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The opinion of the court was delivered by
Hoeton, C. J.:
On October 29, 1885, Benjamin Rice, a colored man, purchased of the ticket agent of the Southern Kansas Ráilway Company, at Olathe, in this state, for fifty cents, a limited railroad ticket to Kansas City, Missouri, and return, good for three days, the date of issue being stamped on the back. On that day-he was carried as a passenger by the railway company upon one of its passenger trains from Olathe to Kansas City. The “going coupon” of the ticket was torn off and taken up by the conductor of the train. On the next day, October 30th, Rice, desiring to return to Olathe, boarded one of the passenger trains of the company, which left Kansas City about ten o’clock p. M., and when the conductor called upon him for his fare, presented the “return coupon” of the ticket, which he had purchased the day before. The conductor took it to the light, and after examining it, handed it back to Rice, saying it was not good, and informed him that he could not honor it. Rice insisted that the ticket was good, and said to the conductor that he had purchased the ticket the day before, and that he, the conductor, had carried him upon the ticket to Kansas City on that day. Another passenger also stated to the conductor at the time, that he had seen Rice purchase the ticket on the 29th. The conductor replied that he could not honor the ticket, and subsequently took hold of Rice’s coat-collar and led him out of the car. Rice had no money to pay any extra fare; and when he was off the car, or about to get off, a friend gave him seventy-five cents, which he gave to th.e conductor, who returned him five cents, punched a receipt for his fare, and permitted him to ride to Olathe.
On the part of Rice, it is contended that the ticket he presented showed plainly on its back that it was stamped at Olathe on the 29th of October; that he told the conductor that he did not have any money to pay any more fare; that he was quietly in his seat as a passenger when ordered by the conductor to leave the train; that he did not make any forcible resistance to the orders of the conductor, but that the conductor took him out of the car and off upon the steps of the platform.
On the part of the railway company it is claimed that the ticket had been folded up and creased' at the date; that the conductor took it to the light and examined it carefully; that the date was obliterated; that the ticket looked so old and worn that the conductor believed it had expired; that he informed Rice that the ticket was not good and that he could not ride upon it, but would have to pay fare; that when the train reached Holliday the conductor inquired of Rice what he was going to do; that Rice then refused to pay fare or get off the train; that the conductor then took hold of Rice’s coat-collar and led him to the platform of the station, or to the last step of the car; that then a friend told Rice to come back and he would give him money to pay his fare, and the conductor permitted Rice to take his seat and ride to his destination ; that when Rice was informed that he would have to pay his fare or leave the car, it was his duty to do one or the other; that he should have paid his fare and relied upon his remedy to recover it back; that if he could not do this he should have quietly left the train and not provoked or made necessary an assault; that therefore he should have recovered only seventy-one cents, that amount being the sum assessed by the jury for his pecuniary loss. The railroad company, asked instructions which tended to limit the amount of damages that Rice was entitled to recover to the exact fare paid by him, with interest thereon. The court refused to give these instructions, but directed the jury, among other things, as follows:
“I instruct you that if you find the plaintiff presented to the conductor for his passage a limited ticket, good only for three days from the date of its sale, and that the conductor, from the mutilated and worn condition of the ticket, was unable to read the date on the ticket, and honestly believed that the ticket was an old one, and not good, and for this reason, and without any unnecessary force or indignity to the plaintiff, required him to pay his fare or get off, and did upon refusal and failure to pay fare, remove said plaintiff without any unnecessary force and without injury to his person, to the platform of the car, or to the platform or ground at a regular, station, and then plaintiff paid his fare and continued his; journey on the samé train and without delay; then, if you find as a fact that the ticket presented by plaintiff was a good and valid ticket, and that the conductor had no right to collect this fare from the plaintiff, you must find a verdict for the plaintiff, and the measure of his damages would be the amount of fare paid by him, with interest at seven per cent, per annum from October 30, 1885, and actual compensation for the injury and outrage, if any, suffered by plaintiff from the alleged assault.”
We perceive no error in this instruction. In actions for the recovery of damages for the wrongful expulsion of a Passenger from a train, the passenger may recover for his time, inconvenience, the necessary expenses he is subjected; and if treated with violence, or in an insulting manner, for the injuries to his person and feelings. If the expulsion be malicious, or through negligence which is gross and wanton, then exemplary damages may be awarded.
“ There is a special duty on the carrier to protect its passengers, not only against the violence and insults of strangers and co-passengers, but a, fortiori, against the violence and insults of its own servants, and that for a breach of that duty be ought to be compelled to make the amplest reparation. The law wisely and justly holds him to a strict and rigorous accountability. We would not relax in the slightest degree this strict accountability. We know that upon it in no small degree depends the safety and comfort of passengers.” (M. K. & T. Rly. Co. v. Weaver, 16 Kas. 456; K. P. Rly. Co. v. Kessler, 18 id. 523.)
We fully concede that no one has a right to resort to force to compel the performance of a contract made with him by another; and a passenger about to be wrongfully expelled from a railroad train need not require force to be exerted to secure his rights, or increase his damages. For any breach of contract or gross negligence on the part of the conductor or other employés of a railroad company, redress must be sought in the courts, rather than by the strong arm of the person who thinks himself about to be deprived of his rights. A passenger should not be permitted to invite a wrong and then complain of it. (Hall v. H. & C. Rld. Co., 15 Fed. Rep. 57; Townsend v. N. Y. C. Rld. Co., 56 N. Y. 301; Bradshaw v. S. B. Rld. Co., 135 Mass. 409; Railroad Co. v. Connell, 112 Ill. 296; Palace Car Co. v. Reed, 75 id. 125; 3 Wood’s Rly. Law, § 364.) Of course, á party upon a train may resist when, under the circumstances, resistance is necessary for the protection of his life, or to prevent probable serious injury; nor can a party be lawfully ejected from a train while in motion so that his being put off would subject him to great peril. In this case, Rice made no unreasonable resistance. He did not resort to .force or violence; having a good ticket and being entitled to ride, he refused to pay fare or get off the train. The conductor had no difficulty in leading him off, and about all that Rice did was merely to assert his lawful right to ride upon the train. Where a passenger with a clear right and a clean ticket is entitled to ride on that trip and train, and is wrongfully ejected without forcible resistance upon his part, the jury are and ought to be allowed great latitude in assessing damages. They should award liberal damages in full compensation for the injuries received. The quiet and peaceable behavior of a passenger is to his advantage, rather than to his detriment.
Complaint is also made of other instructions of the court, regarding the measure of damages. Among other things, the court said to the jury that if “the assault was . .. . 1 malicious and without cause or provocation, or was accompanied by acts of gross insult, outrage, or oppression, you may award the plaintiff exemplary or vindictive damages.” Also, “that in estimating damages they might take into consideration the indignity, insult and injury to plain tiff’s feelings by being publicly expelled.” Further, that if they found “there was on the part of the conductor either malice, gross negligence, or oppression, they would not be confined in fixing damages to the actual damages received, but were justified in giving exemplary damages.” It is said that these instructions were misleading and erroneous, because there was no evidence whatever to show that the conductor acted with malice or gross negligence. Upon the evidence of Rice, corroborated by McCulloch, another passenger, who said that he.saw'Rice purchase the ticket on October 29,there was evidence before the jury upon which to found these instructions. (Hufford v. Rld. Co., [Mich.] 31 N. W. Rep. 544.) The forcible expulsion of Rice from the car where he was rightfully seated, was such a wrong as is inevitably accompanied with more or less outrage and insult. There was no excuse for the act of expulsion, except the honest mistake or the gross negligence of the conductor. If that mistake was due to such reckless indifference to the rights of a passenger on the part of the conductor as established gross negligence, amounting to wantonness, and the jury so found, they might find exemplary damages. (K. P. Rly. Co. v. Kessler, supra; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.)
Whether the conductor was grossly negligent, amounting to wantonness, or actuated by malice, were matters before .the jury for their determination upon the evidence. Under the authority of Titus v. Corkins, 21 Kas. 722, Rice was entitled to recover the expenses incurred by him in the litigation, if entitled to exemplary damages. (15 Fed. Rep. 95-97.)
The amount of the verdict in this case was only one hundred and seventeen dollars and forty-six cents; therefore the damages are not so excessive as to indicate passion or prejudice on the part of the jury.
The other matters submitted are immaterial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on a note given in payment for a combined Gale sulky harrow and drill, sold by the Gale Sulky Harrow Manufacturing Company, to Alfred Chinberg, on September 21, 1883. The amount of the note was sixty-five dollars, payable with interest on or before October 1, 1884. The action was tried in the district court on appeal from a justice of the peace. The defenses were, payment, and also a breach of warranty.
Chinberg testified, among other things, that he delivered the note which he gave for the harrow and drill to E. A. Burk, the agent of the manufacturing company from whom he made the purchase; that a few days afterward Burk introduced him to John H. Webb, at McPherson, and stated in the presence of Webb, that he, Webb, was an agent of the Gale Sulky Manufacturing Company; that a few days afterward he saw Burk and Webb again together in McPherson, and talked with them about the harrow he had purchased; that he tried to get them to take it back, but that they refused to do so; that on November 22, 1883, Webb came to his place and said to him that the agents of the company needed money to pay their livery and hotel bills, and if he would take up his note, he could have it for forty dollars; that he told Webb he would have to borrow the money if he took up the note, but informed him he would see him in McPherson the next day; that Webb then went away; that he went to McPherson on the next day, met Webb in front of the Commercial Hotel, and was asked by him to go to his room in the hotel, where he kept his papers; that after they reached the room Webb took several notes out of his pocket-book and looked them over, and finally found the one signed by him (Chinberg); that after he (Chinberg) had examined the note and recognized it from the signature, dates, etc., as the one he had executed, he paid Burk forty dollars; that Burk tore off the signature and handed him the note; that he requested Burk to mark it paid, and thereupon Webb wrote across the back as follows: “ Mr. Alfred Chinberg has paid this note in full.— Jno. H. Webb.” He also testified that he had preserved the note or paper returned to him, and offered the same as testimony. The company objected upon the ground that the execution'of the note sued upon had not been denied under oath. The objection was sustained, and then he asked permission of the court to amend his answer so as to put in issue the execution of the note, upon such terms as the court might impose. This was also refused.
Of these rulings and some others, complaint is made, and we think very properly. The Gale Sulky Harrow Manufacturing Company offered evidence tending to show that Webb ceased to be an agent of the company on October 10, 1883, and that he had no authority to accept or receive payment of the note. The trial court should have permitted the note paid by Chinberg"to be introduced in testimony. The note executed by him was payable to the company or bearer, and if Webb was actually in possession of the note at the time of payment, it was prima fade evidence of his authority to receive payment. (Eggan v. Briggs, 23 Kas. 710.) The fact that Chin-berg’s signature had been torn from the note was no good reason for refusing it as testimony. It should have gone to the jury for what it was worth.
It is claimed on the part of the manufacturing company that the note paid was a copy only of the original note, and that Webb had fraudulently induced Chinberg to pay forty dollars for the copy, for which the manufacturing company is not responsible. Whether the alleged note presented by Chin-berg is the original note, or a copy only, was a matter for the jury, and the court should not have deprived Chinberg of the benefit of this testimony.
Again, after refusing Chinberg the opportunity to present as a part of his testimony the note which he alleged he had paid, it was error for the trial court to refuse to permit him to put in issue the execution of the note sued on. Evidently Chinberg believed when he paid the forty dollars and received the alleged note from Webb, that he was "taking up the original note executed by him. Only a copy of the original note was attached to the bill of particulars, and when it was attempted to be shown that he had paid forty dollars for a copy which had been in some illegitimate way obtained, he should have been permitted to have had this question fairly put in issue; and therefore it was necessary that the execution.of the note should have been denied under oath.
We think under the circumstances of this case as shown by the record, the court ought to have permitted the amendment. (Gaylord v. Stebbins, 4 Kas. 42.)
As to the other matters alleged in the brief, we refer to Craver v. Hornburg, 26 Kas. 96; Lyon v. Martin, 31 id. 411; Mfg. Co. v. Nicholson, 32 id. 666; Mfg. Co. v. Nicholson, 36 id. 383.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The first and controlling question in the case is in regard to the validity of the tax deed under which the plaintiff claims title to the land in controversy. The district court determined that it was void upon its face as a conveyance of the real property sought to be recovered; and an examination of the instrument leads us to the same conclusion. The recitals of the deed include the descriptions of twenty-eight- distinct parcels of real estate. In the opening clause of the instrument it is recited that all of these tracts and parcels were subject to taxation for the year 1869, and were-separately assessed; that the taxes thereon were not paid, and that on May 3, 1870, each of these tracts was sold for the paymént of the taxes, interest and costs charged against it. Then follows a recital of the tracts sold, the amounts for which they were sold, and the persons to whom sold. Following this is a recital that H. N. Davis, one of the purchasers, obtained assignments of the certificates of sale from the other purchasers for the property bid in by them. In this connection it is recited that the taxes on each of the tracts for the subsequent years 1870, 1871 and 1872 have been paid by the purchasers, excepting upon the 116-acre tract, which is definitely described, and that the taxes for 1870 and 1871 upon that tract, again describing it, were paid by the purchaser, as provided by law. Following this is a statement that H. N. Davis has since married, that her name is now H. N. Spicer, and that’ three years have elapsed since the date of the sale without any redemption of the property sold. Then comes the granting clause of the deed, which states that in consideration of a stated amount—
“The taxes, costs and interest due on said lands for the years 1869, 1870, 1871, 1872, excepting for 1872 on the 116 acres of the S.E.J S. 17, T. 19, R. 10, north of river, to the treasurer paid as aforesaid, 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 said H. N. Spicer, her heirs and assigns, the real property last hereinbefore described.”
The property “last hereinbefore described” does not include the tract the title and possession of which is now in .dispute, but embraces only the 116-acre tract. That property is separately and definitely described in the clause immediately preceding the words of conveyance; and hence the phrase “last hereinbefore described” expressly and clearly limits the extent of the lands conveyed to the single tract of 116 acres. The plaintiff contends that all parts of the deed read together show that the parcels of land described in the opening clause of the deed were intended to be conveyed; but the language employed by the county clerk in the.granting clause leaves no room for interpretation. It is true that under the recitals the plaintiff appears to have been entitled to a tax deed for'all the parcels described in the opening clause of this instrument; but the officer, for some reason and in terms which are not ambiguous, chose to limit the real property conveyed to the single tract, and we are not permitted to import into the instrument a meaning wholly at war with the language which he used. The holding asked for by the plaintiff would require the substitution of the word “first” for “last,” so that the phrase in the granting clause would read: “the property first herein-before described.” It is said by plaintiff that the statutory form of a tax deed has been followed in this case, as the granting clause of that form uses the terms the “ real property last hereinbefore described.” The form of the deed must be in substantial compliance with the statute, but it must also conform with the real facts upon which the deed is based. If only a single tract had been described in the deed, the form used would have been appropriate and sufficient; but in this deed there was the history of twenty-eight distinct parcels, and the steps taken were not the same as to all these tracts. To correctly recite the facts, it became necessary in the deed to separately describe some of the tracts; and therefore the necessity to depart from the form given as a guide in the statute. To give flexibility to that statute, the legislature has provided that the form given shall be substantially followed. In Norton v. Friend, 13 Kas. 538, it is said that—
“A tax deed should follow the form given by statute only so far as it can do so truthfully, and where it cannot do so truthfully, it should state the facts as they really exist.”
In Magill v. Martin, 14 Kas. 67, it was remarked with reference to a strict adherence to the statutory form, that —
“When the conditions of the sale are such, that, to follow the form is to recite an untruth, and show an illegal sale, the form must be modified to suit the facts. To make a statement of an illegal and void sale evidence of a legal and valid sale, is a contradiction not to be imputed to the legislative intent. The statute says that the deed shall be in substantial compliance with the form. It thus contemplates minor modifications, and those modifications must be such as to make the deed recite the truth, and comply with the conditions of valid action.”
Only a modification of a word or two was required in order to have conveyed all the lands sold, if such had been the intention. The cited case of Dodge v. Emmons, 34 Kas. 732, does not strengthen the position of plaintiff. The granting clause of that deed contained words similar to those used in the present deed, and immediately preceding that clause there was a defective or rather an attempted description. • However, it was only a starting-point, and was held not to be a description, and the words “the property herein last before described ” were held to refer to the first description given in the deed. In fact there was only a single tract described in that deed; and it was ruled that the first description was really the only one embraced in the instrument. The plaintiff was never in possession of the land in dispute, and the deed upon which she relies wholly failed to convey the land to her; and hence she had no title or right of possession therein.'
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
In 1883 S: M. Hollis, the plaintiff in error, plaintiff below, entered into a copartnership with J. W. Shaffer, the defendant, to engage in the business of selling windmills, pumps, etc., in Cloud, a part of Clay and adjacent counties. Upon the 7th of November, 1884, the copartnership was dissolved by mutual consent, and a contract was entered into whereby the plaintiff purchased all of the stock, notes and property of the partnership for the purpose of carrying on the old business in the territory formerly occupied by' the firm. It was agreed that Hollis should pay all liabilities of the firm, and also, in the language of the contract, “it is further agreed by the said J. W. Shaffer that he shall give to the said S. M. Hollis his good-will in the business, and also agrees not to engage in the same business-in the territory now-belonging to said Hollis & Shaffer, while said S. M. Hollis is engaged in the same.” The plaintiff continued to prosecute this business in the same territory until this action was tried; the defendant, on the 20th of April, 1885, formed a copartnership with one Seger for the purpose of selling windmills and pumps within the territory formerly occupied by Hollis & Shaffer. Plaintiff brought this action in the district court, and obtained a temporary injunction, enjoining the defendant from carrying on such business. At the January term, 1886, the cause was tried by the court, and judgment was rendered for the defendant. No special questions of fact were submitted, and no facts were found by the court.
It is not questioned that the court had authority to enjoin defendant from again engaging in this business in the territory embraced in his contract of dissolution with plaintiff. He had conveyed his good-will in the business, and had contracted not to engage in the same business again as long as the plaintiff should carry it on. The courts have ample authority to execute such a contract, perhaps negatively, by an injunction restraining the party so contracting from setting up a new business, and thereby designedly drawing off the customers from the one established.
The defense urged is, that the plaintiff had not performed his part of the contract. It appears from the testimony that when the partnership existing between plaintiff and defendant was dissolved, the firm was indebted to Sherrard & Searles, of Atchison, Kansas, in a considerable sum, in the aggregate amounting perhaps to $2,000. The firm had given notes at various times to Sherrard & Searles, and had deposited as collateral security, notes made payable to themselves. There is a conflict of testimony as to whether a portion of the notes made payable to Hollis & Shaffer were transferred to Sherrard & Searles as collateral security, or to be applied as part payment of their indebtedness. We shall not pass upon this question, except to say that, as the judgment was for the de fendant, it will be presumed that the court below found, as it had ample grounds under the evidence to do, that there was remaining of the indebtedness of Hollis & Shaffer to the Atchison firm upon their notes, an amount which the plaintiff himself regarded as secured by collateral notes, furnished them by himself and the firm of Hollis & Shaffer. Among other notes given by Hollis & Shaffer to Sherrard & Searles, was one of $1,783.60, due on the 1st day of January, 1885. That note was not paid in full when it became due, and at the time of the trial of this action about $650 remained unpaid upon it, according to the testimony of the plaintiff himself. It is in evidence that there were collateral notes in the hands of the Atchison firm, nominally for $1,300, to secure the payment of this amount remaining unpaid. There was testimony offered tending to show that the Atchison firm was not pressing plaintiff for the payment of said balance, and it was established, that he had paid every demand presented to him, except the one item of $3, about which there is a great amount of testimony which is unimportant in this case.
The defendant claims that because the amount of $650 was due and unpaid, the plaintiff had not fully complied with his part of the contract, and therefore that he could not maintain this action. The principle is fundamental, that the party seeking a remedy of this nature against another must show as a condition precedent to his obtaining such remedy, that he has fully complied with the contract on his part, or that he is willing and ready to comply. There is no averment in plaintiff’s petition that he has performed the conditions of the contract entered into with the defendant; there was some evidence introduced during the progress of the trial, however, in regard to the payment of the liabilities of the firm. The defendant contends that the payment .of the liabilities of the firm was an essential part of the contract, and must have been fully complied with before the bringing of this action, while the plaintiff claims that, as the time of the payment was not designated in the contract itself, it is not necessary that he should have paid the full amount of the liabilities of the firm, pro vided he had relieved the defendant from liability thereon. We are inclined to believe that the contention of the plaintiff in this matter is correct, but from an examination of the testimony we fail to find that the defendant, as a matter of fact, was relieved from such liability. There is some evidence that the defendant was insolvent, and it might fairly be inferred, although not positively testified to, that the plaintiff was solvent; yet it is in testimony that the Atchison firm informed the defendant that it should look to him for payment of its claims against the old firm of Hollis & Shaffer, if necessary. If the deposit of these collateral securities had been equivalent to payment, we presume the defendant might fairly have been presumed to have been relieved of all liabilities under the contract between Sherrard & Searles and plaintiff; but a part of those notes were turned over as security, and there is no testimony concerning their value.
We believe that the absence of an averment in the petition that the plaintiff had performed his contract in full, or that he was ready and willing to do so, and the absence of the proof establishing the fact that Sherrard & Searles took the notes deposited with them as payment of the indebtedness of Hollis & Shaffer, or that those collaterals were of sufficient value to pay said indebtedness, are fatal to the plaintiff's claim for relief. There is considerable testimony which did apparently seem favorable to the plaintiff in this action, and it may be that the real facts might justify the granting of an injunction; but under the pleadings and the evidence brought here, we are constrained to believe that the decision of the court was correct, and therefore recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.;
This was an action brought by L. L. Northrup, on September 13,1884, in the district court of Allen ■county, against Luther J. Keeney, Maria H. Keeney, The New England Mortgage Security Co., F. W. Dunton and Mary E. Hottenstein, to foreclose a mortgage executed to the plaintiff by Luther J. Keeney and his wife Maria H. Keeney for certain real estate situated in said county. Mrs. Hottenstein filed an anwer to the plaintiff’s petition, and the plaintiff demurred tq the answer upon the ground that it did not state facts sufficient to constitute any defense to his action. The demurrer was overruled. The plaintiff then replied to Mrs. Hottenstein’s answer by filing a general denial, and upon these pleadings the ease was tried before the court without a jury; and the court made special findings of fact and conclusions of law; and upon srich findings and conclusions rendered judgment in favor of Mrs. Hottenstein and against the plaintiff; and to reverse this judgment, the plaintiff, as plaintiff in error, brings the case to this court. "What proceedings were had with reference to the other defendants, is not shown, nor is it material so far as the controversy between the plaintiff and Mrs. Hottenstein is concerned.
The first question meriting consideration is, whether the district court erred, or not, in overruling a motion of the plaintiff to suppress the deposition of the witness, B. O. Davidson. It appears from the record that the court convened on June 15, 1885, and that this case was set for trial on June 17, 1885. The case was not tried on that day, however, nor until July 7,1885, but why the trial was postponed, or whether the case was again set for trial for a subsequent day, is not shown. On June 26, 1885, notice was served by Mrs. Hottenstein’s counsel upon the plaintiff’s counsel to take depositions in the case on June 30, 1885, at Wyandotte, Kansas'. Service of this notice was acknowledged, and all objections to the official character of the officer before whom the depositions were to be taken were waived by the plaintiff’s counsel. On June 30, 1885, and in pursuance of the aforesaid notice, the deposition of B. O. Davidson was taken, at Wyandotte; but neither the plaintiff nor his counsel made any appearance, and the deposition was taken in their absence. On July 1, 1885, this deposition was filed in the case in the district court; and on July 6, 1885, the plaintiff filed a motion to suppress the same, which motion reads as follows:
“And now comes plaintiff, by Knight & Foust, attorneys, and moves the court to suppress the deposition of B. O. Davidson taken herein on the part of Mary E. Hottenstein, one of the defendants, for the following reasons, viz.: Because the notice to take depositions was served on plaintiff’s counsel on the 26th day of June, 1885, the district court of Allen county then being in session, having commenced in regular June session on the 15th day of June, 1885, and having (except Sundays) been continuously since then in session ; that the above stated action being on bar docket of said term and fixed for June 17, 1885, and having been continued from preceding term by the defendant Hottenstein; and plaintiff’s counsel being resident members of the bar of Allen county district court, and having causes in the bar docket for trial that precluded them or either of them from attending at the time and place named in the notice to take depositions, as will be seen by the affidavit of R. H. Knight hereto attached, marked 'Exhibit A/ and made a part hereof.”
This motion was overruled on the same day. On the next day, July 7, 1885, the case was called for trial, and was tried before the court without a jury, with the result aforesaid. The testimony contained in this deposition was material; and if the court below erred in refusing to suppress it, the judgment of the'court below should be reversed. The substantial question is, whether a deposition may properly be taken durine: a term of court and while the court ° is in session. We think this question must be answered in the affirmative. The statute does not prohibit the taking of depositions during term-time, nor for any of the other reasons set forth in the plaintiff’s motion; and in many cases it is absolutely necessary to take depositions during the term. In some counties in this state the court is in continuous session from the beginning of one term to the beginning of the next, and there is no vacation during which depositions could be taken, and in some cases the witness^ health or physical condition might be such that he could not attend the sessions of the court, and unless his deposition were taken immediately and during the term his testimony might be forever lost. We can- see how the privilege given to parties ■of taking depositions during the term of the court might be -abused, but in such a case the court would have ample power to correct such abuse. Generally the court could continue the ease and give the aggrieved party time to procure other testimony, or to take the further deposition of the same witness or witnesses as upon cross-examination; and in some rare -cases the court might suppress the deposition. Trial courts have ample power to prevent advantages being taken by unjustifiable tricks; and the supreme court will sustain them in the exercise of such power. We think the motion in the present case to suppress the deposition was properly overruled. "The plaintiff had ample opportunity to procure testimony to -disprove what was stated in the deposition provided it was not true, or to ask for a continuance if the testimony was a surprise to him. The plaintiff himself was a witness at the trial, and he knew whether the statements contained in the -deposition were- true or not, and might have testified with ■reference to the matter if he had so chosen.
The next question to be considered, and the most important -one, is, whether, under the facts of the case as shown by the pleadings, the evideuce, and the findings of the court, Mrs. Plottenstein had a good defense to the plaintiff’s foreclosure •suit. The facts, briefly stated, are substantially as follows: On July 17,1882, and prior thereto, Mrs. Hottenstein owned the west half of section 27, township 25,. range 18, in Allen ■county, and on that day conveyed the same by warranty deed to Luther J. Keeney. This deed was recorded on July 21, 1882, and Keeney immediately took possession (of the property under the deed. On September 13, 1882, Keeney and wife by warranty deed conveyed the northwest quarter of said section 27 to Matilda Ware. On September 18,1882, Keeney and wife mortgaged this same quarter-section of land to L. L. Northrup. On September 26,1882, at 9 o’clock in the morning, the deed to Matilda Ware was deposited with the register of -deeds for record, and on the same day, at 3 o’clock in the after noon, Nort-hrup’s mortgage was deposited with the register of deeds for record. On October 10,1882, Mrs. Hottenstein commenced an action in the district court of Allen county, against Keeney, Matilda Ware and others, for the purpose of having her deed to Keeney, and Keeney’s deed to Ware, canceled, and of having it determined that she, Mrs. Hottenstein, was the owner of the land which she conveyed to Keeney. Northrup was not a party to that suit. On March 16,1883, judgment was rendered in her favor, and the said deeds to Keeney and Ware were set aside, and Mrs. Hottenstein was declared, to be the owner of the property. On September 13, 1881, this present foreclosure action was commenced by Northrup. On July 7, 1885, a trial was had before the court without a jury, as aforesaid, and on November 14,1885, the court made ■special findings of fact and conclusions of law, and rendered judgment thereon in favor of Mrs. Hottenstein and against Northrup. It was settled in the former case, and is settled in this case, that the deed from Mrs. Hottenstein to Keeney was obtained fraudulently and without consideration, and that the deed from Keeney to Matilda Ware was executed without •consideration, and therefore that Mi’S. Hottenstein continued to be the equitable owner of the land notwithstanding said deeds. At the time when Keeney executed the deed to Matilda Ware, Northrup was not a creditor of Keeney, and it is not shown that the deed from Keeney to Ware was executed with any intention of defrauding Northrup, or of defrauding .any other person, unless it was Mrs. Hottenstein. When the mortgage was executed by Keeney to Northrup, it was not the intention of the parties that the mortgage should cover the •■quarter-section of land which it was made in fact to cover, but it was the intention of the parties that it should cover another .-and a different quarter-section of land; and it was made to ■cover the quarter-section, which it did in fact cover, through a mistake. What quarter-section it was intended that the mortgage should cover, is not shown. At the time when Northrup’s mortgage was executed he had no knowledge or notice •of the existence of the deed from Keeney to Matilda Ware, nor is it shown that Matilda Ware had at the time when her deed was filed for record any notice of Northrup’s mortgage. In this state it is provided with reference to instruments in writing affecting real estate as follows:
“Sec. 21. No such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Comp. Laws of 1885, ch. 22, [Conveyance Act,] § 21.)
It will be seen that the foregoing statute applies both to Northrup’s mortgage and to Ware’s deed, and neither would be valid as against the other until one of them should be deposited with the register of deeds for record, and the one deposited first would become valid first. Ware’s deed was deposited first, and therefore takes precedence over Northrup’s mortgage. Upon the foregoing facts the question arises, who is entitled to recover in this action — Northrup on his mortgage, or Mrs. Hottenstein as the absolute owner of the' property? We are inclined to think that Mrs. Hottenstein should recover, and therefore that the judgment of the court below is correct. When Northrup’s mortgage was executed he had no intention of obtaining a mortgage upon the quarter-section of land now in dispute, and therefore was not in any manner misled by any act or omission of Mrs. Hottenstein, or Keeney, or Matilda Ware, with respect to this land. He was not misled by anything placed upon or omitted from the records of the county, or by anything-which he may have found upon the records. ' With his intentions and expectations it was a matter of total indifference to-him whether this quarter-section of land belonged to Keeney or-to some one else, or whether it was incumbered or not, and it was in fact greatly incumbered. • He supposed he was getting a mortgage upon another piece of land. When he obtained his mortgage, Keeney did not have any title to this land, either legal or equitable. The equitable title thereto was wholly in Mrs. Hottenstein, and the legal title thereto was in Matilda Ware. Keeney had no interest in the land to mortgage, and. therefore could mortgage nothing in it, nor give any lien upon it; but suppose that because of the condition of the records, and under § 21 of the conveyance act, Northrup at the time of the execution of the mortgage and by his mortgage obtained some possible lien upon some possible interest in the land, still until his mortgage was recorded his lien was valid only as between himself and Keeney. The unrecorded mortgage was invalid as to all others; and before the mortgage was recorded, all Keeney’s interest, all that he had at the time of the execution of the mortgage, or before, had passed from him to Matilda Ware by the recording of her deed, leaving no possible interest in Keeney for Northrup’s mortgage to operate upon when it was recorded.
As before stated, there is no evidence tending to show that at the time when Ware’s deed or Northrup’s mortgage was executed Keeney or Ware had any intention of defrauding Northrup or anyone else, unless it was Mrs. Hottenstein. Northrup was not a creditor of Keeney at the time when th deed was executed, and it was not intended that the mortgage should cover this land; and except as to Mrs. Hottenstein, Keeney had an unquestionable right to convey this land to Ware, as a gift or otherwise. Hence Ware’s deed cannot be set aside in favor of Northrup. But passing from the legal aspect of this case, and viewing it only in its equitable aspects, still Northrup must fail. His equity, if he has any, is subsequent in time to Mrs. Hottenstein’s, if not subsequent in right. But really Northrup has no equity at all with regard to this particular piece of land. His equitable rights extend only to another piece of land, and the one which was intended to be mortgaged to him. His rights are to have his mortgage reformed so as to make it a mortgage upon the particular piece of land that was intended to be mortgaged to him when the mortgage was executed, and then to have his mortgage foreclosed upon that particular piece of land, and not upon the land in dispute. Keeney had the right, as against all the world, except Mrs. Hottenstein, to convey this land to Matilda Ware. A mortgagor always has the right to convey his land subject to the mortgage. And Keeney having conveyed this land to Matilda Ware by a warranty deed, he undoubtedly had the right to object to a foreclosure of Northrup’s mortgage except upon the land that was intended to be mortgaged, and so had Matilda Ware, and so had Mrs. Hqttenstein; and now all these rights are by virtue of the judgment rendered in the case of Mrs. Hottenstein against Keeney, Ware and others, united in Mrs. Hottenstein, and merged in her greater and superior right. (Utley v. Fee, 33 Kas. 683.) The plaintiff urges strenuously the rule of law “that wherever one of two innocent persons must suffer loss on account of the wrongful acts of a third, he who has enabled the third person to occasion the loss must be the person who shall suffer.” (Jordan v. McNeil, 25 Kas. 460, 465; Ayres v. Probasco, 14 id. 190; Savings Bank v. A. T. & S. F. Rld. Co., 20 id. 520; McNeil v. Jordan, 28 id. 7.) We do not think that this rule of law can have any application to this case. Northrup cannot be considered as an innocent person in foreclosing his mortgage upon this particular piece of land, for it was never intended that this particular piece of land should be mortgaged to him, or that his mortgage should cover the same. To foreclose his mortgage upon this land would be to wrongfully take advantage of a mistake. Besides, why did Northrup delay filing his mortgage for record for eight days, leaving it invalid as against all the world except Keeney for that length of time, and until after all title had not only passed in fact from his mortgagor, Keeney, but had also passed from his mortgagor as shown by the records of the county ? Are the courts bound to protect Northrup from his own negligence, and this to the injury of innocent parties? And so far as Northrup is concerned, all the parties are innocent.
If we are correct thus far, it is wholly unnecessary to discuss any of the other questions presented by counsel. We might however say, that Mrs. Hottenstein had a right to Prove that the deed from Mrs. Hottenstein to Keeney was obtained fraudulently; and this although some of the proof might involve conversations had in the absence of Northrop. She had a right to prove the original negotiations had between her and Keeney with reference to the laud; and also had the right to prove the final judgment rendered in her favor against Keeney and Ware, although Northrup was not present during such negotiations, nor a party to the action in which such judgment was rendered. This proof shows that Mrs. Hottenstein continued to be the equitable owner of the land notwithstanding the deed to Keeney, and that since the judgment was rendered and as against Keeney and Ware she has also been the legal owner - of the land. But it is unnecessary to extend this opinion further.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Two principal questions are brought up by this proceeding for our consideration and decision. The first relates to the objection of misjoinder, and arises on the order overruling the demurrer alleging that several causes of action and several parties plaintiff were improperly joined, and also in rendering a single judgment in favor of all the plaintiffs upon what are termed independent causes of action. It is argued that the obstruction of access to the Nave & McCord building, which was adjoining and north of the Moulton building, in no way affected the use of the latter, and that the threatened nuisance or obstruction to the Moulton building would not have been an interference with the use and enjoyment of the Nave & McCord property. As a general principle, several plaintiffs having distinct and independent causes of action against a defendant cannot unite in a suit for the separate relief of each. The code provides that where several persons have an interest in the subject of the action and in obtaining the relief demanded, they may join as plaintiffs, (sec. 35;) and also—
“When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Sec. 38.)
The threatened injury or nuisance complained of here is one that is common to all the plaintiffs, and all have a general interest in the relief demanded. In fact, the case falls fairly within the decision of Palmer v. Waddell, 22 Kas. 352. There the defendant erected an obstruction on a natural water-course, causing the water to overflow and injure the land of the plaintiffs. Although the several plaintiffs were the owners of separate and distinct tracts of land, it was ruled that the overflow was a common injury to all the plaintiffs, and the common interest which they had authorized them to join in a suit as plaintiffs to restrain the nuisance, The same principle is announced in the case of Jeffers v. Forbes, 28 Kas. 179, where it is said that the owners of different tracts- of land may unite in a single action to abate a common nuisance.
The next point is, that the findings do not sustain the judgment that was rendered. That depends on whether the plaintiffs would suffer an injury special and peculiar to themselves by the threatened nuisance, and also whether the defendant
railway company had any authority or right to construct a railroad in front of their premises. The findings of fact made by the court, which have been stated and need no repetition, sufficiently show, we think, that the injury resulting from the obstruction of the street is one that is special and peculiar to the plaintiffs below and independent of and different from the general injury to the public. The railway company, however, had no right to occupy the street or construct a railroad on the proposed route.
While the fee of the streets is in the county, the control of the same in the interest of the public is placed in the city; and before street railways can be built or operated the privilege must be obtained from the city authorities. (Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kas. 667; 2 Dill. Mun. Cor., § 724.) It appears that in December, 1881, the mayor and council of the city of Atchison by ordinance granted to the Atchison Street Railway Company the right to build on the street in question at any time within six months from the taking effect of the ordinance. It seems that this privilege was not used, and in May, 1882, another ordinance wasjpassed by the mayor and council authorizing the company to occupy the street, and build its railway at any time within six months after the taking effect of that ordinance ; and by both' ordinances it was provided that, if the company was interrupted or hindered by an action at law or judicial proceedings, the time of such hindrance or interruption should not be deemed a part of the period in which the company was allowed the privilege of constructing its road. The company did not avail itself of the privilege granted by either ordinance, and it was not hindered or prevented from so doing by any judicial or other proceeding. The case therefore stands, so far as the road in question is concerned, as if no authority to occupy the street had ever been granted to the company. The contention that the privilege granted by the ordinances remains until a forfeiture is declared, is not sound. The permission conferred by the city counc-j was for a limited time, and when that time expired the privilege no longer existed. The grant is not
an irrevocable one, which continues indefinitely, to be accepted or rejected at the option of the company. The consent of the city council to occupy the street is a mere license, J # J ' aQ(J until the company has availed itself of the i;cense no contractual obligation or relation arises which requires a judicial declaration of forfeiture. Until the license is accepted and used, no right vests in the railway company, and it may be revoked by the city council; and after the time within which it may be availed of expires, the license lapses and no revocation is needed to terminate the same. The railway company or licensee cannot thereafter occupy the street or build its road thereon without a new permission from the city authorities. (G. C. Rld. Co. v. C. C. & S. Rly. Co., 63 Tex. 529; same case, 26 Am. & Eng. Rld. Cases, 114; City of Detroit v. City Rly. Co., 37 Mich. 558.) As the railway company had no authority whatever to build the proposed road, some of the questions discussed become unimportant so far as this controversy is concerned, and need not be determined here.
The judgment of the district court will be affirmed.
Horton, C. J., concurring.
Valentine, J.:
Believing that the first proposition contained in the syllabus, and the corresponding portion of the opinion, come clearly within the principles enunciated by a majority of this court in the case of Palmer v. Waddell, 22 Kas. 352,1 concur, although as an original proposition I think it is at least doubtful. As to the remainder of the syllabus and the opinion, I fully concur. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an action of replevin, brought by C. F. Elerick against W. H. Braden, sheriff of Crawford county, to recover the possession of a stock of general merchandise. Braden had attached the goods as the property of J. W. Kinsey, under an order of attachment issued in the action of George W. Stevenson against J. W. Kinsey. The plaintiff claims that he purchased the stock in good faith, for a valuable consideration, from J. W. Kinsey, about the 10th of February, 1885, and was lawfully in the possession of the goods when they were seized. On the other side it is claimed that J. W. Kinsey transferred the goods to Elerick for the purpose of defrauding his creditors, and that Elerick not only had knowledge of the fraudulent purpose, but connived with and aided Kinsey in carrying it out. The jury has, by a general verdict, found the transaction to be fraudulent, and the court below has given its sanction and approval to that verdict. The principal contention of the plaintiff is, that the verdict is not sustained by the testimony. It is conceded that the case was fairly presented to the jury by the instructions of the court, and in this state of the case we have only to inquire whether the testimony tends to sustain the general finding of the jury. Taking the testimony against Eleriek and viewing it in the light most favorable to the defendant, as we must, we have no hesitancy in upholding the verdict. Only a few of the facts disclosed by the testimony need be mentioned. In October, 1884, Eleriek was engaged in the mercantile business in the town of McCune, and was carrying a stock of general merchandise valued at about $1,600. There is testimony to the effect that on October 10, 1884, he sold the goods to J. W. Kinsey, who at that time came to McCune from Lawrence, and was unacquainted with merchandising. He had no money of his own, but claimed to have brought with him about $600 of his wife’s money, although he was uncertain about the amount. He says that he carried this amount on his person. No inventory was made at the time of this purchase, and he claims to have then paid only $300 •on the stock. Eleriek remained in the store and sold goods for about forty days and until the stock was reduced in value to about $900. During this time Kinsey worked for Eleriek in the store. Then Kinsey says that he paid Eleriek about •$300 more, and gave his note for the balance due on .the stock •and took possession, at which time Eleriek became a salesman for Kinsey. Eleriek says that shortly after he delivered the •possession of the goods, and upon which there was considerable due, he loaned Kinsey $900, and a little later he loaned him $200, Kinsey giving no security for its repayment. Soon after Kinsey took possession, the plaintiff Eleriek invited and urged wholesale dealers to sell Kinsey goods, representing that he was a good man and financially responsible, who had a stock worth from $2,000 to $3,000, and that his indebtedness did not exceed $300. During the short time that Kinsey was in charge he bought from the jobbers about $2,500 worth of goods for which he did not pay, and Elerick was the active man in selecting and purchasing the goods, and in trying to assure dealers that they might safely sell to Kinsey. Less than two months after Kinsey took control, and after he had stocked up his store pretty well on the credit plan, he retransferred the entire stock to Elerick. There was no inventory taken, and the goods were lumped off at the stated value of $1,783.15, and a bill of sale was carefully made and placed on record. No cash was paid on this alleged sale except the sum of $81.95, and then Kinsey took some goods out of the store for future use, which they say did not exceed in value $50. It is said that the balance of the payment of this sale was made by the notes and obligations of Kinsey which Elerick held. That these obligations were real, is denied. The notes for $900 and $200, heretofore mentioned, formed the larger part of the payment. Those loans were made, if at all, by Elerick without security, and while Kinsey was considerably indebted to him. Notwithstanding these notes, Elerick was representing to wholesale men that Kinsey was substantially out of debt. Elerick says that the money loaned on these two notes was not taken from the bank, but that he was carrying the same around in his pocket. They were unable to explain the purpose for which the money was loaned, and Kinsey upon an effort failed to account for its disposition, or for the receipts from the daily sales. He says that he paid $300 for a patent stove-polish receipt; that he spent some for lottery tickets; that he lost some upon a wheel of fortune, and that he purchased a check or draft from the McCune bank, but could not say positively whether it was $5.60 or $560. He paid a few small bills that accrued during the brief time that he was proprietor and Elerick was clerk. But whether clerk or proprietor, it is manifest that Elerick was well acquainted with the business done in the store. He knew of the purchases made by Kinsey, and assisted in making them. He knew that the goods were bought on credit, and knew of Kinsey’s financial straits; and the facts and circumstances that have been mentioned, as well as others in the record, not named, are strongly indicative of a preconceived plan of Elei’ick and Kinsey to defraud the parties from whom the goods were purchased. True, Elerick offers testimony tending to show good faith on his part; but we have only a general verdict, which, being based on disputed facts, and having received the approval of the trial court, must, under a well-established rule, be treated as a finding of everything necessary to sustain the general finding, and held conclusive in this court. (Knaggs v. Mastin, 9 Kas. 532; A. T. & S. F. Rld. Co. v. Blackshire, 10 id. 477; K. P. Rly. Co. v. Kunkel, 17 id. 146; Winter v. Sass, 19 id. 556; Gibbs v. Gibbs, 18 id. 419; Stout v. Townsend, 32 id. 424; Higginbotham, v. Fair, 36 id. 742.)
There were some objections to the rulings on the testimony, but an examination of them plainly shows that no prejudicial error was committed, and we do not regard them as sufficiently important to require special mention. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Upon the motion for rehearing, the principal questions presented were, first, that the judgment of Hammond v. Garner, rendered May 31, 1878, was a final determination of the matters involved in this case, and that the court in its judgment must have overlooked the provisions of article 7, ch. 36, Comp. Laws of 1885; second, that under the pleadings, the illegal votes cast in favor of La Crosse cannot be impeached or excluded.
In The State v. Comm’rs of Hamilton Co., 35 Kas. 643, being a proceeding to determine the county seat of that county, this court said:
“This action was prosecuted in the name of the state of Kansas by the attorney general, who has the right to prosecute and defend in the name of the state and for the state, and the state unquestionably has the right to require that all county officers shall hold their offices at the county seat; and we know of no other plain and adequate remedy which the state may resort to for this purpose.”
The contention in that case was, that the legislature intended by §113, ch. 24, Comp. Laws of 1885, to give any person interested the right to contest the election for the location of the permanent county seat, and thereby to designate the proceeding and the tribunal in which the validity of such an election should be tried and finally determined; and in the argument it was said if this were not the correct conclusion, the proceeding would be an idle and useless ceremony. It was held unanimously by this court that the authority granted to a private citizen in no way interfered with the legal rights or powers of the state, and that the state, in its sovereign capacity, apart from and independent of that section, had the power to go into the courts and have a judicial determination where the county seat of a county was in fact and law located. We think the clear implication of that decision is, that if any private citizen had contested the election as to the permanent location of the county seat prior to the commencement of that case in this court, the proceeding would not have been res adjudicada as to the state; yet under § 113, the court is given authority to try and determine the validity of an election called for the permanent location of a county seat. It is strenuously urged, however, that because the Hammond case was prosecuted under the style of “The State of Kansas, upon the relation of Daniel Hammond,” that therefore it finally settled the county seat of Rush county; and that the state of Kansas has no right to make further inquiry. If such a construction be given to the statute, then the state of Kansas is without remedy to go into the courts and have a judicial determination as to the location of a county seat, if some elector has obtained judgment under art. 7, ch. 36. In other words, the contention of the defendant is in substance that the provisions of art. 7 oust the courts of all jurisdiction to hear and determine the location of a county seat at the instance of the state in its sovereign capacity, if proceedings have been commenced by an elector under said art. 7. We cannot discover that a judgment rendered in a contested county-seat case under said art. 7, ch. 36, is any broader or more conclusive than a judgment rendered under §113, ch. 24, Comp. Laws of 1885. The Hammond case, having been brought in the name of the state upon the relation of a private citizen, did not add anything to the force of the judgment; and certainly it cannot be claimed with reason that the state was thereby a party interested, or had any authority, through its attorney general or otherwise, to control or supervise the litigation. Hammond was not a public officer; was not under official oath; and was only permitted by the statute to prosecute his action because he was “ an elector who considered himself aggrieved(Comp. Laws of 1885, ch. 36, art. 7, §1; Garner v. The State, 28 Kas. 790.)
In most of the states it is the practice to have proceedings in mandamus prosecuted in the name of the state, or in the name of the people, upon the relation of a private party interested ; but the decisions do not show that thereby the state becomes involved, or that the statute of limitations cannot be invoked.
In Iowa, it was formerly held that proceedings in mandamus should be conducted in the name of the state, upon the relation of the informant, when the object sought was to enforce a duty for mere private ends. (Chance v. Temple, 1 Iowa, 179.)
In Ohio, the writ of mandamus issues in the name of the state, upon the information of the actual party in interest. (The State v. Commissioners, 5 Ohio St. 497.)
In Illinois, proceedings in mandamus are issued in the name of the people, upon the relation of the person interested having some right to enforce. (The People v. Board of Supervisors, 47 Ill. 256.)
In all the states wherein the proceeding in mandamus is prosecuted upon the relation of a private party, although the name of the state or the people is also used, such a proceeding is treated and considered a private or personal action, and the maxim, Nullum, tempus oceurrit regi, has no relevancy.
In the Hammond case, the state of Kansas was not the real party to the proceeding; it was not asserting any right, and was not before the court. The application in that case was by a private individual who “considered himself aggrieved,” and it was upon his application alone that the judgment was rendered. Section 4 of said article 7, chapter 36, expressly states that the elector shall be liable for costs. While Hammond was expressly authorized by the statute to. maintain his action, it was, as we have before remarked, as much of a private or personal action as one instituted by an interested person under said §113, ch. 24. Said §113, ch. 24, does not give to the state of Kansas any remedy to compel the county officers to hold their offices at the place where the county seat is in fact located; nor does said art. 7, ch. 36, give to the state in its sovereign capacity any remedy to compel the county officers to hold their offices at the county seat. Both of the statutes named are special statutes, whereby parties interested or aggrieved may have their grievances redressed. Prior to the adoption of these and similar statutes, this court held that mandamus would not lie at the suit of a private citizen, where the citizen showed no specific or peculiar interest in himself different from that shared by the public at large. (Bobbett v. The State, 10 Kas. 9; Turner v. Comm'rs of Jefferson Co., 10 id. 16; Needy v. Eagle, 23 id. 254; Adkins v. Doolen, 23 id. 659.) Under these statutes, parties alleging themselves interested or aggrieved are permitted to institute proceedings without showing that they have any peculiar or special interest in the result.
It is true that we held in Garner v. The State, supra, that Garner could not again litigate the matter, because he had had his day in court, and therefore was in no condition to treat the Hammond judgment as a nullity. We intended, in that case, by the language employed, to intimate that the state, upon the relation of the attorney general, had full authority to go into the courts and make inquiry as to the county seat of a county; and, if necessary, to have a judgment rendered in favor of a private citizen, under the provisions of said art. 7, chapter 36, reviewed and superseded. If the case of Garner v. Moon were to be construed as contended for by the defendants, we would unhesitatingly overrule the decision, because it would be wrong in principle, pernicious in results, and grossly unjust to the public. This case is a strong illustration of the injustice that might be accomplished, if proceedings under said article 7, chapter 36, were res adjudicóla, against the state.
Upon the testimony in the record, the people of Rush county voted, on February 12, 1878, for Walnut City as the seat of justice. In the Hammond case, Garner made no return or answer, and judgment was rendered against him upon default. If that decision be final, then without any investigation of the poll books, tally sheets, or ballots, indeed without any evidence whatever, but solely upon the neglect or misconduct of Garner, the county seat was changed from Walnut City to La Crosse. In all fairness and common honesty, ought a judgment rendered as that one was to be forever binding and conclusive upon the public and the state ? We think not. No statute should be construed to permit such an iniquity, unless the language imperatively demands such an interpretation. Neither the superior rights of the state nor the supreme rights of the people should be permitted to be frittered away by the neglect of any private person, or public officer, if a reasonable construction of the statute will forbid such a result. The construction given to said article 7 by the counsel for the defendants not only deprives the state of its sovereign power, but permits county seats to be located hither and thither at the instance or by the neglect of private parties, regardless of the rights of the state, or the expressed will of the people. Such a conclusion would, in many counties, cause confusion to reign worse confounded.
Further, the actions of Hammond and Moon were against Garner, who was only a county clerk; he had no control of the county funds, or of county affairs; he had no county money with which to defend, or with which to employ counsel. How can it be said that the judgments rendered against him in those cases are conclusive against every other officer of the county ? If so, upon what grounds ? (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kas. 127.) Garner was only a representative of the county in a special or limited degree. He was not such a representative, or agent, as the board of county commissioners of a county. By express provisions of the statute, the county commissioners are authorized to represent the county and have the care of the county property and the management of the business and concerns of the county. They are also authorized to purchase sites for and to build and keep in repair the county buildings; and to provide suitable rooms for county purposes. The county commissioners furnish the office or room for the county clerk; and also all his books and stationery. If the actions of Hammond and Moon had been prosecuted against the board of county commissioners of Rush county, then within the authorities, the citizens of the county might have been bound thereby, if the judgments were res adjudícala against the state. (Comm’rs of Morris Co. v. Hinchman, 31 Kas. 729; Sabin v. Sherman, 28 id. 289; Clark v. Wolf, 29 Iowa, 197.)
If the other officers of Rush county were not bound by the judgments against Garner, then the state is not estopped thereby. If all parties, including the state, the county officers, and the citizens of Rush county, were not forever foreclosed by the Hammond case, it is an additional argument favoring the power of the state, upon the relation of the attorney general, to have the judgments rendered against Garner reviewed and superseded by a general adjudication as to which city is the legal county seat of Rush county, and by such a proceeding to have all the county officers brought together, with their books, papers and records, to one city as the county seat. It was urged, however, that the citizens of Rush county and the friends of Walnut City are bound by the Hammond case, because they defended the case over the shoulders of Garner, the county clerk. As before remarked, there was no proper defense in that case; and therefore in fact, there was no legal battle over the shoulders of any officer, public or private. The judgment went by default. It was clearly intimated in the Moon case that the judgment was irregular. Because Garner never made any defense, nor took any steps to have the judgment set aside, or reversed, we held the judgment binding as to him.
Concerning the admission of the evidence impeaching votes cast for La Crosse, a few words only are necessary. Before all the evidence was taken, the following notice was served by the plaintiff upon the defendants:
“You, and each of you, are hereby notified that at the trial of this case the plaintiff will offer and rely on all the testimony heretofore taken, and that may be hereafter taken in this case, tending to show the illegality of the votes cast and counted in favor of La Crosse for county seat of Rush county, Kánsas, at Liebenthal precinct, the same being precinct No. 5, by the following named and numbered witnesses and persons as they appear upon the poll book of said precinct, to wit: No. 24, Jacob Munch; No. 26, Joseph Munch; No. 22, Adam Bieker; No. 27, Franz Dreher; No. 25, Conrad Dehn; No. 31, Conrad Bieker; No. 19, Nicholas Bieker; No. 21, C. Herklotz; No. 7, John Dreher; No. 31, Nicholas Waltschmidt; No. 34, Peter Werth; No. 35, Jacob Zimmerman; No. 33, Frederick Werth; No. 28, John Werth; No. 32, Jacob Herman; No. 36, Carl Werth; No. 9, Andrew Weber; No. 38, Anton Depperschmidt; No. 5, John Kreitzer.”
This notice gave the defendants a reasonable length of time in which to rebut the testimony produced to support its statements.
This case does not come here by appeal, or on error. Being an original action, the pleadings may at any time, in the furtherance of justice, be amended. Therefore if under the pleadings the evidence of the illegal votes cast for La Crosse was inadmissible, the pleadings, upon the facts disclosed in the testimony, might be considered as amended. We think, therefore, as stated in the original opinion, that “all evidence tending to show fraudulent practices by illegal votes cast for, and legal votes rejected for both places, was admissible.”
We have again carefully examined all of the testimony of the illegal votes cast for Walnut City and La Crosse. Resolving every reasonable doubt in favor of La Crosse and against Walnut City, it clearly appears that more illegal votes were cast at the election of February 12th, 1878, for LaCrosse, than for Walnut City. If the illegal and fraudulent votes are not counted, Walnut City received a majority of the votes for county seat.
The date of “February 25th, 1878,” as employed in the opinion, is severely criticised. It is said that the court tries to make February 25th, 1878, come before “New Year’s Day, 1878.” An examination of the briefs shows that the defendants contended that McFadden sr. was not a qualified voter on February 12th, 1878. There is sufficient evidence in the record tending to show that McFadden sr., who was a widower, came to Rush county in the summer of 1877, with the intention of locating there; and that his return to Pennsylvania on October 9, 1877, was merely temporary. At least, there is sufficient evidence in the record to show that he was a legal voter at the time of the county-seat election. It was the intention to state in the opinion that the evidence of James Baker was in conflict with the evidence of James McCall, and that he disposed of the latter’s testimony. The date of February 25th, 1878, is not material.
Again, as the vote of McFadden sr. was received and counted by the judges of the election, in the performance of a sworn duty, the presumption arises that his ballot, which was received and deposited in the ballot-box, was a legal vote, until there is evidence to the contrary. (Tarbox v. Sughrue, 36 Kas. 225.) The defendants obtained a subpena for McFadden sr.; they put it in the hands of one of the defendants, the sheriff, for service; it was not’served, nor does the sheriff or any other of the defendants give any reason therefor. It seems to be admitted that McFadden sr. continues to be a resident of Rush county.
Counsel urge that it is a great hardship upon the people of Rush county to have the county-seat question reopened, and to require the officers of the county to hold their offices at Walnut City, a distance from La Crosse of four miles; and appeal to this court, in the exercise of its discretion, to refuse the peremptory writ. It cannot fairly be said that the judgment of this court in this case was the sole cause for the opening up of the county-seat fight, because contention over that matter has been incessant in Rush county for years. The efforts made in various ways to ignore the county-seat question have failed. It is true that the plaintiff states in its application that the officers of Rush county removed their offices to La Crosse in November, 1882. This action was commenced in 1886; therefore, for a time, there was a seeming recognition of La Crosse as the county seat by the officials of the county; but the elections in the county continued to turn upon the question whether La Crosse or Walnut City was rightfully the county seat. “ Banquo’s ghost would not down.” At three different times since February 12, 1878, the friends of La Crosse have presented petitions to the board of county commissioners of Rush county, praying for elections to relocate the county seat. One of these petitions was headed by J. R. Stock, a defendant in this case, and this petition was not presented until October, 1878, after the judgment rendered in the Hammond case. At that time, this defendant and the friends of La Crosse did not understand that the Hammond case ended the controversy over the county seat. According to the briefs of the defendants, filed upon the motion for rehearing, the last election to relocate the county seat was held quite recently.
We have already decided that the statute of limitations cannot be invoked in this case; and as it appears from the testimony that Walnut City was chosen as the seat of justice of Rush county by the majority of the legal votes on February 12, 1878, we cannot, in the absence of sufficient evidence, change the county seat as located by the people, or refuse to compel the defendants to keep their offices where the law requires them so to do. If, however, the people of the county desire the county seat to be changed to La Crosse, the statute offers a complete remedy. Under an election properly called and conducted, if the people of Rush county vote for La Crosse in accordance with the provisions of the statute, the county seat may be taken to that place notwithstanding the election of February 12, 1878. The whole matter is in the hands of the people of Rush county, and to them it is remitted.
In the examination of the questions presented upon the motion for a rehearing, we have given the authorities and the testimony our careful and conscientious attention. We have reached our conclusions only after mature deliberation. We are satisfied with the law as declared in the former opinion, but as this is a “county-seat fight,” if the court could speak with the tongues of angels and with all knowledge, and all prophecy, its decision would not be satisfactory to all the contesting litigants.
The motion will be overruled, and the peremptory writ will issue as heretofore directed.
Johnston, J., dissents. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Shawnee county, by Challes K. Ingham, a citizen, resident tax-payer and elector of the unorganized county of Grant, against John A. Martin, as governor of the state of Kansas, to perpetually enjoin the defendant from the performance of certain acts in the organization of such county. The facts, as set forth in the plaintiff’s petition, are sworn to by him, and a large number of affidavits of other persons in support of such facts are filed with the petition as exhibits thereto. The petition and the exhibits show substantially, and in detail, the following facts: On or about May 9, 1887, in pursuance of the statutes for the organization of new counties, (Gen. Stat. of 1868, ch. 24, p.249, et seq.; Laws of 1872, ch. 106; Comp. Laws of 1885, ch. 24, ¶¶1400 to 1412; Laws of 1886, ch. 90; Laws of 1887, ch. 128;) and upon proper preliminary proceedings had, the defendant, as governor, appointed Thomas J. Jackson as the census-taker, the register of the votes of the electors for the temporary location of the county seat, and the assessor for the said unorganized county of Grant. Immediately afterward Jackson qualified by taking the prescribed oath of office, and proceeded to Grant county, where he did certain work, and afterward, and about August 25, 1887, made his report to the governor. He went into the county of Grant in a state of intoxication, and remained there in a maudlin condition for two weeks, during which time he was incapable of doing any kind of business properly. Upon his entering into the county, he fraudulently, corruptly, and for pay, entered into an arrangement and conspiracy with certain parties to speculate upon the temporary organization of the county by the use of their influence and office. Pursuant to said arrangement, the overture was first made to persons interested in the town of Cincinnati, and it being refused, it was then made to persons interested in the town of Ulysses, and accepted. After this arrangement had been made, Jackson began work. He then moved to Ulysses. He enumerated the names of sixty fictitious persons, and counted them in favor of Ulysses for county seat. He excluded a large number of qualified voters from having their preferences recorded for county seat. This number was sufficiently large to materially affect the result. A large number of voters did vote for Cincinnati for county seat, and he corruptly changed their votes,, and reported them as voting for Ulysses. He announced the -voting closed, by proclamation of the sheriff, and then took votes by night for Ulysses. He took and recorded a large number of votes for Ulysses of persons who pretended to live upon certain described lands, who did not reside there, and whose names and habitations were unknown. He took the votes of a large number of other persons, and recorded them for Ulysses, who were not voters. A large number of voters voting in favor of Ulysses were procured by bribery. Frauds of various kinds were perpetrated during the enumeration, with his knowledge and consent. He was, and continued to be, drunk, indecent, and disgusting. His examinations were carried on in a lascivious and disgraceful manner. He travestied the oath to persons enrolled; and performed many other acts of like nature and character as the above. The petition of the plaintiff also alleges as follows:
“The plaintiff further states that the defendant, John A. Martin, governor, threatens to, and will at once consider and act upon the said report of the census-taker, and will find therefrom that there are at least two thousand and five hundred actual, bona fide inhabitants in the said unorganized county of Grant; that five hundred of them are householders; and that there is at least $150,000 worth of property in excess of legal exemptions, exclusive of railroad property, of which not less than $75,000 worth is real estate; and will appoint three per sons commissioners of said county, one to act as county clerk, and one to act as sheriff; and will designate and declare the town of Ulysses as the place chosen by the greater number of legal voters, to be the temporary county seat of said county of Grant, unless he shall be restrained and prohibited from so doing by the order and injunction of this court.”
The plaintiff also asked for a temporary injunction. Before any hearing was had, however, the governor signed the following stipulation:
“1. I desire that the court shall thoroughly examine into all questions of fraud, partiality, drunkeness, bribery, or unfair dealings, on' the part of the enumerator.
“ 2. I expressly waive any objection as to the capacity of the present plaintiff to bring suit, and at no stage in the proceedings shall this question be suggested by myself.
“3. I do not waive, however, my right to dispute the authority of the court to inquire' into these matters.
John A. Martin, Defendant.”
Afterward, and upon the foregoing petition and affidavits, and upon the plaintiff’s application for a temporary injunction, a hearing was had before the judge of the district court at chambers, and upon such hearing the judge granted the temporary inj unction ■ and to reverse this order, granting the temporary injunction, the defendant, as plaintiff iu error, brings tbe case to this court.
It is claimed in this court, and was also claimed in the court below, that the courts of Kansas have no jurisdiction to hear and determine any case like the one at bar. Indeed, it is claimed that the courts of Kansas have no jurisdiction to hear and determine any controversy that brings into question any act or acts of any member of the executive department of the state, and in Kansas all the state officers are members of the executive department. In Kansas, as elsewhere, there are three great branches or divisions of civil power, which, with some exceptions, are to be exercised by three separate departments: the legislative or the law-making power, the judicial or the law-construing power, and the executive or the law-enforcing power. With some exceptions, the legislative power is vested in the legislature, the judicial power is vested in the courts, and the executive power is vested in an executive department. In Kansas, under the constitution, the executive department is constituted as follows:
“Section 1. The executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor, treasurer, attorney general, and superintendent of public instruction.” (Const., art. 1, §1.)
The governor, however, is at the head of the executive department; for §3, of the same article of the constitution also provides as follows:
“Section 3. The supreme executive power of the state shall be vested in a governor, who shall see that the laws are faithfully executed.”
It is generally supposed that in a republican government all men are subject to the laws, and to the due administration of them, and that no man nor any class of men is exempt. There is no express provision in the constitution, nor in any statute, exempting any member of the executive department, chief or otherwise, from being sued in any of the courts of Kansas, or in any action coming within the jurisdiction of any particular court, civil or criminal, upon contract or upon tort, in quo warranto, habeas corpus, mandamus, or injunction; or from being liable to any process or writ properly issued by any court, as subpoenas, summonses, attachments, and other writs or process ; and if any one of such officers is exempt from all kinds of suits in the courts, and from all kinds of process issued by the courts, it must be because of some hidden or occult implications of the constitution or the statutes, or from some inherent and insuperable barriers founded in the structure of the government itself, and not from the express provisions of the constitution or the statutes. So far as the present case is concerned, however, which is injunction, and another case which is also before us and which we are also considering, which is mcmdamus, it is only necessary for us to consider whether the governor, without reference to the other members of the executive department, is subject to the action of mandamus and injunction, or not. But, in order to properly consider these questions, it is necessary that we should consider many other questions. It might be proper here to state that, so far as the express terms of the constitution and the statutes are concerned, the governor is no more exempt from mandamus or injunction than he is from any other action or proceeding in any of the courts, or than he is from any process, civil or criminal, issued by the courts.
We believe that only four cases can be found in the reports of the supreme court of Kansas in which it has been sought by a judicial determination to control any of the acts of the governor. The first was the case of The State, ex rel., v. Charles Robinson, governor, and the secretary of state, and the treasurer, constituting the board of state canvassers. (1 Kas. 18.) That was an application for a writ of mandamus to compel the board of state canvassers to canvass certain election returns. It does not appear that any question of jurisdiction was raised or thought of in that case, but the court decided the case upon its merits, and refused the writ. The second was the case of In re Cunningham, 14 Kas. 416,in which an application was made for a writ of mandamus to compel the governor, Thomas A. Osborn, to issue a patent for certain lands. It was understood at the time that the governor was willing to issue the patent if the supreme court said that it was his duty to do so, and the only question presented to the court, or decided by it was, whether such was his duty or not. The court held that it was not his duty, and refused the application. The third case was that of The State, ex rel., v. St. John, Governor, 21 Kas. 591. In that case an alternative writ of mandamus was allowed. At first the defendant’s counsel filed an answer disputing the jurisdiction of the court, but afterward the governor, by his counsel, expressly waived all question of jurisdiction, and the governor himself also personally desired that the court should hear and determine the case without reference to any question of jurisdiction, stating that he would obey the decision of the court, whatever it might be. The court heard and determined the case, and awarded a peremptory writ of mandamus; but no such writ was ever issued, as the governor immediately proceeded to act in accordance with the decision of the court, which rendered the writ unnecessary. The fourth case was the case of Wilson v. Price-Raid Aud. Com., composed of the governor, the secretary of state, the auditor, the treasurer, and the attorney general. (31 Kas. 257.) That case was a supposed appeal from the auditing commission to the supreme court. No question of jurisdiction was raised, but the court itself, for inherent defects and want of merits in the case, dismissed the same.
There are a number of cases in which state officers other than the governor have been sued in the courts of Kansas. Two of such cases are the cases of The State, ex rel., v. Robinson, and others, above cited, and Wilson v. Price-Raid Aud. Com., above cited. The other cases are as follows: In the case of The State, ex rel., v. Lawrence, Secretary of State, 3 Kas. 95, an application for a writ of mandamus was made to compel the defendant, as secretary of state, to issue a certificate of election to the relator. The question of the jurisdiction of the court to grant the same was raised, but the court decided in favor of its jurisdiction, and awarded a peremptory writ of mandamus. In the case of The State, ex rel., v. Comm’rs of School Fund, 4 Kas. 261, which board consisted of the state superintendent of public instruction, the secretary of state, and the attorney general, no question of jurisdiction was raised, and the court decided the case upon its merits, and refused to grant the writ of mandamus prayed for. In the case of The State, ex rel., v. Barker, Secretary of State, 4 Kas. 379, no question of jurisdiction was raised, and the court decided the case upon its merits, and awarded a peremptory writ of mandamus to compel the secretary of state to deliver to the relator copies of the recently enacted laws for the purpose that he might publish the same for the state. The case of The State, ex rel., v. Barker, Secretary of State, 4 Kas. 435, is similar to the case last cited, except that in this case it was held that the relator was not entitled to copies of the laws, and the writ of mandamus was refused. In the case of The State v. Anderson, Treas., 5 Kas. 90, an injunction was prayed for against the state treasurer, and the case was decided upon its merits, and it was held that, upon the facts, the plaintiff was not entitled to the injunction. In the case of Graham, Treas., v. Horton, 6 Kas. 343, an injunction was allowed in favor of Horton and against the state treasurer. In the case of The State, ex rel., v. Thoman, Auditor, 10 Kas. 191, a peremptory writ of mandamus was allowed against the auditor. The case of Prouty v. Stover, Lieut. Governor, 11 Kas. 235, was tried upon its merits without any question of jurisdiction being raised, and the writ of mandamus prayed for was refused. The case of Martin v. Francis, Treas., 13 Kas. 220, was decided upon its merits without any question being raised with respect to the jurisdiction of the court-, and the writ of mandamus prayed for was refused. In the case of Francis, Treas., v. A. T. & S. F. Rld. Co., 19 Kas. 303, an injunction was allowed by the district court against the state treasurer, and the supreme court heard the case upon its merits without reference to any question of jurisdiction, and decided that upon the facts of the case, the railroad company, which was the plaintiff below, was not entitled to such injunction. In the case of The State, ex rel., v. Francis, Treas., 23 Kas. 495, a peremptory writ of mandamus was allowed against the treasurer. In the case of Crans v. Francis, Treas., 24 Kas. 750, mandamus against the treasurer was in effect sustained. In the case of The State, ex rel., v. Francis, Treas., 26 Kas. 724, injunction against the state treasurer was sustained. In the case of the A. T. & S. F. Rld. Co. v. Howe, Treas., 32 Kas. 737, injunction against the state treasurer was also sustained.
It would seem that the question as to whether the courts of Kansas may control any of the acts of the governor, or not, is still an open one. The question, however, whether the courts of Kansas may control any of the acts of the other members of the executive department, or not, would seem from the general practice of the bench and bar, and from the actual decisions of the courts, to have been settled in the affirmative. Of course this general practice and these decisions with rela tion to the other members of the executive department do not necessarily control with reference to the governor, for there is some room under §§ 1 and 3 of article 1 of the constitution, above quoted, for a distinction to be made between the acts of the governor and the acts of the other members of the executive department; for while the executive department consists of the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, and superintendent of public instruction, yet the governor is the supreme head thereof. In 1 the other states there is a great conflict of authority as to whether any of the acts of the governor may be subject to judicial control, or not. Upon the affirmative of this question the following, among other cases, are cited: Tenn. &c. Rld. Co. v. Moore, Governor, (mandamus,) 36 Ala. 371; Middleton, v. Low, Governor, (mandamus,) 30 Cal. 596; Harpending v. Haight, Governor, (mandamus,) 39 id. 189; Wright, Governor, v. Nelson, (mandamus,) 6 Ind. 496; Baker, Governor, v. Kirk, (mandamus,) 33 id. 517; Gray, Governor, v. The State, (mandamus,) 72 id. 567; Magruder v. Swann, Governor, (mandamus,) 25 Md. 173; Groome, Governor, v. Gwinn, (mandamus,) 43 id. 572; Chamberlain v. Sibley, Governor, (mandamus,) 4 Minn. 309; Chumasero v. Potts, Governor, (mandamus,) 2 Mont. 242; Wall v. Blasdel, Governor, (mandamus}) 4 Nev. 241; Cotten v. (Ellis, Governor, (mandamus,) 7 Jones (N. C.)'Law, 545; The State v. Chase, Governor, (mandamus,) 5 Ohio St. 528. A vast number of cases might be cited where the courts have held that the official acts of the members of the executive department other than the governor may be controlled by judicial determination. Upon the negative of the above question, the following cases are cited: Hawkins v. The Governor, (mandamus,) 1 Ark. 570; The State, ex rel., v. Drew, Governor, (mandamus}) 17 Fla. 67; Low v. Towns, Governor, (mandamus,) 8 Ga. 360; The People, ex rel., v. Bissell, Governor, (mandamus,) 19 Ill. 229; The People, ex rel., v. Yates, Governor, (mandamus,) 40 id. 126; The People, ex rel., v. Cullom, Governor, (mandamus,) 100 id. 472; The State v. Warmouth, Governor, (mandamus,) 22 La. An. 1; Dennet, Petitioner, v. The Governor, (manda mus,) 32 Me. 508; The People v. The Governor, (mandamus,) 29 Mich. 320; Rice v. Austin, Governor, (mandamus,) 19 Minn. 103; Western Rld. Co. v. De Graff, (mandamus,) 27 Minn. 1; Vicksburg Rld. Co. v. Lowry, Governor, (mandamus,) 61 Miss. 102; The State v. The Governor, (mandamus,) 39 Mo. 388; The State v. Price, Governor, (mandamus,) 1 Dutcher (N. J.), 331; Hartranft’s Appeal, (contempt,) 85 Pa. St. 433; Mauran v. Smith, Governor, (mandamus,) 8 R. I. 192; Turnpike Co. v. Brown, Governor, (mandamus,) 8 Baxt. (Tenn.) 490.
There are other cases cited which hold that none of the acts of any of the officers belonging to the executive department can be controlled by the courts, among which cases are the following: The People v. Hatch, Secretary of State, (mandamus,) 33 Ill. 9; The State, ex rel., v. Deslonde, Secretary of State, (mandamus,) 27 La. An. 71; The State, ex rel., v. Dike, (mandamus,) 20 Minn. 363; The State, ex rel., v. Whitcomb, Auditor, (mandamus,) 28 id.. 50; Secombe v. Kittelson, (injunction,) 29 id. 555; H. T. & B. Rld. Co. v. Randolph, Treasurer, (mandavius,) 24 Tex. 317; Bledsoe, Comptroller, v. International Rld. Co., (mandamus,) 40 id. 537; G. B. & C. N. Rly. Co. v. Gross, Comm’r, (mandamus,) 47 id. 428; Chalk v. Darden, Comptroller, (mandamus,) 47 id. 438. The principal ground upon which these last-cited cases were decided, is that the officers against whom the court was asked to entertain jurisdiction were members of the executive department, the same as the governor, though not at the head as he is, and therefore that as the acts of the governor, in their opinion, could not be controlled by the courts, because he is a member of the executive department, neither can the acts of any other officer of the executive department be so controlled. This same kind of reasoning, however, is used by the supreme court of California to prove that the acts of the governor in some instances may be controlled by the courts. (Harpending v. Haight, Governor, 39 Cal. 189.) In this case it is said in substance, that if it be conceded that the governor, because he is the chief of the executive department, may for that reason be allowed to enjoy an absolute-immunity from all judicial process, even when his duty in the given instance is only ministerial, and in a case where a citizen has a vested right to have such duty performed, then the same exemption from judicial process may be set up by any one of the other officers of the executive department; but it is held in that case that the other members of the executive department could not effectively interpose any such exemption, and therefore that the governor could not. It would therefore seem from two classes of decisions, that the courts must hold, either that the courts may control some of the official acts of all the members of the executive department, including the governor, or that they cannot control any of the official acts of any one of such officers. In this state it has already been held that some of the official acts of some of the members of the executive department may be controlled by the courts, and therefore, if the above reasoning is sound, it would follow that some of the official acts of the governor might also be controlled by the courts. It would be proper here to say, that no court ever attempts, by either injunction or mandamus, or by any other action or proceeding, to control legislative, judicial, executive, or political discretion; and never indeed attempts to control any purely legislative, judicial, or executive act of any kind, nor pure discretion of any kind, except when a superior court on appeal reviews a decision of an inferior court; and courts do not generally interfere by injunction or mandamus where another plain and adequate remedy exists. The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus, are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. Hence many of the above-cited cases wherein it is said that the acts of executive officers of the state could not in the particular instance under consideration be controlled by the courts, are not in conflict with those decisions which hold otherwise; for many of such cases were decided upon the theory that the court was asked to control executive or political action, or discretion of some kind. If we should deduct all the cases decided upon the theory that the court was asked to control executive, political, or discretionary action, and not consider any of the dicta of such cases, and thereby leave only such cases as necessarily included a decision, (not dictum,) and decided that the courts could not in any case control any act to be performed by the governor, the weight of judicial authority would probably be that the courts may control any mere ministerial act to be performed by the governor.
The decisions holding that the courts cannot control any of the acts of the governor are based, upon many different kinds of reasons. Some of such decisions, like the one in the case of Hawkins v. The Governor, 5 Ark. 570, and the one in the case of The State v. Price, Governor, 1 Dutcher (N. J.), 331, are based upon the theory that all duties imposed upon the governor by the constitution are strictly and exclusively executive or political, and not ministerial, and therefore that the courts cannot interfere with the performance or non-performance by the governor of such duties. There are other decisions, like the one in the case of Turnpike Co. v. Brown, 8 Baxt. (Tenn.) 490, and the one in the case of The State, ex rel., v. Drew, Governor, 17 Fla. 67, which extend this principle, and hold that all duties imposed upon the governor by either the constitution or the statutes must necessarily be executive or political, and not merely ministerial; and this upon the theory that the mere act of conferring duties upon the governor, whatever their inherent natures or essences may be, renders them executive or political. It is said that when they are conferred upon the governor instead of upon some inferior officer, they are so conferred because, iii the opinion of the law-making power, founded presumptively upon sufficient reasons, the duties themselves, properly and peculiarly, if not necessarily, belong to the executive department, and that they are conferred upon the governor because of his superior judgment, discretion, sense of responsibility, and fitness; and therefore it is claimed that these duties must necessarily be executive or political, and not merely ministerial, whatever they may be in the r inherent and essential characteristics. If this were true when the duties arc conferred upon the chief of the executive department, why would it not also be true when such duties are conferred upon any other member of the executive department? Is not any particular power substantially the same wherever it may be placed? Judicial power in the hands of a justice of the peace is substantially the same as it is when placed in the hands of a supreme court. It may be admitted, however, that with respect to some duties, and even with respect to some ministerial duties, a transformation might take place if such duties were transferred from an inferior officer and placed in the hands of the highest executive officer; for some ministerial duties embody within their confines slight elements of judgment and discretion; but can this be true with respect to all ministerial duties? Suppose that such duties in their very natures and essences are nothing more than the purest of ministerial duties, with no elements of judgment or discretion in them, and not in any manner connected with any legislative, judicial, or executive duty, and are such duties only as could be conferred upon any other citizen of the state of Kansas : then why should they be considered as being transformed into executive or political duties by being conferred upon the governor? Would they'not still be ministerial duties? The conferring of pure ministerial duties like the above mentioned upon the courts or the judges of courts, never transforms them into judicial duties; and although mandamus will not lie to review or control judicial determination or discretion, yet it will lie to control any pure ministerial act of the courts or the judges thereof. (Duffitt v. Crozier, Judge, 30 Kas. 150; High Ex. Rem., §230, et seq.) Many years ago, Chief Justice Marshall, in the case of Marburg v. Madison, 1 Cranch, 64, said:
“It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the pro priety or impropriety of issuing a mandamus is to be determined,”.
, And" such is-the rule in all cases, unless the courts are required to make an exception in favor of the governor. In -Ml other cases it is not the rank or character of the individual officer, but the nature of the thing to be done, which governs. No other officer is above the law; and every other officer, to whatever department he may belong, may be compelled to perform a purely ministerial duty. The objection oftenest urged against the court’s exercising control over any of the acts of the governor is, that the three departments of government, the legislative, the judicial, and the executive, are separate and distinct, and that each is equal to, coordinate with, and wholly independent of, the other. Now it is true, with some exceptions, that the legislature cannot exercise judicial or executive power, that the courts cannot exercise legislative or executive power, and that the executive department cannot exercise legislative or judicial power; but it is not true that they are entirely separate from each other or independent of each other, or that one of them may not in some instances control one of the others. The most of the jurisdiction possessed by the courts depends entirely upon the acts of the legislature, and the entire procedure of the courts, civil and criminal, is prescribed by the legislature. Nearly all the duties of the governor are imposed upon him by the legislature. The legislature may also impeach the governor, or any other state or judicial officer mentioned in the constitution. The courts may construe all the, acts of the legislature, whether such acts have been signed by the governor or not, and may determine whether they are in contravention of the constitution or not, and if believed to be in contravention of the constitution, may hold them void. The courts may also determine that a supposed member of the legislature is not a member at all, because he represents no district; and may also determine that the legislature cannot consist of more than a certain number of members. (Prouty v. Stover, Lieut. Governor, 11 Kas. 235; The State, ex rel., v. Tomlinson, 20 id. 692; The State, exrel.,v. Francis, Treas., 26 id. 724.) The courts may also pass upon the validity of the acts of the governor. (The State v. Ford County, 12 Kas. 441.) It is also believed that the courts have the power to require the governor to attend a trial as a witness; and if so, then have they not the further power to imprison him for contempt if he disobeys ? And if so, would not the courts then interfere with his ability to perform his executive duties ? In such a case the state might have to rely upon the lieutenant governor. No act of the legislature can become a law unless it is presented to the governor for his signature and approval. The governor may also convene the legislature whenever he chooses. Also, the legislature and the courts are able to perform their respective duties unmolested, ' because of the known power of the governor to call out the militia to aid and protect them in doing so, if necessary. It will be seen from the foregoing that the different departments of the government are not independent of each other. The power last mentioned, however, is also invoked as an argument against the court’s attempting to control any act or acts of the governor. It is said that if the governor opposes the order or judgment of the court, it cannot be enforced; for it is said that he has the entire control of the militia. But are the courts to anticipate that th^00h!nior may not perform his duties? Should not the i.ourts rather presume that when a controversy is determined by the courts — the only tribunals authorized by the constitution or the statutes to construe the laws, and to determine controversies by way of judicial determination — the governor, as the chief executive officer of the state, would see that such determination should be carried inte full effect ? Such would be his duty, and no one should su pose that ho would fail to perform his duty, when his duty made manifest by a judicial determination of the courts. N department should ever cease to perform its functions for fear chat_ pome^other department might render its acts nugatory, or fo>- fea: that its acts might in some manner affect the conduct or stat is of some other department. Each department ought to do what is right within its own sphere, and presume that the other departments will do the same. The legislature is not bound to refrain from passing laws affecting the duties of the executive department, whether the governor approves them or not. The legislature may pass laws over the governor’s veto, and this for the government of the executive department; and the legislature is not bound to anticipate that the governor might refuse to enforce such laws. Each department should scrupulously perform the duties peculiarly intrusted to its own department, without reference to how the same might affect the other departments. Besides, if this argument from the governor’s control of the militia were carried to its full extent, it would prevent any court from ever issuing any subpoena or any other writ or process to the governor, or from ever arresting him or ordering his arrest for any' assault and battery, or for anything else, because the governor might in any such case refuse to obey the writ or the order of the court, and. might call on the militia to assist him in his resistance.
Perhaps we should say something further with respect to the claim that the three great branches of the government, the legislative, the judicial, and the executive, are coequal and -coordinate, and that one cannot control or direct the others. This may be. true to sod^^j^tent, and yet, as we have already seen, it is not true in many cases. For the purpose of passing Jaws the legislature is supreme, and the other departments must obey. For the purpose of construing the laws, and of determining controversies, the courts ar^supreme, and the other departments must obey. And for the purpose of ultimately enforcing the laws the executive department is supreme, and he other departments must obey. But the executive departnent can enforce the statutory laws only as the legislature ías enacted them, and where the courts have construed the laws (statutory or constitutional) in the determination of controversies, the executive department can enforce th^mjmly as thus construed, and is bound to see that the laws a$ thus construed, and the judgments and orders of the courts rendered or made in the determination of controversies, are resjpected and obeyed. And will not tbe executive department do it ? Will it refuse in any instance ? It will thus be seen that while each of the different departments of the government is superior to the others in some respects, yet that each is inferior to the others in other respects; and it is always difficult to compare things which are wholly unlike each other, or to call them equal. Each department in its own sphere is supreme. But each outside of its own sphere is weak and must obey. It will be readily admitted that the courts cannot control any executive act of the governor, or any executive power conferred upon him. But may they not control ministerial power wherever placed ? Is not ministerial power always inferior to judicial power, and subject to judicial control ? The recipient of ministerial power exercises no judgment, no discretion, but is simply bound to obey the law under a given state of facts; and to construe this law and to ascertain these facts are peculiarly within the province of the courts. If an applicant for relief on the ground of the refusal to exercise or the wrongful exercise of ministerial power by the governor has no remedy in the courts, then he has no remedy at all. The remedy of impeachment, and the remedy of subsequent elections, suggested by some of the courts, may be a remedy to the public in general, but it cannot be a remedy to an individual sufferer for injuries or loss in person or to his property. In the ease of Marbury v. Madison, 1 Cranch, 58, Chief Justice Marshall uses the following language:
“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”
And further on in the same case, page 61, after stating that the courts cannot control executive discretion, the great chief justice uses the following language:
“ But when the legislature proceeds to impose on that officer [the secretary of state of the United States] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the perform anee of those acts, he is, so far, the officer of the law; is amenable to the laws for his conduct, and cannot at his discretion sport away the vested rights of others.”
In the case of the Term. &c. Rld. Co. v. Moore, 36 Ala. 382, the following language is used:
“All this is but the result of the just and wholesome principle that no public functionary, whatever his official rank, is above the law, or will be permitted to violate its express command with impunity. While, therefore, it is true that, in regard to many of the duties which belong to his office the governor has, from the very nature of the authority, a discretion which the courts cannot control, yet, in reference to mere ministerial duties imposed upon him by statute, which might have been devolved on another officer if the legislature had seen' fit, and on the performance of which some specific private right depends, he may be made amenable to the compulsory process of the proper court by mandamus.”
In the case of Ferguson v. Earl of Kinnoull, 9 Clark & Fin. 290, Lord Brougham uses the following language: “But where the law neither confers judicial power nor any discretion at all, but requires certain things to be done, every body, whatever be its name, and whatever other functions of a judicial or of a discretionary nature it may have, is bound to obey.” Of course we should always presume that the'governor intends to do his duty, but he may be mistaken as to the law, or he may not be sufficiently advised as to the facts upon which the applicant for relief founds his right thereto, and there is no way prescribed by law by which issues can be made up and tried before the governor as issues are made up and tried before the courts. The courts are created for the express purpose of trying controversies, while the other departments and ministerial officers are not.
It is also claimed that if the courts may control the ministerial acts of the governor, and may also determine which are ministerial acts and which not, then that the courts may determine everything, and obtain complete control over the entire executive department, including the governor. It must be remembered, however, that all controversies must be determined somewhere, and that the courts are the only tribunals created by the constitution and the laws for the special purpose of construing the constitution and the laws, and of determining controversies between parties, and the power to determine whether a given power is a purely ministerial power, or not, and whether an applicant for relief in any particular. case has a right to such relief under the law creating such power, or not, comes particularly within the province of the-courts. And a determination in such a case is purely judicial,, and is one of the things for which courts were created, and they could not refuse their aid in such cases without so far wholly abandoning their duties and abdicating their jurisdiction.
As to the question whether the courts may control the ministerial acts of the governor, many of the cases cited for the purpose of showing that they cannot, are not applicable, for no such question was involved in the facts of such cases. For instance: In the case of the Vicksburg Rld. Co. v. Lowry, Governor, 61 Miss. 102, a writ of mandamus was prayed for only as against the state treasurer, and no relief of any kind was sought as against the governor. In the case of Low v. Towns, Governor, 8 Ga. 372, the following language is used:
“If, as has already been remarked, it was competent for the legislature to impose this ministerial duty of issuing a commission to a clerk, on the executive officer of the government, wholly independent of, and in addition to, the other functions devolved upon that officer by the constitution, why may he not, when the performance of this ministerial act, so required by law, is essential to the completion and enjoyment of individual rights, be considered, quoad hoe, not as an executive, but as a merely ministerial officer, and therefore liable to be directed and compelled to perform the act by mandamus ? Viewed as strictly a legal question, we cannot offer any satisfactory reason why he should not, according to the general principles of the law.”
The writ of mandamus asked for in that case was refused because of the want of necessary facts to entitle the relator to it. In the case of The People v. The Governor, 29 Mich. 320, 322, 324, an application was made for a writ of mandamus to compel the governor to issue a certain certificate when he should be satisfied that certain work had been done in conformity with the law. In that case the following language is used in the opinion of the court:
“ If we concede that cases may be pointed out in which it is manifest that the governor is left to no discretion, the present is certainly not among them, for here, by the law, he is required to judge, on a personal inspection of the work, and must give his certificate on his own judgment, and. not on that of any other person, officer, or department.”
In the case of Hartranft’s Appeal, 85 Pa. St. 433, it was sought to compel the governor to disclose state secrets belonging only to the political department of the government. In the case of The State v. Price, Governor, 1 Dutcher (N. J.), 331, 343, 344, 348, a writ of mandamus was asked for to compel the governor to issue a commission to the relator, but there was no showing made that the relator had ever demanded such commission, or that the governor had ever refused the same, and the court held “that the applicant, upon the facts disclosed, is not entitled to the relief sought for,” and also held that the court was “asked to direct the commission to be issued in direct conflict with the plain requirements of the act,” which of course could not be done. In the case of Mauran v. Smith, Governor, 8 R. I. 192, 222, it was rightly held that whether the court had jurisdiction over any act of the governor, or not, still that, upon the facts of that case, the relator was not entitled to the relief sought. These cases are given merely as illustrations of the inapplicability of many of the cases cited to show that the courts have no jurisdiction to control a ministerial act to be performed by the governor. On the other side, what is said in the case of Chamberlain v. Sibley, 4 Minn. 309, as to the power of the courts to control ministerial acts of the governor, is only dictum.
Upon the whole, however, if all the cases cited, except such as necessarily included the question whether the courts may in any case control the ministerial acts of the governor, be excluded, and if only such cases as include the above question be considered, then not only reason, but the weight of authority, we think, will be found in favor of the affirmative of the question. And certainly as to all the executive .. officers except the governor, the great weight of authority, state and federal, is in favor of the theory that ministerial acts to be performed by an executive officer may be controlled by the judiciary. If wc are correct in oar conclusions, then we have jurisdiction to hear and de!/ termine the present case upon its merits. We have jurisdiction to determine whether the acts of the governor sought to be controlled in the present instance are ministerial acts, or acts of some other kind or character; and we have jurisdiction to determine whether the facts of the present ease authorize the relief sought.
We are really, however, considering two cases. The first presents to us the question whether the judge of the district court at chambers erred or not in granting a preliminary or temporary injunction, an injunction pendente lite. The other case is mandamus, brought originally in this court, and it is submitted to us upon a motion to quash the alternative writ; and the question presented is whether the alternative writ states facts sufficient to constitute a cause of action in mandamus, and within the jurisdiction of this court. It will therefore be seen that- after deciding that we have jurisdiction of such cases, any further decision in either case will only be a decision of a preliminary or interlocutory character. After deciding that we have jurisdiction, then the remaining questions to be determined are whether the acts of the governor, in the organization of new counties, are ministerial, or not, and whether the facts stated in either case are sufficient to authorize the relief sought. In the case of The State, ex rel., v. Comm’rs of Ford Co., 12 Kas. 441, 445, decided at the January term of this court in 1874, it was held that the acts of the governor in the organization of new counties, under the statutes as they then existed, were min- ^ J 7 isterial. Since that time the statutes have been materially changed in several particulars. The following provisions are new, and they are now in force:
“ Sec. 3. That whenever the governor may have any reason to believe that said memorial, affidavits, in the census enumeration or petition, or any of the proceedings required in /section one of this act, are incorrect, fraudulent, or untrue, he is authorized and required to delay or refuse to issue his proclamation, and to institute an investigation by sending three disinterested householders of this state into such unorganized county, to ascertain the truth or falsity of such petition, memorial, census, or affidavits, and to order the attorney general to commence proceedings in the name of the state against any person or persons who may be guilty of violating any of the provisions of this act, or of any and all persons who may conspire together to fraudulently organize any county under this act.” (Laws of 1876, ch. 63, §3; Comp. Laws of 1885, ¶ 1402.)
“The census-taker shall register upon said duplicate schedules opposite the name of each legal voter his election for temporary location of county seat, which shall be taken by the governor as the definite expression of said voter, unless there shall be evidence before him, that 'said, list has been tampered with and changed.” (Laws of 1887, ch. 128, § 1.)
Now, while many of the duties imposed upon the governor in the organization of new counties, and possibly all of them except certain ones prescribed by the new provisions above quoted, are still ministerial, yet some of those 'duties prescribed by these new provisions are certainly not ministerial. Some of them relate to the investigation of supposed frauds, and precisely that kind of frauds which we are now a^ked to investigate in the injunction case; and clearly such duties are not ministerial. Hence, as some of the duties imposed \upon the governor in the organization of new counties are ministerial and some of them not, and as the courts will not 'by mandamus or injunction control any of the acts of officers except such as are purely ministerial, and will not control even them when any other plain and adequate remedy exists, it fol^lows that it must be shown clearly and conclusively iu the particular case, that the acts of the governor sought to be controlled are not only purely ministerial acts, but also that no other plain and adequate remedy exists. Also, as we have already stated, all presumptions are in favor of the good faith and honesty of the governor. It will not only be presumed that he has in the past performed honestly and faithfully all his duties, but it will also be presumed that he will in the future honestly and faithfully perform the same; and these presumptions will continue until it is clearly, conclusively and affirmatively shown otherwise; and in favor of the chief executive officer of the state these presumptions should be considered as of the strongest character, indeed much stronger than any kindred presumptions in favor of inferior officers. These new provisions will not only affect the action of the governor in many cases, but may also affect the action of the courts in particular cases. Whenever, in the organization of new counties, the governor delays to act upon the return or report of the census-taker, it must be presumed that some complaint or notice of fraud or illegality has been brought to the attention of the governor, and that he delays action for the purpose that an investigation may be had; and the courts should not by mandamus or otherwise require the governor to act until it is affirmatively alleged and shown that no sufficient reason exists for such delay. No allegation of this kind is t>e in the alternative writ of mandamus, ju present mandamus case, and hence the alternative writ is defective and insufficient. Also, when the governor is about to act upon the return or report of the census-taker, it must be presumed that no complaint or notice of fraud or other illegality worthy of attention has been brought to the attention of the governor; and before the courts should attempt to restrain the governor from acting upon such return or report, it should be affirmatively alleged and shown that a complaint of fraud or other illegality worthy of notice had been actually brought to the attention of the governor, and that he then disregarded and ignored such complaint. Also, as a general rule, all persons, in cases of fraud or other illegality in the organization of new counties, have a plain and adequate remedy by resorting to the investigation provided for in said §3, above quoted. If complaints of fraud or illegality have been made, an investigation may be had at once under that section, and in the investigation that ensues, all parties have a plain and adequate remedy. In the present mandamus case no allegation is made that no complaints of fraud or illegality were brought to the attention of the governor, or that the governor is not delaying for the purpose that an investigation may be had; hence for this reason the alternative writ is insufficient. In the injunction case, no allegation is made that any fraud or illegality or even irregularity of any kind has ever been brought to the attention of the governor, or that he would fail to regard the same if it were brought to his attention; hence the petition for the injunction is insufficient for that reason. If the fraud and . other irregularities alleged in the petition in the injunction case had been brought to the attention of the governor, and he asked to inaugurate an investigation of the same under said §3, he would undoubtedly have done so. At least it must be so presumed in the absence of allegations and proof to the contrary. Before parties can resort to the courts for a mandamus or an injunction, they must exhaust their other remedies, provided their other remedies are plain and adequate. This the plaintiffs in thé two cases which we are now considering have failed to do. They have wholly ignored a plain and adequate remedy.
The motion to quash the alternative writ of mandamus will be sustained, and the order of the judge of the court below granting a temporary injunction will be reversed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This action was brought to recover damages for the erection of a mill-dam in the Saline river at a point some six miles below the mill of the plaintiff, and to enjoin its maintenance at such a height as to cause the water to back up upon the mill of the plaintiff. Plaintiff alleged that he was and is the owner of a mill on the Saline river, and that in 1883 the defendant erected a mill on said stream some six miles below plaintiff's mill, and raised the dam to such a height that it caused the water in said stream to back up and upon the mill and wheel of his mill, to his damage in the sum of one thousand dollars. The defendant answered by a general denial. The defendant now complains of many rulings of the trial court, and of its instructions to the jury; but as this decision on the instructions will require a reversal of the action, we shall not consider the other rulings and errors alleged by the plaintiff in error. At the trial the plaintiff produced H. G. Johnston and E. M. Rossifer, and the defendant produced J. L. Reese and C. R. Underwood, who were presented and examined as expert witnesses, and as such witnesses they gave their observations of the stream between the two dams; their measurements, and the appearance of the surface of the water; its velocity; the appearance of back-water, and the cause of the same, and the level between the two dams, and the effect of defendant’s dam upon the water just below the plaintiff’s mill. The court then permitted them to give their opinions as to whether or not the erection of the dam by the defendant caused the water to back so as to obstruct the mill of the plaintiff, and each of these witnesses except Johnston, gave it as his opinion that the erection of said dam did not have that effect. These witnesses were shown to be competent to testify as experts. Underwood was a practical engineer and surveyor, and had been for many years engaged in operating a water mill; was familiar with the Saline river; had owned and operated a mill upon said stream, and was well acquainted with the mills of the plaintiff and defendant. Reese was a practical miller, who for a number of years had operated a water mill upon the Saline river within a few miles of the plaintiff’s mill, and who, both before and after the construction of the defendant’s mill, was well acquainted with the said river. Rossiter was shown to be an experienced engineer, and had had experience in the construction of water-ways. Upon this testimony so given the court gave the jury the following, instruction:
“The court has permitted various witnesses to give their opinions as to whether or not there was back-water near plaintiff’s mill. The jury will give such testimony such weight as they think it entitled to. You will consider whether such opinions were justified by the facts upon which they were based; what opportunities they had to be informed of the facts, and how competent they were to form correct opinions upon that question. If you think the reason anyone has given for his opinion is not good, you should not take it. And with reference to all such testimony, I say, you are not bound to take the opinion of any witness upon the question of back-water. It is your own opinion upon the matter, and the conclusion you draw from the facts proven, that should determine your verdict, and not what any other person says or thinks.”
