-2,
69,
61,
108,
-117,
-49,
-106,
-79,
15,
52,
-98,
115,
-61,
-91,
16,
81,
-51,
98,
92,
-107,
50,
-37,
-114,
-70
]
|
Opinion by
Holt, C.;
The defendant in error, who was plaintiff below, appealed to the district court of Osage county from the award of the commissioners assessing damages for the right-of-way over the northwest quarter of section 2, township 17, range 16, being plaintiff’s farm. A trial was had at the December term, 1886, and a verdict was returned and judgment rendered in favor of plaintiffs for $1,550. The commissioners were appointed in October, 1885, and the land was appropriated on the 26th day of February, 1886; upon the 24th day of November, 1886, Jacob Adolph signed an agreement by which he and his wife were to convey to the railroad company the right-of-way for $300, but for some reason the agreement was never fully consummated. The farm came to Flora Adolph, the wife of Jacob Adolph, by devise, and had been occupied by them as their homestead for nearly ten years. Jacob Adolph testified that immediately before the appropriation of the right-of-way, the farm was worth $50 per acre, or $8,000, and that immediately after from $2,000 to $3,000. It was also in evidence that Jacob Adolph, in the month of January, 1886, stated that he was willing to abide by the contract that had been made, and wished the railroad company would pay him the money for the land. It was shown by the testimony that the value of the land had not materially increased from the time the contract was signed by Adolph until it was appropriated. Both the statement and the agreement signed by Jacob Adolph were excluded; of this the plaintiff complains. This evidence was competent and material, and should have been admitted. It was in the nature of an admission of a party to the action, who, although not the owner of the land, yet as the husband of the owner had a homestead interest therein. He was also a witness in the case, and had stated that the difference in value by reason of the appropriation of the strip was more than $5,000. This testimony should have been admitted, to show that his opinion of the value of the land at the trial was quite different from what it was shortly before the land was taken. (A. & W. Rly. Co. v. Butts, 40 Kas. 159; C. B. U. P. Rld. Co. v. Andrews, 37 id. 641; Railroad Co. v. Ranck, 78 Pa. St. 454; Mills, Em. Dom., 2d ed., § 172.)
The defendant further complains that one of the witnesses for plaintiffs, after stating the difference in the value of the land before the appropriation of the strip by the railroad company, and after, in testifying of the items constituting the damages, was asked concerning the damage done to the orchard and .vineyard, the pasture, and two corrals, through which the road ran. He was allowed to give evidence about the damage to the orchard and vineyard, both having been destroyed; the pasture and corrals had been injured; he gave an estimate of the injury to them. We believe this evidence, giving his estimate of the damage to the pasture and corrals, neither one of which had been destroyed, was incompetent and improper. The witness was usurping the province of the jury; he could have described the extent of their injury, giving the details thereof) and from such testimony the jury could have arrived at the amount of damage sustained by the plaintiffs. (W. & W. Rld. Co. v. Kuhn, 38 Kas. 675; L. & W. Rly. Co. v. Ross, 40 id. 598.) The witness was allowed to testify what the damage to the premises would be on account of the danger from fire when the engines were operated without fault on the part of the company. As this case goes back for re-trial, we would call attention to the rule of proving this item of damages laid down in L. & W. Rld. Co. v. Ross, supra.
The court submitted a number of questions to the jury, upon the request of the defendant. The defendant complains, first, that one item which the jury found, of $250, was for an increased risk from fire, and stated that the question ignored th e fact that the question did not make a distinction between fires arising from the negligence of the company, and those that did not. We think that after the defendant had asked the question in the form it was submitted, he had no just grounds to complain of the question and the answer to it; more especially is this true in this case, under the testimony that was introduced and the instructions of the court, which very plainly made a distinction between fires that might be caused through the negligence of the company, and otherwise.
The court, in questions to the jury, asked what they allowed for appropriating the land actually taken, being 4-j2¿?q- acres. Their answer was $600; then they were asked how much they allowed for timber which grew upon this land, fruit trees, the vineyard and vines, and the injury to the corrals. The jury stated they allowed nothing for the injury to the corrals, fruit trees, vines and timber growing on the right-of-way, evidently intending to include the several items in the finding of $600 for land actually taken.
There was no motion made to correct these answers, nor does the record show that the attention of the court was called to them before the jury was discharged, although they are discussed at length in the briefs; but as this cause will be remanded for a new trial, we would suggest that the jury should have answered them, showing the items of damage. The testimony was minute and particular concerning the injury to the fruit trees, forest trees, vines, and corrals. The questions were fully within the issues of the case and within the detailed evidence introduced, and the defendant was entitled to answers to the questions submitted.