If such evidence is competent in cases of this kind, then the above instruction was erroneous. The court said, “It is your own opinion upon the matter, and the conclusion you draw from the facts proven, that should determine your verdict, and not what any other person says or thinks.” If the jury were to determine from the facts proven, and not from what any person said or thought, they would have to exclude the opinion of these witnesses. It was competent for the jury in connection with the facts to consider the testimony of these experts; they were not obliged to take the opinion of any one or all of them; they were to weigh their testimony in the light of surrounding circumstances, as the testimony of the other witnesses, and when so weighed to give it such consideration as in their judgment it was entitled to. The plaintiff, however, insists that expert testimony was not competent, and that therefore the instruction of the court was proper. The fact to be determined was, whether or not by the erection of the dam by the defendant, back-water was caused at the mill of the plaintiff so as to obstruct his wheel. The evidence discloses that a short distance below the plaintiffs mill there had been a land-slide, which had narrowed the channel of the stream; and one of the questions to be determined was what effect this narrowing of the channel would have upon the water immediately above the land-slide and below the dam of the plaintiff; and for this purpose experts were called to give their opinions. We think this was competent; it was the testimony of persons having a peculiar knowledge, and who, by their business and observation, had become better fitted to testify in relation thereto. Perhaps any person might be able to say what the appearance of the water was just below the mill, and that it appeared to be back-water; but without a careful study and examination of the stream, and a study of the currents, they would not be able to say what caused this apparent back-water. In Grigsby v. Water Co., 40 Cal. 405, the court said:
“The testimony of Brown as an expert ought to have been admitted. No objection was made to his competency, and nothing is better established than the proposition that this kind of evidence is admissible as to the effect of obstructions in causing back-water. Ordinarily, it is true, witnesses testify only as to facts, leaving it to the jury to draw their conclusions; but upon matters of science, and questions requiring peculiar skill, an exception is made.”
(See also Hammond v. Woodman, 41 Me. 178; Walker v. The State, 58 Ala. 393; Blood v. Light, 31 Cal. 115; Clason v. City of Milwaukee, 30 Wis. 316.)
The testimony of expert witnesses, this court has repeatedly held, must be considered like all other testimony; it must be tried by the same tests, and receive just such weight as the witness is entitled to, in connection with all the circumstances of the case. (See A. T. & S. F. Rld. Co. v. Thul, 32 Kas. 255; Shellabarger v. Nafus, 15 id. 547.) From these authorities it will clearly appear that the instruction of the court is erroneous.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by L. E. Morse against the St. Louis & San Francisco Railway Com- ■ pany, to recover the sum of $499. The issues were made- up between the parties by the defendant’s filing its answer to the plaintiff’s petition on August 8, 1885. The record then shows, among other things, as follows:
• “Afterward, and on the 18th day of December, 1885, said cause was regularly called for trial; a jury was duly impaneled and sworn, and took their seats in the jury box; and thereupon the plaintiff by her attorneys moved the court, orally, to suppress the deposition of John O’Leary, taken at Oswego, Kansas, on the 10th day of December, 1885, for the reason and only reason that said deposition was taken during the term of court at which said case stood for trial. In support of the motion it was conceded that a notice in due form was served on the plaintiff on the 8th day of December, 1885, to take the deposition on the 10th day of December, 1885. It was further admitted that the notice was in every way regular and allowed the plaintiff sufficient time as provided by statute; and it was further admitted that on the second day of December this case was, by the consent of both parties, set down for trial on the 11th day of December, 1885. It was further admitted that by the usual route of travel plaintiff after the service of said notice could have had one whole day for preparation, and could have reached the place where said deposition was taken at the time named in the notice. It was further admitted that if the deposition had been completed on the 10th day of December, it could have reached this court by the usual course of mail before five o’clock p. m. of the 11th of December. It was further conceded that the deposition did reach the court on the 11th day of December.”
It is further shown by the defendant in substance that the defendant’s counsel did not know of the witness O’Leary or his evidence until after the case had been set for trial. The record then shows, among other things, as follows:
“And thereupon the court suppressed said deposition and refused to allow the same read to the jury, to which ruling and decision the defendant excepted. It was admitted by the court and counsel for the plaintiff that the deposition was both material and important for the defendant, and thereupon the defendant moved for a continuance1 of said cause for the reason that said deposition was suppressed, which motion the court sustained on condition that the defendant would pay the costs of the case, which would have aggregated at that time about $75. The defendant refused to pay these costs and to accept- the terms imposed, and thereupon its application for a continuance was overruled, and the trial ordered to proceed, to all of which the defendant duly excepted at the time.”
The following sections of the civil code have application to this case, to wit:
“Sec. 361. Every deposition intended to be read in evidence on the trial, must be filed at least one day before the day of trial.”
“Sec. 363. Exceptions to depositions shall be in writing, specifying the grounds of objection, and filed with the papers in the cause.
“Sec. 364. No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.”
Unquestionably the court below erred in suppressing the deposition in this case, as it did, for the. “only reason that said deposition was taken during the term of court at which said case stood for trial.” (Northrup v. Hottenstein, just decided.) There is no statutory limitation with respect to the time within which depositions must be taken or filed, except that they “ must be filed at least one day before the day of trial.” (Civil Code, §361.)
The court also erred in entertaining the oral motion of the plaintiff below to suppress the deposition. (Civil Code, § 363.) And the plaintiff in error, defendant below, claims that the court below also erred in entertaining the plaintiff’s motion made to suppress the deposition after the jury had been impaneled and sworn. The plaintiff in error claims that a trial is commenced when the court and the parties commence to impanel the jury; that then the real contest begins; and this for the reason that the parties then examine and cross-examine the jurors upon their voir dire to ascertain their competency, and to know whether to challenge any of the jurors either for cause or peremptorily. We shall not decide this question. It would be well, however, if in cases of this kind such were the law as counsel for plaintiff in error claims, but ordinarily the word “trial” has a more limited signification.
For errors above mentioned, the judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This case has been in this court before, (Docking v. Frazell, 34 Kas. 29,) when it was decided upon the testimony brought here then, that the building in question, used as a hotel, was presumed to be real estate. Upon the re-trial of the cause after reversal here, the same question was again presented to the district court, but the testimony offered to establish whether it was real estate or personal property was much more voluminous in this trial than in the former one, and many of the doubts expressed in the opinion of Mr. Justice 'Valentine were solved by the testimony presented.
The plaintiff in error, plaintiff below, complains of the judgment rendered against him for costs in his action for forcible entry and detainer, and claims that the court erred in several matters on the trial. We shall not notice his assignments of errors specifically, but will simply determine whether the findings of fact were sufficient to authorize the conclusions of law and the judgment. The statement of this case in 34 Kas. is referred to as a part of the statement in this opinion. Upon the retrial it was found by the court:
“1. On the 27th of April, 1880, H. A. Keeler being then the owner of lots one and two, in block forty-three, of the Clay Center town site, in Clay county, Kansas, executed, acknowledged and delivered to one A. S. Pierce, a lease of said lots for a term of five years, beginning May 1st, 1880, and ending May 1st, 1885; the premises were at that time vacant and unoccupied. In this lease it was agreed, among other things, that the lots should be occupied by buildings for business purposes, and that the buildings should be removed by the lessee at the end of the term; this lease was duly filed for record April 27th, 1880, and recorded among the real-estate records of Clay county. Immediately afterward, said Pierce placed upon lot one the building which was afterward known as the ‘ Eagle Hotel.’ The building was moved on the lot from another lot in the same city. Afterward, on August 14th, 1880, A. S. Pierce executed, acknowledged and delivered to Frank Piquerez a written instrument embodying an assignment of said lease as to a part of lot one, forty feet by one hundred and forty feet in size, on which the Eagle House stood. In this instrument it was stipulated that at the end of the term of the lease from Keeler to Pierce, Piquerez should surrender the ground in the same condition it was in at the date of said lease. This instrument was, on the day of its date, duly recorded in the office of the register of deeds. Piquerez thereupon took possession of the premises and occupied the house, either alone or with his family, until about November, 1882, when he abandoned his family, and left with the intention of going to California, and has never returned.
“ 2. On July 1, 1881, Frank Piquerez executed a chattel mortgage to Joseph Euot on said house and the furniture therein, to secure the payment of certain notes described in the chattel mortgage, amounting to $2,000. This chattel mortgage was recorded in the office of the register of deeds of said county, July 27th, 1881. On the 26th of May or July, 1882, Frank Piquerez executed another chattel mortgage to Joseph Euot, on the same property, to secure the payment of certain notes therein described, amounting to $1,800. This chattel mortgage was duly recorded in the office of the register of deeds of said county, July 27th, 1882. At the time said chattel mortgages were given, Joseph Euot was, and has ever since been, a resident of Pennsylvania. He knew of the existence of said chattel mortgages, but did not know their contents. Piquerez was indebted to him about one hundred and forty dollars, with interest; but he never had any of the notes described in either of the chattel mortgages, and did not know that such notes were described in the mortgages until his deposition was taken in this action.”
“4. On October 26th, 1882, Frank Piquerez became indebted to J. Christmas; on June 5th, 1883, an action was commenced in the district court of Clay county by Christmas against Piquerez, to recover the amount of said indebtedness; an attachment was issued in the action, and levied upon the house and lease and interest in the lot as the property of Frank Piquerez. Christmas obtained judgment in that action against Piquerez for his said debt and costs; an order of sale was issued, the property advertised for sale, and sold as real estate on November 8th, 1883, by the sheriff of Clay county, to the plaintiff, Eobert Docking. The sale was confirmed by the court, and on January 19th, 1884, the sheriff’s deed to Docking was duly executed, acknowledged, and recorded in the office of the register of deeds of said county.” •
These findings are supported by the evidence. The decision of whether this building, occupied as a hotel, was real or personal property, determines the rights of the parties to this action. The court, as a conclusion of law from the facts spe cially found, held it to be personal property. It is, and has been for several years, occupied as a residence and used as a hotel. From that alone the presumption would be that it is real estate. But it is further'found that the lot upon which it is situated is owned by one person and the building by another. The owner of the building, to be sure, has a leasehold estate in the land, but in the lease under which he held it is expressly stipulated that at its expiration any buildings that might be erected upon the lot should be removed. The plaintiff does not pretend to claim through any interest derived from the owner of the land upon which the hotel is situated. It is no question between the landlord and the tenant. He claims by virtue of a sheriff’s sale upon an execution issued against defendant’s vendor. If the hotel is personal property, the title had passed to defendant under the chattel mortgage of Piquerez, and plaintiff obtained no interest in it by the sale of the sheriff.
We think it is personal property. There is no direct evidence tending to show in what manner the building wras affixed to the freehold, unless it may be inferred that it was not very firmly and solidly attached, from the fact that it was moved upon the lot and was to be moved off when the lease expired. It is evident that the owner of the land, and those who had owned the building, treated it as personal property. One of the tests of whether a building is a fixture, is, did or did not the party placing the building upon the land intend to make it a permanent accession to the freehold ? Perhaps this is as important as any criterion offered by the law. There can be no possible question in this action how the owners of the land, and those who had held under the lease, regarded this building : to them it was at all times personal property.
“The clear tendency of modern authority seems to be to give preeminence to the question of intention to make the article a permanent accession to the freehold, and other tests seem to derive their chief value as evidence of such intentions.” (Ewell on Fixtures, 22; McDonald v. Shepard, 25 Kas. 112; Eaves v. Estes, 10 id. 314; Hinkley v. Black, 70 Me. 473; Morris v. French, 106 Mass. 326; Yater v. Mullen, 24 Ind. 277.)
If it was personal property, Piquerez had the right to mortgage it to his brother-in-law, Ruot, or to give it to him outright, so far as the plaintiff in this action is concerned. These mortgages were given a long time before the debt of Piquerez to plaintiff was contracted, and he, as a subsequent creditor, certainly has no claim to this property. There is no testimony that would justify even an inference that these mortgages were given for the purpose of defrauding his creditors; the inference, if any, would be the reverse, as he placed it on record as notice to all with whom he might deal, that the property was incumbered.
From the testimony brought here, we think the judgment of the court below was correct, and that it should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This was an action brought by John Ritchie, now deceased, in the superior court of Shawnee county, to enjoin the collection of taxes levied by the city of South Topeka in the year 1886, and the special assessment made by the city for paying for certain sidewalks laid upon the streets and avenues abutting upon the land and lots of the plaintiff. The plaintiff alleged in his petition that he is the owner of the northeast quarter of section six, township twelve, and range sixteen east, Shawnee county, except such parts thereof as he had sold to certain individuals; that said tract was borne upon the tax-rolls of said county as land; that said tract had no other rightful description than as land, and as a part of said quarter-section. The alleged ground of illegality of the general tax is, that no quorum of the city council was present when the ordinance levying the general tax was passed, and that a majority of the city council were not qualified under the law to hold the office. The main objection urged against the legality of the sidewalk assessment is, that the sidewalks built or repaired upon the plaintiff’s land were not built or repaired upon any avenue, street, alley or other public ground within the limits of the city; that the plaintiff had at no time platted or otherwise dedicated, sanctioned or acquiesced in the platting of said land for public uses, but on the contrary he had sought by every means in his power to have the land remain by its original description as land. He further alleged that the ordinance levying the assessment was passed long prior to the building and repairing of said sidewalks, and before any contract for the building and repairing of the same had been made. The action was tried by the court without a j ury; questions of fact found; conclusions of law made, and judgment rendered in favor of the defendants. Since the action was brought to this court the plaintiff in error has died, and the cause has been revived in the names of his heirs.
A summary from the findings of fact, which are voluminous, is as follows: The city of South Topeka was organized July 15, 1885,.as a city of the third class; on June 4, 1886, by proclamation of the governor, it was declared a city of the second class. Nothing was done, however, to perfect its organization as a city of the second class until July 28th following, when the city council passed an ordinance dividing the city into four wards, and another ordinance ordering an election for three additional members of the city council. The election was held on the 9th of August following; on the 12th of the same month the vote was canvassed. On the last-named day, before the canvassing of the vote, an ordinance levying general taxes was passed by a vote of four members of the old council, all that were present. It is this ordinance that the plaintiff claims to be illegal. As a city of the third class, the council consisted of five members; as a city of the second class, eight. It is necessary in order to enact any ordinance, that a majority of the city council shall voté in favor of its passage. The four councilmen who were present were members of the council of the city when it was a city of the third class, and also as a city of the second class. If the city was acting under its incorporation as a city of the third class, then a majority of the councilmen voted in favor of this ordinance; if it was acting as a city of the second class, then there was not a sufficient number voting for its passage to constitute it a valid ordinance.
What was the status of the city of South Topeka at this time ? It was declared to be a city of the second class by the governor’s proclamation of June 4, 1886, but its' municipal government was not fully organized until some time after that date. In Campbell v. Braden, 31 Kas. 754, this court suggests that it necessarily requires time for such organization to be completed, and in this case we cannot say there was an unreasonable delay. It would not be completed until its officers, including the councilmen, were elected; the proper evidence of their election would be the canvass of the vote by the proper authorities. This was not done at the time of the levying of this tax, and therefore the city of South Topeka at that time was acting, so far as its officers were concerned, as a city of the third class. It is necessary that there should be some city government at all times, and the mere proclamation of the governor changing the form of the city from a city of the third to a city of the second class, did not leave the ^ # 7 city without a city government, and of necessity, until the officers of the city as a city of the second class qualified as such officers, the old form of government and the old officers would continue. We think that the ordinance complained of was valid.
The objections to the sidewalk assessment are numerous; we shall notice only those that apparently have a substantial basis to rest upon. The ordinances authorizing the sidewalks were passed at different times; a part in April and May before the city was declared to be a city of the second class, but the estimates were not made nor the taxes levied until the organization of the city as a city of the second class was fully completed.
It is claimed because there was no saving clause in the statute authorizing ordinances of a city of the third class to remain and form a part of the laws of cities of geconc[ c]asSj after it should be incorporated as a city of the second class, that all of the ordinances passed and enacted by the city government as a city of the third class were abrogated by the adoption of a new form of city government. This is not the law. It is still'the same city, embracing the same territory, and is a government of the same people. There was a change to be sure, but it was simply a change of the form of the government of the city, intended for the future, and it left unchanged and unaffected the ordinances of the city. Were it not so, the new city organization would have been without a law until the city council of a city of the second class could have been elected, qualified, new ordinances enacted, published, and a new system been put in force. (Trustees v. City of Erie, 31 Pa. St. 515; City of Grand Rapids v. Hydraulic Co., 33 N. W. Rep. 749.)
A more serious question tó be considered is whether there was such a description of the lots and lands, against which the sidewalks were placed, as would authorize the imposition of the sidewalk assessment. The land owned by the plaintiff is described on the tax-rolls as the “northeast quarter of section six, township twelve, and range sixteen, except such as has been sold; these tracts already described in this book — assessment rolls; — pages two to eighty inclusive, as belonging to other parties and containing eighty acres more or less.” Such description was given to the assessor by the plaintiff himself. The explanation of that description is set forth in finding number twenty of the court:
“The interpretation of the above description is as follows: The assessor assessed by metes and bounds certain tracts in the above-described quarter-section, which had been sold by plaintiff as lots or parcels corresponding to city lots as hereinbefore mentioned, and also certain parcels as so many acres or parts of acres, and placed said tracts on said assessment roll, on the pages from 2 to 80 inclusive, and deducted the aggregate quantity of said tracts so assessed from the 160 acres constituting plaintiff’s original quarter-section, which left the eighty-four acres as above described.”
In November, 1886, a notice in writing was served upon plaintiff, by the street commissioner of South Topeka, notifying him that certain sidewalks abutting on certain lands claimed by plaintiff were out of repair, designating them by streets and numbers of lots, and also that the other sidwalks which were required to be built, specifying the lots in front of which they were to be constructed. It is contended that this is not a sufficient description of the lots to authorize a tax to be imposed upon them. The streets upon which they were to be built were all public streets as named in finding eighteen, which was as follows:
“ Kansas avenue, Quincy street, Monroe street, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth streets, extended or prolonged or opened upon, over or through plaintiff’s said tract, as hereinbefore stated, have been dedicated by plaintiff to public use.”
This land, however, has never been legally platted by plaintiff, but he did employ a surveyor in 1864 or 1865, who made a plat of a part of the quarter-section; said surveyor divided said tract into blocks of 450 feet in length, north and south, and 320 feet in width, east and west; left an alley 20 feet wide through the middle of each block, and made the lots 25 feet wide and 150 feet in length; he also left spaces for streets. Said plat was never acknowledged or filed for record. These 25-feet lots were commonly known and described by numbers upon the streets on which they are situated; such numbers were given upon the theory that the streets were extensions of the streets of the same name of the city of Topeka proper. The plaintiff did from time to time sell lots in said quarter-section, of 150 feet in length and 25 feet, or some multiple thereof, in width. In the deeds given by him to said lots or tracts, the plaintiff has commenced his description thereof by commencing at a point in the city of Topeka proper, thence extending on the north or south side of a designated street or avenue, as the case might be. In some of his conveyances he added such descriptions as would correspond with numbers, according to the plat of the city of Topeka extended upon his quarter-section. In making such conveyances he left spaces for the streets. Public money has been expended for the improvement of the streets, the putting in of crossings, the lay ing down of sidewalks, and his property has been enhanced by such expenditures. He was mayor of the city of South Topeka in 1885, and as such signed an ordinance authorizing the construction of sidewalks, and signed the warrants given in payment therefor, and personally supervised the erection of crossings, and the laying down of sidewalks. There is no question about the land being a part of the city of South Topeka.
It is not claimed that any tax is charged against him for sidewalks that do not abut upon his own land; the contention is that the description of such property is not sufficiently definite. He was living in and had been mayor of the city where the property was situated; he had dedi_ _. - _ , cated to the public use the streets upon which these different pieces of property fronted; he had put down sidewalks and put in crossings in these streets; he had prepared a plat more than twenty years ago, but had never filed it, but had sold tracts with the reference to the lots and streets named in said plat, and the lots were commonly known by the number under which they were assessed. "We are not prepared to say they were not sufficiently described, even though the plaintiff'.had not filed the plat of the land in the office of the register of deeds. But could the plaintiff in this action complain of any irregularity in levying the taxes or the assessment of the property ? He stood silently by and saw the old sidewalk repaired and all the new ones built, before he made any complaint. He knew of the city ordinances, and without objection permitted the expenditure of large sums of the public money; saw his property benefited and enhanced in value by the building of long lines of sidewalk in front of his property fronting these streets, and after all the work had been completed he complains of irregularities in order to defeat the collection of taxes to pay in part for these improvements. If he wished to test this question, he should have done so before the work was finished. He ought not to be allowed to do it now.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by Luther Woodford to recover from D. H. Sarver for the loss of four steers. He alleged that Sarver took from him twenty-three head of steers to be herded, pastured and properly cared for during the grass season of 1881, for twenty cents per head per month, and that at the end of the season only nineteen head of the cattle were returned to him. Sarver claimed that none of the steers died, or were lost through any fault or neglect on his part. The final trial of the cause resulted in a verdict and judgment in favor of Woodford. The amount of recovery was only thirty dollars, but Sarver brings the case here, and his only complaint is that the testimony was not properly interpreted and weighed. The action turned on the disputed question of fact whether any of the cattle committed to Sarver’s care died or were lost through his fault or negligence. He admits that one of the steers died, and another was lost, and the jury have found that he failed to take ordinary care of the cattle delivered to him, and that some of them were lost through his neglect and mismanagement. Upon this question there was competent, and we may say, sufficient testimony to sustain the findings of the jury. We will not consume the time, nor would it be profitable, to review the testimony given in this ease. It has been examined and weighed by the jury; we are unable to see any ground upon which we could reverse the judgment. It will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Hiram Myrick was charged jointly with Frank Blainey, with assaulting and beating one C. A. Smith with a deadly weapon, and with' the intent to kill and murder him. He was separately tried, and found guilty of wounding Smith in the manner charged, and under circumstances which would have constituted manslaughter in the third degree if death had ensued from the wound. A sentence of two years’ imprisonment was pronounced, from which judgment he appeals here, and seeks a reversal for insufficiency of the information, and for rulings made by the court during the progress of the trial. The information is unquestionably sufficient; and there is nothing substantial in the other exceptions, save one. After the cause had been submitted to the jury, and they had retired to the jury room, they requested the court to give them further instructiohs in regard to what constitutes manslaughter in the second and third degrees. This request was submitted to counsel for the defendant, who stated that they had no objections to the granting of the request, providing the court should also include in the instructions a phase of the law relating to assault and battery. In response to the request of the jury, the judge prepared further instructions, which were handed to defendant’s counsel, who made no objection to them, and the jury were then returned into court and given the additional charge, the defendant’s counsel then stating that they had no objections to the further charge being then given. The defendant was absent and confined in the county jail when the additional instructions were requested and given.
The absence of the defendant under imprisonment in the county jail during a part of the trial was one of the grounds upon which a new trial was asked, and the overruling of a motion so grounded is an error which must be held fatal to the judgment. Section 207 of the criminal code provides that “No person indicted or informed against for a felony can be tried unless he be personally present during the trial.” By this provision the legislature has said that the personal presence of the defendant, upon a charge of felony, is essential to the legality of the trial. The charge of the court is one of the most imporant proceedings in the trial. His presence is no less necessary or important when the jury are instructed than during the impaneling of the jury, the introduction of evidence, the argument of counsel, or the reception of the verdict. In the present case the defendant was on trial for a felony, and the instructions requested and given were exceedingly important. As the statute forbids the trial of a person for felonjq unless such individual be personally present during the trial, the presence of the defendant’s counsel and their consent to proceeding with the trial in his absence and imprisonment will not cure the illegality. It has frequently been decided that the right of a defendant in a prosecution for felony to be present is one that cannot be waived by counsel, and that a reviewing court will not in such cases stop to inquire in regard to the correctness of the instructions given, or the steps taken during the absence of the defendant. (Jones v. The State, 26 Ohio St. 209; Maurer v. The People, 43 N. Y. 1; Green v. The People, 3 Colo. 68; Smith v. The People, 8 id. 457; same case, 8 Pac. Rep. 920; Prine v. The Commonwealth, 6 Harris, 103; The State v. France, 1 Overton, 434; Dougherty v. The Commonwealth, 69 Pa. St. 286; The People v. Perkins, 1 Wend. 91; 1 Bish. Crim. Proc., § 273, and cases cited; Wharton’s Crim. Law, §§2991, 3364.)
The rule established by the statute and by these authorities is decisive of the case, and compels a reversal of the judgment of the district court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action upon the following written recognizance:
“The State oe Kansas v. Henry Moorehead.— November Term, 1883. — Whereas the action above entitled has been continued until the next regular term of said court, and whereas the said defendant has been required to enter into a recognizance in the sum of three hundred dollars for his appearance at said term :
“Now, therefore, we, the undersigned, are held and firmly bound unto the state of Kansas in the sum of three hundred dollars, conditioned that the said defendant will be and appear before the said court on the first day of the regular term, and not depart the same without leave.
Henry Moorehead.
W. C. Dark.
Approved in open court. — Amos Harris, Judge."
The answer of W. C. Dark, the surety, alleges that Henry Moorehead was personally present during his trial; at the rendition of the verdict of the jury; at the time sentence was pronounced upon him; and fulfilled all the conditions of his recognizance. The evidence on the part of the state showed that Moorehead was present at the trial of the case in which he was charged with larceny, up to the time of the rendition of the verdict. The evidence also showed that the court rendered judgment that he pay a fine of fifty dollars and the costs of the prosecution, and be committed to the jail of Barber county until the fine and costs were paid. Dark called two witnesses, and offered to prove by each of them that Moorehead was personally present at the time the sentence was pronounced upon him; that thereupon he was committed to the custody of the sheriff; and that the sheriff actually took him into custody under the judgment of the court; but that subsequently, upon the day of the sentence, he was permitted to depart, with leave of the court and sheriff. To the introduction of this evidence the state objected. This objection was sustained, and the only question presented for our consideration is, whether this evidence was competent. It is difficult to understand from the minutes of the trial judge, and the journal entries of the court below, that Moorehead was not present to receive his sentence. ■ It clearly appears that sentence and judgment were pronounced against him;' and the statute provides that, if an offense be punishable by imprisonment, the defendant must be personally present when sentence and judgment are rendered; even if the offense is punishable by fine only, the defendant must be personally present, or some responsible person must undertake for him to pay the judgment and costs. (Crim. Code, §245.)
If the journal entries do not show that Moorehead fulfilled all the conditions of his recognizance, we think the surety ought to have been permitted not only to show that Moore-head appeared and answered to the charge against him before the court, but also that he was present when the sentence and judgment were pronounced; and that immediately thereafter he was taken into custody by the sheriff. If these are the facts, then his surety is discharged from liability on the recognizance, as it is not conditioned that the defendant or his surety shall pay or satisfy the judgment. (McGarry v. The State, 37 Kas. 9; Commonwealth v. Coleman, 2 Met. [ Ky.] 382; Lyons v. The State, 1 Blackf. 308—330.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The special findings of the jury are conclusive here. This has been expressed so often that its repetition has become wearisome, and hence, the only ques tion we shall consider is, whether they authorized the judgment rendered. They are in substance, that the policy in case of loss was to be paid to Matthewson as trustee; that he had received from other insurance companies and from the plaintiffs a sufficient amount of money to pay the loan secured by the mortgage; that the German Insurance Company paid the amount of money due by the adjustment for the loss on the policy as purchase-money for the bond and mortgage, through their agent F. E. Hoffman, who took an assignment of the bond and mortgage and is seeking to enforce the same in this action, and claims to hold said bond and mortgage; but he paid for them out of the money of the insurance company whose agent he was in the transaction; that the defendants in error have not received any payment on account of said loss; that the draft offered in evidence was not sent to them; that the draft was indorsed by Smelker in compliance with instructions sent by the company to its local agent, so that he could get the money on the draft and send it to Matthewson as trustee; that Gill, the local agent, acted for the company.
These findings are said to be contradictory, and not supported by sufficient evidence. As to the latter objection, we have examined the evidence presented in the record enough to know that there is some evidence to sustain them, and this is all that is required. We shall not weigh the evidence to determine whether the findings are supported by more evidence ■ than was produced on the other side. The trial court has performed that duty, and approved them. We do not think that they are contradictory in the sense that there are adverse findings on the same state of facts. It may have been a difficult duty for the jury to determine at what particular periodical juncture Gill ceased to become the agent of the insurance company, and assumed that relation towards the defendants in error, but the record shows accomplishment by the jury, and approval by the trial judge. Nor do we think that the jury have made a finding on any one of the special interrogatories submitted to them, which neutralizes or destroys the legal effect of any other - finding. The sole question remaining is, whether the judgment is right on the findings. It is said by counsel on both sides that the concurrence of three propositions entitled the plaintiffs below to the relief sought, and they are: First, it was the duty of the German Insurance Company to pay the amount of the loss to the mortgagee; second, that as a matter of fact the insurance company did pay the loss to the mortgagee; third, that instead of paying this loss in satisfaction of the bond and mortgage, it took an assignment thereof, and is now seeking to enforce them.
About the first proposition there is no controversy; it was the duty of the German Insurance Company to pay for the loss occasioned by the fire, and, as long as the bond and mortgage were outstanding and unpaid, to Matthewson, as a clause in the policy required. If at the time of the adjustment of the loss it had appeared that the bond and mortgage to Matthewson as trustee had been paid, then it should have been paid to the mortgagors, the insured.
The jury found specially that Matthewson as trustee had received from this and other companies a sum of money sufficient to pay off the bond and mortgage. They found in substance that the payment by Hoffman was as agent of the company, and with its funds; and if this is so, it authorizes the legal conclusion that the payment was in satisfaction of the note and mortgage, and not for the purposes of an assignment. In other words, the insurance company had obligated itself to pay the loss to the mortgagee; it did so, but instead of discharging'the mortgage, it took an assignment of it and sought to enforce it. There can be no doubt but that the legal conclusion irresistibly follows the findings of the jury. Of course, the real quarrel in this case is with the facts as found by the jury. These are beyond our control, and very largely exempt from- our criticism. Special questions the same in substance have been submitted to two juries, and like answers returned, and the general equities of the case are with the defendants in error.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Charles Hall was apprehended on a charge' of having committed the offense of burglary, in Garfield county, and upon a preliminary examination before a justice of the peace of the same county he was held for trial at the next term of the district court of Garfield county. Failing to offer sufficient bail for his appearance, he was committed, and from this imprisonment he seeks relief by the writ of habeas corpus. He alleges that his restraint is illegal because he was held to answer in the district court of Garfield county, whereas he claims he should have been committed for trial in the district court of Hodgeman county. The question in the case arises from the legislation of 1887 respecting Garfield county. By chapter 81 of the Laws of 1887, Garfield county was created and its boundaries defined. In chapter 132 of the same volume provision was made for attaching, for judicial purposes, certain unorganized counties to others that were organized, and among the number Garfield was attached to Hodgeman. In chapter 142 of the same laws, the legislature provided that regular terms of the district court should be held in the county of Garfield on the first Tuesday of June and the fourth Tuesday of September of each year. These acts were approved by the governor on the same day, namely, March 5,1887. The act attaching Garfield county to Hodgeman for judicial purposes provided for the repeal of all conflicting provisions, and was published March 11, while the one fixing terms of court in Garfield county was published one day earlier. The petitioner insists that the attaching act, chapter 132, is the latest legislative expression, and repeals chapter 142, which fixed the terms of court, and therefore that no term of court can be held in Garfield county until the legislature specifically detaches that county from Hodgeman.
We cannot accede to this claim. The mere publication in the official state paper of one act a day later than the other act was published will not work a repeal of the former,; nor is the existence or operation of any of the acts dependent on the will of the publisher of such paper. These acts were enacted by the same legislature; the final action thereon was taken at the same time; they all relate to the same subject-matter, and being in pari materia, they should be read and examined together and treated as one law. When so construed, no repugnancy exists among them, and the legislative intent is not left in doubt. The legislature created the county by one act, and in another provided the method for its organization. Considerable time is required to effect the organization of a county, and while it was in an unorganized state it was necessary that the people resident in the county should be brought within the protection of the law, and hence it was provided that the county should be attached to Hodgeman for judicial purposes. It was evidently contemplated that organization would be effected before the convening of the next legislature, when it would be entitled to a court of its own, and therefore provision was made for holding regular terms of the district court in the county. It is the theory of our law that a district court shall be held in each and every organized county of the state. In the constitution it is provided that a clerk of the district court shall be elected in each organized county, and in the general provisions concerning courts it is enacted that there shall be a district court in each organized county. The legislature of 1887 proceeded upon the same theory in regard to Garfield county, by making provision for its judicial status in both an unorganized and organized state. The population and wealth of the county, and the existing sentiment respecting organization at the time legislation was had, doubtless indicated that organization would be early accomplished; and it was the right and duty of the legislature to make provision for this contingency. The county was organized in July, 1887, and the operation of the act respecting the holding of courts in the county was simply made dependent upon the contingency of organization. Even if no such act had been passed, the general provisions relating to district courts afford sufficient authority for the holding of courts in the county after it was organized. (In re Wells, Petitioner, 36 Kas. 341.) There is no express repeal of either, nor any irreconcilable conflict between the acts; and construed together, they form a consistent law, and disclose the manifest intention of the legislature to provide that Garfield county should be attached to Hodgeman for judicial purposes until organized, and after which regular terms of the district court should be held within its limits at the prescribed time.
Our judgment must be a denial of the writ, and that the petitioner be remanded.
All the Justices concurring. | [
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Per Curiam:
The record in this case is the same as in B. K. & S. W. Rld. Co. v. Gillen, just decided.
The record is also challenged in this case as in that case, and for the same reasons. Upon the authority of that case we cannot consider or review the errors alleged. The judgment must therefore be affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
By this proceeding the plaintiff challenges the right of J. H. Hunter to hold the office of police judge in the city of Leavenworth, and to perform its duties. The obvious purpose of the action, however, is to obtain a determination of the constitutionality of the statutory enactment entitled “An act providing for the police government of cities of the first class, through a board of police commissioners apappointed by the executive council, and also for a similar government for cities of the second class in certain contingencies,” approved March 1,1887. The act provides that the executive council shall, upon the petition of two hundred bona fide householders, or when the council shall deem it advisable for the better government of such cities, appoint a board of police commissioners. It also provides that the police commissioners so chosen shall immediately appoint a police judge, a marshal, a chief of police and other police officers; and it vests the board with the entire control of the police force of the city, its organization, government, and discipline, as well as the property of the city belonging to the police department. (Laws of 1887, ch. 100.) A petition signed by two hundred bona fide householders of the city of Leavenworth was presented to the executive council, representing that the laws of the state of Kansas against the illegal sale of intoxicating liquors were not enforced in that city, and that the then police force was making no effort to enforce the laws, and asking for the appointment of police commissioners. The executive council granted the petition, and duly appointed a board of police commissioners, which board immediately qualified and appointed the defendant as police judge. The right of the defendant to the office rests solely upon this appointment and the validity of the law under which it was made. It is asserted that the statute is repugnant to the constitution, and invalid, for several reasons.
The point has been made, though not much contended for, that police government by commission is illegal. In effect, it is said to be opposed to the fundamental theory of self-government, and denies to the people of the district the right to select their own officers from among their own number. Whatever may be said regarding the policy of placing the police administration of cities in a board of police commissioners who are chosen by state officers rather than through the electors of the cities, there can be no doubt that the legislature has the power to do so. The constitution imposes no limitations upon the legislature in respect to the agencies through which the police power of the state shall be exercised. It may be conferred ■ upon the officers of local municipalities chosen by the people resident therein, or, if deemed expedient, it may be vested in officers or persons otherwise selected. Cities are but agencies of the state, created to aid in the conduct of public affairs. The functions of cities and their officers are prescribed by the legislature, and it rests in the sovereign discretion of that body to say how much of the police power shall be exerted by the municipality. Although such power is usually exercised by the local authorities, police administration is not in its nature exclusively local. The people of the whole state are interested in preserving peace and good order and preventing crime in every city and district of the state, and iu protecting the property, health and lives of all its citizens. With reference to the duty of the state in this regard, it has been well said that —
“No duty is more general and all-pervading than this. It extends alike to towns and cities as to the country. It looks to the preservation of order and security in the state, at elections, and at all public places; the protection of citizens, strangers, travelers at railway stations, at steamboat landings; the enforcement of the laws against .intemperance, gambling, lotteries, violations of the Sabbath, and, in fine, the suppression of all those disorders which affect the peace and dignity of the state and the security of the citizen. The instrumentalities by which these objects are effected, however appointed, by whatever name called, are agencies of the state, and not of the municipalities for which they are appointed or elected.” (Burch v. Hardwicke, 30 Gratt. 38.)
A clear and well-recognized distinction exists between these matters which concern the state at large, and those which are of a purely local and corporate character. In pointing out this distinction, Judge Dillon says that—
“The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gas works, of water works, the construction of sewers, and the like, are matters which pertain to the municipality as distinguished from the state at large.” (1 Dill. Mun. Corp. 58.)
The authorities which draw its distinction are numerous and uniform, only a few of which need be cited: People v. Hurlbut, 24 Mich. 81; People v. Draper, 15 N. Y. 532; People v. Detroit, 28 Mich. 228; Chicago v. Wright, 69 Ill. 326; Britton v. Steber, 62 Mo. 370; Cobb v. City of Portland, 55 Me. 381; Buttrick v. City of Lowell, 1 Allen, 172; People v. Lynch, 51 Cal. 15.
The statute we are examining provides that the police commissioners shall be householders and electors of the city for which they are appointed, and shall have been for “at least three years next prior to their appointment, and one of whom shall be of opposite politics from the other two.” So that the police government of the city is localized, and placed in the control of its own people and of those who are substantially interested in its welfare. It is true, the appointment of the police commissioners is made by the executive council, a body composed of state officers. These officers, however, are elected by the state at large, including the people of the cities who come within the operation of this statute; and in making the appointments of police commissioners, such officers act as the agents of the people of these cities, as they do for the whole people of the state. We have Seen, however, that the police is a matter of state instead of local concern, and while the power may be intrusted to local municipal agencies and officers, it is nevertheless a matter of state policy and subject to immediate state control. Acting upon this principle, the legislatures of several states have enacted laws somewhat similar to ours, and the police control of many of the large cities of the country is confided to boards of police commissioners, whose powers come directly from the state. Some of these laws have been assailed on the ground that they were inconsistent with the theory of self-government, and for other reasons; but they have generally been upheld, as ours must be, so far as that objection is concerned. (People v. Draper, 15 N. Y. 532; People v. Mahaney, 13 Mich. 481; Baltimore v. Board of Police, 15 Md. 376; Police Comm’rs v. City of Louisville, 3 Bush, 597; The People v. Draper, 25 Barb. 344; Diamond v. Cain, 21 La. An. 309; Burch v. Hardwicke, 30 Gratt. 24.)
It is further contended that the statute is unconstitutional because it delegates legislative power to the executive council. It is argued that as the law does not go into operation in any city until the executive council acts by making appointments of police commissioners, and its operation may afterward be suspended by the council, the legislature has abdicated its functions, and has attempted to confer on the executive council law-making power, possessed only by the legislature. The-constitution confers the law-making power upon the house of representatives and the senate, and the power thus vested cannot be surrendered to any other body or person, except as to local administrative legislation, which all agree may be delegated to corporations and tribunals transacting the county business. The act in question, however, does not, in our opinion, confer any legislative power on the executive council. It came from the legislature, formal and finished. The executive council is not authorized and cannot add to or take from the act a single provision or word. The expediency of the law, the classes of cities which may be brought within its provisions, the contingency upon which its operation depends, have all been determined and expressed by the legislature. The action of the executive council, taken upon the petition of the householders, is the contingency upon which the operation of the law depends. When this contingency arises, the law, positive and detailed in its provisions, takes effect. It provides in mandatory form the powers and duties to be exercised and performed by the police commissioners, the length of term which they shall serve, and the salary which they shall receive. It prescribes the subordinate police officers to be appointed by the board, and the control and supervision to be exercised over them. It directs when the sessions of the board shall be held, vests them with the entire control and government of the police officers and of the property connected with the police department, and authorizes them to audit all claims against that department and certify them to the mayor and council for payment. It then provides that the mayor and council shall provide, at the expense of the city, all necessary accommodations for the sessions of the board, and provide a police court room, station houses and prisons; and it provides for the monthly payment of the police officers upon the certificate of the board, and also for such office expenses, record-books, stationery, telegraphing, badges, clubs, and the repair and cleaning of police buildings, as may be necessary. It .further provides that neither the mayor nor the council, nor any officer appointed by them, shall have any government of the police officers; and that any one who interrupts or interferes with the board, or any of the officers appointed by them, while in the performance of their duty, shall be guilty of a misdemeanor and subject to punishment. It provides that the officers to be appointed shall be qualified electors of the city; and limits within which salaries may be allowed to these officers by the board are prescribed. Provision is made that the fines and forfeitures collected by the police judge for violations of the laws of the state shall be paid into the county treasury, and that fines and forfeitures collected for violations of the city ordinances shall be paid into the city treasury. The condition on which the law is to go into operation in a city of the second class is then prescribed, which is a judgment of ouster in a quo warranto proceeding, brought by the state against the mayor and council of a city of the second class, based upon a finding of the court that the city has by means of licenses pretended to authorize, or by simulated fines and forfeitures attempted to foster and encourage, the illegal manufacture or sale of intoxicating liquors, or has shielded offenders against the laws of the state relating to the manufacture or sale of intoxicating liquors, or has refused or habitually neglected to require the police officers to perform their duties under such laws. When the governor receives a certified copy of the judgment, he is required forthwith to call a special session of the executive council, unless it shall be within two days’ time of the regular session, and at such special or regular meeting the executive council is required to appoint a board of police commissioners for such city. It is provided that the police government administered under the act shall supersede all other acts or ordinances of the city so far as they are in conflict or inconsistent with it, and shall continue in force until suspended by the executive council in a manner which is provided for.
We will not undertake to name all the provisions of the act, but enough have been mentioned to show the character and completeness of the legislation. In the act it is specifically provided that it shall go into effect and be in force from and after its publication. It has been passed in constitutional form, approved by the governor, and officially published, and is therefore in effect throughout the state and in all cities that are brought within its operation by the happening of the contingency provided for in the act. The validity of laws, the operation of which is made to depend upon the occurrence of some future event or contingency, certain or uncertain, cannot well be doubted. That contingency may be the vote or petition by a certain number of people to be affected by the law, or some expression or act of their representatives or agents, or it may arise upon the act or will of some third person. Indeed, an infinite variety and number of events or contingencies might be named that the legislature might adopt. Chief Justice Redfield, of the "Vermont supreme court, in treating on this subject, said :
“ If the operation of a law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and a fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one. . . . One may find any number of cases, in the legislation of congress, where statutes have been dependent upon the shifting character of the revenue laws, or the navigation laws, or comtnercial rules, edicts or restrictions of other countries. In some, perhaps, these laws are made by representative bodies, or, it may be, by the people of these states, and, in other words, by the lords of the treasury, or the boards of trade, or by the proclamation of the sovereign; and in all these cases, no question can be made of the perfect legality of our acts of congress being made dependent upon such contingencies.” (The State v. Parker, 26 Vt. 365.)
But we need not look outside of our own state to find prec-' edents for conditional legislation. Numerous instances may be found where the operation of our laws is made dependent upon the expressed will of the people, or their representatives, the will or act of third persons, or some other anticipated ■ contingency. An example of such legislation is the night herd-law, (Gen. Stat. 1868, ch. 105, §1, et seq.,) which provides that it shall be brought into operation in any one of the townships of the different counties of the state upon an order of the board of county commissioners, to be made whenever a majority of the qualified electors in any township shall petition the board to make such order. The order may require that all persons within the township owning domestic animals of any kind shall keep them confined in the night-time for certain portions of the year. Thus the board of county commissioners is authorized to put in operation a law which in a certain sense supersedes and suspends a general one; and it continues in force until it is modified or set aside by the same board. The validity of this act was questioned upon the ground that it delegated legislative discretion to the county commissioners, and the same arguments were urged against it as are made against the metropolitan police law. The court overruled the objection, and held the act to be constitutional. (Noffzigger v. McAllister, 12 Kas. 315.) A similar law, providing for the regulation of the running at large of animals, was enacted. (Laws of 1872, ch. 193.) It provided thatthe board of county commissioners might determine and direct by an order what animals should not be allowed to run at large within the bounds of the county. It authorized the allowance of damages to any person injured by the running at large of any of the animals prohibited by the order, and gave a lien on such animals for the damage done. This act is put in operation in any county at the will of the county board, without a vote or even a petition of the people; and yet, when its validity was challenged on the ground that it delegated legislative power to the board, it was sustained. (Keyes v. Snyder, 15 Kas. 143.) The same principle is found in the various acts that have been passed authorizing municipalities to issue their bonds in aid of the construction of railroads and in exchange for the stock of the railroad companies. The operation of these acts is conditioned upon a vote of approval by the people, and can have no effect or operation in the municipality until an affirmative vote is had. The validity of these acts has frequently been considered and sustained. (L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kas. 184, and cases there cited.) The dramshop act of 1868, which authorized the granting of a license upon the petition of a majority of the male and female residents of the township, city or town, involved the same principle, and was held to be constitutional. The hedge law, (Comp. Laws of 1879, ch. 40, § 36,) and the various acts providing for the location of the seat of county government, are of the same character — that is, their operation depends upon a vote of the people; and they have been sustained. Then there are the acts of the legislature which provide that cities of the third class may be transferred to the second class, and those of the second class transferred to cities of the first class, upon proclamation of the governor. (Laws of 1881, ch. 37, §1; Laws of 1872, ch. 100, §1.) Under this legislation the operation of laws which before that time had governed cities, is suspended by the proclamation of the governor, and such cities thus advanced to a higher class are by the same act made subject to a new code of laws; and yet no one has been bold enough to assert that this legislation was invalid for the reason that it delegated legislative power to the governor. A notable example of such legislation is found in the retaliatory provision of our insurance laws. (Comp. Laws of 1879, ch. 50a, §17.) It provides that when the laws of any other state impose upon the insurance companies of this state applying to transact business within its limits other and more onerous burdens and conditions than those prescribed by our own statute against foreign insurance companies, the same burdens and conditions shall be imposed upon the insurance companies from that state applying to do business in this; thus making the operation of the law in this state dependent upon the action of the legislature of another state. The constitutionality of this provision was vigorously assailed because it was made to depend upon a contingency and was not therefore a complete expression of the legislative will. (Phoenix Ins. Co. v. Welch, Supt., 29 Kas. 672.) In that case the question before us was barefully considered, and the validity of the act sustained. In pronouncing the judgment, Mr. Justice Brewer remarked that—
“Our laws abound in cases in which a statute is made dependent upon the action of some tribunal or body, or upon some other contingency, and is therefore practically dormant until such action takes place or contingency happens.”
And so we might refer to the laws for the establishment of highways, the erection of county buildings, the drainage of swamp or low lands, and many others; but sufficient have been mentioned to show that such legislation is not unusual in this state nor the question before us a new one in this court.
The courts of other states have frequently upheld similar laws, and of this class of legislation perhaps the local-option laws, so called, have been the subject of more discussion and judicial decision than any other. At first, there was some diversity of opinion regarding the validity of these laws, but it may now be said that there is substantial unanimity among the courts in sustaining these and like legislation. (Locke’s Appeal, 72 Pa. St. 491; The State v. Wilcox, 42 Conn. 364; Commonwealth v. Bennett, 108 Mass. 27; Commonwealth v. Weller, 14 Bush, 218; The State v. Noyes, 10 Foster, 279; Bancroft v. Dumas, 21 Vt. 456; The State v. County of Morris, 36 N. J. 72; Caldwell v. Barrett, 73 Ga. 603; Fell v. The State, 42 Md. 71; Rld. Co. v. Comm’rs of Clinton Co., 1 Ohio St. 77; Bull v. Read, 13 Gratt. 78.) The same question has been recently examined by the supreme court of Missouri, and after a thorough and elaborate consideration it determines that a law which goes into operation and is made dependent on a discretionary contingency is not invalid. (The State v. Pond, 6 S. W. Rep. 469.)
The action of the executive council is but the contingency upon which the operation of this law depends. The officers composing the council are to a certain extent chosen by and for the people of the cities for whom they act. In a certain sense they are their representatives or agents in putting or continuing the law in operation. They do not enact or give efficacy to the law, but it rather gives power to them and1 vitality to their acts; and we conclude that it was within the power of the legislature to make the operation of the law depend on the contingency of the action of the executive council, and that it is not repugnant to the constitutional objection that legislative power is delegated to the executive council.
It is finally urged that the act is in contravention of the provision of the constitution which requires the enactment of general laws where they can be made applicable, and that they should have uniform operation throughout the state, (art. 2, § 17,) and of those provisions in article 12 of the constitution providing that cities shall be organized by general laws, and forbidding the passage of any special act conferring corporate powers. The claim is presented with considerable plausibility and force, that the operation of the law rests solely in the discretion of the executive council, and that as it may put the law in operation in one city and not in another, it is special legislation. It will be observed that the law is general in form, and may be made applicable to all cities of the first class and also to those of the second class when a certain condition of things exists. If it be assumed that the operation of the law depends solely upon the discretion of the executive council, it still is not clear that the act falls within what is known as special legislation. It is not necessary that a law should operate upon all cities of the state to be constitutional. If it is general and uniform throughout the state, operating upon all of a certain class, or upon all who are brought within the relations and circumstances provided in bhe acb ^ is not obnoxious to the limitation against special legislation. It belongs to the legislature to make the classification, and while it cannot so classify them as to make the law special in its application and results, yet many classes may properly be made. It need not be restricted to the population of the municipality, but it would seem that it might be based on the conduct or condition of the people resident therein. If it may be so made, \ and the council shall put the act in operation whenever it may be necessary to do so in order to secure good government and an orderly administration of law, can the act be said to be special ? It is true, that the form or profession of an act does not control, and although it is general in form and pretense if it necessarily produces a special result it cannot be upheld.
“If, on the other hand, the act has room within its terms to operate upon all of a class of things, present and prospective, and not merely upon one particular thing, or upon a particular class of things existing at the time of its passage, the act is general.” (City of Topeka v. Gillett, 32 Kas. 436.)
Upon the assumption that the executive council is given absolute discretion to enforce the act, has it not room within its terms to operate upon all of a class ? There is room to apply it to every city of the first class; and is it less general or valid than those acts which go into force in a community upon the discretion or vote of a majority of the electors, or upon the mere will of the board of county commissioners? These laws are held to be valid, and yet the discretion of the voters, the petitioners, or the persons upon whom the operation of these laws depends, is as arbitrary and absolute as that claimed to be conferred upon the executive council by the terms of this law. Are the application and results any more special or wanting in uniformity in this law than in those referred to? We need not, however, determine the question upon this claim or assumption, or decide whether the act would be valid if arbitrary discretion was vested in the executive council. As we interpret the language employed authorizing the executive council to appoint police commissioners, the authority is not wholly discretionary, but it is required to appoint whenever two hundred or more bona fide householders of the city having the qualifications of electors petition it to do so. The provision conferring the authority is involved and ambiguous, and requires interpretation. It reads :
“The executive council shall appoint a board of police commissioners, to consist of three members, for each city of the first class in this state, if considered expedient, and upon the presentation of a petition of two hundred bona fide householders of such city having the qualifications of electors, or when said executive council shall deem it advisable or necessary for the better or more perfect government of such city.”
3. Executive to council-duty to appoint. The difficulty arises from the use of the words, “if considered expedient,” preceding those concerning the presentation of the petition. To hold the authority of appointment to be wholly within the discretion of the executive council, is in effect to disregard the language which authorizes the householders and electors to petition the council for the appointment of police commissioners. Not only that, but it discards the subsequent words in the same sentence which provide that the executive council may appoint when it shall deem it advisable or necessary. It would involve an absurd repetition,
and impute to the law-makers the supreme folly of substantially saying that “the executive council shall appoiut a board of police commissioners when they deem it expedient, or when said executive council shall deem it expedient, they shall appoint a board of police commissioners.” That view not only charges the legislature with foolishness, but it gives no effect to a considerable, and what was manifestly intended to be an important, part of the statute. Statutes are to be construed according to the intent of the legislature, and an important guide by which to ascertain the intention is the language used; but an equally sound rule of construction requires that every part and word of a statute shall if possible be given effect. This statute admits of the interpretation that if the householders and electors deem it expedient, and two hundred or more of them petition for the appointment of police commissioners, it shall be made; or the executive council may appoint on its own motion if it deems it advisable or necessary for the better and more perfect government of the city. This construction is a reasonable one, which gives effect to all the words of the provision, and does not lead to an absurdity, as would the other. We conclude, then, that the council is . « ¶. , rectuire(* appoint a board or police commissioners whenever a proper petition is presented; and therefore the most serious objection urged against the act is removed and taken out of the consideration. In the present case, the appointment was made upon the requisite petition, and it will be time enough to determine the validity of the discretionary provisions of the act when the executive council assumes to exercise discretionary power. Even if these provisions are invalid, the main body and remainder of the act is not so mutually connected and dependent on the discretionary provisions as to affect its validity, or to render it inoperative. Subsequent legislation may remedy defects in that respect, if any exist.
In examining and in sustaining the validity of the act, we have kept in mind the well-established rule that whenever a statute can be so construed as to avoid conflict with the con stitution, that construction should be given. In the language of Mr. Justice Washington: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.” (Ogden v. Saunders, 12 Wheat. 213.)
Although we are not free from doubts upon some of the points of invalidity presented, they are not of such a character as would warrant us in striking down and nullifying a formal act of legislation; and therefore the demurrer to the answer must be overruled and judgment go in favor of the defendant.
All the Justices concurring. | [
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Per Curiam:
Counsel for plaintiffs in error have forcibly presented a motion for rehearing in this case. We reiterate what was stated in our former opinion, and are satisfied that the law is correctly declared therein. But, further, in this action the chattel mortgage under which plaintiffs in error claim possession cannot be reformed, as George and Harry Davis are not parties in the court below. We cannot say that “Davis & Sons” are bound by a chattel mortgage which they did not sign, even if executed by mistake, unless they are parties to the record, with opportunity to contest.
Johnston, J., having been of counsel, took no part in the decision. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by L. W. Head, on May 12,1883, in the district court of Shawnee county, against A. T. Daniels and A. J. Ryan, to recover certain real estate situated in said county. The case was tried before the court without a jury, and on December 28, 1885, judgment was rendered in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court.
The principal facts, stated briefly, are substantially as follows : The land in controversy belonged originally to Mary E. Denton; the plaintiff claims under her by virtue of a quitclaim deed, and the defendants claim under her by virtue of a sheriff’s deed executed to A. T. Daniels; together with other facts connected therewith. The sheriff’s deed was executed and recorded more than a year before the quitclaim deed was executed. The facts upon which the sheriff’s deed is founded are substantially as follows: On April 6,1874, Newton Maxwell recovered a judgment in the district court of Osage county, against the Osage Coal & Mining Company, for $1,144, with interest and costs. On September 26, 1874, an execution was issued on such judgment, and was returned in proper time, not satisfied. On September 26, 1879, another execution was issued on such judgment, and it also was returned in proper time, not satisfied. On January 28, 1881, Maxwell filed a petition in the district court of Shawnee
county, ostensibly for the purpose of commencing an action against Charles Rath, Mary E. Denton, and others, to recover the amount of the aforesaid judgment, and alleged therein, among other things, that the Osage Coal & Mining Company was a corporation, and that the defendants were stockholders therein. Service of summons was made personally upon Rath, and was made by publication upon Mrs. Denton, but no service of summons of any kind was ever made upon any one of the other persons named in the petition; nor was any summons issued against any one of them; nor did any one of them ever appear in the case. Charles Rath appeared, but the action was afterward dismissed as to him, and thereafter it was prosecuted only as an action against Mrs. Denton. On June 7, 1881, an order of attachment was issued in the case against Mrs. Denton, and on June 8, 1881, it was levied upon the property in controversy, and service of summons was then made upon Mrs. Denton by publication, the first publication being on June 10,1881. She made no appearance in the case. On October 4,1881, judgment was rendered in the case against her. On December 6, 1881, an order of sale was issued on such judgment, and placed in the hands of W. D. Disbrow, who was then the sheriff of the county. Pie immediately gave notice that the property would be sold on January 17, 1882. His term of office expired on January 15, 1882, and H. E. Bush became sheriff. On January 17, 1882, Disbrow, as sheriff, and in the manner prescribed by law, sold the property to A. T. Daniels for $1,281 cash, and on the same day the sale was confirmed by the court, and said “ sheriff” was ordered to make a deed for the property to the purchaser; and on January 18, 1882, Disbrow, in pursuance of such order, and as sheriff of the county, executed such deed, which is the sheriff’s deed under which the defendants now claim. It is regular in form, and was recorded on the same day on which it was executed. Daniels immediately took the possession of the property under this deed, and has remained in the possession thereof ever since. From the proceeds of said sale, Maxwell’s judgment was paid, and the surplus of the proceeds, to wit, $183.15, was paid to somebody, but whether to Mrs. Denton or not, is not shown; but it is shown that it was not paid to Daniels, or to his attorneys. The quitclaim deed from Mrs. Denton to the plaintiff was executed on May 5, 1883, and was recorded on May 12, 1883.
The first ground for reversal urged by the plaintiff is, that the judgment rendered in favor of Maxwell and against Mrs. Denton is void, and this claim is urged upon the further claim that the petition in the action of Maxwell against Mrs. Denton did not state facts sufficient to constitute a cause of action, and this claim is urged upon the following grounds: First, the petition shows upon its face, and affirmatively, that Maxwell’s cause of action was barred by a three-years statute of limitations. Second, such petition did not allege, as is required by §32 of the act relating to corporations, that “there cannot be found any property whereon to levy such execution.”
I. It is believed that no decision can be found wherein it is held that a judgment is void merely because the pleading upon which the judgment is based seems to show upon its face that the action was barred by some statute of limitations. Certainly no such decision has ever been made by the supreme court of Kansas. In Kansas it has been held that where the petition or bill of particulars in a justice’s court shows upon its face that the cause of action is barred by some statute of limitations, such petition or bill of particulars will be held to be insufficient, provided the question of the statute of limitations is specifically raised in the trial court. (Zane v. Zane, 5 Kas. 134.) But courts do not hold that a cause of action is barred by a statute of limitations, unless the question has been raised in some manner before judgment. There are so many exceptions which will take a cause of action out of the statute, that the courts will presume, unless the question is specifically raised before judgment, that the cause of action is not barred. Besides, the moral obligation to pay a debt after it is legally barred by some statute of limitations is as binding upon the debtor as it was before such debt was so barred; and hence it would seem proper, where the question of statutory bar has not been raised in the trial court and. before judgment, to consider it as having been waived. It was shown in the case of Maxwell against Mrs. Denton that she was a non-resident of the state of Kansas, and therefore in all probability no statute of limitations ever even commenced to run in her favor, and in such a case it would have been futile for her to have interposed the defense of any such statute. But what statute could she rely on ? What statute if any, could have commenced to run in her favor? A two-years statute, or a three-years statute, or a five-years statute, or some other statute ? And when did such statute commence to run ? When does a cause of action accrue against a stockholder in a corporation ? Is it when the cause of action first accrues against the corporation itself? or when the judgment thereon is rendered against the corporation ? or when the first execution is returned unsatisfied ? or when some subsequent execution is returned unsatisfied ? or may the action be brought against a stockholder at any time while the judgment against the corporation is in force? All these questions are judicial in their character, and none of them has ever been determined by this court. Mere defects in a petition do not render the judgment subsequently rendered upon it void. Even a petition which might be held to be insufficient, if challenged by a demurrer, or in some other manner before judgment, might in many cases be held to be sufficient to sustain a judgment subsequently rendered upon it, where thejudgment is attacked only indirectly and collaterally. If the petition sets forth facts sufficient to challenge the attention of the court with regard to its merits or authorize the court to deliberate with respect thereto, then thejudgment subsequently rendered upon it is not void, but at most is only voidable, and it cannot even then be held to be voidable except when it is attacked directly and in a direct proceeding. (Greer v. Adams, 6 Kas. 203; Rowe v. Palmer, 29 id. 337; and cases hereafter cited.)
II. The petition in the action of Maxwell against Mrs. Denton alleged, among other things, “ that both of the said executions remain wholly unsatisfied, by reason that there cannot be found any property belonging to said corporation whereon to levy.” Also, the returns of the sheriff on the executions were attached to and made a part of the petition, and both of such returns show that no property could be found whereon to levy. This, we think, sufficiently answers the point made by the plaintiff, that the petition does not allege that “there cannot be found any property whereon to levy such executions.”
III. The next ground for reversal, numbered “second” in the plaintiff’s brief, is, that the publication notice in the case of Maxwell against Mrs. Denton is not sufficient, and this for the reason that the notice does not give the names of all the defendants in the action. The notice, in its title, gives the names of the parties as follows: “Newton Maxwell, plaintiff, v. Charles Euth, Mary E. Denton, et al., defendants.” There were really no defendants in the action except Charles Eath and Mrs. Denton, for no service of summons upon the other persons whose names are found in the petition was ever made, and the notice gave the names of Eath and Mrs. Denton, except that the name of Eath was given as “Charles Euth.” Mrs. Denton was the only person upon whom it was desired to obtain service of summons by publication, and after giving the title of the case in the publication notice, as above stated, the notice then proceeded as follows: “ Mary E. Denton, of Middleton, New York, is hereby notified that she has been sued,” etc. The notice was in all respects, except as above mentioned, formal and sufficient; and we think it was sufficient in every respect, and valid. It was sufficient to advise Mrs. Denton of the nature and character of the action brought against her, and of her interests which were sought to be affected by the action, and was to her a substantial compliance with all the requirements of the law. This was certainly sufficient.
IY. It is claimed by the plaintiff that a certain affidavit found in the case of Maxwell against Mrs. Denton, and entitled “affidavit of non-residence,” is void. We think, however, that this affidavit is valid as far as it goes; and in this connection, and in answer to the plaintiff, we might also state that in this state “all contracts which by the common law are joint only, shall be construed to be joint and several,” and “in all cases of joint obligations and joint assumptions of co-partners or others, suits may be brought and prosecuted against any one or more of those who are so liable.” (Comp. Laws of 1885, ch. 21, §§ 1, 4.) And the affidavit as given in the record of this case sufficiently shows that service of summons could not be personally made upon Mrs. Denton within this state. But even if this affidavit were void, it could make no difference in this case, for there were two other affidavits presumably sufficient.
V. But it is claimed by the plaintiff that the two affidavits above mentioned are void, and that all the subsequent proceedings based thereon are also void. One of these affidavits was to authorize the issuing of the order of attachment, and the other was to authorize the service of summons by publication. These affidavits were made and properly filed in the case of Maxwell against Mrs. Denton, but afterward they were lost or destroyed, and consequently could not be introduced in evidence on the trial of this case. There is nothing in the record, however, tending to show that either of them was not sufficient, and from anything appearing in the record, both of them may have been amply sufficient. As to what evidence was introduced with regard to their sufficiency or insufficiency, or as to the sufficiency or insufficiency of their contents, the record is silent. And for this reason the plaintiff claims that we should presume that they are void, and cites the case of Hargis v. Morse, 7 Kas. 415, as authority. That case, however, hardly goes to the extent claimed for it; and besides, the principles enunciated in that case have been greatly modified, and some of them overruled by subsequent decisions. (Shields v. Miller, 9 Kas. 390, 396, 397; Bixby v. Bailey, 11 id. 359; Bartlett v. Feeney, 11 id. 593; Ogden v. Walters, 12 id. 282, 292; Haynes v. Cowen, 15 id. 637, 645.) Indeed, about all there is in the case of Hargis v. Morse, 7 Kas. 415, which can be considered as favoring the contention of the plaintiff, has been overruled. (Haynes v. Cowen, 15 Kas. 645.) Now as there is nothing in the record tending to show that the affidavits were insufficient, and as the attack now made upon them is collateral and not direct, we think it must be presumed that they were amply sufficient. (See also the authorities hereafter cited.)
VI. In attachment cases where the defendants are residents of the state of Kansas, the statute requires that an undertaking shall be given on the part of the plaintiff, “ but no undertaking shall be required where the party or parties defendant are all non-residents of the state, or a foreign corporation.” (Civil Code, §192.) Section 190 of the civil code provides that attachments may be had against any one or more of several non-resident defendants; and we think the above-quoted clause of §192 of the civil code, which provides that “no undertaking shall be required where the party or parties are all non-residents,” simply means to provide that no undertaking shall be required where the party or parties defendant in the attachment proceedings, or the party or parties against whom the order of attachment is issued are all non-residents, and does not necessarily include all the parties defendant in the case. In this state, and with respect to the defendants, all causes of action, all suits, and all judgments, are several, although in many cases they may also be joint. But from anything appearing in this case all the parties defendant, indeed all persons that were mentioned in the petition, may have been non-residents. But even if all the persons mentioned in the petition were parties, and even if they were all residents of Shawnee county, and even if an attachment bond was required in this case, would the failure to give it render the judgment subsequently rendered void when attacked collaterally as in this case ? In Ohio it has been held that it would not render even the attachment void. (O’Farrell v. Stockman, 19 Ohio St. 296.)
VII. It is also claimed by the plaintiff that the foregoing provision of § 192 of the civil code, dispensing with the undertaking in attachment pi-oceedings, where the defendants in the attachment are all non-residents, is unconstitutional and void, and this claim is made upon the ground that such provision violates § 2 of article 4, and § 1 of article 14 of the constitution of the United States, and §17 of the bill of rights of the constitution of Kansas. We think the statute is constitutional and valid.
VIII. The plaintiff further claims that the entire proceedings in the case of Maxwell against Mrs. Denton are void, for the reason that the officer’s return on the order of attachment shows that he served the order by simply posting a copy of the order in a conspicuous place upon the premises, and that it fails to disclose any reason for such substituted service. He claims that because the officer did not state in his return that there was no occupant of the premises, the return and all the subsequent proceedings in the case are void. Section 198 of the civil code provides that “when the property attached is real property the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order;” and § 205 of the civil code provides that “the officer shall return upon every order of attachment what he has done under it. The return must show the property attached, and the time it was attached.” And there is no statute requiring that the officer shall state what he did not do under the order of attachment, or that he shall give any reason for doing what he did in fact do under the order. The presumption always is, in the absence of anything to the contrary, that an officer does his duty; and in all probability he did his duty in this case. In all probability there was no occupant of the premises in question. Mrs. Denton was a non-resident of the state. We think the sheriff’s return in the present case is sufficient. As lending support to the correctness of these views, see the following cases: Wilkins v. Tourtellott, 28 Kas. 835; Rowan v. Lamb, 4 G. Greene, 468; Redus v. Wofford, 4 Smedes & M. 579; Ritter v. Scannel, 11 Cal. 238, 247, 248; Porter v. Pico, 55 id. 165, 172; Watt v. Wright, 66 id. 208.
IX. The next and last claim urged by the plaintiff is, that the sale of the land was made by an ex-sheriff and the deed was executed by an ex-sheriff, and therefore that the sale and deed are void. The sale and deed were made by the sheriff who received the writ, who levied upon the property, and who advertised the same for sale; but the sale was made two days after his term of office expired, and the deed was executed three days after his term of office expired. It is a general rule that the officer who commences to execute a writ of execution, or an order of sale, must complete the execution thereof. And it is also held that the execution of the writ is not fully completed until the deed for the property sold has been executed. (Tuttle v. Jackson, 6 Wend. 213, 224.) It is therefore generally held that the officer who levies upon the property, and advertises the same for sale, should not only sell it, but should execute the deed therefor, although his term of office may expire before the sale is made or before the deed is executed. (See case last cited, and also Anthony v. Wessett, 9 Cal. 103; Lemon v. Craddock, Lit. Sel. Cas. 252; Porter v. Mariner, 50 Mo. 364.) And in California it is also held that where a sheriff’s term of office has expired, the court may, independent of the statute, appoint a suitable person to execute the deed. (The People v. Boring, 8 Cal. 406.) In Kansas it is provided by statute as follows:
“ Sec. 109. Sheriffs, under-sheriffs and deputies may execute and return all such writs and processes as shall be in their hands at the expiration of their office, or at the time of their removal from office, which they shall have begun to execute by service, levy or collection of money thereon.” (Comp. Laws of 1885, ch. 25, § 109.)
“Sec. 459. The sheriff or other officer who, upon such writ or writs of execution, shall sell the said lands and tenements, or any part thereof, shall make the purchaser as good and sufficient deed of conveyance of the lands and tenements sold as the person or persons against whom such writ or writs of execution were issued could have made of the same, at or any time after they became liable to the judgment.” (Civil Code, §459.)
There is nothing in any of the statutes of Kansas that tends in the least to modify the provisions of the first section above quoted. The provisions of the second section above quoted may, however, be modified to some extent by the provisions of § 465 of the civil code. Section 465 provides among other things that when the term of office of the officer who made the sale has expired, or if he “shall be absent, or be rendered unable by death or otherwise to make a deed, . . . any succeeding sheriff or other officer,” may, by order of the court, make the deed; and then the statute provides ^such deed shall be as good.and valid in law, and have the same effect, as if the sheriff or other officer who made the sale had executed the same.” (Civil Code, §465.) We think the sale in the present case was unquestionably valid; and as it was confirmed by the court and a deed ordered to be executed thereon, and as the purchase-money was all paid by the purchaser, and as he immediately took the possession of the property and has been in the possession thereof ever since, we think he obtained at least a valid, equitable title to the property, whether the deed itself is valid or invalid, and this is all that the court below decided in the case, and hence it is not necessary for us to express any opinion with reference to the validity or invalidity of the deed. We would think, however, under the statutes construed in connection with the common law, that the deed made by the ex-sheriff who sold the property is valid. We are inclined to think that in cases like the present the purchaser is entitled at his election to obtain his deed, either from the ex-sheriff who sold the property, or by order of the court from his successor in office. However, we shall not now determine this question.
X. In conclusion, we would say that collateral attacks upon judicial proceedings are never favored; and when such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid. Irregularities alone are not sufficient to destroy the validity of judicial proceedings; nor are mere omissions from the record. On the contrary, it will generally be presumed, in the absence of anything to the contrary, that all that was necessary to be done with respect to any particu lar matter, by either the court or its officers, was not only done, but rightly done. (Paine v. Spratley, 5 Kas. 525; Bowman v. Cockrill, 6 id. 311, 324; Armstrong v. Grant, 7 id. 285, 291, 292; Burke v. Wheat, 22 id.722; Pracht v. Pister, 30 id. 568, 573; Pritchard v. Madren, 31 id. 38, 50, 51; Rounsaville v. Hazen, 33 id. 71, 76 ; Merwin v. Hawker, 31 id. 222; Cross v. Knox, 32 id. 725, 732, 733; Stetson v. Freeman, 35 id. 523, 532; and other cases hereafter cited.)
With respect to petitions or first pleadings, see the following cases: Greer v. Adams, 6 Kas. 203; Entreken v. Howard, 16 id. 551; Bryan v. Bauder, 23 id. 95; Rowe v. Palmer, 29 id. 337, 340.
With regard to service by publication, and all the proceedings based thereon, we would refer to the following cases: Gregg v. Thompson, 17 Iowa, 107; Gemmell v. Rice, 13 Minn. 400; Paine v. Mooreland, 15 Ohio, 435; Gary v. May, 16 id. 66; Nash v. Church, 10 Wis. 303, 312, 313; Quarl v. Abbett, 102 Ind. 233, 240; Lawler v. White, 27 Tex. 250; Loring v. Binney, 38 Hun, 152; Voorhees v. U. S. Bank, 10 Pet. 449; Cooper v. Reynolds, 10 Wall. 308; Ludlow v. Ramsey, 11 id. 581.
With reference to attachments, and all the proceedings based thereon, we would refer to the following cases. The last three cases above cited, and the following: Ritter v. Scannel, 11 Cal. 238, 247; Porter v. Pico, 55 id. 165, 172; Harvey v. Foster, 64 id. 296; Scrivener v. Dietz, 68 id. 1; same case, 8 Pac. Rep. 609; O’Farrell v. Stockman, 19 Ohio St. 296; Rowan v. Lamb, 4 G. Greene, 468; Redus v. Wofford, 12 Miss. (4 Smedes & M.) 597.
We think no material error was committed in this case, and therefore the judgment of the court below will be affirmed.
Horton, C. J.: Concurring.
Johnston, J.: Not sitting, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Horton, C. J.:
On October 27, 1884, D. K. Collins recovered a judgment against the St. Louis & San Francisco Railway Company for forty-five dollars, as the value of a certain cow, alleged to have belonged to him, and to have been killed by the engine and cars of the company, together with an attorney’s fee of fifteen dollars, and the further sum of nineteen dollars as costs. A transcript of the judgment was filed in the office of the clerk of the district court of Elk county, upon which an execution was afterward issued, directed to C. H. DeFord, the sheriff of Greenwood county; whereupon the railway company filed its petition in the district court of Greenwood county, asking that C. H. DeFord be restrained and enjoined from proceeding to collect the judgment, ássigning as its reason therefor that the judgment under which the execution issued was void. It was admitted at the hearing of the case that no appearance had ever been entered in the original case; that the railway company had not waived the issuance and service of the summons, and that the only service which was had upon the company was by a summons being delivered to one of its section foremen in Elk county. The injunction was refused, and a final judgment rendered in favor of-DeFord, from which order and judgment the railway company brings its case here.
The only question presented is, whether the service of the summons upon the section foreman was a valid service upon the railway company. The objection to the service is that the section foreman is not one of the persons or officers designated in § 68c, of the civil code. It was admitted upon the trial that no person had ever been appointed by the railway company in Elk county upon whom process and notices issued against the company might be served under the provisions of § 68a,' of the civil code. It was also admitted that the railway ran across the corner of Elk county for the distance of six miles; that the company had no depot or station in the county; that there was no person or officer in the county upon whom service could be made other than the section foreman; that the section foreman was a person in charge of from three to five men; that his duties were to carry out the instructions of the road master with reference to keeping the road-bed and superstructure in repair on a division about six miles in length; that it was the duty of the section foreman and the men under his charge to repair broken rails, or put in a tie, where the same appeared necessary, without being specifically directed so to do by the i’oad master. The trial* court held that the service, of a summons upon the section foreman was valid, upon the ground that he was a local superintendent of repairs. We perceive no error in this ruling. A superintendent, says Worcester, is “one who superintends; a director; an overseer.” A local superintendent of repairs is one whose duties are confined or limited to a particular county, city, town, place, district, or section. Generally, the section foreman carries out the instructions of his division road master as to the district or section under his charge, but he .has also authority as overseer to repair the road by putting in new rails or ties, when it is necessary so to do without any specific directions therefor. He is, therefore, for all purposes, a local superintendent of repairs. It is claimed that by the local superintendent of repairs is meant only persons or officers of a railway company who direct and control certain departments or divisions of its business, like master carpenters, road masters, master mechanics, etc. Yet many of such persons or officers are bound to carry out the instructions of higher officials, with reference to' their duties, and for some purposes the section foreman or boss, directs and controls, in a limited way, the repairs over the district or section under his charge.
It is further claimed that if the construction given by the trial court to the statute be sustained, the railway company will be subject to severe hardships, as section foremen’s headquarters are often situated at places remote from telegraph stations, post offices, or other places affording them an opportunity of notifying the officer whose duty it is to respond thereto; and that they are often wholly ignorant of the nature and purposes of judicial writs and of the importance of their being forwarded at once to their superior officers. A sufficient answer to this is contained in § 68a, of the civil code, which requires every railway company to designate some person residing in each county through which its road runs, or in which its business is transacted, on whom all process and notices issued by any court of record or justice of the peace of such county may be served. If any railway company does not wish process issued against it to be served upon its section foreman, freight agents, etc., it can relieve itself from having service made in this way, by designating in each county into which its road runs, or it does business, a person upon whom service shall be made, as required by the provisions of said § 68a.
The judgment of the district court will be affirmed.
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|
The opinion of the court was delivered by
Horton, C. J.:
On May 19, 1885, A. C. Gants, a hotel clerk at Wichita, took passage on a train of the Atchison, Topeka & Santa Fé Railroad Company from Wichita to New ton, intending to go to Peabody. He paid his fare to the conductor on the train from Wichita to Newton. He claims he was told by the conductor of the Wichita train that he could either continue on the train or go upon one an hour later. While at Newton, he purchased a ticket over the Atchison road for Peabody, and paid for it fifty cents. He remained at Newton nearly an hour to get shaved and look around the town, and about nine o’clock he took his seat in a car of a train at the depot; this was the eastern fast train, commonly called the “ cannon ball.” According to the regulations of the railroad company, this train was scheduled not to stop at Peabody except for the purpose of letting off passengers who had taken passage at some point west of Newton; but when it had no such passengers it would not stop at Peabody going east, and its first stopping-place would be Florence; Peabody is a station between Newton and Florence, about four miles west of Florence; the local train which stopped at Peabody left Newton before the cannon ball. According to the evidence of the railroad company, a brakeman upon the “cannon ball” announced before the train started that “it would not stop until it got to Florence.” Gants testified that just as the train started from Newton a trainman came to the car-door and said, “this train will not stop until it gets to Florence,” but he claims he did not know then where Florence is. He further testified:
“ Ques.: How long did the train which you say you boarded and saw headed toward the east, remain there ? Ans.: I think about twenty minutes.
“Q,. You had ample opportunity to get a ticket, and had ample opportunity to ask the men who were employed about that train, whether that train stopped at Peabody ? A. Yes, sir, I expect I did, if I wanted to.
“Q. You made no inquiries? A. No, sir.
“ Q,. It is a fact, from the time you arrived on the train going from Wichita to Newton you made no inquiries as to that train, as to what time the train started, and whether it stopped at Peabody ? A. No, sir.
“Q,. Never made any inquiries, either of the ticket agent or any person who had apparently charge there, although the train was standing there fifteen or twenty minutes after it got there, and while you were there? A. I do not think I did.
“Q,. How soon did you get aboard this train before it started? A. I cannot say; .probably five minutes.”
Gants, however, testified that when he bought his ticket for Peabody at Newton, he was told by the agent who sold him the ticket, “to take the next train.”
After the “cannon-ball” train had left Newton and gone about three miles, the conductor called upon Gants for his ticket; he presented a ticket for Peabody, and the conductor informed him that the train did not stop at Peabody, and demanded from him thirty-four cents in addition to his ticket for the fare from Peabody to Florence; Gants refused to pay the additional fare; the conductor then informed him that if he did not pay, in addition to his ticket, the fare from Peabody to Florence, he would have to stop the train and put him off; Gants replied “ that he would have to put him off, as he would not pay any further;” the conductor then told him he would put him off, and stopped the train for that purpose; after the train had been stopped the conductor in a gentlemanly manner requested Gants to leave the train; he refused to get off, and dared the conductor to put him off; he resisted being put off to the utmost of his power and ability; on account of this resistance the conductor was unable himself to remove him; but with the assistance of two or three persons he succeeded in ejecting him from the train; after the train stopped, and while the conductor was attempting to ejecting Gants from the car, a severe altercation took place between them; the railroad company offered evidence tending to show that Gants during this time used vile and profane language to the conductor in the car, which contained many passengers, a number of them being ladies.
After Gants was ejected from the train he walked a portion of the way back to Newton, and then got upon a hand-car and rode to Newton, arriving there between ten and eleven o’clock in the forenoon; in the afternoon or evening of the same day, he went to Peabody from Newton upon a local train, and the same day returned to Wichita. Upon his part, he claims that he was wrongfully ejected from the train, and was unlawfully kicked, bruised and injured in being ejected. This action was brought to recover damages therefor; verdict and judgment for Gants, for four thousand dollars. The railroad company moved for a new trial, which was refused, and it brings the case here.
The important questions presented in the record are: First, whether the railroad company had the right to eject Gants from the train; second, if the railroad company had that right, and Gants resisted to the utmost of his power and ability, whether he can recover for the injuries inflicted in his removal, unless they were willful, wanton, or malicious. The law is well settled that, in the absence of statutory provisions to the contrary, a railroad company may a(Jopt a regulation that a certain train or trains of passenger cars running regularly on its road shall not stop at designated stations or places; and it is the duty of a person about to take passage on a railroad train to in- ^ 1 ° form himself when, where and how he can go or stop, according to the regulations of the company. (Railway Co. v. Nuzum, 50 Ind. 141; 9 Am. & Eng. Rld. Gases, 307, 317; 3 id. 340; Railway Co. v. Swarthout, 67 Ind. 567; Henry v. Railroad Co., 76 Mo. 288.) In this state there is no statutory provision to the contrary, and as the train upon which Gants took passage was not to stop, under the regulations of the company, until it reached Florence, the conductor had the right, after the train started, to stop the train and require Gants to leave it, if he refused to pay the fare which, in addition to the sum paid for his ticket, would have entitled him to ride to Florence. (Fink v. Railroad Co., 4 Lans. [N. Y.] 147; Railroad Co. v. Pierce, 3 Am. & Eng. Rld. Gases, 340; The Penn. Co. v. Hine, 41 Ohio St. 276.) It was the duty of the railroad company to the public to run its trains according to its regulations, and it was also the duty of Gants to have informed himself whether the train stopped at Peabody. It is claimed, however, upon his part, that when he purchased his ticket he was told by the agent to take the next train, and therefore that he was without fault in getting upon the “ cannon ball.” In his direct examination, Gants testified:
“ Ques.: Upon your arrival at Newton, what did you do ? Ans.: I bought a ticket and went up town. ■
“ Q,. For what purpose ? A. I wanted to get shaved and look around the town a little.
“Q. How long did you remain in Newton ? A. Why, I should say a little over an hour; a little over an hour, perhaps.”
If he purchased his ticket immediately upon his arrival at Newton, the agent at the depot very properly told him “to take the next train,” as there was evidence tending to show that a local train which stopped at Peabody left Newton for the east soon after Gants reached there. Subsequently, in his examination, Gants testified that he bought his ticket after he got shaved and had looked around the town. If this be true, and he was misinformed by the ticket agent and thereby induced to take the fast train going east, which did not stop at Peabody, this would give him a remedy against the railroad company for its breach of contract, but would not justify him in refusing to leave the train when ordered so to do by the conductor. “The business of railroads can only be carried on safely by having regularity. If trains are arranged in a certain way and their time fixed with regard to limited stoppages, a conductor would never be safe if he were bound at his peril to ascertain from any mere stranger the existence of an agreement by the company to change the arrangement and stop at an unusual place.” (Railroad Co. v. Pierce, supra.)
Under all the evidence in the case, whether Gants was upon the train, by mistake, or wrongfully, he should have paid the extra fare to Florence, when demanded, or left the train when it stopped and he was ordered to get off. If his mistake was induced by the company’s ticket agent, then the fare from Peabody to Florence would be a proper element of damages, in addition to such as were occasioned by the failure to take him to Peabody on the train which he was told to take. If, however, he was misinformed by the local agent, but subsequently, after entering the train and before it started, was afforded such means of correct information by the announcement of the brakeman, or otherwise, as a reasonable and prudent man would not neglect, he could not thereafter rely in good faith upon the incorrect statement of the agent from whom he bought his ticket. Even if Gants made a mistake in taking the train, induced by the ticket agent, it was not necessary for him to invite force to secure his legal demands. In Townsend v. Railroad, Co., 56 N. Y. 295, Grover, J., said:
“No one has a right to resort to force to compel the performance of a contract made with him by another. He must avail himself of the remedies the law provides in such case.”
In Bradshaw v. Railroad Co., 135 Mass. 407, Allen, J., said:
“If a railroad company has agreed to furnish a passenger with a proper ticket and has failed to do so, he is not at liberty to assert and maintain by force his rights under that contract; but he is bound to yield, for the time being, to the reasonable practice and requirements of the company, and enforce his rights in a more appropriate way. It is easy to perceive that in a moment of irritation or excitement, it may be unpleasant to a passenger who has once paid to submit to an additional exaction. But unless the law holds him to do this, there arises at once a conflict of rights. His right to transportation is no greater than the right and duty of the conductor to enforce reasonable rules, and to conform to reasonable and settled customs and practices, in order to prevent the company from being defrauded; and a forcible collision might ensue. The two supposed rights are in fact inconsistent with each other. If the passenger has an absolute right to be carried, the conductor can have no right to require the production of a ticket or the payment of fare. It is more reasonable to hold that, for the time being, the passenger must bear the burden which results from his failure to have a proper ticket.”
In Railroad Company v. Connell, 112 Ill. 295, Craig, J., said:
“We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place he was ejected from the cars, to New York. He was also entitled to recover such damages as he sustained on. account of the delay occasioned by the expulsion, and all additional expense necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton.”
In Hall v. Railroad Co., 15 Fed. Rep. 61, Hammond, J., said:
“ The conductor is somewhat like the master of a ship. He has police powers and disciplinary control over the train, and the quiet and comfort of the passengers and their safety are under his protection. He should be obeyed by the passengers, and the common notion that force must be invited to secure legal demands against his unlawful exactions, is in my judgment erroneous and vicious. All that a passenger need do is to express his dissent to the demand made upon him, and he need not require force to be exerted to secure his rights, certainly not to increase his damages. ... I fully recognize the feeling of a Tree American citizen’ in the face of threatened wrong or insult, but the safety of the ship forbids that he should fight with the master, and imperil the ship and lives and property she carries. Better that he should suffer the wrongs than to endanger or discomfort his fellow-passengers. The conductor of a railroad train is not altogether as supreme, perhaps, as the master of a ship; but on analogous principles, that seem to me obvious, it is, I think, the duty of a passeuger to avoid resistance beyond mere dissent, and submit to his authority without more than mere protest, unless resistance is necessary to defend himself against impending personal injuries.” (See also S. K. Rly. Co. v. Rice, ante, p. 398; S. K. Rly. Co. v. Hinsdale, ante, p. 507.)
Clearly, if Gants was a trespasser upon the train, as this case was put to the jury, then the conductor had the right to put him off, and it was his duty to go off with-out being forced to do so. ° If the conductor had # the right to put him off, Gants at the same time could not have a legal right to resist, and necessarily he could not resist the conductor in the discharge of a duty and the exercise of a right and by that resistance acquire a right to resort to any force to overcome it. Of course we J do not intend to intimate that a trespasser upon a train can be treated in a willful, wanton and malicious. manner. (K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kas. 655.)
In the conclusion which we have reached regarding the right of the conductor to eject Gants from the train, even if he made a mistake in taking it, induced by the ticket agent, upon his refusal to pay the fare demanded, we do not overlook the fact that a railroad company is a public carrier, and that some of the authorities are in conflict with the doctrine herein announced. A moving train filled with passengers, including ladies and children, is not the place for a wrangle, a quarrel or a fight with the conductor. The interests of the public are to be considered in such a case, as well as the interests of a private individual. As was said in Railroad Co. v. Connell, supra, “It would be unwise and dangerous for the traveling public to adopt any rule which might encourage resort to violence on a train of cars.” This conclusion will prevent breaches of the peace upon railroad trains instead of producing them, and at the same time will fully protect the passenger, by making the company responsible for all damages resulting from any breach of its contract. In addition to this, if a passenger has suffered in his business, or been put to expense by the delay or refusal of the railroad company to carry him as promised by its ticket agent, he would be entitled to ample damages therefor. In this connection it is well to state that where a trespasser is ejected from a train, such ejection may be at a place other than a depot, or station, provided care is taken not to expose his person to serious mmry or danger; but in such an election -i^-i . 7 . J the railroad company is not required to have consideration for the mere convenience of the wrongdoer. (Lillis v. Railway Co., 64 Mo. 464; McClure v. Railroad Co., 34 Md. 532; Railway Co. v. Miller, 19 Mich. 305; O’Brien v. Railroad Co., 15 Gray, 20.)
The trial court'in its instructions to the jury treated Gants as a trespasser upon the train, after he refused to pay fare from Peabody to Florence, and to leave the train; but further instructed the jury as follows:
“8. If you find from the evidence that an unnecessary degree of force was employed, and that plaintiff was injured thereby, in that case he would be entitled to recover in this action.”
“11. But in determining what is a reasonable degree of force under the circumstances of this case, you should consider the amount of resistance opposed by the plaintiff to those who were attempting to eject him, and if you find that the plaintiff suffered injuries which were the direct and necessary result of the application of force rendered necessary by his own resistance, he cannot recover for such injuries; but the use of a degree of force disproportionate to the resistance to be overcome would render the trainmen wrongdoers in turn, and would render the company liable for any injuries committed by reason thereof.
“12. I instruct you that if the plaintiff had exerted himself to the utmost in resisting the efforts of the trainmen to expel him, and that, in overcoming such resistance the trainmen used more force and violence than were necessary for the purpose, and without any intention to commit unnecessary injury, plaintiff was injured thereby, in such a case the resistance offered by the plaintiff may be considered in mitigation of damages.”
“ 20. If, under the evidence and instructions of the court, the jury find for the plaintiff, then in estimating the plaintiff's damages, if any are proved, you have a right to take into consideration the personal injury inflicted upon him, the pain and suffering undergone by him, in consequence of his injuries, if any are proved, the loss of time occasioned thereby, the reasonable cost of medical attendance, and also the permanent loss or damage, if any is shown, arising from disability, resulting to the plain tiff from the injury in question, rendering him less capable of attending to his business than he would have been if the injury had not been received; plaintiff would also be entitled for any sum of money lost by him as a direct consequence of the wrongful acts complained of, and if they were wrongful, any money was so lost; and if you further find from the evidence that the injury complained of was inflicted wantonly or willfully, and that the plaintiff has sustained damages thereby, then the jury are not limited in assessing the damages to mere compensation for damages actually sustained, but you may give him a further sum by way of exemplary or vindictive damages, as a protection to the plaintiff and as a salutary example.”
The railroad company requested the following instruction, which was refused:
“ In determining the question in this case as to whether the trainmen on the train from which plaintiff was ejected used more force or violence than was necessary to be used in ejecting plaintiff from such train, you are to take into consideration the amount of resistance offered by plaintiff to such ejection; and if you find that he resisted the attempt of the conductor to put him off from such train’with all the force and power he was capable of using, then, and in such a case, you are instructed that the law will not with a nicety .weigh the amount of force necessary to be used in overcoming such resistance, and that in such case the defendant would only be liable in a case of palpable and perfectly apparent use of force beyond that which was clearly necessary to be used in overcoming the resistance offered by plaintiff.”
If Gants was a trespasser upon the train, the conductor had the right to eject him, and we think the railroad company can only be made responsible for the injuries inflicted which were willful, wanton, or malicious.
In refusing to give the instruction prayed for, and in giving to the jury the twelfth instruction, and also the twentieth, the court made the railroad company liable in damages for all excessive force used in overcoming the resistance of Gants, although such force was used “without any intention on the part of the conductor or those assisting him to commit injury.” The first clauses of the twentieth instruction permitted Gants to recover for “the personal injuries inflicted upon him, and the suffering undergone by him in consequence of his injuries,” although a part of the injuries may have been occasioned in overcoming his own unlawful resistance. In Galbraith v. Fleming, (Mich.) 27 N. W. Rep. 581, the court said:
“ The law does not put a premium upon fighting, and one who voluntarily enters into a quarrel will not be afforded re lief for his own wrong in damages, if he come out second best. While the voluntary act on the part of the plaintiff would not preclude the state from punishing him or the defendant for a breach of the peace, it nevertheless prevents him from bringing a civil action to recover compensation for injuries received by his own seeking and in violation of law.”
In Taylor v. Clendening, 4 Kas. 524, it was held that—
“Where a person who was the original aggressor in an affray, met with too vigorous a defense and sued for damages on account of the injuries, could not recover of his intended victim.”
It has been decided by this court, time and again, that whenever it appears that the plaintiff’s negligence or wrongful act had a material effect in producing the injury, or substantially contributed toward it, he is not entitled to recover; and further, that if a plaintiff is first in fault in infringing upon a defendant’s rights, the defendant is absolved from all but slight care, and is liable only for gross or wanton negligence. (U. P. Rly. Co. v. Rollins, 5 Kas. 167; K. P. Rly. Co. v. Pointer, 14 id. 37.) In the latter case it was said by Brewer, J.:
“Many considerations, especially the difficulty of correctly apportioning the damages, and determining to what extent the wrong of the respective parties was instrumental in causing the injury, uphold the rule so universally recognized, that where the wrong, the negligence of both parties, contributes to the injury, the law will not afford any relief.”
In this case, Gants could have remained upon the train and gone to Florence by paying the fare from Peabody to that station; or, when the train stopped he could have left the train when requested to do so by the conductor in a gentlemanly manner; and it is .clearly evident that if he had done either, he would not have suffered any personal injuries at the hands of the conductor or trainmen. He stubbornly refused to pay the additional fare, and also forcibly resisted when requested to leave the train. He did all of this after the conductor had informed him that the train would not stop at Peabody, and that he must pay to Florence or get off. Under the rule established in this state in Taylor v. Clendening, so long ago as 1868, Gants ought not to recover, even if his resistance might have been overcome with something of less force than the conductor and his assistants actually used, unless such excessive force was willful, wanton, or malicious.
By resisting to the utmost of his power and ability, Gants invited force; and he ought not to complain of the force used if there was no intention upon the part of the conductor or his assistants to commit unnecessary injury. On the other hand, if Gants, although a trespasser upon the train,' received injuries which were the direct and necessary result of willful, wanton or malicious acts of the conductor, or those assisting him, he is entitled to his damages. (K. C. Ft. S. & G. Rld. Co. v. Kelly, supra.)
Counsel for Gants insist that the decisions are that a trespasser can recover for all injuries arising from the use of unnecessary force, without regard to whether it was willful, wanton, or malicious; and also insist that this court has recognized this rule in M. K. & T. Rld. Co. v. Weaver, 16 Kas. 456; and K. P. Rly. Co. v. Kessler, 18 id. 523. In the Weaver case, the railway company was found by the jury to have been the aggressor after the passenger had been ejected and put upon the ground. The expulsion in that case was held to have been wrongful, but as it did not seem to the court to have been wanton, or excessively cruel, the damages were deemed excessive and the judgment reversed. In the Kessler case the court held that in the wrongful expulsion of the passenger from the train, the railroad company was guilty of such gross negligence as amounted to wantonness; and yet, even then, with much hesitation it affirmed a judgment of eight hundred and twenty dollars only.
In several of the cases cited by counsel, where damages have been allowed for unnecessary force, the unnecessary force was wanton or malicious. In McKinley v. Rld. Co., 44 Iowa, 314, the acts of the brakeman, for which the company was held liable, were malicious and criminal. In Bass v. Rly. Co., 39 Wis. 636, the passenger peaceably and lawfully entered a ladies’ car in which there were many vacant seats, and when about to occupy one was rudely and violently seized by a brakeman, aided by a volunteer, and forcibly thrust from the car. The passenger was not at first requested to leave the car, or forbidden to enter it. In that case, the assault was willful, wanton, and malicious. In Jackson v. Rld. Co., 47 N. Y. 274, the passenger tendei’ed five cents for fare on a street car and the conductor demanded six. This was refused. The conductor caught the passenger around the waist and stopped the car to put him out. The passenger refused to leave the car, and resisted; the conductor struck him a blow on his nose, but made no further attempt to eject him. The blow struck by the conductor was held by the trial court to have been willful and malicious; and the case was reversed, because it was not left to the jury to determine whether the act was done without malice or ill-feeling. In Hanson v. Rly. Co., 62 Me. 84, after the passenger had ceased all resistance and was returning to his seat with his back to the brakeman, the latter struck him several blows with an iron poker, two feet long and half an inch in diameter, about the head and shoulders and over the eye. Evidently the assault of the brakeman in this case was also willful, wanton, and malicious. In Coleman v. Rld. Co., 106 Mass. 160, the passenger who was ejected was struck two or three heavy blows behind the ear, and thrown bodily upon the platform of the depot. The trial court in that case instructed the jury that the railroad company was responsible for excessive or unreasonable force; but also stated to the jury that the passenger “had no right to resist the process of being put out.” In the opinion in that case, it was said that—
“Violence on the part of the passenger would increase the violence necessary and proper to be used on the part of the employés; and if it contributed in any degree to the violence of his fall, or to the aggravation of his disease, he cannot recover for the injuries he received. The burden was on him to prove that his own illegal acts did not in any degree contribute to the alleged injury, but that it was wholly caused by the wrongful acts of the railroad company’s servants.”
This language plainly implies that the unnecessary force must be wanton or malicious.
We think a critical examination of the decisions will demonstrate the general rule to be that where parties are permitted to recover solely on account of injuries inflicted by unnecessary force, or excessive violence, the facts in the cases disclose that the force or violence used was willful, wanton, or malicious; and that in most of the cases “unnecessary force” or “excessive violence” was used as synonymous or tantamount to wanton or malicious force.
But counsel insist that the excessive force used in this case’ was willful and wanton; and therefore that the judgment should not be disturbed. We cannot assent to this. Under the instructions the jury were not authorized to separate the force used in overcoming obstinate and forcible resistance with no intention to commit injury, from the force that was used willfully, wantonly, or maliciously, if any such force was used. Even if Gants was upon the train under the direction of the ticket agent and without fault on his part, as before remarked he should have paid the extra fare to Florence, as he was able to do, or left the train when it stopped. Eor the mistake of the ticket agent, or the wrong of the railroad company, if any, he had ample remedy. (S. K. Rly. Co. v. Rice, supra; Mfg. Co. v. Boyce, 36 Kas. 350.)
As a new trial must be ordered, we will dispose of the minor alleged errors: There was evidence on the part of the railroad company that prior to his removal from the train, Gants used vile, obscene and profane language. Gants introduced two witnesses to show that he was not in the habit of using obscene or profane language. One of the witnesses testified that he had known Gants over a year, and that he never heard him “use half a dozen oaths in his life.” Another witness testified that he never heard him “ use obscene language in public, but that he might have heard him make use of an oath sometimes, but not frequently.” We do not think the answers of the witnesses very material, or as tending to prove much. Whether Gants had a great propensity to use obscene language, not imPortant. If such evidence were permitted, it would present a collateral issue, and we do not think, under the authorities, that this evidence in this kind of a case is competent. (Thompson v. Bowie, 4 Wall. 463; Commonwealth v. Kennon, 130 Mass. 39.)
Also, the question permitted to be asked upon cross-examination of one of the witnesses as to the number of saloons in Las Animas and La Junta, Colorado, was wholly improper, because it did not tend to rebut, impeach, modify or explain any of his testimony.
Again, we do not think that the evidence of what the conductor of the Wichita train told Gants was admissible. If it were true, it was not sufficient ground for Gants to refuse to pay his fare to Florence, or to resist removal from the train. A conductor in the line of his duty in collecting t ... ° fare, taking up tickets and in giving information the pagseDgerg on jjjs train, represents the company as to the running and operation of his own train, but in this case the Wichita train stopped at Newton, and Gants had to change cars at that place in order to go to Peabody. In the case of Railroad Co. v. Gilbert, 22 Am. & Eng. Rld. Cases, 405, cited, the conductor instructed the passenger to keep her seat upon his train, although she had a ticket for a train that branched off in another direction. The court there very properly held that the answer of the conductor was equivalent to saying she was on the right train; and held the railroad company responsible in damages, but did not intimate that she could have increased her damages by refusing to leave the train when ordered. (See Railroad Co. v. Carper, 14 N. E. Rep. 352; 13 id. 122.) There was some evidence tending to show that Gants was removed from the train with the assistance of one or two passengers; and it is claimed on the part of the railroad company that the company is not responsible for their acts, unless they were requested by the conductor to assist. It was not necessary that the conductor should have
given express directions to all concerned in the ejection, but if any passenger aided the conductor, , • i i • . n or trainmen, with his permission and sanction, a jury might infer an employment. If, on the other hand, the passengers were mere interlopers, and the conductor had no opportunity to interfere with their actions, it would not be fair that the railroad company should be held responsible for their acts.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The error alleged in this case is the ruling of the court below sustaining a demurrer to the petition of the plaintiff in error. It is alleged in substance, that on the 12th day of December, 1882, the plaintiff in error was the absolute owner in fee simple of a tract of land consisting of five acres, more or less, in the city of North Topeka; that the defendants Stilson & Bartholomew, as partners, conspired with one Charles E. Jewell to cheat and defraud plaintiff of said land and his title thereto, and to acquire the same to their own use and benefit at a grossly inadequate and unjust price; that on the 12th day of December, 1882, at the city of Lawrence, where the plaintiff resides, the defendant J. B. Bartholomew, in pursuance of said conspiracy to cheat and defraud plaintiff, did then and there falsely and fraudulently state to plaintiff that his title to said tract of land was wholly and absolutely invalid, and that before he had acquired any deed or supposed title to said land, his grantors had been barred and foreclosed of all or any title of any kind or character to said tract of land by good, regular and valid proceedings, orders, judgments and decrees in the probate and district courts of Shawnee county, Kansas; that good, regular and valid tax deeds for taxes amounting to more than three times the value of said tract of land had been made and issued in said county of Shawnee against said land; that the defendant Charles E. Jewell then owned said tract of land and had a good and valid title in fee-simple of the same, free and clear from any claim, lien or incumbrances; that the chain of title, standing of record, in the name of said plaintiff, was of no actual value, but simply looked bad upon the record and might interfere with the sale of the land; that Jewell could have the same removed in court at any time, at a cost of not more than thirty or thirty-five dollars, but rather than take that trouble, Jewell preferred to give plaintiff in error $50 for a deed to said tract of land; that all, each and every one of the statements and representations so made to said plaintiff by the defendant Bartholomew are false, and then known to said Bartholomew to be false in each and every particular; that the plaintiff in error is deaf and dumb, and unfamiliar with business and the ways of business men, and because of his infirmities he is compelled to rely on the representations of others in any business which he may transact; that at this- time he was some distance from the records of Shawnee county and its courts, and had no access to them to examine the title of said tract of land; that he believed and relied upon the false and fraudulent statements and representations made by Bartholomew, and wholly and solely because he believed and relied upon the same, he did, under the direction and at the instance of said Bartholomew, then and there make, execute and acknowledge a deed of said land to Charles E. Jewell, who delivered the same to Bartholomew, which was afterward recorded in the office of the register of deeds for Shawnee county, at page 594 of record of deeds, No. 83; that Bartholomew then and there paid the plaintiff the sum of fifty dollars for the said deed, falsely and fraudulently pretending that the same was furnished and paid by the defendant Jewell, when in truth and in fact it was furnished by the defendants Stilson & Bartholomew, and that they were the real parties in interest in the said transaction.
He further alleged that, on the 12th day of December, 1882, the said tract of land was of the value of more than eight thousand dollars, and that the deed so procured of him was ’of the value of more than eight thousand dollars; that on the 14th day of December, 1882, in pursuance of said conspiracy, Jewell deeded the said land to Stilson & Bartholomew, which deed is recorded at page 609 of volume 81, of the records of deeds of Shawnee county; that the plaintiff continued to believe and rely upon each and all of the said false and fraudulent statements and representations of Bartholomew, until within the year next preceding the commencement of this action, when he first discovered that said statements and representations were false and fraudulent; that sometime in May, 1884, he discovered that he had on the 12th day of December, 1882, a good fee-simple title to said tract of land, of the value of more than eight thousand dollars, and that the defendants well knew the same on the 12th day of December, 1882, and that no valid tax deed had then ever been issued, and the defendants well knew the same; that on the 11th day of November, 1884, he tendered to the defendant Stilson the sum of fifty dollars, with interest at the rate of seven per cent, per annum from the said 12th day of December, 1882, to the 11th day of November, 1884, and demanded of him the deed for said tract of land, and that Stilson then and there refused to accept the same and make such deed; and plaintiff brought the same into court to abide its order; and prayed that each of said deeds might be annulled, vacated and set aside, and that Stilson be ordered to make to him a- good, sufficient quitclaim deed for said tract of land, and that every person claiming by, through, from or under the defendants, be forever barred, etc.
The defendants demurred to the petition because it does not state facts sufficient to constitute a cause of action against the said defendants, or either of them.
The contention in favor of the ruling sustaining the demurrer is, that the statements of Bartholomew as to the title of Curtis, and as to that of Jewell, and as to the existence of the tax titles on the land, are misrepresentations as to matters of law, which are placed as much within the competency of Curtis to solve or procure others so to do, as within that of Bartholomew, Stilson, and Jewell; or, that these representations were upon a matter of opinion; or, were upon matters of fact, equally open to the inquiries of both parties, and in regard to which neither can be presumed to trust the other.
Mr. Bartholomew went to Lawrence, some distance from North Topeka, and in another county, and made a positive statement to Curtis, an old, deaf, dumb and infirm man, who from his situation in life is compelled to rely to some extent on the statements of those with whom he deals, that his title to a tract of land that Bartholomew wanted to buy is not good; that it is of no value; that the title of his grantors had been adjudged by the probate and district courts of Shawnee county invalid, and that they had been barred of right, title and interest in and to the land; that there were valid tax deeds issued upon said land, the taxes amounting to more than three times its value. By these statements he procured a deed, to be executed for a consideration of $50, when it is alleged that its true value was exceeding $8,000. These statements were not made as the expression of an opinion by Bartholomew, but were stated positively, and as a matter of knowledge. Bartholomew lived near the land, and at the place where these things asserted by him had an existence, if at all. The plaintiff in error did not live in the county, and had no immediate means of determining the truth or falsity of the statements. He believed them, and, influenced and induced by that belief, gave Bartholomew a deed for the land in consideration of fifty dollars. It is alleged that all these statements ° were false, and known to Bartholomew to be false, an(j ma(je by him. with intent to cheat, wrong and defraud Curtis. We think the petition sufficiently states a cause of action within the spirit of the decisions of this court, in McKee v. Eaton, 26 Kas. 227; Glaggett v. Crall, 12 id. 393, and the authorities cited in those cases.
“Whoever positively and generally makes a false assertion, as an inducement for another to contract with him, and succeeds on that ground, is guilty of fraud which vacates the contract. It must be as represented, or it is fraudulent.” (Wickham v. Grant, 28 Kas. 517.)
“A distinct statement of a fact by a seller, knowing it to be false, and with intent to deceive the buyer, and on which the buyer acts to his own injury, will sustain an action of deceit, even if the buyer might have discovered the fraud by searching the records.” (David v. Park, 103 Mass. 501.) ' • '
“The falsity and fraud consists in representing that he knows the facts to be true, and this renders him liable to a party who relies and acts upon the statements as true.” (Litchfield v. Hutchinson, 117 Mass. 195.)
The statements made by Bartholomew were of facts susceptible of knowledge, as distinguished from matters of mere belief or opinion, and they were calculated to have a material influence in deceiving the plaintiff in error, and in inducing him to part with his property. (Safford v. Grout, 120 Mass. 20.)
The allegations of the petition, construed with reference to the common meaning and natural import of the language used by Bartholomew, charge statements of fact, and not mere expressions of opinion or of belief. He told Curtis that Jewell-was the owner, and had a good title. He stated positively the existence of tax deeds. He stated positively that Curtis had no title, and that the only effect of his deed would be to prevent a sale. He did not represent these things as being the opinions or belief of himself or of lawyers who had examined them, but he asserted them as facts. We are not disposed to consider such questions in a narrow or technical sense, “for whenever it is shown to the court that wrong has been perpetrated, the rules of law will be found pliable enough to furnish a remedy.”
It is recommended that the judgment be reversed, and the cause remanded.
By the Court; It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action to foreclose a mortgage on one hundred and sixty acres of land in Shawnee county. The land was the homestead of Robert S. Gab-bey and his wife Annie W. Gabbey, who resided thereon. The suit was instituted by R. T. Lee, who claimed a mortgage thereon, and he made William J. Norris, , who claimed a second mortgage lien thereon, a party defendant. Norris answered, and filed a cross-petition, claiming that the defendants, Robert S. Gabbey and Annie W. Gabbey, executed and delivered to him a mortgage on the same land to secure a note for $1,500, dated April 9, 1872, due in twelve months thereafter, with interest at the rate of 12 per cent, per annum, the note signed by the husband, the mortgage signed and acknowledged by both husband and wife, and asking that it be declared a lien, and be foreclosed. Annie W. Gabbey filed an answer to the cross-petition of Norris, in which she alleged her homestead rights in the land; that more than the sum of $3,000 of the purchase-money of the laud had been her personal property derived from the estate of her father; that her signature to the mortgage was procured by fraud of both her husband and Norris, and was by force and violence as well as by fraud, extorted from her by her husband, with the full knowledge of Norris; that the fraud and violence spoken of consisted of threats of personal violence by her husband if she did not sign the mortgage,• and of actual force; that without this fraud and threat of personal violence, she would not have signed the mortgage. She asked that the mortgage be declared void, and her answer was verified by h.er oath. The case was tried by a jury. The assignments of error are various exceptions to the rulings of the trial court in excluding testimony, and many exceptions to the instructions of the court to the jury. The jury found for Norris, and the court overruled a motion for a new trial. The exceptions to the exclusion of testimony are quite numerous, but all are of the same class, a few instances giving a general idea of the whole. E. E. Abbott, a witness for Mrs. Gabbey, stated in his deposition: “Annie W. Gabbey did not want to sign the mortgage, because it was on her homestead, but her husband insisted that she must do it, and forced her to sign it against her will.” The refusal of the court to permit this sentence to be read to the jury is assigned as error. It is very evident that tjiis is but a statement of the conclusions of the witness, and not a recitation of facts showing the acts and declarations of Mrs. Gabbey respecting the mortgage and what acts or declarations of Gabbey had forced his wife to sign. The same witness recited what was done at the time of the signature, and commented on the “excitement and distress” of Mrs. Gabbey, and added, “and we all pitied her.” This was very properly excluded.
Mrs. Gabbey testified: “ I also swear that my signature to the mortgage now held by ¥m. J. Norris on my homestead was not my voluntary act and deed, but was only obtained through fear of personal violence on the part of my husband.” This was excluded, because she did not attempt to state what particular acts of her husband caused the fear of personal violence. There are perhaps two instances in which the facts stated by the witness ought to have gone to the jury, but they were not important and controlling enough to be considered material errors. Apart from these two instances, the court seems to- have been unusually liberal in the allowance of testimony to the jury, and especially so in the case of Dr. Gab-bey and his wife. The instructions are criticised, and much complaint is made of the eighth, ninth, tenth, eleventh, and twelfth. The instructions complained of are as follows:
“8. Now if you find from the evidence that the defendant Annie W. Gabbey did sign the Norris mortgage, but that she signed it under compulsion or coercion on the part of her husband, Robert S. Gabbey; and that the acts of the defendant Robert S. Gabbey, which caused and induced her to sign this mortgage, were such as to make the act on her part wholly involuntary ; and that the threats and conduct of her husband, Robert S. Gabbey, were such as to reasonably create in her mind a fear of personal injury if she disregarded his demands; and that under these circumstances, and that because and by reason of such fear produced and induced by the violent actions and conduct of her said husband, Robert S. Gabbey, she did sign the mortgage, then, and under such circumstances, such signing and acknowledgment would constitute a legal defense against the defendant Broaddus, as executor of the Norris estate in this action; and under such circumátances your verdict should be for the defendant Annie W. Gabbey; and that the defendant Broaddus, as executor of the Norris estate, had not a lien for the payment of the debt due him from Robert S. Gabbey upon the land described in said mortgage. Now, in order to make duress or compulsion effective as a defense in this action, and sufficient to invalidate the Norris mortgage, the compulsion must have been so great as to take away the voluntary consent of the defendant Annie W. Gabbey, because her consent to the signing and acknowledging the instrument must have been voluntary, and therefore the compulsion must have been of such a character as to excite a sense of fear on her part of some grievous wrong, as of death, or of personal violence, or great bodily injury, or unlawful imprisonment. It is not enough that she signed the mortgage reluctantly or hesitatiugly simply, or that she signed it under protest, or even against her best judgment; but it must have been such a compulsion as would in fact destroy for the time being her freedom of action, and overcome her ordinary powers of resistance;, then, and if you so find that there was such compulsion used by her husband, Eobert S. Gabbey, to induce her to sign the mortgage, and that under and by virtue of such compulsion she did sign and acknowledge it, then your verdict should be that the defendant Broaddus, as executor of the Norris estate, has not a lien upon the land described in his answer and cross-petition for the amount due upon the promissory note sued upon by him.
“ 9. I further instruct you, that when a mortgage regular in appearance and bearing the genuine signature of the person, and such mortgage is duly acknowledged and certified by the mortgagors or grantors, and such mortgage is attacked to avoid liability thereunder, the evidence must be clear and convincing, and in such a case the burden of proof rests upon the party disputing the liability, of overcoming the presumption of validity arising from the terms of the written instrument of that character; and in such case, if the proof is doubtful, uncertain and unsatisfactory, and insufficient to overcome the presumption of validity, then it should be held that the writing correctly and fairly states the intentions of the parties, and testimony sufficient to destroy a written instrument, signed, acknowledged and delivered, as I have already stated, should be plain and convincing beyond all reasonable controversy.
“10. If you believe from the evidence in the case that Annie W. Gabbey did not sign the Lee mortgage, then your verdict should be for the defendant Annie W. Gabbey, as to that mortgage. And I further instruct you, that if you find that she did not sign or acknowledge it originally, that the evidence in the case shows no such ratification as would bind her and make it her own act; and if you find from the evidence that the land mentioned in the Norris mortgage was the homestead of Eobert S. Gabbey at the time of the execution of the Norris mortgage, and that it did not exceed one hundred and sixty acres of farming land, and that it was occupied by the defendant Eobert S. Gabbey as the residence for himself and his family; and if you further find that Mrs. Gabbey signed the Norris mortgage, but that she signed it through compulsion on the part of her husband, and such a compulsion as I have hereinbefore described, then you will find for her as to the Norris mortgage. And I further instruct you, that if you find from the evidence that the defendant Annie W. Gabbey did not give her consent to the execution, that is, to the signing, acknowledgment and delivering of the Norris mortgage, but that she signed it through fear of her husband, that he would do her bodily harm or personal vio lence if she did not sign it, then, and under such circumstances, tiie jury should find for the defendant Mrs. Gabbey.
“11. I further instruct you, that if you find from the evidence that Annie W. Gabbey signed the Norris mortgage under such circumstances as would in law amount to duress and compulsion, as I have hereinbefore instructed you, then you will find a verdict for her as to the Norris mortgage; and under such circumstances it would be wholly immaterial whether Norris acted in good faith or not.
“12. I further instruct you, that under the exercise of reasonable fear of violence, which would in fact overcome the power of reason, or the power of voluntary action on the part of Annie W. Gabbey, under the circumstances in which she may have been placed at the time of the signing of the Norris mortgage, would be sufficient in law to invalidate the mortgage as to her; and the word consent as I have used it in these instructions means the voluntary act, free and voluntary act, and not an involuntary act procured by the violence of another. So, if she signed the Norris mortgage under such duress or compulsion as I have described, then she never gave that consent to the alienation of the homestead that the law requires and recognizes.”
To the giving of the foregoing instructions the defendants, Robert S. Gabbey and Annie W. Gabbey, duly excepted. These instructions taken together, each modifying the others, very fairly presented the law upon the subject of duress, if this question was presented by the evidence. The record before us contains all the evidence presented. Both Mr. and Mrs. Gabbey testified in the case, and were permitted to give their version of the facts attending the signature and acknowledgment of the mortgage. Mrs. Gabbey said:
,“On the morning of April 9, 1872, Wm. J. Norris, C. W. Higginbotham, Dr. R. S. Gabbey, my husband, came to my house, Norris and Higginbotham remaining in the south room or parlor, and the Doctor passed into the north room, where I was crying, for fear I should be compelled to sign a mortgage on the homestead. The Doctor approached, and in a very angry and threatening manner said, ‘Dry up that crying, and go write your name.’ I went into the parlor at his command, spoke to no one, neither did anyone speak to me; the Doctor followed behind me. I took the pen and signed some paper without reading it, or knowing positively what it contained; the papers were then folded up and the parties went away.”
Dr. Gabbey said that his wife did not sign the mortgage of her own free will, but did so at his command.
Higginbotham, the notary who drew the mortgage and took the acknowledgment, said:
“ Mrs. Gabbey was not in the room when we first went to the house; Dr. Gabbey went out of the room, and she came back with him; I do not remember her saying anything; she was very much distressed, and tears were on her cheeks and she was crying; my impression is she used the words, ‘This is the last.’ I cannot say that I told her it was a mortgage. I will not say that she said that ‘This is the last,’ or that she said anything; my best recollection is that I did not ask her if she signed it of her own free will. I saw nothing to show that she did not want to sign it, except the shedding of tears and sobbing.”
This is the sum and substance of all the testimony offered upon the defense of duress. Perhaps the most liberal expression of the analogous doctrine of cruelty that has judicial sanction is the view of this court expressed in the case of Carpenter v. Carpenter, 30 Kas. 712. It may not be applicable in any or all of its phases to such a case as we are considering, but they are kindred questions, and every consideration prompts us to deal with the rights of the wife in the homestead with as much liberality as we do questions affecting her marital rights. We have no doubt but that cases can be presented wherein the husband, by many acts of omission or commission and without resort to threats or to actual personal violence, can so conduct himself as to create such an apprehension on the mind of his wife, as separation from her, the loss of the presence and society of her children, the destruction of the home feeling, and a hundred other such manifestations of ill-feeling as to cause duress, and to cause in her mind the belief that if she does not sign away her rights or incumber them, one of these to her most important things will happen. If such a case were presented, the doctrine of duress might be illustrated by a novel state of facts. So far, we have not had occasion to determine whether such acts would constitute duress or not.
In the only two cases passed upon by this court wherein mortgages are held void because of the duress under which the wife signed, we find only the most ordinary examples of brutality on the part of the husbands. In the case of Anderson v. Anderson,, 9 Kas. 112, when the wife declined to promise to sign the deed to the homestead, the husband struck her with his fists on the head three times, and pulled her hair. Then in the evening he brought the ax into the house, sharpened a large knife, and was very angry, and said that in the morning he was going to get ’Squire Streeter to take the acknowledgment of the deed. In the case of Helm v. Helm, 11 Kas. 19, the duress consisted of threats on the part of the husband and the purchaser to take the life of the wife if she did not sign the deed, and in apprehension of great danger from such threats she signed.
In this case the wife does not claim that the husband either exercised or threatened to exercise any personal violence, but commanded her in an angry tone to “Dry up, and sign her Dame.” This is too indefinite to come within the most liberal interpretation of duress. It will be seen from an examination of these instructions that the trial court covered almost every phase of the question of duress, and the jury could have, consistent with the instructions, found it, if it had been in the case. Particular criticism is directed against instruction nine, for the supposed reason that the court intimates that the evidence offered in support of the defense of duress is “doubtful, uncertain, unsatisfactory, and insufficieut.” "We do not think that is the fair mean¡ng language used by the court, or that it is susceptible of the construction placed upon it by counsel. It is not only a fair statement of the law applicable to the state of facts established by the evidence, but it is supported by excellent authority. (See Smith v. Allis, 52 Wis. 344; Insurance Co. v. Nelson, 13 Otto, 544.)
Another objection to the instructions is, that the court erred in its statement that the burden of proof rested upon Mrs. Gabbey. It must be recollected that at the time this instruction was given the fact presented by the evidence was that the signature to the mortgage was the genuine one of Mrs. Gab-bey, and the precise question was whether or not that signature was the result of duress exercised by her husband. Of course when she had stated on the witness stand that she jjad sjgUe(j the mortgage, the burden of proving that her signature was not freely and voluntarily made rested on her. This is not a question as to which party had the burden on the pleadings, but it arises after the facts have gone to the jury. The due existence of a written instrument having been established, it was incumbent on those who sought to avoid the liability created by such instrument, by proof that the signature thereto was obtained by compulsion, to make it clearly manifest that such was the case. The genuine signature and duly-certified acknowledgment of the mortgage could not be resisted by doubtful and unsatisfactory statements and circumstances. The evidence to impeach them should be strong and convincing.
We will not go the extent of saying that such evidence must establish the fact of coercion “beyond a reasonable controversy,” as is stated in the conclusion of the ninth instruction, because it is using an expression that might be a subject of varied construction; and yet the language is used by the supreme court of the United States in a similar case, and we do not hold that its use is error in this case.
There is no material error in the record, and it is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This cause was tried in the Republic district court, at the January term, 1886, by the court, without a jury. Judgment was rendered in favor of Davis, Steele & Co. against N. Harper and J. T. Harper, and in favor of C. Eppler against Davis, Steele & Co. for his costs. No special findings were made by the court. Davis, Steele & Co. bring the case here for review. This action was brought upon a promissory note, executed by N. Harper and J. T. Harper, March 11, 1884, and due January 11, 1885; John Farrell was the nominal payee; he indorsed the note to C. Eppler, who was the real payee, and shortly after its.execution he indorsed and sold it to Davis, Steele & Co., who are now the owners. After Eppler had sold the note to Davis, Steele & Co., they, wishing to use it as collateral in the east, indorsed it and placed over the names of Farrell, Eppler, and their own, the words “ Waive notice and protest.” Before the note became due it was returned to the plaintiffs, and the names of Davis, Steele & Co. were reversed, but “Waive notice and protest” was allowed to remain. The note was dated at Belle-ville, Kansas, but the testimony shows that neither of the Harpers ever lived there, nor obtained their mail at that post office. In the certificate of protest it is stated that the note was presented to N. Harper and J. T. Harper at Belleville, for payment; that payment was refused, and notice of the dishonor of the note was sent to N. Harper and J. T. Harper, in an envelope, with postage prepaid, directed to Seapo and Concordia, Kansas, respectively, and at the same time notice was sent to C. Eppler, directed to Belleville, Kansas. As a matter of fact, the note was not presented to either of the Harpers for payment at Belleville, or any other place, but was held by the plaintiffs at their bank. There is no testimony showing the post-office address of C. Eppler. Neither the Harpers nor Eppler received the notices sent them.
The plaintiffs assign for error that testimony offered by them was not admitted. We shall not consider such alleged error specially, but will examine the case on the theory that the evidence rejected should have been admitted, provided it was material, and shall consider the case as though the evidence had been brought here for consideration. The two grounds pressed by both parties for our consideration are, first, whether there was due diligence in attempting to make demand for payment of the Harpers, and giving Eppler notice; second, whether the addition of the words “Waive notice and protest” destroyed the liability of Eppler to plaintiff on his indorsement. The note was dated at Belleville, Kansas, but the plaintiffs knew it was not the place of residence of the Harpers; they had been told they lived in Republic county. It is shown that the plaintiffs made inquiry in Belleville, and of the farmers who came into the city from the country about them, but did not find out where they lived. In the absence knowledge after inquiry, of their known or reputed place of residence, we think it was sufficient to excuse plaintiffs from making demand for payment of the makers, if they had the note at the place where it was dated, ready for presentment. (Dan. Neg. Inst. § 640; Orcutt v. Hough, 54 N. H. 472.) They sent the notice of the dishonor of the note through the mail, directed to C. Eppler, the indorser, at Belleville, Kansas, and it was not proven where his post office was; he said in his testimony that he lived in Jefferson township, Republic county, but was silent in reference to his post-office address, and there is nothing in his testimony to indicate where he usually obtained his mail. We think it would be fair to presume, in the absence of any showing; whatever except that he lived in J ® r t Jefferson township, that Belleville was his post office, from the fact that he indorsed the note at that place. (Dan. Neg. Ins., § 640; Smith v. Philbrick, 10 Gray, 252.)
The most-serious question in this case is, whether the writing of the words “ Waive notice and protest” on the back of the note before maturity, over the names of Farrell and Eppler, was such an alteration as to relieve the defendant Eppler of his liability as indorser. It is proven that Eppler never consented to such addition; on the other hand, it is also well established by the evidence that such writing was not made with the intention of creating any greater liability on the part ®Ppler > ^'s beyond question that the indorsement was a substantial change in the contract between. Eppler and plaintiffs; it changed his contingent liability to an absolute one. (Dan. Neg. Ins., § 1390; Farmer v. Rand, 14 Me. 225; Andrews, Adm’x, v. Sims, Adm’r, 33 Ark. 771.)
Plaintiffs in error contend that because the alteration was made innocently and without any intention of defrauding Eppler or increasing his liability, and for the further reason that plaintiffs attempted to pursue the same course toward Eppler they would have done if “Waive notice and protest” had not been written on the note, that these words should be disregarded, although they were a substantial alteration in themselves. They cite, as supporting their theory, Kountz v. Kennedy, 63 Pa. St. 187. In that case Kountz indorsed a note given by Hunt to Kennedy; after the indorsement the words “ with interest” were added to the note by the agreement of Hunt and Kennedy, without the knowledge of Kountz, but with no intention of altering his liability. Afterward Kennedy brought his action against Kountz as indorser, but the words “with interest” had been taken out by the use of some kind of chemicals, before suit. The court held the indorser liable. In the opinion it is said:
“But the note in evidence was precisely in the form it was when indorsed. It had been returned to its original shape. The restoration was not a fraud on the indorser, for it left the note as it was when the indorsement was made. Now it seems to me, that as the identity of the note remained and there was nothing in it to enlarge the obligation of the indorser, and as what had been done was innocently but mistakenly done and expunged for aught we know, within the hour after it had been done, there is no rule of law unreasonable enough to hold it avoided by this.”
That case presented a different state of facts from this, in which the words “Waive notice and protest” still remain a part of the instrument sued on, and thus destroy the identity of the note. They cite also Savings Bank v. Schaffer, 9 Neb. 1. A note was given for $217.36, but changed by the holder to $208.12. An action was brought upon the note as changed. It was held that the note was void into whosesoever hands it might afterward come, but allowed an amendment of the pleadings so that a recovery could be had upon the original consideration for which the note was given. The distinction between that case and this is obvious. The rule laid down in Randolph on Commercial Paper is, that if a note or bill is altered designedly by the owner, it will be rendered void, even without fraud on his part, (§1742;) also in the same authority it states that the indorser is discharged by writing over a blank indorsement a waiver of demand and notice, (§1753.) .
We believe it would be a dangerous rule to allow written contracts, more especially negotiable paper, to be altered without the consent of the maker, or the parties who are bound by the indorsement. It is intended that such instruments shall pass into the hands of those who may become interested in them, without addition or alteration, and without the fear that they may have been altered. The facilities for making alterations are numerous, and the difficulty of proving them great; all means should be employed to impress a sense of. their inviolability upon the minds of those who have them in their possession. In Evans v. Foreman, 60 Mo. 499, it is said:
“If mistakes do arise in the preparation of written instruments, aside from the consent of all parties to the needed correction, the courts of the country alone can furnish adequate redress, and we will not give sanction or countenance to the attempts of an interested party to effect by his own hand the desired reformation; as an honest blunder of this sort if upheld in one instance, might necessitate sanctioning an alteration having that appearance, but which, from the infirmity of ■ human testimony, might be grossly otherwise.”
It is the policy of the law to allow no tampering with written instruments. The holder of a note has no right to a^er ^ without the consent of all the parties interested, and such unwarranted alteration should make nun hjs haü<3Sj no matter how pure his motives may have been in making the alteration. (Bank of Springfield v. Fricke, 75 Mo. 178; Moore v. Hutchinson, 69 id. 429; Neff v. Horner, 63 Pa. St. 327; Fraker v. Cullum, 21 Kas. 556; Horn v. Newton City Bank, 32 id. 518.)
For the reasons given herein, we recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was instituted by the plaintiff in error, to recover judgment against Alanson S. Reser and Emma Reser his wife, on a certain note of $1,000, executed on the 2d day of January, 1879, to Frank W. Proctor, and assigned to the plaintiff in error, and to foreclose a mortgage, given to secure the payment of the note, on the homestead of Alanson Reser and wife, in Marshall county. The defendant, Alanson S. Reser, filed his separate answer, denying that he ever executed the note of that date to Prank W. Proctor, or that he ever had any knowledge of the existence thereof until the commencement of this action. He further .averred, that about the time the mortgage attached to the plaintiff’s petition appears to have been executed, he, without reading the same, but upon the representations of the plaintiff ■that it was additional security for a note of $2,000 to Frank W. Proctor, did sign and acknowledge what he understood to be a mortgage upon the said described real estate; and averred that the real property described in said mortgage was a home stead occupied by himself, wife, and children. This answer was verified.
Emma Reser filed her separate, verified answer, by which she denied that she executed the note, but stated that she signed a paper upon the representations of the plaintiff in error that, it was a chattel mortgage. She averred that the real property described in the mortgage sought to be foreclosed in this action was the homestead of her husband and his family.
The case was tried by a jury. There were special findings, and a judgment for the amount of the note with interest, with a finding and decree that the mortgage was fraudulent and void. A motion for a new trial was overruled, and the caséis here with all exceptions saved. The effort of counsel for plaintiff in error is, to show that the court below erred in overruling their motion for judgment on the special findings-of the jury. They also complain of the refusal of the court to submit special interrogatories to the jury, and of the refusal to give instructions Nos. 1, 2, 5, 6, 7, and 8. A brief statement of the material facts is necessary, to fully comprehend the questions discussed by counsel, and appreciate their importance in the case. James S. Warden, the plaintiff in error, was a resident of Irving, Marshall county, until in June, 1878, he removed to Frankfort, a town a few miles from his former-residence, in the same county. He was engaged in the banking business. Alanson Reser, with his wife and family, lived all this time on a farm, about nine miles from Frankfort, and was engaged in the cattle business. Reser had been doing business for several years before the execution of the note and mortgage in controversy at Warden’s bank in Irving and Frankfort, borrowing money for his cattle transactions, and executing notes and chattel mortgages. The note and mortgage sued on were executed on the 26th day of February, 1879, before the plaintiff in error as a notary public, but both note and mortgage were dated on the 2d day of January, 1879.. The difference in the date and time of execution is explained by Warden in his testimony as being done by the agreement of parties to cover interest due on Reser’s paper, for which this mortgage was executed, to protect Warden as an indorser or guarantor. This note and mortgage were given to FrankW. Proctor, and assigned by him to Warden. This note and mortgage were executed as collateral to a note of $990, made on the 26th day of July, 1877, by Alanson Reser to S. Warden & Son, thirteen months after date, interest at twelve per cent, per annum. The consideration for the note was a lot of calves belonging to the firm of S. Warden & Son, sold to Reser by them. This note was indorsed, before delivery, with these words: “Payment guaranteed. — S. Warden & Son.” It was delivered to FrankW. Proctor,who paid to S.Warden & Son the $990. Warden, on his examination, stated that this note was sent by Proctor, who lived in Vermont, to Walker, a banker at Irving, and that all these indorsements of payments were made by Walker, who had notes of Warden for collection in that neighborhood, out of the proceeds of these collections, except a credit of $112.91, which was money sent by Reser; that the first indorsement, of $29.85, is in Warden’s handwriting; the next, $23.65, is his handwriting. He stated it was so, because Walker, having his notes for collection, would say to him when he went to his bank, “ So-and-so has paid his note,” and he would say, “Indorse it on the Proctor note,” and he would hand it out, and he would make the indorsement. The next indorsement was made by Warden; the next was the $112.91 paid by Reser; the next was of $100 and $210 by Walker, Warden paying him the money; the remainder of the indorsements are in the handwriting of Walker. This note was originally given to Proctor, held by him, and then sent to Walker at Irving for collection, and subsequently delivered by Walker to Warden. The evidence respecting the signatures of Reser and wife to the note and mortgage is very conflicting. Warden states, substantially, that on the 26th of February, 1879, he saw Reser in town, and they made an agreement in his banking office that this note and real-estate mortgage were to be executed; that after banking hours he went with Reser to his home; that Reser took care of the horses, while Warden went immediately into the house, ex plained to Mrs. Reser the whole transaction, read to her the most important parts of the mortgage, including a description of the land, and that she signed the note and mortgage willingly and voluntarily, without protest or objection; that Reser subsequently came in, and signed the note and mortgage, and acknowledged the mortgage, and that both acted with a full knowledge of the contents, objects and purposes of both papers. Several experts in handwriting testified that the signatures to the note and mortgage are identical, and were written with the same pen and ink. Three persons testify to a conversation had with Mrs. Reser in their presence, shortly after this suit was commenced, in which she stated that she had signed the papers, but Jim Warden could not prove it, as there was no one in the room when she signed but her and Warden.
Reser swore that he left home about four o’clock in the afternoon of February 26th, to go to Frankfort to get medicine for a sick child; that arriving there he had to wait several hours for the return of the doctor, who had gone to the country; that some time after dark he was passing the bank, when Warden called him in, locked the door, and demanded of him a mortgage on his homestead to protect him against a certain note and chattel mortgage of $2,000; that Warden was very angry and threatened his life, and threatened to send him to the penitentiary for selling mortgaged property; and that, influenced by these threats, he signed the mortgage, but did not sign any note, nor was he urged or requested to do so. Warden instructed him not to say a word to his wife about the mortgage, and prepared to go home with him, procured his team, and they started to his house, nine miles away; the night was dark and cold; arrived at his house as late as ten o’clock; they both went in and found Mrs. Reser nursing the sick child; Warden spoke pleasantly to her, told her that he and her husband had made an agreement about the extension of the time for the payment of the $2,000 note and mortgage, and wanted her to sign a new mortgage in renewal of the old one. Mrs. Reser assented to this, and signed, while Reser, who had taken the child, was walking the floor with it in his arms; that he was still afraid of Warden, and did not say anything to his wife until after Warden had gone, and he then told her all that had occurred during the day; that his wife did not sign any note, only one instrument, and that was the mortgage he had signed, and that was folded down so that she could not see what it contained.
Mrs. Reser told substantially the same story as to what occurred at the house; admitted signing a mortgage, but trusted to the representations of Warden, and believed at the time she did sign the paper, from what Warden told her, that it was a renewal of a chattel mortgage for $2,000 that she had signed some time before.
Tending in some degree to support the statements of Reser, the testimony of Robert Smith, a farmer near Frankfort, is to the effect that he had a conversation with Warden about the time of the execution of this mortgage, in which Warden said, (referring to a former conversation about Reser’s indebtedness to him, and Smith’s expression of opinion that it would not be paid:) “Bob, I got that all right; I got a real-estate mortgage to secure that property; Mr. Reser has been selling mortgaged property.” Smith then remarked: “Jim, us fellows have been buying that property for some time; you have been telling us to go over there — that it was all right.” Warden said, “Reser couldn’t prove it.”
The jury were requested to render a special verdict, and not a general one, and in answer to special questions submitted by the court, they found as follows: that the defendants, Alanson S. Reser and Emma Reser, did execute the note of date January 2, 1879, on the 26th day of February, 1879, and delivered the same on that day to James S. Warden.
“Ques.S: Did the defendant, Emma Reser, execute and deliver the said mortgage of date January 2,1879, on February 26, 1879, as a mortgage on said described land to secure the payment of note to Frank W. Proctor, for $1,000 of said date, or was the same signed by said Emma Reser on February 26, 1879, upon the belief only, induced by the representation of said James S. Warden, that the same was a chattel mortgage on renewal of another preexisting note to James S. Warden? Ans.: As a chattel mortgage, upon the representation of James S. Warden that it was a renewal of a preexisting note.
“Q. 4. Did the defendant, Alanson S. Reser, on said February 26, 1879, execute and deliver the said described mortgage instrument to secure the payment of a note of $1,000 to Frank W. Proctor of said date; or was the same signed by Alanson S. Reser on February 26, 1879, upon the belief only, induced by the representations of said James S. Warden, that the same was additional security to Warden only, upon his indebtedness to. Warden? A. To secure the note of Frank W. Proctor, of $1,000.”
The jury found that the land described in the mortgage was before, at the time, and since the execution and delivery of the mortgage, the homestead of Reser, occupied by his wife and children; that Frank W. Proctor indorsed and delivered said note to James S. Warden, and at the time of the commencement of this suit Warden was the owner and holder of said note and mortgage, and the real party in interest therein; that when the defendants executed and signed said mortgage, they could, in the exercise of reasonable and ordinary prudence, have fully known the contents thereof, but they signed on the representation of James S. Warden; that neither Reser nor his wife attempted to read or asked to have read the said mortgage, before they signed the same.
When the special verdict of the jury was returned into court, the plaintiff in error filed his motion for judgment and decree on the pleadings and findings, asking that the mortgage of the plaintiff in error be decreed to be a second lien on said real estate, it being conceded that the mortgage of the defendant Anthony Reser was the first lien. This motion was overruled, so far as the lien was concerned, the court being of the opinion that the mortgage was void. This ruling is one of the principal grounds assigned for error and reversal, and its determination necessarily involves a consideration of all the material facts in the case. The jury found every material fact in the case as alleged by tlie plaintiff in error, except as to the procurement of the signature of Mrs. Eeser to the mortgage. They found that Eeser and his wife signed the note, and this they both denied. They found that Alanson S. Eeser signed and acknowledged the mortgage to secure the note of Proctor for $1,000. They found that Emma Eeser signed and acknowledged the mortgage with a belief, induced solely by the representations of Warden, that it was a chattel mortgage, but that she could in the exercise of reasonable and ordinary care have fully known the contents of the mortgage, and that she neither attempted to read or have read the mortgage before she signed it.
It is now claimed that this state of facts raises the question whether or not a person who can read and write, and has the opportunity of knowing the contents of a paper which he is about to sign, can rely on the representations of any person as to its contents, and thereafter claim that such representations were false ? It ought to be stated that a fair inference from the evidence of Mrs. Eeser is, that she is an intelligent woman, who seemed to have possessed knowledge of her husband’s business, and on several occasions demonstrated more capacity to protect his interests than he did. She can write, and it is very clearly proved, circumstantially, that she can read. What was her duty in the premises; and what are the legal consequences of her failure to perform it ? It is said that there was a relation of peculiar trust and confidence between Mrs. Eeser and Warden in such matters. He had been her husband’s banker and partner, and everything had been satisfactory. Why should she not trust ? This is assuming too much even for argumentative latitude, because if it is true that everything had been satisfactory up to that time, it is a very strong presumption that the facts of the procurement of her signature are as Warden claims them. But there was no such relation existing by virtue of these facts, from which the law will imply that Mrs. Eeser had a right to rely on the representations of Warden. Even if her husband had made such a representation, and she relied on it, and at no time asked for the mortgage to be read, it was at her peril alone. (Roach v. Karr, 18 Kas. 534.) In this case the proof showed that the wife was illitei’ate, and could read only a little by spelling out the words; that the mortgage was not read to her; and that she signed the instrument believing it was a note, and relying on the assertion of her husband that it was a note; and yet we have no intimation in this case that there was a relation of trust and confidence between husband and wife— and why? Because the primary object of the homestead provisions of the law is to guard the wife and family against the improvident acts of the husband and father. In such matters she must not rely on her natural protector, notwithstanding the sacred relation growing out of the marriage state; then, how much less can she rely on the promise or representation of the creditor of the husband ?
The case of Roach v. Karr is one in which the mortgage was made directly to Karr, who brought the action to foreclose. Karr was the payee of the note and mortgage, and there is no question of an innocent third party. The case at bar is one in which Reser and wife executed a note and mortgage to Proctor, but it was for the benefit of James S. Warden in fact. And he was the notary before whom the acknowledgment was taken, but no question is made on. the record as to his duty as a notary.
Ort v. Fowler, 31 Kas. 478, is an interesting case on -the question of the negligence of Mrs. Reser in signing the mortgage without reading it or requiring it to be read to her, and it cites many authorities; but all of them that we have examined are controversies between the maker and an innocent holder before maturity, without notice of the imperfections, the case of Ort v. Fowler being of that character.
The note and mortgage in suit here were given to Frank W. Proctor, but the object of their execution was to protect James S. Warden, who had indorsed a note of Reser’s to him, to Proctor, and had guaranteed its payment. It seems to us, from the evidence in the record and the indorsements on the $990 note, that at the time the note and mortgage were executed the $990 note of Reser to Warden, assigned to Proctor, had been paid, partly by Reser, mostly by Warden, so that the note and mortgage were in fact executed for the benefit of Warden, who also acted as the notary who took the acknowledgment of the mortgage; and the representation that it was a chattel mortgage was made by the party for whose benefit it was executed, and made by the notary who took the acknowledgment of Mrs. Eeser to it. It seems that the authorities cited in the brief of counsel are not applicable to the state of facts presented here. It may be said, however, that the special findings of the jury control this question so far as determining that this note and mortgage were given to Frank W. Proctor; they are, that Eeser and his wife both signed the note; that Eeser signed the mortgage to secure the note of Frank W. Proctor for one thousand dollars; that Proctor indorsed and delivered the note to J.S. Warden; that Warden was the owner and holder of the note, aud the real party in interest. These findings must be construed in the light of the testimony supporting them; and the evidence authorizes the assumption by this court, at least for the purpose of determining the legal questions arising on this record, that at the date of the execution of the note and mortgage in suit, the note of Eeser held by Proctor had been paid largely by Warden, and that this note and mortgage executed to Proctor were for the benefit of Warden, to protect him in the payment he had made to Proctor, and that all the time Warden was the real party in interest. The question then is, had Mrs. Eeser the right to rely on the representations of the real payee of that mortgage, that real payee being the notary who took the acknowledgment, that the instrument was a chattel mortgage in renewal of one she had previously executed ? And this is the question, in any view that can be taken, for if it is held that Proctor was the payee, and indorsed the note and mortgage toWarden before maturity, then Warden had notice of this defense, because he transacted the business for Proctor; he made the misrepresentation on the belief of which Mrs. Eeser signed, and he took her acknowledgment. He now seeks to foreclose a mortgage on real estate, which he represented was a chattel mortgage. Can he thus take advantage of his own wrong ? An innocent holder might be protected for the several reasons recited in the case of Roach v. Karr, but none of these can be utilized by Warden to protect himself from his own misrepresentation as to the character of the instrument. Accepting the special finding of the jury as conclusive here, that Mrs. Reser s*gne(^ the belief that it was a chattel mortgage, induced solely by the representation of Warden, we are compelled to hold that the legal conclusion of the court below, that the mortgage was void, was not erroneous, because—
“A mortgage of the homestead, to be of any validity, re" quires that the 'joint consent’ of both the husband and wife should be given thereto; and this consent must not be brought about by any fraud, deception, or misstatement of material facts by the other party to the alienation, but must be the voluntary and intelligent consent of both the husband and wife.” (Bird v. Logan, 35 Kas. 228.)
In this case it is said: " These misapprehensions were induced and brought about by Adams, [the notary,] who was evidently acting as the plaintiff’s agent,” and this was a suit to enforce specific performance of the conditions of a bond, for a deed of the homestead, signed by the husband and wife, and acknowledged before a notary.
A reversal is urged for the reason that the court refused to submit to the jury certain special questions, requested by the plaintiff in error, but the record declares that the court of its own motion submitted special interrogatories that were almost identical in language, scope and bearjng with those suggested. The particular questions of fact submitted by the court embraced every material question arising in the case.
It is true that under the statute, parties have the right to have particular questions of fact prepared by them submitted, and a refusal by the court to do so, followed by a neglect or omission to submit such J ^ questions as are raised by the pleadings and are material to the issues, is reversible error; but in this case the party complaining received the benefits of his suggestions by the submission of the special interrogatories shown in the record. (Stickel v. Bender, 37 Kas. 457.)
Finally, it is said that the court erred in the refusal to give instructions one, two, five, six, seven, and eight, as requested by the plaintiff in error. This case was not tried by a jury. The only duty of the jury was to return findings on particular questions of fact submitted to them by the court. It may be, that if any of the instructions refused were necessary to enable the jury to reach conclusions on the particular questions of fact submitted, that it was error to refuse them. Instructions one, two and five were upon questions not submitted to the jury, and it was not error to refuse them. Instruction six was substantially given by the court in the general charge to the jury. The others were properly refused, as they did not aid the jury in arriving at the facts necessary to answer the special questions. All the things enumerated in instructions six, seven and eight were questions for the court after the jury had determined the facts. We have been discussing in this opinion the legal effect of the representation made by Warden to Mrs. Reser, as found by the jury, to determine whether or not the court erred in its conclusion of law, and the necessity for this discussion makes it evident that the instructions asked for were not proper, in view of the fact that the duty of the jury was confined solely to the determination of particular questions of fact.
We are compelled to say, in accordance with oft-repeated declarations of this court, on the findings of the jury on controverted questions of fact, that there is no error in the record so material as to cause reversal; it is therefore recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendant in error brought this action against plaintiffs in error on a promissory note given by them and payable “to the order of James Kearns or bearer,” and transferred to plaintiff without indorsement. The plain tiffs in error claim that after the execution of the note by them the word “six” was inserted in said note, making it payable six months after date; and they claim that-such an alteration would destroy the note. They further state that they received a letter ten days after the note was executed, from a Chicago firm, saying it held a note for collection of the amount and description as the one sued on, except that it was then due, and demanding immediate payment. They deny that this was a negotiable note, and say that it came into the hands of the plaintiff charged with all the defenses that might be made thereto. Under the verdict and findings in this case, it seems to be immaterial whether the note was negotiable or not, for under the testimony there is no defense made to it, except the alleged alteration. The jury, in addition to a general verdict for the plaintiff, answered the following questions:
“1. Was the note sued on made payable at the time of its execution, in six months from date ? Ans.: Yes.
“ 2. At the time of its execution, was it understood between the makers and payee of the note that no time of payment should be stated in the note ? A. No.
“3. Was payment of said note demanded by the holder thereof, or any person for him, before six months had elapsed from the time of its execution, and if so, when ? A. No.”
The defendants (plaintiffs in error), admit that these questions and answers are conclusive against them, but urge that the findings are not supported by any evidence. They state that there was no evidence to dispute the testimony of the defendants themselves, who testified that the word “six” before the word “months” was not in the note when they signed it. The note itself is some evidence, prima facie, and we presume it was offered to prove that all parts of the note were written at the same time. The defendant, James Lowden, did not evidently appear to advantage in his testimony before the jury-He first denied that he had signed the note, but afterward explained that he had not signed the note with the woi’d “six” in it; and when he was asked whether the signature of the note presented was his own, he hesitated, evaded, and finally, apparently reluctantly, admitted that it was his signature. He testified in regard to receiving notice from Chicago that the note was due, and that he had lost the letter, but gave rather an improbable story in regard to its loss; taken altogether his testimony was contradictory and improbable. The jury was amply justified in disregarding it, and finding the facts upon other evidence introduced. (Callison v. Smith, 20 Kas. 36; French v. Millard, 2 Ohio St. 44; K. P. Rly. Co. v. Anderson, 23 Kas. 44.)
The defendants claim error in the instructions given by the court. We do not care to inquire into the alleged errors. They were concerning matters which were eliminated from our consideration by the unequivocal finding of the jury. We can say, however, in this connection and in answer to the objections of defendants, that when a blank is left in a note signed by a party, he cannot be heard to complain if such blank is filled before the note reaches the hands of an innocent holder for value. (2 Dan. Neg. Ins., § 1405.) We believe the judgment of the court should be affirmed, and so recommend.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The main features of this case are similar to those of Telegraph Co. v. Crall, j ust decided. All that is said in that case denying the power of the telegraph company to limit its liability by contract, so as to relieve itself against acts of gross negligence committed by its agents and employés, applies with equal force to the facts appearing in the record of this case. The point most vigorously contested however in this case, not arising in the other, grows out of the finding of the court that “The only evidence of negligence is such as arises from the foregoing facts, but the failure of the defendant to properly transmit the message, as to the place where the plaintiff was to be met with his team, was, under the circumstances, gross negligence of the defendant.” The other or foregoing facts found were, that “the message as delivered to the defendant’s agent at Omaha was plainly written, and the word ‘Salem’ was very plainly written; it could not have been mistaken for ‘Salina,’ nor for any other word than ‘Salem,’ by any person possessing ordinary eyesight, who would examine it with the slightest care;” and the further finding: “Said manager, [meaningat Downs,] doubting the correctness of said dispatch, requested the defendant’s agent at Downs to ascertain at Atchison and Kansas City if the message as delivered was correct, and said agent of the defendant telegraphed to the relay offices at Kansas City and Atchison on the same evening, and was informed from both of said offices that the body of the dispatch read as follows, namely: ‘Have my team and a double carriage in Salina by Thursday noon. — George W. Howell.’ ”
It is said by counsel for plaintiff in error, that the only evidence of negligence as found by the court below is the mere fact that said message was delivered reading “Salina” instead of “Salem,” and inasmuch as the message was not a repeated message, the burden was upon Howell to show negligence, other than such as might be inferred from the mere error in the transmission of the message. The cases of White v. Telegraph Co., .14 Fed. Rep. 710, and Becker v. Telegraph Co., 11 Neb. 87, are cited and relied on to establish the proposition.. The authorities on the other side are numerous, and are collected in the opinion of Judge Holt in the Crall case.
Counsel are mistaken in their supposition, however, that the only evidence of negligence is the mere fact of mistake in the word “Salina” for “Salem.” There are two other facts found that demonstrate the negligence of the telegraph comPany- The first is, that the word “Salem” was very plainly written, so plainly written that eoup3 not have been mistaken for “Salina,” or any other word, by any person possessing ordinary eyesight, who would examine it with the slightest care. This is equal to a finding that the operating agent at Omaha did not exercise the slightest care in the transmission of the message. In the absence of the finding that the word “Salem” was very plainly written, it might with some propriety be urged that the words are similar in appearance when hurriedly written, and the mistake might easily occur in a press of business. But the finding disposes of all such theories. There is a mistake, but the message is very plainly written, and the mistake could not occur with the slightest care. Here is something in addition to the mere fact of mistake. Then again, the manager at Downs feared a mistake, and had the agent of the company ask both at Atchison and Kansas City for a verification of the message. This was notice to the company that a mistake was feared, but from both places came assurances that the message as delivered was correct; that Salina was meant, and not Salem. This was an additional act of gross carelessness upon the part of the company. It may be that it was not obliged to repeat the message, or to give additional assurances of its freedom from mistake, but having done so, the company was obliged to ascertain just what the original message was, and report accordingly. If it was content to rely on a report from the relay stations, and not to inquire at the office from which the message was sent, it ought to be held responsible for an omission of duty in that respect. So the case stands thus; there is the fact of mistake; the fact that the words were very plainly written; the fact that a mistake was feared and its attention called to it, and after inquiry it persisted in the mistake: and these are sufficient to support the finding of gross negligence on the part of the company.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action brought by the defendant in error against the plaintiff in error before a justice of the peace, under the forcible-entry-and-detainer act, upon the following complaint, (caption omitted:)
The plaintiff alleges:
“ 1. That he is the owner of and entitled to the possession (immediate) of the following-described tract of land in Rush county,-Kansas, to wit, the southeast quarter of section 30, township 19, range 18.
“ 2. That on the — day of-, 1884, defendant George Ow willfully, unlawfully, forcibly, and without authority or color of right, entered upon said premises, and in the manner aforesaid took possession of said land and all the buildings situate thereon, the same being also the property of the plaintiff, and a part of the realty.
“ 3. That by reason of said intrusion, the plaintiff has been and is damaged in the sum of $100.
“ 4. That three days prior to the commencement of this suit, to wit, on the 15th day of December, 1884, the plaintiff caused a notice to be served on the defendant, demanding that he immediately quit, leave and abandon the premises, but that he refused and still refuses to do so; that defendant refused and still refuses to vacate the buildings or surrender them to the plaintiff.
“ 5. The plaintiff therefore demands judgment against the defendant for the restitution of said lands, tenements and buildings, for damages to the same in $100, and for costs of suit,”
This complaint was duly sworn to by the plaintiff. Before the trial the defendant moved the court, first, to strike out of said complaint paragraph three; also, to require plaintiff to separate and number his several causes of action — both of which motions were by the court overruled, and excepted to by the defendant; whereupon the defendant demurred to the complaint for the reason that two causes of action in said complaint are improperly joined, which demurrer was by the court also overruled, and duly excepted to. Trial was then had upon the complaint, and the court found all the issues in favor of the plaintiff, and upon such findings of fact found the following conclusions of law:
“ 1. That the defendant is guilty as charged in the complaint.
“2. That plaintiff is entitled to the immediate possession of the premises described in plaintiff’s bill of particulars.
“3. That plaintiff is entitled to $60 as actual damages to real estate, and $9 as exemplary damages, the amount sworn to by plaintiff as his expenses in making' his first trip to see after said premises.”
Upon said findings a judgment was rendered for the plaintiff for the restitution of the premises, and $69 damages, and costs. This presents but the one question: Can an action for damages for the unlawful detention of property, and damages therefor, be joined with an action for possession of the property, in a forcible-entry-and-detainer proceeding before a justice of the peace ? This question we must answer in the negative. The action of forcible entry and detainer was intended as a summary proceeding, determining nothing but the present right to the possession of property; and a judgment for the possession when rendered in such a proceeding is not conclusive upon either party, and is no bar to a future action. If this be the nature and character of the judgment, then how can it- be claimed that damages may be included as a part of the judgment, but when so rendered would not be a bar to a future action ? In all actions for money knowm to our code, the judgment, when rendered, is conclusive, except when appealed from, or reversed on error; so it would seem useless to include the element or claim of damages, when no judgment could be rendered that would be a bar to further action.
Again, the forcible-entry-and-detainer act provides in specific terms the form of the verdict and the judgment, and the execution on the judgment; and neither in the verdict, judgment, nor execution, is any reference made to damages for the detention, or for injury to the property. If it had been comtemplat'ed that a judgment may also be rendered in this class of actions for damages to the property, as in actions of replevin, then some provision, it seems to us, would have been made in the form of the verdict, judgment, and execution. It is true that in many other respects the trial and procedure are the same as in other proceedings before justices of the peace; also, that an appeal may be taken and exceptions on questions of law saved, and the like; and these provisions doubtless led counsel and the court to believe that because of this similarity in other actions, other causes of action might be joined; but the fact must not be lost sight of that the proceeding was designed solely as a summary means of obtaining possession of property, where it was withheld by a defendant without right, or color of right.
Under these views the judgment of the district court was wrong, and we recommend that it be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
A county-seat election was held in the county of Rush, on the 12th day of February, 1878. The declared result was 234 votes for Walnut City, 227 votes for La Crosse, and 1 vote for Alexander. After the result •of the canvass had been declared, one Daniel Hammond, an •elector of that county, commenced a proceeding in mandamus, under the provisions of chapter 79, Laws of 1871, and the amendment thereto of chapter 126, Laws of 1872, to contest such election, and to compel F. E. Garner, as county clerk of Rush county, to remove his office, books, papers and documents pertaining thereto, to the town of La Crosse, and there to keep the same. In this action, a peremptory writ was allowed on the 31st of May, 1878. The respondent being in ■default, exceptions were noted, and time allowed to make a case for this court, but the action was never brought here. On the 7th day of June following, the county attorney of Rush county procured from one of the justices of this court an alternative writ of mandamus, to require Garner to keep his-office at Walnut City, he having gone to La Crosse. He obeyed the alternative wi’it, and made return of his obedience-to the court. In rendering judgment, this court ordered, as a part thereof, “that it should not conclude or be a bar to the-action of any person concerning the subject-matter of the dispute therein.” On the 27th day of November, 1879, J. V. Moon, a citizen and elector of Rush county, applied to the-district court of that county for a writ of mandamus to compel Garner to move his office to, and keep it at, La Crosse, in obedience to the Hammond judgment. An alternative writ was issued, reciting the Hammond judgment and the authority of the relator to sue. In this action, Garner answered both by a general denial and by pleading the proceedings had in this court at the suit of the county attorney. The case was decided by the district court in favor of Moon, by holding the judgment in the Hammond ease to be final and conclusive;- and this judgment was affirmed in this court. (28 Kas. 790.)
This suit was commenced on the 19th day of July, 1886. It is an original proceeding in mandamus, and all the pleadings-appear in the statement of the case. It was instituted by the attorney general in the name of the state of Kansas, to compel obedience to the law of the state commanding county officers to keep their offices at the county seat.
For this reason,. and because the state is exercising one of its sovereign powers, the court is of the opinion that the action is not barred by the statutes of limitation. There can be no question, if the sovereignty of the state is-involved, that the statutes of limitation cannot be pleaded against the state. The writer of this opinion has a very decided opinion that this action is barred by the limitation contained in the third subdivision of §18 of the code; but the court determines otherwise, and the law of this ease is, that the cause of action alleged in the alternative writ is not barred by the statutes of limitation, for the reason that in this particular case the state, in whose name this action was instituted by its law officer, is exercising its sovereign power of compelling obedience to its statutory mandates, and cannot be estopped by a plea that the time within which obedience could be exacted has expired; that it is never too late for the state to enforce its laws. (The State v. School District, 34 Kas. 237.)
The case of Sabin v. Sherman, 28 Kas. 289, is not applicable, as that was an action between private persons, and the state was not a necessary party. In that case the maxim Nullum tempus occurrit regi was not relevant, but in this case it may be invoked.
In their return to the alternative writ the defendants aver—
“That all matters and things asserted and claimed as against them by the relator, and the whole subject-matter of this controversy, have been and were heretofore finally determined, decided, adjudged and established as against said relator, the state of Kansas, and all other persons whomsoever, by the consideration, order, judgment and decree of the district court of Rush county, in a certain action duly commenced in said court, wherein the state of Kansas, on the relation of one Daniel Hammond, a citizen, elector, and tax-payer in the said town of La Crosse, was plaintiff, against one F. E. Garner as county clerk of Rush county, to remove his office from the town of Walnut City, where he was then unlawfully keeping the same, and to keep the same at the town of La Crosse, which last-named place the said Hammond alleged to be the county seat of said county; and in which action the said Hammond sought to and did contest the fraudulent election held on the 12th day of February, 1878, and the result thereof as declared by the board of county commissioners in their canvass of the returns of said election, upon which election and pretended result the relator relies in this action; and that afterward, in a certain action in which the state of Kansas on the relation of J. V. Moon was plaintiff and the said F. E. Garner as county clerk of Rush county was defendant, it was established by the judgment and decree of the district court of Rush county, and afterward upon an appeal by the supreme court of the state, that the finding, judgment and decree in the case of The State, ex rel. Hammond, v. Garner, County Cleric, was and is final and conclusive as to the said Garner as county clerk of said county.”
This plea of res adjudicaba is fairly in the case, and must be determined. A majority of the court hold that the judgment and proceedings in the Hammond case do not conclude the relator in this case, and that the judgmen^ as pleaded and set forth, is no bar to this action; that while there may be some identity of cause of action, the state can interfere in matters of this kind, in the interest of peace and good order and to command obedience to its laws, and that for this purpose it cannot be concluded by suits brought by private persons to protect or enforce private rights.
In the case of Garner v. The State, upon the relation of Moon, 28 Kas. 790, it was said :
“ While the statute permits any elector who considers himself aggrieved by the result of any election held for removing, establishing or relocating the county seat of a county, to contest by an action in the district court such election, yet if different actions are brought, and different judgments are rendered, it is possible that the attorney general or county attorney, in the interest of the public, might, in a proper action instituted for that purpose, have all these different judgments reviewed and superseded by a general adjudication as to which town, city or place is the legal county seat of a county, and thus bring all of the county officers, with their books, papers and records, to such town, city or place, as the county seat.” (See also The State v. Comm’rs of Hamilton Co., 35 Kas. 640.)
We must therefore proceed to consider the case upon its merits. To do this we must examine the record of the evidence, and determine the questions arising thereon; they are numerous, and the testimony respecting them is very voluminous. It cannot be reasonably expected that we shall recite it in detail; all we have time or disposition to do is to state its most salient features, and announce our conclusions upon them.
I. The first defense set up in the return to the writ is, tha the petition presented to the board of county commissioners of Rush county, praying for the election of February 12,1878> was fraudulent, void, and insufficient, because there were upon said petition the names of persons who did not reside in the said county of Eush; of those who were not qualified electors at said election; of fictitious persons, purporting to be electors of said county; of those who did not sign, or authorize anyone to sign for them; and finally, that there was not the legal and requisite number who signed the petition. There are some inherent difficulties to be overcome in the present consideration of this question. Eight years have elapsed since the signatures to the petition were obtained, and in a new, rapidly-changing and shifting population, the ascertainment of the exact facts must be accompanied with great difficulties. It is no doubt true that many of the original signers are either dead or removed from the county, and that the date of their deaths, or removal, can only be approximated. Then it must be recollected that the then board of county commissioners passed upon the sufficiency of the petition, and its determination has remained unchallenged for all this time. From the positions the county commissioners then occupied, it is fair to presume that they had a somewhat intimate knowledge of the people they represented, and of their opinions and desires upon a most important and exciting public question, and possessed better means of determining the sufficiency of the petition than can possibly be employed at this distance in time from its presentation. These things tend in a more or less degree to strengthen and emphasize the presumption that they determined correctly. Yet it is announced that there is no limitation practically to an inquiry of this character, and that the defendants in this action have the legal right to avail themselves of all fraudulent acts respecting this petition which they charge, and can establish by evidence. The prima fade case is against the defendants, and it is strengthened by lapse of time and long acquiescence in the declared sufficiency of the petition. They take upon themselves the burden of demonstrating by evidence the insufficiency of the petition: have they done so ? A certified copy of the record of the board of county commissioners of Eush county shows a presentation of a petition for a county-seat election on the 7th day of January, 1878, and a postponement of action thereon until the next day. The entry of January 8 shows the presentation of another petition on that day, which the board declined to consider, and shows action and an order upon the one presented on the 7th. The entry on the journal of the board of county commissioners on the 7th day of January shows that the petition presented on that day, and on which they subsequently ordered the election, contained two hundred and fifty-three names. The present county clerk attaches to his evidence certified copies of the petitions: one was certified to by him on the 11th of March, 1887, and contains 241 names; the other certified to on the 24th of March, 1887, containing 243 names; the last one marked filed January 7th and 8th. He testified that these petitions were found by him when he took charge of the office, on sheets of paper pinned together with ordinary pins. Two additional names were added to the petition certified to on the 24th of January, which do not appear on the one certified to on the 11 th. It is true that the present clerk testified that these petitions are now in the same condition in which he found them when he entered upon the discharge of the duties of county clerk, about three years before his evidence was taken. There is some evidence in various places in the record about these petitions, tending to show that they are, and that they are not, as they originally appeared, but it is not of a very satisfactory character. If the petitions were thoroughly identified as being the original ones presented to the board and upon which their action was based, of course they would be primary proof of the number of petitioners, and other facts necessary to establish their sufficiency. We cannot now go into the details of all this evidence, as our decision will be controlled by other considerations, more reliable in their nature and more satisfactory in their results. With this view we do not care to review the evidence with respect to the two lists which are marked and filed respectively on the 7th and 8th of January, and which are now exhibits in the record. We prefer to rest our judgment on this question in the case, on the recital in the journal of the number of the petitioners. It was made at the time before this excitement and contention arose, and before the election, and has remained there all these years unchallenged. It is a recital which the board had power to make, and under all the circumstances it is the best and most satisfactory evidence as to the number of petitioners. There can this be said in addition to support this view; the journal of the board on the 7th day of'January, 1878, shows that there were present Ered R. Smith, L. T. Delaplain, and Levi Cline, county commissioners, G. P. Cline, county attorney, and the county clerk; of these Levi Cline is dead, and Fred R. Smith, L. T. Delaplain and G. P. Cline are among the witnesses sworn and examined in this case. Fred R. Smith was chairman of the board at the time the petition was presented, and stated that it was canvassed and compared to satisfy the board that the legal number of petitioners had signed. The assessment rolls of the county for the year 1877, were produced, and the names on the petition were compared with those on the assessment rolls. There were more than three-fifths of the number on the assessment rolls. He could not state the number, but said that the clerk made an entry on the journal of the number of petitioners. He did not want to be understood to say that on the petition presented there were three-fifths of the same names which were on the assessment rolls of 1877, but that the number of legal electors on the petition was more than three-fifths of the number of names on the assessment rolls. The board considered the petition legal and sufficient, and ordered an election as prayed for. Smith was a strong partisan at that time of Rush Center or Walnut City, but for several years past he has resided in Wilson county. L. T. Delaplain was a member of the board, and in favor of La Crosse, and objected to the legality of the petition when it was presented. He could not remember that the board canvassed it, but said, “We knew it was our duty to do so, and we generally did what we knew to be our duty.” He was produced by the defendants as a witness, but they asked him no questions as to the number of names on the petition, or as to the entry on the journal. The record of the board shows that G. P. Cline, the county attorney, was present; and he was examined several times in this action as a witness for the defendants, but he was not asked to state anything with reference to the presentation of this petition, or the number of names upon it, or what was done by the board with reference to it. To say the least, these omissions from the evidence of both Delaplain and Cline, as to the number of petitioners, are very suggestive of the absolute correctness of the journal. The positive testimony of Smith, and the silence of Delaplain and Cline upon a question which they ought to have been as familiar with as Smith, greatly strengthen-the view that we have taken.
Counsel for the defendants claim that such a petition, to be valid, must contain three-fifths of the identical names that are entered on the assessment rolls of the previous year; and it is said that this statute has been so construed by this court, in the case of The State, ex rel., v. Comm’rs of Phillips Co., 26 Kas. 420. This we cannot agree to, either as a statement of the law, or as a matter of judicial construction. We do not think the statute means this, and we are very certain that this court did not so construe it in the case cited. In that case a petition was presented to the board of county- commissioners, to order an election to relocate the county seat of Phillips county; that petition contained the names of three-fifths of the number of electors in the county as shown by the last assessment rolls, but it did not contain three-fifths of the number of legal electors in the county as shown by the papers from which said assessment rolls are, or should be, made, to wit, the personal-property statements made out for the assessors by the various persons, companies, corporations, and designated listing agents. The board of county commissioners refused to order the election prayed for, because it claimed that in determining the question as to whether or not the petition contained the requisite number of signers, it had the right to add to the last year’s assessment roll the names found on property statements which were not on the assessment roll, and that by adding those names thus found on property statements, which the assessors had failed to put on the assessment rolls, the pe tition was not sufficient, as it did not contain three-fifths of the number of electors as were found on both of these rolls added together. Mandamus was brought against the board to compel it to order the election, on the theory that it had no right to look beyond the last year’s assessment rolls in determining the number of electors in the county. This court decided, virtually, that the board had the right claimed, and refused the peremptory writ; and this was all that was decided. There is nothing in the language of the court announcing the decision which authorizes a statement that such a construction was given the statute as is contended for by counsel. The section is not susceptible of that meaning under any known rule of construction. Such a construction involves the assumption that the legislature intended to add to the constitutional qualification of voters in elections of this character, by requiring that their names should appear on the previous assessment rolls, or property statement; when all the lawmaking power did do, or attempt to do, was to establish a rule to aid in the determination of the number of legal electors of a county, in such a contest. “ The number of legal electors shall be ascertained from the last assessment rolls;” not their qualifications, but the number of legal petitioners shall be three-fifths of the number of legal electors as shown by the assessment rolls; the petition is sufficient to authorize the order of the board. It is suggested in the brief of counsel for the defendants, that the act of 1883, § 2, chapter 91, (Comp. Laws of 1885, eh. 26, § 4,) is a declaratory act giving force and effect to the construction contended for.
This is strange reasoning. H fbe original section was as they claim, and this cour(; had so construed it, what necessity would there be for the enactment of the amended section? The conclusion is irresistible that the legislature, probably in view of the fact that every county-seat election is prolific of fraud and illegal voting, endeavored to reduce such fraudulent practices to the minimum by the adoption of the new section. It must therefore be held in this case that it is no objection to the sufficiency of the petition if there appeared thereon the names of legal electors of the county which could aot be found on the assessment rolls or the propgi'ty statements; if they were in truth and in fact legal voters, they had a right to sign the petition, have their names considered and counted, and to participate in the election ordered in consequence of the presentation of the petition.
We are not aided by counsel on either side by reference to pages in the record, where evidence is offered tending to show illegal signatures to the petition. We have said that the evidence satisfies us that the petition presented on the 7th of January, and acted upon by the board, contained 253 names; it is satisfactorily established that there were six names duplicated upon the petition; that it contained the name of one minor, and of one person who had not been in the county long enough. Our attention has not been called to any other illegal name on this petition, nor have we been able to find such evidence anywhere in the eleven hundred pages of the record. We therefore conclude, on this branch of the case, that the petition contained 253 names; that eight of those were illegal; that the assessment rolls and property statements for the year 1877 showed 282 names; that the petition contained the signatures of more than three-fifths of that number, and was sufficient in all respects to authorize the board to order the election of February 12, 1878.
II. The declared result of that election gave Walnut City a plurality of seven over La Crosse, and a majority of six over all competitors. It is alleged that there was a majority of the legal votes in favor of La Crosse; that certain illegal votes were cast, received and counted for Walnut City; and that certain legal electors who offered to vote for La Crosse were denied the right to vote; that their votes were not received or counted, and that, had they been permitted to exercise their right to vote, the majority would have been for La Crosse. Under the first allegation, it is claimed that forty-one persons cast illegal votes for Walnut City. As to six of those, there does not seem to have been any evidence offered tending to show that they were illegal voters; and as to one other, there is an admission of record, that B. Friedman was a legal and qualified elector of Illinois township, and that he voted at said election; and as to one Joseph-, whose last name is not given, it seems to be fairly established by the evidence of a witness with whom Joseph Mosseater lived and worked, that he came to Rush county in the spring of 1877, and worked for the witness over one year, and resided in Rush county at the time of the election, and for some time thereafter; and it is reasonably certain that, if this is the Joseph referred to, he was a qualified voter. Counsel for the defendants, however, seem to have limited the inquiry of illegal votes cast, to the votes of eleven persons, who will hereafter be named. As these are the only ones that are insisted to have been shown to be illegal, we may rest on the supposition that, if there had been sufficient evidence to fairly support the impeachment of other votes, counsel would not have overlooked it. The first- one of the eleven is the vote of D. A. McChesney, and as he was prosecuted for illegal voting at that election, and convicted, it must be held that his was an illegal vote. Reading the testimony of John Kershner, who left Missouri about the middle of August, 1877, and was twenty-six days on the road, before he arrived and located at Walnut City, there can be no doubt but that he was not a qualified voter on the 12th of February, 1878. The evidence respecting the qualifications of Francis McFadden sr., Francis McFadden jr., and Thomas O’Brien, is very conflicting. It appears from the record that the defendants had a subpena issued for them, (they being still residents of the county,) and delivered to the sheriff, but it was never served. They ought to have been put on the witness stand by one side or the other, or some reasonable explanation given of their “conspicuous absence.” We can indulge in a presumption against both sides because they were not called. James McCall swore that he took McFadden sr. to Larned on October 9, 1877, at which place he took the train for Pennsylvania, and did not return until about New Year’s Day, 1878. James Baker said he sold his claim to McFadden sr. about the 25th of February, 1878; he became acquainted with McFadden sr. in the previous year, sometime between July and October. This witness contradicts to some extent McCall^ and disposes of his testimony. Mrs. Baker saw McFadden sr. in 1877, and it might have been as early as May. G. P. Cline said that he became acquainted with McFadden sr., his son Francis McFadden jr., and his son-in-law Thomas O’Brien, after the election in November, 1877; and they told him that they had just come from Pennsylvania. Henry Fierce saw McFadden sr. at Fisher’s in Brookdale township, in the spring or fore part of the summer of 1877. Fierce and another party were building a house for Fisher, and McFadden stayed there all night, and Fierce has been acquainted with him ever since that time. He is, or was, a widower, and had no minor children. George Butler, who did not testify very positively, said that he saw McFadden sr. in Rush county sometime in the year 1877. A. H. Morris resided in Rush county since 1873; first saw McFadden sr. in the county sometime in the early summer of 1877; it must have been in the month of July. This is about all the material testimony in reference to McFadden sr., and about all that bears on the qualification of young McFadden and O’Brien. It is not sufficient to establish the fact satisfactorily that they were not qualified voters. They voted; every presumption is in favor of their qualification ;. the evidence is about equal, and the result is that the charge that their votes were illegal is not sustained. The charge with reference to W. A. Ficlc and Charles Fick is involved in about the same state of uncertainty by the evidence, the evidence being a little stronger against Charles than W. A., but it is very unsatisfactory, and not of that character which warrants us in pronouncing their votes illegal. We are inclined to think that the vote of B. F. Brown was an illegal one, and there is much doubt about the votes of E. M. Cole, William Lockwood, and B. F. Willey; but conceding them to be illegal, it does not change the result, as we shall hereafter determine. The very best that can be said about the illegality of these votes is, that those of McChesuey, Kershner, Stumbaugh, B. F. Brown, E. M. Cole, William Lockwood, and B. F. Willey, being seven in all, is fairly established; but this result can only be obtained by indulging in the utmost liberality in considering the testimony of the defendants as to the illegality of these votes.
On this evidence, there is not any reasonable doubt about the fact that the Russians, John Basgal, Joseph Basgal, Abraham Hartman, Andrew Dech, John Purbuler, Molhur Borgner, Casper Holtzmeister, George Seitz, Christopher Stegman, Martin Basgal, and Michael Madar, were not legal electors of Rush county at that election. They all lived in Ellis county, and a part of them did not take out their first naturalization papers until after the election of February 12, 1878. The evidence concerning these men is the most convincing of any we have found in the record, and we are able to dispose of them without any lingering doubt as to the fact that they were not legal electors of Rush county. There is an admission in the record that one of them, George Seitz, was not a resident of Rush county; and it is also in proof that he did not file his declaration of intention to become a citizen until June, 1881; that of John Basgal was not filed until April 15, 1878; and that of Madar on the 9th day of January, 1880.
Jacob Munch, Joseph Munch, Frank Dreher, Conrad Dreher, Jacob Zimmerman, Peter Werth and Fred Wert-h, their nnmber being seven, are produced, and testify that at the time of that election they lived in Hampton township, but voted at Liebenthal precinct, in La Crosse township. The defendants contend, that in the state of the pleadings such evidence is inadmissible, and ought not to be considered by the court. It may be said that this is a very narrow and technical construction of article 33 of the code, regulating proceedings in mandamus. Only two pleadings are allowed — the alternative writ, and the return.
“The alternative writ must state concisely the facts, showing the obligation of the defendant to perform the act, and his omission to perform it.” (Code, §690.)
“ If answer be made containing new matter, the same shall not in any respect conclude the plaintiff) who may on the trial or other proceeding avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.” (§695;)
“No other pleading or written allegation is allowed, than ■the writ and answer; these are the pleadings in the case, and ¡have the same effect, and are to be construed, and may be amended in the same manner as pleadings in a civil action.” ■(§696.)
Now a concise statement of the facts showing the obligations of these defendants to remove and keep their offices at "Walnut City, would be an allegation that at an election duly ¡held in Rush county, to relocate the county seat thereof, a majority of the legal votes cast at such election was in favor of the relocation at Walnut City. The return to the writ avers that a majority of the legal electors cast their ballots for the town of La Crosse, at that election. The issue framed is, “Which place is the county seat?” (Stoddart v. Vanlaningham, 14 Kas. 36.) Under that issue, illegal votes for Walnut City and illegal votes for La Crosse are unquestionably admissible. Before determining the fact as to whether or not a certain number voted at the wrong precinct, we must notice a claim made by counsel for the defendants, that this fact ought to make no difference, and that such votes ought not to be excluded. Counsel ask, “ When the single question was a choice for county seat, what possible difference in the result could it make where in the county a man cast his ballot?” It makes the difference of legality; the law requires a man to vote in the township or ward in which he resides; if he attempts to vote out of his township or ward, his ballot should be rejected for that reason; if he does so vote, it is an illegal one. This q0estiOn has been, repeatedly before the courts, and it has been univei’sally held, that a vote cast by an elector outside of the township or ward of his residence is an illegal one. (See McDaniel’s Case, 3 Pa. 310; Brightly Election Cases, 233; McCrary on Elections, 2d ed., 46.) Besides all this, we have a constitutional provision fixing the qualifications of voters, and one of these is, residence in the township or ward at least thirty days next preceding the election at which he offers to vote. (Const., art. 5, §1.) Some time before the evidence upon this branch of the case was taken, the plaintiff served a notice upon the defendants that the plaintiff would offer and rely upon testimony tending to show the illegality of votes cast for La Crosse for county seat, and counted for La Crosse at Liebenthal precinct, by certain witnesses and persons, to wit, giving the names of certain persons and the number opposite their names on the poll-book of that precinct. This notice gave them a reasonable length of time in which to rebut such testimony; and while it may be that the law did not cast upon the plaintiff the service of such a notice, it is at least suggestive of fair conduct upon the part of those who gave the same. As we gather the facts from this mass of evidence, it is true that seven persons who lived in Hampton township, and should have voted there, did cast their ballots in Liebenthal precinct; and it appears circumstantially that they voted for La Crosse, as there were no votes returned from that precinct for Walnut City or any other place than La Crosse. It must be held that the seven votes cast in Liebenthal precinct for La Crosse by residents of Hampton township, were illegal. It is also established that two residents of La Crosse township voted at Liebenthal for La Crosse, when in fact they being persons of foreign birth, had not declared their intention to become citizens, and did not do so until after the election. Certified copies of their declarations are in evidence as exhibits — one dated on the 25th of February and the other on the 25th of March, 1878. It seems very probable that the votes of Karl Herklock, (Herklotz,) of Conrad Bieker and Nicholas Bieker at Liebenthal, were illegal. We are compelled to conclude that a majority of the legal electors of Eush county, at the election held therein on the 12th day of February, 1878, for the relocation of the county seat, voted for the town of Walnut City; and that the result declared by the board of canvassers, that the county seat was located at Walnut City, must be sustained.
On the question of acquiescence, it may be said that what ever seeming intention was expressed by the people of the county to abide by the judgment in the Moon case, was founded on the erroneous impression which prevailed throughout the county to some extent, that the judgment in the case was a final adjudication of the question and concluded all parties. The acquiescence founded on such a basis is destroyed as a legal factor in the case by the deliberate judgment of this court, that such a judgment is not a conclusive adjudication of the question.
It is recommended that the peremptory writ issue as prayed for.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring. | [
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Opinion by
Clogston, C.:
Yan Fossen and Wilcox were partners, engaged in the real-estate and insurance business in the city of Fort Scott. S. P. Mosher, the defendant in error, was at the time of the transaction complained of employed by them in their office, in connection with their business, and had charge of the real-estate business of the city, and was to receive as compensation one-third of the commission on the sales made in that department. Sometime in the winter of 1883, plaintiff discovered that lot 11, block 103, in Fort Scott, could be purchased, and he conveyed this intelligence to Van Fossen and Wilcox, and was by them instructed and authorized to purchase the lot, if it could be purchased for $1,000, provided a good title could be procured thereto. Plaintiff purchased the lot for $750, and after some correspondence procured the title to the property, the deed being taken in the name of one Havens, and being dated March 27, 1883. 'At the time of the purchase, plaintiff ascertained that one McDonald desired to purchase the lot,, and that he would give $1,500 for it. Plaintiff at once informed the defendants of this fact, and was directed by them'to sell the lot to McDonald, if that sum could be realized for it. Up to this time there seems to have been no arrangement as to what interest the plaintiff should have in the transaction, and it is claimed by him that this transaction was independent of and not connected with the general business he had been doing for the defendants, and that he desired to know what his interest was to be in the property. In a conversation with Van Fossen it was arranged that if he sold the property to McDonald he should have as his share one-third of the profit realized from the transaction. A deed was prepared and plaintiff presented it to McDonald, whereupon McDonald desired not to take the property. In the meantime the plaintiff had ascertained that another person was desirous of purchasing the property, and had offered $1,800 for it. Knowing this fact, he released McDonald from his agreement to take the property, and informed the defendants of the offer of $1,800, and the release of McDonald, and asked that a deed be made to the person making the offer. Van Fossen then refused to sell the property on this last offer, and said he would take it himself, and no settlement was made between the parties in relation to the plaintiff’s share in the property, but without the knowledge of plaintiff defendants gave him credit on his general account on their books for $37.50, the commission they allowed him in the transaction. Shortly afterward plaintiff purchased the insurance business of the defendants and severed his connection with them, drawing his balance on his general account, including'the $37.50, but claimed that the defendants were indebted to him for his share in the lot transaction.
The only errors alleged are, that the evidence does not sustain the verdict, and that the court ruled out competent testimony material to their defense. On the first of these propositions this court has often laid down the rule that where there is some evidence to sustain a verdict this court will not disturb it. This was a disputed question of fact, and the defendants gave their theory of the matter and the plaintiff gave his, and the jury were the exclusive judges of the matter, and we cannot disturb their verdict on that ground. The evidence excluded is as follows: “The defendants offered to prove in answer to that question, that Van Eossen then stated to the witness in the presence of Mosher, that Mosher had no interest in the real-estate business of Van Eossen & Wilcox, and that Mosher assented thereto.” This was a conversation said to have taken place in the office of the defendants, in the presence of Van Eossen and their book-keeper, in which Van Eossen purported to have made the statement in Mosher’s presence, and addressed to Mosher, that he, Mosher, then had no interest in the business. This was after the lot transaction. We think this evidence was properly excluded. This related to their partnership real-estate business, and not to this individual transaction. There is no controversy in relation to .their general business, and no dispute about it. They closed and settled it up, and no claim was made, so far as the record shows, that there was any difference between them in relation to the general partnership business. This being true, it was not competent to bind the plaintiff by any declarations that related solely to that partnership, or that general business in which they were engaged, and which had no reference to this particular transaction. This was not a sale on commission, but was a purchase by the firm for the firm's benefit. The evidence further discloses that in September, 1883, the defendants sold the north half of this lot for $1,300, and on November 9, 1883, they sold the south half for $1,500.
We think there is ample evidence to support the verdict and judgment, and the exclusion of the evidence complained of was not error.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The question involved in this appeal is whether an assignment of a judgment was fraudulently made.
Myrtle Collins obtained a judgment against the state highway commission for $3,200, bearing interest. Myrtle Collins, with her husband, Absalom P. Collins, had given a note to the Citizens State Bank of Sharon Springs. The bank failed, the note matured, and the receiver for the bank commenced an action to recover on the note. The state auditor was garnished, and answered with respect to the indebtedness established by the judgment against the State Highway Commission, which then amounted to $3,534. After the receiver’s action was commenced Myrtle Collins assigned one half of the judgment against the state highway commission to her daughter, Irene Duell. Irene Duell intervened in the receiver’s action, claiming ownership of half the judgment by virtue of the assignment. The defense to the interplea was that the assignment was fraudulently made. After a trial the district court returned findings of fact and conclusions of law and awarded to Irene Duell a portion of the garnished funds.
The district court found Myrtle Collins and her husband were indebted to their daughter for various advancements the daughter had made, which the parents had promised to pay when able, and that the assignment of the judgment was made without fraud, to satisfy that indebtedness. The details are set out in the findings of fact. Only one of the findings of fact is seriously questioned. Without debating the matter, the court holds the findings of fact were sustained by sufficient evidence. It is strenuously urged, however, that the conclusions of law were not sustained by the findings of fact, in that certain badges of fraud found by the court compelled a conclusion that the assignment was fraudulent.
The findings disclosed that one item of supposed indebtedness, to pay which the assignment was made, did not constitute a debt. That merely reduced the amount of the garnished funds to which the interveners were entitled, if the item was not included to hinder, delay, or defraud creditors, and it was not.
The promises to pay the items of indebtedness were to pay “when able,” which matured the indebtedness within a reasonable time. Consequently, the statute of limitations would have been a defense if action were brought to recover on the items. That did not affect existence of the debts. It is honorable to pay debts although action to recover them would be barred, and the status of the debts in question was but a slight circumstance bearing on the good faith of the assignment. '
The assignment was made after the bank receiver’s action was commenced, and before answer day. Sometimes a transfer of property by a debtor, made under such circumstances, may arouse suspicion of fraud, particularly if the debtor does not have sufficient money and property to pay all his debts, but the question always is, Was the transfer made, not to pay the debts, but to hinder, delay, and defraud? and time of transfer is not conclusive.
The assignment was by a mother to a daughter. While such a relationship may lead the court to examine the transaction closely, the relationship does not establish fraud, and if the transaction be in fact bona fide, the relation becomes, in thé end, unimportant.
The assignment was voluntary on the part of the assignor. The assignee did not solicit it, and did not expect or intend to compel her parents to pay. However, there was the debt, and if the assignor desired, in good faith, to pay, and did not have money or property sufficient to pay both the receiver of the bank and the assignee, the assignor could prefer one creditor as against the other. This is elementary law.
While the assignment ran to Irene Duell and her husband, Carl, with respect to whom the assignment would be a gift, the actual intention was to pay what was owed to Irene, and the validity of the assignment to her was not affected.
Existence of a circumstance which might be considered a badge of fraud, or existence of several such circumstances, is not.necessarily incompatible with good faith in fact, and in this instance, good faith was well proved.
There is nothing else of importance in the case, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an application for a writ of habeas corpus. The petitioner is serving a life sentence in the state penitentiary for the crime of grand larceny. Through this proceeding he seeks his freedom on the ground that the sentence is void.
The facts are sufficiently developed by the application for the writ, by the response of the warden thereto, and by statements of counsel. There is no issue of fact requiring attention. It appears that in January, 1929, an information was filed in the district court of Shawnee county charging this petitioner (and another) with the crime of grand larceny as defined in R. S. 21-533, the particulars of his offense being the theft in the nighttime of domestic poultry of the value of $25. The pertinent statute reads:
“Every person who shall be convicted of feloniously stealing ... in the nighttime any domestic fowls . . . belonging to another, shall be deemed guilty of grand larceny.”
In a trial before a jury a verdict of guilty was rendered against the petitioner, following which he was sentenced according to law; and what the law prescribed as his punishment and sentence requires consideration of the following provisions of the crimes act:
“Persons convicted of grand larceny shall be punished in the following cases as follows:
“First (for theft of automobiles, not pertinent).
“Second (for theft of specified 'domestic animals, not pertinent).
“Third, in all [other] cases of grand larceny, ... by confinement at hard labor not exceeding five years.” (It. S. 21-534.)
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.” (R. S. 1933 Supp. 21-107a, being Laws 1927, ch. 191.)
In the instant case the judgment roll, dated June 3, 1929, recites the rendition of the verdict and that sentence was deferred until June 8,1929. A further postponement occurred, until June 22,1929, at wihich time the court made a finding that the defendant had theretofore been convicted of two prior felonies, for one of which he had served a term in the Kansas state penitentiary, and for the other he had served a term in the Missouri state penitentiary. On that finding, together with the verdict in the pending case, petitioner was sentenced to life imprisonment in conformity with the statute.
The petitioner’s contentions are that the sentence and judgment pronounced upon him and under which he is now confined in the penitentiary were in violation of his rights under the state and federal constitutions, in particulars which will be noticed in the order in which they are presented.
It is first asserted that he was denied the right to appear and defend upon the question whether or not he was' a habitual criminal. The record does not show any such denial of his right. The claim ■is wholly gratuitous as well as grossly out of time. Petitioner was represented by counsel, and if any such procedural right of defendant had been violated, timely objection should have been made thereto. It could not be corrected by the trial court nor reviewed or redressed by this court at this late date. Habeas corpus is not a substitute for a timely motion for a new trial, nor for a timely appeal, as a means for the correction of procedural irregularities. (R. S. 60-2213; In re Bolman, 131 Kan. 593, 595, 596, 292 Pac. 790; and note in 76 A. L. R. 468 et seq.)
Petitioner’s next contention is that he was entitled to a jury trial on the question Whether he had been convicted of other felonies on two prior and successive occasions. He had no such privilege under Kansas law, as this court has heretofore held. In State v. Woodman, 127 Kan. 166, 272 Pac. 132, where double the usual sentence was imposed for the crime of felonious assault, because, following the verdict and before sentence, it was shown that Woodman had been previously convicted of another felony, we said:
“A final objection to the judgment is that the information on which defendant was prosecuted did not allege that defendant had formerly been convicted of a felony. There is a contrariety of judicial opinion as to the necessity for such allegation. (People v. Gowasky, 244 N. Y. 451; 31 C. J. 734-735.) Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time. To make his defense to a criminal charge all the accused needs to know is the nature of the crime charged against him and the names of the witnesses with whom he will be confronted in a prosecution therefor. In this state it is no concern of the jury what the penalty for a crime may be, and it is just as well that the jurors’ minds should not be diverted from the question of defendant’s innocence or guilt by facts concerning defendant’s prior convictions of other felonies. It is also fairer to defendant to keep such matters entirely away from the jury. After conviction, however, and before the allocution the defendant should be timely apprised that a sentence under the act of 1927 will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed. (16 C. J. 1294, 1350.)” (p. 172.)
See, also, State v. Haines, 128 Kan. 475, 479-480, syl. ¶ 6, 278 Pac. 767; State v. Frizzell, 137 Kan. 35, 37, 19 P. 2d 694.
Counsel for the petitioner ignore these cases completely, and press upon our attention various decisions from other jurisdictions. Those could only be helpful if the question were new and undecided in this jurisdiction. Moreover, we find that with scarcely an exception those decisions were based upon statutes which expressly prescribe the procedural method for ascertaining the fact of the prisoner’s prior conviction of one or more felonies. (See A. L. I. Code Criminal Procedure, Proposed Final Draft and commentaries, pp. 411-418.) In the Woodman case, supra, we took due notice of the fact that there was a contrariety of judicial opinion on the proper way to take into account the fact of a defendant’s prior conviction of a felony when determining what sentence under the later conviction should be imposed. This court has no misgiving as to the fairness and justice of the Kansas practice — keeping all intimation of that fact away from the jury in the criminal trial as far as practicable, and making the matter of the sentence the subject of a later judicial inquiry before the trial court, with a fair opportunity for the ¡prisoner to meet whatever record evidence and other evidence the state may adduce to establish the fact that he had formerly been convicted of another felony or of successive prior felonies. The circumspection which our procedure exerts to keep the fact of any former convictions for felonies away from the jury is to protect the accused from the possibility that in his pending trial the jury might conceive a prejudice against him as a habitual criminal. But where a second offense is a separate and distinct crime it must necessarily be so charged in the information, and the proof to support the charge in all its details would have to be submitted to the jury. We have one such crime in this state — the persistent violation of the prohibitory law. A first offense against the prohibitory law (with exceptions not here pertinent) is a misdemeanor punishable by a moderate fine and jail sentence. (R. S. 21-2101.) But a subsequent infraction of the prohibitory law is quite a different and a more serious crime. It is a distinct felony. (R. S. 21-2146.) In such a case, all the formalities of a felonious charge should be pleaded in the information. (Marshall’s Kansas Intoxicating Liquor Law, § 282; State v. Briggs, 94 Kan. 92, syl. ¶ 3, 145 Pac. 866; State v. Oliver, 129 Kan. 719, 284 Pac. 357.) Of necessity, too, every material allegation in such an information would have to be proved to the satisfaction of a jury.
It is next urged that the trial court was without jurisdiction to sentence the prisoner as a habitual criminal, since in the information he was only charged as a first offender. He was not even charged “as a first offender.” He was simply charged in conform ity with the statute — with the felonious theft of domestic poultry in the nighttime. And in this jurisdiction a criminal charge in the language of the statute is sufficient. (State v. Buis, 83 Kan. 273, 111 Pac. 189; State v. Goodrich, 136 Kan. 277, 15 P. 2d 434.) In this state, too, the punishment for crime is something with which the jury has no concern except under the recent statute providing for capital punishment in homicide cases. (Laws 1935, ch. 155.) The function of a jury is to determine the innocence or guilt of the accused. The law prescribes the penalty; and when the penalty of five years’ penal servitude for the felonious theft of domestic poultry in the nighttime was prescribed by the statute of 1903 (R. S. 21-533) the legislature did not exhaust its power to deal with that sort of a crime. It was within its prerogative to provide, as it has done in this statute (Laws 1927, ch. 191, R. S. 1933 Supp., 21-107a), for a more severe penalty for the commission of a felony by a habitual criminal than by one who was merely a first-time offender. Such, at least, was the apparent theory of the lawmakers; and this matter of penalties for crime is their exclusive prerogative. In State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052, which was an appeal from a judgment of conviction in a case of burglary and grand larceny, in the motion for a new trial affidavits of five jurors were introduced in which they averred that they would not have agreed to a verdict of guilty if they had known the punishment would have been a penitentiary sentence. This court said:
“The court did not tell the jury in . . . [its] instructions what the punishment would be in the event the defendant was found guilty. This was proper, for fixing the extent of the punishment is not a function of the jury. The function of the jury is to determine whether the defendant was guilty of the offense charged. The punishment is fixed by the court in accordance with the statute. (R. S. 21-523, 21-524.) For many offenses the court really has nothing to do with the extent of the punishment, the sentence being an indeterminate one under the statute. (R. S. 62-1521.) Hence, that was no reason for granting a new trial.” (p. 145.)
The petitioner’s next contention is that—
“Under the law of all the other states within the United States having laws affecting prior violators or habitual criminals, as well as in the United States courts, it is necessary to plead the prior violations in order to subject the accused to increased punishment therefor.”
As this court is satisfied with the interpretation of Kansas law and Kansas procedure, it cannot attach as much significance to the law of other jurisdictions as do counsel for the petitioner. We are not dismayed by the barrage of citations from other jurisdictions gleaned by the industry of counsel, seeing that counsel quite ignore our own — those, too, which really foreclose the legal questions which counsel for petitioner seek to raise.
It may be observed here that the code of criminal procedure promulgated by the American Law Institute rejects the notion that former conviction must be pleaded in the indictment or information, and that the issue thus tendered must be submitted to the jury. (A. L. I. Code Criminal Procedure, Official Draft, § 403.) So far as these subjects are concerned, this section was regarded as satisfying the requirements of due process of law under state and federal constitutions.
A final contention is that the Kansas statute is void because—
“Said act is ambiguous, of doubtful meaning and contradictory, and permits excessive sentences, and permits arbitrary and unreasonable discrimination in the enforcement of said act.”
Whatever ambiguity did inhere in the act was clarified by judicial interpretation in State v. Close, 130 Kan. 497, 287 Pac. 599. If we should concede that the sentences imposed under the act are excessive, that feature would not render it unconstitutional. In Blackstone’s time a thief was hanged for stealing a sheep. It is only where the trial or punishment violates some provision of the Kansas bill of rights, or the due process guaranties of the fourteenth amendment, that a penal statute can be stricken down by judicial pronouncement. No such infirmity inheres in the statute under consideration. No federal supreme court decision is cited which holds that a more severe punishment cannot be imposed on a repeater of felonies than on a first offender. On the contrary, in the notable case of Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583; where a sentence of life imprisonment on a habitual criminal was under review, the supreme court, speaking by Mr. Justice Hughes (now Chief Justice), said:
“It cannot be said that the prisoner was deprived of due process of law because the question as to former conviction was passed upon separately. . . . If a state adopts the policy of imposing heavier punishment for repeated offending, there is manifest propriety in guarding against the escape from this penalty of those whose previous conviction was not suitably made known to the court at the time of their trial. ... To repeat, the inquiry is not into the commission of an offense; as to this, indictment has already been found and the accused convicted. There remains simply the question as to the fact of previous conviction. . . . The 14th amendment is not to be construed ‘as introducing a factitious equality without regard to practical differences that are best met by corresponding differences of treatment.’ [Citations.] A state may make different arrangements for trials under different circumstances of even the same class of offenses . . . and certainly it may suitably adapt to the exigency the method of determining whether a person found guilty of crime has previously been convicted of other offenses. All who were in like case with the plaintiff in error were subject to the same procedure. He belonged to a class of persons convicted and sentenced to the penitentiary whose identity as former convicts had not been determined at the time of their trial. As to these, it was competent for the state to provide appropriate means for determining such identity. . , . There is no basis for the contention that the plaintiff in error has been put in double jeopardy, or that any of his privileges or immunities as a citizen of the United States have been abridged. Nor can it be maintained that cruel and unusual punishment has been inflicted. [Citations.]” (pp. 625, 627, 630, 631.)