For the exclusion of the agreement signed by Jacob Adolph, for allowing the witness to give his estimate of the damage to the corrals and the pasture, for the estimate in regard to the increased liability from possible fires, we recommend that the case be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
-78,
110,
-79,
-35,
-22,
96,
42,
-104,
81,
-94,
-92,
83,
-51,
-54,
16,
37,
-90,
61,
-47,
106,
70,
-77,
87,
-29,
-110,
-13,
-69,
-59,
-79,
72,
-28,
-58,
77,
48,
74,
85,
102,
-32,
69,
92,
-114,
-116,
-119,
104,
-39,
64,
56,
61,
86,
74,
49,
-82,
-5,
42,
29,
67,
109,
46,
111,
57,
1,
-16,
-78,
-51,
95,
6,
48,
38,
-104,
7,
72,
42,
-112,
53,
9,
-40,
127,
-74,
-122,
116,
1,
-103,
12,
-26,
103,
33,
29,
-49,
112,
-100,
14,
-7,
-115,
-26,
-128,
16,
67,
33,
-74,
-99,
84,
86,
7,
-2,
-27,
13,
24,
44,
3,
-117,
-112,
-77,
31,
100,
-104,
3,
-5,
-125,
48,
113,
-61,
-94,
93,
71,
122,
-101,
-113,
-75
]
|
The opinion of the court was delivered by
Johnston, J.:
Charles Heitman made and filed a complaint before A. F. Chesney, a justice of the peace within and for the city of Topeka, charging one J. B. Adams , with the commission of a felony. A preliminary examination was held, which resulted in the discharge of Adams, and the magistrate found that the prosecution was brought maliciously and without probable cause, and he adjudged that the prosecutor, Heitman, pay the costs of the prosecution, taxed at $29.90, and that he stand committed to the jail of Shawnee county until they were paid. Failing to pay the costs, he was taken into custody under the order mentioned, from which imprisonment he seeks to be released by the writ of habeas corpus.
The question is, had the committing magistrate authority to imprison the petitioner for a failure to pay the costs adjudged against him? Unless the authority is expressly given by statute, it does not exist. Provision is made in the statute for making the prosecutor liable for the costs in cases like the present, but it stops short of empowering the magistrate to enforce the liability by imprisonment. In §34, chapter 39, Comp. Laws of 1885, it is provided “that in all cases where any person shall be arrested, charged with felony, and the court shall decide that there were not reasonable grounds for such arrest, and when any person charged with an offense less than a felony shall be discharged for want of sufficient evidence to convict or bind over, the prosecuting witness shall be liable for costs.” In § 327 of the criminal code it is also provided that if a person charged with a felony shall be discharged by the officer taking his examination, the costs shall be paid by the prosecuting witness, unless the court shall find there -was probable cause for instituting the prosecution, and that the same was not instituted from malicious motives. It will be seen that neither of these sections empowers the magistrate to enforce the payment of costs by imprisonment. Section 326 of the criminal code is referred to as authority to commit the prosecutor, but when its terms are examined, it will be found to have no application. It relates to trials, and not to preliminary examinations, as it is expressly provided that the prosecutor shall only be liable to commitment “ whenever it shall appear to the court or jury trying the case that the prosecution has been instituted without probable cause and from malicious motives.” Nor does § 252 of the criminal code authorize the enforcement of the judgment by imprisonment, as that is found in the article concerning “verdict and judgment, and proceedings thereon,” and relates only to the procedure following a trial. Neither does §18, chapter 83, Comp. Laws of 1885, furnish any authority for the imprisonment of the petitioner. It applies alone to trials for misdemeanors before a justice of the peace, and has no reference to the examination of persons charged with felonies. No other statute is suggested as furnishing authority to the magistrate to commit a prosecuting witness adjudged to pay costs, and we think no such authority exists. It may be, as argued, that there is as much reason for authorizing the magistrate to commit the prosecuting witness for failure to pay costs, adjudged against him when the prisoner is discharged at the end of a preliminary examination, as there is to enforce a judgment of a court after a trial wherein it is found that the prosecution was malicious and without probable cause; but the legislature has specially granted the authority in one instance, and withheld it in the other. Imprisonment as a means of enforcing a judgment for costs or for any other purpose cannot be employed or imposed, except the authority therefor is clearly conferred by the statute. (In re Mitchell, Petitioner, 39 Kas. 762.) As the imprisonment of the petitioner is not so authorized, he must be discharged.
All the Justices concurring. | [
-80,
-24,
-8,
-36,
10,
96,
50,
-112,
93,
-93,
-12,
119,
-23,
-57,
16,
35,
33,
125,
85,
105,
-51,
-73,
101,
113,
-14,
-45,
-47,
-47,
-77,
-51,
-27,
-12,
77,
56,
-54,
-75,
6,
74,
-111,
24,
-114,
-116,
-24,
64,
-46,
72,
52,
61,
54,
7,
49,
-114,
-21,
106,
16,
-13,
-56,
44,
95,
-89,
-48,
-29,
-98,
-115,
-17,
22,
-79,
34,
-104,
3,
88,
62,
-72,
57,
3,
-24,
115,
-106,
2,
-44,
77,
-119,
-120,
102,
98,
49,
-99,
-21,
-72,
-35,
30,
-14,
-99,
-89,
-103,
89,
75,
13,
-74,
-99,
101,
20,
7,
-16,
-11,
52,
-67,
110,
11,
-117,
-108,
-111,
-49,
117,
-98,
18,
-49,
5,
112,
97,
-115,
-10,
125,
54,
123,
-101,
-100,
-108
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.