See, also, our own case of In re Skinner, 136 Kan. 879, 18 P. 2d 154.
In the oral argument counsel for the petitioner contended that, passing by the subject of charging former conviction in the information, and reaching the subject of sentence, the statute was bad as violating due process, in that no procedure was prescribed for ascertaining the fact of former conviction.
It is true that no detailed procedure is prescribed, and due process requires that defendant be fairly apprised of the subject of inquiry, and he be given opportunity to be heard. But in the Woodman case, swpra, it was said that after conviction and before allocution, defendant should be timely apprised that a sentence under the act of 1927 will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed.
The statute provides that the increased penalty shall not be imposed unless the court shall find the fact of former conviction or convictions. The operative and judicial interpretation of this statutory provision is that a judicial finding is meant — -which, of course, imports notice to defendant of subject of inquiry and opportunity to be heard, and that in this way the legislature provided for the essentials of due process in the concluding phase of the case.
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Leavenworth county in which a judgment for costs was rendered in favor of the defendants. The case was tried before a referee, who reported his findings of fact, and conclusions. The testimony was not preserved, at least none that calls for any notice by us, for, while after the judgment there appears in the case-made what are said to be certain extracts from the testimony, yet counsel on both sides ignore this, and treat the case as standing before us upon the pleadings, the report, and the judgment. There are one or two questions of practice presented and discussed by counsel, but we shall first address ourselves to the principal question, and that is, the rights of the respective parties upon the facts as reported by the referee. In the opening of their brief, the learned counsel for plaintiff in error make this statement of their view of the questions involved:
“The general claim in the petition is, that the plaintiffs, with others, and the defendants Carney & Stevens, were creditors of Baird & Rively, and that Baird & Rively assigned their property to Carney & Stevens for the benefit of all their creditors; that Carney & Stevens accepted of such trust, and took possession of the property and wasted the same; that there was sufficient property, if properly handled, to pay plaintiffs’ claim, but that none of it was paid, and the property converted by the defendants to their own use.
“The only issues to which we particularly desire to call the attention of the court are those made by Carney & Stevens, they admitting generally that they were trustees of the prop erty, alleging that while the property was in their care they disposed of the same to the best advantage, in a manner approved and advised by the plaintiffs; that there was a large loss in said disposition of the property, and that therefore, the plaintiffs, instead 'of obtaining a judgment against defendants, should share part of the loss thus incurred in the administration of the trust; and this is substantially the question between these parties.”
In order to a clear understanding of the case, it will be necessary to notice the findings of fact as made by the referee-The first six findings show, in brief, an indebtedness on the part of W. H. Baird, as the successor of .Baird & Bively, of Salt Lake City, to plaintiffs and to defendants. The further findings are as follows:
7th.-In the month of September 1865, the defendant Thomas C. Stevens left Leavenworth city for Salt Lake City, for the purpose, among other things, of collecting said claim of Carney & Stevens against Baird & Bively. Before leaving Leavenworth city, he, at the request of the plaintiffs, undertook to collect their said claim against Baird & Bively, and for the purpose of facilitating such collections, the plaintiffs executed and delivered to said Stevens a written assignment of their said claim against Baird & Bively. A copy of such assignment is exhibit “A” of defendant Carney’s answer herein; and for a like purpose the plaintiffs executed and delivered to Stevens, the power of attorney, a copy of which is exhibit “ B” of defendant Carney’s answer. Neither the plaintiffs, nor Stevens, intended that such assignment should vest in Stevens the title to said claim of the plaintiffs, nor authorize him t.o receive the same, only as the attorney and agent of plaintiffs.
8th.~In the month .of February 1866, Stevens was in Salt Lake City, and called upon Baird for payment of the claim of Carney & Stevens against Baird & Bively, but received no payment thereon. Soon afterward Stevens, in the name ofvCarney & Stevens, entered into a verbal agreement with Baird, by which Baird agreed to procure, sell and deliver to Carney & Stevens, at Salt Lake City, or on the road leading therefrom to Helena, Montana Territory, to be transported to Helena for sale, flour at $7 per sack, the purchase-price for which it was agreed should be applied toward the payment of said claim of Carney & Stevens against Baird & Bively. At the time of making such agreement, Baird had little if any of the flour intended to be delivered under it, but immediately commenced the purchase of flour, and exchanged merchandise for flour, and notes payable in flour, -which flour Baird intended to deliver to Carney & Stevens -under said agreement. Baird delivered no flour under said agreement at the time of making the same, nor at any time thereafter, nor was any of said flour at any time delivered by ■any other person under his agreement. At or about the ■same time of making said agreement with Baird, Stevens, in the name of Carney & Stevens, for the purpose of transporting such flour so agreed to be sold and delivered by Baird, to Helena, Montana, for sale, entered into an agreement in writing with Page & Salisbury, freighters at Salt Lake City, to transport the flour so to be sold and delivered by Baird to Helena,-in quantity from 4,000 to 5,000 sacks, and not less than 4,000 sacks, for which transportation it was agreed they ■should be paid 8-|- cents per pound in good, clean gold dust, payable as such flour should be delivered in Helena, Montana, aforesaid. Stevens intended that the agreement with Baird for the purchase of such flour, and the agreement with Page & Salisbury for the transportation of the same, should be for the benefit of the plaintiffs, and defendants Carney & Stevens; but his intentions and purposes were not disclosed to Baird at the time said agreements were made. Soon after making said agreements, Stevens returned to Leavenworth city, and reported said agreement with Page & Salisbury for the transportation of the same to Helena to plaintiffs and Thomas Carney, and his acts in that behalf were by both ratified and confirmed. Carney and Stevens agreed, and it was ■understood, that any moneys received by them from Baird and Baird & Rively, applicable to the payment of their debt and ■claim against the same, should be divided and shared by and between Carney & Stevens, and the plaintiffs, pro rata, in proportion to the claim of each against Baird & Rively.
9th.-On or about the 1st of April 1866, the said Baird, who was then embarrassed, and unable to pay his debts as they became due, sold to one E. H. Lewis, then a clerk in his store in Salt Lake City, the undivided one-half of his ■stock-in-trade, goods, and merchandise, for the price of $17,353.90, and in payment therefor took the promissory note of said Lewis. Included in the stock-in-trade so sold to Lewis, was the flour in store procured by Baird to that time, which he had intended to deliver to Carney & Stevens under the assignment before mentioned. At or about the time of such sale to Lewis, Baird executed and delivered to him a power of attorney, authorizing him to carry on such mercantile business on behalf of said Baird, to collect debts due him, and to sell such goods and merchandise, and stock-in-trade, and to sell and dispose of all his property in Salt Lake City, as the said Lewis might see fit; and on the strength of such power of attorney Baird delivered to Lewis the entire stock-in-trade, goods, and accounts, books of account, evidences of debt, and choses in action belonging to himself alone, and to himself and said Lewis jointly in Salt Lake City, except the promissory note of Lewis, given in the purchase of his interest in such stock-in-trade, and immediately thereafter left Salt Lake City, and did not return thereto prior to the 24th of December 18.66.
10th.-On the 23d of April 1866, said F. H. Lewis, for himself, and as the attorney-in-fact for Baird, assigned to Carney & Stevens all the goods, chattels, and stock-in-trade of himself and said Baird, and the notes, accounts, and choses in action of said Baird, in his possession or under his control, on the condition and agreement that he, the said Lewis, should be indemnified and saved harmless from and against his promissory note given to Baird for the price of the undivided one-half of said goods, merchandise, and stock-in-trade, and on the further condition that he should be paid the sum of about $2,000 claimed by him against said Baird. Carney & Stevens, and A. Stettauer, one of the plaintiffs, jointly executed and delivered to Lewis a bond of indemnity, by which they agreed and bound themselves to keep and save the said Lewis harmless as against said promissory note so given by Lewis to Baird. In the body of said bond the name of Stettauer & Bros, appears as the co-obligors with Carney & Stevens, but the name Stettauer & Bros, is not signed to said bond. Said bond of indemnity bears date 17th June 1866. Immediately after the execution of such assignment by Lewis, Carney & Stevens, by Joseph Nounan their agent in Salt Lake City, took possession of such assigned property, and commenced the collection of the debts, dues, and demands, and the sale of the assigned goods, merchandise, and stock-in-trade at private sale.
11th. — Such assignment was in trust, for the purpose of collecting the debts, dues, and demands and choses in action, and for a sale of the goods, chattels, merchandise, and stock- in-trade, and the conversion of tho same into money, and. from and with the proceeds of such sales and collections, after paying the costs, expenses, and charges of executing the said trust, of paying the creditors of Baird and Baird & Rively in the order following: First, Nounan, Orr & Co., claim against Baird; J. W. Kerr, claim against Baird; C. H. Hempstead, claim against Baird; F. H. Lewis, claim against Baird; Carney & Stevens, claim against Baird & Rively. Second, All of the other creditors of said Baird, and Baird & Rively, including the plaintiffs in this .action. The plaintiffs had no actual knowledge of the terms of said assignment, further than that it was made to pay the debts of Baird, and Baird & Rively.
12th.-No attempt to sell the assigned stock-in-trade and merchandise was made, other than at private sale. During the spring and summer of 1866, goods and merchandise of the character and kind of those assigned by Lewis to Carney & Stevens decreased in value in Salt Lake City; but sales of assigned property were made for cash, and could have been further made for cash.
13th.-On the 15th of May 1866, Nounan, as the agent of Carney & Stevens, shipped at Salt Lake City, of the flour assigned by Lewis, and of flour collected on notes and due-bills payable in flour, for Helena, Montana, for sale, by Page & Salisbury’s trains, under the agreement for freighting before mentioned, 1,488 sacks of flour, worth in Salt Lake City $7 per sack. Neither Thomas Carney, nor the plaintiffs, had any actual notice or knowledge that such shipment was intended to be made by Nounan before it was made, nor until some time thereafter; but no objection was made, thereto by Carney, or the plaintiffs, after they were advised of such shipment.
14th.-Nounan, as the agent of Carney & Stevens, continued to sell at private sale the goods and merchandise so-assigned, and to exchange and trade portions thereof for flour, salt, barley, wood and coal, until about the 20th of -- 1866, on which day he sold the balance and remainder of such assigned goods, merchandise, and stock-in-trade to McGonty & Harvey, for the sum of $9,448.76, and in payment therefor took their promissory notes, amounting, in the aggregate, to the sum last mentioned, all payable to-the order of Carney & Stevens. Afterward, and on or about the 1st of September 1866, Nounan and Thomas C. Stevens- traded and exchanged said notes for 1,500 sacks of flour, and then exchanged a portion thereof for barley, and shipped such flour and barley to Helena, Montana, for sale, by Page •& Salisbury’s trains, under the freighting contract with them before mentioned. During the spring and summer of 1866 Nounan traded and exchanged portions of the assigned goods for flour, salt, wood and coal, and sold portions thereof in Salt Lake City, which flour, barley, and salt which remained unsold was shipped to Helena, with the flour received in exchange for McGonty & Harvey’s notes; and the last and final shipment to Montana was made on the 11th of October 1866. Neither Thomas Carney, nor the plaintiffs, had actual notice or knowledge of the intended sale to McGonty & Harvey before it was made; nor of the intended exchange of their said notes for flour, before such exchange was made. On or about the 20th of September 1866, Stevens wrote, in his individual name, to the plaintiffs, that all the assigned goods had been disposed of, and that there was on hand a quantity of flour, salt, barley, wood and coal, and that such flour, salt and barley were being shipped to Helena for sale. Said letter was shown by plaintiffs to Thomas Carney, and was the first actual knowledge either had of the final sale of such assigned stock-in-trade, goods, and merchandise, and the shipment or intended shipment of the flour, barley, and salt on hand to Helena for sale, and neither objected thereto. (Said letter is given in full in the 17th finding of fact in this report.) The notes of McGonty & Harvey so received in payment of merchandise sold to then!, as before mentioned, and transferred and exchanged for flour, was a note dated 20th August 1866, and payable at six months, to the order of Carney & Stevens. At the time McGonty & Harvey made such notes, they were in good credit, and considered responsible in Salt Lake City, but became insolvent before the note last mentioned became due, and have never paid the same, nor any part of it. Carney & Stevens, as the indorsers, were afterward compelled to pay the holder of said note the sum of $2,449.86, the amount of principal, interest, and costs claimed thereon. If the plaintiffs were or are liable to Carney & Stevens for any part of the money so paid, the per cent, and pro rata thereof, is the sum of $678.89. The goods and merchandise shipped on the 11th of October 1866, did not arrive in Helena until the spring of 1867. After the last-mentioned shipment, no part of the assigned goods, chattels, and merchandise remained in the hands of Carney & Stevens, in Salt Lake City, nor had they any of the property at that place which had been received on collections, or sales, or exchange of assigned property, except a quantity of wood and coal, which had cost Carney & Stevens the sum of $-in merchandise, and which was afterward sold by Nounan for $976.66, and the proceeds applied by him upon his claim for services as the agent of Carney & Stevens, as such assignee.
15th.-Áll of the assigned goods, merchandise, and stock-in-trade had been sold or exchanged for flour, salt, wood and coal before the 1st of September 1866.
16th.-In the fall or summer of 1866, Baird caused the promissory note given by Lewis to him for the purchase-price of the stock-in-trade before mentioned to be sued in the name of E. B. Shaffer, in a court in Utah Territory, which suit was pending on the 24th of December 1866, of which Carney & Stevens, and the plaintiffs, had notice before said day.
17th.-On the 18th of September 1866, Thomas C. Stevens was in Salt Lake City, and thence wrote and sent to the plaintiff a letter, of which the following is a copy:
Banking House oe J. Nounan, Orb & Co.,
Great Salt Lake City, Utah, September 18th, 1866.
Messrs. Stettauer & Bros.— Gentlemen: I arrived here yesterday, after a short and pleasant trip across the plains. Find things very dull here, and money extremely close. I saw Mr. Hempstead, our attorney in th'e Baird matter, and he will have the notice served as soon as he can to take depositions in -Leavenworth. He feels confident of beating the note, and I have examined the affairs of Baird & Rively, and think it will pay your claim and ours, and leave a surplus, perhaps enough to pay the note, and some to Tichenor, Rowe & Co. Don’t force yours off. It will bring one hundred cents, and interest. If I were in Leavenworth I would buy some of these claims, if I could do so at 25 to 40 per cent., and pay in my notes at six months; and if you can buy Woodruff's and Thomas Keysen & Co.’s, at not to exceed 40 per cent., do so, and I will return my note at six months, without interest. The goods are all sold, and will have some 400 cords of wood, some notes, and 1,500 sacks of flour, which I am shipping to Montana by Page & Salisbury’s trains, and as soon as it is sold, and the bills receivable collected, I will forward you your money; and I feel confident of being able to do so in full. If we could get Baird to assign the note, and stop litigation, (which is expensive here,) it would be a good move. Try him, and write me. I will remain here some two weeks before going to the mountains. Trade is very dull out here, and prices low. I hope to be able to forward some money soon. My best regards to all.
Your friend, truly, Thomas C. Stevens.
And also, a letter, of which the following is a copy:
Banking House oe Nounan, Orb & Co.,
Great Salt Lake City, Sept. 20th, 1866.
Messrs. Stettauer Bros., Leavenworth, Has.— Gentlemen: Mr. F. H. Lewis leaves to-morrow for the east, on a mule train, with his family. He will go to Leavenworth, and I shall give him a letter of introduction to you, and Carney. I want you to show him every attention, and treat him the best you know how, as we will want his depositions, and will want Judge McDowell to talk with him, and see that Baird or-do not get hold of him; -- of whisky, and your tittle-tattle, will make him satisfied. You will know how to manage him, and do your prettiest. It would save a vast amount of trouble and expense if we could get Baird to sanction all that Lewis has done in making the assignment, and selling the goods, and paying the debts here, which we have done. See Billy McD-, and have him see Baird, and you and him use a little coaxing, threats, etc., etc., and get Baird to sanction the assignment, and all we have done, and the note-suit stopped. You can use Lewis as you want to by getting on the right side of him, which is easy done. He is mad at Baird for getting him in the scrape he has, and you can work upon his feelings on that key.
Goods low and trade dull. We shall leave a portion of Mott’s goods here, and' the balance in Montana. Write me often.
Respectfully, ■ Thomas C. Stevens.
Carney was advised of the contents of said letters. On the 24th of December 1866 Carney & Stevens and William H. Baird executed the agreement of that date, a copy of which is given in plaintiffs’ petition. Said agreement was procured to be executed on the part of Baird, mainly by the plaintiffs, and William C. McDowell the attorney named in the letters of said Stevens, and was intended by the plaintiffs, and Thomas Carney, acting for Carney & Stevens, for the purposes mentioned in the said letters of Thomas C. Stevens, copies of which are above given, and for the further purpose of facilitating the collection of their said claims against Baird & Rively. At the time of the execution of the last-mentioned agreement, Carney & Stevens, and the plaintiffs, knew that the assigned goods and merchandise had been disposed of for cash, or credit, or sold for notes, or exchanged for flour, barley, wood and coal, and that notes taken for goods had been exchanged for flour, and that all the flour, salt and barley received in exchange for assigned property had been shipped to Helena, Montana, for sale; and the plaintiffs and Carney were advised by the said letter from Stevens of the dealings of Stevens, and Nounan, as the agent of Carney & Stevens, with the assigned property, the said shipments to Helena, relying upon the statements there made, and made no objections thereto, but acquiesced therein. Neither Thomas Carney nor either of the plaintiffs were in Salt Lake City during the year 1866. At the time of the execution of the agreement of Dec. 24th 1866, said Baird knew that Lewis had made the assignment to Carney & Stevens before mentioned, and that the property assigned by Lewis had gone into the possession of Carney & Stevens. On the 24th of December 1866, a part of the flour shipped had arrived in Helena, and the balance of the flour and the salt and barley did not arrive until the spring of 1867; and all such produce so shipped was then subject to charges for freight, pursuant to the freighting-agreement between Page & Salisbury and Carney & Stevens. In the spring of 1866, flour was worth in the Helena market about $22 per sack, but there was a rapid decline in price during the summer, winter and spring following. The following debts were outstanding against Baird & Bively on the 24th of December 1866: Stettauer Bros., plaintiffs, $8,893.23; Carney & Stevens, defendants, $24,696.77; First National Bank, $2,800; and the said last-named creditors, and Baird, were the only persons, firms and corporations then interested in said assigned property, or the proceeds thereof. Carney and Stevens paid to Baird $2,000, the consideration expressed in said agreement with him of 24th December 1866, at the time of the execution, and were by it authorized to retain said amount of money from the proceeds of such assigned property. At all times before said December 24th, Stevens believed that sufficient money would be realized from such assigned property, or the proceeds of that exchanged therefor, to pay the last-mentioned debts, and so advised the plaintiffs; and said Carney and they, relying upon the advices of said Stevens, believed at the time of execution of the last-mentioned agreement, that their said debts and claim against Baird & Eively would be paid in full from the proceeds of such assigned property.
18th. — All of the assigned goods and chattels had been disposed of, and the choses in action collected, which were collectible before the commencement of this suit.
19th.-Carney & Stevens collected, in money, on the assigned notes, accounts and choses in action, the sum of $4,936.14. They received in cash from sales, $11,080.45. They collected 936 sacks of flour on notes payable in flour, included in shipments to Helena, on 15th May 1866, worth in Salt Lake City $7 per sack, $6,552. The remainder of the assigned stock-in-trade, which was exchanged for flour and other produce, as before mentioned, is the sum of $15,265. The goods and merchandise last mentioned were exchanged for flour, salt, barley, wood and coal, or sold for notes, and the notes traded for like produce; and the value of such merchandise, when so exchanged, was the sum last mentioned. (Schedule “A” hereof, is a statement of such merchandise, and the value of the same.)
20th-Carney & Stevens expended in executing the trust created by said assignment, in rent, clerk and agents’ hire, with the money paid to Baird 24th Dec. 1866, $7,600; and ten per cent, commission is a fair and reasonable allowance for their personal services and expenses in executing such trusts. (Schedule “B” is a statement of the items of claims and allowances mentioned in this finding.)
21st.-Prior to December 1866, Carney & Stevens had paid in full the debts preferred in the first class of said assignment, except their own debt, and such payments amount in the aggregate to the sum of $8,865.80. (Schedule “C” is a statement of such debts paid.)
22d.-The balance of the assigned property in the hands of Carney & Stevens, charging them with the value of the 936 sacks of flour shipped to Helena in May 1866, and the value of the goods and merchandise sold for flour and promissory notes, is the sum of $18,334.20; and if the plaintiffs are entitled to a distribution of the net proceeds of such assigned property, the distribution then of the plaintiffs, pursuant to the provisions of the agreement of 20th December 1866, is the sum of $4,446.63.
23d.-All of the produce so sent and shipped to Helena was sold prior to the 1st of June 1868; and all the proceeds of such sales of such produce were not sufficient to pay the freight and charges of storage and commission, and Carney & Stevens expended of their own money, in paying the balance of such freights, storage and commissions, the sum of $14,275.58, over and above all the moneys received from and as the proceeds of such produce shipped to Helena; but the plaintiffs had no notice or knowledge that such payments were to be made before the same were made, and have never been called upon to pay any part thereof until the filing of the answer of Carney & Stevens. If the plaintiffs are liable to Carney & Stevens to contribute to the money so expended over and above the proceeds of such sales, I find that the per cent, and pro rata, when to be contributed by them, is the sum of $3,954.33.
24th.-No portion of the advancement made by Carney & Stevens mentioned in the 14th finding was ever claimed by Carney & Stevens from the plaintiffs till the filing of their answer in this cause; and such advancement, and their loss sustained in the shipment of the goods to Montana, was charged to profit and loss on the books of Carney & Stevens; and they never were charged to the plaintiffs on their books, any loss or expense, or gave them credit for any receipts, nor rendered them any account, beyond placing in their possession the books of the business transactions in Salt Lake City, under such assignment.
25th.-After the commencement of this suit, Carney & Stevens settled with said Baird for and on account of the matters and things and claims alleged and stated by him in his-answer, and paid him the sum of $1,500, in satisfaction and discharge of such claims.
26th.-The only account kept on the books of Carney & Stevens, at Leavenworth, of the adventure and shipment to> Montana, were entries, under the title of “Montana Adventure Account,” which account was a statement of produce shipped, value or costs thereof, and proceeds in money received by Carney & Stevens.
The contract of 24th December 1866, referred to in above findings, is as follows:
“Whereas, W. H. Baird, of Leavenworth city, sold an interest at Salt Lake City, in a stock of goods, wares, groceries, and merchandise, which said Baird took from Leavenworth to Salt Lake City, to E. H. Lewis, of said Salt Lake City, and as to the residue of said Baird’s assets, said Lewis was appointed by said Baird as his attorney-in-fact, to dispose of the same as Lewis should see fit. And whereas, said Lewis gave to said Baird in payment of interest so bought by Lewis of Baird a note being for $17,352.90. And whereas, said note is in suit in Salt Lake City, in a case where one E. B. Shaffer is plaintiff, and said Lewis defendant. And whereasy said Baird is indebted to Carney & Stevens, of Leavenworth, to the amount of $24,696.77, and interest; and indebted to Stettauer & Bros., of same place, in the sum of $8,893.23, and interest. And whereas, said Baird owes at Eirst National Bank of Leavenworth, $2,800, evidenced by note indorsed by T. C. Stevens. And whereas, said Baird has goods, assets and effects in Salt Lake City, including the interest sold to Lewis, supposed in all to be worth some $40,000, more or less. Now, this.agreement, made and entered into this 24th of December 1866, by said Carney & Stevens, and W. H. Baird, witnesseth: that in consideration of the payment to said Baird by said Carney & Stevens, on the signing of this agreement, $2,000 cash, the said Baird binds himself to have the suit aforementioned dismissed, and to deliver to said Carney & Stevens, or their agent at Salt Lake, the note aforesaid, and to suffer said Carnéy & Stevens to reduce said assets aforementioned at once to money. It is also understood and agreed, that said Carney & Stevens are to pay out of the proceeds of said assets, the debts and interest herein mentioned of said Baird, and any and all proper costs, expenses, and charges connected herewith, and to repay themselves the $2,000 herein to be paid said Baird; and the balance of the money arising from said assets, if any, is to be paid by Carney & Stevens to said Baird. The said Carney & Stevens are to keep an account of all their doings and proceedings herein, an inspection of which is at any time to be allowed said Baird.
“In witness whereof, the parties hereto set their hands this 24th December 1866. Carney & Stevens.
W. H. Baird.”
It is apparent from the 8th finding, that in making the arrangement with Baird for flour, and the contract with Paige & Salisbury for transportation, Stevens was acting for and on behalf of plaintiffs and defendants alike, that his actions therein were disclosed to each, and by each approved. Whatever, therefore had been the result, whether profit or loss, was the profit or loss of each. And each was equally bound by the contracts entered into. The contract for transportation, if not performed, subjected the party breaking it to damages for non-performance. If Paige & Salisbury had broken it, and Stevens had recovered damages for the breach, clearly plaintiffs would have been entitled to share pro rata therein. If Stevens had broken it, and been muicted in damages, the plaintiffs were bound to share the loss. It was a joint venture, entered into by the agent of both, for the benefit of both, and approved by both. Looking backward, it seems a foolish venture; but results do not change the obligations of contracts. Each at the time doubtless thought it wise and prudent. At least, each assumed the risk.
Thus far the questions are easy, and the case dear. The difficulty arises in determining the character of the subsequent transactions by which the assets of Baird were secured and converted into grain, etc. If all this was but the carry ing out of the first arrangement, and the various steps but means deemed necessary to accomplish that which was temporarily frustrated by the failure of Baird to perform his agreement with Stevens, then it remained still the joint venture of plaintiffs and defendants, and the results were binding upon each alike. So also, if by Baird’s failure the original plan was by all parties considered abandoned, yet if the subsequent measures to obtain and convert the assets- of Baird into cash were done for the benefit of plaintiffs and defendants alike, accepted and ratified by both parties as done on their joint account, the same conclusion follows. On the other hand, if the original arrangements were ended, either through Baird’s failure, or by the action of the parties hereto, and the defendants subsequently procured an assignment of the stock of goods primarily for their own benefit, and only secondarily and incidentally for the benefit of plaintiffs, and assumed charge of the assigned property, with the full responsibility of assignees charged with the duty of converting the assigned property into cash as speedily and conveniently as possible, and of paying the creditors as specified in the deed of assignment, then it becomes a very serious question whether the Montana venture was such an one as an assignee could make except at his own risk. An assignee cannot speculate with assigned property, save at his own risk. Neither can he engage in business ventures at remote places, and of doubtful results, without rendering himself personally liable for any untoward results. If the defendants are to be regarded solely as assignees, or trustees, of this property, and in its disposition occupying no other relation to the plaintiffs, or invested by them with no other powers than those of assignees, it would seem as though the Montana venture must be charged to their personal account.
It seems to us, after a careful examination of the facts as found by the referee, that the parties must be considered as jointly interested in the Montana venture, and as jointly bound by the results. These are the reasons which lead to this conclusion: Stevens went out to Utah, representing both plaintiffs and defendants, and for the purpose of collecting the claims of both against Baird. The first arrangement he consummated involved the payment of the plaintiffs’ claim in flour, which payment was to be shared in by both parties, and the shipment of the flour to Montana. For this purpose, binding contracts were entered into. This arrangement, involving both the payment in flour and the shipment to Montana, and the contracts therefor, were all disclosed to plaintiffs and defendants alike; and his action in that behalf fully ratified. Plaintiffs and defendants were therefore alike committed to that venture. If the findings ended there, we should, as heretofore stated, have no doubt. We see nothing in the further findings indicating any abandonment by the plaintiffs, or any unwillingness on their part to have this venture carried through. It appears from the 13th finding, that the first shipment was made 15th May 1866, the original arrangement having been made in February prior; that notice of this shipment was given to plaintiffs, and no objection made by them thereto; and by the 14th and 17th findings, that, after all the assets had been converted into flour, etc., and the' last shipment made, the plaintiffs, with full knowledge, “made no objections thereto, but acquiesced therein.” Bearing in mind that plaintiffs were cognizant of and had ratified the original arrangement by which the claims of both plaintiffs and defendants were to be at least partially paid out of the assets of Baird in flour, and the flour to be shipped to Montana, and to carry out which a valid shipping-contract had been entered into, binding upon plaintiffs equally with defendants, and that the assets of Baird were in fact converted into flour, salt, and barley, and in fact shipped under said contract to Montana, it would seem that when the plaintiffs with full knowledge acquiesced in this conversion and shipment they were recognizing the fact of a joint venture. It is clear, that where parties once unite in a venture, and that venture is finally carried through, the presumption is that the parties continue interested in it to the end. The character of the transaction at the close is determined by the under standing and agreement at the commencement. And this presumption of continuance in interest, is not destroyed by any change in means, or detail, so long as the general features and essential plan remain the same. Here the essential facts were, the conversion of the assets of Baird into grain at Salt Lake City, and its shipment to Montana. At first, the conversion was to be by the voluntary act and assistance of Baird, and only to the extent of the defendants’ claim. It was finally wrought out by securing possession of the entire' assets and converting them into grain for the payment of the, claims of both parties. This was attended with some expense, and by assuming the burden of other indebtedness of Baird. But still, these assets were the property out of which plaintiffs’ and defendants’ claims were to be paid. The manr ner of securing them depended on the necessities of the case, and the means employed were fully communicated to both parties, and by both approved.
Again, look at it from another standpoint. By the 7th finding it appears that plaintiffs made Stevens their agent,, giving him a power of attorney, and also an assignment of their claim. Such power of attorney is as follows:
“Know all men by these presents, that we, Charles Stettauer, Abraham Stettauer, Lewis Stettauer, and David Stettauer, doing business under the name and firm of Stettauer Bros., at Leavenworth city, Kansas, do hereby make, constitute and appoint, as our true and lawful attorney-in-fact, Thomas C. Stevens, of Leavenworth city, for us and in, our name, to settle a claim in our favor against the firm of Baird & Rively, with said firm, or the surviving partner thereof, said claim amounting to the sum of $8,859.48; to receive from said firm, or the survivor thereof, the said sum of money, and receipt therefor, or to settle and adjust the same as to our said attorney shall seem to our interest; and as to--, and intending to give unto our said attorney the same powers in case we ourselves might lawfully exercise if personally present, hereby ratifying and confirming all our said attorney may lawfully do by virtue of these presents.
“In testimony whereof, the said parties hereto set their hands this 6th of September 1865. Stettauer Bros.”
Now were this action one against Stevens alone, as their agent, could it be maintained? Could they recover the value of the goods received at Salt Lake City, after ratifying his actions in making a contract for shipment to Montana, and making no objections but acquiescing in the means used to obtain possession of the goods, and in the actual shipment? If Carney & Stevens had been insolvent, could plaintiffs have avoided payment of Paige & Salisbury’s bill, on the ground that Stevens had exceeded his authority ? Could not Paige & Salisbury have held them, equally with Carney & Stevens ? Was this agency of Stevens’ ever revoked? Did he ever cease to act for them during the whole transaction ? And was there a single act done by him which they, when informed of, objected to? Looking at it simply in the light of agency: the agent, armed with general authority, adopts certain means to realize his principal’s claim; the means are approved of by the principal; they prove a failure, and loss results: who bears the loss, the principal, or the agent? Does it change the rule, that the agent is at the same time and by the same means seeking to collect of the same party a claim of his own? Of course, in some cases questions of good faith on the part of the agent might arise; but there are none such in this case. It nowhere appears that any of the parties acted other than in the best of faith; and all believed, until after the last shipment, in the success of the venture.
It will be noticed that the arrangement made in the first instance with Baird, only involved the payment of defendants’ claim. Whether Baird would have made a similar arrangement to include plaintiffs’ claim, we are not advised. And the amount thus secured in payment of defendants’ claim was the amount to be divided pro rata. Though the assignment made thereafter was charged with some prior indebtedness, yet it involved a transfer of the entire assets of Baird, and was for the benefit of both plaintiffs’ and defendants’ claims, and was by both parties deemed ample for their payment in full. This only shows additional reason for the plaintiffs’ willingness to continue in the venture. As against this, it may be said that the entire dealings with Baird, and in the Montana shipment, were in the names of defendants. To this we reply, that at the outset the claim of plaintiffs was assigned to defendant Stevens, and stood in his name during the entire time. Again, it is always competent to go behind the face of the papers, and show who are the real parties. And further, the first arrangement with Baird, and the shipping-contract, were in the name of defendants; but the referee finds expressly that they were intended for the benefit of both parties; that the form in which they were made was approved by both parties; (see 8th finding;) and that after they had been made, the parties agreed that any moneys received should be divided pro rata. The continued use of the name of Carney & Stevens only indicates a continuance of the original arrangement.
Further: It is said that the assignment which was made, preferred defendants, as creditors of Baird, to plaintiffs, and that this indicates that defendants were ignoring their agreements with plaintiffs, and seeking to secure their own claim in preference to that of plaintiffs, and that therefore, from that time on, the relations of the parties must be determined by the assignment. It must be conceded that this makes against the claim of a joint venture, and is the strongest fact in the case against it. For it does not seem reasonable, that plaintiffs would engage in a venture the profits of which, would in the first place inure solely to the benefit of the defendants, and profit them only after the defendants had been fully paid. But it will be noticed that this assignment was taken after Stevens had left Salt Lake City; that it was taken by parties who are not shown to have known of the fact that Stevens was representing both plaintiffs and defendants; that there was in fact an agreement between plaintiffs and defendants that their claims should be paid pro rata; and that as the personal management of the matter was by both parties placed in Stevens’ hands, they may well have left the details unchallenged, content to abide the final result. Not merely was there the original agreement to share pro rata, but the subsequent contract of 24th December 1866 seems to recog nize and reaffirm this arrangement. Indeed, the learned referee finds, as one of his conclusions of law, that any pref■erence to defendants given by the assignment was waived by ■this contract, and the parties were to share pro rata as per the first agreement. We conclude then, that the plaintiffs were bound by the acts of their agent, Stevens, and were jointly interested in the Montana venture, entitled to share pro rata its profits, and liable pro rata for its losses. We think therefore, that plaintiffs are liable to defendants for the amount specified in the 23d finding, $3,954.33, as well as for ■the amount specified in the 14th finding, $678.89; and also 'for a pro rata share of the excess of their expenditures as stated by the referee over their receipts, to-wit, the amount of $118.93, or a total of $4,752.15.
Counsel for defendants claim interest! The act in force at the time of these transactions was the law of 1863, (laws of 1863, p. 63.) The only clause under which interest could be claimed was that which allowed interest “for money due and withheld by an unreasonable and ' , J „ vexatious delay ot payment or settlement ot accounts.” We cannot say, under the findings in this case, that there has been such an unreasonable and vexatious delay as ■calls for the allowance of interest. The plaintiffs honestly believed themselves entitled to recover of the defendants, and they commenced their action therefor. The referee thought they were entitled to maintain their action. Evidently, the questions are not so clear, and the liability so patent, that it can be said their delay was unreasonable and vexatious. It would hot be just, after the close of this protracted litigation, to compel them to pay interest during all these years. Ordinarily, and primarily too, the question whether the delay has been unreasonable and vexatious is one of fact, to be settled' by the triers of fact. McLean v. Thorp, 4 Mo. 256. Here there is no such finding; and we cannot as matter of law say that the facts found show a delay both unreasonable and vexatious; and it must be both, to bring the case within the statute.
The remaining question is one of practice. The record below contains the pleadings, the report of the referee, and the judgment. The testimony was not preserved. And as the record stands, the only inquiry we can make 7 J. 1 • is> as t° the judgment which should be entered upon the facts found. The referee thought that upon the facts the plaintiffs were entitled to a judgment for something over four thousand dollars. The district court held that plaintiffs were not so entitled, and rendered judgment for defendants for costs. It seems to us that defendants are entitled to recover. Now upon the single record, the plaintiffs have filed a petition in error, and the defendants a cross-petition in error, each alleging that upon the facts as reported by the referee the district court erred adversely to them in its judgment. 'Will such cross-petition in error lie, or must there be a separate suit in error brought by the defendants? In the case of Bedell v. National Bank, 16 Kas. 130, 133, we expressed an opinion adversely to the right of a party to file a cross-petition in error. The question was in that case of minor importance, and not fully examined. Our attention was again called to the matter in the case of Hannon v. Houston, 18 Kas. 561, and the subject reexamined, though as the case finally turned, no reference to the question was deemed necessary in the opinion. It is brought before us again in this case, and under such circumstances that we are compelled to pass upon it. Our attention has been called to the following authorities from the supreme court of Ohio: Smetters v. Rainey, 13 Ohio St. 568; Smetters v. Rainey, 14 Ohio St. 187; Shinkle v. National Bank, 22 Ohio St. 516; Black v. Hill, 29 Ohio St. 86. In the case in 22 Ohio St., supra, the question was distinctly presented, and in commenting upon it the court uses this language: “There is no good reason why cross-petitions in error should not be allowed equally as in original actions. They were allowed at common law, and there is nothing in the code which forbids their use. On the contrary, they are calculated to subserve a leading object of the code, namely, to avoid multiplicity of suits, and to ren der litigation simple, cheap, and speedy. In order to reverse a judgment, the plaintiff in error must show not only that the judgment is erroneous, but also that the error works a prejudice to him. If it appears in the record that there is error, not to his prejudice, but to the prejudice of the defendant in error, there is no good reason why the latter should not be allowed at once, the record and the parties all being before the court, to ask and obtain the reversal or modification of the judgment for his benefit. To summon the opposite party, who is already in court, and to bring in a copy of the record, a copy of which is already in court, would be a useless labor, and involve an unnecessary expense and delay; and to bring in and file with the petition in error the papers in the original case, as the present law requires, would seem to be impracticable, they already being in court.” As the law now requires the original “case-made” to be filed with the petition in error, (laws of 1877, p.243,) it would seem to follow, that unless á cross-petition were permitted each party would be compelled to prepare a “case-made,” although containing the same statements of the proceedings in the trial court. It was decided in Glass Co. v. Ludlum, 8 Kas. 40, that if the bill of exceptions, or case made, as presented by the party aggrieved, does not state all the facts and the exceptions of both parties, it is the right of the other party to have such facts or exceptions inserted. And by section 559, Gen. Stat. 740, it is prescribed, that when the facts are agreed to, or found by the court or referee, and it does not appear that such findings are against the evidence, (which is the case at bar,) this court shall send a mandate to the district court directing it to render such judgment as it should have rendered on the facts. How can this properly be done, when the judgment should have been more in favor of the defendant in error than it was, unless a cross-petition in error be permitted? Otherwise, when the plaintiff-in-error’s suit in error is decided, the mandate must command an affirmance; and then, in a subsequent suit in error, brought by the party defendant-in-error in the first proceeding, the mandate must command a reversal. And each of the mandates must, in compliance with the statute, be a direction of the judgment proper upon the facts. We are constrained to believe that in this respect the decisions of the supreme court of Ohio are the better exposition of the law; and the contrary decision of this court, in the case of Bedell v. National Bank, supra, is overruled.
The case will be remanded to the district court, with instructions to render judgment in favor of the defendants in error, upon the facts found by the referee, for the sum of $4,752.15.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to obtain a judgment on certain notes, and to foreclose a mortgage given to secure the payment of the same. The trial was had by the court, a jury being waived; but only a general finding was made, and as there was no motion for a new trial, we can, only pass upon the question, whether the judgment can be sustained .under the pleadings in the case. The first objection is, that the court erred in giving judgment on lost notes. The allegations in the petition and reply state the notes said to have been lost were destroyed by fire, while still in the possession ot the payee; that the notes were payable to the order of Benj. P. Wade, and had never been indorsed. In addition, before rendering judgment the court, from abundant caution, required the plaintiff to give a bond of indemnity to the maker of the notes, the security to which was satisfactory to all parties. Under these circumstances no error was committed. This case is within the well-settled rule that an action upon a lost note can be maintained without giving a bond of indemnity, for two reasons, viz.: the notes were payable to order, and unindorsed, and the allegation is clearly to the effect that the notes were destroyed in the hands of the payee and had never been transferred. With the record before us, we must assume the proof sustained these allegations. The notes could never rise in judgment against the maker in other hands, or in another action. We do not see how the defendant in the court below can suffer any prejudice, and the action of the court in requiring an indemnity bond, was such a precautionary measure that really more was given than the law requires in such cases.
It is next objected that the court erred in not giving more than one day in the decree for the defendant to pay the judgment. In the absence of special provisions of statute, courts of equity, or courts exercising equity powers, may allow a period for the payment of a debt secured by a mortgage before a sale of the property; and in , 00 . . , the cases ot strict foreclosure, in those states where the decree vests the complete title in the mortgagee, this is always done. But this, practice does not necessarily apply in this state, to cases like this, in a decree for the sale of the property, because the debtor is protected in two ways: First, he has to the day of sale to make payment and release the mortgaged premises from the lien and sale, and the provisions of law require public notice of the time and place of sale to be given for at least thirty days before any sale can be had; second, such debtor has the right to receive the surplus arising from the sale. It has been the practice in most of the districts of the state to give ten days after the rising of the court for the payment of judgments in foreclosure suits; and we see nothing objectionable in this. But it is no right that a judgment debtor can demand, under our laws, and the provisions of our procedure act in such cases. The case of Clark v. Reyburn, 8 Wall. 318, is cited in opposition to this doctrine; but that decision was based upon the provisions of the territorial legislature of Kansas of 1855, which provided that, at his option, a mortgagee could proceed in a court of chancery to foreclose his mortgage according to the course of proceeding in chancery in such cases, and upon the action of the mortgagee in that case in adopting that mode of procedure. The questions growing out of time being required in a decree of foreclosure for the redemption of the estate, arise from misinformation, or a misconception of our statutes. At one time, under the common law, upon condition broken, the mortgagee became invested with the legal title, and was entitled to possession; yet, in that condition of things, his title was subject to a defeasance. The rents and profits operated as cancellation pro tanto of his conveyance; and when they reached a sum sufficient to reimburse his original investrhent, with such use as the law allowed, the legal title reverted to the mortgagor, and he would be entitled to the possession; and he had a right to facilitate this operation, by payment of the money, and upon application to a court of equity his title would be disincumbered of the cloud the mortgage cast upon it. This right of the mortgagor was called “the equity of redemption.” In this state, the common-law attributes of mortgages have been wholly set aside, and the ancient theories demolished. A mortgage is a mere security, creating a lien upon the property, but vesting no estate whatever, either before or after condition broken. (Chick v. Willetts, 2 Kas. 384.) Under our statute, in suits upon notes secured by real-estate mortgages, the. mortgagees recover judgments for the amount of the debt, and that the premises shall be sold under a special fieri facias. Such special execution is similar to an order to sell real estate seized upon attachment to secure a claim, and the order of sale of real estate to satisfy a mechanic’s lien. Prior to the sale, the law gives the right to redeem in all these cases. After the sale, there is no redemption in either case. And in all these cases, the proceeds are first applied to the liens, judgments, and costs, and the surplus goes to the judgment-debtor. (Sec. 399 of civil code, Gen. Stat. 705.) Some point is made by the counsel of the plaintiffs in error, that the decree barred the interests of the maker pf the mortgage eo instanii. It is true, such is its wording, and it certainly is inartistically drawn; but as it ■can only operate under the law, after a sale of the real estate, no substantial error was committed.
The further objection to the judgment is, that the decree barred the fight, title, and interest, legal and equitable, of Sallie F. Blandin and the Carbon Coal & Mining _ ° Company, to the mortgaged premises, and that the petition did not state facts sufficient to constitute a cause of action against either of these defendants, or warrant any judgment. The allegations in the petition against Sallie F. Blandin, and the company, were, that they have or claim some interest in the premises adverse to the plaintiff, the amount, or kind of interest the plaintiff was ignorant of, and desired that they be compelled to disclose to the court. These defendants joined with the other defendant in an answer which contained a general denial of the allegations of the petition, and a special defense that the notes sued on were lost before maturity, etc. Clearly, within the authority of Short v. Nooner, 16 Kas. 220, the .allegations against Sallie F. Blandin and the Carbon Coal & Mining Company were insufficient to sustain or uphold any judgment; and the only question that arises is, the effect of the answer of the said defendants. One of the allegations against them was, that they had or claimed some interest in the real estate adverse to the plaintiff; and their answer controverted this fact, or averment. Now, it is immaterial that in> the absence of any answer interposed by these defendants said judgment could not have been legally rendered, as we must take all the pleadings together; and thus construing them,. ■ such answer was in the nature of a disclaimer; and whether the judgment was properly rendered or not, these defendants-are in no condition to complain. No judgment for costs was rendered against them; and the decree is only effective as barring their interests and claims which were adverse to the plaintiff, and which might have been litigated in the suit. They deny they had any such adverse interests, and cannot be prejudiced or affected by the decree. Hence, upon the record, as to them, by their own showing, no substantial error was committed.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendants were the payees of a negotiable note, and transferred the same to plaintiff in error, by an indorsement in these words: “Pay to J. 8. Doolittle.— Ferry & Watson.” And the important question is, whether testimony is competent to show a parol contract, contemporaneous with said indorsement, that the indorsers should under no event become liable to the indorsee in consequence of said indorsement, and that the same should be operative simply to transfer the title to the paper. That from such indorsement the law implies a well-defined contract, and that such contract casts a conditional liability on the indorser, is conceded. And that such implied contract is conclusive as between remote parties to the note without notice of any different express contract, is clear. But the difficult question is, whether as between the immediate parties-the implied contract is to be treated as a written agreement which cannot be overthrown by parol testimony. If the contract which the law implies is in fact written out above the signature of the indorser, no one doubts that it is conclusive. Is that which is implied equally conclusive? In 2 Parsons on Notes and Bills, p. 23, the author says:
“ The exact question is this: Suppose over an indorsement an agreement is written out in full, setting forth exactly the same promises which the law implies from a blank indorsement: suppose further, that in an action by the indorsee upon this indorsement evidence was offered by either party which was inadmissible on the ground that it varied a written agreement: would the same evidence be inadmissible in the same action, if the indorsement were in blank? We are strongly disposed to say that it would be so, as a general rule, and to consider those cases in which such evidence would seem to be admissible as exceptions.”
With the principle thus enunciated we concur. The contract which the law implies is of the same force as though it were reduced to waiting, and can be limited or impeached by only the same kind of testimony. It would be folly to assert that the authorities are all in harmony, and that the cases in which testimony of a parol agreement has been admitted to vary the effect of an indorsement can all be reconciled as mere exceptions to and not in conflict with this rule. But the rule itself is well supported by authority, and seems to us resting upon sound foundations, and conducive to the stability and value of negotiable paper. The law gives to an indorsement a twofold force. It operates to. transfer title; it is the assumption of a conditional lia-, bility. If an absolute liability is desired, apt words are well known, and in common use. A waiver of notice and protest, written above the indorsement, will make the liability certain — the liability of a surety, it may be, but still a fixed and certain liability on the instrument. If a transfer of title without assumption of liability is sought, equally apt and well-known words are at hand. “ Without recourse,” relieves the indorser. Where the law furnishes such apt, brief, and well-known expressions for making the indorsement accomplish exactly what the parties may desire, wise policy demands that each form of indorsement should conclusively carry with it the liability which it implies. There are no instruments concerning which it is more important that the rules should be clear, settled, and conclusive, than negotiable paper. Such paper subserves an invaluable purpose in business transactions, and should tell upon its face the whole story of its obligations. Where for convenience, and to facilitate business, certain short forms and expressions are used, to which the law has attached certain implications, those implications should be as conclusive upon all the parties as though the full contract were reduced to writing. In a note by Judge Redfield to the case of Dale v. Gear, to which we shall refer hereafter, to be found in 12 Am. Law. Reg. (n.S.) p. 33, it is said :
“The abstract question, whether the legal intendment of a contract or instrument is any more open to explanation by-■oral proof, than the very language used, is one which can properly admit of no doubt. The legal or natural implications, attendant upon the use of a term, are as much a part of the Language’ of a contract or instrument, as are the more direct and explicit meanings attached to the words.”
In 1 Daniels on Negotiable Instruments, p. 533, the author says:
“But when it appears from an inspection of the paper that the party is an indorser, there seems to us no just ground for the distinction taken between the implied contracts arising from his mere name thereon written, and contracts written out in extenso. The indorsement seldom consists of anything more than the indorser’s signature; but if the agreement imported by that signature were written over it in full, the undertaking of the indorser would not be more clearly defined than it is by the signature itself. Its presence and position upon the instrument are as plain a manifestation of the intention of the party as if it were set forth in express words, and parol evidence should not be admitted to vary or •contradict it.”
„ And again, on the succeeding page, after noticing the fact that an indorsement is in effect the drawing of a new bill, he adds:
“The following general rule may therefore be stated, to-wit: that in an action by an immediate indorsee against an indorser, no evidence is admissible that would not be admissible in a suit by a party in privity with the drawer against him.”
And again:
“Accordingly, the indorser cannot show against his indorsee that it was agreed that he should not be liable, and that his indorsement was without recourse on him.”
The case of Dale v. Gear, 38 Conn. 15, is a very strong, clear case in point, in which the court in reply to the claim that as between the indorser and indorsee parol testimony was admissible, uses this language: “But the answer must be, that the contract of indorsement is implied by law as-clearly and perfectly from the blank indorsement of a negotiable note, irrespective of any contingency of negotiation, as if written out in full when indorsed.” In that case, as well as in Daniels’ treatise, some three or four limitations or exceptions are noticed, as, where the indorsement was without consideration — .or, upon trust for some special purpose, as for collection merely — or, where there was an equity arising from an antecedent transaction, including an agreement that the note should be taken in sole reliance on the responsibility of the maker, and that it was indorsed in order to transfer the title in pursuance of such agreement, and where the attempt to enforce it would be a fraud. It is unnecessary in this case to inquire whether these limitations and exceptions are justly recognized, for while counsel for defendants in error claim that the allegations of their answer bring the case within the last exception, we fail to see anything in it beyond a mere claim of an agreement that they were not to be held liable on their indorsement. And in respect to their answer, we cannot do better than quote the language of the court in Dale v. Gear, supra: “But this plea shows no agency, trust, equitable relation, or equity connected with an antecedent transaction constituting a consideration for the agreement, or which would justify a court of equity in interfering to prevent an enforcement of the contract of warranty which the'law implies. It presents a naked case of an attempt to prove, by parol, that a clear and unambiguous contract of warranty is not such, and to contradict it in terms — to turn an indorsement without restriction, before maturity, into a restricted indorsement. Such a plea cannot be sustained without a' violation of essential" principles.” See also, as authorities: 1 Greenl. on Ev., § 276, note 2; Lee v. Pile, 37 Ind. 107; Wilson v. Blade, 6 Blackf. 509; Bartlett v. Lee, 33 Ga. 491; Woodward v. Foster, 18 Gratt. 205; Bank of Albion v. Smith, 27 Barb. 489; Fassin v. Hubbard, 55 N. Y. 465; U. S. Bank v. Dunn, 6 Pet. 51; Howe v. Merrill, 5 Cush. 80; Prescott Bank v. Caverly, 7 Gray, 217; Wright v. Morse, 9 Gray, 337; Biglow v. Colton, 13 Gray, 310; Goudy v. Harden, 7 Taunt. 159. The case of Davis v. Brown, 4 Otto, 423, does not conflict with the views herein expressed, for there the evidence was of a cotemporaneous written agreement.
For the error in the ruling of the court in this respect, the judgment must be reversed, and the cas.e remanded for a new trial. We think it probably unnecessary to consider the other errors alleged, and therefore content ourselves with the decision of this question.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by “The Capitol Bank of Topeka,” to recover a personal judgment against Pape and wife, on three promissory notes made by them, and to foreclose a mortgage on lands in Shawnee county, given by them to secure the payment of said notes. The notes are made payable to “James M. Spencer, or bearer,” and have written across the back, “ Pay to bearer, without recourse on me: James M. Spencer.” The mortgage was made to Spencer, and has indorsed thereon an assignment to “The Capitol Bank of Topeka.” The notes and mortgage were made at Topeka on 27th June 1872, and are alleged to have been transferred to the defendant in error on 13th March 1873. The petition also alleges .that said bank is a body corporate, duly incorporated under and by. virtue of the laws of the state of Kansas, as “The Capitol Bank of Topeka.” The defendants answered separately, each interposing several defenses, only two of which are relied on, and they may be briefly stated as.follows: First, a denial that plaintiff was or ever had been a body corporate under the laws of the state of Kansas as “The Capitol Bank of Topeka,” (which denial was verified by the affidavits of the defendants;) second, defendants admitted the making of the notes and mortgage sued on, but alleged that the plaintiff purchased the same of said Spencer at a price agreed upon and for speculative purposes, and did not acquire or hold said notes or mortgage, or either of them, by reason of having made a loan of money on them, or either of them, or for any of the purposes for which it could legally acquire or hold the same or either of them.
In support of the first defense, it is claimed, first, that the law' under which the bank, defendant in error, was organized was unconstitutional; second, that in its attempted organization it did not comply with the statutes respecting the organization of corporations; and third, that there is a fatal variance between the name, as alleged, and that proved. Of these in their order:
I. As to the nnconstitutionality of the law. The plaintiff was organized under article 16 of chapter 23, Gen Stat., which is entitled “Savings Banks,” and which provides for the organization of “Savings Associations.” It is claimed that this has no validity because of section 8 of article 13 of the constitution, which provides that—
“No banking law shall be in force until the same shall' have been submitted to a vote of the electors of the state at some general election, and approved by a majority of all the-votes cast at such election.”
No banking law, it is conceded, has ever been submitted to a proper vote. So that the question is fairly presented,, whether the organization of savings banks is prohibited by the constitution until sanctioned by a proper vote. Article 13 of the constitution is-entitled, “Banks and Currency.” An examination of the article indicates that it refers exclusively to banks of circulation. The first section simply requires a general banking law. The second and third provide the security for circulating notes. The fourth, what such notes shall be redeemable in. The fifth, that the state shall not be a stockholder. While the sixth and seventh still more clearly indicate the scope and purpose of the article, as follows:
“Sec. 6. All banks shall be required to keep offices and officers for the issue and redemption of their circulation, at a convenient place within the state, to be named on the circulating notes issued by such bank.
“Sec. 7. No banking institution shall issue circulating notes of a denomination less than five dollars.” [This section was amended in the first year of our state history by changing “five” to “one.”]
Section 8 we have quoted above; and section 9 is simply concerning amendments and repeals.
These are all the sections in the article; and they manifestly indicate the scope of the article to be only concerning banks of circulation, and the purpose to preserve control over any currency issued in the state. Unquestionably there are the three kinds of banks defined by Bouvier — banks of deposit, banks of discount, and banks of circulation; and the language of the first section of said article 13 is general: “No bank shall be established otherwise than under a general banking law.” So that, under a technical construction of sections one and eight, and ignoring the other sections, the establishment of any bank, of any kind, and for any purpose, would be forbidden. And as the article does not name incorporated, as distinguished from unincorporated banks, and as constitutional provisions have respect to the substance, and not merely to the form, or name, the carrying on of any banking business by any corporation, institution, or person, whether of issuing currency, receiving deposits, or discounting commercial paper, would fall within the prohibitions of this article. Clearly no such check upon the commercial interests of the state was intended. “Banks and Currency,” is the title; and currency banlcs are those and those only intended by the article. All banks, that is, all banks within the scope of the article, are required to keep offices and officers for the issue and redemption of their circulation. But a bank of deposit purely, has no circulation. It is not a bank, therefore, within the scope of the article.
This conclusion is made more clear by an examination of the debates of the constitutional convention. One of the first articles discussed by the convention was this 13th article, on banks and currency; and during the entire discussiou banks of deposit and discount were not even mentioned. The whole purpose of the article, as indicated by the opinions expressed, was the regulation of the currency. The illustrations from other states were simply of banks of issue; the only suggestions and amendments made or offered were explained as touching only the question of currency. If in the mind of any member of that convention was an opinion that by this article the legislature was to be precluded, from organizing institutions for the safe-keeping or loaning of money, no intimation thereof fell from his lips during the discussion. Such silence has but one reasonable explanation, and that is, that banks of issue were alone intended to be included within the scope of the article.
II. The existence of the corporation was put in issue by the pleadings, and to establish its existence the defendant in error proved the following facts: That the stockholders met and elected directors; that the directors met and elected a president, vice-president, secretary, cashier, and teller; that the president and secretary made the certificate required by section 130, in article 16 of .chapter 23 of the General Statutes, and had the same properly acknowledged, filed, and recorded; that it procured a room, and commenced business as a bank, and from September 1871, till 1875, carried on the general banking business in Topeka, Kansas; that prior to the commencement of business, the stock was all taken, and twenty-five per cent, paid in; that Edward Pape did some banking business with it prior to March 1873, but such business transactions were concerning matters wholly unconnected with the notes and mortgage in suit; and that he also paid to the bank one of the notes secured by this mortgage, and some small portion of another. This was properly held sufficient. It would seem probable that, as to savings institutions, said section 130 was intended as in lieu of and a full substitute for section 6 of the same chapter. Section 5 names some thirty-five purposes for which private corporations may be formed; but “savings associations”-are not named among these. Section 6 provides the manner of organization, and would seem naturally to refer to such corporations as by the prior section were authorized to be organized. While article 16 refers to “savings banks” alone, authorizes their creation, provides for their organization, and seems to be complete in itself. There is a marked similarity between section 130 and section 6 in the matters required to be stated; and it would seem strange if a double statement was required in the or ganization of savings banks, and only one in case of other corporations. There aré doubtless some objections to this construction, which however it is unnecessary to notice. For when parties have associated themselves together for the purpose of organizing a corporation under a general law, and have proceeded in good faith to take all the steps supposed necessary to complete such incorporation, and on the faith thereof engaged in business as a corporation -for a series. of years, a party who has repeatedly dealt with them as such corporation will not, when sued on a note and mortgage held by it, be permitted to show, as a defense to the action, that there was some mere technical omission in the steps prescribed for incorporation. The corporation is one de facto; and only the state can then inquire, and that in a direct proceeding, whether it be one de jure. The authorities upon questions of this kind are mainly in cases where the incorporation was by special charter. There, the charter, with proof of acts of user under the charter, has almost uniformly been held sufficient. as against any collateral inquiry. (Angell & Ames on Corp., §§ 91 to 94, and § 635, and cases cited in notes.) And we suppose the same principle obtains in incorporations organized under a general law. There must in such cases be a law under which the incorporation can be had. There must also be an attempt in good faith on the part of the corporators to incorporate under such law. And when, after this, there hhs been for a series of years an actual, open, and notorious exercise, unchallenged by the state, of the powers of a corporation, one who is sued on a note held by such corporation will not be permitted to question the validity of the incorporation as a defense to the action. No mere matters of technical omission in the incorporation, no acts of forfeiture from misuser after the incorporation, are subjects of inquiry in such an action. This is not upon the ground of equitable estoppel, but upon grounds of public policy. If the state, which alone can grant the authority to incorporate, remains silent during an open and notorious assertion and exercise of corporate powers, an individual will not, unless there be some powerful equity on his side, be permitted to raise the inquiry. The law holds out no such encouragement to attempt to avoid the payment of contract debts. This decision in no way conflicts with that in the case of Krutz v. Paola Town Company, just decided, (ante, p. 397,) for in that the charter limit of existence had passed, and the law been repealed, so that the only thing to be invoked against the plea of nultiel corporation, was the doctrine of equitable estoppel. And there was no equity against the defendant, but all on his side.
III. We see no substantial merit in the claim of misnomer. The variance was one, not at all misleading, and which called simply for an amen,dment of the pleading. The petition was in the name of “ The Capitol Bank of Topeka.” The act of incorporation names the institution “The Capitol Bank,” and gives Topeka as its place of business. If any amendment were necessary it will be considered as made by this court. Mo. Valley Rld. Co. v. Caldwell, 8 Kas. 244.
IV. The final question is as to the power of the plaintiff to acquire and hold the note and mortgage. The note and mortgage were made to Spencer. From him, as the owner and holder, the bank purchased. Was such a purchase beyond its power? Sec. 127 of art. 16 of the general incorporation law, (Gen. Stat. 225,) specifically defines the powers of such associations, and is as follows:
“Any five or more persons in any county in this state may organize themselves into a savings association, and' shall be permitted to carry on the business of receiving money on deposit, and to allow interest thereon, giving to the person depositing, credit therefor; and of buying and selling exchange, gold, silver, coin, bullion, uncurrent money, bonds of the United States, of the state of Kansas, and of the city, county, and school district in which any association shall be organized; of loaning money on real estate, and personal security, at a rate of interest not to exceed twelve per cent, per annum; and of discounting negotiable notes, and notes not negotiable; and on all loans made may keep and receive the interest in advance.”
Now the contention is, that the clause under which alone authority for this purchase can be claimed is that which authorizes “discounting negotiable notes, and notes not negotiable;” and that this was not a discount, but a purchase. Counsel for plaintiffs in error, say:
“Whatever loóse or general meaning may have been given to the term discount, when not applied to banking business, no proposition is more firmly established by judicial decisions than this, that discounting paper, as understood in the business of banking, is only a mode of loaning money on the same and taking the interest in advance. Niagara Co. Bank v. Baker, 15 Ohio St. 69; Talmage v. Pell, 3 Seld. 343; Fleckner v. Bank of United States, 8 Wheat. 338; People v. Utica Ins. Co. 15 Johns. 391; Fireman’s Ins. Co. v. Ely, 2 Cow. 699; Philadelphia Loan Co. v. Towner, 13 Conn. 259; McLean v. Lafayette Bank, 3 McLean, 597; Dunkle v. Rennick, 6 Ohio St. 634; Farmers’ and Mechanics’ Bank v. Baldwin, 23 Minn. 198; 14 Alb. Law Jour. 391, (Dec. 9,1876;) Fowler v. Scully, 72 Penn. St. 456. It necessarily follows from the reasoning of these cases, that there is a difference between discounting a note, and buying it. For authority directly on this point, see Morse on Banks and Banking, 20, and 1 Bouv. Law Dic. 481, title, Discount, citing Pothier, Del' Usure, n. 128, where it is said the latter expression is used to denote the transaction ‘ when the seller does not indorse the note, and is not accountable for it.’ ”
An examination of some of the authorities chiefly relied on by defendant, may be of value. In Fowler v. Scully, 72 Penn. St. 456, the question was, as to the power of a national bank to take a mortgage to secure notes to be thereafter discounted; and by a divided court the mortgage was held void. There is nothing in the question or opinion which throws any special light on the question before us.
In the case of Talmage v. Pell, 7 N. Y. 328, it was decided that a banking corporation, empowered “to cany on the business of banking by discounting bills and other evidences of debt,” was not thereby authorized to traffic in state stocks, and that a purchase of such stocks, with a view of sale, was beyond its powers.
In Niagara Co. Bank v. Baker, 15 Ohio St. 68, the plaintiff, a bank of the state of New York, sued the defendants as indorsers of certain promissory notes. The answer alleged a loan from the bank to them,-and a discount of these notes at usurious rates. The reply denied any loan, and alleged that it discounted the notes in the usual course of business. Counsel for defendant laid down two propositions in their brief— 1st, that if the transaction was a loan, it was void for usury; and 2d, if a purchase, void for want of power in the bank to make it. The court in its opinion, after giving the general meaning of the word discount, as we quote hereafter, proceed t “And this brings us to the precise question upon which the decision of this case depends. Was this bank empowered to discount, by way of purchase, promissory notes? or, must all such discounts be deemed loans, and thus be brought within the purview of the usury law?” And they conclude in favor of the latter alternative, saying, “But the naked power to discount paper is not given; it is the power to carry on the business of banking by (among other things) discounting bills, notes, and other evidences of debt.” And then inquiring what “discounted paper” means, as used in the business of banking, hold, that it refers simply to loans, referring with especial stress to the case of Talmage v. Pell, supra, as an authoritative exposition of the New York statute under which plaintiff was organized.
In the case of Farmers’ & M. Bank v. Baldwin, 23 Minn. 198, the language of the statute appears similar to that referred to in 15 Ohio St., supra. The bank was given “power to carry on the business of banking by discounting bills, notes,” etc.; and a majority of the court held, that that was not a power to purchase such securities, but simply to loan thereon, with the right to take lawful interest in advance.
In Fleckner v. Bank, 8 Wheat. 338, it appeared that the plaintiff purchased from another bank a note which had passed to it through several parties from the original holder. The bank was forbidden to deal in anything except bills of exchange, gold, or silver, or take more than six per cent, upon its loans or discounts. It was claimed that the purchase of this note was ultra vires; but the court held otherwise, hold ing that such purchase was but a discount. In the opinion, Story, J., speaking for the court, says: “But in what manner is the bank to loan? What is it to discount? Has it not a right to take an evidence of the debt, which arises from the loan ? If it is to discount, must there not be some chose in action, or written evidence of a debt, payable at a future time, which is to be the subject of the discount? Nothing can be clearer than that by the language of the commercial world, and the settled practice of banks, a ‘discount’ by a bank means, ex vi termini, a deduction or drawback made upon its advances or loans of money, upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank.”
We may also at this time properly notice a late case cited by the plaintiff, that of Smith v. Exchange Bank, 26 Ohio St. 141. In that case the defense made was, that the bank (a national bank) purchased the paper of the payees, and that it had no authority to make such purchase. Upon this the court uses this language: “It does not state that the purchase was made at a usurious rate of discount; but it avers that under the act of congress to provide a national currency, under which the bank was incorporated,, it had no authority to purchase the bill. It seems to be the idea of counsel making the objection, that negotiable paper, perfect, and available in the hands of the holder, is not the subject of purchase by a national bank at any rate of discount. This view, we think entirely erroneous. We see nothing in the act of congress, nor in reason, why a borrower may not obtain the discount by a bank of the existing notes and bills of others of which he is the holder, as well as of his own paper, made directly to the bank. It is true, that, as between natural persons, the purchase of such paper when made in good faith, and not as a disguise for a loan, is not subject to the usury laws; but it is otherwise as to a bank. In the business of banking, the purchasing and discounting of paper is only ‘a mode of loaning money.’” And further on, in reference to any question of usury, the court holds that it arises be tween the bank and its customer, and not between it and the original parties to the paper.
These authorities go no further than this: that where an ordinary commercial bank is created, and potver given it, not generally to discount, but specially to carry on the business of “banking by discounting,” its power is limited to that of loaning money on paper, and on such loans subjects itself to the operations of the usury laws. It may not purchase, as an individual may, paper already existing at any price it may agree upon with the holder, but can only deduct from its face the legal interest in advance. We express no opinion upon these authorities, or the propositions they assert. But we draw two clear distinctions between them and the case at-bar: And first, the plaintiff is not an ordinary commercial bank. At least, whatever may have been the practical workings of this bank, the intention of the legislature in the statute was, a “savings bank.” That is the title of the article. The grant is of authority to organize a savings association. The first power is to receive money on deposit, and allow interest thereon; and that is the main purpose of a savings bank. It is true, among the further powers are those of discount, and dealing in bullion and bonds; but it is needful that some powers be granted of so using the deposits, and other funds, as will secure their safety, and enable the corporators to pay the interest on the deposits, and at the same . time receive adequate compensation for their labor and the use of their capital. Just as power is given to an insurance corporation to invest its funds in such manner as will be profitable. And in interpreting the powers possessed by a corporation, we must not make the interpretation depend on the manner in which the corporation actually exercises its powers, but upon the intention of the legislature in the enactment of the statute. The intention was, “savings bank.” The, corporation may in fact have been a purely commercial bank. If it has misused its powers, the state alone may inquire. The extent of the powers granted, is to be determined by the character of the institution intended by the legislature. It is said by the court, in the case from 23 Minn., supra, in support of the construction placed upon the powers granted by the statute: “The obvious intent of this legislation was to secure to the public business loans and accommodations at what was then regarded reasonable and not exorbitant rates of interest, and also to protect the shareholders of banks, and the banks themselves, against the risk of loss from inadequate securities, such as would likely be taken under the tempting influence of high rates of interest, regulated only by the necessities of borrowers, and the cupidity of bank directors.” But the primary purpose of a savings bank is not to facilitate commercial transactions by securing to the public business loans and accommodations, but to furnish a safe place of deposit for funds. The other powers are subordinate to this.
Again, the power granted is the naked power of discounting, and not the power of carrying on the business of banking by discounting. And the term “ discounting,” includes purchase, as well as loan. “To discount, signifies, the act of buying a bill of exchange, or promissory note, for a less sum than that which upon its face is payable.” (1 Bouv. Law Dic., title, Discount.) “It is. also undeniably clear, that the term discount, when used in a general sense, is equally applicable to either business or accommodation paper, and is appropriately applied, either to loans or sales by way of discount, when a sum is counted off, or taken from the face or amount of the paper, at the time the money is advanced upon it, whether that sum is taken for interest upon a loan, or as the price agreed upon a sale.” Niagara Co. Bank v. Baker, 15 Ohio St. 85. See also, case from 8 Wheaton, supra.
We conclude therefore,.that the purchase of the note and mortgage in question was within the powers granted to this savings bank.
This disposes of the case, and compels an affirmance of the judgment.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Brewer, J.:
Action on note and mortgage. Defenses, usury, part payment, and discharge of one defendant as surety by extension to principal. The case of Jenness v. Cutler, 12 Kas. 500, disposes of the last defense. Even if it were not .applicable, both defendants signed as joint makers of the note, and the testimony shows that the payee had no knowledge as to the alleged suretyship.
As to the first two defenses, it appears that the note sued on was executed to take up two prior notes. There was ■simply a general finding of the amount due on the note. This amount was evidently reached by adjudging usury in the last two notes. All the notes on their face were valid, and beyond question the first note was valid in its inception .and in no manner tainted with usury. The doubtful questions are, whether after the maturity of the first note there was a subsequent contract for its extension upon payment of usurious interest, and whether the consideration of the second note was merely the interest due on the first, or an actual loan in cash. The testimony was substantially the depositions ■of the parties, and of the plaintiff's agent, and certain deposit slips. That of the plaintiff and of Mrs. Lathrop was mostly .hearsay, and of little value, leaving the questions to turn principally upon the testimony of Asa L. Lathrop and Mr. Fuller, the agent of the plaintiff, and the slips. The affirmative upon both questions was with the defendants. The note was prima facie valid. The finding was general. While both questions are doubtful, we are not sátisfied that the court erred in giving paramount weight to the testimony of Mr, Fuller, and upon that the conclusion was unquestionably correct. We can do no otherwise therefore than affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 12th of October 1876, in the district court for Jackson county, plaintiff-in-error Dewey recovered a personal judgment against plaintiff-in-error Mrs. Orcutt, for $661.95, to bear twelve per cent, interest, and -with costs of suit. He also obtained a decree against her and her husband for the foreclosure of a mortgage given to secure the debt, and an order for the sale of the mortgaged premises, without appraisement, in satisfaction of said judgment. The property covered by the mortgage was a quarter-section of land in said Jackson county. An order of sale was issued on the 28th of April 1877. Sale thereupon was advertised for June 5th, at two o’clock r.m., at the court-house in Holton, in said county, and at the time and place advertised, the premises were sold to defendant-iuerror Linscott, for fifty dollars. Motions were made both by plaintiff and defendants in the action to set aside, and by the purchaser to confirm, the sale. The former were overruled, and the latter sustained; and from this ruling the plaintiffs in error come into the court.
It is claimed that the price was grossly inadequate, and that the plaintiff, without any fault on his part, lost the opportunity of bidding at the sale. The motions were heard upon affidavits, and a preliminary . . . . question is raised by counsel for defendant in error. They insist that the record does not affirmatively show that all the testimony^ received on the hearing of said motions has been preserved, and that therefore this court cannot say whether the district court erred in its rulings thereon. It is not stated in express words that all the testimony is preserved; but as said in Moody v. Arthur, 16 Kas. 425, that is not always necessary. If the case-made is so prepared that it is clear that all the testimony is in it, that is sufficient. We never presume that it is all preserved. The fact must some way be shown. The presumption is in favor of the correctness of the ruling by the district court; and before we can say it erred, it must be shown to us that we have all before us, that was presented to it. Yet we indulge in no nice technicalities; we require no set phrase. Anything which makes it apparent that the whole case is here, and all the testimony preserved, is sufficient. Now these motions were heard upon affidavits. The case-made states that the parties respectively, in support of their several motions, filed the affidavits of certain persons, naming them, and giving the affidavits complete, with signature, and jurat, and on the hearing of the motions that they “introduced and caused to be read in evidence the said above affidavits” of the various parties, naming them, and then adds: “And thereupon the court made an order,” etc. The case-made is served, an admission placed in writing thereon by opposing counsel of its correctness, and it is duly certified to by the district judge. Does it sufficiently appear that all the evidence is preserved? We think it does. An affidavit is a complete thing. Like a deed, it speaks for itself, and shows by its caption, its signature, and jurat, that the commencement and the close are there; and an admission that it is correct, is an admission that the entire affidavit is preserved. Unlike the narration of the testimony of a witness on a trial, which carries upon its face no evidence of its termination, an affidavit tells when it is finished. And the affidavit, carrying on its face evidence of its termination, furnishes an equivalent to the statement lacking in Moody v. Arthur, supra, that “here the defendant rested.” Further, the case-made says, that “thereupon the court made an order,” etc. Now “thereupon” signifies sometimes, “upon this, or that,” and sometimes, “immediately; at once; without delay.” (Webster’s Dictionary.) If the former be the sense in which it is here used, then it means that upon the testimony named the court ordered; and if the latter, then that immediately upon the reading of these affidavits, and without anything intervening, the court ordered, etc. In either sense therefore, it indicates that the court’s order was based upon the affidavits offered, and nothing else. We conclude therefore that a fair construction of the case-made shows that the entire testimony is before us, and that it is our duty to examine and decide the questions raised upon such testimony.
And upon that testimony we think the sale should have been set aside, and not confirmed. The sale was made for fifty dollars. We see no valid objection to the regularity of the proceedings, the acts of the officer, or the conduct of the purchaser. But the price was grossly inadequate. Four witnesses testify as to the value of the premises. One places it at $750; a second, at $1,100; a third, at $600; and a fourth, at $800. There was no contradictory testimony. Furthermore, the plaintiff’s instructions were to bid as high as $740 at the sale, and he offered on the hearing of the motions to give $725. Evidently a great hardship will inure to both plaintiff and defendants if this sale is permitted to stand. The plaintiff’s mortgage is lost to him, and the defendants’ debt not paid, while a stranger, for a mere song, obtains that which would have satisfied the mortgage, and paid the defendants’ debt. It is doubtless true, as stated by counsel, that where the sale is in the usual manner, and the purchase is made by a stranger to the suit, mere inadequacy of price is not sufficient cause for setting aside the sale, depriving the vendee of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale. Moore v. Pye, 10 Kas. 254. So that if there appeared nothing else in the case than this gross inadequacy of price, it might not call for any interference by the court. But here it appears that the plaintiff intended to purchase, and failed therein through what cannot be considered culpable negligence. The facts are these: The plaintiff, Mr. Dewey, was a nonresident of Kansas, and his attorney, Mr. J. Gr. Slonecker, was a resident of Topeka. Mr. Slonecker, finding himself unable to be present at the time and place of sale, wrote to Mr. A. D. Walker, a resident of Holton, requesting him to act for Dewey at the sale, and in his behalf to bid up to $740 for said property. Mr. Walker promised to do so if he was at home, but said he might be absent. Mr. Slonecker then authorized him to employ some suitable person to attend the sale and bid for Dewey. Mr. Walker said he would see the matter attended to, and did employ Mr. A. H. Williams for that purpose. Williams agreed to perform the service in accordance with the instructions already sent to Walker. Dewey and Slonecker relied upon him to do so. On the day of the sale Walker was away from home, and Williams was called to an adjoining county by the process of subpena as a witness in a pending criminal case. Mr. Dewey, therefore, was not represented at the sale at all, and the property was struck off to Mr. Linscott, as heretofore stated.
Now if the plaintiff, being present at the sale, had made no bid, or if aware of the dáy of sale he had made no effort to attend, or be represented, or had been culpably negligent in his efforts therefor, or if after sale he had unreasonably delayed in making his application to the court, so that there was in fact nothing but the mere inadequacy of the price as a ground for his application, the court might perhaps fairly say that there was no ground for interference; or, if, after making the preparations he did, and the failure had resulted in the manner it did, the price was not so vastly disproportionate to the value, the court might refuse to disturb the sale. But where a party makes reasonable efforts to be represented at a sale, in which as mortgagee he is especially interested, and intends and has given instructions to bid to something like its value for the property, and the agent employed is by judicial process called away at the time of the sale, and the property is sold at a grossly inadequate price,' and immediately’ thereafter, and before confirmation, both mortgagee and mortgagor come into court and ask to have the sale set aside, and the former tenders a bid of apparently the real value, it seems to us that the court should, having due regard to the interests of all concerned, parties and pur chaser, set aside the sale, and order a new sale with the mortgagee’s offer as the first bid thereon. .This last should be made a condition of setting aside the sale, in order that the rights of the mortgagor may be protected. For while, where appraisement is waived property may be sold for whatever it will bring, yet a court of equity will always where it has any discretion so exercise it as to secure what is just and fair; and it is just and fair that the mortgagee seeking a new sale should agree to bid for the property, and bid its reasonable value. Then if he obtains the property he has only given what it is worth ; and any way, the mortgagor, who loses his property, has his indebtedness pro tanto canceled and paid. The purchaser gets his money back; and all that he has lost is the chance of a big speculation. A reference to the authorities sustains these conclusions.
In the case of Williamson v. Dale, 3 Johns. Ch. 290, the plaintiffs were innocently misled as to the day of sale, and so were not present. There was no imputation of unfair intention on the part of the adverse party, nor of unfair conduct at the sale. The property was estimated to be worth $12,000. It was bid off at $2,700, subject to a prior lien for a like amount. The sale was set aside.
In Lansing v. McPherson, 3 Johns. Ch. 424, the property was worth $700. It was struck off to the plaintiff for $240. The defendant, before confirmation of the sale, offered an advance of fifty per cent, upon the bid, and it was held sufficient ground for setting aside the sale.
In Bixley v. Mead, 18 Wend. 611, the plaintiff had employed an agent to attend the sale and bid in the property for him. The agent forgot to do so. A relative of the defendant bid it in for $26. It was worth $1,000. The defendant was insolvent. The sale was set aside.
In Griffith v. Hadley, 10 Bosworth, 587, the defendant’s attorney made a mistake as to the day of the sale. The property sold greatly under value, and after little, if any competition. Held to constitute a case of surprise, which, coupled with the inadequacy of price, justified setting the sale aside.
In Wetzler v. Schaumann, 24 N. J. Eq. 60, the petitioner, who held the equity of redemption, was innocently misled as to the day of the sale, and was thus prevented from attending. The premises sold for about sixty per cent, of their value. Held to be such a case of surprise, coupled with such inadequacy of price, as justified setting the sale'aside.
In Collier v. Whipple, 13 Wend. 224, the judgment-creditors had instructed an agent to attend the sale and bid in the property, which instructions were communicated to the master. On the morning of the day of sale the master called at the agent’s office, and after a conversation about the matter, went away leaving the agent under the impression that the sale would not take place. It was deemed a strong case of surprise, and the sale was set aside.
In Hoppock’s Ex’rs v. Conklin, 4 Sandf. Ch. 582, the defendant in a foreclosure suit, liable for any deficiency, intended to be present at the sale and bid for his own protection, but was prevented from doing so by being detained at court as a juror. He applied to the court to be excused, but the court declined to excuse him. Thereupon he wrote to an agent, pecuniarily able to do so, to bid in the property for him. The letter reached the post-office of the agent the day before the sale, but the agent did not get it till an hour after the sale. The property was bid in by the complainants for a third of its value, leaving a large deficiency. The court ordered a resale. See also, Swope v. Ardery, 5 Ind. 213; Dutcher v. Leak, 44 Ill. 398; Ontario Bank v. Lansing, 2 Wend. 260; Boyd v. Ellis, 11 Iowa, 97; Sinnett v. Crall’s Adm’rs, 4 West Va. 600; Wood, Adm’r, v. Parker, 63 N. C. 371; Vail v. Jacobs, 62 Mo. 130; Stoffel v. Schroder, 62 Mo. 147; Oraine v. Smelson, 15 Ala. 423; McLean Co. Bank v. Flagg, 31 Ill. 295.
The order of the district court will be reversed, and the case remanded with instructions to overrule the motion to confirm, and to sustain the motion to set aside the sale, upon the condition that the plaintiff, the mortgagee, stipulates to continue his offer of $725 at the new sale.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of ejectment, brought by the plaintiff in error, who was also plaintiff in the court below, to recover the possession of the west half of the northeast quarter of section 34, in township 10, of range 13, situate in Shawnee county. The second trial of the case was had by the court, without the intervention of a jury, and the court found as conclusions of fact, as follows:
1st. — The plaintiff’s maiden name was Susan Latranch. At the commencement of this action, plaintiff was a married woman, and of the age of eighteen years.
2d. — Under and in conformity with the second article of the treaty of November 15th 1861, between the United States and the Pottawatomie tribe of Indians, (proclaimed 19th April 1862,) the agent of said tribe took a census of the members of the tribe, classifying them in separate lists, showing the names, ages, and numbers of those desiring lands in severalty, and of those desiring lands in common, designating chiefs, and headmen, respectively. Said census, classification, and list showed that Susan Latranch, (now Susan Maynes, plaintiff,) then a minor, was a member of the tribe desiring lands in severalty, as chosen for her by Anthony F. Navarre, who was the head of the family of which said Susan was a member.
3d.-Thereupon there was assigned, under the direction of the Commissioner of Indian Affairs, to said Susan Latranch the land in controversy in this action, being eighty acres then .and before that time a portion of the Pottawatomie Indiau Reservation, and situate in the county of Shawnee, and described as follows: The west half of the northeast quarter of section 34, in township 10 south, of range 13 east of the sixth principal meridian in Kansas.
4th.-After such assignment was completed, and on the 12th of April 1866, a certificate was issued by the then Commissioner of Indian Affairs, to the said Susan Latranch in words and figures as follows:
INDIAN LAND CERTIFICATE.
To ALL WHOM IT may concern: It is hereby certified, that Susan Latranch, a member of the Pottawatomie tribe of Indians, is entitled to eighty acres of land, under the provisions of the treaty of said Indians with the United States concluded on the fifteenth day of November 1861; and, being so entitled —
It is further certified, that, in pursuance of said treaty, there has been assigned to the said Susan Latranch, the west half of the northeast quarter of section thirty-four, in township ten south, of range thirteen east of the sixth principal meridian in Kansas.
It is also certified, that the said Susan Latranch and her heirs are entitled to the immediate and exclusive possession and use of said land.
It is further certified, that this certificate is not transferable; and that any sale, lease, transfer, or incumbrance of the said land, or any part thereof, to any person or persons whomsoever, except it be to the United States, or to members of said tribe of Indian blood, with the consent of the President, and under such rules and regulations as may be prescribed by the Secretary of the Interior, or except upon the terms and in the manner provided by said treaty, is, and will continue to be, utterly void and of no effect.
It is further certified, that the said land is exempt from levy, taxation, sale, or forfeiture, until otherwise provided by congress.
In testimony whereof, I, Dennis N. Cooley, Commissioner of Indian Affairs, have hereunto set my hand, and caused the seal of the Department of the Interior to be hereto attached, at the city of Washington, this twelfth day of April 1866.
[seal.] D. N. Cooley, Commissioner.
5th.-Said defendants were in possession of said land before the commencement of this action, and were in possession thereof at the commencement of this action, and withheld the same from the possession of the plaintiff, and kept her the said plaintiff out of the possession thereof.
6th. — On the 16th of May 1870, under the supposed power and authority conferred by the sixth section of the treaty of 27th February 1867, which, as amended 4th August 1868, was ratified and proclaimed 7th August 1868, a patent was-issued to Anthony F. Navarre, as the head of the family of which said Susan Latranch (now Susan Maynes) was a member, for the land in controversy, which patent is in words and figures as follows:
The United States of America. To all to Whom these Presents shall Come, Greeting: Whereas, there has been deposited in the General Land Office an official return, certified under date of March 7th 1870, by the Commissioner of Indian Affairs, accompanied by List No. 1, “containing the names, age, and sex of persons, Pottawatomie Indians, belonging to families the heads of which have become citizens of the United States, or have-applied to become citizens under treaty provisions, with description of the lands allotted to said persons; the issue of patents for said lands, and the payment of pro rata share of the moneys and credits of the tribe, belonging to said persons, it is desired to have made, in accordance with the provisions of the sixth article of the treaty of February 27th 1867, and the act of congress approved April 10th 1869.”
And whereas, the said list is accompanied by the order, dated March 1st 1870, of the President, for the issuing of patents for the tracts therein described, the said list designating Saw-na-ne-qua as allottee of allotment No. 598, being the lot numbered two, of section eight, in township eleven south, of range thirteen east, and the southeast quarter of the northwest quarter of section thirty-four, in township ten south, of range thirteen east, containing eighty-one acres and fifty-three one-hundredths of an acre, reserving from the described allotment the Government shops and buildings, and the use of five acres of ground for agency purposes; and Susan Latrauch, as an állottee of allotment No. 600, being the west half of the northeast quarter of section thirty-four, in township ten south, of range thirteen east, containing eighty acres, said tracts being east of the sixth principal meridian, and situated in the district of lands subject to sale at Topeka, Kansas, and the said list designating Anthony F. Navarre as the head of the family of said allottees to whom the patents for said allotment shall issue.
Now, know ye, that the United States of America, in consideration of the premises, and pursuant to the treaties, act of congress, and President’s order aforesaid, have given and granted, and by these presents do give and grant, unto the said Anthony F. Navarre, and to his heirs, the tracts of land above described; to have and to hold the said tracts or parcels, with the appurtenances, unto the said Anthony F. Navarre, and to his heirs and assigns forever.
In testimony whereof, I, Ulysses S. Grant, President of the United States, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.
Given under my hand, at the City of Washington, this sixteenth day of May, in the year of our Lord one thousand eight hundred and [seal.] seventy, and of the Independence of the United States the ninety-fourth.
By the President: U. S. Grant,
By Charles White, Secretary,
J. N. Granger, Recorder of the General Land Office.
Recorded, Pottawatomies, Treaty of 1867, vol. 1, page 116.
7th. — All of the said defendants in this action claim title by deed through said Anthony E. jNavarre.
And the court finds as conclusions of law:
lst.-Said treaty of November 15th 1861, and the action had thereunder, including the issuance of the said certificate by the Commissioner of Indian Affairs, operated as and constituted a grant of the land in controversy to said Susan Latranch, (now Susan Maynes, plaintiff.)
2d. — Said treaty of 15th February 1867 did not authorize the issuance of the patent to said Anthony F. Navarre.
3d.-Said patent so issued on the 16th of May 1870, to said Anthony F. Navarre, is null and void.
4th.-The plaintiff, at the time of the commencement of this action was, and now is, the owner of said land and premises in her petition described, and entitled to the immediate and exclusive possession thereof.
It is therefore considered, ordered, and adjudged, that the said Susan Maynes, plaintiff, do recover against the said defendants the premises in her said petition described, and also her costs in and about her suit in this behalf expended.
Judgment of eviction having been thus rendered against the defendants, they invoked the benefits of the occupying-claimant act. The district court held that the defendants were entitled thereto, and “ordered that further proceedings be had in the premises agreeably” to said act. The plaintiff excepted to this order, and now in this court assigns said order as error.
As no cross-petition has been filed, and no effort made to question the correctness of the judgment rendered in favor of the plaintiff, except in the brief of the defendants in error, (and there only indirectly,) we must treat such judgment as final, and satisfactory to all the parties; and the conclusion follows, that we cannot'review, in this action, the decision of the district court as to the allotment and grant of land to the plaintiff under the provisions of the Pottawatomie treaty of 1862, nor the question of the validity of the patent issued to Anthony F. Navarre under the treaty of 1868. (Waterson v. Devoe, 18 Kas. 223.) Assuming then, that in accordance with the ruling of the district court, the patent to Navarre, of 16th May 1870, was absolutely void, and that the plaintiff is the owner of the premises under the treaty of 1862 and the certificate issued by the Commissioner of Indian Affairs on 12th April 1866, the question presented is, whether the defendants are entitled to any of the benefits of the occupying-claimant act ?
The said certificate of April 12th provides, that it “is not transferable, and that any sale, lease, transfer, or incumbrance of the said land, or any part thereof, to any person or persons whomsoever, except it be to the United States, or to members of said tribe of Indian blood, with consent of the president, and under such rules and regulations as may be prescribed by the Secretary of the Interior, or except upon the terms and in the manner provided by said treaty, is, and will continue to be, utterly void and of no effect.” This certificate was based upon that provision of the treaty which states, “when such assignments shall have been completed, certificates shall be issued by the Commissioner of Indian Affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set' apart for the purpose and exclusive use and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of, only to the United States, or to persons then being members of the Pottawatomie tribe and of Indian blood, and under such regulations as the Secretary of the Interior shall provide, except as may be hereinafter provided.” To relieve themselves from the effect of these conditions, the defendants assert that the restrictions upon the plaintiff’s right of alienation were afterward removed; that by article 3 of the treaty of 1862, such restrictions to adults, being males and heads of families, were removable upon certain conditions; that in 1866, by a supplemental article, this privilege was extended to all adults of the tribe, without distinction of sex, whether the person was the head of a family, or not; that by the treaty of 1868, when any member of the tribe should become a citizen, under the provisions of the treaty of 1862, the families of said parties should be considered as citizens; and that as a patent in this instance was issued to Anthony F. Navarre, the head of the family of which the plaintiff was a member, the plaintiff thereby became a citizen, and her land alienable, taxable, etc., as the property of other citizens. But the defendants are crippled at once in their claim, because, upon this record, it is conceded by all parties, that the' patent issued to Navarre was void. As no other evidence was introduced upon the application of the occupying claimants than the findings of fact of the court, the citizenship of the head of the family is not at tempted to be established except by the recitals of a patent issued without any authority of law. Waiving the question of what may or may not be proven by the recitals of a void patent, and anticipating this testimony may be supplied on a new hearing, it seems to us evident that it was not the intention by the several provisions of the treaties of 1862, 1866, and 1868, to have the lands of allottees, situated as the plaintiff was at the date of such patent, subject to levy, taxation and sale by the mere act of a member of the same family becoming a citizen. (Art. 2 and 3, treaty 1862, 12 Stat. at Large, 1191; art. 1, treaty 1866, 14 Stat. at Large, 763; art. 6, treaty 1868, 15 Stat. at Large, 531.) There is nothing in the powers conferred by citizenship, independent of the treaty, which of themselves release the restrictions on alienation; and if these restrictions are discharged, when the allottees become citizens, such discharge or release must be found in some one of these treaties. Article 4 of the treaty of 1868 provides that the provisions of article 3 of the treaty of 1862, relative to Pottawatomies who desire to become citizens, shall continue in force; and sections 2 and 3 of the treaty of 1862, the supplemental article of 1866, and section 6 of the treaty of 1867, must be construed and reconciled together, if possible; and thus construed, the power of alienation is withheld from the allottee, until she, being an adult, shall have satisfied the president that she is sufficiently intelligent and prudent to control her affairs and interests, and until the president, at her request, shall cause the land to be conveyed to her by patent, “ and thereafter the land so patented to her shall be subject to. levy, taxation, and sale, in like manner with the property of other citizens.” No patent to her has yet been issued, and none applied for. The void patent to Navarre cannot be counted. Admitting that Navarre became a citizen, and thereby the plaintiff, a member of his family, became a citizen also,, neither of these acts relieved or emancipated the land of the plaintiff from the restrictions on its alienation as provided in the treaty of 1862; the title to the same, for aught that appears in this record, is still inalienable.
With this conclusion obtained, th,e defendants have no right to the benefit of the occupying-claimant act. It is immaterial whether section 610 of the civil code permits the successful claimant to elect to receive the value of the land without improvements, upon tendering a general warranty deed, or whether section 608, as amended by sec. 2 of ch. 102, Laws of 1873, requires the payment by the claimant of the value of the improvements; because, in either view, the enforcement of these provisions, or either of them, would in effect defeat the'operation of the treaty of 1862, and violate a paramount federal law. A continued hostile possession would virtually deny title to the plaintiff; and a temporary hostile possession would embarrass the exercise of that title. In a conflict between the law of the state, and a treaty of the United States in regard to Indian lands in the state, the former must give way. Neither the title, nor possession of the Indian owner, secured by treaty with the United States government, can be disturbed by state legislation; and the occupying-claimant act has no application in this case. Krause v. Means, 12 Kas. 335; The Kansas Indians, 5 Wall. 737; Farrington v. Wilson, 29 Wis. 383.
The order of the district court granting to the defendants the benefit of the occupying-claimant act will be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
IIobton, C. J.:
This action was commenced by Mrs. Olive Jones originally before a justice of the peace on a promissory note, dated 1st April 1875, made by one Wm. F. Creitz, for $175, payable to the order of Olive Jones, two months after date, and drawing interest at the rate of twelve per cent, per annum. The bill of particulars alleged that defendant Louis Sarbaeh indorsed the note in writing across the back thereof, on or about the 1st of April 1875, and with said Creitz, delivered it to the payee; that demand was made upon the maker, when the note became due, and notice given to the indorser. Trial was had, and judgment rendered by the justice in favor of Sarbaeh. Mrs. Jones appealed to the district court, and there obtained leave, over the objection of Sarbaeh, to amend her bill of particulars by alleging a contract of guaranty, to which Sarbaeh excepted; and he then answered, denying generally the allegations of the amended bill or petition, alleged that the indorsement was made long after the delivery of the note to the payee, and that there was no consideration therefor. The district court rendered judgment against Sarbaeh for the amount claimed, and he brings the case here for review;
I. Plaintiff in error alleges as material error the action of the coui’t below in allowing the bill of particulars to be amended, for the reason, as claimed, that the amendment changed substantially the cause of action, in this, that the action upon an alleged contract of indorsement was changed to an alleged contract of guaranty. No error was committed in permitting the amendment to be made. While it is true, that the original bill of particulars was unnecessarily prolix, and contained allegations contradictory to each other, still the actual facts set up therein of the act of plaintiff in error in placing his name on the back of - the note at the time it was made, and before delivery, shows him presumptively to have been a guarantor, and not an indorser. The cause of action, -by the amendment, was made definite and certain, and we perceive nothing prejudicial to the rights of Sarbach thereby. In this state, the law has long been settled, that persons, strangers to a note, by indorsing it at the time it is made, and before delivery to the payee, in the absence of proof, are presumed to be guarantors. Firman v. Blood, 2 Kas. 496.
II. Another alleged error was the introduction by the defendant in error of one Harvey Jones, as a witness in her behalf, against the objections of plaintiff in error. Upon this point, the record is as follows: At the time of offering Harvey Jones as a witness, Sarbach objected to his competency, upon the ground that “before the time said promissory note sued upon in this action was executed, said witness had been duly adjudged insane, and a guardian of his person and estate had been duly appointed, and that.ever since that time, and until long after the commencement of this action, to-wit, until the 6th of. April 1876, the said witness had been under such guardianship as an insane person,” all of which facts, constituting the grounds of said objection, Sarbach then and there offered to prove by the records of the probate court of Jackson county, and all of which facts, constituting said objections, said Olive Jones then and there in open court admitted to be true; and it was further admitted by the parties to the action, that since the commencement of this action the said Harvey Jones had been duly adjudged a person of sound mind; and thereupon the court overruled the objection, and permitted the witness to be sworn, to which ruling Sarbach at the time excepted. Afterward,- Sarbach further objected to the witness answering any questions respecting transactions occurring, during the period he was under guardianship as an insane person, and the court overruled such objection, and permitted the witness to answer the questions propounded to him about Sarbach signing his name on the back of the note on April 1st 1875 — to all which Sarbach excepted. The action of the court below was in no manner improper. The witness was, at the time of the trial, of sound mind, and had been legally released from guardianship. Within the statute, he was competent as a witness. While it is true, great doubt must necessarily attach itself to the evidence of persons who having recovered from a state of insanity, seek to testify to facts occurring during its existence, it is proper to admit the testimony, and it is for the jury to judge of the credit that is to be given to it. 1 Greenl. Ev., § 365, notes; Holcomb v. Holcomb, 28 Conn. 177; Regina v. Hill, 15 Jur. 471. A man may have many delusions, and yet be capable of narrating facts truly; and the existence of such delusions on his part, at the time of the occurrences which he is called upon to relate, goes to his credit, and not to his competency, when he is of sound mind at the time he is called upon to testify. As there can be neither perfect sanity, nor perfect insanity, so no witness, not incompetent within the statute, is to be absolutely excluded because he has been insane, and is called upon to narrate matters, some of which occurred while he is alleged to have been unconscious. “If a witness appears, on examination by the judge, or by evidence aliunde, to have been incapable, at the time of the occurrences which he is called to'relate, of perceiving, or to be incapable at the time of the trial of relating, then he is to be ruled out.” Wharton on Ev. 403. And by express provision of the statute, persons who are of unsound mind at the time of their production for examination are incompetent. Laws of 1872, ch. 165, §1. In this case, Harvey Jones comes within none of these classes, nor any other making him incompetent, and his testimony was properly received.
III. We have examined the instructions which were ob jected to, but find no error contained therein prejudicial to plaintiff in error; and they so clearly state the law governing the case, upon the evidence elicited, that it is unnecessary to comment thereon.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin, brought by plaintiff in error to recover the possession of certain personal property taken on execution as the property of her husband.
The first proposition presented to our consideration is, that the verdict is against the weight of the evidence. We cannot sustain this claim. True, the plaintiff and her husband both testified that the property was hers, bought with money given to her by her husband’s mother; aucj j.jjere ¡g oniy circumstantial evidence bearing against this positive testimony. But the contract testified to by plaintiff and her husband is of a character which taxes most severely our credulity, and which it seems to us requires but slight circumstantial testimony to overthrow. We cannot agree with the learned counsel, that because a witness testifies to a matter it must be believed unless there be testimony directly impeaching the witness, or contradicting the testimony. The very matter stated by the witness may be too improbable to be believed by any intelligent person, and its mere statement is its own refutation, without a word of impeaching or contradictory testimony.
Again, error is alleged in admitting certain impeaching testimony in the cross-examination of a witness whose testimony was taken by deposition. The facts are these: Anticipating that the husband of the plaintiff would be called as a witness, the defendant took the depositions of certain parties in Indiana for the purpose of impeaching his testimony by proof of different statements outside of court. In such depositions certain questions were asked and answered upon the direct examination as to statements made by Callison; on cross-examination, further inquiry was made as to these statements. Now upon the trial the court excluded the testimony in chief in the depositions respecting the statements, for lack of a sufficient identification of time and place, but admitted the cross-examination, and admitted it too upon the offer of the defendant, and over the objection of the plaintiff. In this the court erred. As a rule, the admissibility of a cross-examination depends upon the admissibility of the direct examination. If upon any matter the testimony in chief is excluded, no cross-examination thereon is allowed. The fact that testimony has been taken by deposition before the trial, in no manner affects the question of the competency of each and every part of it. Its competency is determined in the same manner, and upon the same principles, as though the witness was present on the stand and being interrogated in person. A question which, if the witness were present, counsel could not ask, cannot be asked in deposition; and if asked and answered, must be stricken therefrom. In the case of Wilson v. Wager, 26 Mich. 452, the court, by Christian cy, J., says: “All testimony elicited on such cross-examination, consisting as it does of facts which, relating to the direct examination, may have been omitted or concealed in that examination, or facts tending to contradict, explain, or modify some inference which might otherwise be drawn from them, must in the nature of things constitute a part of the evidence given in chief, and both alike and together must therefore be treated as evidence given on the part of the party calling the witness.” It follows from this, that the testimony elicited upon the cross-examination of the witness by the plaintiff must be taken as evidence on the part of the defendant. It may be remarked that this testimony is not that of the statements of a party to the suit, and therefore competent as an admission; nor of a prior owner while in possession, for the fact of his ownership at any time is the matter in controversy; nor is there anything in this cross-examination any more than in the direct sufficiently identifying time and place. So that the only ground upon which its admissibility could be claimed was, that it was testimony called for by plaintiff, and which having once elicited he could not withdraw. But when we remember that each question, as it comes in a deposition, is to be ruled upon as though the witness were personally present, that the testimony elicited upon cross-examination is really the testimony on the part of the party calling the witness, and that the testimony is not offered until the deposition is presented to be read, it is apparent that the court erred in admitting the cross-examination of a witness as to statements made by one not a party to the suit, after his direct examination thereon had been excluded.
Another objection is to this instruction:
“The burden of proof in this case is on the plaintiff. She must prove the ownership by a preponderance of testimony. By a preponderance of testimony, I do not mean such a preponderance as satisfies beyond a reasonable doubt, as in criminal cases, but only suoh a preponderance as clearly outweighs the evidence upon the other side.”
It is insisted that if there be the slightest preponderance in the plaintiff’s testimony over that of the defendant, the former is entitled to the verdict, and that, by the use of the term “clearly,” the jury would naturally be misled, and understand that the plaintiff’s case must A be fully and abundantly established by the testimony, and so as to be easily apparent to any and every one. We think there is force in this, especially in a case like the present where the testimony is conflicting, and the facts doubtful. The jury may well have found for the defendant because the plaintiff had failed to clearly prove her ease. They may have been loth to believe in the verity and bona fides of a contract so remarkable as that testified to by plaintiff and her husband, and yet not wholly disbelieved their testimony, and so under the instruction found that the preponderance was not clearly with the plaintiff. Of course, there may be many cases in which there is no possibility of a jury’s being misled by such an instruction, but in this case it seems to us very possible that they were. The case of Field v. Kinnear, 5 Kas. 233, is in this respect very much in point.
We think also the instruction as to the effect of a purchase with the mingled means of husband and wife, hardly applicable to any of the evidence in this case. But for the two errors above named the judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is, whether a partial payment by the principal debtor will suspend the running of the statute of limitations in favor of the surety. This is part and parcel of a broader question, and that is, whether a partial payment by one of two parties jointly and severally liable upon an instrument suspends the running of the statute in favor of the other. Upon this the authorities in the various states are conflicting. See as holding the affirmative, Disborough v. Bidleman, 20 N. J. Law, 275; Corlies v. Fleming, 30 N. J. 349; 1 Greenleaf’s Ev., § 174; Block, Adm’r, v. Dorman, 51 Mo. 31; Whitlock v. Doolittle, 18 Vt. 440; Whittaker v. Rice, 9 Minn. 13, (though this last case seems to be decided upon the peculiar language of their statute.) Contra: Van Keuren v. Parmalee, 2 N. Y. 523; Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 N. Y. 558; McLaren v. McMartin, 36 N. Y. 88; Harper v. Fairley, 53 N. Y. 442; Graham v. Selover, 59 Barb. 313; Succession of Voorhies, 21 La. An. 659; Hinter v. Robertson, 30 Ga. 479; Smith v. Coon, 22 La. An. 445; Marienthal v. Masler, 16 Ohio St. 566; Hance v. Hair, 25 Ohio St. 349; Bell v. Morrison, 1 Peters, 351. The pith of these last decisions is in the proposition, that each party severally liable upon any instrument is entitled to the protection of the statute, and can be deprived of it only by some personal act of his own. The above are but a few of the citations which can be made upon each side of the general proposition. So far as acknowledgment and promise are concerned, the language of our statute is clear, and excludes all suspension of the statute except by personal written action. As to payment, the language is not so clear, and may be open to at least two constructions. The statute reads, sec. 24 of civil code —
“In any case founded on contract, when any part of the principal or interest shall have been paid, or any acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” — (Gen. Stat. 634.)
Now it may be said that if “payment” is made on the instrument, the instrument itself, and as against all parties to it, is kept alive. The effect of “acknowledgment” and “promise” is in terms limited to “the party to be charged thereby.” The effect of “payment” is not in terms thus limited. It was therefore intended by the legislature that it should be broader, and reach 'to all parties thereto. The language may indeed be open to three constructions: one, that the mere fact of payment, whether by a party to the instrument or not, keeps it alive as to all originally liable on it; another, that payment by one party thereto keeps it alive as to all; and third, that payment, like acknowledgment or promise, keeps it alive only as to the party paying. It seems to us that the latter is the true construction. No valid reason exists why payment should be more potent than acknowledgment, or promise. Indeed, payment was treated by the courts as simply an evidence of acknowledgment. Such construction makes the various provisions of this section not only harmonious with each other, but with the general provision of the statutes making each party to an instrument severally liable thereon. Severally liable, each should be severally protected. The statute nowhere in terms states who will be liable in case of payment, or who must make the payment to avoid the statute. But that the payment must be by the one to be charged, see specially the cases from 21 La. An. and 22 La. An., 30 Ga., 11 N. Y., and 16 Ohio St., supra. The early case of Root v. Bradley, 1 Kas. 437, while not absolutely decisive of this case, strongly tends in this direction.
We conclude then, that payment suspends the running of the statute only as against the party making the payment. The district court holding otherwise, therefore erred, and the judgment must be'reversed.
The claim of counsel for defendant in error, that, notwith standing this, the judgment must be affirmed because it does not appear that plaintiff in error was not .absent from the state during the five years prior to the commencement of the action, cannot be sustained, because the bill of particulars, copying the note which appears on its face to be barred, only alleges in avoidance of this, part payment; and this payment is found by the court to have been made by the other party to the note.
There being no exceptions taken by the defendant in error to the findings of fact, we are compelled not merely to direct a reversal of the judgment^ but to order that upon those findings judgment must be entered for the plaintiff in error, defendant below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On May 26th 1875, Theodore Jones attempted to commence an action against Jacob McMurtry, in the district court of Leavenworth county. He filed a petition, a precipe, an affidavit for an order of attachment, and an undertaking; and the clerk issued thereon a summons and an or(3er of attachment, but before either the summons or the order of attachment was served, Jones died. After Jones’s death, both of these writs were served, and under the order of attachment the sheriff seized some of McMurtry’s property. After service, but before it was known either by Jones’s counsel, or by McMurtry, that Jones was dead, some other proceedings were had in the case, in the name of Jones. Afterward, Henry T. Green, (who was Jones’s counsel at the time of his death, and who was then administrator of Jones’s estate, drew up a new petition entitling it: “Henry T. Green, administrator of the estate of Theodore Jones, deceased, plaintiff, v. Jacob McMurtry, defendant.” He set forth in his petition the same cause of action which had been previously set forth in the petition in the case of Jones v. McMurtry. But this petition did not purport to be a petition, or an amended petition, in the case of Jones v. McMurtry. It had the appearance of being an original petition in a new case. Pendery & Goddard made the following indorsement thereon: .
“We hereby waive the issuing of a summons in the within entitled cause, and enter the appearance of the defendant J. P. McMurtry, and agree to file our pleas or orders, demurrer or answer, within twenty days from the filing hereof, with the clerk of the district court. Pendery & Goddard,
“Attorneys for J. P. McMurtry, defendant.”
On the same day, to-wit, 24th June 1875, Green filed said new petition in the case of Jones v. McMurtry. Also, on the same day, Pendery & Goddard as attorneys for McMurtry filed two motions in the case of Jones v. McMurtry. The first was to set aside and annul all proceedings in said case of Jones v. McMurtry, because said summons and sa-id order of attachment were not served until after Jones’s death. The second was to strike from the files of said case of Jones v. McMurtry said new petition, because it was improperly filed in that case, and because it was a new and original petition, belonging to a new, distinct, and original case. Also, on the same day, McMurtry gave notice to Green that he would take certain depositions, which depositions were afterward taken and read on the hearing of said motions. The court below sustained both of said motions. Green then presented to the court his letters of administration on the estate of said Jones, and moved the court to revive the action df Jones v. McMurtry in .the name of Green as administrator of the estate. The defendant objected to the hearing of the motion, on the ground that no written notice thereof had ever been given to him, and the court sustained the objection, and ordered that the administrator give such notice. Green then as administrator of said estate brought the case to this court.
Revivor of of actions. Irregular proceedings, aside on motion of aggrieved party. By what authority Green brings the case to this court, he has not informed us. He is not a party to the action. The action has never been revived in his name, and courfc below has never refused to revive it. The question of revivor is still pending undisposed of in the court below. The action still stands in that court in the name of Jones; and Green is no more a party thereto than any other person is. Whether the action will ever be revived, and in whose name it may eventually be revived, are questions still undetermined. But passing over this question, did the court below commit any error, requiring a reversal of any of its rulings by this court on the petition in error now presented to us? We think not. Said action was for the recovery of money only. It was attempted to be commenced on 26th of May 1875. On the same day the plaintiff, Jones, died. After his death, and before the return-day of the summons and the order of attachment, which was June 5th, said summons and order were served — the sheriff taking certain property in attachment. On the 3d of June the court made some orders with regard to the_ attached property — it not then being known that Jones was dead. On the 21st of June Green was appointed administrator. On the 24th of June said new petition-was drawn up, indorsed and filed, plaintiff’s death was suggested, defendant’s said motions were filed, and said notice to take depositions was given. On the 26th of June said depositions were taken. On the 6th of July said motions of the defendai.it were heard and sustained, and said attached property discharged. On the same day the administrator’s said motion to revive the action in his own name was made, and postponed for the purpose of giving the defendant written notice thereof. Many of these proceedings were of course irregular and void. WThen Jones died, all the proceedings should have been stayed until the action was revived in the name of the administrator. But this was not done. The sheriff, not know.ing of Jones’s death, served the papers he had in his hands, and attached the defendant’s property. And the defendant had no adequate remedy to avoid these irregular proceedings except the one he pursued. He could not replevy the property, for it was already in the custody of the law, having been taken by a “process” issued against him. (Gen. Stat. 661, § 177, subdiv. 4; McGlothlin v. Madden, 16 Kas. 466.) He could not give notice to Jones of his motions to set aside the proceedings and to discharge the attachment and the attached property, for Jones was dead. And it would have been unfair to require him to wait until the' action should be revived, for it might never be revived, and all the wrongs done, were committed after Jones’s death, and not before, and not by Jones. And as all these wrongs were committed after Jones’s death, and not by him, it would seem fair to allow the defendant to give notice to those only who committed the wrongs, to those who were responsible therefor, and to those who were interested therein; and . ¶ . . . then, by motion have these wrongs corrected; that is, allow the defendant to give said notice, and then have the case placed back just where it was when Jones died. The fact that the defendant was not legally served with summons, and the fact that he was not legally and technically a party to the action, would not deprive him of the privilege of making such a motion. Any person interested in a suit may make a motion with reference to his interest, whether he is legally and technically a party thereto or not. (Gen. Stat. 734, §32; White-Crow v. White-Wing, 3 Kas. 276, 280; Harrison v. Andrews, 18 Kas. 537; Branner v. Chapman, 11 Kas. 118; Foreman v. Carter, 9 Kas. 674.) It would seem from the record in this case that Green, the former counsel of Jones, Green the administrator of Jones’s estate, and the sheriff who served said writs and who held said attached property, were present and had notice of the hearing of said motions. Green, the administrator of Jones’s estate, is however the only one that is now complaining of the action of the court below.
We suppose there can be no doubt as to the invalidity of the service of said writs after Jones’ death. There must always be two parties to a lawsuit — a plaintiff, and a defendant. No action can exist without such parties. A plaintiff voluntarily makes himself such by commencing the action. A defendant, unless he voluntarily appears, can be made such party only by the service of a summons upon him; and until the service of the summons, no action exists. The service is a jurisdictional matter. But suppose before, any defendant is created, the plaintiff dies: then can a defendant be created with no plain tiff in existence? Can there be a defendant in an action without a plaintiff? Such a thing would seem to be absurd. When the plaintiff in a contemplated action dies, the power to make a defendant in that action dies with him. And any attempt to make a defendant in that action — in that plaintiff’s action — is futile and ridiculous. This case is different from any of the cases mentioned by the plaintiff in error. In some cases, after jurisdiction has been obtained, and some particular proceeding has been commenced before the death of either party, such particular proceeding may be carried on to completion after the death of one or both of the parties, the whole thing relating back to the time of the commencement of the proceeding. This is illustrated by sale of property on execution after the death of one of the parties, where the property was levied on under such execution before such death. Also in some cases where the proceeding is a mere formal matter, like the rendering of a judgment after death on a verdict found before death, the proceeding may be had after such death. But even these cases have their exceptions and limitations. And we know of no case where it has been held that a defendant; may be made to an action where there is, at the time, no plaintiff.
Of course the filing of said new petition in the old action of Jones v. MeMurtry was irregular. Nothing that the defendant or his counsel had done authorized it. The defendant’s counsel merely waived “summons” in the new action which they supposed was about to be commenced; and did not waive a revivor in the old action. Nor did they even authorize such a revivor. They of course knew that it did not require a “summons” to revive an action. But when they observed that this new petition had been filed in the old action, they immediately, and on the same day on which they waived summons, and on which such petition was filed in the old action, made a motion to strike it from the files of such old action, aiM also gave notice that they would take depositions, which depositions they afterward read on the hearing of said motion.
Perceiving no substantial error committed against the plaintiff in error, the order and decision of the court below must be affirmed.
Horton, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of ejectment, brought by the plaintiffs in error to recover a quarter-section of land. The action was commenced on the 2d of October 1869, was afterward tried by a jury, and resulted in a ver¿jc¡; an(j judgment for the defendant. From this judgment a writ of error was prosecuted to this court by the plaintiffs, and that judgment was reversed. (Greer v. Higgins, 8 Kas. 519.) At the June term 1873 of the district court of Shawnee county, the action was again tried, and again resulted in a verdict and judgment for the defendant; and the case is now before this court for the second time, at the instance of the plaintiffs. The testimony produced at the June term 1873, was substantially as reported in 8 Kas. 519. Both plaintiffs and defendant claim as grantees under Manfred Stafford. The plaintiffs claim by deed dated 16th August 1859, recorded the same day. The defendant bases his claim upon a deed dated 4th July 1859, (but which was not recorded until August 20th,) and upon an alleged actual, open, visible, notorious and exclusive possession of the premises from said July 4th, the date of his said deed. Plaintiffs claim that the defendant lived on the land with his son, and his grantor, for more than a year before the date of his deed, and that there was no change in the character or mode of his possession and occupancy after the execution of the deed to him, prior to the recording of the deed to plaintiff, on 16th August 1859.
Assignments of error are made regarding the admission and rejection of evidence, and the granting and refusing of instructions. As tending to prove actual notice of defendant’s interest in the premises prior to the 16th of August 1859, on the.part of the plaintiffs, the defendant offered in evidence deposition of D. S. McIntosh. So much of this deposition as related to a conversation between Safford (Moore’s agent) and the witness, after the execution of the deed of August 16th, was incompetent, as being an attempt to prove the declarations of an agent made after the transaction in which he acted as an agent was closed. So much of the deposition as appertained to the statements and admissions of Greer, of his knowledge of the deed of defendant at the time he and Moore made their purchase, was competent, and important. Greer excepted to the ruling of the court in admitting such evidence. Moore took no exception. The objections to the deposition were simply, that the same was “incompetent and irrelevant.” The objections and exception were not sufficient. A portion of the deposition was clearly admissible against Greer, and he is the only party excepting. He failed to point out or separate the' competent from the incompetent testimony; and his objection and exception were too general. Further, the admission of the conversations between McIntosh and Safford only affect Moore, whose agent Safford was; and Greer was not prejudiced by this evidence. He has no right to complain at this action.
In the deposition of McIntosh, which was read on the trial, and which was taken in June 1869, the witness stated he had known M. D. Moore since 1857. On the part of the plaintiffs, an attempt was made to • i ¶ . ’ t . , t . • impeach such witness by introducing in evidence his deposition taken on the 10th of October 1867, in an action then pending in the district court of Jefferson county, in this state, between “Hiram Higgins plaintiff, and John P. Greer, and M. D. Moore defendants,” which contained the statement that the witness did not know M. D. Moore. The court of its own motion refused to allow the deposition to be read. This was not error. The evidence was incompetent for the only pui-pose that it could have aided the plaintiffs. When it is intended to discredit a witness by showing that he has, on a former occasion, made a statement inconsistent with one made on trial, it is requisite, generally, to ask him, on cross-examination, whether he has not made such prior contradictory statement. Only upon a denial, direct or qualified, by the witness, that such a statement was made, can proof of it be offered. The true principle of the rule seems to be, that the witness, whose testimony is to be impeached, and the party to be affected thereby, are of right entitled to any explanation which the former can give of the statements imputed to him. The fact that the depositions of the witness were used, or attempted to be used, in the absence of the witness, in nowise changes the rule of law in this respect. The deposition attempted to be offered in evidence by plain tiffs, was taken nearly two years before the one read by defendant on the trial; hence in this ease there was no excuse for the plaintiffs failing to appear and examine him concerning his former statement, if they wished to introduce such former deposition for the purpose of impeaching his evidence in the last deposition. It has even been held, that where the deposition of a deceased witness had been by consent read in evidence, another and conflicting deposition of the same witness, at a prior trial, could not be read in order to impeach the witness, as the attention of the witness had not been called to the conflict. Hubbard v. Briggs, 31 N. Y. 518; Bunyan v. Price, 15 Ohio St. 1.
On the trial, the court instructed the jury that if,they found from the evidence that any witness had knowingly and willfully testified falsely in regard to any material fact in the of Such witness-case> they should entirely disregard the testimony -thus giving the law to the jury as 'it was interpreted by this court prior to the decision of Shellabarger v. Nafus, 15 Kas. 547. Whether such erroneous instruction, given by a trial court at a time when it was the settled law of this state, would be sufficient ground for a reversal, in such a case as this, is not fairly before us for our determination. We have already held, that where the charge of the trial court is in' accord with the instructions asked by the party alleging error, it will not be a satisfactory reason for a reversal of the case. (K. P. Railway Co. v. Cutter, 19 Kas. 83.) This instruction so given was simply a modification of instruction asked by the plaintiffs. Instead of having the instruction apply solely to Hiram Higgins, as requested by plaintiffs, the court made it general, and applicable to all the witnesses. Under these circumstances, it would be grossly unfair to the trial court, and the defendant, to order a new trial on account of this direction, which was given and adopted at the instance of the party complaining.
Notwithstanding the many objections made to . the other instructions given, upon a careful examination of them, as well as those refused, we see no error prejudicial to the plaintiffs. The learned judge of the trial court correctly and fully directed the jury upon the questions of law involved. The principal instructions were-as follows:
“4th.-If the jury find from the evidence, that the plaintiffs knew, or had notice of the existence of a deed from-Manfred Stafford to the defendant, (if such deed was executed arid delivered,) at the time of the making of the deed by said Stafford to the plaintiffs, then the want of record of the deed to the defendant Higgins would not defeat the defendant’s deed, nor give the plaintiffs’ deed priority over it.
“5th.-If the jury find from the evidence, that at the time-Manfred Stafford made the deed to the plaintiffs the defendant Higgins was in the open, notorious, and exclusive possession of the land, then such open, notorious, and exclusive-possession was equivalent to notice to the plaintiffs of the title of said defendant, whatever that title might be. The-rule is, that possession, to be notice, must be open, visible, exclusive, and unambiguous, not liable to be misunderstood or misconstrued; and the burden of proof of such possession of the land by the defendant is upon -the defendant.
“ 6th.-Notice to the agent of a party, is notice to his principal ; but such notice must be of facts derived during the-agency, or pending the purchase of the land.
“7th.-Notice to one of two joint purchasers of land is not-notice to the other, when the circumstances are such as exclude the idea that one is .the agent of the other.
“8th.-If the plaintiffs, or either of them, had knowledge-before the making of the deed to them of any fact or facts-indicating that the defendant had a deed for, or claimed an interest in the land in controversy, and neglected to make inquiry of the defendant in regard thereto, then such plaintiff is chargeable with such notice as the inquiry would have produced if he or she had made such inquiry.” * * *
“10th.-If the jury find from the evidence, that Manfred Stafford sold and conveyed to the plaintiffs the land in controversy, and that said plaintiffs had no knowledge or notice that said Stafford had previously conveyed said land to defendant, and further find that the defendant was not at the time Stafford so conveyed the land to plaintiffs in the open,, notorious, and exclusive possession of said land, they will find for the plaintiffs.”
The particular instructions criticised in the above list by the counsel of the plaintiffs, are fully authorized by the decisions of this court in the cases of Johnson v. Clark, 18 Kas. 153, and School District v. Taylor, 19 Kas. 287.
The other grounds presented for consideration have been fully weighed, but do not appear to be of sufficient magnitude to call for special comment.
The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant Hudson commenced an action in the district court of Wilson county against one Dustin, and the plaintiff in error, upon a promissory note, charging Dustin as maker and Fox as indorser, and to foreclose a mortgage given to secure this note. The allegations in Hudson’s petition were to the effect, that Dustin had executed the note and mortgage sued upon to Fox, who for a valuable consideration indorsed the note and assigned the mortgage to Hudson. Fox denied under oath the fact of his indorsement of the note, but alleging if he did so indorse the same, it was upon an agreement which released him from all liability. Hudson filed a reply to this answer, taking issue upon it. Dustin filed an answer, admitting the execution of the note and mortgage to Fox, and his transfer of the same to Hudson, but alleged in substance, that prior to such transfer he had paid a large sum of money thereon, of which payment Hudson had knowledge at the time he purchased the mortgage. Hudson took issue upon this answer also. At the time when by the rules of pleading the case was triable, and the cause stood at issue as to all parties ready for trial, Dustin was confined to his bed by sickness, and was about to make application for a continuance of said cause upon that ground. Hudson hearing of this went to him, and agreed with him, without the knowledge or consent of Fox, that if he would withdraw his answer in said cause, and allow a judgment as upon a default, that he, Hudson, after the sale of the mortgaged property, would not attempt to collect the balance that might be due on his judgment from Dustin, until he had exhausted all of Fox’s property. Thereupon Dustin withdrew his answer, and allowed Hudson to take judgment against him as upon a default. At the same term of court, the issues in said cause were tried between Hudson and Fox. The court, after taking the matter under advisement until the next term, decided the case adversely to Fox, and rendered a judgment in which, in accordance with the provisions of § 470 of the code of civil procedure, (Gen. Stat., p.720,) the court caused the certificate to be entered, that Dustin was the principal debtor, and Fox the surety. A decree of foreclosure of the mortgage was also entered. The mortgaged property was also sold, but only a portion of the judgment was realized therefrom. At the time of the judgment against him, Dustin had personal property subject to execution more than sufficient to satisfy the judgment, but thereafter became insolvent, and has since died. Afterward execution was issued on the judgment and placed in the hands of the sheriff, who was about to levy on the property of Fox, when the latter, who for the first time learning of the agreement between Hudson and Dustin, brought this action against Hudson and the sheriff, to enjoin the collection of the judgment from him, claiming that as a surety, he was released by this agreement from the payment of said judgment. He gave notice of an application for a -temporary injunction. Such application was made, and upon a hearing of the evidence offered by both parties, the court granted a temporary injunction in said cause. The defend.ants then filed a demurrer to the petition, which was sustained, and the plaintiff declining to amend his petition, the injunction theretofore issued was on application of defendants dissolved, and judgment entered in their fayor for the costs ■of the action. To reverse this ruling this proceeding has been brought, and two errors are alleged.
I. It is said that the court erred in entering an order dissolving the injunction, after sustaining the demurrer. The idea of counsel seems to be, that as the injunction was granted upon notice and proof, no formal order dissolving it could thereafter be entered, and though it might in fact fall by the dismissal of the case, jet no liability would arise on the injunction bond. Ve do not at all agree with counsel. The formal order of dissolution of the injunction was proper, though perhaps not neces.sary. The sureties on the injunction bond are liable, “if it be finally decided that the injunction ought not to have been granted.” Code, § 242, Gen. Stat. 675. A judgment adverse to the plaintiff on the merits of the action, is a final decision that the injunction ought not to have been granted; and whether a formal order dissolving it be entered or not, a right of action accrues on the bond.
2. Principal and surety; agreement of principal. Delay of creditor. Delay of creditor. II. It is urged that the court erred in sustaining the demurrer, and that Fox, being but a surety, was in fact discharged from liability by the agreement between the principal debtor and the creditor. In this too we must disagree with counsel. The judgment which was entered contained no such stipulation as is said was entered into; and in it were merSed a11 prior agreements. By it the principal debtor was named, and the law • compelled the sheriff to exhaust his property before touching that of the surety. The rights of the surety were fully protected by it beyond the interference of the plaintiff. The mandate of the writ could not be changed at the instance of the plaintiff. The.very judgment which the rights of the' parties required, was entered; and the only process which could issue thereon was prescribed by the express language-of the statute, and was unchangeable by either party. Nothing was in fact done which trespassed upon the rights of the-surety. True, it is alleged that execution was not issued until the principal debtor became insolvent; but that was-nothing but delay on the part of the creditor, which does not release the surety; and the latter could at once have paid the judgment and been subrogated to the rights of the creditor in the judgment against the principal. The case of Woolworth v. Brinker, 11 Ohio St. 593, is strongly in point. In that case, after judgment against principal and surety, the latter sought relief on the-ground of an agreement between the creditor and the principal, prior to the judgment, for a stay of execution for sixty days. No such agreement was incorporated into the judgment, which was in the ordinary form, and prima faciecarried with it all the rights that attach to judgments. Commenting on this alleged prior agreement, the court says:. “That the legal effect of a judgment cannot be varied by proof, outside the record, of facts transpiring prior to its rendition, is a proposition too well settled to require the citation-of authorities to sustain it. * * * Sound policy, irrespective of the rights of parties, will not permit averments or proof aliunde of matters prior to the judgment, to lessen its force, obligation, or effect, especially in collateral proceedings.. See remarks of Kent, Chancellor, in 6 Johns. Ch. 235.” In that case too, as in this, it appeared that the principal debtor-had property which could have been but was not taken in-execution; and it was held that the failure to issue execution- and seize it, wrought no discharge. The principles thus enunciated, which seem to us entirely sound, are conclusive of this case, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in the court below by James W. Oulton on a certain promissory note and mortgage. Various persons were made parties defendant, and various questions were raised and decided in the court below; but only a few of such questions are now presented to this court, and these few are such only as were raised in the cóurt below between two of the defendants, Asa Richardson and Robert McKim. Richardson is now the plaintiff in error, and McKim is the defendant in error.
It seems that in May 1871, Richard Rue held three promissory notes secured by a real-estate mortgage on a certain piece of land on which land both Richardson and Oulton also held mortgages. These notes of Rue’s, and the mortgage made to secure them, were all dated 15th May 1871, all executed by Thomas Cash and 'William Edgerton, and each note bearing interest from date at the rate of ten per cent, per annum. The first note was for $750, and due in six months; the second note, was for $1,135, and due in twelve months; and the third note was for $1,135, and due in two years. Richardson purchased the first and second notes, and McKim the third; and the question now arising in the case is, whether either of said notes has priority over the others, and if so, which ? The court below held that they were equal — that they were all entitled to an equal share of the proceeds of the mortgaged property, and that if the mortgaged property was not sufficient to pay all of them, then that they should be paid pro rata. At the time that Richardson purchased said notes, and prior thereto; he held a certain note for a large amount against said Rue, and also held a mortgage to secure such note on a certain forty-acre tract of laud belonging to. Rue. Oulton, the .plaintiff in the action in the court below; also held a mortgage on said land, (the same mortgage on which he finally brought this action;) but Oulton’s mortgage.was subsequent to Richardson’s. Rue sold and conveyed twenty .acres of said land to said Cash and Edgerton, and in part consideration therefor, Cash and Edgerton gave to Rue the said three notes and also the said mortgage on said twenty acres of land made to secure the notes. There were then three mortgages covering said twenty acres of land — first, Richardson’s; second, Oulton’s; and third, Rue’s. Richardson then in consideration of said first two notes, and the Rue mortgage on said-twenty acres of land, gave up to Rue the note which he held against Rue and his mortgage on said forty acres of land. This left Oulton’s mortgage as the prior lien on said land, and left Richardson with only a second mortgage and second lien upon only one-half thereof, and upon only one-half of the land upon which he had previously held the first mortgage and the prior lien. Rue indorsed his name on said notes and on said mortgage, and then delivered the same to Richardson. About a week afterward, Rue assigned said third note to McKim as collateral security for a debt previously existing in favor of McKim and against Rue. Whether anything was said at the time with reference to said mortgage, is not shown. Afterward, and in August 1871, Cash and Edgerton sold three acres of said twenty acres of land to John Herman. Herman desired to get said three acres free and clear from said Rue mortgage. So, by an understanding and arrangement between said Cash, Edgerton, Herman, Richardson, and Rue, Herman paid the whole consideration for said three acres of land (which was $375) to Richardson, and Richardson agreed to release said three acres from the said Rue mortgage. McKim did not know anything about this transaction until after it had all occurred.
We should think from the foregoing facts, and from all the facts in the case, that when Rue sold said first two notes and said mortgage to Richardson, he probably did not intend to release the mortgage as to any of said notes, but still that both he and Richardson did intend that the first two notes should have priority over the third. The fact that Richardson released a first mortgage on forty acres of land, and in its stead took a second mortgage on only twenty acres thereof; the fact that Rue indorsed his name on said mortgage and delivered it to Richardson; the fact that the two notes assigned to Richardson were the first that were assigned; the fact that the two notes assigned to Richardson were the first to become due; the fact that the mortgage itself provided that if default should be made in any payment the mortgage should become absolute, (not that all the notes should become due or payable,) and that the mortgaged property might then be sold to satisfy the amount then due as principal and interest; the fact that nothing seems to have been said or done concerning the mortgages when Rue assigned the third note to McKim; the fact that both Rue and Richardson afterward seemed to believe that Richardson was the sole owner of the mortgage; and the fact that the court below did not order said three acres to be sold to satisfy said note held by McKim although McKim had never released said three acres, would all seem to indicate that it was intended by both Richardson and Rue, when Rue assigned said notes and mortgage to Richardson, that the two notes assigned to Richardson should have priority over the other note; and if so, then said two notes would undoubtedly have precedence. (Noyes v. White, 9 Kas. 640.) But even if there was no such intention or understanding, still we think the same result would follow, for there was certainly no intention or understanding to the contrary. The mere facts, that the Richardson notes were first due and first assigned are sufficient in and of themselves, in the absence of any agreement or understanding to the contrary, and in the absence of any countervailing equity, to give to such notes the priority in their payment. The McKim note was not due when this action was commenced. Indeed, it was not due when McKim filed his answer therein. But possibly if his note was entitled to an equal consideration in the distribution of the mortgage-fund, if his note was entitled to a pro rata share of such fund, this would make but little difference. The right however of Richardson, under the mortgage, to resort to such fund before McKim’s note became due, and his actual exercise of such right, would seem to indicate that Richardson’s notes should have precedence in payment out of the mortgage fund. Nearly all the authorities hold that where two or more notes, secured by a single mortgage, fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless a different agreement has been made between the parties, or unless some paramount equity should require a different order of payment. Mitchell v. Ladew, 36 Mo. 526; 38 Mo. 320, 325; State Bank v. Tweedy, 8 Blackf. (Ind.) 447; 4 Ind. 134; 7 Ind. 140; 14 Ind. 439; 17 Ind. 52; Wood v. Trask, 7 Wis. 566; 9 Wis. 57; 21 Wis. 674; Gropengether v. Fejervary, 9 Iowa, 164; 9 Iowa, 297; 11 Iowa, 211, 580; 13 Iowa, 274, 543; 17 Iowa, 506; Vansant v. Allman, 23 Ill. 30; 33 Ill. 481; Wilson v. Hayward, 6 Fla. 171; McVay v. Bloodgood, 9 Porter, (Ala.) 547; Larrabee v. Lumbert, 32 Maine, 97; Bank v. Covert, 13 Ohio, 240; Hunt v. Stiles, 10 N. H. 466; Gwathmeys v. Ragland, 1 Randolph, (Va.) 466. Where the holder of two or more notes secured by a singlé mortgage, assigns one or more of the notes, and retains the others, there is an equity of more or less force requiring that the assignee should be first paid out of the mortgage fund; and this equity is, in some cases, paramount to all others, and of controlling force in the case. Cullum v. Erwin, 4 Ala. 452; Stevenson v. Black, Saxton Ch. (N. J.) 338; dissenting opinion of Chief Justice Gibson in Donley v. Hays, 17 Serg. & R. (Penn.) 405 to 408; Noyes v. White, 9 Kas. 640. In such a case, when the holder of the notes assigns one or more of them, and retains the others, he thereby assigns the mortgage security also, not pro rata, but pro tanto; that is, he does not assign a proportionate share of the mortgage security, but assigns so much of the security as shall be adequate for the payment of the amount of the note or notes which he assigns. In what respect the equity arising from the assignment or prior assignment of a portion of the notes secured by a mortgage, is paramount to the equity arising upon the maturity of the other notes so secured, it is entirely unnecessary to consider in this case; for, in this case, all the equities, and all the law, would give the precedence to the notes held by Richardson.
There is still another question involved in this case. The court below, by its judgment deprived McKim of all benefit from a sale of the said three acres of land sold to Herman, and in lieu thereof gave to McKim $225 out of the proceeds of the sale of the other seventeen acres of land covered by the Rue mortgage. The plaintiff in error, Richardson, now complains of that portion of the judgment which gives to McKim said $225. But said judgment is so connected with the rest of the judgment which really deprives McKim of the benefit of said three acres of land, that we do not see how we could well disturb the one without disturbing the other. If McKim is to be deprived of the $225, he should certainly have the benefit of the sale of said three acres of land. It would certainly not be legal to deprive him of both. McKim never released said three acres from the Rue mortgage, and was never under any obligation to release the same. And he never did anything to lessen the value of his mortgage security. Richardson however released said three acres from said Rue mortgage; or at least he agreed to do so, and received a sufficient consideration therefor, and therefore in equity he is bound to so release the same. Of course, he could not release the land from McKim’s lien. But he may have so bound himself by his agreement with Herman that he was bound in equity to Herman to see that it was so released, even if it lessened the value of his own security to the amount of $225 to do so. And Herman may have actually shown this to be the case on the trial in the court below. McKim acquiesces in the judgment of the court below. And Herman (although he is the owner of said three acres of land, and was a party to the suit in the court below,) has not been made a party in this court. Now we cannot render any judgment, or order any judgment to be rendered, that would affect Herman’s interests. And if we should say that McKim cannot have said $225, but may sell said three acres of land, it would affect Herman’s interests. If Herman had been made a party in this court, it is possible that he would have shown that the judgment releasing his land from said mortgage was entirely' right. He might have brought up other portions of the proceedings of the court below showing that it was unquestionably right. McKim’s interests are not identical with Herman’s interests. On the contrary, they are adverse. Said three acres are ample security for said $225; and if McKim could get said $225 out of said three acres, instead of out of the seventeen acres, it would leave the whole of the seventeen acres as security for the balance of his and Richardson’s claims. Hence, McKim’s interests, as well as Richardson’s, would be benefited by giving to McKim no preference for said $225 out of the proceeds of said seventeen acres, and by allowing McKim to have said three acres sold and io get all he could out of such three acres.
The judgment of the court below will therefore be affirmed, except as follows: That portion of the judgment which provides for applying the balance of the proceeds of the sale of said seventeen acres of land, (after paying taxes, costs, and said $225, and interest,) to the payment of the Richardson and McKim judgments pro rata, will be so modified that Richardson’s judgment will be paid in full prior to McKim’s judgment for the balance on his note. Said proceeds will therefore be paid out as follows: First, for taxes; second, costs of sale and costs of the suit; third, said $225, and interest; fourth, Richardson’s judgment in full; fifth, McKim’s judgment for the balance on his note; sixth, balance, if any, to Cash and Edgerton. Judgment modified.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action in the nature of quo warranto, brought originally in this court in the name of the state by Joseph W. Taylor, county attorney of Leavenworth county, for the purpose of having the question determined whether Joseph W. Farrell is entitled to the office of justice of the peace in and for Leavenworth city in said county. The county attorney claims that Farrell is not entitled to said office, and that Charles Tholen is. Farrell claims under an election held in the city of Leavenworth on the Tuesday succeeding the first Monday in November 1876. Tholen claims under an election held in said city on the first Tuesday of April 1878. Both of these elections cannot, under the statutes, be valid. If one is valid, the other must necessarily be void. If the one held in November 1876 is valid, then Farrell is entitled to the office. But if the one held in April 1878 is valid, then Tholen is entitled to the office.
Leavenworth city is and has been for many years a city containing over two thousand inhabitants, and a city of the first class. On February 29th 1868, it was enacted by the legislature, in.an act entitled, “An act relating to townships and township officers,” among other things, as follows:
“Sec. 2. The annual township election in the several townships shall be held on the first Tuesday in April of each year.”
“Sec. 4. At the township election in each alternate year there shall be elected, in each municipal township in the state, two justices of the peace; or if the number shall have been increased as provided by law in any township, then such increased number.”
“Sec. 48. No city of more than two thousand inhabitants shall be included within the corporate limits of any township; but each of such cities shall constitute a township for the purpose of electing justices of the peace and constables, as provided in this act, and for the exercise of the powers and jurisdiction of such officers, as prescribed by law. In such cities said officers shall be elected at the regular city election.”—
(Gen. Stat. 1082, 1083, 1092.)
Said section 48 applies both to cities of the first class and to cities of the second class, and it still continues to be the law precisely as it was when it was first enacted, unless it has been subsequently repealed or modified by some sort of implication arising from subsequent hostile legislation. It has never in direct terms been repealed or modified. At the time it was passed, cities of the first class held their elections on the first Tuesday in April of each year, (Gen. Stat. 131, §§11, 12,) and cities of the second class held their elections on the first Monday in April of each year; (Gen. Stat. 156, §11.) Cities of the first class still hold their elections on the first Tuesday in April of each year; (Laws of 1875, page 102, § 2.) But the law with reference to cities of the second class has been so changed that such cities now hold their elections on the same day that cities of the first class do, to-wit, on the first Tuesday in April of each year; (Laws of 1875, page 104, § 1.) The law with respect to holding township elections has been so changed that township elections are now held on the Tuesday succeeding the first Monday in November of each year; (Laws of 1875, page 128, §1.)
At the time that said section 48 was enacted there was no provision of law directing specifically who should canvass the returns of elections for justices of the peace in cities of the first and second classes. The county commissioners canvassed the returns for township officers; (Gen. Stat. 1084, §§ 9, 10;) and th'e city council canvassed the returns for city officers; (Gen. Stat. 142, 158, §§52, 25;) but the office of justice of the peace for cities was not specifically mentioned -in either case. As justices of the peace however are township officers, and as their election, even in cities, is in one sense a township election, we should think that it was prob ably the duty of the county commissioners to canvass such returns. And also, as justices of the peace in such cities are also in one sense city officers, and as they are elected at the city election, and by the electors of the city, we should think that it was also proper for the city council to canvass such returns. In cities of the second class we should not only think from the language of the statute that it was proper for the city council to canvass the returns, but we would also think that it was their duty to do so. The language however for canvassing election returns in cities .of the first class is not quite so comprehensive as it is for canvassing election returns in cities of the second class. The statute still provides, that—
“At the township election in each alternate year there shall be elected, in each municipal township in the state, two justices of the peace,” etc. (Laws of 1874, page 212, §1.)
But the statute is now so changed that the regular township election is held on the Tuesday succeeding the first Monday in November of each' year’, instead of on the first Tuesday in April of each year, as formerly. (Laws of 1875, page 128, §1.) The statute making this change is an amendment of section 2 (above quoted) of the act relating to townships and township officers, and reads as follows:
“Sec. 2. The annual township election in the several townships shall be held on the Tuesday succeeding the first Monday in November 1875, and on the Tuesday succeeding the first Monday in November in each and every year thereafter,” etc.
The defendant Farrell claims that this statute, which is amended section 2 as aforesaid, repeals by implication that clause of said section 48 which provides that, ■“ In such cities said officers [justices of the peace and constables] shall be elected at the regular city election.” Now said amended section 2 does not purport to repeal this clause; and amended section 2 and this clause can stand together equally as well as the original section 2 and this clause could. Besides, repeals by implication are not favored in law. And therefore it must appear very clear that such repeal was intended in fact to be effected, before the courts can declare that any such repeal in fact took place. But in this case it is very clear that the legislature did not intend any such repeal. As we have before stated, said section 48 applies to cities both of the first class and the second class; and therefore, if said amended section 2 repeals by implication said clause of section 48 so that it no longer has any application to cities of the first class, then it also so repeals said section 2 that it no longer has any application to cities of the second class. That is, if said amended section 2 requires that justices of the peace and constables in cities of the first class must be elected on the Tuesday succeeding the first Monday in November, instead of in April, then it also requires that justices of the peace and constables in cities of the second class must also be elected on tbe Tuesday succeeding the first Monday in November, instead of in April. But this cannot be, for reasons hereafter to be given. Said amended section 2 was enacted February 9th 1875. And on the 25th of said February, (only sixteen days thereafter,) the same legislature enacted, with reference to cities of the second class, that —
“There shall be elected on the first Tuesday of April 1875, and every year thereafter, the following officers, namely: A mayor, a city marshal, city treasurer, treasurer of the board of education, and city attorney, and such councilmen, members of the board of education, justices of the peace, and constables, as are required by law to be chosen at such election. * * * The councilmen, members of the board of education, justices of the peace, and police judge, shall hold their offices for the term of two years, and all the other officers for the term of one year.” (Laws of 1875, pages 104, 105, §1.)
Now this statute, just quoted, recognizes the fact that, at the time of its passage, justices of the peace and constables were, according to the then existing law, required to be elected, at the regular city elections, afterward to be held, in cities of the second class. That is, the statute provides for the election of “such justices of the peace and constables as are required by law to be chosen at such elections.” And at the time of the passage of this statute there was no law, except said clause of said section 48, which required that justices of the peace and constables should be elected at a city election. This statute is amended section 13 of the act relating to cities of the second class, as amended in 1875; (laws of 1875, pages 104, 105.) The original section 13 as passed in Í872, (laws of 1872, page 195,) and as amended in 1873, (laws of 1873, pages 126,127,) also recognized the election of justices of the peace and constables at city elections in cities of the second class, the same as the present amended section 13 now does. Said section 13 and said section 48 are the only sections, so far as we are informed, which have ever enacted, or even recognized the fact, that justices of the peace and constables should be elected at city elections.
As to canvassing the returns of votes cast for the election of justices of the peace in cities of the first class, we would say, that, as such cities are townships for the purpose of electing justices of the peace, (except as to the time, and manner of holding the elections,) and as justices of the peace are township officers, it would probably still be the duty of the board of county commissioners to canvass such returns; (Gen. Stat. 1084, 1085, § 10;) although as such justices are elected at city elections, it might also be proper for the city council to canvass such returns. Section 10 of the act relating to townships and township officers, passed February 29th 1868, (Gen. Stat. 1084,) is still in force, and it would seem to give to county commissioners such' authority.
It is admitted in this case, that Tholen was elected a justice of the peace on the first Tuesday of April 1868, in and for said Leavenworth city, a city of the first class, provided that the election was properly held in April, and not in November; and it is also admitted that the board of county commissioners canvassed the returns, and declared Tholen elected; that he received the certificate of his election, duly qualified by taking the prescribed oath and giving bond; and it is also admitted that Farrell refuses to surrender the office to him.
In our opinion the election for justice of the peace in the city of Leavenworth was properly held in April; and judgment of ouster must therefore be given in favor of the state, and against defendant Farrell. Judgment accordingly.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case were substantially as follows: On the 28th of April 1877, one J. Q,. Howey, and Andy J. Cary, the defendant in error, commenced their separate actions against plaintiff in error before the same justice of the peace, to compel contribution from him, as a coindorser, or guarantor, on a note. On the 18th of June 1877, both actions came on for trial, and in the case of Cary against Edwards, the parties made and filed the following stipulation:
{Court, and Title.) “Whereas, There is a case pending between one J. Q. Howey and the defendant, E. H. Edwards, in the same court, before the same justice, involving the same questions, as to the right of said Howey (who, with said Cary, plaintiff herein, claims to be co-surety of the said Edwards,) to compel contribution of and from the said Edwards, for an amount paid by them on a judgment in favor of J. V. Pierce, and against said Howey and Cary, rendered by W. P. Talbot, Esq., J. P., and accounting, by said Edwards, of certain moneys, received by him, proceeds of property claimed to apply on said debt:
“Now it is hereby expressly agreed and stipulated, by and between the parties to this, the above-entitled suit, that whatever judgment shall be recovered against said Edwards in the said action of Howey v. Edwards, shall be entered and shall stand as the judgment in this case, without any trial in this case, or any other evidence as to amount than the judg-; ment in the case of Plowey v. Edwards; provided, that said case shall be tried upon its merits; excepting also, the costs, which shall be taxed, in either case, the same as if this stipulation had not been made.”
Both cases were continued to 25th June 1877, at which time the trial of the Howey case commenced before a jury, and occupied two days. At the request of Howey, the justice of the peace directed the jury, in addition to the general verdict, to find upon the following written questions of fact:
“lst.-When Edwards took the chattel mortgage, were he and the plaintiff, and one Cary, co-sureties, or guarantors, or indorsers of the note first mentioned ?
“2d.-At the same time, was Edwards the payee and holder of the note and mortgage second named, as his individual claim against the mortgagor, Freeman?”
The jury returned both of said questions of fact answered in the affirmative, and returned a general verdict in favor of Howey. Whereupon counsel for Howey announced in open court, that as it was too late in the evening for further business, they would on the next morning move the court to render judgment upon the special findings of fact, together with the general verdict of the jury, and the undisputed evidence in the case. On the next morning, counsel for both parties appeared in court, and attorneys for Edwards gave notice that they would move the court to set aside the general verdict, and for judgment in favor of Edwards upon the special findings; and thereupon, attorneys for Howey filed the motion of which they had given notice the preceding evening. The hearing of both motions was, by agreement of attorneys for the respective parties — at request of Edwards’ counsel — set for the following morning, June 28th; and upon June 28th, attorneys for said parties appeared and argued said motions for plaintiff and defendant, and submitted the' same to the consideration and determination of the justice, who took the matter under advisement, and the next morning rendered judgment in favor of Howey for $135 and costs; and on the same day, he also rendered a judgment in the case of Cary v. Edwards, for $135- and costs, pursuant to said stipulation. On July 9th, execution was issued on the judgment last mentioned, at which time said judgment remained of record, wholly unpaid, without any writ of error, appeal, or stay, and without any bond filed therein, or security therefor. This action was thereupon brought by said Edwards to enjoin the enforcement of said execution, and a temporary injunction was granted. Afterward, on motion of Cary, defendant in error, said injunction was dissolved by order of the judge of the district court. This last-mentioned order is complained of by plaintiff in error.
Edwards alleges as error, that the stipulation between the parties to this action, filed before the justice on the 18th of June, is not sufficient to uphold the judgment, notwithstanding the recovery in the case of Howey v. Edwards; and he refers to Gittings v. Baker, 2 Ohio St. 21, as authority. While it is true, that adversary parties to a suit cannot by contract require the court to try their cause contrary to the established rules of judicial proceedings, and all contracts made to effect such a purpose are void, there is nothing in the stipulation conflicting with the rules of judicial proceedings. The cases were pending at the same time, before the same justice, on a similar cause of action, based upon the same note, and involving identically the same facts and principles, and ought to have resulted in like judgments. The attorneys for the plaintiff in the case of Howey v. Edwards were likewise the attorneys of the plaintiff in Cary v. Edwards; and Edwards was represented by the same attorneys in both cases. The agreement was, that if the case of Howey v. Edwards was tried upon its merits, like judgment was to be entered in this case, as in that, excepting the costs were to be taxed as if no stipulation had been entered into. We do not construe such an agreement as requiring the controversy between the parties to be tried in court out of the ordinary mode of proceeding. If the parties had simply agreed to waive a jury, and submit the case without argument to the justice, upon the evidence produced in the case of Howey v. Edwards, the stipulation would have been substantially the same as the one signed by them. The stipulation can therefore be upheld as an agreement tending to lessen the costs and expenses of the litigation between the parties, and is not void. At least, after the rendition of the judgment in accordance with the terms of such stipulation, such judgment will not be held void on the ground that the stipulation was invalid and without consideration.
It is further claimed that the injunction should not have been discharged, as it is alleged the judgment in favor of Cary v. Edwards was absolutely void, for the reason that the court lost all jurisdiction of the case. The argument is, “that the justice was not authorized to continue the case on his own motion, from the 18th of June to the 25th of June; and even if he had that power, the case was discontinued on the 25th of June, as no action was taken in the case until the 29th of June.” The answer to this is, the stipulation carried the case of Cary v. Edwards with the case of Howey v. Edwards until the judgments were rendered in the cases before the justice. The adjournment from the 18th to the 25th of June was made when the attorneys were present; and on the 25th, the parties and attorneys in the case of Howey v. Edwards were present and attended to the case till June 29th, when that case was determined; and thereon the justice, in pursuance of the written stipulation of the parties in case of Cary v. Edwards, entered a like judgment in this case.
It is unnecessary to pass upon the question whether there was any error committed by the justice in the case of Howey v. Edwards in the rendition of that judgment, as it is evident the justice had jurisdiction; and if error was committed, the judgment was valid until reversed, and, under the stipulation of the parties, constituted the basis for the rendition of the judgment in the case of Cary v., Edwards. As the law favors appeals, either party, notwithstanding the stipulation of the parties, could have taken an appeal from the judgment now complained of, and had a trial de novo, if the proper steps had been taken in time. By pursuing that course, if any injustice had been done in the case of Cary v. Edwards, a complete remedy could have been obtained.
The judgment and order of the district judge dissolving the injunction heretofore granted, is affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
The question of importance in this case is, were the premises described in the application filed on 1st June 1877 in the probate court of Doniphan county by the plaintiffs in error, to open the settlement of the estate of Abijah Wheeler, deceased, and have further administration, exempt as a homestead? If this land was assets in the hands of the administrator, th'e estate had not been fully administered, and the plaintiffs in error have the right to complain of the decision and judgment of the district court. If the land was the homestead of said Wheeler, at his death, and has continued the homestead of the family during such administration, the same was not assets liable for the debts of the intestate, and said application was properly denied.
From the conclusion of facts found by the court, we ascertain that said Abijah Wheeler, with his wife and four children, moved on the premises situate in Atchison county, in the spring of 1861; that he then owned the same; that it did not exceed 160 acres; that it was farming land, and not within the limits of an incorporated town or city; that he occupied the premises as a residence until the 1st of March 1872; that in February 1872, he had some talk with another person about trading a stock of goods owned by a party, then in Pennsylvania, for his farm, but no trade was made, as Wheeler gave up the idea, before the owner of the goods reached Kansas. On the 17th of February 1872, Wheeler purchased a house and two lots in the city of Doniphan, a city of the third class, in Doniphan county, paying therefor $600, and putting in as part payment a pair of his mules, used formerly on the farm, at $250. Oh the same day he rented the farm to one Crawford for two years from the 1st of March 1872, reserving forty acres, then in fall wheat, for the first year, and the privilege of .one room in the house. He was to receive cash rent, pay the taxes, and keep up the fences. The fall wheat having frozen out, and his tenant not needing the ground, Wheeler put that ground in spring crops for that year, and reserved the orchard, which was fenced off by itself. Wheeler and his family moved to their new home in Doniphan city, two and one-half miles from the farm, on the 1st of March 1872, taking all their-effects and furniture, except some pictures and articles not necessary for use, viz., chairs, a stand, a table, and a stove, which were left in the reserved room in the house on the farm. Between February 17th and March 1st, 1872, Wheeler advertised a public sale of all his farm-stock and effects, except a pair of horses, two cows, and some pigs, which he intended to take and did take to the city of Doniphan with him. At the sale, everything but his interest in a threshing-machine was offered. Some of the farming implements received so low bids, they were not sold, but stored on the premises. He had considerable farm stock, the most of which was sold at the sale. After removing to the house at Doniphan, which was one room smaller than the farm house, he continued to occupy it with his family, until his death on the 14th of January 1874. He died in this house, and was buried in the Doniphan town cemetery. In the winter of 1872 and 1873, he taught school in Doni phan. The next spring he was appointed street commissioner in Doniphan, and acted as such for one year. He also voted in Doniphan at the city election in April 1873,'and in the same year put up a city jail under a contract with the city. In 1873 he bought nine other lots adjoining the Doniphan house, and fenced them in; dug a well on the premises; set out fruit trees, and his wife brought some shrubbery from the farm and put out in the yard. He removed and rebuilt the stable on his city lots, which he used for his horses and cows. When he went to the farm to work he carried his dinner, and returned to his Doniphan place to sleep. Sometimes his wife went to the farm visiting, on which occasions she ate at Crawford’s table, and once or twice stayed there over night, and slept in a bed belonging to the tenant. At the time Wheeler moved to the city of Doniphan, it was his intention to rent his farm for two, three, or four years; sell off his old farm machinery; school his children; then purchase new machinery, and return to the farm again. During the winter of 1873-4, he tried to rent his farm for another year from the 1st of March 1874, (the time Crawford’s lease expired,) but failing to do so for cash rent, he determined to move back to the farm, with his family on said 1st of March, and notified his tenant to this effect. Erom the testimony of his wife and sons, it appeared that shortly before the death of Wheeler he had stated his intention to remove to the farm after the expiration of Crawford’s lease, but had taken no steps except he had everything in readiness, and had some teams and farm implements engaged.
After Wheeler’s death, his family continued to reside on the Doniphan place until July, or August, 1875, and then the widow and children moved on the farm to claim it as a homestead. The farm at that time was occupied by a tenant under lease from the administrator of the estate of the intestate, to expire the following March. The widow made arrangements with the tenant by which she was allowed to occupy a part of the house during the balance of his lease, but obtained thereunder no occupation of the land.
Upon these facts, the court below erred in holding the premises in controversy a homestead, and exempt from the payment of the debts of the intestate. The authorities all concur in holding that when by the unequivocal abandonmerd of the homestead the former occupant has evince¿. hjg intention of no longer treating it as his place of residence, his right of exemption is lost. Now, the conflict in the authorities upon this point is principally, what is sufficient evidence of such abandonment. Generally, it is conceded, that where the owner of the place has not only removed, but has established a.new home elsewhere, the proof of the abandonment is conclusive. This is on the theory, that a man or the head of a family can have but one homestead at the same time. So, “ where the owner of a house and lot voluntarily removes from it, and takes up another residence in the same town, with a view to the more convenient transaction of business, it can no longer be said to be his homestead. His residence, his home, -would be at his new abode.”
In Jarvais v. Moe, 38 Wis. 440, plaintiff removed from his former home, rented it to other persons, and moved with his family into another building owned by him in the same city, for the purpose of keeping a hotel in such building. He claimed that he did this for the purpose of establishing the hotel and keeping it until he could rent it or sell it, and of then returning to his former home. He remained in the hotel eighteen months, an<jl left it only when it became obvious that, he could not maintain his title to it against incumbrances upon it. Under these circumstances it was held that he must be regarded as having acquired a new residence on his hotel property, and as having abandoned his former homestead. In Cabeen v. Mulligan, 37 Ill. 230, the husband removed to another state with his family, and remained there two years before he returned, and the court said that such re moval was evidence of an abandonment, without reference to what he said before or after his return. In Titman v. Moore, 43 Ill. 169, a person left his farm and removed to a town six miles distant, where he voted at two local elections, first renting his farm for three years, and at the end of one year terminating that agreement and renting it anew for five years; and after eighteen months’ absence from his farm, executed a mortgage which did not release the benefit of the homestead act. * It was held that the mortgagee took his lien free from the operation of the homestead act, and that the right to the homestead was not restored by a subsequent return to and residence on the farm. In a recent case in Alabama, of Boyle v. Thuleman, it was held, if the owner of a homestead leases for a term, transferring occupation and right of possession, disabling himself from resuming them at pleasure during the term, and acquires a home elsewhere, the exemption ceases. The Reporter, vol. 6, page 391.
In the case we are now considering, Wheeler gained a new home in Doniphan city; he owned the premises; he lived there with his family; he taught school there; he held the office of street commissioner under . the city ordinances, and voted at the city elections of 1873; he increased and improved his possessions in the city; he and his wife ornamented and beautified their lots, and in every possible form impressed the character of a homestead on the Doniphan property. During .the residence and occupation of the city premises, he clearly acquired the right to have claimed them as a homestead, as in fact it was; and who can doubt, from the findings of fact, that his widow would have done so had it been for her interest? It is insisted however, that as the intestate had an intention to return, the homestead rights to the farm were preserved. The unexecuted intention to resume possession of the farm, made a few days prior to his death, upon the failure to lease for cash rent, would not have the effect to restore his right to hold the farm exempt. Such intention might have never been carried out. The intention to return, expressed before and at the time the removal occurred, is entitled to weight; and but for the ownership of a new homestead in another county, and the exercise of his political rights as an inhabitant and citizen of Doniphan, we might well infer his absence from his farm a temporary one, and not amounting to an abandonment. But the.making and gaining of a new home, the acquiring of a new homestead, and all the rights appertaining to it, together with the exercise of those rights to the fullest extent, outweigh the claim for exemption on the ground of an intention to return to the farm in two, three, or four years. We are not unmindful of the beneficent character of our constitutional and statutory provisions regarding homesteads, nor of our duty to construe them liberally in favor of their object; and this court has strongly demonstrated such a disposition in Monroe v. May, 9 Kas. 466, in McDowell v. Diefendorff, unreported, and in Hixon v. George, 18 Kas. 253; but to go further, and assert that a man, or the head of a family, can be the owner of two separate and distinct homesteads at the same time, or that one person may own and occupy one place for a residence “where he surrounds himself with the ordinary insignia of a home, and where he may enjoy its immunities and privacy,” and at the same time claim as a homestead another place by virtue of its occupation by a tenant and an intention to return to it as a residence in the future, would be extending the object of our homestead exemptions to pernicious results, unwarranted by our laws, and unsupported by reason or authority. The fact that the widow and children moved back to the farm in the summer of 1875, more than eighteen months after the death of the intestate, in no way aids the case of the defendant in error. The farm was not the homestead of the husband at his decease. The family then actually occupied as their residence and home the Doniphan property. Sec. 2 of the chapter on Descents and Distributions, (Gen. Stat. 392,) provides that the homestead is only exempt from the payment of the debts of the intestate when occupied by such intestate and his family at the time of his death, as a residence, and continued to be so occupied by his widow and.children after his death. The Doniphan place was exempt within this section; the farm was not exempt. Therefore, under all > the circumstances, the claim^that such farm was the homestead of the family of the deceased must be denied.
The judgment of the. district court will be reversed, and that court directed to render judgment that the land described in the application of the plaintiffs in error, is assets of the estate of Abijah Wheeler, deceased, subject to the payment of the debts of the estate.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in Lyon county by the board of county commissioners of Barton county against P. B. Plumb and W. T. Soden on a certain penal bond executed by them. The petition below sets forth and alleges among other things the following facts: Said bond was executed by John McDonald as principal, and P. B. Plumb and W. T. Soden as sureties, and bound said McDonald, Plumb, and Soden unto said county of Barton in the penal sum of fifty thousand dollars, to be void however upon the condition that said McDonald should comply with all the terms of a certain written contract previously entered into between him and said board of county commissioners, whereby he agreed, for the consideration of $24,200 to furnish all the material and build a certain court-house within a certain time in said county of Barton. The petition also alleges that the county on its part complied with all the terms and conditions of said bond and said contract, but that McDonald did not comply on his part with all the terms of said contract. In great detail it alleges that he did not complete said building within the time agreed upon by the parties, nor at any other time; that he did not furnish sufficient material therefor, and that, although he furnished some of the material therefor, and did some of the work thereon, yet, that said material and said work were of an inferior quality, and were not such as were required by the terms of said written contract. The petition also alleges certain other facts tending to show the amount of the damages which resulted to the plaintiff from the noncompliance of McDonald with said contract, and then asks for a judgment for the plaintiff for $12,000 damages, and costs of suit. The defendants moved “the court to require the plaintiff to separately state and number the several causes of action contained in the plaintiff’s petition” — but they did not state or show how many or what causes of action they claimed were contained in the plaintiff’s petition. The court sustained this motion; but the court was equally silent as to the number or kinds of causes of action it considered were contained in plaintiff’s petition. The plaintiff failed to amend said petition in any manner whatever, and for that reason the court dismissed the action. The plaintiff assigns said rulings of the court below as error.
If the petition did in fact state more than one cause of action, as is claimed by the defendants, then the rulings of the court below were correct; but if it really stated only one cause of action, as is claimed by the plaintiff, then said rulings of the court below were evidently erroneous. We think the petition really stated only one cause of action. Houston v. Delahay, 14 Kas. 125, 130. (See also as throwing some light upon this question, the following cases, to-wit: Hibbard v. McKindley, 28 Ill. 240; State v. Davis, 35 Mo. 406; Fisk v. Tank, 12 Wis. 276, 298, 299; Roehing v. Huebschman, 34 Wis. 185, 187; Smith v. B. C. & M. Rld., 36 N. H. 458, 484; K. C. Hotel Co. v. Sigement, 53 Mo. 176, 177.) The defendants by executing the penal bond set forth in the petition, agreed and guaranteed in substance, that McDonald should build said court-house as he agreed to do; but McDonald failed. And this is what constitutes the plaintiff’s cause of action, and we think it constitutes only one cause of action. It is true, that McDonald did not wholly fail. He built a court-house or a part of a court-house; but he did not build the kind and quality of court-house which the parties agreed should be built; and evidently, his partial failure to build said court-house, his failure in some of the innumerable particulars in building the same, would not constitute a greater number of causes of action than a total failure to build such court-house, a total failure in every particular. Even if this action should be governed by the same principles which would govern in an action brought by the plaintiff against McDonald on his original contract to build said court-house, we would still think that the same result would follow, and that the facts of the case would constitute only one cause of action. McDonald simply agreed that on or before the 25th of December 1873 he would furnish to the plaintiff, and at Great Bend, a certain bind and quality of court-house, completed and finished. He did not agree that he would furnish materials, as materials, or labor, as labor. All that he agreed to do with reference to furnishing materials or labor was that he would furnish them in a eourt-house, and as apart of the court-house. Under said contract it was his legal duty to furnish said materials and labor in said court-house, and not otherwise; and the plaintiff had a legal right to receive them in such court-house, and not in any other manner. That is, it was the legal duty of McDonald to furnish to the plaintiff said court-house as he agreed to do, and the plaintiff had a legal right to so require it. McDonald violated this right by not so furnishing said eourt-house. And this is just what constitutes the plaintiff’s cause of action against McDonald on said contract. That is, the plaintiff’s cause of action is founded on the right of the plaintiff to receive said court-house from McDonald according to said contract, and the violation of such right by McDonald. The failure on the part of McDonald to furnish materials or labor was no violation of any right of the plaintiff except as he failed to furnish them in the building and as apart thereof. The materials and labor when furnished would not belong to the plaintiff until they were put into the building. Prior to that time they would belong to McDonald. He could bring materials onto the ground, and then take them away again if he chose. He could put them into the building, or not, just as he chose. And after completing the building, (if he had done so,) he could take away all the materials not used in the construction of the building. The plaintiff never did own nor could own under said contract any part of the materials furnished by McDonald, except as it owned them as parts and portions of said court-house building. From the foregoing it will be seen that the plaintiff possessed one grand primary right, and only one such right, and that that right was to have a good court-house built according to said contract. Within this-grand primary right, however, there existed innumerable subordinate and secondary rights. These subordinate and secondary rights reached to all the illimitable details in the construction of said building. Thus, the plaintiff had a right to have every brick of proper quality, and put into the building in a proper manner. So also with respect to every piece of lumber, pane of glass, nail, lock, hinge, etc. Now each of these innumerable subordinate rights might be violated, and the violation of any one of them would constitute a cause of action. Thus, if McDonald had put a broken or crooked pane of glass into a window, instead of putting in a good one, or had not puttied it in well, the plaintiff would have had a cause of action against him for the resulting damages. The same thing may be said with respect to putting a brick in the wall, or a piece of tin on the roof, or a board in the floor. And so on through all the limitless details in constructing the building. But the violation of each-of these special and subordinate rights is also a violation of the more general and primary right, and altogether they constitute only one violation of this grand primary right. Now as the violation of any one of these subordinate rights would constitute a cause of action, it might seem that the violation of a hundred or a thousand of such subordinate rights would constitute a hundred or a thousand separate and distinct-causes of action. But such is not the case, or at most it is rarely the case. Possibly the plaintiff might in some cases be allowed to elect whether he would treat the several violations of his several subordinate rights as separate and distinct causes of action, or as only one cause of action, but generally he would not be allowed to do so. Generally he would not be allowed to split up into several causes of action what he might prosecute as only one cause of action. In the present case we think that all the violations of the plaintiff’s subordinate rights under said contract really constitute only one general violation of its general and primary right under said contract, and therefore that all of such violations really constitute only one cause of action. All of said violations taken to gether were merely a violation of the plaintiff’s general right to have said court-house built according to contract. McDonald was to be paid $24,200 in installments, upon estimates made as the work progressed; but it was expressly stipulated that “no payment or estimate shall be considered as acceptance of all or any part of the work; and no acceptance shall be conclusive and final until the entire completion and acceptance of the worJc.” When McDonald abandoned the work, on 20th January 1874, the plaintiff’s cause of action was complete. The fact that the plaintiff afterward proceeded with the work, and completed the building, did not give to the plaintiff another or an additional cause of action. The necessary cost of completing the building may however be shown in the case for the purpose of measuring the plaintiff’s damages.
There are several other facts alleged in the plaintiff’s petition, which do not go to make up or constitute the plaintiff’s cause of action, but are alleged merely for the purpose of giving a measure for the plaintiff’s damages, or special damages which have resulted from wrongs constituting the plaintiff’s cause of action.
The judgment of the court below will be reversed, and cause remanded with the order that said order of dismissal, and said order requiring the plaintiff to separately state and number the several causes of action contained in the plaintiff’s petition, be set aside, and that further proceedings be had in the case in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by R. E. Conn, one member of a firm, for an accounting with the other two members, J. T. Norman and W. M. Ingham, and to recover a balance which he claimed due him. The case was referred to a special referee, who was directed to hear all questions of fact and law in the cause; and thereafter such referee made and filed his report, to the effect—
That a partnership was formed between plaintiff and defendants, on or about the 1st of December 1873, for the purpose of wintering cattle, said partnership to relate back to sometime in October of said year, at which time defendants commenced said business; that the parties were to share equally, each having all their interests in the business and profits thereof; that plaintiff paid to defendants to be put. into the business, $663.48; that defendants put into the capital stock and expenses, (a large portion of said expenses-being paid when money was received for keeping cattle,) the sum of $3,028.52, including money paid by plaintiff; that defendants put in stock, and paid expenses at various times,. as follows:
Mower, team, wagon and camp utensil?,.................................. §370.00'
Cash paid hands................................................................. 585.00
Cash paid keeping cattle,..................................................... 584.00'
Feed for horse?,.................................................................. 30.45
Norman’s trips to Ellsworth,................................................. 69.35
Merchandise $659.12, less $328 paid Marshall,......................... 331.72
Cash paid Collins and Craig,................................................ 58.00
Norman’s wages, 10 months at §100,....................................... 1,000.00
Total disbursements....................................................$3,028.52
That the defendants from all sources received as follows:
Cash for keeping cattle,........................................................$2,818.35-
From E. E. Conn, as per receipt,........................................... 663.48-
Total receipts,...........................................................'$3,481.83-
Disbursements brought down,................................................ 3,028.52:
Eeeeipts in excess of outlay,........................................ $453.31
That plaintiff received from defendants $400 about the time the cattle-keeping was paid for, to-wit, July 1st 1874; that a balance of $275 due the firm from cattle-owners remained uncanceled; that there remained in the hands of defendants, the team, wagon, mower, and camp outfit; that-defendants had entire charge of the business.
And upon the evidence the referee further reported, that-said plaintiff was entitled to recover against said defendants-the sum of $414.58, with interest from July 1st 1874 at 7 per cent., together with his one-third of the profits now in the hands of defendants; and that plaintiff was also entitled to the further sum of $91.67 when the $275 yet due should' be collected. And the referee therefore found for the plaintiff, the said sum of $414.58, with interest as aforesaid, together with his one-third interest in the property in the-hands of defendants, and the further sum $91.67 when the-same shall have been collected. The report of the referee-was confirmed by the court, and judgment rendered in favor of the defendant in error, Conn, for $414.58 with interest- from July 1st 1874, and the plaintiffs in error were ordered to account to said Conn for one-third of the property mentioned in the report, and for one-third of the $275.
Plaintiffs in error object to the report and the judgment, on the ground that the facts found do not entitle the defendant in error to the judgment obtained. The finding of the referee in regard to the agreement of the partners as to how the partnership property and effects were to be divided upon the winding up of their business, is not as clear and precise as it should have been; but as tips finding is unquestioned, and none of the testimony is before us, we shall construe it as fairly and equitably as possible to all the parties concerned. The referee reported that “the parties were to share equally, each having all their interests in the business and profits thereof.” With this finding, and in view of all the circumstances attending the transactions of the business in which they were engaged, and the results of the same, we think each party would he entitled to a return of his individual capital, and that each should share equally with the others in the profits. The question as to the balance due Conn on the dissolution of the firm is one of computation only. Conn furnished as capital, $663.48; Norman and Ingham furnished as capital $370, in the way of a mower, team, and camp utensils. The total assets, or capital of the firm furnished by the partners were only $1,033.48. The balance of the $3,028.52 paid out by the plaintiffs in error for wages, expenses, etc., was money received from keeping cattle, being the business in which the firm was engaged. The condition of the partnership was as follows:
Capita],...........................................................................51,033 48
Cash received for keeping cattle,.......................................... 2,815 35
Accounts due the firm,....................................................... 275 00
Total,..................................................................54,126 73
The expenses of the firm were,............................................52,658 52
The expenses taken from the said $4,126.73, leave $1,468.21 to the firm to be divided. If Conn is to have his original capital back, and Norman and Ingham theirs, then there is left $134.73 as the profits of the business, which divided equally between the three parties, gives to each $144.91. If, on July 1st 1874, the property of the partners had been all in money, Conn would have been entitled to have received back his $663.48, and $144.91, his one-third of the profits. This is on the basis that the $275 had been collected, and that the property mentioned in the report had sold for its original value of $370.
As the accounts have not been collected, nor the personal property sold, all that we can do is to remand the case with instructions to the district court to render judgment for Conn for the balance of his capital, to-wit, $263, with interest from July 1st 1874, and to direct a sale of the personal property and collection of the accounts, and to award to Conn, the defendant in error, the one-third of the profits, which, if the accounts are collected and a sale is made of the property for $370, will be $144.91, and proportionally less if there is any loss on the accounts, or depreciation in value of the personal property. The costs of this court will be divided between the parties.
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The opinion of the court was delivered by
Valentine, J.:
Ruth A. Ingle recovered a judgment in the district court of Leavenworth county against John Ashton and Joseph Ashton for the sum of $776.96. An execution was issued on this judgment, and placed in the hands of Percival G. Lowe, sheriff of said county. Lowe by virtue thereof levied upon certain real estate situated in said county, as the property of said John Ashton, and advertised the same for sale. Ashton then commenced this action against said Ingle and Lowe to restrain them from selling said property, and to set aside the levy of said execution. Trial was had in the court below, before the court alone, which trial resulted in a finding and judgment in favor of the defendants and against the plaintiff; and the plaintiff now seeks to have said finding and judgment reversed by this court.
The plaintiff claims that said property is a part of his homestead, and therefore that it-is and was exempt from said judgment, execution, and levy. This is the only question in this case. Before proceeding however to discuss this question, we would say, that, as the finding of the court below was general, and in favor of the defendants, we must presume that everything necessary to be found in the case was found in favor of the defendants, and against the plaintiff Ashton. And also, where there was conflicting evidence we must presume that the court below believed that which was most favorable to the defendants,' and disbelieved that which contradicted it; and we must view the evidence in the same manner that the court below did. As to the status of the property, we must consider what such status was at the time when said judgment was rendered upon which said execution was issued, and not merely what it was at the time when said levy was made, or at the time when this suit was commenced, or trial had. For if the property was not a part of Ashton’s homestead at the time when said judgment was rendered, then the judgment became a lien upon the property; (Gen. Stat. 708, § 419; Kirkwood v. Koester, 11 Kas. 471,) and no subsequent homestead right or interest acquired by Ashton would defeat the judgment-lien. The judgment-lien in such a case would be paramount, and the homestead right or interest would be subordinate and inferior thereto. Bullene v. Hiatt, 12 Kas. 98; Robinson v. Wilson, 15 Kas. 595; Hiatt v. Bullene, ante, p. 557. And under and by virtue of such judgment-lien the property may be levied upon and sold under an execution issued on such judgment, although at the time of the levy and sale the property may be occupied as a homestead of the owners.
Said judgment was rendered on the 22d of January 1877. At that time the plaintiff Ashton owned a certain L-shaped piece of ground situated in Leavenworth city. This ground was all fenced in one inclosur'e, and there was less than one acre in the piece. One branch of the L fronted west on Broadway street, and the other branch fronted north on Oak street, and within the inner angle formed by the two branches of this L, one Helmer owned and occupied a piece of land. Helmer’s land also fronted on both Broadway and Oak streets, the two streets crossing each other at right angles at the northwest corner thereof. Lowe levied upon only a portion of that branch of said L which fronted north, on Oak street; and that which he levied upon is the only land now in controversy — and for convenience, we will call it one parcel of land,'the north parcel; and the portion of the L which he did not levy upon as another parcel of land, the south parcel. On the south parcel, Ashton had a large, fine, brick dwelling-house, which he, with his family, occupied as a residence. On this same parcel he also had a cistern, an outhouse, a barn, a hog-pen, a hen house, a wood yard, and proper walks. On the north parcel there were two small houses, and a cistern, and proper walks. These two small houses, with the grounds around them, were rented by Ashton to tenants, for a money rent; and up to the time when the judgment upon which said execution was issued was rendered, the tenants who for the time being occupied said houses and grounds had exclusive use thereof, except as follows: A clothes line was stretched from one of the small houses across the north parcel onto the south parcel, and was used jointly by all the occupants of both parcels of land. A walk also extended from the south parcel across the north parcel to. Oak street, which walk was used by the tenants of both houses, and sometiihes by the Ashtons. The cistern on the north parcel of land was used by the tenants of both houses all the time, and by the Ashtons “occasionally, when the other cistern gave out.”
After said judgment was rendered, Ashton, for the purpose of making said north parcel of land a part of his homestead, and for the purpose of defeating any levy of any execution which might be made upon said north parcel, assumed, at least nominally, greater control over the same, and over the houses thereon, than he had formerly done. In the written leases which were afterward executed he rented only certain rooms of the houses, and reserved to himself the rest of the houses, and the control of the grounds around them. Though in fact, and notwithstanding said written leases, he still allowed the tenants to occupy and use all of the two houses, and all the grounds around them, except the basement of one of the houses. But, as we have before stated, the question, so far as this case is concerned, is not governed by what transpired after said judgment was rendered, but it is governed by what transpired before and what existed at the time the judgment was rendered. The question is, not whether said north parcel has become a part of Ashton’s homestead since said judgment was rendered, but it is, whether it was a part of his homestead at the time when such judgment was rendered. At the time said judgment was rendered only one of said houses was actually rented, or occupied, and the other was vacant; but the vacant house had been occupied by a renter up to only a short time previously, and-was then kept by Ashton merely to be rented, and was shortly afterward rented. And the first time it was rented afterward, it was rented orally, and in the same manner that it had previously been rented. It was therefore, so far as any question in this case is concerned, substantially in the same condition as though it had been actually rented and occupied by a tenant at the time such judgment was rendered.
Now, was the said north parcel of land, with the two small houses and the cistern, or any part .thereof, a portion of Ash-ton’s homestead, so as to be exempt from said . ^ , ,. -it i .1 íudgment, execution, and levy, under the pro-J ’ , ’ , „ fL_ visions 01 the homestead exemption laws? We think not. The homestead- exemption law, so far as it applies to this case, reads as follows:
“A homestead, to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, [without regard to value,] occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale,” etc.
Now the property, in order to be exempt must be “a homestead,” or a part of a homestead, and it must be “ occupied as a residence by the family of the owner.” Now the two small houses were not a part of Ashton’s homestead in fact, whatever they might be constructively. And they were not “occupied” at all by Ashton’s family, either as a “residence,” or otherwise. Mr. Justice Bradley, of the supreme court of the United States, in commenting upon the homestead exemption provision in the constitution of Florida, uses the following language: “In the case of a farmer, therefore, ^ i® clear ^Iat exemption embraces his house and farm, not éxceeding the amount limited, (160 acres, without regard to value.) Of course, it includes (and so the constitution declares) the improvements thereon. Those improvements, however, must be such as to-make them properly a .part of the homestead, such as outhouses, barns, sheds, wagon-houses, fences, etc. They would not embrace tenant houses, though built on the farm, for these would be no proper part of the farm homestead. They constitute capital separately invested. They produce a revenue of their own, distinct from that of the farm. For the same reason, the farmer’s homestead would not include a saw-mill, or a grist-mill, or a carding-and-fulling mill, though erected on a portion of the tract of which the farm is a part. These are separate enterprises, in which the farmer has been enabled to invest his surplus capital. They are no part of the farm. If he runs them, he does it as a separate business from that of his farm, and he cannot claim both as appurtenant to and part of his homestead. They constitute the basis of outside and separate industries.” Greeley v. Scott, 2 Wood’s Rep. 657, 659. The foregoing views^of Mr. Justice Bradley are fully sustained by the following cases: Casselman v. Packard, 16 Wis. 114; Kurz v. Bursch, 13 Iowa, 371; Rhodes v. McCormick, 4 Iowa, 368; Hoit v. Webb, 36 N. H. 158; Dyson v. Shelley, 11 Mich. 527; Gregg v. Bostwick, 33 Cal. 220; Iken v. Olenick, 42 Texas, 195. (But on the other side of the question see the following cases: Hancock v. Morgan, 17 Texas, 582; Nolan v. Reed, 38 Texas, 525; Hubbell v. Canady, 58 Ill. 425; Kelly v. Baker, 10 Minn. 154; Clark v. Shannon, 1 Nevada, 568.)
Mr. Thompson, in his valuable work on Homesteads and Exemptions, section 130, uses the following language: “This last case, (that of Gregg v. Bostwick, supra,) very clearly conducts us to the rule, that houses built for the purpose of being rented to tenants, thus yielding to the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead. This rule, at once so reasonable and easy of application, has been agreed upon by several courts, (here citing cases from California, Michigan, Wisconsin, Iowa, and New Hampshire.) It has been denied in Texas, (here citing 38 Texas, 425,) but, as we have seen, in pursuance of a view of the constitution of that state, which had been since substantially overruled, (here citing sec. 127 of his work, and 42 Texas, 105, 201;) and in Illinois, where a dwelling and a store-house occupied by a tenant stood upon one lot, the whole within the statutory limit of value, the store-house was held a part of the homestead — a view which must be deemed salutary, under a statute limiting the value of the homestead to $5,000,” (here citing 58 111. 425.) See also sec. 120 of Mr. Thompson’s work, and cases there cited.
In the case of Casselman v. Packard, supra, Judge Cole uses the following language: “We cannot believe the legislature ever intended that a person should hold all the buildings which might be erected upon a quarter of an acre of ground in a city or village, whatever might be their character, or for whatever purposes they were designed, under the homestead exemption law, merely because he might live in one of them. Such a construction seems to us most unreasonable. The statute exempts the given quantity of land, with the dwelling-house thereon, and its appurtenances. Of course, the exemption of that quantity of land has regard to the purposes for which it is used.” 16 Wis. 120.
In the case of Kurz v. Bursch, supra, Judge Wright uses the following language: “It was never intended that' other buildings, though on the same lot, buildings not appurtenant to the homestead as such, those not used and occupied by the owner in the prosecution of his own ordinary business, those rented and yielding a revenue to their owner — we say it was never intended that such should be exempt. If so, the law could be made to cloak the most stupendous frauds. For if one such building may be exempt, so may all that could be placed upon a half-acre, if in a town, or forty acres, if in the country, without limit as to value. And thus the statute, instead of securing to the family a home, where they may be sheltered, and live beyond the reach of financial misfortune and the demands of creditors, would give them property never contemplated by its letter or spirit.” 13 Iowa, 374, 375.
In Kansas there is no homestead exemption law as against taxes, or purchase-money, or claims for improvements, or liens given by the consent of the owner and wife, or owner and husband, as the case may be, or . , . •. liens existing against the property prior to its occupancy as a homestead; but as to every other debt or claim there is a liberal homestead exemption law. Under it the owner of real estate may hold the same exempt from all process, (except that for the collection of taxes, purchase-money, claims for improvements, and to enforce voluntary and preexisting liens,) subject to no limitations, except as to its extent as a homestead, and its use and oeeupation as such. As to its extent as a homestead, the owner may hold 160 acres of farming land, or one acre within the limits of an incorporated town or city, without regard to value. It may be covered with costly buildings, with palatial residences worth hundreds of thousands of dollars, and yet all be held exempt from process, provided it can all be called the homestead of the owner. As to use and oeeupation, it must be used as the homestead of the owner, and must be occupied by his family as a residence, or it will not be exempt. Any portion of his real estate not so used and so occupied will not be exempt, whatever may be the extent or value of such real estate, great or small. But the law however does not use the words “homestead,” and “occupied,” and “residence,” in any narrow or limited sense. The word “homestead,” does not include merely the dwelling-house, but it also embraces everything connected therewith which may be used and is used for the more perfect enjoyment of the home, such as outhouses for servants, for stock, or property, gardens, yards, and farming land to the extent of 160 acres, or land within the limits of an incorporated town or city to the extent of one acre. The word “occupied,” does not always require an actual occupancy, but it may sometimes permit a constructive occupancy. The word “residence,” like the word “homestead,” is not confined merely to the dwelling-house, but it may also include everything connected therewith used to make the home more comfortable aud enjoyable. But the words “homestead” and “residence,” cannot be . , -i -t , i >1 -\ • i i , intended to include some other and independent ^ family’s home and residence. Where houses and lots are rgnted, for a money rent, to tenants, who are not servants or employés of the owner, with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the homes and residences of such tenants and their families, the owner certainly cannot then claim that such houses and lots are a part of his own home and residence, although they may adjoin the same. In order that anything shall be a part of tbe homestead, it must not only be connected therewith as one piece of land is connected with another to which it adjoins, but it must also be used in connection therewith and as a part thereof. In legal phrase, it must be appurtenant thereto. Any other view than this would allow an owner of real estate in a city to own hundreds of thousands of dollars worth of property exempt from his just and legal debts. He could cover his acre of ground with costly buildings, rent a portion thereof to various families for residences, rent other portions for business purposes, other portions for manufacturing purposes, and others still for offices, and reserve merely one, two, three, or four rooms for his own use as a residence, and then hold all these buildings, and the acre of ground, exempt from his just debts. The framers of the constitution and of the exemption laws certainly never contemplated any such result from their labors.
The judgment of the court below must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the name of “The Paola Town Company,” as a corporation, to recover from William G. Krutz the sum of $19,003.33, with interest. A verdict and judgment were rendered in favor of the plaintiff and against the defendant for the sum of $7,956.04; and the defendant now brings the case to this court for review. Many questions were raised in the court below, and several of them are insisted upon in this court, but it will be necessary for us to decide only two or three of them.
The first and principal question involved in the case is, whether “The Paola Town Company” had any legal corporate existence at the time this suit was commenced. That it was once a valid corporation, is admitted; but it is now claimed that it ceased to exist as a corporation long before the commencement of this action. The record shows that said Town Company was duly organized as a corporation on 13th October 1855, under an act of the legislature of the Territory.of Kansas passed 30th August 1855, entitled “An act to incorporate the Paola Town Company.” (Council Journal, pp. 180, 182, 204, 228, 251; House Journal, pp. 273, 285, 354; Laws of 1855, p. 829.) This a'ct did not limit the existence of said corpo ration to any particular period of time; nor did it prescribe any grounds, or cause, or time, or manner, for closing up the affairs of such corporation; but the general law, with reference to corporations, did. This general law was passed by the same legislature that passed the Paola Town Company act, and was passed and took effect just six days prior thereto, to-wit, on August 24th. (House Journal, 314; Laws of 1855, pp. 185 to 193.) This general law provided among other things, as follows:
“Sec. 1. Every corporation as such has power — first, To have succession by its corporate name for the period limited in its charter, and when no period is limited, for ten years.” * * *
“Sec. 7. The charter of every corporation that shall hereafter be granted by law, shall be subject to alteration, suspension, or repeal by any succeeding legislature; provided, such alteration, suspension, or repeal, shall in nowise conflict with any right vested in such' corporation by its charter.” (Laws of 1855, pp. 186, 187.)
And section 24 of said general law provided for closing up the affairs of all corporations upon the dissolution thereof. (Page 190.) The act incorporating the Paola Town Company, as well as the general incorporation law of 1855, was repealed in 1859; (Laws of 1859, p. 317, § 37; p. 326, § 67; p. 544, § 1.) Whether these repealing statutes had the effect to destroy the corporate existence of the Paola Town Company in 1859, or not, we shall not now decide; for we do not think that it is necessary to make any decision upon the subject ^11 case- But ^ they did not, then said town company ceased to exist as a corporation in 1865. Eor, under the laws of Kansas, as they existed in 1855, when this corporation was created, it was created to exist only for ten years. And if the repeal of all these corporation laws of 1855, by said repealing statutes of 1859, did not have the effect to abolish this corporation, neither did such repeal have the effect to extend the existence of such corporation indefinitely, or beyond the year 1865. The existence of a corporation might be destroyed by the repeal of a statute; but we do not think that thee~istence of a corpo~ ration could be created merely by such appeal. A corporation must find something better than the mere repeal of a statute upon which to found its corporate existence. It certaiuly cannot be claimed for a corporation, whose charter ha& been repealed, and whose full time for which it was created has expired, that such corporation still exists, merely because the statute limiting its existence was repealed at the same time its charter was repealed. Said town company ceased te exist in 18.65, not only as a corporation de jv~re, but also as a corporation de facto. The last meeting held by the company prior to 1859, prior to 1865, and indeed prior to the 4th of July 1867, was held on 29th June 1858. At this meeting the company elected officers for the term of one year. The next meeting was held on the 4th of July 1887. At this meeting the company again elected officers for the term of one year. No other meeting was held subsequent to June 29th 1858, and prior to the commencement of this suit.
But it is claimed by the defendant in error, plaintiff below, that even if said town company did cease to exist as a corporation in 1859, or in 1865, still, that Krntz afterward dealt with the company as a corporation, and recognized its existence as such, and, therefore that he thereby placed himself in such a condition that he must forever afterward be~ estopped from questioning the corporate existence of such company. Now, that Krnt~ dealt with such company, or perhaps more properly speaking recognized its existence, after 1865, is unquestionably true; but whether he recognized the existence of the.company as a corporation, or only as a copartnership, is not definitely shown. The weight of the evidence however would seem to indicate that he did not recognize it as having much power, or force, or legal existence, of any kind. But still we think he so recognized the existence of the company that he would in any proper suit be held to be estopped from denying his responsibility for any property which he ever received from the company. This Krutz admits. He admits that he is bound by all the dealings which he has ever had with the company, or with any agent or supposed agent thereof; but he simply denies that the company was a corporation when this suit was commenced; and he therefore claims that the company had no capacity to sue in this action. He claims that the proper action would be by some one or more of the members against the others for an accounting. The company was organized, as we have already stated, in 1855. Krutz became a member thereof on 27th June 1857, by purchasing one-sixth interest therein. W. E. Wagstaff also became a member thereof at the same time, by purchasing a like interest in the company. At the said meetings of the company held in 1858 and in 1867, Wagstaff was elected agent and secretary of the company — each time for the period of one year. In 1868 Krutz and Wagstaff entered into an arrangement for the purpose of buying up all the stock, and selling and disposing of all the property of the company. In pursuance of this arrangement they did purchase nearly all of said stock, and did dispose of nearly all of said property. This property consisted principally of town lots in. the town or city of Paola. Wagstaff, as the agent of said town company, made all the deeds for all the lots sold and disposed of by himself and by Krutz, and by the other members of the town company. Whether Krutz got more than his share of the property of the town company, or of the proceeds thereof, we cannot tell, for the evidence does not show; and this action was not commenced for the purpose of ascertaining any such thing. This action was brought for a different purpose. It was brought by Wagstaff, as the agent of the town company, in the name of said company, for the purpose of recovering from Krutz all the proceeds supposed to have been received by Krutz for lots conveyed by Wagstaff as agent of the company. This is about all there is of the case. And from this it will be seen, that it would be highly inequitable and unjust to estop Krutz from claiming that said town company no longer has any corporate existence. The only proper remedy for Wagstaff, or for any of the other stockholders of the town company, would be an action for an accounting between all of such stockholders, and to settle and close up all the affairs of the corporation. The company should not recover a judgment against Krutz for all the property, or the proceeds of property, received by him, for in equity and justice nearly one-half of the same belonged to him. Perhaps in equity and justice nothing should be recovered from Krutz either by the company or by any of its members, for perhaps in fact Krutz has not yet received the full amount of his interest in the company. Other members of the company also received lots, and sold lots, and perhaps something is really due from them to him. But this action shuts out all inquiries into these matters. It shuts out all equitable accounting between the members of. the company, and between the company and its members. By it, Krutz must pay the company or its agent for all the lots he has ever received, or sold, although perhaps he has not yet received his full share of the property from the company. This is not right. Except for some rule of public policy, or of equitable estoppel, this action cannot be maintained; tor it is A ' brought in the name of the company, as a corporation, when in fact no such corporation exists. The company really has no capacity to sue as a corporation. It does not claim to sue as a copartnership; but if it did, it could not sue one of its own members, as has been done in this case. Now we know of no ground of public policy, or of equitable estoppel, that would prevent the defendant from setting up in this action the defense that said company has no existence as a corporation. Public policy, and equity, as well as the law, required that this company should cease to exist as a corporation in 1859, or in 1865; that it should close up its affairs as a corporation as speedily as possible, and that each member of the company should then receive his due proportion of the property of the company. And it is not in accordance with either public policy, or equity, or law, that the company should still claim to have a corporate existence, and should now harass its own members by bringing suits against them which it can maintain only in the capacity of a corporation. This suit is not equitable. If Krutz has not received more than his share of the property of the company, he should not be compelled to pay to this supposed corporation, or to its agent, $7,956.04. It would not be equitable to allow this defunct corporation to recover this amount from him, when perhaps upon a final accounting and settlement the same or a greater amount should be paid back to him. The only remedy of the defendant to defeat this inequitable action is to show the fact that the town company as a corporation no longer exists. But if he can be prevented from showing this fact by the interposition of what is supposed to be an equitable estoppel, then an equitable estoppel may be invoked against equity, and to defeat equity. This would be a new use of equitable estoppel. Where it is equitable however to estop a party from denying the existence of a corporation, it is often done, and is usually so done; and it could probably be so done in this case if it were equitable to do so. Sometimes also upon grounds of public policy, and not upon any grounds of equitable estoppel, parties are not allowed to question the existence of a corporation. • Thus, where there is a law under which a corporation may exist, and under which the corporation in question is acting, and claiming to exist, and is a corporation de faeto, and the only ground for claiming that such corporation does not exist is some irregularity in its organization, or some ground for a forfeiture of its charter, private persons, whether members of the supposed corporation or not, are not allowed in collateral proceedings to question the existence of such corporation. But that is not this case. In this case there is no law under which the company is acting, or claiming to exist; and the supposed law under which the company claims to exist was repealed in 1859. Hence, unless equitable estoppel can be invoked, the defendant cannot be precluded from interposing as a defense the non-existence of the plaintiff as a corporation. But as we have already seen, equitable estoppel cannot be invoked in this case, because it would be inequitable to permit it to be done. Usually, before equitable estoppel can be invoked, so’me fraud or overreaching must have intervened. But no fraud or overreaching intervened in this case. Both Krutz and WagstafF acted in the best of faith, so far as is shown. Neither had any intention of defrauding the other, or of defrauding the company, or of defrauding any member thereof. But after acting harmoniously together for a long time, a misunderstanding arose between them, and this action was commenced as a result of such misunderstanding. And it was commenced under a misapprehension as to the status of the town company. The parties commencing it evidently supposed that the town company still existed as a corporation, and therefore that this action was the only proper remedy. They evidently did not think that this action would do Mr. Krutz the injustice that it must necessarily do him if it should be sustained. The invoking of the aid of estoppel was evidently an afterthought. .
The judgment must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover damages for stock killed. Judgment was rendered by the justice of the peace in favor of the plaintiff. This judgment was, as to all matters now in controversy, affirmed by the district court, upon proceedings in error. And to reverse this judgment of affirmance, this petition in error has been filed in this court.
No question under the stock-killing law of 1874 arises in this case, as the cattle were killed at a public crossing. The bill of particulars alleged that they were killed through the negligence of the defendant. And now it is objected that it did not allege that the negligence of the company was “ gross.” Clearly such allegation was unnecessary. Ordinary negligence rendered the company liable, and an allegation of gross negligence would be superfluous.
Again, it is objected that the testimony was insufficient to sustain the finding and judgment. Waiving all objection as to the lack of a motion for a new trial, it seems to us that if every step had been taken to have this question properly presented the judgment must be sustained. There was testimony showing that no whistle was sounded, or other alarm given, until the train was within twenty rods of the crossing. This was negligence. (Gen. Stat., p. 206, § 60; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) It is doubtful whether any negligence could be imputed to the plaintiff — whether he did not use all the care chargeable upon one driving cattle along a public road. But whether he was guilty of any negligence or not, was, under the circumstances of this case, principally a question of fact, and the finding of the justice, like the verdict of a jury, settles such questions.
We see nothing in the record which would authorize us to disturb the judgment, and it will be affirmed.
Vaeentine, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
-This was a proceeding in the district court of Atchison county, to amerce the plaintiff in error as sheriff of Jewell county, for negligence in respect to an execution. The testimony was all in writing, and was somewhat conflicting. These facts are however undisputed: On 29th September 1875, execution was issued from the Atchison county district court, which, on 4th October 1875, was received by the sheriff. At that time no other process against the defendant on the judgment was in the sheriff’s hands. Shortly thereafter orders of attachment against said defendant were issued from the district court of Jewell county and placed in the sheriff’s hands, and by him leviéd upon a stock of goods. The loss of priority was, as claimed by the sheriff, by reason of the attorney’s direction not to levy the execution until further orders. The goods were by order of the judge sold, and the proceeds amounted to about $1,400, several times the amount of defendant-in-error’s judgment. The execution was returned 26th November 1875, showing the receipt of an indemnifying bond, and a levy subject to the levy under the orders of attachment. An alias execution was issued on the 11th of January 1876, which reached the sheriff’s hands on January 13th. Motions were made to dissolve the attachments, and these motions were sustained, to take effect January 14th, at which time the sheriff was directed to return the money in his hands, the proceeds of said sale, to the judgment-debtor. The sheriff returned upon this last execution that he had collected three dollars, and no more.
Pending the motion to amerce, the sheriff made application for leave to correct the return on the first execution so as top show that he had demanded an indemnifying bond an(j jjad n0£ recejve(j 0ne, anc| therefore had refused to make any levy. This application was refused. In this refusal it is alleged that the court erred. But we,think not, for these reasons: When an officer makes a return upon process, it is, to say the least, as against him prima fade correct, and he should not be permitted to amend it until he makes it clear that it was erroneous. This, true in all cases, is especially true when the effect of the return as first made is a liability upon him, and the amendment would operate to relieve him from liability. And still more true, when the party in whose favor the return was made, resting upon the faith of the return, would suffer loss by the amendment. Now in the case at bar the return was made in November 1875, and the application to amend in May 1876. The effect of the first return was to cast a liability upon the sheriff; of the proposed amendment, to relieve him therefrom. The plaintiff in the execution might well rest upon the first return; while if it had been as in the proposed amendment, he would naturally have taken other steps to collect his debt. Upon the testimony it would seem probable that the sheriff did not receive any indemnifying bond, but also probable that one was prepared and forwarded from Atchison to Jewell county, to be delivered to him in case he demanded one, and probabl.e that both before and after the issue of the execution he stated to plaintiff’s attorney that he did not desire an indemnifying bond, but would be satisfied if they would agree to see him through and save him harmless, which they did. Under those circumstances we cannot hold that the district court erred in refusing to permit the amendment.
Did the court err in holding the sheriff liable? We think not. Plere again we are met by conflicting testimony. Two witnesses testify to the effect, that on 13th Januaiy ig70? when the last execution was placed in his hands he stated that he had only paid out $290 of the proceeds of the sale, which would leave an ample amount to cover plaintiff’s execution, while the sheriff and another witness testify that some five hundred dollars were paid over to the attorney for Harrington about three hours before the execution reached him. Where the testimony is thus conflicting, we think the district court properly rested on the presumption that the sheriff obeyed the orders of the court, rather than the wishes of .the parties. The court dissolved the attachment, and ordered the money to be returned on the 14th. The duty of the officer was to obey that order. The presumption is that he did. And the district court might well rest upon this presumption in the face of conflicting testimony. We think it properly held that the- sheriff had moneys of the defendant in his possession which it was his duty to apply on the last execution when he received it. Of course, this brings the case within the very letter of the statute. There was a neglect to execute the writ.
It may be, and doubtless is true, as counsel claim, that this proceeding is severe and summary. It may be that it was hard oh the sheriff to be compelled to litigate this question, two hundred miles away from home, and upon written evidence. But the law has placed this power of amercement in the hands of the court, so that every sheriff throughout the state may remember that there is no safety in any departure from the strict letter of the law, or the very terms of any order of the court. And we cannot see in this case that the district court deprived the officer of any testimony he had or claimed to have, or failed to give him every opportunity for making a full defense to the motion. Upon the testimony thus presented we see, as we have stated, no error; and the order of the district court must be affirmed.
"Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the case. | [
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The opinion of the court was delivered by
Bkewek, J.:
Action of injunction, to restrain defendant, as a public officer, from tearing down fences for the purpose of opening a public highway through plaintiff’s land, where in fact no highway had ever been established. The petition alleges ownership by plaintiff, the non-existence of a highway, and the acts and threatened acts of the officer. The question arises on demurrer; and it is objected that the wrong is a mere trespass, that the trespasser is not alleged to be insolvent, and that a general allegation that the threatened damages are irreparable is insufficient, and that it must be shown in what respect they will be irreparable. We see no error in the ruling of the district court. A mere trespass will not be restrained; (Gulf Railroad Co. v. Wheaton, 7 Kas. 232;) but where the trespass, if permitted to continue, will ripen into an easement, there injunction will lie; Kirkendall v. Hunt, 4 Kas. 521. As is said in Willard’s Equity Juris., p. 381, “While for a mere naked trespass, when the remedy at law is full and adequate, equity will not interpose, yet for the purpose of quieting a possession, or preventing a multiplicity of actions, or where the value of the inheritance is in jeopardy, or irreparable mischief is threatened in relation either to mines, quarries, or woodlands, the court will interfere by injunction, even against a person acting under a claim of right.”
Here the act sought to be enjoined is not a mere naked trespass. It disturbs the plaintiff’s possession, and will, if permitted to continue, ripen into an easement. User will establish a highway, and the officer is attempting to create the user. The law will protect a land-owner in his possession against any unauthorized interference therewith. See as cases in point, among a multitude, McArthur v. Kelley, 5 Ohio, 139; Morehead v. L. M. Rld. Co., 17 Ohio, 340; Anderson v. Comm’rs Hamilton Co., 12 Ohio St. 642; Bohlman v. G. B. & C. Rld. Co., 30 Wis. 105; Deidrichs v. N. & C. Rld. Co., 33 Wis. 219; Weigel v. Walsh, 45 Mo. 560; Carpenter v. Grisham, 59 Mo. 247. The threatened loss of his land, is the irreparable injury, and it matters not how solvent he may be who seeks to take it or to transfer it to the public use, the courts will protect the possession of the owner.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action against the sureties on the official bond of U. B. Warren, late treasurer of Chase county. Judgment was rendered in the court below in favor of the plaintiff and against the defendants for $613, and costs, and the defendants now as plaintiffs in error bring the case to this court. Plaintiffs in error raise two principal questions in this court. First, they claim that the finding and judgment of the court below are not sustained by sufficient evidence; and second, they claim that the court below erred in excluding certain evidence. We shall consider these questions in their order.
I. We think the finding and judgment of the court below are amply sustained by sufficient evidence. Everything necessary to enable the plaintiff to recover, except merely the alleged breach of said bond, was admitted by the parties. And many of the facts tending to establish said alleged breach, were also admitted. Thus, it was admitted that the treasurer received the money for which this suit was brought; that he never paid it out to any person authorized to receive it; that he died 12th February 1872; that A. S. Howard was his immediate successor in office; that Howard qualified, and took possession of the office,- about the 1st of March 1872; that at that time there was nothing in the. treasurer’s office showing or tending to show that Warren had ever had or received said money; and that the records of the office then showed that Warren was behind in the various funds of his office about $11,000 more than Howard ever received. The evidence showed that Howard received only $1,400 in money as coming from his predecessor. There was nothing to show to what fund or funds even this belonged; but Howard apportioned it to the various funds of the county, township, and school districts. We think the foregoing facts make out a prima faoie case in favor of the plaintiff. Of course, it would be presumed, in the absence of anything to the contrary, that when Warren died everything belonging to the office, money and all, was in the office. But the contrary was made sadly to appear in the present case. More than $11,000 in money was missing. The treasurer’s records showed that that amount was gone, and the records were wholly silent as to the money how sued for in this action. As to the $1,400 received by Howard, it will be presumed, as there was nothing shown to the contrary, that it belonged to some fund or funds to which the records showed money belonged; and it will not be presumed that it belonged to some fund concerning which the records were wholly silent. The treasurer would not be as likely to" allow money to be wrongfully taken from the treasury where the records showed that he had the money in his possession, as where the records did not show any such thing. It will also be presumed, as nothing appears to the contrary, that Howard apportioned said $1,400 correctly. The defendants certainly have no right to complain that he did not. For first, they are liable for the whole amount for which their principal, Warren, may ultimately be found to be in default, to whatever fund or funds such amount may belong; and second, it was the fault of their principal which has caused all the trouble and difficulty in making a correct apportionment. Even if this apportionment were incorrect, it would really make but little difference to the defendants, and no difference which any rules of equity or justice could recognize; and they should not b.e allowed to get an unjust advantage of others merely because of the fault or wrongdoing of their principal. It would be strange if a county treasurer, by creating uncertainties as to which of the various funds of his office a certain small sum of money belonged, could thereby make such small sum extinguish all the liabilities of his sureties for any deficiencies which might be created at any time in any or all of such funds. It would be strange if, in such a case, the sureties could say, when sued for a deficiency in one of such funds, that said small sum of money might have belonged to that fund, and. then when sued for a deficiency in another of such funds that it might have belonged to that — and so on, through all the various funds — thereby defeating all actions which might be brought against them for deficiencies in any of such funds, and thereby making such small sum of money (say $1,400) pay a vast number of deficiencies amounting in the aggregate, it might be, to many thousands of dollars. Said $1,400 received by Howard has already extinguished $1,400 of the liability of the defendants, and they now desire that it shall extinguish $613 more, (the amount for which judgment was rendered against them in this case;) and if they should be again sued for a deficiency in some other fund they would then of course want to extinguish still more of their liability, and so on until it should extinguish the whole of their liability for said $11,000 still remaining unpaid.
It will also be presumed from the facts in this case that Warren converted the money, for which this suit is brought, to his own use, as soon as he received it. The law requires that a county “treasurer shall keep a just and true account of the- receipts and expenditures of all moneys which shall come into his hands by virtue of his office, in a book or books to be kept by him for that purpose.” (Gen. Stat. 269, § 67.) Warren never kept any such account of the money sued for in this case. He never recognized any such money (so far as his records show) as belonging to his office, but presumably put it into his pocket as soon as he received it, and used it as his own.
There was a great deal of other evidence introduced in this case tending to prove the plaintiff’s case, but we have not thought it necessary to state it.
The plaintiffs introduced two of the administrators of the estate of said Warren, as witnesses, to prove that they did not receive said money; but both parties failed to introduce as a witness one Mrs. Margaret Kellogg, who had been previously appointed as an administratrix, to act in connection with one F. B. Hunt, administrator, in settling said estate. The defendants therefore now claim that the plaintiff failed to make out a case because, as they say, Mrs. Kellogg might have received said money. Now there was not the slightest evidence introduced tending to show that Mrs. Kellogg ever received any money or property belonging to the county treasurer’s office. And it will not be presumed that she did. She had no right to receive any such money or property, or even to meddle in any manner with the county treasurer’s office. The funds in the county treasurer’s office belong to the office, and not to the administrator of the estate of the deceased treasurer. The treasurer himself, before his death, did not own such funds in his individual capacity, and had no right to use them in any manner except as provided by law. In the absence of evidence it will be presumed that Mrs. Kellogg did not meddle with the county treasurer’s office. And therefore it was unnecessary to introduce her as a witness.
II. We shall now proceed to consider the second question raised' by the defendants below. The money sued for in this action was money deposited by the Atchison, Topeka & Santa Fé Railroad Company with said U. B. Warren, treasurer of Chase county, for J. R. Blackshire, to pay for damages accruing by reason of certain condemnation proceedings. (For further facts with reference to this money, see A. T. & S. F. Rld. Co. v. Blackshire, 10 Kas. 477; Blackshire v. A. T. & S. F. Rld. Co., 13 Kas. 514.) Said Á. S. Howard was introduced as a witness by the plaintiff below. He testified that, as the successor in office of said "Warren, he had not received .any such money. Afterward, on cross-examination, he testified that he had received $1,40.0 from Brockett, or Hunt, as money belonging to the treasurer’s office. The defendants then put the following questions to the witness, to-wit:
“State what, if any, fund or funds the parties paying this .sum of money to you told you it belonged to ? ”
“State, at the time this money was paid to you, what if anything was said to you by the person or persons so paying it, in reference to this money?”
Both of these questions were objected to by the plaintiff below, on the grounds that the evidence they called for was ■“incompetent, irrelevant-and immaterial; ” and the objections were sustained, and the evidence excluded. It was afterward shown that this money was received from F. B. Hunt, the first administrator of the estate of said Warren; that Howard did not know to what fund or funds it belonged; and in answer to a question as to whether he knew of his own knowledge to what fund this money belonged, he stated that he “could never find out,” but thought it was “not condemnation money.” He apportioned it, as we have already stated, to the various county, township, and school-district funds. Hunt was also introduced as a witness, and testified that he paid said money to Howard; but he did not state whether he knew to what fund or funds it belonged, or not. We think the court below erred in sustaining said objection, and in excluding said evidence; but we do not think that the error was material or substantial under all the circumstances of this case. It was error to exclude said evidence, because, as we think, it was a legitimate subject of cross-examination. Howard had already testified, on his direct examination, that he bad not received any of said condemnation money. And' now it was proposed to show on cross-examination that he had, or at least, that he might have done so. It was admitted that he had received over $1,400 belonging to the county-treasurer’s office. Said condemnation money, when paid to Warren, amounted to only $577.52. Now may not a part of said $1,400 have been said condemnation money, or a part1 thereof? Howard, in substance, said that it was not. Now, how did he know? What,was said to him, when he received it? May not Hunt when he paid it to Howard have said, “Here is $1,400 belonging to the county treasurer’s office; $577.52 of which is condemnation money, paid by the Atchison, Topeka & Santa Fé Railroad Company to U. JB. Warren, late county treasurer, in trust for the.use of J. R. Blackshire. I found it in the county treasurer’s office, in a separate package, labeled as such condemnation money; I received it as such, and now pay it to you as such.” Such declarations of Hunt, being cotemporaneous with the payment of said money, and tending to explain and qualify the same, being a part of the res gesta, would .have been competent evidence, not of themselves sufficient to prove that the facts which they mention were true — not of themselves sufficient to prove that any part of said $1,400 was “condemnation money”— but as notice of these facts to Ploward if they had been otherwise proved to exist, or as corroborating evidence, if other-evidence had been introduced tending to prove these facts, oías evidence tending to identify this money, if it had been shown by other evidence that such money was still in existence. But there was no evidence tending to prove any of said facts, or tending to show that said money was still in existence. And the evidence that said money was not still in existence, and that Warren had converted it to his own use in his lifetime, was so strong, that no evidence of mere statements made by Hunt could have the effect to overturn the prima facie case made out by the plaintiff below. As-the defendants are liable for the whole of said $11,000, as Howard apportioned said $1,400 the best he knew, and as there is no evidence tending to show that said apportionment is erroneous, no evidence of mere statements of Hunt can overturn such apportionment. For these reasons we think the error of the court below in excluding' said evidence, is immaterial.
The doctrine of application of payments, as between debtor and creditor, probably has no application to this case. But as to such doctrine, see Shellabarger v. Binns, 18 Kas. 345.
We decide this case upon the theory that the sureties of Warren, as treasurer, were in effect insurers, as to the safekeeping, in the proper place, of all moneys intrusted to him as treasurer, until his death, and that then they ceased to be such insurers. And therefore, if Warren, as treasurer, did not have said condemnation money when he died, the sureties are liable; but if he did have it at that time, then they are not liable. Now as he did not have it at that time we must hold that the sureties are liable.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Jackson, J.:
The plaintiff-appellee brought an action for $110,-000.00 against the defendánt-appellant in the trial court based upon the writing set out below:
“R. L. Evans & Son
“Pay Line Holsteins
“R.F.D. #2
“Hutchinson, Kansas
“May 31, .1953
“I owe C. D. Evans $50,000.00 on the Paul Woolfolk loan at Towner, Colo., and $60,000.00 on Gebhardt & Simmons loan at Salina, Kansas.
Signed
“R.' L. Evans.”
In the petition plaintiff alleged that the above instrument constituted a “writing of indebtedness made, executed and delivered” by the defendant. The action was begun on May 31, 1958, five years from the date of the above writing.
The defendant first demurred to the petition, and after the demurrer had been overruled, answered setting up the affirmative defenses, which may be summarized as: 1. Lack of consideration; 2. the obligation had been subsequently canceled by the obligee; 3. the claim that the indebtedness was barred by the statute of limitations.
These defenses were put in issue by plaintiff’s reply.
A jury trial opened with the plaintiff introducing the written contract sued upon and resting. To this the defendant again demurred, and the court overruled the demurrer. The court further ruled that the defendant had the burden of proof in establishing his defenses and should proceed with his evidence.
The defendant introduced little evidence upon his part, but seemed to admit that at the time of the signing of the written instrument sued upon, he owed the antecedent debts and had originally received the money thereon. No evidence was admitted over the objections of plaintiff as to the question of cancellation of the instrument. At the close of defendant’s evidence, plaintiff demurred thereto on the ground that defendant had failed to prove his defenses. The court discharged the jury and took the case under advisement, apparently to consider the demurrer to the evi dence by both parties. Within due time, the trial court entered judgment for plaintiff, and defendant has appealed.
Plaintiff has raised a preliminary matter by a motion to dismiss based upon the ground that defendant has failed to include in the notice of appeal the order overruling the motion for new trial. The books are full of cases upon this question, and it is clear that such an appeal fails to raise trial errors but that demurrers to the evidence and certain other matters raising only questions of law may be reviewed, if specified in the notice of appeal and specification of errors. Attention is directed to the recent case of Marshall v. Bailey, 183 Kan. 310, 327 P. 2d 1034, and other authorities cited.
Without laboring the matter, it would seem the only questions raised in this appeal are whether the court erred in passing upon the two demurrers to the evidence. That question would seem to turn upon the nature of the written instrument set out at the beginning of this opinion.
The learned trial judge in a memorandum held that the written instrument in this case amounted substantially to a nonnegotiable note; that the plaintiff might base his cause of action thereon and that the action begun within five years from the making of the note was not barred by the statute of limitations.
The trial court cited Miller v. Jones, 137 Neb. 605, 290 N. W. 467, 127 A. L. R. 646; and the annotation in 127 A. L. R. 650 as being of rather controlling authority. We agree with the trial court.
In the second paragraph of the syllabus of Miller v. Jones, supra, it is said:
“An instrument, based upon a business transaction, wherein A states, 'I owe B $1,300/ contains an implied valid and legally sufficient consideration and promise to pay, and is an unconditional admission of an existing debt which obligates A to pay B the stated amount.”
It will be noted that the court in the Miller case referred to two sections of the Nebraska statutes which seem to correspond quite closely with our own statutes G. S. 1949,16-107 and 60-740.
In the first part of the annotation in A. L. R., supra, the annotator closes the comment thereon as follows:
“Practically all of the cases found upon the subject under annotation and cited herein uphold the validity and enforceability of an instrument, supported by a sufficient consideration, which states that a specified sum is owed, without expressly promising to pay it.”
In discussing actions upon written accounts stated, this court has expressed much of the same reasoning as found in Miller v. Jones, supra, see, Dolman & Son v. Construction Co., 103 Kan. 635, 176 Pac. 145; and Dettmer v. Fulls, 122 Kan. 98, 251 Pac. 396.
Likewise the-case of Flirt v. Bucklin State Bank, 153 Kan. 194,109 P. 2d 171, would seem to be in accord with the views expressed above.
In Douglass v. Sargent & Bro., 32 Kan. 413, 4 Pac. 861, the court considered a writing quite like the one involved in this case. But the action was barred not having been begun until more than ten • years after the making of the instrument.
It would seem that the cases of Morton v. Leslie, 150 Kan. 213, 92 P. 2d 90; and Fairbanks v. Koelling, 167 Kan. 361, 205 P. 2d 930, are quite distinguishable from-the other cases. In neither of these cases did the written memorandum create a new cause of action, and any action begun had to be brought upon the original obligation. A study of the writings involved in each of the cases makes this point quite clear.
We have carefully considered all of the other arguments found in appellant’s brief seeking to show error in the trial court’s ruling on the demurrers to the evidence, and fail to see any indication of error. Another way of summing up the case would be to recall that the defendant had the burden of showing lack of consideration and further that the cause was barred by the statute of limitations. This he failed to do, and in fact almost proved the opposite of both questions.
No error having been made to appear in the rulings of the trial court, its judgment should be affirmed. It is hereby so ordered. | [
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|
The opinion of the court was delivered by
Schroedeb, J.:
This is an action to foreclose a mechanic’s lien. The appeal is from a decision of the trial court amending the lien statement and foreclosing the lien.
The principal question is whether on the facts and circumstances herein presented a mechanic’s lien statement may be amended to change the names of the owners of the property after the statutory time within which the claimant must file his lien statement has expired.
Without a detailed report of the proceedings in this action, it may be said the appellants have protected their rights in the trial court on the principal question at every point in the proceedings.
The lien statement filed by the plaintiff on the 5th day of March, 1956, with the clerk of the district court of Douglas County was prepared and signed by Harold Kueker, Jr., manager of the Logan-Moore Lumber Company, plaintiff below, and the format used in preparation of the lien statement is identical with the one quoted in Logan-Moore Lumber Co. v. Foley, 181 Kan. 984, 317 P. 2d 467. The property described in the lien statement is Lot 6, Block 8, Prairie Acres Subdivision of Park Hill Addition to the City of Lawrence, Kansas. The total amount claimed is $3,074.83 with interest from and after January 5, 1956, and the paragraphs in the lien statement material to a decision herein read as follows;
“Second: That the name of the owner of said premises is James W. and Sara U. Black his wife.
“Sixth: That said material was furnished under a certain contract and running account, made and entered into with the undersigned, by said owner, of the above described land.
“Seventh: That said material, on account of which this lien is claimed, was furnished at intervals as shown by said statement of items hereto attached and marked Exhibit ‘A’ from and including the 10th day of June, 1955 and the 5th day of January, 1956.
“Ninth: That the last item of said account was furnished by the claimant to the said owner on the 5th day of January, 1956.
“Tenth: That the items of merchandise furnished as shown by Exhibit ‘A’ were charged for at reasonable prices and the same were furnished at the instance and request of said owner.” (Emphasis added.)
Immediately upon the filing of the above lien statement the plaintiff caused a letter to be mailed to the owners named in the lien statement as follows:
“LOGAN-MOORE LUMBER COMPANY
627 Massachusetts St. Phone 113
Lawrence, Kansas
March 5, 1956
“Mr. James Black
241 Nebraska
Lawrence, Kansas
Dear Mr. Black:
“We have as of this date filed a ‘Mechanic’s Lien’ on your property. The amount of the hen being $3074.83. This is the amount due for material purchased by Mr. Leland Lewis for the construction of your residence.
“Mr. Lewis was in our office today and he stated he would be able to pay this bill within 30 days. However due to company policy we are not allowed to let our lien time expire. I am sure Mr. Lewis will be able to take care of this matter if given a little more time.
Sincerely yours,
Harold Kueker, Jr.”
At this point it should be stated Leland Lewis was the builder of the house upon the lot described in the lien statement and is the same person who contracted to build the dwelling house in the Foley case. In that case the decision turned upon an attempt to amend the lien statement to name Lewis as the contractor who entered into a contract with the owners (the Foleys) for construction of a dwelling house and improvements.
The trial court in a detailed memorandum decision set forth the chronology of events leading to and including the trial of the case. It designated these as its findings and based its conclusions upon them.
The trial court found that sometime prior to May 25, 1955, James W. Black and his wife, Sara U. Black, selected the lot in question as the site for a home which they desired to have built. The lot was then owned by Dolph Simons. At this time Leland Lewis was engaged in the business of constructing houses under contract.
On May 25, 1955, Lewis and his wife, Edith, entered into a contract with the Blacks by the terms of which Lewis agreed to construct a house on the lot according to plans and specifications approved by the Blacks and to sell the lot and house to the Blacks for the sum of $22,000. The Blacks agreed to pay $2,500 in escrow to the Gill Agency as a down payment and authorize the escrow agent to advance said down payment to Lewis for the purchase price of the lot. The Blacks also agreed to determine to the best of their abilities that a loan of $16,500, secured by a mortgage on the lot and the house to be built, could be obtained prior to commencement of construction of the house. Lewis agreed to place a deed to the lot in escrow with the Gill Agency for delivery to the Blacks upon completion of the contract.
On June 2, 1955, the Blacks deposited a $2,500 payment in escrow as agreed, and the escrow agent made such money available to Lewis for the purchase of the lot as provided in the contract.
On June 8,1955, Simons and his wife deeded the lot to Lewis and his wife, and on the same date Lewis and his wife executed a mortgage thereon in the sum of $15,000 to the Capitol Federal Savings and Loan Association, the mortgagee and one of the appellees herein.
On June 10,1955, the Logan-Moore Lumber Company, the plaintiff below and one of the appellees herein, under contract with Lewis began supplying building materials for the construction of the house which Leiois had contracted to build and sell to the Blacks. About this time and during the time Lewis was building the house in question, the Blacks called at the yard of the lumber company and from time to time made selections of certain materials which Lewis ordered and used in the construction of the house.
On June 22, 1955, Lewis and his wife executed a deed covering the lot to the Blacks, which was made to correct an error in a previous deed executed on June 8, 1955. The Júne 22nd deed was placed in escrow with the Gill Agency pursuant to the May 25th contract.
On November 7, 1955, the Blacks began moving into the house and the move was completed the following day, when an officer of the mortgagee made a routine inspection of the progress of the construction and found the house being built on the lot to be about 90 per cent completed.
On November 29, 1955, the lumber company made its last delivery of materials to the lot under the contract it had with Lewis.
On December 10, 1955, Lewis was required to begin making monthly payments according to the terms of the note and mortgage which he had given to the mortgagee. On this date the contract between Lewis and the Blacks was closed at the local office of the mortgagee, to which office the Gill Agency had made delivery of the deed executed by Lewis and his wife on the 22nd day of June, 1955. This deed was recorded on December 16, 1955. The Blacks assumed the amount of $14,000 which was still due on the mortgage after a payment thereon of $1,000 made on the closing date, and on December 12, 1955, the mortgagee released Lewis and his wife from liability on said note and mortgage.
On March 5, 1956, the lumber company filed a mechanic’s lien against the property in question in which it named the Blacks as the owners of the property and stated that the materials for which payment had not been made were supplied under contract with the Blacks.
On April 14, 1956, Lewis filed a petition in bankruptcy.
On July 2,. 1956, the lumber company brought this action to foreclose its mechanic’s lien and its petition requested leave to amend its lien statement to show that Lewis was the owner of the property at the time the lumber company contracted to supply materials and to show that Lewis continued to be the owner during the time all the items described in the lien statement were furnished except for the last item, and this notwithstanding the fact that the Blacks were the owners at the time the lien statement was filed.
On November 27,1956, the court reserved its ruling on the lumber company’s pending motion to amend its lien statement until the trial of the case, relying upon Lumber Co. v. Blanch, 107 Kan. 459, 462, 192 Pac. 742. (The lumber company filed- a motion October 2, 1956, to amend the lien statement alleging Lewis was the contractor who entered into a contract with the Blacks as owners. This motion was supported by an argument .of the lumber company on October 5th. The court took the matter under advisement and overruled .the motion at the lumber company’s request on November 9, 1956. [See, Logan-Moore Lumber Co. v. Foley, supra.] The motion upon which the court reserved ruling November 27th was filed October 17, 1956, seeking to amend the lien statement as alleged in the petition.)
On January 4, 1957, the mortgagee filed its answer and cross petition, in which it alleged its mortgage was a first and prior lien on the lot in question. It stated that the payments on the mortgage were not in default, and in the event the court should find the lumber company had a valid lien it requested that its mortgage be declared a first and prior lien on the real estate in question, and further that if the lien be foreclosed, the real estate be sold subject to the lien created by the mortgage. ' (The parties concede that the mortgagee has a first and prior lien, and that the foregoing, contrary to the trial court’s finding, was the request of the mortgagee.)
On February 8, 1957, a certified copy of the discharge in bankruptcy of Leland Lewis was filed, the date of such discharge being August 28, 1956.
On July 2, 1958, the Blacks answered placing in issue the allegations of the lumber company’s petition’as amended. (Relevant to this appeal is a denial of the legal sufficiency of the lien filed by the lumber company.)
The conclusions of the trial court insofar as they are material to the issues herein are:
“1. The vendor [Lewis] could and did subject the property in question to a mechanic’s lien. (See: Hannon v. Handy [Conn.], 47 A. L. R. 259 and note beginning at p. 263).
“2. The lienor’s mechanic’s lien statement is amended as requested in its petition and as amended is a valid lien against the property in question in the sum . . . [found to be due] and as such should be foreclosed . . .”
It is clear that Lewis and his wife, as owners, could subject the real estate in question to a mechanic’s lien in favor of the lumber company prior to a conveyance .of the property to the Blacks under the terms of the contract. It was held in Hannan v. Handy, 104 Conn. 653, 134 At. 71, 47 A. L. R. 259, cited by the trial court, that where an owner of real estate contracts to sell.it to another and build a house on it for a single price, he continues to be the owner until the deed is given, so that he may charge the property with mechanics’ liens without the necessity of notice to the person intending to purchase the property.
A careful study of the contract entered into by Lewis and his wife with the Blacks on the 25th day of May, 1955, leads us to conclude the trial court correctly interpreted the contract as calling for a total price of $22,000, including the lot and the dwelling house constructed thereon. This conclusion is further fortified by the findings of the trial court, which are supported by evidence, that title to the lot in question was in Lewis and his wife at the time materials were supplied by the lumber company up to and including November 29, 1955, when the last materials were furnished under the contract with Lewis.
In brief, the proposition may be stated: Materials were supplied by the lumber company to Lewis nnd his wife as owners of real property for the purpose of constructing a dwelling thereon, but prior to the filing of the lien statement by the lumber company Lewis and his wife conveyed the property to the Blacks who then became the owners thereof. Upon filing the lien statement the Blacks were named as the owners with whom the lumber company contracted to supply the materials, and the question is whether the lien statement may be amended to substitute the names of Lewis and his wife, as owners, for the names of the Blacks after the expiration of the time for filing the lien.
Pertinent sections of our statute may be summarized or quoted as follows:
G. S. 1949, 60-1401, provides that any person who shall under a contract with the owner, or someone representing him, of any tract of land perform labor or furnish material for the erection of a building on the real property shall have a lien thereon for the value of such labor and material.
G. S. 1949, 60-1402, provides that anyone claiming a lien under the preceding section of the statute shall file his lien statement setting forth as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien, within four months after the date upon which material was last furnished under the contract.
The lumber company in support of its contention that it was entitled to amend the lien statement, relies upon G. S. 1949, 60-1405, which provides in part:
. . in case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the' amount claimed.” (Emphasis added.)
The foregoing section of the statute has recently been before this court in Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329; and in Logan-Moore Lumber Co. v. Foley, supra. Reference is made to these decisions and further discussion herein will proceed on the assumption the reader is familiar with these opinions.
The appellants contend the effect of permitting the lumber company to amend its lien statement to change the names of the owners is to permit the lien claimant to perfect a lien eleven months after material is last furnished. They rely upon 60-1405, supra, and upon G. S. 1949, 60-759, which provides:
“The court or judge may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court or judge may permit the same to be made conformable thereto by amendment.” (Emphasis added.)
It is clear that a pleading, though filed in time against one party under the foregoing statute, cannot be amended after the expiration of the statute of limitations to name another party as a defendant. (Anderson v. Railroad Co., 71 Kan. 453, 80 Pac. 946; Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167; Challis v. Hartloff, 133 Kan. 221, 299 Pac. 586; see, also, Garney v. Railroad Co., 112 Kan. 823, 212 Pac. 659; Lukens v. Payne, 118 Kan. 547, 235 Pac. 841; and Commercial Nat’l Bank v. Tucker, 123 Kan. 214, 254 Pac. 1034.)
Can the authority of a court to amend a lien statement be greater than its authority to amend a petition?
A mechanic’s lien is a creature of statute. In order to establish or enforce a lien the statute must be strictly pursued. (McHenry v. McHenry, 150 Kan. 498, 95 P. 2d 261; Clark Lumber Co. v. Passig, 184 Kan. 667, 339 P. 2d 280; and cases cited in these authorities.)
While the lumber company would delete the quoted words emphasized in 60-1405, supra, and rely on the right to amend a lien statement in furtherance of justice, except as to the amount claimed, we think it important that this section of the statute says the lien statement may be amended in the furtherance of justice as pleadings may be amended in any matter under the civil code.
The law gives a lien claimant four months in which to file a lien statement, so as to bind the property and create a lien thereon. But a claimant’s lien must stand or fall with the lien on file at the expiration of the four months. This period is a limitation. Just as a petition cannot be amended to state a cause of action for the first time after the statute of limitations has run on the cause of action, a lien statement cannot be amended to create a valid lien for the first time after the expiration of the four months’ limitation period within which to file a valid lien, language in Cooke v. Luscombe, 132 Kan. 147, 294 Pac. 849, at page 149, attributed to the holding in Lumber Co. v. Blanch, supra, to the contrary notwithstanding. These decisions will be considered later in this opinion. (See, Logan-Moore Lumber Co. v. Foley, supra.)
The authority to correct a mistake in the name of a party in 60-759, supra, cannot be construed to mean a substitution of parties after the expiration of the statutory period. If pleadings, though filed in time against one party, cannot be amended after the expiration of the statute of limitations to substitute the name of another party as a defendant, it follows that a lien statement cannot be amended to substitute the names of entirely different owners, after the expiration of the four months’ limitation period within which to file the lien statement.
A review of the cases under 60-1405, where the amendment of lien statements has been permitted to change the names of the owners, reveals facts which show identity of ownership. None of them involves a. separate and distinct entity of ownership as we have in the instant case.
Thus, in Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724, the subcontractor’s lien statement named the owner as “S. D. Collin-son,” the notice of its filing gave the name as “Mrs. S. D. Collinson,” and the petition alleged the property belonged to “Amanda E. Collinson” and that she was the same person as the one named in the notice. The court permitted the lien statement to be amended by inserting “Mrs.” before the name in the subcontractor’s statement. The facts disclosed her husband had been dead for fifteen years and she' carried on business in the name of Mrs. S. D. Collinson. The court said whether or not the amendment availed anything, no material error was committed in allowing it to be made.
In Cooke v. Luscombe, supra, the petition stated that at the time the lien statement was filed the record title to the real estate was in Thomas A. Lillis, who had been Bishop of the Diocese. It was later discovered that the title was really in John T. Ward, who had succeeded Bishop Lillis. Notice of the filing of the lien was served upon John T. Ward, record title holder. The amendment was permitted. In this case it was the Bishop of the Diocese who held title to the property. The individuals named represented the same identity of ownership, one succeeded the other as Bishop of the Diocese. The petition recited the facts and requested leave to amend by inserting the name of one for the other as owner of the real estate. The court said:
“With these allegations in the petition we think it was proper under the authority of R. S. 60-1405 and Lumber Company v. Blanch, 107 Kan. 459, 192 Pac. 742, for the court to permit the amendment prayed for in the petition, and that when so amended the statement created a valid lien.” (p. 149.)
On the facts presented the last clause represents an overstatement of the law. A valid lien was not created by the amendment. The amendment clarified the identity of ownership of the property upon which a valid lien had already been created.
In Lumber Co. v. Blanch, supra, the lien statement named a husband, W. F. Conner, as the owner of all the property involved. The petition alleged that the husband owned certain of the lots; his wife, Emma S. Conner, other of the lots; and as to the balance, ownership was in both husband and wife. The petition after setting out the errors in the lien statement asked for amendment to correct the mistakes. A question was also presented whether the mechanic’s lien covered adjacent lots on opposite sides of an alley. The trial court was reversed and the cause remanded for trial with directions to permit the amendment of the lien statement if the evidence should warrant such amendment. It was stated in the opinion:
“. . . In furtherance of justice the lien statement should have been amended so as to correctly set out the' name of the owner of the property. . . . Without an amendment of the lien statement, the petition ■ as first filed stated a cause of action against W. F. Conner and Emma S. Conner, but that cause of action might have been ineffectual because of the errors in the lien statement. That could not be ascertained until after the introduction of evidence, or after admissions made in the trial statement which would have taken the place of evidence. With an amendment of the statement in the manner requested by the petition as first filed, and by the amendments thereto as afterward filed, a cause of action was stated which, if judgment had been rendered thereon, could have been enforced against all the property.” (p. 462.) (Emphasis added.)
There is an identity between husband and wife under the mechanic’s lien statutes which does not apply to other persons. Either spouse may create a lien on the property of the other, even without the owner’s knowledge. (Garrett v. Loftus, 82 Kan. 556, 109 Pac. 179.) The language used in the statute is broad enough to include all contracts made by the spouse of the owner of property for the purchase of material or the erection of improvements thereon, and when a contract is made and the material furnished or improvements made, the party making or furnishing such improvements is entitled to a direct lien against the property. (Bethell v. Lumber Co., 39 Kan. 230, 17 Pac. 813.)
In Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, the owner had been misnamed in the original lien statement and it was held the provisions of the statute, identical with the provisions now under consideration, permit amendment of the lien statement correcting the name of the owner. The decision itself does not give the facts, but resort to the briefs on file in the State Library dis closes the lien statement named J. T. Atkinson as the owner and it developed at the trial that Emma R. Atkinson, his wife, was the owner and should have been named in the lien statement.
Amendment of a lien statement was permitted in Brown v. Walker, 100 Kan. 542, 164 Pac. 1092, but language used in the opinion infers that amendment to change the names of the owners would be improper. It was said at page 546:
“At the close of the evidence the informalities of the lien statements were corrected by amendment, and the pleadings were amended accordingly. This was entirely proper. No change was made in the statement of the names of the owners, the name of the contractor, or the names of the lien claimants.”
Authorities from other jurisdictions are of little value because the statutes of the various states are not uniform. (Gaudreau v. Smith, 141 Kan. 123, 40 P. 2d 365.)
In conclusion it is held the lien statement filed by the lumber company on the 5th day of March, 1956, was fatally defective when filed, and no lien was created on the property involved when the lien statement was filed. The lumber company did not have a contract with the Blacks whom it named as the owners, and it knew at the time the lien statement was filed that it supplied the materials under its contract with Lewis. The trial court, therefore, erroneously amended the lien statement by substituting the names of entirely different owners therein, after the expiration of the four months’ limitation period within which a valid lien statement could have been filed to bind the property for materials supplied under a contract with the owners.
The judgment of the trial court is reversed.
Fatzer, J., dissents. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for the loss of real and personal property destroyed by an explosion of natural gas alleged to have been caused by the concurrent negligence of the defendants.
In a previous appeal (Webster v. Kansas Power & Light Co., 182 Kan. 626, 323 P. 2d 643) we reversed the order of the district court sustaining the separate demurrers of the defendants to the plaintiff’s evidence and held that under the facts and circumstances plaintiff was not guilty of contributory negligence as a matter of law in failing to notify the Kansas Power & Light Company that the backhoe used to dig a sewer trench on plaintiff’s property had struck the gas main owned by the power company. The case was remanded to the district court for a new trial.
The pleadings, insofar as pertinent, were summarized in the former opinion and will not be set forth hqre. However, in order to better understand the nature of the controversy on this appeal, the evidence presented at the second trial will be set forth at some length although it is substantially the same as that presented at the first trial.
The plaintiff was the owner of two duplex apartment houses which he built in 1950 or 1951, located in Block 75, Railroad Addition to Junction City, Kansas. One was located at 719-721 and the other at 723-725 East 10th Street. Plaintiff and his wife lived in the duplex at 723-725, and rented the apartment at 719 to the William Devore family and the apartment at 721 to the Ralph J. Lovell family. The Devores had lived at 719 for six years prior to the day in question, and the Lovells moved to 721 in February, 1955, and lived there until the explosion on May 25, 1955.
There was no sewer service in that part of the city until the fall of 1954, when the city laid a sewer main in the alley running north and south behind the duplexes. The sewer main was eight or ten feet below the surface of the ground and was about two feet to the west of the gas main owned by the power company, which was also located in the alley. The gas main was about two feet below the surface of the ground and located almost directly beneath the east portion of the lane traversed by vehicles normally .using the alley.
On December 22, 1954, the plaintiff made arrangements with the defendant Homer to dig lateral trenches from the duplexes to the sewer main in the alley so they could be connected to the sewer. Homer sent his brother, “Red” Homer, with a backhoe, a machine used to dig trenches, to do the digging. Plaintiff watched the digging operation part of the time and at one time observed the backhoe come into contact with the gas main, raising it about one to two inches, making a slight upward bend in it. He could not tell if it Was broken, and did not smell any gas escaping at that time. A 'hole about eight feet long, five feet wide and nine feet deep was dug in the alley so the plumbers could connect the sewer lateral from the duplex to the sewer main. The gas main was completely exposed the full length of the hole. The plumbers worked in the hole around the gas main and did not complain of gas fumes or odors at that time. The city came-out and inspected the job after it was finished, and approved it. Plaintiff did not notify the power company that the backhoe had come into contact with the gas main.
■' Guy Dishman, who lived across the alley from plaintiff’s duplexes, had Homer dig a lateral sewer trench to his property on December '23, the day after plaintiff’s trench was dug. Dishman’s connection to the sewer main was made at the same hole in the alley. Mrs. Dishman testified she was working in her kitchen at the time plaintiff’s trench was being dug; that the gas pipe running from the meter to the heating stove made a loud vibration against the kitchen floor; ’that she went out to see what was going on and saw the main gas line exposed, with some bright shiny- marks on the west side of the pipe and at the top, north of their lead-in line. Her husband told her she need not notify the power company of what she had observed because they (Homer) would do that. Mr. Dishman testified that he had seen the shiny marks on the gas main. In addition, he, and other witnesses, testified that they had overheard a conversation between “Red” Homer, the operator of the backhoe, and Henry Zernickow, in which “Red” Homer said: “I hope you don’t have the trouble that I had over to the Webster’s for I hit the gas fine and I hit it hard.” The backhoe was used to dig sewer trenches for several people in the vicinity at that time.
Mr. Dishman also testified that he had agreed with plaintiff to fill in the hole in the alley if plaintiff would leave it open so he (Dishman) would not have to dig it again when he got ready to connect up to the sewer main; that over a period of eight years he had backfilled several trenches around both gas pipes and sewer pipes, and that he filled the hole on December 24, in the following manner:
“In filling my trench and the hole in the alley, I had Mr. Edwards with the Fordson Tractor and front end loader to fill the hole in the alley, and I was •down in the hole with the hose and a shovel, and we worked the dirt in around, and I walked back and forth with the hose and tromped it. With the shovel I put the dirt below the gas main and tamped around underneath and worked my way out. I watered the dirt as it was pushed in and tamped it with the shovel and my feet. I wet it around and tromped it around the gas main, stomped on it, and walked back and forth. I left it fairly solid. There was no settling in the hole before May 26, 1955. I saw it every day, and it stayed level on top. I was there the morning after the explosion, and the hole had not settled. It was muddy.” (Emphasis supplied.)
On cross-examination Dishman testified there was probably a ton and a half, maybe two tons, of dirt left after he filled the hole in the alley, which he spread over the sewer lateral in his back yard.
Plaintiff testified that the dirt in the hole did not settle, but there was some testimony to the contrary. There was testimony to the effect that the dirt used to fill at least one other lateral trench in. the neighborhood had settled and was refilled.
Prior to the time the sewer lateral was dug, the tenants living in the duplex at 719-721 never complained of gas fumes or odors and they had very little difficulty with gas appliances. Subsequent to that time, however, the tenants made numerous complaints to the plaintiff and his wife- about the presence of gas fumes and odors in the apartment and about the functioning of the gas appliances. Each time a complaint was received, plaintiff’s wife reported it to the power company and a man from the company was sent out. All of the suggestions or recommendations made by the power company to remedy the situation were complied with, but to no avail. Other repairmen and plumbers were called by plaintiff and their suggestions or recommendations were also complied with. The burners on the gas appliances were checked and adjusted; vent pipes on the gas appliances were installed or enlarged; a new smoke stack was installed on top of the duplex; one of the gas heating stoves was replaced, and a gas refrigerator was taken out of one of the apartments and subsequently found to work properly. Despite all of that, the gas fumes and odors continued in the Devore-Lovell apartments. At no time did the power company make any tests to determine if gas fumes were present outside the duplex, or if there was a leak in the gas main even though Mrs. Webster on one occasion requested it. Plaintiff’s expert witness testified there are instruments generally used in the gas industry by distributors of gas to determine if there is gas under the ground and to determine if there are leaks in the gas main or pipeline.
On May 26, 1955, about six months after the sewer lateral was dug, and during the time the numerous complaints were made, William Devore struck a match to light the burner of the gas range in his apartment and an explosion followed immediately. The Devore-Lovell duplex was completely demolished and the force of the explosion smashed the west side of plaintiff’s duplex. The shrubbery around the premises was destroyed and furnishings owned by plaintiff and located in the duplex in which the explosion occurred were also destroyed.
On the same day, the power company located a break in the gas main with a leak detector; dug up the gas main, and found the break in the threads of the pipe that went into the “T” at Dishman’s service lateral. That was at the point where the gas main was exposed when the hole was dug in the alley.
The defendants demurred separately to plaintiff’s evidence upon the grounds that it failed to prove a cause of action against them, and established as a matter of law plaintiff’s contributory negligence. The district court sustained the demurrers. Hence, this appeal.
The main question presented is whether the court was correct in ruling that the plaintiff was guilty of contributory negligence as a matter of law. Whether the plaintiff was guilty of contributory negligence as a matter of law in failing to notify the power company that the backhoe had come into contact with the gas main was before this court in the former appeal and was conclusively disposed of in the negative. In Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267, it was held:
“When a second appeal is brought to this court in the same case the first decision is the settled law pi the case on all questions involved in the first appeal and such questions are not subject to re-examination.” (Syl. ft 1.)
See, also, Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348; Stanolind Oil & Gas Co. v. Cities Service Gas Co., 181 Kan. 526, 533, 534, 313 P. 2d 279, and Witmer v. Estate of Brosius, 184 Kan. 273, 336 P. 2d 455.
We are left with the defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law in that he fully appreciated or comprehended the risk or danger of improperly backfilling the hole under and around the gas main, and that the hole was improperly backfilled. In support of their contention the defendants rely upon the testimony of Mrs. Webster to the effect that the plaintiff was experienced in the handling of appliances, steam boilers, and various other types of equipment, and upon plaintiff’s testimony on cross-examination which the defendants claim clearly established he had a full appreciation or comprehension of the risk' or danger involved in improperly backfilling the hole. In his testimony the plaintiff stated: (1) that common sense would dictate that the hole in the alley had to be properly back-filled, and (2) that, “Common sense would understand that nothing not properly done there might be some risk.” At the conclusion of that part of the cross-examination the court said:
“In substance hasn’t this witness said that he is aware of the dangers of the improper backfilling of the hole? The Court is of the opinion that is in substance what he has said, as the Court sees it at the moment, at least. .. . .” (Emphasis supplied.)
On the other hand, plaintiff contends that whether his evidence was sufficient to establish a cause of action against the defendants .and whether his evidence showed him to be guilty of contributory negligence were questions upon which reasonable minds could ■differ and therefore should have been submitted to the jury; hence, the district court erred in sustaining the demurrers to his evidence.
Of course, in ruling upon a demurrer to his evidence, the plaintiff is entitled to the benefit of all inferences and to have his evi dence considered in the most favorable light (Webster v. Kansas Power & Light Co., supra; Kendrick v. Atchison, T. & S. F. Rld., Co., 182 Kan. 249, 320 P. 2d 1061, and cases cited therein). Moreover, it is the rule that, when tested by a demurrer, a plaintiff’s contributory negligence is a question which must be submitted to a jury if the facts are such that reasonable minds might reach different conclusions thereon (Tuggle v. Cathers, 174 Kan. 122, 254 P. 2d 807; Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752; Webster v. Kansas Power & Light Co., supra).
The difficulty with sustaining the defendants’ contention is there Was very little of plaintiff’s evidence, if any, tending to show that the hole was improperly backfilled and there was substantial evidence to the contrary. The testimony with respect to improper backfilling was that the dirt had settled in the hole on the morning in question following a heavy rain, and that there was a ton and a half, or two tons, of dirt left over after the hole had been filled. In conflict with this evidence was plaintiff’s testimony that the hole was not improperly backfilled and that the dirt had not settled; further, that he did not feel he was taking any risk. There was also Dishman’s testimony that he had filled the hole and that the dirt had not settled -whereas the dirt in another trench in the neighborhood had settled. The record fails to disclose anything tending to show that the procedure Dishman used in filling the hole was improper and a jury might well conclude that it was not improperly backfilled. Such questions should not be ruled upon by the court as a matter of law but should be submitted to the jury under proper instructions and this is especially true where there is conflicting evidence on them.
Refore it can be said as a matter of law that the plaintiff was guilty of contributory negligence by reason of the fact that he appreciated .or comprehended the risk or danger of improperly backfilling the hole, it must first be determined that the hole was in fact improperly backfilled, and, this, as we have stated, is not a question for the court to decide as a matter of law, but is a question for the jury. Should the jury determine the hole was improperly backfilled, the question would then arise whether, from all the facts and circumstances, the plaintiff appreciated or comprehended the risk or danger of that condition before it may be said he was guilty of contributory negligence. Obviously, unless the hole was improperly backfilled, there would be no risk or danger for the plaintiff to appreciate or comprehend. The defendants’ contention being based upon a purely fallacious assumption, namely, that the hole was improperly backfilled, is not meritorious.
We conclude the questions whether defendants were negligent and whether plaintiff was contributorily negligent were questions upon which reasonable minds might differ and under such circumstances they ’must be submitted to the jury for filial determination (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807; Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 396, 337 P. 2d 1003).
As previously indicated, the evidence presented at the second trial was substantially the same as that presented at the first trial. It raised a submissible issue as to the defendants’ causative negligence, but was insufficient to require, as a matter of law, a finding of contributory negligence on the part of the plaintiff.
The judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Price, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
Plaintiffs (appellants) commenced a suit against defendant to quiet title to and obtain possession of a half section of land. Defendant filed her answer and a cross petition in which she sought to set aside a warranty deed upon which plaintiffs’ title was predicated and to have herself decreed to be the owner of the land in question. Plaintiffs then filed a reply to defendant’s answer and an answer to her cross petition. Defendant filed her reply to plaintiffs’ answer to her cross petition and also formally moved for judgment on the pleadings. The trial court sustained the motion and decreed that under the warranty deed defendant was the owner in fee simple of an undivided one tenth interest in the land and further decreed that defendant’s suit to set aside the deed on the grounds of fraud in its execution was barred because the cause of action accrued more than two years before she commenced her suit. Plaintiffs appeal from the trial court’s order sustaining the motion for judgment on the pleadings and decreeing defendant to be owner in fee simple of an undivided one tenth interest in the land. De fendant appeals from that portion of the trial court’s decree which declared her suit barred by the statute of limitations.
A summary of the allegations of the petition shows Edward W. Walter died intestate on November 29, 1938, leaving as his only heirs at law Ora T. Walter, L. H. Walter, (whose death on February 28, 1958, necessitated revivorship proceedings, intervention and the filing of an amended petition including his widow, son, and daughter as plantiffs) Iva Jane Anderson, Dora Ellen Sidebottom, Minnie Evelyn Ashby, Joe A. Walter, Lawrence B. Walter, Marguerite Edna Allphin, Charles M. Walter and Sidney E. Walter. On June 14, 1939, the nine brothers and sisters of Sidney E. Walter conveyed their interests to Sidney by quit claim deed and on April 17, 1950, as a single man, Sidney, by warranty deed filed and recorded on April 17, 1950, at 9:30 a. m., conveyed back to them the ■following:
“The Northeast Quarter (NE %) of Section Twenty-nine (29) (except Railroad Right of Way) and the Southwest Quarter (SW %) of Section Twenty-eight (28), Township Eighteen (18) South, Range Twenty-seven (27), West of the 6th P. M. Containing 311 Acres.
“(Reserving in the grantor a life estate and reserving for the surviving widow of said Grantor, should there be one, upon the death of the Grantor herein an undivided l/10th interest in the fee title of said above described property.)”
Defendant filed a general denial except she admitted Edward’s death, intestate, and the transfer of the land in question by the above-named heirs of Edward to Sidney in consideration for his having remained at home and cared for their parents during their lifetime and for the further reason there was an $1,800 mortgage on the land which approximated the value thereof. Defendant also admitted Sidney’s purported execution of the above warranty deed which spoke for itself. She and Sidney had contracted a marriage on April 17, 1950 (recording date of warranty deed) and they were married on April 18,1950.
For her cross petition defendant alleged Sidney’s courtship and marriage proposal. He had told her that if they worked together they would have a home, sufficient income to care for them for life and they could pay the $700 balance due on the land. Defendant relied on these statements and married Sidney. Her assets were valued at $450 at the time of their marriage and this amount was subsequently applied on the mortgage, which was paid in full on December 11, 1956.
Defendant further alleged she had at all times been a good wife to Sidney; she had had full and implicit faith, confidence and trust in him and did not learn of the warranty deed to plaintiffs until after his death on February 27, 1957; the warranty deed was in fraud of the marital agreement and her rights thereunder; it was without consideration, and had been solicited and obtained by improper and undue influence of plaintiffs so that it was invalid and of no legal effect. Defendant asked that the warranty deed be set aside and held for naught, and that she, as Sidney’s sole and only heir, be decreed owner of the land in question.
The amended petition filed because of the death of L. H. Walter in no way affected the facts or issues.
Plaintiffs’ reply was a general denial with an additional specific denial that the consideration for their deed to Sidney was his remaining at home, caring for the parents, as well as the existence of the $1,800 mortgage and had been done because the mortgagee, The Federal Land Bank of Wichita, desired to deal with only one or two of the debtors. Plaintiffs alleged that defendant had recognized the title of plaintiffs in the quit claim deed to Sidney, she should not be allowed to deny that title now, and should be estopped from so doing because on May 14, 1951, defendant and plaintiffs had executed, acknowledged, and delivered an oil and gas lease on the land, from which defendant and Sidney had accepted benefits thereunder in the way of tax and mortgage payments when it was Sidney’s duty as life tenant to pay these items.
For reasons later to become apparent we shall not set out plaintiffs’ answer to defendant’s cross petition or defendant’s reply thereto.
Thereafter defendant filed the following motion for judgment on the pleadings:
“Comes Now, the defendant and moves the court for an order for the entry of judgment in her favor as to the plaintiffs’ alleged cause of action for the reason that the pleadings raise no issue of fact as both parties are relying on the effectiveness of reserving or .excepting clause in a deed which neither party contends is ambiguous, but only its legal effect is challenged. The plaintiffs have not presented a cause of action because the interest in the land contested for by plaintiffs was excluded from the grant by the exception clause in the deed.”
In its journal entry of judgment the trial court, after making certain findings substantially as already shown by the pleadings, continued as follows:
“The court further finds that the Warranty Deed from Sidney E. Walter to his brothers and sisters, the plaintiffs named in the original petition filed in said action dated April 17, 1950 and recorded on said date in Deed Record 34 at page 403 in the Register of Deeds Office, Lane County, Kansas, and that any cause of action for fraud in the execution of said deed, if any, accrued to the defendant and cross-petitioner on the 17th day of April, 1950, which is more than two years before the commencement of this action.
“The court further finds that the clause in said deed dated April 17th, 1950 and recorded in Deed Record 34 at page 403 ‘reserving for the surviving widow of said Grantor, should there be one, upon the death of the Grantor herein an undivided l/10th interest in the fee title to said above described property,’ constitutes an exception to the grantor from the granting clause in said deed of an undivided l/10th interest in the fee title in the described real estate remaining after the life estate reserved in the grantor, in the whole of said real estate and that the defendant, Mildred Walter, is the owner in fee simple of said undivided l/10th interest in the above described real estate as the heir of Sidney E. Walter, deceased and that the costs of this action should be taxed to the plaintiffs.
“It Is Therefore Considered, Ordered, Adjudged and Decreed by the Court that any cause of action for fraud in the execution of the deed dated April 17, 1950, and recorded in Deed Record 34 at page 403, in the Register of Deed’s Office, Lane County, Kansas, conveying the above described real estate from Sidney E. Walter to the plaintiffs in the first petition filed in this action, if any, accrued to the defendant and cross-petitioner, Mildred Walter, on the 17th day of April, 1950, which is more than two years before the commencement of this action.
“It Is Further Considered, Ordered, Adjudged and Decreed by the Court that the defendant’s Motion for Judgment on the Pleadings be and the same is hereby sustained and the defendant be and she is hereby adjudged and decreed to be the owner in fee simple, of an undivided l/10th interest in the following described real estate . . . [description of land in question].”
From the trial court’s above ruling on defendant’s motion for judgment on the pleadings, we have plaintiffs’ appeal which raises the following questions:
1. Did the trial court err in refusing to quiet title to the land?
2. Was it error to sustain defendant’s motion for judgment on the pleadings and decreeing defendant to be the owner of a 1,/lOth interest in the land?
Defendant’s cross-appeal raises this single question:
Was it error to extend consideration of the motion so as to test the sufficiency of defendant’s cross petition?
By her cross-appeal defendant raises a very interesting question of law which has been fairly and conclusively determined by this court in a long line of decisions. We find only one citation in defendant’s brief in regard to the extent to which a trial court may go in ruling on a motion for judgment on the pleadings. (Ewing v. Pioneer Nat’l Life Ins. Co., 158 Kan. 371, 147 P. 2d 755.) Similarly, plaintiffs have been of little assistance in their brief but our limited research has disclosed three very recent decisions on this subject. (Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P. 2d 992; Clark Lumber Co. v. Passig, 184 Kan. 667, 339 P. 2d 280; Young v. Barker, 185 Kan. 246, 342 P. 2d 150.)
In the Ewing case (p. 374) we find that the parties had proceeded on the same erroneous theory the trial court adopted in our present case to the effect that a motion for judgment on the pleadings opens an unlimited field for the trial court to determine every conceivable contention regardless of whether the contention should have been raised on demurrer to a petition, on demurrer to evidence, in final determination of the entire case, or otherwise determined during the course of the trial.
The Dearborn, Clark and Young cases reiterate another rule governing consideration of a motion for judgment on the pleadings which is, in effect, that where material issues of fact are joined in pleadings whereupon a judgment might be based, a motion for judgment on the pleadings cannot be sustained.
Further, in the Dearborn (pp. 444, 445) and Clark (p. 673) cases it was held in substance that in ruling on a motion for judgment on the pleadings, the well-pleaded allegations of the pleadings of the party against whom the motion is directed are to be taken as true and favorably construed by the trial court and all pleadings of the moving party are to be disregarded, ignored and not considered.
In the face of such rules we can only conclude that the trial court erred in its determination of defendant’s cross petition and notwithstanding the full discussion of the merits of the issues set up in the pleadings, we are not disposed to determine them prior to trial and a final determination thereof by the trial court.
Should defendant be successful in proving the allegations of her cross petition and sustain the burden of proof required of her so that she would be entitled to final judgment thereon, then such judgment would make futile any further consideration of the warranty deed from Sidney to plaintiffs and plaintiffs’ cause of action would become moot. Should defendant obtain such a final judg ment she would, as Sidney’s sole and only heir, be entitled to the entire fee title in the land but should she fail to obtain final judgment, it would then be proper to determine the interest she received by reason of the clause following the property description in the warranty deed of Sidney to plaintiffs. The trial court’s rendition of judgment for defendant after sustaining her motion for judgment on the pleadings was premature.
Reversed. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this habeas corpus proceeding the petitioner, Robert Clyde Messmore, seeks his release from confinement in the Kansas State Penitentiary. The district court denied the writ and petitioner has appealed.
A review of the record reveals that the petitioner has made no attempt to comply with Rule No. 5 of this court and we have repeatedly held in a long line of decisions that failure to comply therewith, by setting forth in the appellant’s abstract the specification of errors complained of, is fatal and precludes appellate review. (Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, and cases therein cited; City of Independence v. Wendorff, 169 Kan. 14, 216 P. 2d 820; Miller v. Rath, 173 Kan. 192, 244 P. 2d 1213.) In Quick, Receiver, v. Purcell, 179 Kan. 319, 295 P. 2d 626, it was said:
“. . . Rule No. 5 of this court (see 174 Kan. XI; G. S. 1949, 60-3826, ‘Rules of the supreme court’ No. 5) long in force and effect, among other things, provides:
“ ‘. . . The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered. . . .’
“The rule has been printed repeatedly in various volumes of the Kansas reports. Its purpose is designed to promote definiteness, fairness and orderly procedure of litigation on appellate review. It was intended to be of benefit to both the Bench and Bar alike. Specifically, its purpose is to advise both appellee and this court concerning error, or errors, which the appellant claims the trial court committed in rendering its judgment.
“Manifestly, this court cannot review error which is claimed was committed, if none is specified. Error is never presumed (Quivira, Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 Pac. 749), and it is the duty of the party complaining to indicate wherein it was committed. (Fakes v. Osborne, 165 Kan. 176, 193 P. 2d 218.) All that the abstract of the instant appeal contains is a motion for a new trial and a notice that appellant appeals from the judgment rendered against him. A motion for a new trial or a notice of appeal does not constitute a specification of error within the meaning and purport of Rule No. 5. (Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377.)” (1. c. p. 320.)
See, also, North American Finance Corporation v. Circle-B, Inc., 180 Kan. 34, 299 P. 2d 576; Rice v. Hovey, 180 Kan. 38, 299 P. 2d 45.
In the instant case the abstract contains neither a motion for a new trial, nor the notice of appeal and specification of errors are not set forth. In view of the foregoing, it is the judgment of this court that this appeal must be and it is hereby dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
To prevent any misunderstanding in regard to the jurisdiction of the state corporation commission in attributing acreages to a particular gas well for the purpose of determining the allowable of such gas well for production of gas therefrom, the syllabus in Matzen v. State Corporation Commission, 185 Kan. 206, 341 P. 2d 1031, is modified in the 4th, 5th, and 6th lines by substitution of the word attributing for the words “unitization and pooling” so the syllabus in pertinent part reads:
“In a proceeding originating before the state corporation commission by reason of a producer fihng an application seeking an exception to paragraph V of the basic proration order of the Greenwood gas field for the attributing of non-contiguous and non-adjoining acreages and attributing the same to a particular gas well for the purpose of determining the allowable. . . .”
The corresponding portion of the court’s opinion in lines 3 and 4, page 206, is changed and modified by substitution of the word attributing for the words “unitization and pooling.” On page 207, line 23, the words “unitized the four tracts of land” are also stricken.
Since the record fails to affirmatively show any necessary elements of acquiescence or estoppel on the part of plaintiff, landowner, and in view of what was said in the original opinion in regard to mailing notice under G. S. 1949, 55-605, supplemented by Mullane v. Central Hanover Tr. Co., 339 U. S. 306, Syl. ¶ 3, 70 S. Ct. 652, 94 L. ed. 865, the petition for rehearing is denied.
Price, J., dissents, being of the opinion that a rehearing should be granted. | [
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|
The opinion of the court was delivered by
Jackson, J.:
This appeal involves an action for property damage growing out of a collision between two trucks which occurred on die morning of February 1, 1957, on U. S. highway 81 at about 10:30 some seven miles south of Salina. The Security Milling Company as plaintiff sought to recover the value of its truck and cargo of grain from Ketchum, the owner and driver of the other truck. The defendant filed a cross-petition, and both trucks being operated as licensed motor carriers, their respective insurance companies were made parties to the action. After a trial to a jury, plaintiff received a verdict in the sum of $3,769.83, upon which the trial court entered judgment after the overruling of post trial motions. Defendant has appealed.
The plaintiff’s truck at the time of the accident was being driven by Gerald Lady, who was killed in the collision. This action did not involve any claim for damage on account of his death or other personal injuries suffered by the drivers. The damage suffered by the parties as to the trucks and cargo was stipulated between the parties before the beginning of the trial and no evidence was introduced upon that subject.
At the time of the accident, plaintiff’s truck, a 1957 Chevrolet, loaded with livestock and poultry feed was south bound. Defendant was driving his International truck tractor pulling a van type semitrailer north on the highway. , The collision occurred some 156 feet north of a bridge in fair weather with a dry pavement and in full daylight. The paved portion of the highway was twenty feet wide and there were shoulders thirteen feet wide on each side of the road. Each truck is shown to have been eight feet wide. Obviously, the two trucks could easily have passed on the highway without colliding, and this action concerns the dispute as to which driver was at fault in allowing the collision to take place.
Defendant has specified nine errors in his abstract, some of which are obviously not subject to review upon this record, but has combined his objections into fpur heads in the brief. We shall take up these four questions separately.
Defendant first contends that the evidence is insufficient to sustain the answers to the special questions and the general verdict, and that therefore the judgment should be reversed. Despite the usual rule holding that this court in reviewing the question will look only to see whether there is any competent evidence to support the findings and verdict of the jury, and that matters of weight and credibility are for the triers of fact and not this court (West Kan. Dig., Appeal & Error, § 837 (7); Hatcher’s Kan. Dig., Appeal & Error, § 495), defendant would seem to argue that a different rule should be applied in this case. It is contended that all of the evidence of plaintiff was circumstantial in that neither of plaintiff’s two witnesses actually saw the accident happen, and that therefore, the findings of the jury were based upon mere speculation. We fear defendant has been carried away by his ardor and has overstated his case.
In Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162, the third paragraph of the syllabus reads:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury.”
Later in the opinion of the Sternbock case, we find the following:
“It is true plaintiff attempted to establish the cause of the fire by circumstantial evidence. If such evidence fairly authorized the inference of negligence it was sufficient. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 Pac. 164.) This, however, was not a criminal action, but a civil action, and in order to sustain a verdict in a civil case circumstantial evidence need not rise to that degree of certainty which will exclude every reasonable conclusion other than that arrived at by the jury. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Hashman v. Gas Co., 83 Kan. 328, 329, 111 Pac. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 Pac. 164; Asche v. Mathews, 136 Kan. 740, 18 P. 2d 177; Noller v. Aetna Life Ins. Co., 142 Kan. 35; 38, 46 P. 2d 22.) In Railroad Co. v. Perry it was held:
“ ‘The fact that soon after the passing of an engine a fire starts near a railway track in an enclosed field covered at that time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.’ (Syl. ¶[ 1.')”
The case of Briggs v. Burk, 174 Kan. 440, 257 P. 2d 164, involved an automobile accident much like the one in the case now being considered. In the opinion the court said in part:
“Under our decisions there can be no question that negligence may be established by circumstantial evidence (See, e. g., Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162, and cases cited at page 86 of the opinion; In re Estate of Modlin, supra), also that the physical facts of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision (Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735,107 P. 2d 770).
“Long ago this court in Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215, with respect to the sufficiency of circumstantial evidence and touching other matters pertinent to the issue now under consideration, said:
“Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury are not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences. This must necessarily be so, for it is the province of the jury and not of the judge to determine whether the evidence better supports this or that theory. We invade their domain if we shall require them to say that a given set of circumstances are as consistent with one theory as with another. This court, in a very recent case (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876), had occasion to quote with approval the rule laid down by Professor Greenleaf upon this subject, which is as follows: ‘In civil cases it is sufficient if the evidence on the whole agrees with, and supports, the hypothesis which it is adduced to prove.’ Greenl. Ev., § 13a.)
“It is true, as announced in Railroad v. Rhoades, supra, that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact, but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion, even though some other and opposite conclusion equally reasonable might also be drawn; otherwise, we might have a condition where a question of fact could not be settled, because the circumstances upon which its settlement depended might point to two or more equally reasonable conclusions. As between two or more reasonable deductions from circumstantial evidence, the court is not at liberty to direct which one the jury shall adopt.” (pp. 616 and 617.)
The case of Hutchens v. McClure, 176 Kan. 43, 269 P. 2d 473, also involved an automobile accident. At page 46 of the opinion, the court said:
“Negligence like any other issue of fact may be proved by circumstantial evidence. (See Brown v. Clark, 152 Kan. 274, 103 P. 2d 907.)
“It was the province of the jury to weigh all conflicting evidence and to draw all reasonable conclusions from the evidence offered. (See Brugh v. Albers, 141 Kan. 223, 40 P. 2d 380; Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770; and Briggs v. Burk, 174 Kan. 440, 257 P. 2d 164.)”
Attention is further directed to Haga v. Moss, Administrator, 181 Kan. 171, Syl. ¶ 5,311P. 2d 281.
In view of the above authorities, and those cited in the opinions, we shall attempt to review plaintiff’s evidence. Witness Harris, another truck driver, testified that he came up behind the defendant’s truck near the “Lindsborg overpass”; that after leaving the overpass, witness tried to pass defendant on at least five occasions but each time was prevented from passing by the fact that defendant’s truck would start to wander over toward the left side of the road; that witness gave up trying to pass and remained behind defendant; that defendant kept on “roadwalking his rig” across the road, that he would gradually let it wander over to the left side and appeared to me he would wake up, or appeared to be sleeping, then would whip it back to the right side of the road. Witness further testified that on a certain curve by some elevators, defendant did not stay in the right lane at all but cut across the left inside lane; that no signals were given on making these swerves; that there were times when defendant was entirely on the wrong side of the road; that when defendant reached the bridge just south of the place of the accident, witness was some quarter mile behind him and defendant had one dual wheel right on the center line of the highway. Harris testified that his attention was distracted for a moment by an airplane and he did not see the accident but that when he glanced back, the road was full of smoke and fire. Witness parked his own truck and went up to the scene of the collision.
It seems to be established that the defendant’s truck and trader were jackknifed, with the tractor headed northwest just off on the shoulder on the east side and the rear wheels of the trailer still on the pavement; and that the plaintiff’s truck had been turned on its side and, was now lying on the west half of the pavement. Plaintiff’s truck was now headed north. The gasoline in defendant’s truck caught fire and the fire department from Salina and a foam truck from Schilling Air Base were called to put out the fire.
Both witness Harris and plaintiff’s other witness, highway patrolman Northup, testified to the finding of tire marks on the west shoulder of the road some eighty feet north down to about the position of plaintiff’s truck. Trooper Northup was unable to identify the marks as belonging to plaintiff’s truck. He spoke of the difficulty caused by the large amounts of water, foam and feed which covered the area of the accident. The patrolman testified that there was a gouged hole in the pavement six and one-half feet from the west edge and that he believed it had been caused by a piece of metal from one of the trucks gouging out the pavement. The pictures would seem to show a great deal of metal^ hanging to the wreck of plaintiff’s truck including part of the engine, and the trooper testified that at least one tire was flat. The only metal part tom off defendant’s truck seems to have been a gas tank which was down in the gully. The patrolman agreed to the proposition that the accident could have happened — it was demonstrated with models— if the plaintiff’s truck had been in its right lane of traffic (west lane) and the vehicles might have come to rest in the same positions where they were found. He also testified that he found a partially filled package of “No-Doz” pills in the cab of defendant’s truck.
We believe the above résumé of plaintiff’s evidence, which is not entirely complete, is sufficient to support the findings and verdict of the jury. Again it should be remembered that the weight and credibility of the evidence was for the jury and is not for this court. The findings and verdict were approved by the trial court.
The second proposition submitted in defendant’s brief deals with the instructions of the trial court. The principal objection to the instructions appears to have been directed against Instruction No. 3 of the court which dealt with circumstantial evidence. The defendant requested no specific instructions upon this matter, but after the trial court had prepared his instructions, they were submitted to counsel for both sides in chambers. At that time defendant objected to the instruction on circumstantial evidence proposed by the court citing Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158, and contending that in relying upon circumstantial evidence, the circumstances relied upon must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established. The Goodloe case affirmed the order of the trial court in sustaining a demurrer to the evidence of the plaintiff where the evidence seemed to show that plaintiff, a pedestrian, was attempting to cross a city street between intersections and not in a marked cross walk and was hit by or walked into the side of a truck. In the opinion by the now Mr. Chief Justice Parker it is said in part:
“Conceding, at the outset, that from our legion of reported negligence cases there may he found decisions in which something has been held or said that can be regarded as tending to support the respective contentions advanced by each of the parties it must be kept in mind that every negligence action is first of all dependent upon the factual situation disclosed by the record on which it is decided. There are, of course, certain fundamental principles of law applicable to negligence actions generally but in the final analysis the facts of each particular case determine its decision when tested by those principles.”
There is nothing in the actual opinion of the Goodloe case which would go to the extent claimed by the defendant in this case, although certain quotations cited at least indicate some support for defendant’s contention. However, from the cases of Sternbock v. Consolidated Gas Utilities Corp., Briggs v. Burk and the other cases cited supra together with the many cases relied upon in those decisions, we deem that this court has refused to follow the rule sponsored by the defendant. Mr. Chief Justice Parker was the author of the opinion in Briggs v. Burk, supra, which specifically followed the Sternbock case. While the court’s instruction on circumstantial evidence may not have been entirely a model instruction, we do not find any reversible error.
There are certain other matters which we shall take up briefly under the head of the instructions of the court. It appears from the record that the trial court gave his instructions to the jury in the afternoon of a January day and then because of a threatening blizzard released the jury to return the next day; that thereafter counsel and the court agreed that the court would add an additional supplement to one of the court’s instructions on the return of the jury. It appears that on the next afternoon when all parties and the jury had reassembled, the defendant submitted a requested instruction upon the principle of action in an emergency. The requested instruction was refused by the court, primarily perhaps, on the ground that it came too late and after the jury had been fully instructed. This requested instruction has been numbered 5 by defendant. Resides the tardiness of the request, we find no real evidence in the record showing that defendant was faced by any emergency. Moreover, in submitting requested instructions to the court under the provisions of G. S. 1949, 60-2909, Fifth, such requests should be submitted in ample time for the court to consider them when it is framing its own instructions. The statute reads, “when the evidence is concluded.” Certainly any request submitted as late as requested instruction No. 5 could only be addressed to the discretion and indulgence of the trial court, and to the acquiescence of the opposing party. Here plaintiff objected to the late request.
In his brief, defendant also objects to an answer given to a question relating to the special findings submitted to the court by the jury after it had retired. No objection is shown in the abstract of the defendant and the counter abstract would indicate that neither this point nor requested instruction No. 5 was brought to the attention of the trial court on motion for new trial. We do not choose to labor the question further.
Defendant complains of the fact that plaintiff’s counsel was permitted to cross-examine defendant concerning certain convictions for traffic violations since about the year 1952. It appeared that defendant had been convicted of some ten moving traffic violations during that time. Defendant on his direct examination had testified that he had driven trucks since he was seventeen years of age; that he had been in the trucking business with his father and brother since he was a small boy. Counsel stated to the court that the cross-examination was only to go to the question of veracity. The only objections made by defendant to this line of questioning at the time was an objection that one question called for a conclusion and that another was too remote. Without deciding whether the defendant had opened the door to such examination or whether it might have been objected to on other theory, we fail to find any error upon the record.
Defendant attempted to introduce certain evidence which was excluded by the trial court, but now concedes in the reply brief that no proper showing was made at the time of the motion for new trial to entitle him to have these matters reviewed.
The court has carefully examined the record in this appeal, including all matters not covered specifically in the opinion, and is convinced that it shows no reversible error. The judgment of the trial court should be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s final judgment in favor of appellees (defendants). against appellant (plaintiff) and from that court’s order overruling plaintiff’s motions to modify its findings of fact and conclusions of law and for a new trial.
The petition sought a money judgment of $1,229.50 based on a contract entered into by certain independent milk truck operators (haulers) who transported milk in cans from the farms of producers to the Bennett Creamery Company plant in Ottawa. The contract was captioned:
“Milk Route Territory Regulations Covering All Independent Milk Trucks Delivering Milk From Producers to the Bennett Creamery Co., Ottawa, Kansas, February 6, 1957.”
The contract provided, in substance, that milk routes were to be recognized by number and color, and when routes overlapped roads should be colored to denote route territory on a route map to be kept and locked in a glass case in the haulers’ office at Bennett’s plant; any route change was to be made by not less than “three committee members” at the request of the haulers desiring the change and with all affected haulers present; a hauler had to serve all producers in his territory who sold to Bennetts and he would be penalized if he forfeited a producers business; far-reaching routes would be protected from encroachment by new and nearer routes; (the compensation feature of the contract is covered in the trial court’s findings of fact appended hereto). The remaining portion of the contract required the regulations to be signed by all haulers and posted with the route map, indicating their acceptance of both.
The contract and route map were in effect for a number of years (the record does not reflect the exact number) but it has been at least since the 1951 flood because a new route map was made up at that time.
In February, 1957, in order to provide for a more modern and efficient method of hauling milk from refrigerated bulk tanks on producers’ farms via a hauler’s bulk tank truck to Bennetts, an additional paragraph (item 10) was added to the regulations whereby it was agreed that tank hauling rights could be sold and transferred by a can hauler to a bulk tank hauler under one of two proposed payment plans. The payment plan with which we are here concerned was the first, or cash, payment plan, under which cash was to be paid within thirty days after the first bulk tank hauling and was to be computed at the “minimum rate of 50‡ per lb. average of previous 12 months daily average weight.” The average weight was determined by dividing the total pounds of milk produced during the previous twelve months by 365, or if the period was less than twelve months, by dividing the total number of pounds by the number of days shipped. Such sale to a purchasing hauler would be final and binding and without recourse except that if a bulk tank farmer-producer reverted to cans within twelve months, then the territory owner (can hauler) had to refund the pro rata share of the purchase price to the bulk tank hauler. If the change back to cans occurred after a year then no refund was to be made but the bulk tank hauling rights were not thereby lost to the tank hauler or his successor.
Item 10 further provided that if a producer who converted from cans to bulk tank had not sold to Bennetts for more than a year, then no payment was to be made by the tank hauler to the territory owner (the can hauler). Item 10 was to be applied to bulk tank milk and did not affect previous can milk regulations. The regulations went with the territory and bound th$ successor. The Haulers’ Committee would decide any bulk tank question not cov ered by item 10. At least ten haulers were required to call a meeting of route owners and a two-thirds majority of all route owners was required to change the regulations. A total of 34 haulers, including appellant and both appellees here, signed the regulations.
The issues were made up and both appellant and the appellees filed requested findings of fact and conclusions of law. The trial court’s comprehensive and complete findings and conclusions, as finally amended, are hereto appended and made a part hereof.
Since the trial court’s findings are supported by the evidence, they are conclusive on appeal. (Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 209, 336 P. 2d 469.) We believe that findings No. 11, 12, 18, and 27 substantially contain the theory set out in the suggested additional findings of appellant submitted in connection with his motion to modify the trial court’s findings and we do not deem it necessary to discuss this claim of error.
Without repeating, we are of the opinion the last-mentioned findings establish the fact that there was competition between Rennetts and other plants in the territory in question and • that there was competition between the signers of the regulations and the haulers for other plants. This competition was active in the territory under consideration here. If the producer did not wish to use the services of the hauler on his territory, he could haul the milk to Rennetts in his own truck but if he. wished to use the services, the hauler was compelled to furnish them.
Under the trial court’s findings 7 and 8, which refer to federal regulations controlling this particular business, it is apparent why the parties do not make a material issue as to whether the territory regulations affect the price of milk and its by-products to the consumer. It is admitted, and the record shows, that the trial court was not confronted with, nor did it determine, any application or effect of the Federal Anti-Trust Laws and by reason thereof we shall not consider them in this appeal. In other words, this court is committed to the rule that it will not pass upon an issue which has not previously been presented to the court below. (In re Estate of Cramer, 183 Kan. 808, 816, 332 P. 2d 554.)
The case was tried and decided by the trial court under two of our “restraint o fit trade” statutes. G. S. 1949, 50-101 in pertinent part reads:
“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.
“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 ... of produce or commerce intended for sale, use or consumption in this state.
“Fifth. To make . . . any contract ... by which they shall bind . . . themselves not to . . . transport any article or commodity . . . of . . . commerce or consumption below a common standard figure; or by which they shall agree ... to keep the price of such article, commodity or transportation at a fixed or graded figure ... to preclude a free and unrestricted competition among themselves or others in transportation ... of any such article or commodity . . . that its price may in any manner be affected. And any such combinations are here declared to be against public policy, unlawful and void.”
G. S. 1949, 50-112, in part, provides:
“That all arrangements, contracts . . . which tend to prevent full and free competition in the . . . transportation or sale of articles . . . of domestic growth or product of domestic raw material . . . which tend to advance, reduce or control the price or the cost to the producer or to the consumer . . . are hereby declared to be against public policy, unlawful and void.”
In support of their argument that the agreement herein is contrary to public policy, illegal per se, and void, appellees rely on a number of our contract cases and we will examine some of them. The agreement in State v. Smiley, 65 Kan. 240, 69 Pac. 199, 196 U. S. 447, 25 S. Ct. 289, 49 L. ed. 546, was entered into by all the grain buyers of a certain market for the express purpose of preventing competition among the buyers. It was for the further purpose and effect of pooling the profits of the grain trade and the formation of a grain trust among the buyers. (pp. 264-265.) State v. Wilson, 73 Kan. 343, 84 Pac. 737, concerned an agreement among the members of an association, which practically controlled the business at a great commercial center, that they would make no purchases or sales for others without charging as a commission for their services at least 500 for each head of cattle handled. This obviously created a restriction in the full and free pursuit of that business, (p. 348.) In Mills v. Ordnance Co., 113 Kan. 479, 215 Pac. 314, a contract providing for the purchase and sale of tractors with the price fixed at which the purchaser should sell the tractors was, held illegal because it was violative of the anti-monopoly statutes of this state. The contract involved in McGregor v. Bank, 114 Kan. 356, 219 Pac. 520, related to a settlement between a borrower and a bank and was held to be void because it was unfair and unjust to third persons, namely, creditors of the bank. A secret arrangement was entered into by the plaintiffs in Gard v. Holmes, 132 Kan. 443, 295 Pac. 716, whereby Holmes, a mortician in Wichita, was to hire one Schultz, a mortician in Anthony, Kansas, so as to discontinue Schultz as a competitor to the plaintiffs who ran the only other mortuary in Anthony, but examination of that opinion shows a relaxing of the strict rule of the common law and our earlier cases by use of the following language:
“If these plaintiffs had made a fair and open bargain to buy out Schultz’ business and had bound him to stay out of the undertaking business in Anthony and thereabout for one year or ten, we would have little hesitation in upholding the contract.” (p. 446.)
The contract in United Artists Corp. v. Mills, 135 Kan. 655, 11 P. 2d 1025, was declared to be invalid on two grounds but we are concerned with only the one under G. S. 1949, 50-101, Fifth, fixing the exhibitors’ price for admission at no less than ten cents. The contract in Patterson v. Glass Co., 91 Kan. 201, 137 Pac. 955, was held bad because by it and other similar contracts, the company sought to control the output and price of window-glass factories throughout the country, (p. 205.) This case was later cited in Joslin v. Steffen Ice & Ice Cream Co., 143 Kan. 409, 412, 54 P. 2d 941, wherein plaintiff, a retailer, had to buy all the ice he required from Steffens at thirty cents a hundred weight and sell it at not less than forty cents a hundred weight. This court there said such an agreement resulted in the consumer having “to foot the bill.” (p. 411.) A manufacturer may set his price at which he will sell his product but he and his buyer cannot agree as to the price the retailer will charge third parties, (p. 411.)
A more exhaustive discussion of many of the cases cited by appellees appears in Morrison v. Bandt, 145 Kan. 942, 67 P. 2d 584, cited and relied upon by appellant. In that case the transaction was void because it sought, by securing title and possession of certain grain elevator property, to control the price of grain and prevent competition. The rule that must prevail in cases of this character from McBratney v. Chandler, 22 Kan. 692, was quoted and followed in the Morrison case. It read:
“ ‘That which is bad destroys that which is good, and they perish to- - gether.’” (p. 945.)
The quotation from the McBratney case, as set out in the Morrison case, continued:
“ ‘There is no presumption that a contract is illegal. He who denies his liability under a contract which he admits having made, must make the fact of its illegality apparent. The burden of showing it wrong is on him who seeks to deny his obligation thereon. The presumption is in favor of innocence, and the taint of wrong is [a} matter of defense.’” (p. 945.)
Pohlman v. Dawson, 63 Kan. 471, 65 Pac. 689, also cited by appellant, concerned a contract to sell a barber shop wherein the court enjoined the seller from working in a competing barber shop under the agreement made that he “should not engage in the barber business in any manner in Russell, Kan.”
An instructor in vocal training sued a pupil for an accounting and for specific performance of their contract and this court reversed the trial court’s order sustaining a demurrer to the petition. (Heckard v. Park, 164 Kan. 216, 188 P. 2d 926, 175 A. L. R. 605, 617.) Therein is included a full treatment of the authorities cited by appellant here. Consideration and mutuality of the contract were also discussed which settles those questions now before us since, on the one hand, appellant has surrendered his three customers to appellees, and on the other hand, appellees have received them and have enjoyed their business and the income it has produced for them. The Heckard case recognized that no “hard-and-fast” rule governing all such contract cases can be laid down. (p. 223.) This court there held:
“The old rule as to limitations of time and space with respect to contracts involving restraint of trade has given way to the modem doctrine of reasonableness and the real test is never whether there is any restraint but always whether the restraint is reasonable under the facts and circumstances of the particular case.” (Syl. f 7.)
In the Heckard opinion, similarly to our present case, the solution of the question of reasonableness of a contract of the character there being considered was said to depend “upon fundamental elements of common fairness in view of the facts and circumstances of the parties.” (p. 224.)
Some of the circumstances to be considered in determining the fundamental elements of common fairness of the regulations in this case are that under finding eleven all of the producers of milk, none of which is a complaining party here, are generally charged the same hauling rates within a particular route territory of a can hauler whether the milk goes to Bennetts or to some other plant and irrespective of the distance from the farm to the receiving plant. Thus the regulations did not work any hardship on the milk producers. On the other hand, the producers had access, if they desired it, to the regular service of a hauler who knew and traveled all types'of roads under all weather conditions, with proper equipment, so that the milk was picked up at approximately the same time every day if they used cans, or once every two days if they used the bulk tank system. Without such systematic and orderly regulations there would be overlapping of territories, excessive distances to be covered by haulers, and other circumstances whereby the producers could not be positive that all or any of the milk produced would reach its destination or what its condition would be when it arrived. As we view the regulations, the fundamental elements of common fairness, so far as the milk producers are concerned, are well established.
The appellees through the regulations here being considered have been and now retain their territory as can. haulers along with the three customers of appellant they obtained by reason of item 10. Under the reasoning of the Heckard case, this is not inimical to our “restraint of trade” statutes or to public policy.
We cannot agree with the trial court’s second conclusion of law that the regulations had the purpose and effect of eliminating competition for the transportation of milk by third parties. So far as Bennetts and the signers of the regulations are concerned, the producers could haul their milk themselves, if they preferred. The entire plan is based on competition, as heretofore stated, and further discussion is unnecessary on this point.
From previous discussion we think that the trial court’s findings do not support the third conclusion of law since there is no price-fixing of the milk or requirement that the producer must sell to Bennetts. At no time does the milk become the property of the hauler. Appellees have cited United States v. Nationwide Trailer Rental System, 156 F. Supp. 800, affirmed per curiam, 355 U. S. 10, 78 S. Ct. 11, 2 L. Ed. 2d 20, which is not controlling here because a federal law was there involved. That case shows what appellees contend and the trial court concluded as to the purpose and effect of these regulations but a careful study of that case shows the distinction between a void agreement, as there, and a valid and reasonable set of regulations such as we have here.
In regard to the fourth conclusion of law, we believe our previous discussion has determined it was not proper and especially is this true on the point of any presumptions. They must be in favor of the validity of the regulations and not the invalidity thereof. The burden at all times was on appellees to prove the invalidity of the regulations.
We believe it will suffice to say in a summary way that while the trial court did not err in refusing to amend its findings of fact, in view of those findings it did err in concluding the regulations were void when they were, in fact, reasonable and valid. The result is the judgment must be reversed. It is so ordered.
“Findings of Fact
“1. Plaintiff, John I. Okerberg; Jr., is the owner and operator of Can Milk Route No. 6, delivering milk in cans from a specific territory to the Bennett Creamery Company plant at Ottawa, Kansas.
“2. Defendant, Robert Crable, was on February 2, 1957, the owner and operator of Can Milk Route No. 3 and No. 5, delivering milk in cans from two specific territories to the Bennett Creamery Company plant. Subsequently, in the summer of 1957, Crable sold route No. 3 to Keith Watts. Crable is now the owner and operator of Can Milk Route No. 5.
“3. Defendant, Carl E. Kersley, was on February 2, 1957, the owner and operator of Can Milk Route No. 18, delivering milk in cans from a specific territory to the Bennett Creamery Company plant. Several months later, Kersley sold Route No. 18, moved his permanent residence to Phoenix, Arizona, and was not a milk hauler when the petition herein was filed.
“4. For more than ten years can milk routes coming into Bennetts had been operated under an agreement between the milk haulers. The written agreement in effect prior to February 2, 1957, consisted of all of the provisions of ‘Milk Route Territory Regulations Covering All Independent Milk Trucks Delivering Milk From Producers to The Bennett Creamery Company, Ottawa, Kansas,’ being Plaintiff’s Exhibit 1, except Item 10 thereof. The plaintiff and the defendants were parties to this agreement upon February 2, 1957, and prior thereto.
“5- On all can routes referred to herein as delivering to the Bennett Creamery Company there is and.has been both Grade ‘A’ and Grade ‘C’ milk. There are approximately 1400 such producers of which 316 are Grade ‘A’ and the remainder are Grade ‘C’ who sell direct to Bennetts. The can milk haulers are required to use covered, insulated, truck beds which are designed to help keep the milk clean and prevent it from becoming too warm.
“6. All Grade ‘A’ milk, for more than eighteen months prior to and up to October 1,1957, delivered to the Bennett plant was being purchased by Meyer Sanitary Milk Company, a Kansas corporation, lessee of the Grade ‘A’ receiving facilities of the plant owned by the Bennett Creamery Company, a Kansas corporation; and from October 1, 1957, to the present time, this Grade ‘A’ milk has been purchased by Pure Milk Producers Association of Greater Kansas City, Inc., which became lessee of the Grade ‘A’ receiving facilities of the plant.
“7. Meyer Sanitary Milk Company, and after October 1, 1957, Pure Milk Producers Association, have paid producers for this milk, making deductions from payment to producers for payment of hauling charges and paying the same to haulers. This Grade ‘A’ milk is normally shipped in bulk from said receiving station to Kansas City for use in bottling, the surplus or excess not required for said use, if any, being sold and transferred to Bennett Creamery Company for manufacturing purposes at a ‘Class IT price, established by Federal Milk Marketing Order No. 13, which is approximately equivalent to the price for Grade ‘C’ milk. The Grade ‘C’ milk on these routes is sold and delivered to Bennett Creamery Company and processed in the Bennett Creamery Company manufacturing facilities.
“8. Pure Milk Producers Association of Greater Kansas City, Inc., is a cooperative marketing association, whose membership consist of Grade ‘A’ producers selling to handlers in the Greater Kansas City marketing area, as defined by Federal Milk Marketing Order No. 13. It is a bargaining or marketing cooperative, as distinguished from an operating cooperative. Its members are parties to a standard membership and marketing contract between themselves and the Association, whereby the Association has the right to control and direct the marketing of their milk.
“9. The Bennett Creamery Company has had since October 1, 1957, an agreement with Pure Milk Producers Association whereby the Association will cause to be delivered to the leased facilities at the Bennett plant milk of substantially all of its member can shippers who formerly delivered.to Meyer Sanitary either at Bennetts or at the Lawrence receiving station. In practice a few Pure Milk members have transferred from Bennetts to other plants and Pure Milk has permitted such transfers by member producers. As many as 200 of the^approximately 1400 producers who sell to Bennetts or through their plant have changed during a year to other plants or from other plants to Bennetts.
“10. Of the Grade ‘A’ producers,delivering to the Pure Milk station at the Bennett plant, 80% to 90% are members of Pure Milk.
“11. Grade ‘A’ producers may transfer at any time from Bennetts to other plants willing to purchase their milk delivering into Kansas City, Lawrence, Topeka, Emporia or Council Grove, thus transferring their quota within the same Federal Marketing Area without any type of permit, unless they have voluntarily signed away this 'right to Pure Milk Producers Association and the Association enforces the right of directing the receiving plant to which the producers’ milk should go. ■ Such transfers have occurred since this action was filed and solicitations for transfers are going on currently. Hauling rates are generally the same for all producers within a route territory for the can milk routes of Bennetts and others, irrespective of distance from the receiving plant. Producers ■cannot transfer their marketing quotas to another Federal Order Market such as Wichita, except in the fall of the year.
“12. The plaintiff in the territory around Burlington, Kansas, covered by his Can Route No. 6 had competition for producers of both Grade ‘C’ and Grade 'A’ milk from milk haulers who hauled to other than the Bennett plant. These competing plants included, from time to time: Meadow Gold of Topeka, through their Emporia receiving station, Pet of Iola; the Burlington cheese factory; a Parsons plant; two bottling plants at Emporia and other local smaller dairies. Some competition from plants other than Bennetts for milk from producers exists generally throughout the area served by the Milk Haulers who deliver milk to the Bennett plant. Grade ‘A’ bottlers, such as the two serving the city of Ottawa, which are not regulated by Federal Order and subject to federal marketing quotas have generally had an adequate and stable supply of milk and have been adding only very few producers.
“18. Since the fall of 1957 a few individual Grade ‘A’ milk producers in the area surrounding Ottawa have converted from pro duction and delivery of milk in cans to production and delivery in bulk. This conversion requires purchase by the producer of a farm bulk tank for the cooling and storing of the milk. It also necessitates the use of an over-the-road bulk tank truck, the milk being .pumped from the farmer’s tank into the tank truck and delivered in bulk. Conversion to bulk delivery makes possible the production and delivery of a cleaner, higher quality, milk. Some plants are paying a bonus of 10‡ per hundredweight for tank milk for a period of 36 months. It also makes possible greater efficiency and saving in hauling expense to the producer through bulk handling and every-other-day pickup in bulk, whereas can pickups must be made every day.
“14. The volume in the Bennett Creamery Company manufacturing plant is presently about 200,000 pounds per day, during the so-called ‘flush season’ of the year when volume is at its highest level. The capacity of the Bennett manufacturing plant is approximately 500,000 pounds per day and the ideal volume would be 350,000 to 400,000 pounds each day. The Bennett Creamery Company needs additional milk for manufacturing and has an interest in preventing loss or depletion of its milk supply.
“15. On February 2, 1957, Crable was anticipating the establishment of a bulk tank milk route for the collection of milk in tanks from the territories in which the milk haulers to the Bennett plant operated their various numbered routes including Can Milk Route No. 6 owned by the plaintiff and Can Milk Route No. 18 owned by the defendant, Carl Kersley. He thereafter purchased a truck for $4,000.00; leased a tank from Pure Milk Producers Association; qualified for a sampler’s license to take samples, etc., at the farms; and commenced the operation of Pure Milk Route No. 14 on March 1, 1957. Galen Bristow owner of Can Milk Route No. 37, had, prior to February 2, 1957, established a bulk tank route which was designated as Pure Milk Route No. 13. Crable and Bristow collected Grade ‘A’ milk from the various can route territories from which milk was collected and transported to the Bennett plant by can haulers and transported the same usually to Meyer Sanitaiy Milk Company at Kansas City, Kansas. However, at the beginning, some tank milk was delivered to the Bennett plant. In the event of a surplus Crable and Bristow could be instructed to divert their loads direct to Bennetts. (See Finding No. 7) Crable’s tank was usually filled for the trip to Kansas City by ‘Topping it off’ at the Bennett plant.
“16. On February 2, 1957, at a called annual meeting of the Milk Haulers Association, a discussion was had concerning the matters later set forth in item 10 of the regulations. The price to be paid by tank haulers to can haulers, upon conversion by a producer from can to tank, was the principaL subject. An agreement was made at that meeting by a majority, including the affirmative vote of the plaintiff and the defendants, Robert Crable and Carl Kersley, all of whom were present. This agreement was later reduced to writing by the Route Committee and agreed to by all the route owners by their signing of the new regulations_Plaintiff’s Exhibit 1, including all of the parties to this action.
“17. The Bennett Creamery Company did not sign Exhibit 1. The Bennett Creamery Company has through the years and does now acquiesce in the division of the milkshed served by Bennetts into territories by the haulers and the regulations adopted by the haulers; has been represented at milk haulers’ meetings; has assisted in the administration of the agreement by the Milk Haulers Association and its Route Committee and has at all times been the custodian of the route map, Plaintiff’s Exhibit 2, which is not changed except in the presence of a representative of Bennetts as well as the individual haulers affected by the change. Any change is by agreement between the haulers affected or as determined by the ‘Milk Haulers Committee.’ JVleyers Sanitary Company, prior to October 1, li)57, and Pure Milk Producers Association, since that date, have likewise acquiesced in the haulers’ agreement to the extent of deducting the haulers’ charge from the proceeds payable to the producer and making payment thereof direct to the hauler.
“18. According to the regulations set out in Plaintiff’s Exhibit 1 ‘all freight on milk hauled to The Bennett Creamery Co., which is produced in a specified territory shown on the (route) map is to be paid to the hauler who owns that territory as shown on the map.’ Said regulations have been administered accordingly by the Milk Haulers Association with the consent, cooperation and assistance of The Bennett Creamery Company. Only the milk hauler in whose territory the milk is produced receives freight on the milk hauled by anyone other than the owner from his territory. A producer, if properly equipped, could, if he desired to do so, haul his own milk to Bennetts and the freight charge for the route territory in which the milk was produced would not be deducted from the price of milk so delivered by the producer thereof. A producer electing to sell Grade ‘A’ or Grade ‘C’ milk at the Ben nett plant is required to use the services of the route owner in whose territory the milk is produced unless he hauls the milk himself.
“19. Under said Regulations, milk haulers were unable to and did set the price to producers for the hauling of their milk and raised the price without prior consultation with producers. Producers desiring to deliver their milk to the Bennett plant and to use the services of a hauler were in effect required to deliver on the truck of the hauler ‘owning the territory at the rate specified by that hauler because no other hauler could receive payment for hauling their milk. Tire acquiescence, cooperation, assistance and participation of Bennetts was present and required in achieving this result, in that deduction from payments to producers and payments of freight to haulers were made at the Bennett plant. The producers’ only alternatives were (1) to haul his own milk or (2) to sell somewhere other than through the Bennett plant.
“20. The price paid by Bennett for Grade ‘C’ milk and the price paid by Myer Sanitary and Pure Milk for Grade ‘A’ milk is determined by federal orders, competition and other factors beyond the control of any of the parties to this action. The agreement between milk haulers, evidenced by Plaintiff’s Exhibit 1, affects the amount received for Grade ‘A’ and Grade ‘C’ milk delivered to the Bennett plant in that the hauling charge fixed by the hauler, without competition from other Bennett milk haulers, is withheld from the purchase price of the milk.
“21. Under paragraph 10 of the Milk Haulers Regulations, Plaintiff’s Exhibit 1, all haulers agree that the bulk or tank hauling rights will be sold for fifty cents (50^) per pound on the average daily delivery of the producer for the previous twelve months under two plans set forth therein.
“22. The 50‡ per pound payment has been applied by separate agreement to bulk haulers who are neither signers of the regulations nor assignees thereof. For instance, Elvin Dillon agreed to make such payment for can milk converted to bulk and hauled on the tank route operated by him in a written agreement procured at the request of an officer of Bennett Creamery Company. Dillon had previously received a similar payment from ‘Bennett’ can milk haulers for producers who transferred to the Bennett plant and the Bennett can haulers from four or five can routes then owned by Dillon and previously delivering to the Lawrence-Meyer receiving station.
“23. The Regulations provide that ‘the rights and benefits of the Regulations shall pass from a route owner to his successor and go with the territory, therefore, the buyer and seller of a route should consider these potential rights and benefits in negotiating the sale or transfer of a territory.’ There have been numerous transfers of routes since February 2, 1957, and many of the persons signing Plaintiffs Exhibit 1 no longer have milk routes to the Bennett plant.
“24. Floyd Isch, can 211, Route 6, converted from a can producer of Grade ‘A’ milk to a bulk producer and transferred to Pure Milk Route No. 14 on July 15, 1957. The average daily weight of said producer was 1,202 pounds. This amount multiplied by 50 é per pound amounts to $601.00. During the preceding year, the Grade ‘A’ milk of producer Isch had been sold and delivered to Meyer Sanitary Milk Company, a Kansas corporation, through the Bennett plant.
“25. Emil Hess, can 1, Route 6, converted from a can producer of Grade ‘C’ milk to a bulk producer and transferred to Pure Milk Route No. 14 on July 15, 1957.- The average daily weight of said producer’s milk was 543 pounds for the preceding period of 91 days during which he delivered to the Bennett Creamery Company. This amount multiplied by 50‡ per pound amounts to $271.50. Producer Hess transferred from another plant and did not deliver to the Bennett plant during the preceding year, with the exception of 91 days prior to July 15, 1957.
“26. Alfred Meyer, can 130, Route 6, converted from a can producer of Grade ‘A’ milk to a bulk producer and transferred to Pure Milk Route No. 14 on August 18, 1957. The average daily weight of said producer’s milk was 714 pounds. This amount multiplied by 50<j¡ per pound amounts to $357.00. Producer Meyer sold and delivered his milk during the preceding year to Meyers Sanitary Milk Company, through the Bennett plant. - 1
“27. Competition exists in Route 6 and the other Bennett milk routes for the collection of Grade ‘A’ milk in bulk by tank from other haulers and companies. The defendants, Crable and Kersley, could have at all times obtained the conversion of Grade ‘A’ producers from can producers to tank producers who were and are being served by other haulers and companies competing with the haulers owning routes at The Bennett Creamery plant and competing with Bennetts, Myers Sanitary and Pure Milk.
“28. On or about January 6, 1958, Crable sold his truck (purchased in October, 1957, for $4,000.00) and assigned his interest in his tank lease and contract with Pure Milk to defendant Kersley for $6,500.00. Defendant Kersley thereafter moved his permanent residence from Phoenix, Arizona, to Ottawa, Kansas.
“29. Although plaintiff and defendants, as well as all the milk haulers mentioned herein, operate trucks for public use in transporting Grade ‘A’ and Grade ‘C’ milk produced by those producers residing in their respective route territories who desire to sell to or through the Bennett plant and therefore appear to be common carriers as defined by Section 660105 of the statutes of Kansas, there is no evidence that any of the parties have applied for and received a permit from the Kansas Corporation Commission to operate as common carriérs. Therefore, the services performed and the rates charged by said parties have not been subject to the supervision and control of the Kansas Corporation Commission.”
“Conclusions of Law
“1. The Milk Haulers Association is an unincorporated association of independent contractors engaged in the hauling of milk for producers desiring to sell milk to or through the Bennett plant. The members of the Milk Haulers Association are not agents or sole agents within the meaning of Section 16-112 of the statutes of Kansas.
“2. The members of the Milk Haulers Association- being the signers of the agreement designated ‘Milk Route Territory Regulations Covering All Independent Milk Trucks Delivering Milk From Producers To The Bennett Creamery Co., Ottawa, Kansas,’ (Ex. 1), and their assigns, have by said agreement bound them selves to divide the area from which milk is produced and delivered to the Bennett plant into territories and prevent any other member-hauler or other person beside ‘the hauler who owns that territory’ from receiving freight on milk hauled to the Bennett plant. The effect of this agreement and the operation thereof has been to eliminate competition for the transportation by. third parties of milk from the producers desiring to deliver to the Bennett plant to said plant contrary to the following provisions of the statutes of the State of Kansas:
“50-101 which prohibits a combination of the acts of two or more persons for the following purposes:
“First, to create or carry out restrictions in aids to commerce, or to carry out restrictions in the full and free pursuit of any business.
“Third, to prevent competition in the transportation of merchandise, produce or commodities, or to prevent competition in aids to commerce.
“Fifth, to pool, combine or unite any interest they may have in connection with the sale or transportation of any article or commodity, that its price may in any manner be affected.
“50-112 which prohibits all agreements between persons or corporations made with a view or which tend to prevent' full and free competition in the transportation of articles of domestic growth and all such agreements designed or which tend to reduce or control the price or the cost to the producer of any products or any other services (in this case transportation).
“3. Such an agreement which is contrary to the public policy of the State of Kansas as defined by the legislature in the statutes referred to above is by the provisions of Section 50-107 of the statutes of Kansas not enforceable in any of the (courts of this state. Judgment will therefore be entered for the defendants.
“4. Although there was no direct evidence to establish that hauling rates would be less if the milk haulers agreement (Ex. 1) were not in effect, such an agreement, being contrary to the declared public policy of the state is presumed to be injurious to the public welfare.” | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the defendant husband from a decree of divorce granted to the plaintiff wife on the statutory ground of incompatibility. (K. S. A. 1974 Supp. 60-1601 [8].) Defendant raises seven points on appeal which question the sufficiency of the evidence and attack the validity and constitutionality of the incompatibility statute.
Patricia Anne North and Kenneth Edmund North were married on June 22, 1968. At the time of the granting of the divorce Patricia was twenty-six years old and Kenneth was twenty-seven years old. The parties had one female child by their marriage.
After more than five years of marriage Patricia filed a petition for divorce, requesting custody of the child, support, and an equitable property division. Shortly thereafter, Kenneth moved the trial court for an order requiring the parties to seek marriage counseling pursuant to K. S. A. 1972 Supp. 60-1608 (now K. S. A. 1974 Supp. 60-1608). A hearing was held and after presentation of evidence the motion for marriage counseling was denied by the court. At the trial Patricia offered the testimony of six witnesses, in addition to her own statement, plus the testimony of a behavioral scientist. She also submitted various letters written to her by Kenneth both before and after the filing of the petition for divorce. Kenneth presented no evidence other than his own testimony.
After hearing the evidence the trial court issued a decree of divorce based upon the finding that the parties did not have common goals and interests in life, and that they argued and quarreled. The court concluded as a matter of law that the parties were incompatible.
Incompatibility as a ground for divorce was authorized by the 1971 Kansas legislature. Since the time of its enactment we have had two cases before this court contesting a decree of divorce granted solely for incompatibility. (See Berry v. Berry, 215 Kan. 47, 523 P. 2d 342; and LaRue v. LaRue, 216 Kan. 242, 531 P. 2d 84.) Despite the infancy of this provision, certain guiding principles have developed. In Berry, we said incompatibility may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable. Petty quarrels and minor bickerings are clearly not sufficient to meet this standard. The legislature, in supplying the additional ground of incompatibility, must have intended to liberalize our divorce laws by broadening the bases upon which divorces may be granted. This does not mean a divorce should be granted perfunctorily or merely upon a party’s charge of incompatibility without real proof of the fact. It is the duty of the trial court to weigh the testimony before it, and our function on review is limited to an examination of the record to ascertain whether the findings of the trial court are supported by substantial, competent evidence.
In LaRue, we reasserted our approval of the foregoing definitions of incompatibility, and further stated it was difficult to imagine a situation in which a husband’s temperament could be compatible with that of his wife if her temperament was incompatible with his.
The first point raised by defendant questions the sufficiency of the evidence to establish incompatibility in their marital relationship. The following is a summary of evidence before the trial court:
Plaintiff testified that she was not desirous of marriage counsel ing as she felt it would not be effective or contribute to their roles as parents; that their marriage had been a disaster from the beginning; that she had often asked her husband to go to a marriage counselor but he continually refused; that she no longer had any respect for his sincerity on any level; and that she no longer loved him and did not want to continue with the marriage. There was additional testimony to the effect that the parties had an unsuccessful sexual relationship for as long as they were married. Plaintiff felt her husband was financially irresponsible as he had never paid income taxes and as a result her wages were garnished by the federal government.
Defendant testified his wife had become less interested in his work and she was developing interests of her own in film work and ballet. He further stated that both he and his wife had a very conventional moral outlook at the time they were married, but she had changed in that regard. When questioned by his attorney, he said, “We originally had common goals and I noticed that our common goals were becoming individual goals where she had a career of her own and I had a career of my own. . . .” The parties would frequently go for three or four nights in a row with only limited conversation between them.
In addition to the testimony of the parties, plaintiff offered testimony of several witnesses supporting the charge that her husband had been seeing other women.
A clinical psychologist who counseled with plaintiff testified she was suffering from an acute anxiety reaction of a situational type and her emotional makeup had been deteriorating as a result of her relationship with her husband. In his opinion, reconciliation would be futile and would only intensify her emotional deterioration.
In applying the definitions of incompatibility as set forth in Berry, to the facts of this case, we are satisfied the trial court acted well within its discretion in granting the divorce for incompatibility. The evidence illustrates a pattern of marital difficulties dating from the beginning of the marriage. There is testimony from plaintiff, as well as a clinical psychologist, as to the futility of any attempt at reconciliation. The parties have testified to the changes in themselves since their marriage which appear to have led to divergent goals and interests. Defendant’s conduct throughout the proceedings, as well as numerous statements made by him at trial, further indicate the irreconcilable differences that existed between the parties. Rased on the evidence presented, we agree with the conclusion of the trial court that the parties were incompatible.
The balance of defendant’s arguments focus upon the constitutionality and validity of the incompatibility statute. The premise on which each of these challenges is made is that the trial court granted what is referred to as a “unilateral divorce.” Unilateral divorce, as it relates to incompatibility, denotes a divorce granted when only one of the parties is incompatible. (See Schulman, Incompatibility: A “New” Approach to the Dissolution of Marriage, 20 Kan. L. Rev. 227.) This premise is contrary to the evidence and the specific findings of the trial court. The court stated that the parties did not have common interests or goals and they argued and quarreled. There was evidence from both parties as to their differing personalities and constant conflicts. Such evidence was not restricted solely to charges by plaintiff. Defendant himself testified as to their arguments and divergent interests. The only reasonable conclusion we can reach is that each party is incompatible with the other. This finding negates defendant’s claim that there was a unilateral divorce. Defendant’s contentions cannot be sustained since premise on which they are based is untrue. We do not imply that if the premise were true we would find merit in defendant’s position. We are merely saying the issues raised by defendant need not be resolved in this action.
All points raised by defendant have been considered and found to be without merit, and the judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
Evie Raymond Lohrbach, the defendant-appellant, was found guilty of having committed three felony offenses in the early hours of April 11, 1973: burglary, felony theft and felony damage to property. He was sentenced to consecutive prison terms of not less than nine (9) years nor more than life for the offense of burglary, not less than nine (9) years nor more than life for the offense of theft and not less than three (3) years nor more than life for the offense of criminal damage to property. The sentences were pronounced against him pursuant to the provisions of K. S. A. 21-4504 ( 2) (Weeks 1974), commonly known as the Habitual Criminal Act, as being a person having previously been convicted of two (2) or more felonies.
Stated briefly the evidence showed that about 2 a. m. on April 11, 1973, a motorist passing by the Brothers Two Tavern in Topeka saw the back door of that establishment being closed and a green Thunderbird car, which had passed him sometime before, parked nearby. He alerted the police who, on arriving at the scene, found the defendant lying in the bushes next to the building. Some $48 in quarters and other small coins were found on his person, along with two canisters of Chemical Mace and thirteen Dutch Master cigars. A large quantity of Coors beer reposed in the trunk of the Thunderbird. A check of the tavern disclosed it had been surreptitiously entered and the following items were missing: several rolls of quarters, two canisters of Mace, ten to twenty cigars, twenty-three cases of beer, miscellaneous small change and a screwdriver. Two coin operated machines worth $300 each had been vandalized and rendered valueless.
Two points are raised on appeal:
1. The trial court erred in admitting prior felony convictions as evidence without a showing of factual similarity.
2. The trial court erred in sentencing the defendant as an habitual offender upon evidence of four prior felony convictions, when those convictions all occurred the same date.
We turn to the first point. During the trial, journal entries were introduced into evidence, showing that Mr. Lohrbach had been convicted of two burglary and larceny charges in the district court of Shawnee County on November 23, 1965. The defendant complains there was no showing of similarity between the circumstances of the former offenses and those involved in the instant case. Hence, he argues, the convictions were inadmissible.
So far as pertinent, K. S. A. 60-455 provides that although evidence that a person has committed a crime on a specified occasion is not admissible to prove his disposition to commit crime as the basis for an inference that he committed another crime on another occasion, yet such evidence is admissible when relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This statute has been before us on many a past occasion and we presume the end is not in sight.
On the basis of the record before us we believe the evidence of former convictions of burglary and larceny was admissible on the issue of intent, even though a specific showing of similarity was not made. Specific intent is an element of both burglary and larceny; an intent on the part of a burglar to commit a felony or theft in the structure or means of conveyance which he has entered, and intent on the part of a thief to' deprive the owner permanently of the possession, use or benefit of his property.
The defendant did not deny having committed the acts charged against him. No issue was raised going to identity, where similarity between the offense charged and past offenses is of substantial importance. The defense offered by the accused in this case was that of insanity. A defense of this nature places intent squarely in issue; it calls into question the defendant’s capacity to formulate a specific intent as well as a capacity to entertain in a legal sense a general criminal intent. (22 C. J. S., Criminal Law, § 56, p. 194.)
In two cases of recent origin, State v. Nading, 214 Kan. 249, 519 P. 2d 714, and State v. Myers, 215 Kan. 600, 527 P. 2d 1053, this court dealt with the admissibility of prior convictions bearing on the issue of intent. Mr. Nading and Mr. Myers were jointly charged but separately tried for attempted burglary stemming from their unorthodox and suspicious behavior as they prowled around a dwelling house at the unusual hour of 4 o’clock a. m. In explanation of their bizarre behavior Mr. Nading testified at his trial they were searching for a hydrant from which to quench their urgent thirst. In the Nading case, we said:
“The previous convictions here were of a similar nature to the offense charged, sufficiently so, we think, that they could properly be taken into consideration as casting light upon the issue of the intent with which appellant’s acts at the Hansen residence were done. We think the probative worth of this evidence sufficiently outweighed any possible prejudicial effect so as to render it admissible within the trial court’s discretion. Consequently it must be held the court did not err in this respect.” (p. 255.)
In State v. Jenkins, 203 Kan. 354, 454 P. 2d 496, the defendant was tried for robbery in the first degree. On appeal he complained that the details of a prior conviction introduced under the provisions of K. S. A. 60-455 had not been shown. Concerning this complaint, we said:
“. . . We cannot agree with the appellant’s theory. The fact that the appellant had been convicted of a previous offense of first degree robbery would tend to prove certain elements of tire offense charged. . . .
“A previous offense may under some circumstances tend to prove some of the elements mentioned in the statute although there is little similarity, and by the same token, a similar crime may not be relevant as tending to prove all of the elements mentioned in the statute. These are matters that must be left to the sound discretion of the trial court, and the admission of evidence of previous crimes must always be accompanied with proper limiting instructions.” (p. 356.)
In our judgment the evidence of Mr. Lohrbach’s prior convictions for burglary and larceny was admissible as to the element of intent, and no abuse of discretion may be charged against the trial court in permitting its introduction.
Turning to the second point, our attention is called to the fact that the four prior convictions introduced by the state, and on which the trial court relied in passing sentence against the defendant as a three-time offender, all occurred on the same day, November 23, 1965. Because the convictions were simultaneous, or practically so, the defendant argues they could be considered as only one previous conviction for the purpose of enhancing the sentence. We believe there is merit in his argument.
The basic philosophy underlying recidivist statutes might be expressed in this fashion: where the punishment imposed against an offender for violating the law has failed to deter him from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause him to accomplish his reformation, where the lesser penalty had failed in that respect.
Recidivist statutes have long been a part of our criminal code. In G. S. 1868, ch. 31, § 289, we find a provision that if any person convicted of felony be discharged upon pardon or compliance with the sentence, and shall subsequently be convicted, he shall be punished by confinement at hard labor for the longest term prescribed upon conviction for the first offense. The precursor of our present statute was enacted for the first time in 1927. In passing upon the validity of that act this court made the following observation in State v. Woodman, 127 Kan. 166, 272 Pac. 132:
“. . . Formerly the imposition of the sentence was left to the discretion of the trial judge within limitations, and it was common for old offenders and hardened criminals to receive severe sentences while first offenders convicted of the same crime were leniently dealt with. And it is a salutary provision of law that criminals whom the law’s discipline has hitherto failed to reform by prior conviction and punishment should form a class to be more severely punished than first offenders. . . .” (Emphasis supplied.) (p. 171.)
The Woodman case was cited in State v. Ricks, 173 Kan. 660, 661, 250 P. 2d 773, wherein we stated:
“The avowed purpose and salutary provisions of the habitual criminal law as a disciplinary measure for those whom previous conviction and punishment have failed to reform were stated early in State v. Woodman, supra, and need not be repeated here.” (Emphasis supplied.)
The latest expression of the legislative will in this area is found in K. S. A. 21-4504 (Weeks 1974), which reads in part as follows:
“Every person convicted a second or more time of a felony, the punishment for which is confinement in the custody of the director of penal institutions, upon motion of the prosecuting attorney, may be by the trial judge sentenced to an increased punishment as follows:
“(1) If the defendant has previously been convicted of not more than one felony:
“(a) The court may fix a minimum sentence of not less than the least nor more than twice the greatest minimum sentence authorized by K. S. A. 1972 Supp. 21-4501 for the crime for which the defendant stands convicted; and
“(b) Such court may fix a maximum sentence of not less than the maximum provided by K. S. A. 1972 Supp. 21-4501 for such crime nor more than twice such maximum.
“(2) If the defendant has previously been convicted of two (2) or more felonies:
“(a) The court may fix a minimum sentence of not less than the least nor more than three times the greatest minimum sentence authorized by K. S. A. 1972 Supp. 21-4501 for the crime for which the defendant stands convicted; and
“(b) Such court may fix a maximum sentence of not less than the maximum prescribed by K. S. A. 1972 Supp. 21-4501 for such crime, nor more than life.”
We have had no occasion to consider the precise question posed by this record, but our decisions shed considerable light on our trend of thought in the general area. In State v. Felton, 194 Kan. 501, 399 P. 2d 817, the defendant was convicted of robbery committed in Johnson County, November 17, 1954. Before being tried on the robbery charge, Felton was convicted of burglary and grand larceny in Sedgwick County. Thereafter and on March 23, 1956, Felton was convicted of the Johnson County robbery and the trial court pronounced sentence under the Habitual Criminal Act, using the Sedgwick burglary and larceny conviction as a prior conviction. Our holding on reversal is reflected in syllabus 3:
“Following the general rule it is held that in order to enhance the punishment authorized by the Habitual Criminal Act (K. S.A. 21-107a), it is a prerequisite that the prior conviction or convictions relied on precede the commission of the principal offense.”
In the Felton opinion we quoted from the Woodman and Ricks opinions, remarking that they dealt with the “fundamental purpose and objective of the Habitual Criminal Act.” (p. 504.) Cited also was language from State v. Close, 130 Kan. 497, 287 Pac. 599, to the effect that the legislature, on enactment of the Habitual Criminal Act, had it in mind to “deter the criminally inclined from repeated felonies.”
In State v. Walden, 208 Kan. 163, 490 P. 2d 370, we used the following language:
“. . . The cases mentioned declare that prior convictions relied on to enhance the punishment as authorized by the habitual criminal act must precede the commission of the principal Offense. . . .” (p. 166.)
A set of facts more nearly comparable to those in the case at hand came before this court in State v. Murray, 200 Kan. 526, 437 P. 2d 816, where the defendant had previously been convicted of burglary and larceny arising out of a single taking. The trial court in pronouncing sentence considered the prior convictions as being two in number and sentenced the defendant as though he had been convicted a third time of felony. In reversing the lower court as to the sentence, we said:
“The habitual criminal act was passed in the hope of bringing about a reformation of criminals by an increased penalty for a second offense and when that hope of reformation had passed then the increased punishment should be meted out for the third offense. . . .” (p. 530.)
The reasoning behind our several cases leads us to the conclusion that the four convictions occurring on November 23, 1965, may be used only as a single conviction for the purpose of enhancing the penalty imposed upon the defendant. Hence, Mr. Lohrbach could have been sentenced only as a “one-time loser” on the basis of the four convictions introduced by the state at time of sentencing.
In reaching this result we follow the rule generally prevailing throughout this country, as expressed in 24 A. L. R. 2d Anno: Habitual Criminal Statutes, § 9, p. 1262:
“The majority of the cases in which the courts have construed statutes which, in substance, provide for enhancement of the punishment of one previously convicted, hold that where there were two or more convictions on as many indictments or on two or more counts in the same indictment, only one of them may subsequently be utilized as a previous conviction within the contemplation of habitual criminal statutes.”
The judgment of the court below is sustained as to the conviction but reversed as to sentence, and the cause is remanded for resentencing.
It is so ordered.
Fromme, J., not participating. | [
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Per Curiam:
On June 3, 1975, Richard Eugene Blackwell voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is By Order of the Court Considered and Accepted.
The Clerk of this Court is Ordered and Directed to mark the certificate Void and to Strike Richard Eugene Blackwell’s name from the roll of attorneys. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal case in which the defendant-appellant, Joe H. Morin, was convicted by a jury of kidnapping (K. S. A. 21-3420) and aggravated robbery (21-3427). The facts in the case are not in dispute and are essentially as follows: On December 15, 1973, Ronald Bennett, manager of the Old Way Station restaurant in Wichita, interviewed a man calling himself Reed David Taylor for a job as a cook. The man was hired and told to report for work the following day. At the trial Bennett identified the defendant, Joe H. Morin, as being the same person as Reed David Taylor. According to Bennett the defendant reported for work on the following afternoon and worked at the restaurant until it closed at 10:00 p. m. After the restaurant had been cleaned up, Bennett offered to give the defendant a ride home, which offer the defendant accepted. A short distance from the restaurant the defendant pulled a gun from his coat and ordered Bennett to return to the restaurant. There the defendant compelled Bennett to open the floor safe. At defendant’s direction Bennett placed the money from the safe in a brown plastic bag produced by the defendant. The defendant then bound Bennett to a chair with adhesive tape and fled the scene in Bennett’s car, a white 1967 Ford Galaxie.
Bennett freed himself after about 15 minutes and immediately summoned the police. Bennett gave the police descriptions of the robber and his car which were immediately broadcast over the police network. A few minutes thereafter Bennett’s white Ford was found abandoned near the East Wichita interchange of the Kansas turnpike. The Kansas Turnpike dispatcher was notified by telephone of the abandoned car and was given a physical description of the robber. In turn the dispatcher radioed this information to all turnpike interchanges near Wichita. The East Wichita interchange on receipt of this information notified the turnpike dispatcher that a man matching the description of the robber had entered the turnpike at the East Wichita interchange driving a blue pickup truck. Not long thereafter the turnpike dispatcher was notified by the Wellington turnpike interchange that a man answering the broadcast description and driving a blue pickup truck bearing red and white license plates had left the turnpike at the Wellington interchange taking highway 160. This information was overheard by the Wichita police dispatcher who immediately inserted it into an all-points bulletin. The Wellington police dispatcher, who had received the all-points bulletin from the Wichita police, notified the Oxford, Kansas, police department giving a description of the suspect and the blue pickup truck. Two Oxford officers in a police car heard the broadcast, drove to the outskirts of town, and waited by highway 160. Soon a blue pickup truck bearing red and white license plates drove by. The officers immediately stopped the truck and asked the driver to step out. He complied. The driver was the defendant. The defendant was informed that he was a suspect in an armed robbery in Wichita. One of the officers conducted a pat-down search of the defendant and found a cocked gun in his right-hand jacket pocket. The police broadcast heard by the Oxford officers had stated that the stolen money had been placed in a brown plastic bag. One of the officers looked through a window into' the camper where he observed a brown plastic bag. The defendant was placed under arrest and taken to the Oxford police station. The truck was temporarily left behind but after a short interval of time one of the police officers returned and drove the truck to the police station. Hiere the truck was searched. A brown plastic bag containing two canvas bags of money and a wig were found under the front seat. At the trial this money was identified as the stolen money. The defendant was found guilty as charged. The defendant has appealed to this court complaining of trial errors.
Hie first point raised on the appeal is that the district court erred in failing to suppress the physical evidence seized from the defendant and his vehicle. The defendant filed a motion to suppress the evidence obtained in the search prior to the trial. An evidentiary hearing was held on this motion and the motion was denied. The defendant’s primary concern was the admission into evidence of the brown plastic bag, the stolen money, and the wig. The defendant challenges the legality of the search of his person and his truck on the basis that the search was not incident to a lawful arrest nor was there probable cause to conduct the search. Accordingly he argues that the evidence obtained from the search should have been surpressed. The primary issue for us to determine is whether or not the arresting officers had probable cause to arrest the defendant and search his person and his truck. On the record before us we have concluded that the arresting officers had probable cause to search the defendant’s person for weapons and further to search the vehicle to discover the fruits or instrumentalities of the crime. In Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, the United States Supreme Court defined probable cause in the following language:
“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ . . . And this ‘means less than evidence which would justify condemnation or conviction, . . . Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. . . .” (pp. 175, 176.)
This court set out similar requisites of probable cause in State v. Little, 201 Kan. 94, 439 P. 2d 387, where we said:
“. . . Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested.” (Syl. ¶ 1.)
In State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, we stated in regard to the existence of probable cause:
“There is probable cause to search when there exist facts and circumstances sufficient to warrant a reasonable prudent man to believe that an automobile contains contraband or items which offend against the law.” (Syl. f 3.)
For recent cases involving probable cause in the search of an automobile see State v. McCollum, 211 Kan. 631, 507 P. 2d 196; State v. Undorf, 210 Kan. 1, 499 P. 2d 1105; State v. Tygart, 215 Kan. 409, 524 P. 2d 753; and State v. Mall, 216 Kan. 287, 532 P. 2d 1048.
When we turn to the evidentiary record record before us it is clear that the Oxford police officers had the following information at the time they stopped the blue pickup truck which the defendant was driving: They knew that an armed robbery had been committed in Wichita that evening, that the suspect was armed with a pistol, and that the money taken had been put in a brown plastic garbage bag. They knew that the robber was a bearded white male, 5' 6" tall, 140 to 160 pounds, stockily built, with shoulder length brown hair which may have been a wig, and wearing gold rim glasses and a jacket with pencils in a sleeve pocket. They also had been informed that the robber had left the scene in a stolen white 1967 Ford Galaxie which shortly thereafter had been found abandoned near the East Wichita turnpike interchange. They had been informed that a man answering the description of the robber had entered the East Wichita turnpike interchange driving a blue pickup truck and that a blue pickup truck bearing red and white license plates driven by a man answering the broadcast description had left the turnpike at the Wellington interchange and had taken highway 160. In a matter of a few minutes the alert Oxford police officers observed a blue pickup with red and white license plates traveling on highway 160. They immediately stopped the vehicle and told the driver to get out of the vehicle. On a pat-down search one of the officers discovered a cocked gun in the defendant’s right-hand jacket pocket. One of the officers observed a brown plastic bag through the window of the pickup. The defendant was arrested and taken to the Oxford police station. Without delay one of the officers returned and drove the truck to the police station where the truck was searched.
On the basis of this evidence we have no hesitancy in holding that the trial court did not err in overruling the defendant’s motion to suppress evidence. In making the initial stop of the pickup truck the police officers had a reasonable suspicion that a crime had been committed by the occupant of the vehicle as required by K. S. A. 22-2402 (1). Since the police broadcast had stated that the suspect was armed, they had a reasonable suspicion that their personal safety required a search of the driver for a firearm or other dangerous weapon. This pat-down search of the defendant disclosed a cocked handgun which under the circumstances was properly seized. (22-2402 [2].) See also Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and Adams v. Williams, 407 U. S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921. The arresting officers then observed a brown plastic bag which matched the description contained in the earlier broadcast. The defendant was immediately arrested. It is clear to us that at this point the officers had probable cause to arrest the defendant and to take into their possession a firearm discovered on the defendant’s person.
The defendant complains that there were two conflicting stories given by the state’s witnesses as to the source of the information received by the Oxford police officers prior to taking the defendant into custody. The record shows that at the evidentiary hearing on the motion to suppress one of the Wichita police officers testified incorrectly that the source of the information about the defendant’s changing vehicles from the white Ford Galaxie to the blue pickup truck was information provided by another Wichita police officer. At the trial where the full testimony was developed it became obvious that the source of the information connecting the robber with the blue pickup truck was an employee at the East Wichita turnpike interchange. We fail to see how this confusion could have any material effect on the determination of the issue of probable cause. The Oxford police officers who stopped and arrested the defendant had received information that a suspect bearing the description of the robber was driving a blue pickup truck. Information in the hands of the arresting officers may properly be received from a number of sources and need not come from a single source. We find no merit in this contention.
The defendant also complains that once the defendant had been taken into custody, the Oxford police should have obtained a search warrant before undertaking to search the defendant’s vehicle at the police station. The factual circumstances presented in this case are quite similar to those in Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975, reh. den. 400 U. S. 856, 27 L. Ed. 2d 94, 91 S. Ct. 23. In Chambers it was held that where in the middle of the night and in a dark parking lot, police officers had stopped an automobile and arrested the occupants, their search of the automobile at the police station after both the automobile and the occupants had been taken there was valid on the basis of probable cause. The court recognized that automobiles can be searched without a warrant under circumstances which would not justify the search without a warrant of a house or an office, provided there is probable cause to believe that the automobile contains articles which the officers are entitled to seize. Here the officers had probable cause to believe that the vehicle contained items relating to the crime. Furthermore the amount of time which elapsed between the arrest of the defendant and the search of the truck was relatively short and the officers understandably desired to place the defendant in safe detention before proceeding to search the vehicle. Under all the circumstances we find that the search of the vehicle at the police station was not an unreasonable search and was justified on the basis of probable cause. Before leaving this point it should be noted that there was testimony to the effect that the defendant assented to the search of his truck, although we need not premise our decision on that hypothesis.
The second point raised by the defendant on this appeal is that the trial court erred in overruling the defendant’s objection to the introduction of testimony regarding certain fingerprint tests. The defendant complains, and correctly so, that the state did not comply with an order made by the trial court directing the district attorney to produce for examination and inspection by defendant’s counsel the results of any physical or scientific tests which the prosecutor would seek to introduce at the trial. The record shows that on January 18, 1974, the defendant filed a discovery motion pursuant to K. S. A. 22-3212 requesting information from the district attorney as to the results of scientific tests. On January 25 this motion was granted but no formal journal entry was ever drawn. On April 8, 1974, the state filed a motion to endorse on the information the names of three additional witnesses: Richard Cook, E. A. Mandeen, and Robert Cocking, all of the Wichita Police Department. Cook is a fingerprint expert and Mandeen is the jailer who took defendant’s fingerprints. The motion was granted on April 12, 1974, with the knowledge of and without objection from defendant’s counsel. Defendant’s trial began on April 17,1974.
The defendant objected at the trial to the introduction of any testimony concerning fingerprint tests for the reason that he had not been informed of the results of such tests. He contended that any testimony on this subject amounted to noncompliance with the discovery order, surprise, and therefore was substantially prejudicial to the defense. It is clear that the state did not comply with the discovery order. The effect of the failure of the state to comply with a discovery order is set forth in § 7 of 22-3212 which states in substance that if at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an order requiring discovery, the court may (1) order such party to permit the discovery or inspection of materials not previously disclosed, (2) grant a continuance, (3) prohibit the party from introducing in evidence the material not disclosed, or (4) enter such other order as it deems just under the circumstances. Under this section the trial court is given a wide discretion to impose sanctions for failure of a party to comply with an order of disclosure. (State v. Jones, 209 Kan. 526, 498 P. 2d 65.) The state in its brief is apologetic about its failure to comply with the order of discovery but contends that the trial court acted reasonably under all the circumstances and did not abuse its discretion. It further contends that the defendant has failed to show that his substantial rights were prejudiced. Under all the circumstances we cannot say that the trial court abused its discretion. In the first place the additional witnesses, Cook and Mandeen, were endorsed on the information without objection from the defendant on April 12, five days prior to the trial. Furthermore the investigator who had lifted the defendant’s fingerprints was endorsed as a witness on the original information and the substance of the fingerprint testimony could have been discovered from him. In addition, as soon as the objection to the fingerprint evidence was made by the defendant, the court granted defendant a 25-minute recess during which time defense counsel had the opportunity to inform himself about the evidence. Following this recess no request was made for a continuance by the defendant. The importance of such a motion has been noted in this court in State v. Jones, supra, where we said:
“We are impressed that in furtherance of just and expeditious determination of cases, as stated in the ABA Standards, requests for continuance should be utilized where necessary if a party is surprised because of his adversary’s failure to disclose in compliance with a discovery order. Such procedure will enable a court more validly to distinguish the good faith request for help from the development of a mere ploy to be used later upon appeal if needed.” (p. 531.)
If the defendant had requested a continuance it is entirely possible that additional time would have been afforded the defendant to determine what should be done to counter this new evidence. In addition it is clear that the defendant failed to ask for a posttrial examination of the fingerprint tests and made no attempt on the motion for a new trial to show that the results of the test were in any way incorrect.
Finally we have concluded that under the totality of the circumstances any error in admitting the fingerprint evidence was harmless error and did not prejudice defendant’s right to a fair trial. Here the evidence of guilt was overwhelming. The defendant was positively identified by the victim of the robbery. He was apprehended with the stolen money and wig in his possession. Although the fingerprint evidence aided the prosecution, it was not crucial. Any error committed in regard to the fingerprint evidence cannot be held to be prejudicial error.
For the reasons set forth above the judgment of the district court is affirmed.
Fbomme, J., not participating. | [
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Per Curiam:
This is an appeal from the denial of John Deans petition for a writ of habeas corpus. The petition stems from extradition proceedings initiated by the Governor of Texas following Dean’s release from the United States Penitentiary at Leavenworth, Kansas. The petitioner had entered a plea of guilty to a burglary charge in Texas and was sentenced to twelve years confinement. Petitioner was also convicted in United States District Court on a federal charge and was sentenced to twelve years. He was transferred to the United States Penitentiary at Leavenworth, Kansas, to serve his sentence.
The issue presented concerns the sufficiency of the requisition and demand from the Governor of Texas. More specifically, petitioner alleges that the requisition and demand did not comply with the provisions of K. S. A. 22-2703. 22-2703 provides in substance that extradition may be obtained where:
“. . . the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole, or that the sentence or some portion of it remains unexecuted and that the person claimed has not been paroled or discharged or otherwise released therefrom.”
In the present case the demand alleged that the petitioner had escaped.
On appeal the petitioner contends that he never “escaped” from the custody of Texas. Therefore he alleges the demand was defective and should not have been recognized by the Governor of Kansas. The Governor’s warrant is prima facie evidence that the petitioner is a fugitive and the burden is upon the petitioner to overcome the prima facie case made by the warrant. (Powell v. Turner, 167 Kan. 524, 207 P. 2d 492.) Petitioner was convicted and sentenced in Texas for burglary, thereafter he was transferred to Kansas to serve his federal sentence. The application for requisition states:
“The circumstances by which the said JOHN DEAN has escaped are as follows: he was released by Leavenworth Kansas Penitentiary after serving federal sentence and arrested by Leavenworth Sheriff for this department.”
The foregoing indicates that petitioner did not, in the literal sense, escape. Thus, under the facts alleged in the application for requisition, the appropriate statement in the demand pursuant to K. S. A. 22-2703 would appear to have been that the “sentence or some portion of it remains unexecuted” rather than the allegation of escape.
Nonetheless, in every other regard the application for requisition clearly indicates that the petitioner is a fugitive from justice. (Woody v. State, 215 Kan. 353, 524 P. 2d 1150.) The statutory requirements for requisition and demand have been met. The document clearly shows that petitioner was convicted of the crime of burglary in Texas and that he is a fugitive. Petitioners contention amounts to nothing more than a technicality which should not operate to void an otherwise proper extradition request.
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This litigation erupted over a dispute as to water rates. The plaintiff, Shawnee Hills Mobile Homes, Inc. (sometimes called Mobile Homes herein), operates a mobile home court lying south and west of Topeka and within the boundaries of Rural Water District No. 6. Mobile Homes became unhappy with the rate which applied to it and filed this injunction action. The trial court agreed that the rate charged Mobile Homes was unreasonable and enjoined the district from collecting the same. District No. 6, feeling aggrieved, brings the present appeal. Mobile Homes has filed a cross-appeal.
A short history is in order. On July 24,1961, Water District No. 6 (herein referred to as defendant or district) was organized as a quasi-municipal corporation by order of the Board of Shawnee County Commissioners, pursuant to K. S. A. 82a-612, et seq., to which we will refer as the Rural Water District Act or, more simply, as the Act. On the same date Rural Water District No. 7, adjoining District 6 was organized, also pursuant to the Act. To assist them in constructing their individual water systems each district obtained a loan from the Fanners Home Administration (F. H. A.), a government agency administered by the Department of Agriculture, and each district secured its loan by real estate mortgage. At the bidding of F. H. A. the two water districts entered into a contract whereby District 6 agreed to provide water to District 7, which had no independent source of its own, at the rate of 65 cents per 1000 gallons, subject to certain adjustments of no importance here.
Under provisions of K. S. A. 1974 Supp. 82a-619, rural water districts are given authority, among other powers, to sue and be sued, to enter into contracts, to hold real estate and personal property, to construct, install, maintain and operate such ponds, reservoirs, pipelines, pumping installations or other facilities for the storage, transportation or utilization of water as may be necessary to carry out the purposes of its organization, to cooperate with and enter into agreements with the secretary of the United States Department of Agriculture, or his duly authorized representative, to accept such aid as the secretary of agriculture is authorized to give and to acquire loans for financing up to ninety per cent of the original cost of construction projects needed to carry out the purpose for which the district is organized. A district may secure its loan by mortgaging its assets, but may not levy any taxes.
Management of district affairs is vested by the Act in a board of directors, with authority to adopt such rules and regulations, in conformity with the provisions of the Act and the bylaws of the district as are deemed necessary for the conduct of the business of the district. An integral feature of the plan outlined in the Act is the “benefit unit.” The statute provides that the total benefits of any improvement shall be divided into a suitable number of benefit units and “each landowner within the district shall subscribe to a number of such units in proportion to the extent he desires to participate in the benefits of the improvements.” Where the capacity of the facilities permit, participating members may subscribe to additional units on payment of the fee for each unit.
Bylaws of District 6, adopted by the landowners as outlined in K. S. A. 1974 Supp. 82a-621, provide that no landowner can become a water subscriber unless he has subscribed and paid for one or more benefit units; that units are considered donations to the district and are not refundable; that they follow title to the land and transfer cannot be made without board approval. A benefit unit entitles the owner to not to exceed one water line to his property, each line to serve not to exceed one residence or business establishment with usual outbuildings. The bylaws authorize the board to fix charges for water services and to establish equal rates for farm members and non-farm members according to the amount of services furnished. Cost of a benefit unit was originally set at $225 but was increased to $450 at the annual district meeting held February 2, 1972.
The rate schedule for individuals was adopted by the board May 2, 1962. Under the schedule, individual users are charged as follows:
$8 per month for up to 3000 gallons,
$1.50 per 1,000 gallons for the next 2,000 gallons, and
$1 per thousand gallons for all over 5,000 gallons.
Subsequently the $8 minimum was broken down into two figures: $6 denominated “debt retirement” and $2 for a minimum of 3,000 gallons. The testimony disclosed that the revenue derived from both charges went into the district’s operating fund.
At the time the defendant installed its water system Mr. and Mrs. Donald W. Campbell owned the mobile home court, which then had some fifty residential or living units. On December 18,1962, the Campbells entered into a written agreement with the district whereby they purchased ten benefit units for the court and it was agreed their water rate would be:
$80 per month for the first 30,000 gallons, and
50 cents per thousand gallons over the minimum.
Washburn Rural High School, which is located within the water district, also purchased ten benefit units, and the rate for this user was fixed at $80 per month for the first 30,000 gallons and $1 per thousand gallons over that minimum.
In 1965 Mr. Dwight Tollefson purchased the Campbells’ interest in Shawnee Hills Mobile Homes, Inc., and the benefit units accruing thereto were transferred to him. Mr. Tollefson continued to receive water at the same rate as had the Campbells until approximately June 1, 1966, when the rate per thousand gallons over the 30,000 minimum was increased, by mutual consent, from 50 cents to $1. This change in rates was approved by Farmers Home Administration. Mr. Tollefson maintains an agreement was made that the increase was to be temporary, and was to continue only until the district was obtaining water for its system from the city of Topeka and was operating at a profit. Mr. Tollefsons testimony was disputed, however, and the disagreement was laid to rest by the trial court’s finding that Mobile Homes failed in its proof on this point. There has been no appeal from that finding.
Mobile Homes paid the $1 rate until October 1970, when Mr. Tollefson heard that the district had enjoyed a good year and had made a profit. At that time Tollefson determined to reduce payments to 50 cents per thousand gallons and Mobile Homes has unilaterally been paying at that rate ever since. The reduced payments have not been accepted without protest, however, and the district board has threatened to cut off Mr. Tollefsons water.
This injunction proceeding was commenced in 1971. In addition to seeking injunctive relief on the ground that the rates were arbitrary, unreasonable and capricious, Mobile Homes also prayed judgment for alleged overcharges. February 22, 1973, the petition was amended to enjoin enforcement of a resolution adopted by the district board June 7, 1972, which would have required plaintiff to pay a $6 per month debt retirement charge on each mobile home, instead of on each benefit unit, as had been the case.
It may be said in general that the answer filed by the district traversed the allegations of plaintiff’s petition as amended. In addition, the district filed a motion for summary judgment alleging plaintiff had failed to join a contingently necessary party, namely, the United States Government.
The case was tried to the corut, which entered a number of findings. Those deemed pertinent to the issues raised in this appeal are summarized: the Farmers Home Administration is not an indispensable or necessary party; the Rural Water District Act (K. S. A. 82a-612, et seq.) is not unconstitutional; plaintiff failed to establish a valid contract made on or about June 1, 1966, providing that plaintiff’s water rate in excess of 30,000 gallons would revert to 50 cents per thousand gallons, instead of $1, as soon as the district was supplied by water from the city of Topeka and was operating profitably; the contract between the district and the Campbells was terminated by the implied consent of the parties; the plaintiff is a business as such term is used in the bylaws and rules of the board; the rate of $1 per thousand gallons charged plaintiff for water used in excess of 30,000 gallons was unreasonable and excessive in that it failed to provide plaintiff with an adequate bulk rate; the board’s resolution of June 7, 1972, requiring each mobile home to pay a monthly $6 debt retirement charge constitutes rank discrimination and deprives plaintiff of all savings as a bulk user.
In conclusion the trial court permanently enjoined the district: (1) from requiring Mobile Homes to pay at the rate of $1 per thousand gallons of water in excess of 30,000 gallons, and (2) from enforcing the resolution of June 7, 1972, classifying each trailer as a residential unit requiring a $6 per month debt retirement charge.
In the defendant’s statement of points, it is said the trial court erred:
1. In overruling its motion for summary judgment for the reason that an indispensable or contingently necessary party, namely, the United States Government, was not made a party.
2. In finding the district board acted arbitrarily, unreasonably and capriciously in requiring plaintiff to pay $1 per thousand gallons for water in excess of 30,000 gallons and in finding said rate failed to provide an adequate bulk discount, for the reason there was no substantial competent evidence on which to base the findings.
3. In permanently enjoining the district from requiring plaintiff to pay at the rate of $1 per thousand gallons in excess of 30,000 gallons.
4. In' denying defendant’s claim for attorney fees. This point has not been briefed by the appellant district and has been abandoned.
K. S. A. 1974 Supp 60-219 (a) deals with the joinder of parties and proclaims the law of this state with respect to that subject. The statute provides:
“(a) iPersons to be joined if feasible. Whenever a ‘contingently necessary’ person, as hereafter defined, is subject to service of process, he shall be joined as a party in the action. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
“A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ti) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
In the event a contingently necessary person cannot be made a party, subsection (b) outlines the factors to be considered by the court in determining whether or not the action should be dismissed.
The district’s argument that the United States government is a necessary party is based on a clause of the mortgage agreement with the Farmers Home Administration in which that federal agency reserves the right to approve or disapprove rates set by the district. The district argues that this stipulation in the mortgage contract clearly vests F. H. A. with an interest in the subject matter of the lawsuit, and that for the court to dispose of this action in the absence of the Federal Home Administration might prejudice either the parties presently before the court, or the absentee federal government.
The Kansas statute on joinder is closely modeled on Federal Rule 19. (7 Wright & Miller, Federal Practice and Procedure: Civil, § 1617.) We are aware that in discussing the applicability of the federal rule to the federal government, the authors of that work have this to say:
“. . . When an interest of the federal government is involved in a suit and a judgment cannot be rendered without affecting that interest, the government must be made a party to the action. If that is not feasible, the United States may be regarded as an indispensable party under Rule 19 (b) and the action dismissed. . . ." (p. 171.)
We are mindful, also, of federal decisions holding the United States to be an indispensable party where its security interest in property is imperiled by pending litigation. Examples of solicitude for the financial integrity of our national government may be found in Franz v. East Columbia Basin Irrigation District, 383 F. 2d 391, and City of Andarko, Oklahoma v. Caddo Electric Cooperative, 258 F. Supp. 441. In each of those cases, some portion of the tangible property securing the government’s lien was sought to be taken out of and released from the lien, an attempt which, if successful, would have impaired the value of the tangible property securing the hen.
We believe that neither the Wright & Miller citation nor the federal cases to which we have alluded are of controlling force under the circumstances of this case. We consider those authorities to lay down the rule that when the res of the government’s security is threatened, the government, or its responsible agent, becomes a necessary or indispensable party. Mobile Homes is not attempting through this action to take any part of the property securing F. H. A.’s loan to District 6; it does not seek to diminish or endanger the res which secures the government’s lien. The reservation by F. H. A. of the right to approve or disapprove water rates may reflect an interest in regard to rates, but the nature of that interest would appear to us as far less substantial than its interest in seeing that the res remained intact. Mr. Morgan Williams, state director of the Farmers Home Administration, testified that after a district has been established, and so long as it is meeting the monthly payments of principal and interest (as the district has been doing here), the agency exercises very little supervision over rates; that the agency has never foreclosed a mortgage given by a water district but if'a district lowered its rates without approval “we would probably either post-approve or post-reject the rate.”
As we view the relationship between the district and Farmers Home Administration, the interest of the latter in the rates being charged by the former is of such indirect and tenuous nature that we cannot say the United States is an indispensable or contingently necessary party within the purview of K. S. A. 1974 Supp. 60-219 (a).
The foregoing conclusion requires us to consider the next two points raised by the district. Taken together, they are, in essence, that the court erred in finding the $1 per thousand gallon rate (over 30,000 gallons) charged Mobile Homes was unreasonable and excessive as applied to a bulk purchaser, and in enjoining collection thereof.
Kansas cases relating to this point are few in number. However, we are not entirely without precedent. District No. 6 is a quasi-municipal corporation (K. S. A. 82a-604) and no claim is made that it is subject to supervision and control by the state corporation commission. Nonetheless, the district is not free to exact whatever rate it sees fit to impose. In Holton Creamery Co. v. Brown, 137 Kan. 418, 419, 20 P. 2d 503, this court considered a challenge directed against rates charged by a municipal corporation for water services and there we said:
“. . . Such rates must be reasonable; and persons and corporations dependent on these utilities are entitled to judicial protection against excessive or confiscatory rates. . . .” (Emphasis supplied.)
In the Holton case, this court defined the standard by which the reasonableness of municipal water rates are to be gauged. As the court announced, rates must be reasonable in the sense that they are not excessive or confiscatory. It is in this frame of reference that we must judge the circumstances of this case.
It is generally recognized that water rates set by a municipality are presumed to be valid and reasonable until the contrary has been established. (Usher v. City of Pittsburg, 196 Kan. 86, 90, 410 P. 2d 419; 94 C. J. S., Waters, § 289a, p. 173) and the burden of overcoming this presumption rests upon the challenging party. In a comparable case of recent vintage, West Elk Unified School District v. City of Grenola, 211 Kan. 301, 507 P. 2d 335, the plaintiff challenged sewer service rates charged against it as being arbitrary, capricious and an unlawful usurpation of the legislative power of the municipality. In rejecting the plaintiff’s contention, we quoted from our opinion in Mullins v. City of El Dorado, 200 Kan. 336, 436 P. 2d 837, where the reasonableness of special assessments levied against real property was in issue:
“ . . Only if palpable injustice results in applying the method of apportionment and assessment so that the burden imposed is entirely disproportionate to benefits received, will courts, under their equity power, grant relief. . . . The action of municipal authorities in making a special assessment is presumed to be legal, equitable and just, and the assessment is prima facie evidence of the regularity and correctness of all prior proceedings. . . . Thus, in establishing grounds justifying intercession by the courts, a property owner has the burden of proof. . . (p. 304.)
The scope of judicial review of water rates set by a municipality is discussed in some depth by the Iowa Supreme Court in Knotts v. Nollen, 206 Iowa 261, 218 N. W. 563. The question was whether the rate or classification given apartment houses by the municipal water plant was disoriminatory, inasmuch as apartment houses were classified for rate purposes as residences, with each separately occupied suite or set of rooms being rated as one residence. The apartment owners contended that since special rates were given to owners of other large buildings such as stores, hotels, offices, etc., the denial of wholesale rates to them constituted unlawful and arbitrary discrimination. In finding no discrimination, the court observed:
“Rate-making is a legislative or administrative, not a judicial, function. A rate fixed by the proper administrative authority, while it may be annulled if in violation of legal rights, is not subject to readjustment or correction by the court as a reviewing or supervisory body. When it is found that the rate is not unlawful, the duty and authority of the court cease [sic]. . . . Dis crimination, to be unlawful, must be unjust and unreasonable. It must operate to the unjust advantage of one and consequent oppression or disadvantage of another. . . . However, absolute uniformity is impossible of attainment. . . . Classification, within just and reasonable limits, is proper and permissible. The presumption is in favor of the rate and rule established by the rate-making authority. . . . The language of the Supreme Court of the United States, applied to an attack by the utility company upon an established rate, is conversely applicable to an attack by the ratepayer.
“ ‘ “Judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.”’ San Diego Land & Town Co. v. National City, 174 U. S. 739. . . .” (pp. 262, 263.)
From 1966 to 1970 Mobile Homes paid for water at the rate of $1 per thousand gallons above a 30,000 gallon minimum. We find nothing in the record that Mobile Homes complained during that period of time that the rate was excessive, oppressive or confiscatory. It was not until Mr. Tollefson was informed in September, 1970, that the district had experienced a good year that he unilaterally reduced payments to 50 cents per 1,000 gallons over the minimum, basing his action on an alleged agreement which the trial court found was not established. No cross-appeal has been taken from this finding.
In support of its charge of unreasonableness, plaintiff primarily relies on the testimony of Harold W. Gerlach, a professional engineer who, according to his own testimony, had never previously developed a water rate. Although he expressed the opinion, or the suggestion as he sometimes put it, that a rate of 80 cents per thousand gallons would be reasonable, his testimony taken as a whole falls short, in our view, of establishing the rate charged plaintiff as being excessive or confiscatory. Basically what he was saying is epitomized, it seems to us, in the following portion of his cross-examination:
“Q. All right. Isn’t what you are really telling us that we could reduce this customer’s water rate down to 80 cents a thousand, and all other things being equal, we would have enough money to operate and pay off our debt; isn’t that really what you are telling us?
“A. I feel that is so, yes.
“Q. And you are making that statement without reference to the fact, whether or not that is a fair and adequate rate for him? You are just simply saying, we will have enough money on hand?
“A. Yes, sir; I made the statement that I felt the thing was a generous rate.
“Q. It’s a generous rate to the point that we could sell him (Tr 230b) this water and still operate, isn’t that what you are saying?
“A. Yes, sir.”
What is a fair and reasonable rate comprehends more than just enough revenue to get by. Sound fiscal practice would seem to dictate that provision be made for future contingencies and that reasonable reserves be set up to provide for the repair, improvement and replacement of the physical plant and facilities comprising a water distribution system. The rule generally followed is that in the absence of statutory restrictions, a municipal corporation which operates a water system has authority to charge such rates as will yield a fair profit, so long as the rate is not disproportionate to the service rendered. (94 C.J. S., Waters, §289, p. 174; Pabst Corporation v. Railroad Comm., 199 Wis. 536, 227 N. W. 18; see, also, 90 A. L. R. 700, Anno — Municipally Owned Utility-Rates.) This court recognized the principle in Holton Creamery Co. v. Brown, supra.
Before leaving the subject of Mr. Gerlach’s testimony, the record reflects he failed to consider a number of factors which appear to us would have a bearing on the rate structure. For example, he had no knowledge of the overall cost of operating expenses of the district; he did not know the size of the standpipe or of the pipeline thereto; nor did he know what part of the reserves came from revenues and what from the sale of benefit units. On the other hand he considered the faot, so he testified, that volume sales water contracts frequently have an escape clause permitting interruption of service, although he learned at the trial that no such clause had been in Mobile Homes’ contract. Over objection, the witness testified concerning water rates in other water districts, without any showing being made of comparable conditions. For example, he testified as to water rates in Topeka, a metropolitan area inhabited by some 150,000 closely packed souls, as compared to the rural area of District 6 with approximately 263 individual water subscribers. To compare these two districts would seem absurd. The prevailing rule is that evidence of water rates in other communities is not admissible in the absence of evidence that all or substantially all of the physical and economic factors affecting the reasonableness of rates are similar in both communities. (City of Bangor v. P. U. C. et al., 156 Me. 455, 474, 167 A. 2d 6, 17; New England Tel. & Tel. Co., 115 Vt. 494, 507, 66 A. 2d 135, 144.) This rule would apply also to other evidence relating to rates in neighboring districts, without a showing of similar conditions.
Mobile Homes complains of the profits earned by District 6, contending they demonstrate that the rates it pays are unreasonable. We believe the accusation is not well founded. At time of trial, the district had some $65,000 on hand, a portion of which was in C. D.’s. This represented an accumulation over a period of eight years. During that period of time, some $39,000 was charged to depreciation. The evidence would indicate that renovation of the physical plant was more than due, with mains needing to be enlarged, storage facilities expanded and pressures improved. The record does not bear the construction that excessive reserves are being hoarded; the testimony indicates that plans are at hand to renovate, repair and improve the present facilities with funds of the district now on hand. It is also planned to expand the system with funds from an additional loan of $95,400, for which application has been made. The officers must keep in mind, however, that the district is not a money-making institution and that the accumulation of reserves should bear a relation to district needs.
The trial court found that District 6 failed to provide reasonable bulk rates for users such as plaintiff and that the rate charged Mobile Homes was thereby unreasonable. By “bulk users” we assume was meant those who are volume users of water, consuming more of the life-giving fluid than the average customer. However, the same test must be applied to all users, large and small: Are the rates reasonable — not excessive or confiscatory under attending circumstances? No consumer, regardless of size, should become a victim of discrimination, although we recognize that discrimination may be a relative term and that absolute equality is seldom if ever entirely achieved.
According to Mr. Gerlach, the most important single factor to be taken into account, so far as a reduction in rates would be concerned, is the fact that Mobile Homes maintains its own internal distribution system, without cost to the district except for one meter. So far as that is concerned each subscriber maintains his lines from the meter. Each customer also reads his own meter and computes his own bill without cost to the district. We can understand, however, that some savings would accrue to the district from not having to service multiple meters or extend 100 accounts on its books. On the other hand, the record reflects an increasing chorus of complaints emanating from Mobile Homes residents which might tend to offset in some degree the economies effected. Finally, it can be said, the rate charged Mobile Homes is somewhat lower than that charged individual users, as a comparison of the two rate schedules will attest.
We have already mentioned that ten benefit units were purchased for one other water consumer, Washburn Rural High School. This would indicate that the high school, too, is a volume consumer. The high sohool district has paid, apparently, from the beginning, $80 for the first 30,000 gallons of water and $1 per thousand gallons thereafter. The school district has sought no reduction of rates, so far as the record reveals, nor has it complained of discrimination in the matter of rates. A claim of reverse discrimination might be made, were the high school to be charged $1 and Mobile Homes only 50 cents per 1,000 gallons over the minimum.
But the volume of water used by a consumer is not the only gauge by which water schedules are to be measured. In 94 C. J. S., Waters, § 289c, p. 175, we find the rule expressed:
“The quantity of water used by each consumer is not the sole criterion of the reasonableness of the rate; there must also be considered the nature of the use, the benefit obtained therefrom, the number of persons who want the water for such use, and the effect of a certain method of determining prices on the revenues to be obtained by the municipality and on the interests of property holders. . . .”
See, also, Lewis v. M. & C. C. of Cumberland, 189 Md. 58, 54 A. 2d 319, in which this rule is expounded.
While the trial court referred to Mobile Homes as constituting a business, water supplied to the mobile home park is not for industrial or business use in the ordinary sense of the term, but strictly for home purposes. Residents of mobile homes consume water just as do residents of other homes. A mobile home park or court does not cater to the transient trade, as does a hotel or a motel; their occupants are established residents, not overnight or transitory guests. Mobile homes, so we understand, are not wheel-borne or motorized, or readily movable; they are stable structures for home occupancy, not for occupancy on the go.
Under facts similar to those here, no discrimination was found to exist in municipal water rates charged to apartment house owners in Caldwell v. City of Abilene, 260 S. W. 2d 712 (Tex. Cir. App.). The Texas court upheld the inclusion of apartment houses within a residential classification for rate purposes under which a minimum charge was made for each family unit within the apartment building. The owners contended the classification was discriminatory because water was furnished hotels, tourist camps, motels and other places where itinerant trade was predominant, under an industrial classification wherein only one minimum charge was made regardless of the number of persons or family units supplied. In the course of its opinion, the court stated:
. . The interest and needs of the numerous water users served by a city are such that it is improbable, if not impossible, that any classification or rate basis could be devised which would not in some way discriminate against some of the users. If appellants should prevail in this case, there would be a discrimination against consumers in single unit dwellings. Not every discrimination, however, is condemned, but only a discrimination that is arbitrary and without a reasonable fact basis or justification. The discrimination in this case is not arbitrary. . . .” (p. 715.)
In an action with similar overtones, Reimer v. City of O’Neill, 189 Neb. 151, 201 N. W. 2d 706, the court held that charges made to a trailer court for water service were not unreasonable where the individual trailers were classified as individual dwellings for purposes of determining charges.
In Lewis v. M. & C. C. of Cumberland, supra, the plaintiff, who owned an apartment house, challenged a city water rate ordinance under which he was required to pay a minimum quarterly service charge for each of his thirteen apartments, even though his building was supplied with but one service fine, with water being measured by one meter. In upholding the ordinance, the court observed that the minimum charge “is based on the family as a consumer unit. We think this is not an unreasonable classification.” (p. 69.)
In setting the rate charged Mobile Homes at $1 per thousand gallons over a 30,000 gallon minimum, the board has, in practical effect, classified mobile homes as being in the same category for rate purposes as other homes in the district. This does not strike us as being an unreasonable or discriminatory approach, and we believe the trial court was mistaken in concluding otherwise.
The record on appeal indicates the district had appealed from the trial court’s finding, as unreasonable, the requirement that Mobile Homes pay a monthly $6 debt retirement charge on each home unit. However, in its brief, the district states it is not appealing from that ruling and we therefore pass it by.
We now turn to plaintiff’s cross-appeal which challenges the constitutionality of the Rural Water District Act. Mobile Homes does not question the legislative grant of power to the county commissioners permitting them to create water districts; it argues the Act is invalid in failing to provide adequate guidelines for the district to follow in conducting its business once its organization has been perfected.
No principle is more firmly embedded in the law than the presumption of validity accorded a legislative enactment. The published reports of this court are well studded with cases supporting the position that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its legality and before it may be stricken down it must clearly appear to1 violate constitutional requirements. (See State, ex rel., v. Fadley, 180 Kan. 652, 659, 308 P. 2d 537; 1 Hatcher’s Digest [Rev. Ed.] Constitutional Law, § 16; 3A West’s Kansas Digest, Constitutional Law, § 48.)
In 2 McQuillin, Municipal Corporations [1966 Rev. Vol.] § 4.13, pp. 35, 36, is found the following discussion relating to the grant of legislative authority:
“The general doctrine prohibiting the delegation of legislative authority does not preclude the legislature from vesting municipal corporations with certain powers as to matters purely of local concern. The legislature, except in so far as barred by constitutional limitations, may confer on municipal corporations any powers it deems fit. In the eye of the law, the state has all necessary power for the protection of the property, health and comfort of the public, and it may delegate this power to its municipal corporations in such maimer as may be deemed desirable for the best interest of the public. . . .”
Decisions of this court have recognized that certain powers applying strictly to matters of local concern may be delegated to municipal bodies. In State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270, the court said:
“It appears that while the legislature possesses all the legislative power of the state, it is impracticable for them to exercise that power in minute detail. It is their function to enact general provisions, leaving to those who know their local problems best the right to fill in the details in carrying out the general provisions granted by the legislature.” (p. 246.)
Similar language appears in State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P. 2d 71:
“. . . It is quite true that in delegating powers the legislature must fix adequate general standards, but in many instances the filling in of details must, in the very nature of things, be left to the local authorities. (Citing cases.)” (p. 620.)
See, also State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 440, 296 P. 2d 656.
In the Topeka case the constitutionality of G. S. 1953 Supp. 13-1388 to 1391, inclusive, was challenged. Those statutes contained provisions authorizing cities of the first class to acquire and construct off-street parking facilities. The state argued the standards set out were insufficient to guide the city in the acquisition, construction and operation of the facilities. In rejecting the state’s contention this couit said the legislature specifically provided for the method of acquiring property; the location and improvement of parking facilities; the condemnation procedure to be followed; when and how title was to vest; the method of determining public need; the procuring and payment of experts; the circumstances under which property may be acquired; the method of financing; and the issuance of bonds and the method of paying same.
Matters left for the determination of the city fathers were:
“(1) Whether the facilities are advisable and are of benefit to the city; (2) the amount of money to be expended therefor and, consequently, the amount of the bonds to be issued; (3) the kind or type of facilities to be established; (4) the rates or fees to be charged for the use thereof, and the method of operation of the facilities, whether through lease or otherwise, and the rules and regulations to be adopted concerning the operation of the facilities; (5) the locations and number of facilities to be established.”
The court went on to say:
“It is apparent that the standards set out by the legislature were ample, and any further standards might so restrict every city in its attempted operation as to make compliance therewith inoperative. Matters to be determined by a city are purely local in character, and dependent upon the existing conditions and needs of the respective city. . . .” (p.247.)
We believe the principle laid down in the foregoing authorities is applicable to the case at hand. The Rural Water District Act contains numerous guidelines to be followed in the establishment of rural water districts and the conduct of its business. Included among the guidelines set up are the steps to be taken in the incorporation of districts; the selection of directors, and their terms of office, and the filling of vacancies; the adoption of bylaws and amendments thereto; the adoption of rules and regulations for conducting the district business; the construction and method of financing district facilities; the attachment of new areas to a district and the detachment of other areas; and the dissolution of districts.
In conclusion, we hold the Act does not contravene constitutional requirements and the trial court was correct in so holding.
For reasons set forth in the opinion the judgment of the court below is reversed as to the appeal and affirmed on the cross-appeal. The case is remanded with instructions to enter judgment in favor of the defendant both on the appeal and cross-appeal.
Fromme and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a distributor of photoplay prints, or films, against an exhibitor, for breach of contract to accept and exhibit photoplays. A demurrer to the petition was sustained, and plaintiff appeals.
The petition was in nine counts, each count relating to a single photoplay. The first count, which was representative, alleged that plaintiff granted a license to defendant to exhibit a photoplay entitled “Devil Dancer” — sex not disclosed — at defendant’s theater, and defendant agreed to accept the license and exhibit the photo-play ; that the prints of the photoplay were delivered to defendant— which under the contract meant delivered to a carrier for defendant; and that defendant “failed, neglected and refused to accept said prints, exhibit said photoplay, or pay the agreed license fee therefor.” The demurrer was a general demurrer. When it was sustained, plaintiff declined to amend, and judgment was rendered against plaintiff for costs.
The contract was in writing, and a copy of it was attached to and made a part of the petition. The contract was an elaborate affair, governed continuing relations between distributor and exhibitor, and was the standard form of contract adopted by a combination of distributors. The eighteenth paragraph of the contract contained a provision for arbitration, which was held to be void as in restraint of trade, by the supreme court of the United States, in the case of Paramount Famous Corp. v. U. S., 282 U. S. 30. Plaintiff contends defendant is not a party to any unlawful combination, the paragraph in the contract is severable, and the lawful provisions of the contract may be enforced.
Conceding that plaintiff’s contention is true, the contract contains a provision which violates the law of this state. The fifteenth paragraph of the contract is as follows:
“15th. The exhibitor warrants and agrees that during the period each of the photoplays herein provided for shall be exhibited in said theater, the exhibitor will charge for admission to said theater an actual admission fee which shall not be less than ten cents, unless a greater minimum charge is herein elsewhere specified, for each exhibition, and that such photoplays shall not be exhibited unless such admission fee is charged.”
This provision plainly violates the inhibition against price fixing contained in the fifth subdivision of R. S. 50-101, relating to combinations in restraint of trade. The combination is between plaintiff and defendant. To create it, as was done by both plaintiff and defendant, or to carry it out, as was done by plaintiff but not by defendant, subjected the guilty party to fine and imprisonment. (R. S. 50-106.) Defendant could withdraw at any time before he performed, without liability to plaintiff.
The law has yet another hold on plaintiff. The petition did not plead approval of the photoplays by the Kansas board of review. The motion picture censorship statute contains the following provision:
“It shall be unlawful for any person to sell, lease, lend, exhibit or use any motion picture film, or reel, in Kansas unless the said film, or reel, has been submitted by the exchange owner or lessee of the film, or reel, and duly ap proved by the Kansas board of review, hereinafter in this act called the board.” (R. S. 51-102.)
Violation of the statute subjects the offender to criminal punishment. The result is, plaintiff could not- lawfully lease the films to defendant for exhibition until they were approved by the board of review. Approval of the board of review was a condition precedent to existence of a lawful contract. The statute is a police regulation, enacted in the interest of morality and decency,'and in order to gain a standing in court it was necessary for plaintiff to exhibit a contract the court could recognize.
Plaintiff makes no reply to defendant’s brief calling attention to the two defects in the petition just discussed. The court regards them as sufficient to warrant the sustaining of the demurrer.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Donald Mowrer, a minor, brought this action by his next friend, E. T. Wilson, against Osage township, of Allen county, to recover damages for personal injuries sustained by reason of a defective township highway. The township prevailed, and plaintiff appeals.
The plaintiff produced his testimony and when he had rested the defendant interposed a demurrer upon two grounds, one that the plaintiff had failed to prove that the required notice had been given to the township trustee, and that the officer did not have actual knowledge of the defect five days prior to the time of the injury. There was a further ground that the plaintiff was guilty of contributory negligence. The court sustained both grounds of the demurrer and gave judgment for defendant.
It was contended first that the plaintiff’s testimony was short in respect to the showing of the requisite notice of the defect in the highway, and second, that the plaintiff was guilty of contributory negligence in driving into a defect, with which the plaintiff was familiar, when he could not see where he was going. A washout on the side of the highway, which extended about six feet towards the center of the traveled part, and was about six feet deep and four and one-half feet wide, had existed continuously for a number of years near the intersection of a .north-and-south road with one running east and west. On the morning of December 13, 1929, at about six o’clock, when there was a dense fog, the plaintiff drove his automobile south and attempted to turn west on the intersecting road, which was familiar to him, near the washout mentioned, and had only proceeded thereon a few feet when his automobile fell into the hole and caused the injury for which he asked damages from Osage township. It appears that soon after the accident the township erected a guard railing around the hole.
The action is purely statutory and is brought under R. S. 68-301, which provides:
“Any person who shall without contributing negligence on -his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert or highway constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
No direct evidence was produced as to the notice required by the statute, but there was testimony that the trustee had traveled over the road when he was assessing the property of a witness in March, 1929, seven or eight months prior to the accident, and saw the conditions at the intersection, including the washout. The trustee, it appears, made an assessment of the same witness in March, 1930, and in a conversation as to the accident, the trustee was asked if anything was to be done towards paying damages for the injuries sustained by plaintiff, and the trustee answered that he would like to do something for the boy but didn’t know of anything he could do for him. He was then asked if there was any difference in the defect now from what it was in March, 1929, when he went over the road, and his reply in effect was: The only difference was the erection of a banister or railing around the defect, which had been erected the day after the accident. The trustee admitted to witnesses that he had traveled over the highway in 1929 several times before the accident. The evidence tends to show that the obvious defect had' existed many years prior to the injury of plaintiff, and that the trustee could not have failed to observe the conditions existing at the intersection in going forward and back over it. It is argued that his attention was not called to the specific defect and that knowledge of it cannot be implied from its long continuance. This is true, but the evidence relating to the place, the nature of the defect and his admissions to others, showed that he had actual knowledge of the defect, and also that it was dangerous to travel. Of course, in the interim there might have been an improvement or repair of the road, but the trustee admitted to parties that there had been no change or repair between the time he went over the road in 1929 and the time of the accident.
Under the testimony he had knowledge sufficient to compare the defect as it existed in March, 1929, with its condition in December, 1929, and stated that in that time there was no change except as to the guard railing put around it after the accident occurred. All the testimony shows that the defect, a patent one, had existed for many years prior to the accident, and the condition was prolonged down to the occurrence of the accident. Under the statute actual notice is required, but a formal notice is not essential. It is enough if the trustee had actual notice of the defect, however gained. Actual knowledge of the defect, it is held, is the equivalent of the required actual notice. {Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070.)
Under the evidence we hold that the trustee had actual knowledge of the defect more than five days before the occurrence of the accident as well as of its dangerous character.
Notwithstanding this holding our view of the evidence is that the plaintiff is not entitled to recover damages because of his own negligence, which contributed to the accident and the injury. The plaintiff, who was about sixteen years old, drove his automobile towards the intersection in the dark of the early morning, about six a. m. of December 13, 1929, when a dense fog prevailed over that region, and he admits that although the lights on his automobile were in good condition he could not see where he was traveling on account of the fog and darkness, and that he could not even see a stone arch bridge at the intersection.' He testified in reference to the situation at the intersection':,
“Q. You knew it was a bad place? A. Yes, sir.
“Q. And you could see down the road how far? A. Well, I couldn’t see very far.
“Q. Did you see the stone arch bridge when you passed over it? A. No.
“Q. What prevented you from seeing it? A. The fog I guess.
“Q. Was the fog so thick that you couldn’t see the bridge? A.- The fog was so thick you couldn’t hardly see anything very far ahead of you, and the lights didn’t help you very much.
“Q. How far from the center of the intersection were you, Mr. Mowrer, when you started to make the turn to go west? A. That I couldn’t answer, for I don’t know.
“Q. As a matter of fact, you didn’t know on what part of the road you were at the time, did you? A. No, I didn’t know.
“Q. And you couldn’t say now, could'you? A. No, I couldn’t say.
“Q. You couldn’t tell where you were. You couldn’t see the culvert? A. No, I couldn’t tell where I was at, no.
“Q. You couldn’t even see the road, could you? A. Not so good, no.
“Q. You couldn’t see the road at all, could you? A. Oh yes, I could see— I could see the weeds.
“Q. Did you see the intersection? A. The intersection?
“Q. Yes, the intersection where the two roads meet? A. I don’t remember.
“Q. You don’t remember? A. No, sir; I don’t remember seeing it.
“Q. Well, just when, with reference to the. center, of the intersection, did you start to make the turn in your automobile to go west? A. Well, I was just going along there, and I thought I was making it all right.
“Q. You thought you were at the place where you should turn? A. Yes, sir.
“Q. But you could not see, could you? A. Not so good, no.
“Q. Well, could you see or not? When you say ‘not so good,’ what do you mean? That you couldn’t see at all? A. I couldn’t see.
“Q. You could not see? A. On account of the fog.
“Q. And you knew it was a bad crossing there? A. Yes, sir.
“Q. And you could not tell whether you were on the traveled roadway or not? A. I thought I was on the traveled roadway.
“Q. You thought you were, but you couldn’t tell, could you? A. I couldn’t tell on account of the fog.”
“Q. Could you see down to the right? ' A. What do you mean? Down the road to the right?
“Q. Yes. A. No, sir.
“Q. Could you see. down the road to. the left? A. No, sir.
“Q. Did you know there was a road to the right and left there? A. I sure did.
“Q. Could you see it that morning? A. The road?
“Q. Yes. A. No, not on account of fog.
“Q. And you didn’t see it, did you? A. What?
“Q. You didn’t see either the road running east or west when you attempted to make the turn there that morning, did you? A. No.”
"Q. And you were perfectly familiar with this road, were you not? A. Yes, sir.
“Q. And you knew it was a bad turn? A. Yes, sir.
“Q. Now why didn’t y,ou stop and see where you were before you attempted to make this turn? A. Just because I thought I was on the right road.”
“Q. You just turned the steering wheel, and then it happened? A. I was trying to turn the corner; yes, sir.
“Q. But you didn’t see any corner there? A. I thought I seen it.
“Q. But you didn’t, did you? A. Evidently not.”
“Q. And you didn’t see the intersection of the roads, did you? A. No.
“Q. And you didn’t see the comer, did you? A. No, I didn’t see the corner.”
His testimony was that there was a schoolhouse at one of the corners of the intersection where he had attended, that he had played around the intersection and knew that it was a bad place, and even knew of the washout or ditch, and yet he turned to the west without seeing or knowing even that he had reached the intersection. Knowing of the perils of the place, he blindly drove on without ascertaining whether he was headed for the ditch or the middle of the road. When he found that his lights did not penetrate the fog or enable him to see the junction of the two highways, or the corner at which he was to turn west, it devolved on plaintiff to take precautions for his own safety. If he had stopped his automobile and on foot had gone forward he could have ascertained where he was and the proper and safe place to turn into the intersecting road. When he found he could not see the road from his seat in the automobile, ordinary prudence required him to use other available means to discover the intersection and the safe part of the highway. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, and cases there cited.) His reckless driving into a place where he could not see when he was well informed of the pitfalls and dangers at and about the intersection is, upon his own showing, a glaring case of contributory negligence. It was about the same as if he had undertaken to make the turn in broad daylight with his eyes closed, on a wager that he could make it safely without exercising his sense of sight. While contributory negligence is a matter of defense and the burden of proof is upon the defendant, yet when plaintiff’s admissions and evidence show contributory negligence clearly and beyond question, it be comes a question of law for the court and bars a recovery just as effectively as though the evidence on the question had been introduced by the defendant. (Lilly v. Wichita Railroad & Light Co., 127 Kan. 527, 274 Pac. 205.)
No error was committed by the trial court in sustaining the defendant’s demurrer to plaintiff’s evidence on the ground that the plaintiff was guilty of contributory negligence which barred a recovery of damages from the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landlord against a tenant, whose term had expired, to recover numerous items of debt and damages. Plaintiff was defeated, and appeals.
There were two leases. The first contained a provision relating to number of head of stock per acre which might be put in the pasture. Plaintiff asserted defendant put in more stock than the lease permitted. There was evidence of a conversation between the parties at the time the lease was signed relating to scratching out the provision limiting number of head of stock. The evidence was not objected to. It did not show that plaintiff said the provision would be eliminated or disregarded, and the court instructed the jury according to the provision in the lease. Defendant testified that at no time did he have more stock in the pasture than the lease permitted, and the jury believed defendant. The instruction referred to is criticized, but the issue was so simple the jury could not have been misled.
The second lease provided that stock should be removed from the pasture by October 1. Defendant did not take his stock out until October 11, and plaintiff sued for $10 for that. Plaintiff said it was worth $10. Why it was worth $10 he did not disclose. There was no proof of facts showing plaintiff was injured by the ten days’ delay, and evidently the jury did not believe plaintiff suffered any real damage.
Plaintiff testified defendant owed1 for ten bushels of rent wheat for 1929. Defendant testified to the contrary, and the jury believed him. An item of $13.20 which defendant admitted he owed for barley was taken care of by the judgment. There was a claim of $200 on account of some horses. Plaintiff did not recover. No error is predicated on the proceedings in relation to that cause of action. Plaintiff sued for $2 for labor he had performed in shocking wheat. Defendant’s testimony was that the service was trivial. Plaintiff sued for $40 for labor performed in scooping wheat. He did scoop some wheat when he was there, but the evidence did not disclose any clear liability on the part of defendant for it.
Plaintiff says the court gave no instruction with respect to several of the foregoing items of damages. The court told the jury it was necessary for plaintiff to prove the items of his claim for amounts due him by a preponderance of the evidence. So far as appears, that was all the court needed to say, and plaintiff did not make any request, for further instructions.
Plaintiff had a little sand pit on his farm. Defendant was erecting some buildings on his own farm, and took some sand. Plaintiff said defendant took fifty loads of sand. Defendant was asked this question:
“Q. State whether or not they had a custom down in your country that has existed for a great many years, with reference to sand that the neighbors get, as to whether or not there is a charge made for it.”
Over objection, defendant answered as follows:
“There has never been any charge that I ever heard of, and I have lived there twenty-eight years.”
Of course, there is no right of common in this state — an incorporeal hereditament, consisting in the profit one has in land of another. Likewise, there can be no valid custom of profit a prendre, and defendant was not authorized to take and carry away for his own use part of the soil or mineral of plaintiff’s land. Besides that, the question and answer “showed up” plaintiff as a neighbor, to the jury. Error, however, is not enough to work a reversal. It must appear the error affected the verdict.
Plaintiff said his sand was worth ten cents a load. Why it was worth that was not disclosed. There were two ways in which plaintiff might prove his damages. First, he could prove the value of his land before the sand was abstracted, and the value of his land after the sand was taken. The difference would be his damages. Second, he could prove the market value of his quality of sand per some kind of standard measure. He did neither, and all he was entitled to was nominal damages. Plaintiff complains of the instruction the court gave with respect to the sand. The court gave what had features of the market-value rule, but there was no testimony to sustain a verdict for substantial damages under any rule.
Defendant did not remove his straw when the lease expired, and one paragraph of the petition was the following:
“That defendant’s right to occupy said leased land expired September 1, 1929, excepting as to the pasture land, and that as to the pasture land said right expired October 1, 1929. But that in violation of the terms of said contract of lease, defendant continued to hold and use said premises after the first day of September, 1929, and failed and refused to surrender full possession of the fann land until the first day of February, 1930, during which period defendant continued to drive through and upon said premises and leave the gates open, and to open and lay down the fences, as a result of which conduct plaintiff was unable to make use of the volunteer wheat pasture on said land in the fall of 1929, to his damage in the sum of $500.”
The court instructed the jury as follows:
“If the defendant held said premises beyond the term of his last lease, to the injury of plaintiff, refusing to permit him to go upon and occupy said premises, the defendant would be liable to plaintiff for such injury as plaintiff proves by the preponderance of the evidence that he sustained by reason of such withholding of the possession from him by the defendant.”
This instruction was in accordance with the theory of the petition. Plaintiff did not testify he wanted to use the volunteer wheat for pasture. His testimony is abstracted as follows:
“He had a chance to rent his wheat land for pasture in the fall of 1929 to Will Moore, and that they went out and looked at the pasture, and that the wire was taken down and pulled back out of the way, and the fence was in such shape that Moore refused to rent the pasture.”
When plaintiff was demanding that defendant settle up, he itemized his claim in a letter written to defendant. It contained no claim for damages for loss of opportunity to sell pasturage, and no claim for damages for withholding possession. The jury doubtless believed the claim was an afterthought, just another item trumped up by a man who wanted a big lawsuit. The court gave an instruction relating to damage to the land, which is criticized, but damage to the land is not involved, and the criticism need not be discussed.
This case has been treated at greater length than it deserves. The court and jury were satisfied defendant owed plaintiff nothing but the admitted item of $13.20 for barley. Defendant pleaded he had tendered payment of that sum to plaintiff, and the tender had been refused. While the trial proceedings were not such that they would serve as a model for study in the law schools, this court is satisfied plaintiff suffered no prejudice to his substantial -rights.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Hutchinson Wholesale Grocery Company against the Hudson State Bank, to recover for groceries sold and delivered by plaintiff to the Hudson Cash Store operated by S. H. Haile, and it is. alleged the Hudson State Bank guaranteed payment of the indebtedness of Haile. The court ruled and adjudged that there was no legal guaranty of the indebtedness by the bank, and no legal liability of the bank for the goods purchased by S. H. Haile. Plaintiff appeals. ¡
It appears that one Sells owned and operated a grocery store in Hudson, and that he made a sale of the store to Haile in the latter part of August, 1927. Haile had been an employee of Sells prior to the time of sale. It is in testimony that Haile was without money to make the purchase and that he was;,ádvised by E. 0. Anderson, the cashier of the Hudson State Bank, to make the purchase and he would receive assistance. A loan was made by the bank to Haile at that time of $1,000, which was used by Haile in paying Sells and some of the creditors of Sells, a part of the debts due to the bank at that time, and in order to assist Haile the following letter was written by Anderson, the cashier, and delivered to Haile:
“To Whom This May Concern: August 31, 1927.
Gentlemen — This is to certify that Mr. S. H. Haile is manager of the Hudson Cash Store, Hudson, Kansas. It is by request of him that I am asking that in selling merchandise to him for this store, that you please send invoices to Mr. S. H. Haile and copies of the bills to this bank. We will see that payments are made by draft as per the instructions of bills sent. Thanking you for this courtesy, we are Yours very truly,
The Hudson State Bank,
By E. 0. Anderson, Cashier.
S. H. Haile, Manager of Hudson Cash Store.”
The letter was used by Haile in purchasing goods from wholesale grocery companies. Haile failed to pay for the goods purchased or to pay the bank the note for $1,000, and later the bank recovered a judgment thereon after Haile had made an assignment for the benefit of creditors. It was found that no authority had been given Anderson, the cashier, by either the president or board of directors of the bank to enter into the grocery business or to guarantee grocery bills. ' .
The bank invokes the doctrine of ultra vires and it is conceded that the contract of the cashier was beyond his power or the powers of the bank, but it is insisted that the bank is estopped from relying on the doctrine of ultra vires' by reason of the fact that it obtained benefits from the transaction. The benefit claimed is -that the note of Haile operating the cash store became the property of the bank and passed into its assets, which was afterwards reduced to a judgment which remains the property of the bank. There is the additional claim that the money derived from the sale of the store to Haile through the loan was used in paying obligations against the Sells store, some of which were due to the bank. It appears, however, that on September 26, 1927, and before the sale of the goods by plaintiff to Haile, the plaintiff made the following inquiry of the bank:
“Gentuemen — Mr. D. H. Haile advises us that he has purchased the Sell Cash Store, your city, and he has given you as reference.
“We will appreciate any information you can give us in regard to the character, integrity and financial ability of Mr. Haile. We would also like to know his net worth.
“Assuring you that your reply will be held strictly confidential and that we will in no way hold you liable, we are, Very truly,
The Hutohinson Wholesale Grocery Company.
W. H. D. Wood.”
To which the following answer was made:
“Mr. Haile is the new merchant in the Hudson Cash Store, and we are backing him. He is supposed to sell and buy on cash basis only.
E. 0. Anderson, Cashier."
The trial court, in a memorandum opinion stating the findings and grounds on which its judgment was founded, held that the bank which was organized under the laws of Kansas had no authority to go into the grocery business or to guarantee grocery bills; that it had not authorized Anderson, the cashier, to give the letter on which plaintiff relies, and that the directors had not expressly nor had they by implication of silence assented to the act of Anderson. The court further held that even if the directors of the bank had undertaken to guarantee the grocery bills, it would have been beyond their authority; but that neither the board nor the stockholders had expressly or impliedly assented to the action of the cashier in asking jobbers to sell merchandise to Haile and the bank would see that the bills for groceries were paid, and that all persons dealing with Haile were bound to know at their peril that the act was in excess of its authority. Even if it had done so, it is clear that such action would have been void. Our statute provides that—
“No bank shall employ its moneys directly or indirectly in trade or commerce by buying and selling goods, chattels, wares and merchandise.” (R. S. 1931 Supp. 9-111.)
See, also, Discount Co., v. Bank, 101 Kan. 253, 166 Pac. 476; Ingersoll v. Bank, 110 Kan. 122, 202 Pac. 837.
It would seem, too, from the record that under the letter of September 25, 1927, which was written prior to the sale of the goods by plaintiff, that neither of the parties understood that the letter of Anderson was a guaranty of the bank that the defendant would pay the bills. The letter, as we have seen, was asking information as to the character, integrity and financial ability of Haile, and added that: “We will in no way hold you liable.” Anderson, the cashier, in an answer after stating that Haile had purchased the store, and that they werQ backing him, added: “He is supposed to sell and buy on cash basis only.” This answer was notice to plaintiff to deal with Haile on a cash basis only and not to sell goods to him on a credit basis and expect the bank to pay grocery bills. Plaintiff, however, recognizes the rule that such a guaranty as they claim under was outside of the scope of the authority and power of the bank, but they insist that the doctrine of ultra vires may not be invoked as a defense by a defendant who accepts and retains the benefits of its unauthorized acts. Plaintiff attempted to show that the bank had an interest in Haile’s store, and some evidence of Haile tended to show that fact, but evidently his testimony was discredited by the court, and on all the evidence the court held that the bank had no interest in the store.
It is a well-established doctrine that a principal cannot repudiate the authority of an agent and invoke the rule of ultra vires where the principal has accepted and retains the benefits of the transaction. He cannot repudiate the authority of the agent and at the same time ratify the agent’s authority by receiving and keeping the benefits of the unauthorized act. (Means v. Bank, 97 Kan. 748, 156 Pac. 701, and cases cited. See, also, Nation v. Clay, 125 Kan. 735, 266 Pac. 45; Rife v. Docking, 129 Kan. 812, 284 Pac. 391.)
It was rightly held by the court, we think, that the bank had not received any benefits from the sale of the groceries to Haile by plaintiff. Attention is called to the loan which was obtained by Haile from the bank, the proceeds of which were used in his purchase of the store and the carrying on of his business. That was an ordinary borrowing of money to complete the purchase and enable Haile to conduct the grocery business. Haile gave his note for the loan and thus created the relation of debtor and creditor. The bank could only look to the interest on the use of the money as its gain. It is said that some of the borrowed money was used by Haile in discharging obligations of Sells to the bank, but these were Sells’ obligations and the bank cannot be liable for an unauthorized act of an officer because of the payment by another of the obligation he owed the bank. That debt would have been payable and its collection enforceable whether or not Haile was successful in business or whether the money acquired by Haile had reached Sells or other debtors of the bank. No part of the note which was executed before the Anderson ■ letter was written has been paid by plaintiff. That letter did not change the relationship of Haile to the bank or have anything material to do with plaintiff’s extension of credit to Haile. In no view of the case can it be said that the bank gained benefits in the transaction which estop it from availing itself of the lack of authority of one o'f its officers.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
These were two criminal actions where a bond was forfeited by the court and a third action that was brought by the state to collect on the forfeiture. Judgment was for plaintiff. Defendants appeal. The three cases have been consolidated in this court.
The facts are simple. R. E. Emerson was arrested by federal authorities and charged with violating the Volstead act. He gave bond to appear in federal court. While he was at liberty on this bond he was arrested in two different cases by the state authorities 'for violating the prohibitory law in Butler county. He waived his preliminary hearing and gave bond for his appearance at the March, 1931, term of the district court of Butler county. His bondsmen in these two cases did not know about the bond that he had given to appear in federal court. He did appear on the first day of that term and his case was set for March 16, 1931. On that day he did not appear and his bond was forfeited. It afterwards developed that the reason he did not appear was that between the first day of the March term of court in Butler county and the 16th of March, when he was supposed to appear in that court, he had gone into federal court, pleaded guilty to the charge pending there and had been sentenced to the federal penitentiary at Leavenworth for eighteen months. On March 16, 1931, when his cases were called for trial in Butler county, he was in the penitentiary at Leavenworth under sentence from federal court. On March 16 he was not present, either in person or by counsel, and the bonds were ordered forfeited. The facts as they have been detailed heretofore were called to the attention of the court in a motion to set aside the forfeiture. In these motions the bondsmen offered to deliver the defendant for trial in the district court of Butler county immediately upon the completion of his sentence in the federal penitentiary. This sentence was for eighteen months and at the utmost would entitle the defendant to his release not later than August 12, 1932. These motions were denied. Appeals were taken in these cases at once to this court.
Pursuant to the orders forfeiting the bonds in the two criminal cases suit was instituted by the state to collect the amount of the two bonds. The facts were set out in the pleadings about as they have been set out here. In their answer the bondsmen claimed that the facts as recited constituted a valid excuse for their not having Emerson before the district court of Butler county, and that the order forfeiting the bond and finding that Emerson had no excuse for not appearing, was void. The answer further stated that the bondsmen could and would produce Emerson before the state court as soon as he should be released from the federal penitentiary, which it was alleged would not be later than eighteen months from March 12, 1931. The prayer of the answer was that the cause should be abated and case continued till eighteen months from March 12, 1931, or that judgment should be for defendants notwithstanding the failure to continue. The state filed a motion for judgment on the pleadings. At the hearing on this motion and at the hearing on the motion to set aside the orders forfeiting the bonds the facts appeared about as they are detailed here. In addition, in the colloquy that transpired between counsel and the court, it appeared that counsel for the bondsmen offered to bring Emerson to court and submit him to be tried. It was stated, however, that if this were done and he should be convicted and sentenced to confinement by the state court, he could not start serving that sentence till he had finished serving his sentence in the federal penitentiary. The position taken by the counsel for the state, however, was that the only thing that would prevent the bonds being forfeited would be for the federal authorities to surrender Emerson to the jurisdiction of the state court with the understanding that should he be convicted and sentenced to confinement he would serve his state sentence at once. The practical result of this position was that the trial of Emerson was continued by necessity for eighteen months. The bonds were forfeited and the state lost the advantage of a speedy trial of its case. Regardless of the matter of the forfeiture of the bonds, it is quite a common practice for the state to ask that a federal prisoner be turned over to the state authorities for trial with the understanding that he be turned back to the federal authorities to finish his sentence when the trial is over. That could have been done in this case. It is difficult to see how the state could have been harmed by permitting Emerson to serve his sentence in the federal penitentiary before he should serve any sentence that might be given him in the state court.
We conclude that it was an abuse of discretion on the part of the trial court to order a forfeiture of the bonds in the two criminal cases. The order will be that all three cases be remanded to the district court with instructions to this effect: If Emerson presents himself or his bondsmen deliver him to the jurisdiction of the district court of Butler county within ten days of the date of his discharge from the federal penitentiary, then the order of forfeiture in the two criminal cases and the judgment in the civil case shall be set aside and held for naught. In case, however, Emerson does not present himself or his bondsmen do not deliver him to the jurisdiction of the district court of Butler county within ten days of his discharge from the federal penitentiary, then the order of forfeiture in the criminal cases and the judgment in the civil case will be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the Great Lakes Pipe Line Company from an order of the district court of Allen county refusing to dismiss and quash the appeal of three certain landowners by the name of Knox because their appeal bond in a condemnation proceeding was not filed with the county clerk, approved by him and by him certified up to the clerk of the district court, as required by R. S. 66-906 and 66-907, but instead thereof it was filed with the clerk of the district court and approved by him, as provided by R. S. 26-101 and 26-102.
Since 1868 we have had a railroad condemnation law which has from time to time been amended until 1923, when an extended addition was made to it with reference to the service of notice upon the landowners. In 1870 an alternative provision was enacted permitting an application to be made by the railway corporations to the judge of the district court for the appointment of commissioners to lay off, condemn and appraise the proposed right of way, instead of applying to the board of county commissioners for that purpose. But under that provision the further proceedings after the appoint ment and qualification of the commissioners were to be exactly the same as where the appraisement was being made by the county board. The procedure by the board of county commissioners and by commissioners appointed by the judge of the district court is outlined in R. S. 66-906 and 66-907, and thereunder the appeal bond should be filed within ten days after the appraisement with the county clerk and be approved by him.
In 1891 an act was passed permitting certain companies other than railroads to condemn land under the provisions of this original railroad law. In 1899, 1901 and, 1917 still other companies were added, and among them are pipe-line companies, so that under this amended act, now designated as R. S. 17-618, pipe-line companies have all the rights and privileges afforded railroad companies' for acquiring right of way by condemnation proceedings under the provisions of R. S. 66-906 and 66-907.
In the revision of 1923 a new chapter on eminent domain became effective, being chapter 26, and article 1 thereof prescribes a distinct procedure for condemnation of rights of way for all corporations except railroad and interurban railway corporations, authorizing the court or the judge thereof to appoint the commissioners on application filed in the district court and directs that appeals may be taken by filing notice of appeal and appeal bond with the clerk of the district court within thirty days after appraisement, the bond to be approved by the clerk of the district court. It is therefore apparent that the pipe-line company could have instituted and prosecuted this condemnation proceeding by making its application to the judge of the district court of Allen county for the appointment of appraisement commissioners under chapter 66 or chapter 26. Usually one would expect the petition to indicate under what or which law the company was proceeding, but the petition here is silent on this question. It states that it is asking that the land be condemned “under and by virtue of the provisions of the laws of the state of Kansas.”
When these landowners were compelled to take notice of this proceeding and appear before the appraisement commissioners, there was no possible way for them to know under which of the two Kansas laws the pipe-line company was proceeding. They have done what was necessary to perfect their appeal under one of the two laws, and the question of jurisdiction does not arise from the face of the papers in the case, but only by a subsequent statement made by the pipe-line company that it intended the proceedings to be under chapter 66. Jurisdictional features should be patent to both parties. They should both be able to approach and face them with equal knowledge of the facts on which they depend. Even at this late date in a court of review we have no way of determining under which law the proceeding was commenced, except the present statement of the appellant and a surmise from the language of the motion to quash the appeal.
Appellant cites many cases as to the necessity of a strict compliance with the statutory requirement in attempting to perfect an appeal, about which there can be no question. But where a condemnation proceeding can be under either one of the two distinct and separate enactments and there is nothing on the face of the papers to indicate under which law the proceeding is brought, and the landowners take an appeal as prescribed by one of the two laws, it is then too late for the moving party to elect or announce that its intention was to proceed under the other and move to dismiss the appeal for want of compliance with the special provisions of that particular law as to appeal, when the appeal had been taken in compliance with the provisions of the other law. These two methods of procedure were treated at length as applying to a pipeline company in the case of Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 708, and the requirements for appeal under chapter 26 were fully considered in the case of State Highway Commission v. Griffin, 132 Kan. 153, 294 Pac. 872.
There being two distinct statutory provisions for condemnation proceedings, it does not mean that any proceeding can be under both. It must be under one or the other, and any judgment attempted to be rendered under both would at least be questionable. The record itself should definitely show under which chapter the proceedings are being had. If the corporation had indicated one of them, it could not later change to the detriment of other parties. It would then plainly be estopped from changing its base as it is in the election of remedies. There is an estoppel by silence (10 R. C. L. 692), but we would hesitate to regard the silence in this case as a ground for estoppel, but it is certainly a waiver of a right and privilege on the part of the pipe-line company to designate the chapter under which it was proceeding when it had failed to make a choice until it attempted to have the appeal of the landowners dismissed (27. R. C. L. 906). •
The pipe-line company had the absolute right to choose its own course of procedure, and still has that right, but not to the detriment of others who have acted along a different line because of the silence of the record and the pipe-line company until the filing of the motion to dismiss. It is said that the filing of the report of the appraisers with the county clerk-indicated which course was being pursued by the pipe-line company, but if it was filed there by mistake of the appraisers the pipe-line company would not be bound thereby.
We think there was no error in overruling the motion to dismiss and quash the appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In his lifetime Theodore F. Ismert signed a note payable to the Ismert-Hincke Milling Company. After his death the note was allowed by.the probate court as a claim against his estate. The administrator appealed to the district court. In the district court the verdict and judgment were for the administrator. The milling company appeals.
Execution and delivery of the note were admitted. The ques tions submitted to the jury were: first, whether the maker understood the purpose and consequence of signing the note; and second, whether he signed as the result of undue influence. The contention here is that the verdict was not sustained by any substantial evidence.
The Ismert-PIincke Milling Company is a corporation engaged in the business indicated by its name. 'It has a capital stock of one million dollars, divided into ten thousand shares. Theodore Ismert owned 2,392 shares, of the par value of $239,200, and was president of the company. George Hincke, a brother-in-law of Theodore Ismert; was vice president, and a large stockholder. Plenry Ismert, a cousin of Theodore, was secretary and treasurer, and had charge of the books and accounts.
Theodore Ismert was a large, powerful man, of great business ability, and of dominating mind and character, and was the chief figure in the management of the milling company’s affairs. His death occurred on September 4, 1924, and was caused by sarcoma.' In July his physicians relinquished hope of his recovery. Treatment was then directed to making him as comfortable as possible while the disease progressed steadily to the end. The palliative treatment commenced with bromides and chloral hydrates. Then his physician commenced to use morphine, to allay pain and to induce sleep. Morphine was administered for a time through the mouth, and then hypodermically. The dose at first was a quarter grain. The dose was increased as time went on to half a grain, and was administered more frequently. Continued use of the morphine had a cumulative effect, which with toxic consequences of the disease tended to produce stupor.
During July Theodore Ismert was quite active in attending to business. On August 2 he was at his office the last time. After he was confined to his home he kept in touch with his business. The note sued on was executed on August 5. After that he conducted important business transactions, some of which were adopted and vouched for and the benefits of which were appropriated by those now interested in defeating liability on the note.
After the world war the milling company encountered difficulty in disposing of certain of its products, and the Sun Ray Products Company was organized to provide an outlet for those products. Sun Ray’s specialty was ready-mixed pancake flour. Its capital of $125,000 was principally subscribed by shareholders and others con nected with the milling company. Theodore Ismert was the largest shareholder. He owned 505 shares, of the par value of 150,500. The milling company was the financial backer of the Sun Ray company. The milling company supplied funds to erect Sun Ray’s plant. Sun Ray would purchase large quantities of mill products on account, and in July, 1924, Sun Ray owed the milling company $168,357, and owed Theodore Ismert personally $4,816.76.
About the time it became known that Theodore Ismert could not recover, the annual meeting of the board of directors of the milling. company occurred. Theodore Ismert himself attended the meeting and presided. His son, John Ismert, the present administrator of his estate, was a director and was secretary, and attended the meeting. The meeting occurred on July 16, 1924, and a resolution was formally adopted instructing the management to secure settlement of the debt due the milling company from the Sun Ray Products Company. The record discloses no dissent from this resolution.
The resolution referred to necessarily precipitated a crisis in the financial affairs of Sun Ray. Sun Ray could not secure credit from others which was denied to it by the milling company, and Sun Ray was in urgent need of funds or credit for two purposes: first, to pay the milling company, and second, for operating purposes. After repeated conferences between those who were interested, solution of the problem took the form of two propositions: first, that Theodore Ismert should give his note to the milling company for Sun Ray’s debt, and Sun Ray’s obligation to the miilling company would be cancelled; and second, to provide Sun Ray with working capital, Theodore Ismert and George Hincke would deposit securities with a bank upon which Sun Ray might draw funds to the amount of $50,000. Neither proposition was of any avail without the other. It was useless for Theodore Ismert to take over the indebtedness of Sun Ray to the milling company unless Sun Ray were provided with working capital, and it was useless to provide working capital if Sun Ray were obliged to pay the milling company.
There is no dispute that discussions concerning what should be done about Sun Ray’s affairs culminated in an agreement that Theodore Ismert and George Hincke would provide Sun Ray with working capital. Pursuant to the agreement, George Hincke deposited with the First National Bank of Kansas City, Mo., government bonds to the amount of $25,000. Theodore Ismert deposited the certificate for his milling company shares. George Hincke signed an instrument guaranteeing payment to the bank of advances to Sun Ray up to the sum of $25,000, and Theodore 'Ismert signed an instrument of the same tenor. The credit thus supplied was used by Sun Ray.
As indicated, discussion between Theodore Ismert and others interested in Sun Ray and the milling company,' concerning the best way to deal with the situation created by the milling company’s action respecting Sun Ray’s indebtedness, progressed from some time after July 16. Several solutions were considered, but were not adopted. J. A. G. Badorf was manager of Sun Ray, and was soon to become a director and vice president. The testimony of Badorf and George Hincke was that Theodore Ismert finally announced he would take over Sun Ray’s indebtedness, and George Hincke then said he would help to provide Sun Ray with working capital. The result was that Allendorfer, vice president of the First National Bank of Kansas City, Mo., was called to Theodore Ismert’s office. Badorf testified that after Mr. Allendorfer got there, there were present Theodore Ismert, Mr. Hincke, and himself. Mr. Allendorfer was not acquainted with Mr. Hincke, and was introduced. Following the introduction, Mr. Hincke opened the conversation by stating why Mr. Allendorfer was called there. The milling company had been advancing money to Sun Ray, Mr. Ismert was going to give his note for that indebtedness, and he and Mr. Hincke wanted to arrange funds for Sun Ray. Mr. Allendorfer said he thought that could be easily arranged. Mr. Allendorfer was told that Mr. Hincke had agreed to guarantee half of fifty thousand dollars, and that Mr. Ismert would guarantee the other half. Mr. Hincke asked Mr. Allendorfer what the bank would require, and Mr. Allendorfer said, “Well, you can either put up collateral or make a financial statement.” Mr. Hincke said he did not care about making a financial statement, and asked Mr. Allendorfer if they would accept liberty bonds. Mr. Allendorfer said that would be entirely satisfactory. Mr. Ismert said he had no bonds he could put up, but he would pledge his Ismert-Hincke stock, if that would be acceptable. Mr. Allendorfer said that would be all right, he knew what the Ismert-Hincke Milling Company was, and his stock would be acceptable as a guaranty. George Hincke’s testimony was to the same effect. The precise day the meeting occurred was not definitely stated, but it occurred the latter part of the week, and probably on Friday. The guaranty signed by Theodore Ismert was dated August 5. Concerning the date of execution of the guaranty, Martin E. Ismert, Theodore’s son, president of the Sun Ray Products Company, and a witness for the defense, gave testimony abstracted as follows:
“Being shown exhibit No. 6, the guaranty, and having my attention called to the date, August 5, 1924, I will state that it had been agreed on, but I don’t believe it had been signed.”
Theodore Ismert’s note to the milling company was signed in the evening of August 5. In the evening of August 6 the board of directors of Sun Ray Products Company held a meeting. Martin Ismert, the president, presided. The minutes of the meeting show the following:
“The president announced that the books of this corporation showed an indebtedness to the Ismert-Hineke Milling Company of $168,357, and further indebtedness to Theodore F. Ismert of $4,816.76, which indebtedness prevented this corporation from obtaining further credit or operating capital. That the debt of this corporation to the Ismert-Hineke Milling Company had by the Ismert-Hineke Milling Company been charged to- Theodore F. Ismert, and that Theodore F. Ismert thereupon succeeded to the rights of the Ismert-Hineke Milling Company against this corporation; and that the officers of this corporation offered to Theodore F. Ismert a demand note of this corporation, secured by a mortgage upon its assets, of the total of $173,156.76, to be held by Theodore F. Ismert pending the liquidation of the contracts now held by this corporation, and the further financing of this corporation.
“The president also stated that Theodore F. Ismert and George Hincke had offered to aid and help this corporation in securing operating capital in the amount of fifty thousand ($50,000) dollars.
“Whereupon, the following resolution was offered:
“ 'Be it resolved, That this corporation, by and through its board of directors, execute to Theodore F. Ismert a demand promissory note in the sum of $173,156.76, in payment of the obligation heretofore held against this corporation by the Ismert-Hineke Milling Company, and also the obligation heretofore held against this corporation by Theodore F. Ismert, and that the same be secured by a mortgage upon the assets of this corporation, duly made and executed to Theodore F. Ismert. That this corporation proceed forthwith to fill all contracts and orders for merchandise now in its possession, and to turn all available proceeds thereof to Theodore F. Ismert to apply upon the aforesaid note, and thereby enable him to cancel the obligation heretofore held by the Ismert-Hineke Milling Company.
" 'Be it farther resolved, That this corporation execute such other and further notes as may be necessary to secure operating capital, as provided for in the offer of Theodore F. Ismert and George Hincke.’ ”
Martin Ismert testified he offered the resolution which was adopted. A resolution to keep the bank account of the company at the First National Bank of Kansas City, Mo., was also adopted. The meeting adjourned, to meet on Friday, August 8, at 7 p. m.
The board of directors of Sun Ray met pursuant to adjournment, at the office of the company, at 7 p. m., August 8. Martin Ismert was not present, and Badorf presided. The minutes of the meeting show the following:
“The president announced that arrangements had been made at the First National Bank at Kansas City whereby this corporation can obtain an operating capital of fifty thousand ($50,000) dollars, and the acceptance of the offer made by George Hincke and Theodore F. Ismert, as provided in the last meeting of this board.
“Upon a motion duly made, seconded, and passed, the following resolution was unanimously adopted:
“ ‘Resolved, That M. E. Ismert and J. F. Martinsen are hereby authorized and empowered to borrow on behalf of this corporation from the First National Bank of Kansas City, Kansas City, Mo., from time to time, such sums of money as such officers or either of them may deem expedient, not exceeding in the aggregate principal amount at any one time the sum of fifty thousand ($50,000) dollars, on such terms and conditions as such officers so acting hereunder may approve, and to make and deliver the notes, obligations, or other agreements of this corporation, for the repayment of any sums so borrowed, in the form required by said bank, . . .’
“The secretary thereupon presented to the meeting a note made out to Theodore F. Ismert, in the sum of $173,156.76, payable on demand, six per cent interest, and also mortgage covering the assets of the corporation wheresoever located, securing the said note, whereupon the following resolution was offered, and unanimously adopted:
“ ‘Be it resolved. That the president and secretary of this corporation be and are hereby authorized to execute the note and mortgage of this corporation, which note is for the sum of $173,156.76, payable on demand, to Theodore F. Ismert, with six per cent interest, and that the same be delivered to Theodore F. Ismert, and copy thereof filed with the secretary of this corporation. That the same be executed and delivered to Theodore F. Ismert in payment of the debt and obligation now owing as provided in the resolution adopted by the meeting of this board on August 6, 1924.’ ” .
Tbe note referred to was executed under date of August 8, 1924, by the Sun Ray Products Company, by Martin E. Ismert, president, and Joseph F. Martinsen, secretary. At a meeting of the board of directors held on August 16 the resolutions of August 6 and 8, relating to the giving of a mortgage, were rescinded. Rescission was necessary because a mortgage on Sun Ray's assets would obviously impair its credit. At the meeting of August 16 Martin Ismert, the president, presided, and the minutes show the following:
“The action of Mr. Theodore F. Ismert and Mr. Geo. E. Hincke through which it was possible for this company to obtain loans at the First National Bank of Kansas City, Mo., was then discussed, and on motion properly made and seconded, it was decided that inasmuch as Messrs. Geo. E. Hincke and Theo. F. Ismert, having pledged certain securities with the First National Bank, through which this company has been able to obtain a considerable line of credit at the First National Bank of Kansas City, Mo., and inasmuch as this action on their part was done without cost to the company, that at the earliest possible date these pledges be released, and the securities returned to the respective owners.”
The record of the meeting of August 8 indicates that Theodore Ismert’s signed guaranty and indorsed certificate of stock were in the bank before that meeting occurred. How they reached the bank is disclosed by the testimony of Martin Ismert, and the testimony of Clement Ismert, who was also a witness for the defense. Clement Ismert was Theodore Ismert’s son and was his father’s chauffeur.
Martin called Clement by telephone and told Clement to go to Henry Ismert’s office, get a paper, and then go to Martin’s office. Clement got the paper at Henry Ismert’s office and went to Martin’s office. Martin had gone to his father’s safety-deposit box and had gotten his father’s certificate of milling company stock. When Clement arrived Martin gave the certificate of stock to Clement and told Clement to “take it over and have father sign it.” Clement took both papers to his father’s house. His father signed the guaranty to the bank and signed the blank assignment of the certificate of stock. After they were signed Clement took both papers to Henry Ismert, who took them to the bank. Clement did not know what “the white paper” — the guaranty — was, he had not read it, nobody told him what it was, and he did not learn what it was until long afterward.
Nobody was present when Theodore Ismert signed the instruments, except Clement. At first Clement said he did not believe he had any conversation with his father, but “perhaps” he pointed to the place where his father should sign; “very likely” he pointed to the place where his father should sign; “he believed” he pointed to the place where his father should sign; and “he showed his father where to sign.” Clement had given testimony at a previous trial, and at that trial he was examined by the court. Under examination by the court he said his father asked him why he brought the stock there, and he replied, “Martin told me to get that stuff there and have him sign it.” At the instant trial Clement said the answer he made to the court at the former trial was true when given, and was still true.
The result of the foregoing is, Clement came into his father’s room with some papers. Whether his father was in bed, or was in his chair, is not disclosed. There is no evidence that Theodore Ismert was not perfectly alert. Without any preliminaries he immediately recognized the certificate of milling company stock, supposedly rest ing securely in his safety-deposit box, and asked Clement why he had that stock there. Clement explained that Martin had sent the papers for signature. There is no evidence that the explanation was not perfectly apprehended. The papers were signed with pen and ink, and there was expert testimony by a witness for the defense that the signatures were good signatures. There was evidence for the defense that pen and ink were kept on a table in the room. Clement told what he did, enlarging on his pointing, as has been indicated. He did not pretend that he got the pen and ink and arranged a place where the papers might lie, so that his father could sign them, and the inference is his father made his own preparations and executed the instruments pursuant to his agreement to execute them in order to provide working capital for the Sun Ray Products Company. No court would be authorized to tolerate a finding to the contrary.
The court does not overlook the testimony of Martin Ismert, who said his father was not capable of knowing what he was signing. Martin was not present, and his opinion, expressed without knowledge of the facts at the time the conduct was manifested, does not rise to the dignity of testimony sufficient to raise a conflict in the evidence.
It is essential to a proper understanding of the case that something should be said here about Martin Ismert’s attitude at the trial. Martin Ismert’s testimony concerning agreement that his father would join in providing working capital for Sun Ray, his report as president of Sun Ray to his board of directors, the resolution he introduced, and the resolution of the board that he and Martinsen should deal with the bank in making use of the credit obtained, have been referred to. It would follow that Theodore’s- signature was a matter of detail in the consummation of a well-understood business arrangement, and Martin sent the papers to his father by a boy who did not know what one of them was. Plowever, Martin said his father was not capable of knowing what he was signing, and Martin said he used the credit and borrowed money of the bank on his father’s guaranty and the certificate of stock. The result is, Martin’s testimony leaves him in this situation: Either he was vaporizing, under oath, in court, or he betrayed George Hincke and sent the certificate and guaranty to his incompetent father for worthless signatures so he could use them as false pretenses to get money from the bank.
On August 20 Theodore Ismert made his will under circumstances which will be described. After his father’s death Martin presented the will to the probate court for probate. Normally a business man of Martin Ismert’s experience would know that testamentary capacity is essential to the making of a probatable will. The petition for probate of the will was in writing. The writing stated that at the time of the execution of the will Theodore Ismert was of sound mind and memory and not under any restraint. The writing was signed by Martin Ismert. Below the signature appeared a written oath that Martin Ismert had read the petition, knew its contents, and all of the statements it contained were true. He subscribed the oath, and the oath was administered to him by Henry Mead, the probate judge. In the instant case Martin testified he did not read what he signed and was sworn to in the probate court, and that in making his will his father did not know what he w.as doing. The result is, Martin trifled with the sanctity of an oath in one court or the other.
Theodore Ismert was at his office in the forenoon of Saturday, August 2. Henry Ismert, secretary and treasurer of the milling company and in charge of its books and accounts, testified that on Saturday, August 2, Theodore Ismert came to him and said he would give his note for Sun Ray’s indebtedness, and testified further as follows:
“After Theodore Ismert told me that he would sign the note to Rmert-Hincke Milling Company to straighten out Sun Ray’s account with the milling company, I went into the bookkeeper’s office and verified the account; that is, the amount. It was not right away, but a few minutes afterwards 1 made out the note. I made out the note at the request of Theodore Ismert. . . . When I made it I took it in to Mr. Theodore Ismert for him to sign, but he had gone home. ... At the time I made out the note on Saturday, I did not know how long it was to run. I left 'that part of the note blank. In other words, I left that part of the note blank here which now reads, ‘on or before ten years.’ That was blank when I prepared it, and I left it blank because Mr. Ismert had not told me how long he wanted the note to run.”
The testimony discloses no definite understanding that Theodore Ismert was to sign the note to the milling company on Saturday, but it is plain the situation was such that prompt closing up of the arrangement was desirable. George Hincke’s bonds were in St. Louis. Immediately after the meeting with Allendorfer, George Hinoke went to St. Louis to get his bonds, and then went on to his permanent residence in Pinckneyville, 111. Allendorfer was to furnish the papers the bank required — the guaranties. When furnished, it was necessary that George Hincke’s guaranty be forwarded to him for signature. The following letter, dated August 4 (Monday), from Henry Ismert to George Hincke, at Pinckneyville, reveals the progress of certain events up to the time the letter was written:
■ “Received your letter with the bonds, and have just returned from the bank with the papers for you to sign, which you will find inclosed herewith.
“Theo. was not able to come over to-day, but telephoned that he would be here to-morrow. Maybe I will go to his house this evening, and have him execute his papers and sign the note for I. H. He will have to come over tomorrow to get his stock for the collateral.
“I will not do anything with yours until his part is fixed.
“I do not think the bank will ask for all of his stock, but maybe it would be better there, and then we would know where it is.
“It has been very sultry here to-day, and am about all in, so will cut this short.
“We have sold'close to 7,000 barrels to-day, and will be a little short in the morning. However, shall buy enough cash wheat to even up.”
Counsel for the defense say in their brief the letter just quoted related to the arrangement for Theodore Ismert and George Hincke to execute guaranties for money borrowed by Sun Ray. That is true. But it also related to the weather, to milling company business, and to facts of the highest importance which counsel ignore.
Anyone acquainted with the circumstances and accustomed to the interpretation of writings would say that Henry Ismert was writing a plain, frank letter to a friend and business associate. The letter shows that Theodore Ismert was not able to go to his office on Monday; that he was doing his own telephoning; and that he telephoned Henry Ismert he would be at his office on Tuesday. The letter also shows that signing of the note to the milling company was just as much one of the things to be done by Theodore Ismert as execution of the papers to the bank.
The letter refers to the amount of stock the bank might require of Theodore Ismert as security. Martin Ismert testified the bank required his father to put up every share of milling company stock he had. There is no foundation in the record for the statement. Martin Ismert had no part in negotiating with the bank for credit for Sun Ray, and the facts have been narrated. Besides that, the certificate of stock is in evidence. It was certificate No. 1, issued by the Ismert-Hincke Milling Company to Theodore F. Ismert, for 2,392 shares of the capital stock of the company, and there was no reason why this share certificate should be surrendered and two certificates should be issued, so that one could be used temporarily as security to tide Sun Ray over its difficulties. The bank’s advancements were repaid by Sun Ray, the securities were returned, and $40,000 were paid on the milling company note, all within a few months. Orders were taken by Sun Ray in the customary way for goods subsequently to be manufactured and delivered. These orders were not entered on the books as assets until delivery was made. An audit of the books of Sun Ray covering the period January 1 to June 30, 1925, showed what was called “loss” of $73,054.56; but the company had made actual sales amounting to $550,500, with all advertising and selling expenses paid.
Martin Ismert testified positively that previous to August 2 there was no discussion between Badorf and his father concerning Theodore Ismert’s giving his note to the milling company and Sun Ray giving Theodore Ismert a note and mortgage. Then he testified as follows:
“Prior to August 2 Mr. Badorf came into my father’s office and called me from an adjoining office, and said: ‘Now, we are having trouble,’ or words to that effect. ‘Mr. Theodore Ismert, why don’t you sign a note to Ismert-Hincke Milling Company’; that is what happened. He said: ‘So that we can borrow money for Sun Ray.’ I recollect such a conversation.”
At the first trial Martin Ismert gave the following account of what occurred between his father and Badorf:
“Mr. Badorf went into my father’s office, called me in there, and said: ‘Now that you two and I are together,’ he says, ‘we got to do something right away.’ He says he had men on the road, and salaries due, and he said Ismert-Hincke won’t give us any more credit, and he says they are threatening a suit. He says: ‘Mr. Ismert, why don’t you do what they want you to do, sign a note to Ismert-Hincke Milling Company’; and he says, ‘Sun Ray will protect you by a note and mortgage.’ ”
At the instant trial Martin Ismert said this testimony was true when given, and was still true.
Martin Ismert testified further as follows:
“Mr. Badorf was general manager of Sun Ray. He had no connection with Ismert-Hincke. When he came to father’s office to discuss the matter of father giving a note to Ismert-Hincke for Sun Ray’s account, he was interested in keeping his job. If father signed that note Sun Ray would run and he would keep his job. At that time Ismert-Hincke had cut down on Sun Ray’s credit. I knew that. That was what was bothering Mr. Badorf, and the purpose of his visit was to try to get credit for Sun Ray. He wanted Sun Ray to run. He suggested father pay the debt of Ismert-Hincke; that is, give his note to the Ismert-Hincke company. That was Mr. Badorf’s suggestion at that meet ing. I was there. The note that is here in question was given to Ismert-Hincke. They got a note, that he signed. We have never admitted it. I knew it was to take up Sun Ray’s balance.”
This testimony fully corroborates the testimony of Badorf and George Hincke, and establishes these facts: Nobody would lend Sun Ray money, and Sun Ray had to clear up its indebtedness to the milling company. Badorf talked to Theodore Ismert about the situation in Martin Ismert’s presence. Badorf wanted Theodore Ismert to take up Sun Ray’s indebtedness by giving a note to the milling company, so that Sun Ray could borrow money. The purpose of giving the note was to get credit for Sun Ray. If the note was given, Sun Ray would run. The note was given, and Martin Ismert knew it was given, to take up Sun Ray’s indebtedness. Whether Martin Ismert admitted the note was a valid instrument is of no consequence. The giving of the note was agreed to as an integral part of the financial arrangement to sustain Sun Ray’s credit and keep it a going concern, which included deposit of securities with Allendorfer’s bank, and it would be fatuous to contend to the contrary.
The date of the board meeting at which Martin Ismert was elected president of Sun Ray is not disclosed. He severed his connection with the sales department of the milling company on Friday, August 1, the day the meeting with Allendorfer doubtless occurred in Theodore Ismert’s office. A few days later Martin Ismert was presiding at a board meeting as president of Sun Ray. He did not deny that he wanted Sun Ray to continue in business quite as much as Badorf. On the other hand, he testified he wanted Sun Ray to run, and it is manifest that whether he was to be president of something or nothing depended on what his father did. The minutes of the board meeting of August 6, showing Martin’s announcement of substantial fulfillment of just what Badorf had recommended, and showing the resolution introduced by Martin and adopted by the board to give Sun Ray’s note to Theodore Ismert for the amount of Sun Ray’s indebtedness to the milling company which Theodore Ismert had taken over, have been printed above.
The milling company’s books were written up to show Sun Ray was credited with Theodore Ismert’s note on August 2. When produced at the trial, Sun Ray’s books had been mutilated, but they had been written up originally to show Theodore Ismert’s account was credited on account of “Note to I. H.” on July 31. Martin Ismert mutilated the note which, pursuant to resolution of the board of di rectors, Sun Ray executed to Theodore Ismert for the milling company's indebtedness, -but the note was carried on Sun Ray’s books.
Martin Ismert testified that on Saturday he happened to be in his father’s office and heard a conversation between Theodore Ismert and Henry Ismert. He testified that Henry Ismert said Sun Ray was broke, the bank would ask questions, and the bank might re-, fuse to lend money which would be needed to buy a lot of wheat. That must have been great news to Theodore Ismert, who had been grappling with the milling company-Sun Ray problem ever since July 16, and who had already definitely arranged for credit for Sun Ray at Allendorfer’s bank. However, Martin so testified, and his testimony continued as follows:
“Q. What did your father say? A. My father said he didn’t see why he should have to sign that note any more than George Hincke or Henry Ismert or Mr. Laumeier. He said he-is no more responsible than they were.
“Q. Well, what else was said then? A. Well, Mr. Henry Ismert said that he did not have enough stock; his note would be no good; and he said Mr. Laumeier was, I believe, in Europe; they could not get him to sign, and that Mr. Hincke, his stock was divided up in their estate and he didn’t think the bank would take Mr. Hincke’s note; and that his note was the only note that would be any good, because it represented the biggest individual lump of stock at that time.
“Q. Well, did your father make any reply to that? A. My father said he didn’t see why he should. And there was maybe a little conversation back and forth; and I told my father that — I said to my father he should not sign, I could not see why he should sign; and I believe Mr. Henry Ismert walked out, and I may have had a few words with my father, and I walked out, bade him ‘goodbye,’ then I went in my other office.
“Q. How did your father act after this conversation when Mr. Henry Ismert walked out? A. I went back to my office and gathered up my things, and stuck my head in my father’s door to bid him go'od-bye; and that was the first time I ever had seen my father cry. He was lying — his head was on his arms on the desk, and he was crying.
“Q. Now you were not present when he left? A. I don’t believe I was, no. I told my brother, who was standing out in the hall, to go in and take dad home.
“Q. But you didn’t see him go hom,e? A. No, I didn’t see him go home.
“Q. When is the next time you saw your father? A. The next morning.”
It will be observed that Martin Ismert did not testify that in this conversation with Henry Ismert, Theodore Ismert refused to sign the note.
There was testimony that on Saturday, August 2, after Theodore and Henry Ismert had talked at length about giving the note, Henry had gone, Martin had found his father crying and had told his brother to take his father home, Martin had gone, and his father had gotten over crying, Henry Ismert came back and commenced to talk about giving the note, just as if it were a new subject. The testimony came from John Ismert.
John Ismert testified he was in and out of his father's office for about ah hour. About 11 o’clock Henry Ismert came in. No one was present except Theodore and Henry and John. A conversation occurred in which John participated. He was asked what' occurred. He was administrator of Theodore Ismert’s estate, and objection was made that he was not a competent witness. Counsel for John Ismert, administrator, made the following statement:
“The purpose of this question, your honor, is for the sake of bringing out the conversation, in order to show the general actions and demeanor of Mr. Theodore Ismert, and any facts in relation to his mental condition at that time, and not for the legal effect of anything that he may have said.”
Then followed a colloquy between court and counsel. At the conclusion of the colloquy, and before the witness answered, the court instructed the jury as follows:
“The Court: On account of the statements which have been made by ^ounsel to the court, the court is going to allow that conversation to be given to the jury; but the jury is at this time instructed that the reason for allowing that conversation to go before you is for the sole purpose of enlightening the jury as to the mental condition of Mr. Ismert at the time these conversations were had.”
The witness then testified as follows:
“I was sitting back of my father on the davenport he had in his office, and Mr. Henry Ismert came in. He said, ‘Theodore,’ he said, ‘we have got to have this note signed’; and dad said, ‘Henry, I cannot sign that note, and I won’t sign it.’ He said, ‘Theodore, the mill will go busted along with Sun Ray — ’
“Q. Who said that? A. Henry. Henry Ismert said it, the mill would go busted along with Sun Ray; that the mill needed capital to buy wheat; that they will have to make a bank statement, a statement to the bank. Now, I told Henry, I said, ‘Papa will not sign no’—
“Mr. H. H. Berger: Wait a minute. That is—
“The Court: That is objectionable.
“Well, my father was — just got over a crying spell, I suppose, before I got there, shortly before I arrived at the office. ... He was laying over his desk. . . . His condition was swollen, so I seen, here in his neck, and the swelling was going up here in his arm, his right arm.”
In the brief of counsel for the defense the language of John Ismert relating to refusal to sign the note is repeated as contradicting the testimony of Henry Ismert that Theodore told Henry Theodore would sign the note. In view of the statement of counsel regarding the purpose of the testimony, and in view of the court’s instruction to the jury, the argument has no place in a brief in this court. So far as the testimony of John Ismert bore on what counsel represented to the court it was offered for, Theodore Ismert’s mental condition, the testimony showed Theodore Ismert was in full possession of all his mental faculties and in full command of his powerful will.
Clement Ismert testified he took his father home from the office before noon, about 11:30. Either Martin or John had just left the office. On the way home Theodore seemed downhearted and depressed.
The result of the foregoing is, there was no evidence that up to the time Theodore went home from his office on Saturday, August 2, he had refused to sign the note to the milling company to take up Sun Ray’s indebtedness. No attempt was made to show a subsequent refusal. As indicated, his previous agreement to sign the note was established beyond question.
On Sunday, August 3, Theodore Ismert spent most of the day going from place to place in his automobile. His son Clement acted as chauffeur. Early in the morning they started out and drove about without having any particular destination in view. They happened to be going on a certain road and turned in at Martin’s house. Leaving Martin’s house, Martin accompanying them, they went to Badorf’s house. They then returned to Martin’s house and left him there, but did not stay. Then they went home and had dinner. After dinner they drove to a farm Theodore owned in Missouri. Leaving the farm, they took a boulevard near Independence, and came back to Kansas City. They stopped at Doctor Gray’s house. Doctor Gray was Theodore’s attending physician. Then they went home, arriving about nine o’clock in the evening. Clement testified that every place they went was at his father’s suggestion.
Martin Ismert testified that while his father was at his house he was in a highly excited mental condition; he talked wildly in a high tone of voice — almost yelled — went from one subject to another, and could not carry on connected, intelligent conversation. He Wanted animal cages and bird houses built on the farm, was going to have a big show out there, and for the first time Martin noticed his father was talking “out of his head.” One thought, however, constantly recurred to him, and that was the financial condition of Sun Ray Products Company. He would ask if Sun Ray was “busted,” and then say they were worth a lot of money; would ask if they were broke, and then ask how much money they were worth; and Martin said if his father asked him once he asked him fifty times, “Sonny, is Sun Ray busted?”
As indicated, Badorf was manager of Sun Ray, and Theodore wanted to see Badorf and get some information from him. Apparently it did not occur to Martin that his distraught father needed a doctor, needed something to quiet him, and needed to be taken home and put to bed, and so to Badorf’s they went. Martin Ismert testified as follows:
“There was quite a little discussion at both places as to the amount of material that was booked by Sun Ray. By booked I mean business, stuff that we already had sold, and the goods had to be manufactured and delivered, and to be able to do that we would have to have some additional working capital. Later we did use father’s guaranty and Mr. Hincke’s guaranty at the First National Bank to get that working capital. Father specifically asked Mr. Badorf about the bookings, about how much stuff they had sold, on their books to manufacture and deliver, and he discussed it with me, but he discussed with Mr. Badorf what profit there would be on these bookings, and that was discussed back and forth between Mr. Badorf and my father on that Sunday. That was on August 3, the day following the conversation at the meeting I spoke of between Henry Ismert and father in the Ismert-Hineke Milling Company.”
Badorf’s testimony, not subsequently disputed or corrected or supplemented by anybody, follows:
“He came there with Clem, Ismert and Martin Ismert, his two sons. It was just before noon on Sunday, August 3. I think it was the first Sunday in August. That was a few days after the conference that I had in his office with Mr. Allendorfer and Mr. Hincke. It was the following Sunday.
“When he came there he talked about the volume of business which the Sun Ray company had booked, and also about the cost of pancake flour per case, and the margin of profit there was in each case. At that conference he never at any time asked the question, ‘Is Sun Ray busted?’ There were only two things that were discussed then, as I remember. That is, he asked about the volume of business that had been booked, and he asked about the cost per case, and the margin of profit the company would make per case. He also asked how closely the cost o.f the various ingredients had been figured, and asked me whether this had been figured to five and six decimal places. I told him they had, and they had been figured in some cases to seven or eight. I did not have the statement I had prepared of Sun Ray’s financial condition at the house. I remember this: I could not tell him definitely what the costs amounted to, but I offered to go down to tbe office and get them and furnish them to him. He said it was not necessary, but he just wanted to know in a general way. . '. . Previous to that time he had been furnished with no financial statement of Sun Ray, except I showed him a financial statement when I was at his office.”
With reference to Theodore Ismert’s physical and mental condition, Badorf testified as follows:
“When Mr. Ismert came out and talked to me, I noticed that in the course of half an hour he drank two pitchers of water. He said he was awfully dry. I remember that was in August, and was very warm. . . . He was very dry, and in physical distress at the time. Almost everything about the man indicated that he was sick. He did not appear to be in pain. The only titling I noticed was that he was very dry. His throat troubled him to some extent. He walked with a slight limp. I think he was affected to some extent in his left leg. ... I didn’t see any difference in him whatever, except as to his physical condition. He was mentally alert, as far as I could observe. He of course was in physical distress. Anyone who is in physical distress is affected mentally. I could not tell any difference in the questions Mr. Ismert asked me or what he wanted to know. He knew definitely what he wanted to know. I noticed he had trouble getting his breath. I don’t remember the swelling. The only thing I did notice, that one of his ankles, when he was sitting there on the porch, I noticed one of his ankles seemed to be swollen. ... I don’t remember much about his color. He seemed to be a bit flushed — his face was just a little flushed. ... At that time he went right ahead and talked, and took the same keen interest in the business he had ever since I knew him. I only want to qualify that to this extent, I very seldom talked business with Mr. Ismert.”
Martin gave no testimony concerning any mental aberration or infirmity exhibited by his father at Badorf’s, or on the way back to Martin's house. Martin did not see his father again that day, or until noon the next day, and the record is barren of any inquiry he made concerning his father’s state of mind or physical health in the meantime.
The next day was Monday, August 4. Martin said he went to see his father, and said his father did not recognize him — was talking to himself. Martin stayed for lunch. While he was there the doctor came. After the doctor left Martin went back, his father recognized him, and they had a small conversation, but not about business. Martin was there but a few minutes, as he had to get back to his office. That evening Martin saw his father, who was in a sort of a daze, “I think muttering to himself.” That was the day Henry Ismert, writing to George Hincke without any thought of fabricating testimony for use in a future lawsuit, said that Theodore Ismert was not able to be at-his office, but telephoned he would be at his office the next day.
There was satisfactory evidence that after Theodore Ismert came home Sunday evening he was tired and excited, and was “rather odd.” He had one of his bad spells. Monday he was worse. Monday was one of. his bad days, when he would “go out of his head.” He would have a smothering spell. He could not get breath, and he did not talk very much at those times. He did not lie down, but was propped up with pillows. He had a big rocking chair, and would move from his bed to the chair, and sometimes he would be with his head at the foot of the bed. The nature of his disease was such that he had to sit up to get his breath. These spells commenced about the middle of July. He did not have them so often at first as later on. He got over the Monday spell, but was gradually becoming worse. He did not get worse suddenly; it was progressive. Theodore’s daughter Irene took care of her father until August 10, when a day nurse was employed. On August 19 a night nurse was employed.
The testimony of all the witnesses, members of the family, business associates, and others, was that when in health Theodore Ismert was a man of unusually strong mind and will power, and of dominating character; and there was indisputable evidence that after his bad Monday Theodore continued, in spite of physical disability and distress, to manifest his strength of mind and will and character.
Passing for the present signature of the note in the evening of August 5, the members of the family testified that after Theodore Ismert was confined to his home, beginning Monday, August 4, his business associates visited him to talk business. His wife testified that he carried on telephone conversations relating to his business. The telephone was in an adjoining room, and his daughter, Irene, felt sure he did not use the telephone because he needed help to walk, but the testimony was a general conclusion and not her recollection of facts at any specific time. Martin Ismert testified he knew his father called George H. Davis and had Davis come over to the house. Davis was president of a grain company which did much business with the milling company. Davis said he was at the house several times, and he called Theodore on the telephone several times. The sales manager of the milling company, J. B. M. Wilcox, testified, to conversations with Theodore over the telephone, and one conversation on August 8 was established with certainty.
Wilcox and Martin Ismert made a sale of flour to Mr. Marshall, of the Bakers Service Corporation. Marshall, Wilcox, and Martin Ismert met in Marshall’s room in the athletic club of Kansas City, Mo. Wilcox talked by telephone with Theodore Ismert about the sale, which was a large sale at a low price. Theodore asked what Wilcox thought about it, and Wilcox said he was not very proud of it; it was a cheap price. Theodore said he thought so, too. Wilcox testified that Marshall talked to Theodore, and that Martin talked to Theodore. In rebuttal, Martin said he did not call up his father, and nobody said he did. Martin also said he had no telephone conversation with his father. Having selected the single thing he would deny, all other details of what occurred were admitted.
As late as August 22 Theodore had an interview with George H. Davis. Theodore was worried because the milling company was not buying more protein wheat. He believed there would be a shortage of wheat of that quality. There was other testimony that this was true, and that Theodore wanted to buy 500,000 bushels of protein wheat. The result of the interview with Davis was that on August 23 Davis sold to the milling company a quarter of a million bushels of wheat. There is no dispute about this transaction, and Davis testified that, considering Theodore’s physical condition, his mental condition was remarkable. It may be recalled that on August 4 Henry Ismert reported to George Hincke that on that day the milling company had sold close to 7,000 barrels, they would be short the next day, and he would buy cash wheat to even up. Assuming it required 4.6 bushels of wheat to make a barrel of flour, a quarter of a million bushels of wheat would supply wheat for about eight days’ sales.
One of Theodore Ismert’s amusements was playing poker. There were Saturday afternoon games at his office, in which some of his business associates and others participated. It is undisputed that after he was confined to his house he played poker from his bed in his room. The details of the arrangement whereby he could do this are described in the testimony. Mrs. Ismert and Clement said there was only one game, but those who participated testified there were two Saturday afternoon games, one on August 9, and one on August 16. The limit was a dollar, and they played dealer’s choice. Clement said that in the game he knew about his father went to sleep. He did not undertake to say his father went to sleep when it was his deal, or when he was in the pot, and those who were in the game with Theodore testified to the customary-vigor of his play.
Mr. Ismert’s sending for George Davis and insisting on laying in a store of protein wheat were the last acts of his noteworthy business career. They were performed for the benefit and success of the milling company. Just before that he had put his own house in order. On August 19 he made a deed of his real estate to his wife, and on August 20 he made his will.
The will was written by George H. West, an attorney, who resides in Kansas City, Kan. His sister married John Ismert. At the time of the trial West was attorney for Martin Ismert in a pending action. Some member of the family called West to Theodore Ismert’s house to draw his will. Before going West prepared a draft of the formal and usual parts of a will, in typewriting, leaving blanks to be filled. The remainder of the will was written at the Ismert home.
When West arrived at Theodore’s room Theodore’s wife, his daughter Irene, and his son Martin were there. Theodore was sitting in a chair. Theodore said to West, “George, I am in pretty bad shape. I want to draw my will.” West said, “Well, you should not feel that way about it. I have drawn my will, and I do not expect to die very soon.” Theodore then made a jocular remark to West about West’s liking for women, and said something to the effect West was afraid some woman or somebody might shoot him. Irene Ismert thought her father was out of his head. Then followed a conversation between Theodore and West about the terms of the will. West testified emphatically that he learned from Theodore all the provisions to be inserted in the will. West testified there was some discussion prior to the determination of what Theodore wanted done, and Irene gave some of the details respecting a bequest to her mother. She said West asked her father how he wanted the will made. Theodore said he did not know, turned to the family, and asked them how they wanted the will made. Irene spoke up and said, “Why not leave everything in mother’s name?” West asked Theodore if that was all right. It was all right, and a provision to that effect was inserted in the will. The provision follows:
“The residue and remainder of my property, both real, personal or mixed, wheresoever situated or found, including any inheritance or estate which might bo willed me by my mother, I hereby bequeath, give, and devise to my beloved wife, Cecelia C. Ismert, as her own separate estate and property.”
It will be observed this was a residuary clause, and contained reference to any inheritance or estate by will which might come to Theodore from his mother. West testified nothing was put in the will except by Theodore’s direction, and nobody disputed him as to how that provision got in the will.
The clause preceding the residuary clause was as follows:
“I hereby give, bequeath and devise to my daughter Irene Ismert, and to my sons, Clement, John and Martin, and to my granddaughter, Edna Hellane Ismert, the sum of one dollar each.”
West testified he put that specific provision in the will at Theodore’s direction, and nobody disputed the testimony. The will also appointed two executors, Cecelia C. Ismert, the testator’s wife, and Martin Ismert, his son, and nobody disputed the fact that West put the appointment provision in the will at the testator’s direction.
West testified that when the will was written he read it to the testator. Nobody testified to the contrary, and nobody testified the testator did not understand what was read.
The testator signed the will. Who provided pen and ink is not disclosed, but there is no testimony that the testator was told where to sign. West testified the testator declared the will to be his will, and nobody disputed that fact.
There was some discussion concerning who would act as witnesses. West told the testator he would rather have some one outside the family. A neighbor, Mrs. Eoff, was or had been called. West testified that he and Mrs. Eoff signed the will, at the testator’s request and in his presence, and nobody disputed that part of the execution of the will. West and Mrs. Eoff subsequently made proof of the will, and West testified that the affidavit he signed by way of proof was true.
When Irene was pressed to tell whether her father was out of his head when she answered his question and suggested the property should go to her mother, she said her father spoke queerly, she did not know whether he was out of his head or not, and she then evaded direct and candid answer. The concluding part of her testimony follows:
“Q. He was not out of his head when you had the conversation with him about how the will was to be made? A. There was no special conversation; it was really in general.
“Q. Well, it was in general. George asked your father how he wanted his will. Then your father said he did not know how he wanted it? A. Yes.
“Q. Then you made a suggestion to your father, and your father agreed to that? A. Yes.
“Q. Now, when that took place your father was not out of his head, was he? A. I don’t know.
“Q. Haven’t you any idea? A. Well, the remark he made later was rather queer, too.
“Q. Was this conversation had — when Mr. West came in your father said to him: ‘George, I am in pretty bad shape. I want to draw my will.’ Do you remember if that is what your father said? A. Something like that.
“Q. Then Mr. West said: ‘You should not feel that way about it. I have drawn my will, and I don’t expect to die very soon,’ or words to that effect. Do you remember George saying that to him? A. Something like that.
“Q. That was more or less done in a joking manner, wasn’t it? A. Yes.
“Q. Then after that, right at that time,- George asked your father how he wanted the will drawn. Your father and you and Martin discussed it as to how the will should be drawn? A. Who had discussed it, please?
“Q. You and your father? A. No; just Martin and I had discussed it, downstairs.
“Q. All right. After or at the time Mr. West asked your father how he wanted the will drawn, your father then turned to you folks. Did he say anything to you? A. He asked us how we wanted the will made.
“Q. You told him, and he agreed with you; and after that was done was when Mr. West wrote it in here; is that right?' A. Yes, he wrote. He did some wilting.”
Martin Ismert gave characteristic testimony. He was present when the will was made. Without disputing any portion of West’s testimony, without telling anything that occurred, without making reference to any fact or circumstance connected with preparation and execution of his father's will, Martin said his father knew no more what he was doing than the man in the moon; you could tell him to do something, and he would do it just like a dog. The result is, there was no substantial evidence that Theodore Ismert was not competent, on August 20, to make his will. Martin’s verified petition to the probate court to admit the will to probate has been referred to. The will was admitted to probate, and John Ismert, as administrator with will annexed, is defending this suit.
The foregoing demonstrates that competency of Theodore Ismert to execute the note sued on must be determined by the facts as they existed at the time the questioned act was performed.
The note was executed probably between seven and eight o’clock Tuesday evening. Doctor Gray visited his patient, and as he was leaving Henry Ismert arrived. Henry Ismert testified as follows:
“I called at Mr. Ismert’s home with the note after dinner, I judge around seven or eight o’clock. There were several people there. I saw his wife, Mrs. Cecelia Ismert. I saw her in the hall and waited there until I could go upstairs. I went upstairs to Theodore’s room. When I got there I asked him how he felt, and had a little conversation for just a few minutes. He conversed with me. I told him- I had brought the note over for him to sign. When that conversation took place I am not sure whether Martin was there then, or whether he came in just about the time I was talking about it. While talking to Theodore Ismert about the note, Martin Ismert spoke to his father, and said: T wouldn’t have anything to do with it, if I were you; I wouldn’t have anything to do with it.’ His father did not answer, and after that Martin Ismert left the room. When he left the room I don’t think there was anyone else in the room. Irene came in shortly afterwards.”
Martin Ismert gave two accounts of what occurred. When examined by his attorney in probate court he testified that he and his wife followed Henry Ismert to Theodore’s room a short time after Henry went up. Martin then testified as follows:
“Q. Now what was occurring? Where was your father, and what was he doing, and what was Henry Ismert doing, when you went into the room? A. My father was lying in bed, or sitting propped up on the pillows, and Henry was sitting by his bed about two and a half feet from his head, and when Henry said he came there and wanted to know if papa would fix up the note, and they got to talking about a note, and I told my wife, I believe, to leave the room, that we were talking business, or going to talk business, and she left, and I told papa not to have anything to do with that. I said: T would not have anything to do with that.’ ”
At the instant trial Martin said the testimony he gave in probate court was true.
At the instant trial Martin testified on direct examination by his attorney as follows:
“The doctor had been up there about half an hour, and after the doctor came out, Henry went up, and my wife and I went up. My father was propped up in bed. Henry sát down at the side of the bed, and I was talking to my father, just a few words qf greeting and things like that. I was standing, I think, at my father’s head at the foot of the bed. His head was not at the head of the bed; on account of the air, they had propped him up down towards the end of the bed. Henry began to talk something about money and this note, what he talked to him about Saturday. I says he ought not. I says: ‘We can’t talk business here. There is not going to be any talk about any note now.’ Henry came back, and I think he said they had to have that note signed. I says, ‘We cannot talk about it,’ and I believe I told my wife to leave the room; and I told Henry, I says, ‘Now, there is going to be no note, no business talked.’ And I believe I went out after that, shortly after that. My father did not take part in the conversation when I was talking with Henry. My sister came in the room just as I was going out.”
There is no hint here that Theodore was denied corhpany, or that company visited him to hear him mutter, or out of curiosity to see the queer manifestations of mental disorder. There is no hint of stupor. Martin agrees with Henry that Theodore conversed with Henry, and conversed with Henry about execution of the note. There is no hint that what Henry had to say would be ineffective for lack of comprehension on Theodore’s part. The testimony of Martin in probate court was in full accord with the testimony of Henry in the district court, that Martin broke into the conversation with a protest to his father against signing the note. In the district court Martin shifted to protest to Henry against talking business, but when his attention was called to his testimony in probate court, he admitted the protest to his father. There is no hint that his father was not likely to comprehend the protest.
It will be recalled the time the note was to run had not been fixed on Saturday. Accepting Martin’s version of what occurred, we have conversation between Henry and Theodore about fixing up the note, advice by Martin to his father not to sign the note, and conversation between Martin and Henry about doing business there. Then Martin left. As Martin was leaving, Irene came in.
Henry Ismert testified as follows:
“When Irene came in, Theodore Ismert asked her where the pen was, and I asked him how long I should make the time of the note, and he said, ‘Three years,’ and I said, ‘We will make it longer than that. It don’t make any difference to me if we make it ten years.’ He said, ‘Well, then, make it ten years.’ Immediately after he told me I put on the note, ‘On or before ten years.’ That was done right in Theodore Ismert’s room and before he signed it. After Theodore Ismert said, ‘Where is the pen,’ Irene got the pen for him and handed it to him, and he signed it.”
Irene gave an account of what occurred. On direct examination by counsel for defendants, she testified:
“I went upstairs after Doctor Gray had left, and Martin and Henry Ismert were in papa’s room. They had been talking. I heard voices as I went in. I did not hear any of the talk. Martin left the room when I went in. Henry Ismert was by the bed in the little chair, and he took some papers out of his pocket, and he said to papa: ‘Theodore, I want you to sign this note. It won’t affect you any, and it is the only way we can get money at the bank.’ Nothing else was said. Papa looked around, and said: ‘Where is the pen?’ We had the stuff on the table in his room. We always had a pen and ink, and I dipped the pen in the ink and handed him to sign, and he signed his name.
“Father did not say anything more. Henry Ismert put the paper back in his book, and left the room almost immediately. Martin came back in the room about five or ten minutes afterwards, and I whispered to him that papa had signed the note. I was in father’s room at the time. He was sort of dozing. That was five or ten minutes afterwards.”
On cross-examination Irene testified as follows:
“I heard voices as I came to my father’s room the night of August 5, but I didn’t hear what was said. As I came in Martin came -out. Father just looked around and said, ‘Where is the pen?’ He did not ask me specially. Just turned around and said, ‘Where is the pen?’ I just reached over and handed it to him. The pen was in his room on the table about three or four feet from him, which necessitated some one handing it to him. Father could not have reached it from the bed, and when father said, ‘Where is the pen?’ I went over and got the pen. I considered that father was requesting me to get him the pen. I got a magazine or something for father to write on. ’ I put the magazine on a pillow on his lap. It was on his chest more. It was an ordinary pen. I dipped the pen into the ink bottle which was on the table. When father said; ‘Where is the pen?’ I went over to the table and got the pen with ink on it and brought it over to father. Then I got the magazine for him to write on. Then after Henry Ismert left, Martin came upstairs, and I whispered to him that father had signed the note.”
It will be observed that Irene made no reference to any fact or circumstance indicating that her father was not mentally aware and alert, before or at the time the note was signed. There is no mention of either stupor or excitement. Henry asked Theodore to sign, and Theodore asked for the pen. When the details of the arrangement for Theodore to sign were completed, there was no relaxation of purpose, and he signed the note. The signature is a fine specimen of business chirography. Apparently Theodore scrutinized it, and gave an additional stroke to the final “t,” making it taller. A photostatic copy of the signature follows:
The foregoing is all the evidence there is with reference to the signing of the note. The evidence discloses full competency to execute the instrument, and forbids any other reasonable inference.
Counsel for the defense collate from the testimony sixteen varieties of conduct displayed by Theodore Ismert during his illness, indicating he was not in command of his faculties when the conduct occurred. It is not necessary to encumber this opinion with a recital of them. The proof refuted existence of a persisting condition of impaired mentality, continually preventing the doing of business and indulgence in pleasure. None of the specified manifestations of peculiar, abnormal or irrational conduct occurred on the evening of August 5. Absence of the specified manifestations evidenced competency ; the positive testimony established competency; and in the face of the proof, manifestation of irrationality at some other time was not sufficient to raise a doubt about competency to execute the note.
There was medical testimony concerning effect and cumulative effect of morphine, and about the toxic effect of the disease. The testimony was developed in a manner that it might create an impression Theodore Ismert was in a continual state of stupor from about the first-of August — even while he was still going to his office. The facts which have been detailed forbid such an inference, and the medical testimony was that when Theodore Ismert was in a stupor, he could be aroused by talking to him and getting his attention, so that he understood what he was doing.
The facts of various transactions described above were stated to the attending physician, Dr. George M.. Gray, who was a witness for the defense, and he expressed the opinion Theodore was so “aroused” on those occasions. The statement of facts made to the doctor relating to indorsement of the certificate of stock and signature to the bank guaranty did not correspond to Clement Ismert’s testimony, and that incident is not here included. The facts of that incident, narrated above, disclosed that Theodore Ismert was not in any stupor at that time.
The salient facts attending signature of the note were stated to Doctor Gray. He said he would not say Theodore was not aroused sufficiently to understand what he was dojng, and the indication was that he was aroused. In the course of his examination Doctor Gray said the facts would indicate Theodore knew what he wanted to do; the facts would indicate he knew what he wanted to do, and carried out his wish by signing; and the doctor said he thought that when Theodore signed the note he knew what he wanted and was carrying out his wish.
The facts relating to preparation and execution of Theodore Ismert’s will on August 20, fifteen days after the note was signed, were stated to the doctor, and the doctor said he thought Theodore had been aroused so he could understand what he was doing.
Doctor Gray did not testify that Theodore Ismert was in any stupor when the doctor arrived on the evening of August 4, or while he was there, or when he left, and did not testify he administered morphine while he was there. The doctor did not testify to the length of his visit. Martin Ismert said it lasted half an hour. Assuming the doctor did administer morphine, to give his patient comfort and sleep during the night, the time when the administration occurred is not known. All the testimony, lay and professional, was that morphine acted upon Theodore Ismert as a stimulant for a time — as Irene phrased it, her father would “pep up.” If, therefore, Theodore had not previously been alert, there is abundant room for inference that during Henry Ismert’s visit he was in the conscious condition the proof established because of the drug the doctor administered. After the disturbance Martin had raised had subsided, after the note had been signed and that business was out of the way, and after everybody had gone, Theodore commenced to doze — Irene said within five or ten minutes.
Dr. Paul Morton Krall was a witness for the defense. He saw Theodore Ismert five or six times in the period extending from the middle of July to the week previous to Theodore’s death on September 4. Doctor Krall introduced into the case the subject of automatic conduct, which is conduct carried out without any thought, by so-called subconscious centers. Normal people perform automatic acts without thought of consequences, and with an individual in a toxic state the automatic factor would be most pronounced. The doctor demonstrated operation of the automatic factor in Theodore Ismert’s case with great erudition and with perfect-incongruity with known facts.
Theodore was going to his office the first part of August. About that time the interview with Badorf occurred, Martin Ismert being present. Then followed the interview with Allendorf, with Badorf and Henry Ismert present. Then followed the conversations at Theodore’s office on Saturday, August 2. There was no testimony that any morphine had been administered to Theodore Ismert on any of those dates, or on July 31. On July 31 Theodore Ismert wrote the following letter to his mother:
“Dear Mama: Your last letter received this morning. Inclosed you Will find a draft for $300, which will carry you along for some time.
“I am not any better; in fact, I am still losing a lot of weight; am getting real thin, so is Celia; she is not doing any better, but she is as always quite hopeful.
“Celia’s cousins from Chicago are here; that is, Julia Baltz, her daughter Frances, and Frances’ boy and girl.
“I don’t feel any too well, so I won’t bother you with any more news. Love, from your devoted son, Theodore.”
Now the doctor was not examined with respect to letters generally, but with respect to this letter, dated July 31, from Theodore to his mother, and the doctor testified as follows:
"Q. The next statement is: ‘Inclosed you will find a draft for $300, which will carry you along for some time.’ You say that is automatic, too, because he might have said that befoz’e? A. Yes, sir.”
The doctor finally did say he thought the letter indicated Theodore knew what he was doing, and carried out his intentions.
Doctor Krall judged all conduct strictly by medical standards, without recognition of the standards by which the law judges conduct. For example, he said every patient who comes to his office and asks about some ache or pain, and is worried about it, is eccentric. Without canvassing the doctor’s entire testimony, the presentation of which fills sixty-three pages of printed abstract, the essence of it, so far as concerns competency to execute the note, is contained in the following excerpts:
“Q. That same thing is true when he signed this note on August 4, he intended to sign that note, and he carried out his intention when he signed it? A. He did.
“Q. And . ■ • assuming the testimony to be that he agreed to it on August 2, to sign that, on August 4 he was carrying out what he had promised to do previously? A. All right.
“Q. He did? A. He did.
“Q. So, when he signed this note on August 4 he carried out his will in signing the note that he agz-eed to sign on August 2? A. Yes, sir.
“Q. He knew what he was doing when he signed the note? A. Undoubtedly.
“Q. And he knew what he was doing when he signed the guaranty? A. He knew that he was signing it; yes, sir.
“And when he indorsed the stock on the back, he knew that he was indorsing the stock on the back? A. Undoubtedly.
“Q. In other words, he was perfectly conscious of every act that he was doing? A. That would be my opinion.
“Q. I will ask you if in your opinion Mr. Ismert could know, in your opinion could know or appreciate the consequences of his act in signing this note in question? A. I do not believe that he could appreciate the act, the gravity of the act.”
Mrs. Ismert testified as follows:
“I didn’t mean to tell the court that Theodore Ismert didn’t know what he was doing when he signed his name; he didn’t realize what he was doing, . . .”
Martin Ismert testified at a former trial, and his testimony was called to his attention:
“Was this question asked you: ‘But you want to tell the jury that he didn’t know what he was doing when he signed the note?' And this answer given: ‘He did not realize what he was doing.’
“Q. Was this question asked you: ‘Did he know what he was doing?’ And this answer given: ‘I presume that he knew that he was signing the note.’ Was that answer given? A. Yes, I think it was.
“Q. And was that answer true? A. I think it is.”
There was nothing bizarre about Theodore Ismert’s taking over Sun Ray’s indebtedness to the milling company, but that subject need not be discussed. The real defense to the action was that when the note was signed Theodore could not comprehend the gravity or realize the consequences of his act. The quoted opinions on that subject, professional and lay, were not important. It was not necessary that when the note was signed Theodore should be able to go over in his mind the factors involved in solution of the milling company-Sun Ray problem, be able to consider afresh whether he would take over Sun Ray’s indebtedness to the milling company, and be able to weigh the consequences of so doing. The gravity of that step was a matter which was settled when he agreed to give the note, some days before it was signed. There is no basis in the evidence for difference of opinion that he was competent to make that decision. If, when the note was presented to him for signature, he was able to understand it was the note the giving of which had previously been discussed, and which he had agreed to give, the requirement of competency was satisfied. Aside from what has already been said concerning actual competency when the note was signed, we have Doctor Gray’s testimony that Theodore knew what he wanted to do and was carrying out his wish, and we have Doctor Krall’s testimony that he knew what he was doing and was carrying out what he had previously agreed to do.
In the case of Parker v. Felgate, 8 P. D. 171 (1883), a testatrix gave instructions to her solicitor with respect to preparation of her will. Later she became very ill. Coma set in, but she could be aroused. The will was prepared according to her instructions and was brought to her bedside. The will was rustled in front of her face by a physician, which roused her, she was told the paper was her will, and she executed it. The headnote of the case reads:
“If a testatrix has given, instructions for her will, and it is prepared in accordance with them, the will will be valid though at the time of execution the testatrix merely recollects that she has given those instructions and believes that the will which she is executing is in accordance with them.” (p. 171.)
Sir J. Hannen, president of the probate division, instructed the jury as follows:
“This being the material evidence, the law applicable to the case is this: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’ Now, I have only put into language that which flashes across the mind without being expressed in words.” (p. 173.)
In the case of Perera v. Perera, A. C. 354 (House of Lords and Privy Council, 1901), it appeared that on June 1 a person then competent to make a will gave instructions for preparation of his will. The will was prepared according to the instructions and was executed between one and two a. m., June 5. Mental capacity of the testator when the will was signed was an issue. The headnote reads:
“Where a testator is of sound mind when he gives instructions for a will, but at the time of signature accepts the instrument drawn in pursuance thereof without being able to follow its provisions, held, that he must be deemed to be of sound mind when it is executed.” (p. 354.)
In the opinion of Lord Macnaghten it was said:
“The learned counsel for the appellant did not contend that the witnesses in support of the will were acting in conspiracy or saying what they knew to be false. He said that the will may have been, and probably was, read over to the testator, but that there was nothing to show that he followed the read ing of the will or understood its meaning. He adopted the argument of Laurie J., to the effect that it was not enough to prove that a testator was of sound mind when he gave instructions for his will, and that the instrument drawn in pursuance of those instructions was signed by him as his will, if it is not shown that he was capable of understanding its provisions at the time of signature. That, however, is not the law. In Parker v. Felgate, 8 P. D. 171, Sir James Hannen lays down the law thus: [quoting as quoted above].
“Their Lordships think that the ruling of Sir James Hannen is good law and good sense.” (pp. 361, 362.)
The foregoing are will cases. The standard of capacity to execute a promissory note is capacity to understand the nature and quality of the act and to grasp its true purport and significance. If that capacity exists; if need for the giving of a note, and the consequences of giving and not giving it, have been thoroughly canvassed and debated; if resolution to execute the instrument has been made; if some abatement of capacity is then suffered; and if the subject of execution of the note is then brought to the attention of the person who made the resolution, it is good law and good sense that he is competent to execute the instrument if he is able to comprehend that execution relates to the subject which has been considered and concerning which he had formed his will. It is needless to make another summary of the evidence to show application of this law to the facts of this case.
This opinion must be brought to a close without further discussion of the defense of want of mental capacity, and the defense of undue influence needs only a word.
An effort is made to put Henry Ismert in a confidential relation to Theodore in respect to execution of the note, on account of the manner in which some routine personal and company business affairs were handled. There was no confidential relation affecting giving of the note. To be undue, influence must be unfair. In this instance all the pressure brought to bear on Theodore Ismert to execute the note consisted of fair arguments, openly presented by persons entitled to present them, and they were presented in the presence of Martin Ismert, who gave his father the benefit of his advice respecting them.
The voluminous record has been carefully considered, and the court holds there was no substantial evidence that Theodore Ismert was incompetent to execute the note, or was unduly or improperly influenced to do so.
At the close of the evidence plaintiff requested the court to give a peremptory instruction to the jury to find for plaintiff. The instruction should have been given.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover on a promissory note. The defendants answered, setting up a counterclaim, and the question for review is the sufficiency of the evidence to support the counterclaim.
Some time prior to 1920, the record does not disclose the exact date, Phil Neuhart, now deceased, loaned $3,500 to the defendants, and took their promissory note. The first renewal note shown by the record was dated June 14, 1920, and wjas in the amount of $2,140. The note was again renewed June 14, 1924, in the amount of $2,640, and is the note upon which this suit is based. The petition was in the usual form and asked judgment for the amount of the note and interest from June 14, 1924, at six per cent. The defendants answered admitting the execution of the note and alleged that the plaintiff was indebted to the defendants in the amount of $633.47, on an account, with interest thereon from May 10, 1919, at the rate of six per cent per annum; that said ampunt should háve been credited on the note at the time of its renewal on June 14, 1924, but by mutual mistake and oversight of all the parties such deduction was not made nor credit taken. Attached to the answer was a copy of the alleged account beginning with June 9, 1914, and extending to and including May 10, 1919. The defendants were lumber merchants, and the account consists of a large number of items showing the purchase and return of lumber and other building material, and a balance due of $633.47. The answer was verified. The plaintiff filed a verified reply denying the allegations of the answer and the correctness of the account, and alleged that the account had been paid. The case was tried to the court and on the trial the defendants produced a ledger sheet showing the account. It showed the account was balanced on May 10, 1919, and that all charges had been fully paid. The defendant, H. D. Lanter, testified to the effect that several credits contained in the account listed as cash should have been credited on the note. On this evidence the court rendered a judgment for the amount of the note less the counterclaim. The plaintiff appeals.
The appellant contends that the evidence was wholly insufficient to support the findings of the trial court.
A succinct statement *of the issues before the trial court will aid in determining this question. The answer admitted the execution and the amount due on the note, but alleged an account which showed a balance due of $633.47, and that by mutual mistake this amount was not credited on the note. The reply denied the correctness of the account. The account was closed May 10, 1919. The note was dated June 14, 1924, and was a renewal of a note dated June 14, 1920. The presumption is that on the execution of the note all preexisting indebtedness of the appellant to the appellees was settled. (48 C. J. 689, and cases there cited.) The burden was on the appellees. It was necessary for them to establish the correctness of the account and that through mutual mistake of. the parties the balance due on the account was not credited on the promissory note nor taken into consideration on the renewal thereof. The ledger sheet offered in evidence by the appellees on its face showed that the account w)as balanced on May 10, 1919, and there was nothing due the appellees. The appellees by oral testimony attempted to establish that certain credits designated as cash in the ledger account should have been credited on the note. The testimony of the appellee, who was the bookkeeper, is in part as follows:
“Q. Have you given credit on the book for any payment that might have been made? A. The payments that should have been credited on the notes— there never was any cash payment made to my knowledge on the account.
“Q. If they were, they were credited in the books? A. There might be an entry in the book showing a credit on the account that should have gone as a credit on the note.
“Q. I asked you if there were any cash credits in the books. A. Possibly entries, yes — showing cash credit.
“Q. That would mean he paid cash? A. Not necessarily.
“Q. What would it mean? A. It would be he came in and we marked cash on account when possibly it was a credit on the note. You would make an entry on the ledger.
“Q. On the 14th day of January, 1920, did you at the time you signed this note — didn’t you know that ledger account existed? A. Yes, sir.
“Q. Didn’t you know there was a balance due from Neuhart to you? A. No, sir; I didn’t know all the' conditions concerning that.
“Q. You were the bookkeeper there? A. Yes, but I had nothing to do with this money that is involved here.
“Q. You knew there was an open account unpaid on the books? A. I was told to square the account and it would be credited on the note.
“Q. Didn’t you know at the time you signed the note on June 14, 1920, there was a $633 balance as shown by the books due from Neuhart to your firm’? A. No, sir; the ledger will show it was ruled out.”
The witness further testified that on May 10, 1919, he issued a receipt showing full payment of the account, and further said:
“Q. Just answer the question. On June 14, 1924, when you executed the last note — the one in suit, you knew you had executed this receipt? A. Yes, sir.
“Q. And you also knew you had given credit on the books of the Lanter Lumber Co., on May 10, 1919, for $289.97, and called it cash? A. Yes, sir.
“Q. When you executed the renewal note on June 14, 1924, the old note was handed back to you, wasn’t it? A. Yes, sir.
“Q. Did you observe at that time whether these credits appear on that old note? A. No, sir.
“Q. You did not. Have you got that old note? A. No, sir.
“Q. And as far as you know these credits didn’t appear on it? A. No, sir.
“The Court: Just a minute, Mr. Lanter. I would like to ask you if this total amount, $633.47, which is the total of the exhibit attached to the supplemental answer — without giving regard to any indebtedness on any note — if that sum is due and owing from Phil Neuhart to F. R. Lanter? A. In my opinion it is.
“The Court: It represents amounts due for materials sold by F. R. Lanter to Phil Neuhart? A. Yes, sir.
“The Court: Was it ever paid? A. Not to my knowledge.
“The Court: You say it wasn’t paid? A. No, sir; I don’t say it wasn’t paid.
“The Court: Do the books of account show payment? A. The way the interpretation is being put on the books of the account shows it was ruled off.
“Mr. Asher: And it shows exactly the same as every other man’s account shows that is ruled off? A. Yes, sir.”
It will be noted that there is a difference in the amount of the note on each renewal. No evidence of any kind or character was introduced showing that the account was not taken into consideration by the payee of the note in determining the amount thereof. We think the appellee failed to establish the essential elements of their case and that there is no substantial evidence supporting the allegations of the answer.
The judgment of the district court is reversed and the court is directed to enter judgment in favor of the appellant for the full amount of the promissory note, including the interest accrued thereon. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a rehearing granted in the case of Hutson v. Imperial Royalties Co., decided December 12, 1931, and reported in 134 Kan. 378, 5 P. 2d 825.
It has been exhaustively rebriefed and forcibly reargued. Perhaps some of the many intricate questions involved were not as fully covered by and discussed in the opinion as they should have been. One of these is the very nature and character of the cause of action itself on which the counsel seriously differ. Appellant insists that the cause of action is founded upon an alleged conspiracy to cheat and defraud Hutson of his stock, and that no other or different cause of action was tendered by the petition, maintaining that conspiracy is a necessary element of the one and only cause of action pleaded. We are familiar with the fact that there is a federal statute making conspiracy a civil liability; other instances are noted where an individual could not alone be held liable, and in 12 C. J., at page 585, “actions of conspiracy” are explained and treated, but the petition in the instant case is one, as appellant states, founded upon an alleged conspiracy to cheat and defraud, but not, as it claims, excluding every other cause of action. We attempted to say in the original opinion that the element of conspiracy might be eliminated, or not established by the evidence, and we would still have a cause of action to cheat and defraud. In other words, if the plaintiff should entirely fail in his proof to establish a conspiracy, he could recover on account of the fraud and misconduct of the defendant as alleged in the petition.
“As a general rule averment and proof that the acts were done in pursuance of a conspiracy do not change the nature of the action or add anything to its legal force and effect. If a plaintiff fails in the proof of a. conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the tort without such agreement. The charge of conspiracy where unsupported by evidence will be considered mere surplusage not necessary to be proved to support the action.” (12 C. J. 584.)
“The gist of the action is the damage and not the conspiracy, and the damage must appear, to have been the natural and proximate consequence of defendant’s act.” (12 C. J. 581.)
“The better view, however, is that the damage sustained, and not the conspiracy, is the gist of the action. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable.” (5 R. C. L. 1091.)
“Wrongful acts or omissions in pursuance of a fraudulent conspiracy, and not the conspiracy itself, constitute a cause of action; and the statute of limitations begins to run from the time of such acts or omissions, if then known to the injured party, and not from the time of his discovery of such conspiracy.” (Rizer v. Geary County, 58 Kan. 114, syl. fl 1, 48 Pac. 568.)
“Counsel for defendants make the point that a conspiracy among the appellees to defraud the corporation would not give rise to a civil action. Quite correct. It is not the conspiracy itself, but the wrongful acts or omissions in pursuance of the conspiracy, which constitute the cause of action.” (Federal Reserve Life Ins. Co. v. Gregory, 132 Kan. 129, 132, 294 Pac. 859.)
If for the reason of failure to establish conspiracy those allegations of the petition should be eliminated as surplusage, the remaining cause of action would be for a recovery on account of fraud and misconduct as alleged in the petition and not for negligence as suggested. The nineteenth paragraph of the petition fully alleges a cause of action for fraud and misconduct regardless of the conspiracy. A portion of it is in substánce as follows: That for the purpose of further carrying out, perpetrating.and accomplishing said fraud and conspiracy and to defraud said Hutson the said Imperial Royalties Company (and other defendants), and each of them, with full knowledge that said certificates had been obtained from said Hutson by fraud and misrepresentations and for the purpose of fully perpetrating, carrying out, accomplishing and completing said fraud and divesting said Hutson of the legal and record title to said shares, the said Imperial Royalties Company and the trustees thereof, at the request of the other defendants and for said purposes, canceled said certificates, and that by reason thereof the said Hutson and his guardian have wholly lost said shares, the beneficia 1 use thereof, to their damage.
It is said the jury found conspiracy and therefore no other cause of action could have prevailed by its verdict. The general verdict was in favor of the plaintiff, which includes all the necessary elements to sustain it, and the special finding of conspiracy is not inconsistent with a general verdict for damages for fraud and misconduct if the conspiracy element is not supported by the evidence. The attempted support in the evidence of the conspiracy feature would, like the allegations thereof, be “mere surplusage,” as stated in the authorities above cited. The trial court carried out this recognized practice by instructing the jury along this line in instruction No. 3, in addition to full instructions as to conspiracy. It is as 'follows:
“While the plaintiff charges the defendants with a conspiracy to defraud him out of his certificates or shares, proof that the defendant the Imperial Royalties Company or its trustees was a party to the conspiracy prior to the time of the obtaining of the property in controversy by the defendants Hamm and Calhoun by fraud, if you are satisfied that it was so obtained, is not necessarily essential to the plaintiff’s right to recovery against the Imperial Royalties Company. If you find from the evidence and by a preponderance thereof that the plaintiff was deprived of his property as alleged either in his first or second cause of action by the fraud practiced by the defendants Calhoun and Hamm, either or both of them, and that the .Imperial Royalties Company before it transferred the stock in controversy had actual knowledge of the fraud and deception practiced by Calhoun and Hamm, or either or both, in obtaining such property, or if it had such actual knowledge of the fraud practiced, if you find that such fraud was practiced or actual knowledge of sufficient facts to put a reasonable and prudent person upon inquiry, which reasonable inquiry should have disclosed the fraud, and if you further find that the defendant Imperial Royalties Company after having such knowledge aided and abetted Calhoun and Hamm, either or both, in consummating and completing the fraud by causing the certificates of shares to be canceled and new certificates of shares to be issued to other parties, then they each and all of them so aiding would be equally liable with the party or parties who actually perpetrated the fraud.”
Appellant treats this as an instruction on negligence and not on fraud. We think it is one on fraud, and in line with the authorities cited by appellant concede that it would be error to substitute, as a test of defendant’s liability, negligence instead of a purpose to deceive. Appellant refers to the inaccurate use of the word negligence in instruction No. 5, but, as stated in the original opinion, it was directly coupled with the word misconduct and there could be no reasonable ground for the jury being led to think of it as a negligence case. Besides, when read with the other instructions, full of references to fraud, deceit, aiding in the perpetration of fraud and the like, no one could be misled thereby. Neither was it the intention in the original opinion, in the consideration of these instructions and the criticism made of them by appellant, to intimate or hold that negligence as a cause of action was included in this case. It was not. Unless fraud of the character alleged in the petition was established, the plaintiff has no right to recover in this action.
It may be appropriately asked why this effort to discriminate between an action for fraud and one of conspiracy to cheat and defraud, especially when the jury has found generally for the plaintiff, which will cover both, and has also answered special questions finding conspiracy. The answer is, because of the points of distinction raised by counsel as to the pleadings and the instructions as above noted, and also because of the urgent and insistent claim of appellant that no conspiracy has been proved and the special findings to that effect are without support.
Appellant particularly stresses the point properly raised on the trial concerning the admissibility of the testimony of Marie Hutson as to Calhoun stating to her father when he first visited him that the Imperial Royalties Company had sent him, citing numerous authorities to the effect that declarations of one conspirator to another are not competent evidence to establish the connection of the third person with the conspiracy and that the existence of the conspiracy cannot be established against an alleged conspirator by evidence of the acts or declarations of his alleged coconspirator done or made in his absence. With this principle of law we are thoroughly in accord, and such evidence was inadmissible to prove or establish a conspiracy, although it is admissible for other purposes. In the original opinion, on page 383, in discussing the admissibility of this evidence for the purpose of proving agency, it was said:
“The objection would be good if the purpose was to establish agency, but such was not a necessary part of the proof. In a conspiracy, if one is established, parties thereto may be bound by the acts and words of others partiei pating who may not be agents. Such evidence was not inadmissible to prove a conspiracy as alleged.”
The last sentence in that connection was a mistake, the writer evidently having in mind particularly the question of agency at the time. That sentence should have read, “Such evidence was inadmissible to prove a conspiracy as alleged, but was admissible for other purposes in the case if a conspiracy was established.” It tended to show fraud and the relationship of the parties mentioned in the statement to the fraud if a conspiracy was established, but plainly and positively should not be considered and was not proper to prove or establish a conspiracy. Although this evidence may be hearsay and not strictly admissible to prove the existence of a conspiracy, yet it is a part of the acts, words and declarations of one of the alleged conspirators which is always admissible when the conspiracy is established.
“Error based on the admission of hearsay testimony considered and held that the testimony was competent under the rule concerning the admissibility of evidence of the acts and words of one of several conspirators touching a detail of such conspiracy.” (Minch v. Winters, 122 Kan. 533, syl. If 5, 253 Pac. 578.)
“The conspiracy being established, the acts and declarations of one conspirator, during the continuance of the conspiracy, pursuant to and in furtherance of it, are admissible against his coconspirators.” (5 R. C. L. 1104.)
“When the existence of the conspiracy and the connection of the defendant therewith is established by independent evidence, he is bound by the acts and declarations of his coconspirators.” (U. S. v. Goldberg, 7 Biss. 175.)
“The rule of responsibility for the acts of coconspirators includes acts done before the defendant joined the conspiracy as well as the acts subsequent to his participation. Whether or not the act done was in furtherance of the common design, or whether it was a natural and probable consequence flowing from the execution of the common design, is always a question for the jury.” (5 R. C. L. 1064.)
Complaint is made that this was substantially the first evidence introduced by the plaintiff and therefore at that time no conspiracy had been established. That is a matter largely in the discretion of the trial court, and usually wide latitude is allowed in the order of proof and its competency depends upon the sufficiency of the proof that may follow.
“The order in which proof of a conspiracy is received rests to a large extent in the discretion of the court, and in this case it is held that defendants were not prejudiced by the admission in evidence of declarations made by one of the defendants before proof of the conspiracy, it being followed up by sufli cient evidence to establish the existence of the conspiracy as alleged.” (Drysdale v. Wetz, 102 Kan. 680, syl. ¶ 1, 171 Pac. 653.)
But appellant claims this was the sole and the only proof, if such it was, that attempted to establish a conspiracy between the Imperial Royalties Company and any other company or person, and for that additional reason the evidence was inadmissible. Because of the very nature and character of a conspiracy it is seldom possible to prove it by direct evidence, and it is nearly always necessary to establish it by circumstantial evidence, which is universally recognized as the proper means o.f proof.
“It is well settled by the authorities that conspiracy, when charged either in a civil or a criminal case, may be proved by circumstantial evidence. It is proper to prove the charge by direct evidence, but as the direct evidence is ordinarily in the possession and control of the alleged conspirators, frequently the opposing party cannot obtain it. Hence, in actual practice, it is usually proved by circumstantial evidence, and where the charge is made its tendency is to open rather a wide field of inquiry.” (Rickel v. Coöperative Exchange, 113 Kan. 592, 600, 215 Pac. 1015.) '
“The combination or conspiracy may be proved by evincing a concurrent knowledge and approbation in the persons conspiring, of each other’s acts; and it is usually done by proof of the separate acts of several persons concentrating in the same purpose or particular object. . . . For the purpose of showing such connection, therefore, circumstantial evidence suffices. The plaintiff may either prove the conspiracy which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy.” (5 R. C. L. 1103, 1104.)
In the original opinion the facts and circumstances of the case were set out at considerable length, and comment was made on some of the circumstances with the conclusion that in our judgment there was sufficient evidence to support the verdict and findings of the jury. We are still of the same opinion.
The errors assigned in eight other instances in the admission of evidence and the prejudice claimed by reason of improper remarks made by the attorney for the plaintiff in the opening statement, again fully considered but without reaching a conclusion that the determination reached thereon in the original opinion should be changed.
One point is particularly stressed because there is no showing of financial gain or profit to the Imperial Royalties Company either in the conspiracy or in defrauding the plaintiff. It is said in 12 C. J. 612;
“A conspirator is none the less liable because he' expected to derive no benefit from the wrong or in fact received no benefit therefrom.”
■Another point with reference to the introduction of evidence was concerning the introduction of an indictment to affect the credibility of a witness, which if offered alone would not have been proper for that purpose because it carries with it the presumption of innocence, but if offered in connection with the judgment of conviction, and both were here introduced together, the former to explain the latter, it is admissible.
The other points raised on the rehearing having relation to the ownership of the stock by McMahon & Company are, as expressed by the appellant, as follows:
“If Imperial Royalties Company and its trustees were not parties to the conspiracy at the time Calhoun obtained Hutson’s stock, and at the time it came into the possession of McMahon <fc Company they could not become parties to the conspiracy (already consummated) because yielding to the demands and threats of McMahon & Company they transferred the stock in question.
“If Imperial Royalties Company was not a party to the conspiracy, and there was no showing that McMahon & Company were not innocent purchasers, the transfer of the stock was propel’, and in any event could not be the proximate cause of plaintiff’s damages and create liability upon the part of Imperial Royalties Company.”
It is argued by appellant that if the Imperial Royalties Company was not a party to a conspiracy to cheat and defraud Hutson prior to the parting with the stock by Hutson, that it cannot be held liable upon the theory that it later became a party to that conspiracy because it transferred the stock after it had knowledge of the fraud practiced by Calhoun on Hutson, and further that there is no evidence that McMahon & Company did not in good faith purchase the stock for a valuable consideration, and further that if it was a purchaser in good faith for valuable consideration the Imperial Royalties Company had no right to refuse such transfer, and if it did, it would be liable in damages. We do not think any of these points are well taken. The rule does not seem to require a conspirator to be such during the entire conspiracy, and as to McMahon & Company being an innocent purchaser for value, this is generally a defense and does not seem to have been made an issue in this case.
“To render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception. Everyone who enters into such a common design is in law a party to every act previously or subsequently done by any of the others in pursuance of it.” (12 C. J. 612.)
“One who buys or contracts to buy stock in a corporation does not take it freed of its infirmities according to the rales of commercial paper acquired in due course; he merely takes such legal and equitable rights in the stock as his vendor has to bestow; and although the buyer may be ignorant of the, equities and burdens which inhere in the stock, his ignorance does not relieve the stock therefrom, nor enable him to acquire it discharged of any vice or defect which inheres in it.” (Lilley v. Oil and Refining Co., 108 Kan. 686, syl. ¶ 1, 197 Pac. 201. See, also, Nolan v. Robertson, 131 Kan. 333, 291 Pac. 750; 14 C. J. 784; and Mitchell v. Beachy, 104 Kan. 445, 179 Pac. 365.)
The most recent expression of this court on most of the questions here involved is found in the opinion in the case of Beneke v. Bankers Mortgage Co., 135 Kan. 444, 10 P. 2d 825, where the petition alleged fraud and conspiracy to avoid the issuance of a certificate of stock to an aged stockholder who had assigned it in blank and delivered it to a girl in exchange for some absolutely worthless stock, and the company was promptly informed of the loss of the stock and was requested and urged not to transfer it on the books but to issue to him in lieu thereof another certificate. The following is a pertinent part of the opinion rendered in affirming the .order of the trial court in overruling the demurrer to the petition:
“The corporation was bound to act in good faith toward him and, with safety to itself, was bound to aid him in protecting his interest. The petition discloses, however, that the attitude of the directors and managers of the company is one of antagonism toward a shareholder who was defrauded with their knowledge and assent, to further their ends. Incidentally, the company itself is benefited by retention and by lapse of declared dividends. The company could have protected the defrauded shareholder and itself. He was helpless for lack of information which the company, through its directors and managers, possessed. It is true, as defendants say, mere conspiracy is not actionable. Harmful consequence of conduct pursuant to conspiracy is actionable. But silence and inaction in aid of fraud are conduct as much as action and declaration to circumvent fraud are conduct. The fraud on the shareholder is admitted. There is no innocent holder of the original certificate. The company, in all fairness and good faith, owes it to the shareholder to do what it can to assist and to protect him, and collusion of the company’s directors and managers to oppress the stockholder and keep him remediless, in effect makes them and the company parties to the fraud.” (p. 445.)
We conclude as before that the judgment should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in replevin of an automobile. The trial court sustained a demurrer to plaintiff’s petition, and it has appealed.
The petition alleged that plaintiff is a corporation; that defendant was indebted to it on a promissory note in the sum of $1,196, due February 24, 1931; that on March 28 of that year, through its president and secretary, plaintiff demanded payment of the note; that defendant said he was unable to pay the full amount of the note at once; that if plaintiff wbuld extend the date of maturity of the note for one year he would pay it out in payments of $50 per month and more, and that he would pay ten per cent additional interest to accumulate on the note until it was fully paid, and that he would give his automobile as security for the payment of the note and interest; that he would let the automobile stand as security, and that he was willing to, and would, sign a chattel mortgage accordingly, if plaintiff so desired; that plaintiff’s president and secretary told him they did not have authority to accept his proposition, but would report it to the directors of plaintiff at their next meeting and let him know; that on April 13 plaintiff’s president and secretary-reported defendant’s proposition to its directors; that the proposition was accepted by plaintiff, and their secretary was directed to notify defendant thereof; that on the following day the secretary told defendant of the action of the directors. Defendant then paid $50 on the note and told the secretary that it was all right and as soon as he could get time he would come to the office of the secretary and sign the chattel mortgage, which the secretary told him was satisfactory. That on April 27 plaintiff’s president requested defendant to go to plaintiff’s office and execute to plaintiff a written chattel mortgage covering the automobile, according to the offer and acceptance; that defendant then repudiated the agreement, said he would not allow the automobile to stand as security for further payments on the note, and would not deliver the automobile to plaintiff. The prayer was that plaintiff have judgment for the delivery to it of the automobile, or, in the alternative, for the reasonable value thereof, alleged to be $500.
On filing the petition plaintiff filed a replevin affidavit and bond, the sheriff took possession of the automobile, but returned it to defendant on a redelivery bond.
Appellant contends that the agreement alleged in its petition constitutes a valid oral chattel mortgage given by defendant to plaintiff on the automobile. It cites 11 C. J. 453, stating the general rule that an agreement entered into by the parties for the purpose of pledging property as security for a debt which is essential and insufficient as a common-law mortgage, “will nevertheless be enforced in equity as an equitable mortgage.” The difficulty with applying that rule here is that plaintiff is not proceeding equitably to have the automobile stand as security for the debt, but is seeking in an action at law for the immediate possession of the automobile.
Appellant cites Bates v. Wiggin, 37 Kan. 44, 14 Pac. 442, and allied cases (Weil v. Ryus, 39 Kan. 564, 18 Pac. 524; Bank v. Taylor, 69 Kan. 28, 76 Pac. 425; Bank v. Jelf, 86 Kan. 41, 119 Pac. 538) in support of its contention that it had an oral chattel mortgage on the automobile which authorized the replevin action. In the Bates case one Clark desired to borrow money at the bank with which to buy feed for live stock and asked Bates to sign his note as surety, and agreed with Bates that the title to the feed purchased should be in Bates until the notes were paid to the bank. (Because of some conflicting evidence it was difficult for the court to tell whether there was a conditional sale or chattel mortgage, but so far as the rights of the parties were concerned, that was held to be immaterial.) Bates signed the notes. Clark purchased the feed. The notes became due and were not paid. Bates brought replevin for the feed. The court held the action could be maintained, even though the transaction be regarded as an oral mortgage as distinct from a sale by which the title to the feed remained in Bates. In that case Bates had performed the things he had agreed to do. That is true in all the other cases cited in which the court held an oral chattel mortgage could be enforced. That is not true here. Plaintiff did not extend defendant’s note for a year and make it payable in monthly installments, but on the other hand held the past-due note on which suit might be brought at any time. An oral chattel mortgage must contain the elements necessary to constitute a valid written mortgage. (11 C. J. 455; Bank v. Evans, 9 Kan. App. 80, and cases, supra.) The allegations of the petition disclosed that the parties had an agreement by which each was to do certain things neither party had performed. Perhaps that agreement was one which either of the parties could have enforced in equity, but we need not decide that question, for it is not before us.
Under the allegations of the petition there is another barrier to plaintiff’s action for replevin. No default is alleged in defendant’s payments on the new arrangement. One payment of $50 had been made. This action whs filed on the thirtieth day after that payment was made. There is no allegation that another payment was due and had not been made. In fact, the agreement does not disclose the time of the month these payments were to be made. The only complaint plaintiff makes is that the defendant refused to come to its office and execute the mortgage. It is not alleged that the agreement between the parties was such as to entitle plaintiff to possession of the automobile on the refusal to execute a written mortgage. An action to foreclose a chattel mortgage must be predicated upon the breach of some condition named in the mortgage. (11 C. J. 695.) If the action is in replevin the petition must show plaintiff’s right to possession when the action is brought. (54 C. J. 506.) In short, the petition does not allege facts which disclose that plaintiff was entitled to the possession of the automobile at the time the action was brought. The result is that it failed to state a cause of action in replevin.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of violating the law relating to gambling, and appeals.
The information contained five counts. Defendant was convicted on the first and fifth counts, and contends his motion to quash those counts should have been sustained.
The first count charged that defendant permitted others to set up a described gambling device, designed and devised for described gambling purposes on described premises occupied by and under control of defendant and others. It is said the count did not charge defendant with setting up the prohibited device, which is true. Setting up a prohibited device is one of the offenses denounced by R. S. 21-915. The count was framed under R. S. 21-916.
It is said there was no allegation there was a setter-up or keeper of the game. It was alleged defendant allowed others, whose names were unknown to the pleader, to set up the device, which was all that was required. In this connection defendant refers to the decision in the case of State v. Brown, 118 Kan. 603, 236 Pac. 663. In that case the information was drawn under R. S. 21-916, and it was said good pleading required the setter-up should be named. That was not done, but the court held the defect was not fatal. In this case it was alleged the name could not be furnished, which met the strict requirement of good pleading.
It is said there was no allegation that players played for money or chips. The statute required no such allegation.
The fifth count was drawn under a provision of R. S. 21-915. It charged defendant with keeping a described place to which others were permitted to resort for the purpose of gambling. The objection to the count is that it did not charge the players played for money or chips, and did not describe the gambling device. It was not necessary to do either.
Before trial defendant took the deposition of a witness. The witness was present at the trial and testified. When, cross-examined by the state with respect to pertinent and material matters, defendant, for the witness, invoked the witness’ privilege, and the witness was excused from testifying on the ground his testimony would incriminate him. The court then permitted the deposition to be read. Whether the court’s ruling on the question of privilege was right or wrong it made the witness unavailable to the same extent as if he were out of the state, and this court has so held. (State v. Stewart, 85 Kan. 404, 116 Pac. 489.)
Defendant contends his motion for new trial should have been granted because the verdict was against the evidence. It is not necessary to review the evidence. It was amply sufficient to sustain the verdict of guilty on both counts.
There is no merit in the appeal, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a promissory note wherein plaintiff garnisheed, some money due defendant from a third party. After a hearing the trial court discharged the garnishee on the ground that the money was part of the proceeds of the sale of defendant’s farm homestead which he intended to reinvest in another homestead. The correctness of that ruling is the subject of this appeal.
The facts were these: John Dempsey owned a quarter section farm in Pottawatomie county and resided there most of his life. In February, 1931, he traded the farm to C. A. Limbocker for a house in Manhattan worth $4,500 and was to receive $1,100 to boot. The farm was mortgaged for $5,000 and some back interest and taxes. Limbocker assumed the encumbrances and paid Dempsey $400 in cash and still owed him $700 when this garnishment proceeding was begun.
There was no dispute between plaintiff bank and Dempsey as to his indebtedness on the note, nor concerning Limbocker’s indebtedness of $700 to Dempsey. On the issue whether the $700 should be exempt as funds in process of being realized from the sale of one homestead to be reinvested in another, Dempsey testified that his children had all grown and his family consisted of himself and wife, and that he had planned to acquire a small suburban place near Manhattan because he had no other means of making a living. He admitted, perhaps inadvertently, .that he moved into the house he obtained in the trade with thé intention of making it his homestead “as far as I know now”; but elsewhere in his testimony he stuck to his main contention that he had only taken up his abode in the house he got from Limbocker until he could find something more to his purpose. His testimony reads:
“Q. Now when you sold the place did you have any intention with reference to your further homestead? A. I have got to buy a little place to make a living on. I have got to get out in the country a short distance. I have to have a small place, that is my plans.
“Q. Is that still your intention? A. Yes, sir.
“Q. What was your intention when you sold that place to Limbocker? A. My intention was to buy a little place outside of the city, a few acres where I could make a living.
“Q. Is that still your intention? A. Yes, sir.”
It was also developed that while Dempsey had taken title in his own name to the Limbocker house, when he was sued by the bank and this garnishment proceeding was begun, he conveyed the Limbocker property and another house and lot owned by him to his wife to satisfy an old indebtedness he owed her.
It was on this showing that the trial court held that the $700 dire Dempsey from Limbocker was proceeds of the sale of his Pottawatomie farm homestead and exempt from garnishment because defendant “expects to use the same in the purchase of another homestead.”
The trial court accordingly vacated the garnishment proceedings and released the garnishee. Hence this appeal.
The appellant bank’s position is simply this: That even the liberal construction of the homestead law which has always been given by the courts of this state will not justify the judgment rendered in this case. It is, however, familiar law that the proceeds of a Kansas homestead designed in good faith for reinvestment in another homestead within a reasonable time are exempt from any and all processes in invitum. It is argued that under the homestead law, and our decisions as well, a person is not entitled to two homesteads. Quite so; but he must abide somewhere until he has an opportunity to choose another homestead suitable to his wants and means. The fact that he transferred the Limbocker property and another Manhattan property to his wife while these garnishment proceedings were pending does not compel the conclusion that defendant was not telling the truth when he avowed that the $700 Limbocker still owed him had been earmarked for investment in some little suburban property suitable for a homestead on which he could make a living. Appellant says:
“Suppose that instead of the effort to reach this fund by garnishment, plaintiff had sued out an execution and had it levied upon the house and lot now occupied by the defendant. Can it be doubted that, under the assumed circumstances, the defendant would at once invoke the constitution and statutory exemption laws of the state to prevent the sale of the property under such execution?”
This is a question this court cannot answer. The trial court believed defendant was a truthful witness; and we can but hope and presume that in the situation suggested defendant would have given testimony which would not have overtaxed the credulity of the trial court. ■ •
Among the cases cited by appellant is the early one of Smith v. Gore, 23 Kan. 488, where it was said:
“But we think the intention to use the proceeds in procuring another homestead should be formed at or before the time of the sale, and, the intention should be to procure another homestead with the proceeds immediately. It would not do to form the intention two years after the sale, nor would a present intention to procure the homestead two years afterwards be sufficient.” (p. 490.)
■ The distinction between that case and the one at bar is rather clear’. In the Gore case the evidence tended to show that defendant’s idea of reinvesting the proceeds of his former homestead was hot conceived until the stress of execution process suggested it more than two years afterwards. Here the testimony was that plaintiff formed the intention to reinvest the $700 in another homestead at the time he sold his former homestead. Moreover, the time between the sale of the former homestead and the date of the garnishment was very brief, not more than two or three weeks; and defendant was certainly entitled to a reasonable time to find another homestead suitable to his wants and means.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Brewek, J.:
This was an action to foreclose a note and mortgage. Plaintiff in error was made a defendant. It was not alleged that she executed the note, or the mortgage, or was in any manner privy to them. On the contrary, the only allegation in the petition touching her was in these words:
“And the plaintiff further says, that on the 13th of April 1874, Maggie Reynolds and Charles T. Reynolds fraudulently and corruptly made, executed and delivered their certain deed in writing conveying the said premises to the said Bridget Bradley, who now claims ownership of the said premises, which said last-mentioned deed was duly recorded in the office of register of deeds in said county of Montgomery on the 13th of April 1874, in book G of deeds, at page 95.”
The mortgage was alleged to have been executed and recorded 17th February 1873. There was nothing to show what title, or whence derived, was in Reynolds, and ho allegation that Bridget Bradley’s claim of ownership was not well founded, except such as might be implied from the charge that Reynolds’ deed to her was fraudulently and corruptly made. It was not alleged that such deed was her only source of title, or the sole basis of her claim of ownership. To this petition Bridget Bradley filed a motion, that it be made more definite and certain by showing the nature of Reynolds’ title, and when and where derived, and whether it was acquired prior, or subsequent, to the execution of the mortgage. This motion was overruled and thereupon she filed an answer, denying any title in the mortgagor, alleging full title in herself, and reciting a chain of conveyances from the government to her, and praying for judgment against the plaintiff for costs. To this a reply was duly filed. After trial a decree of foreclosure was entered, and in that was an-order barring plaintiff in error of all interest in the premises.
Three errors are alleged. First, in overruling the motion. Second, in trying the question of title paramount in an action to foreclose a mortgage; and third, in holding that the mortgagor’s title was in fact paramount to that of plaintiff in error. Of these in their order.
I. Did the court err in overruling the motion ? We think not. The defect in the petition was not a lack of certainty and precision, but a want of sufficient allegations. It stated n0 cause a°tion against plaintiff in error; and demurrer, rather than motion, was the proper If spe pa(j, ma(je default, her default would simply have admitted the truth of the allegations, and those allegations'gave to the plaintiff no right to judgment against her. The petition • alleged that she claimed ownership, but failed to allege that that claim was not well founded and superior to the rights of the mortgagee. If it was, of course no decree could be rendered against her. Nooner v. Short, 16 Kas. 220. True, it also alleged that Reynolds fraudulently and corruptly deeded to her subsequent to the mortgage; but it does not allege that Reynolds’ title was inferior to the rights of the mortgagee — and unless it was, no fraud or corruption in the deed inured to the benefit of the-mortgagee. In no view of the case was a cause of action stated against the plaintiff in error. The allegations were not uncertain; they were insufficient. The court therefore properly overruled the motion.
II. Can the question of title paramount be litigated in an action to foreclose a mortgage? And here the question may arise in two ways: First- — -Can a mortgagee compel a defendant, other than the mortgagor, to litigate the question of title paramount ? Second — Where a defendant, sued in an action to foreclose a mortgage, sets up in his answer a paramount title, and without objection goes to trial upon that issue, can he if beaten ask a reversal on the ground that such an issue was not properly triable in the action ? The question now presented to us comes in the latter form. After the decision on the motion, plaintiff in' error filed an answer setting up her title in detail, and went to trial upon the issue thus raised without objection. Can she now say that such issue was not triable?
That under the old practice, title paramount could not be tried in an action to foreclose a mortgage, cannot be doubted; and such seems to be the rule in states where the code practice obtains, and separate law and equity tribunals have ceased to exist. A reference to a few of the authorities will make this plain. In San Francisco v. Lawton, 18 Cal. 465, it was held, that adverse titles were not proper subjects of determination in a foreclosure suit. To the same effect, Cragan v. Minor, decided by same court, 6 Central Law Journal, 354. In Banning v. Bradford, 21 Minn. 308, the court decided that a mortgagee cannot maintain an action against one claiming by title adverse, and, if valid, paramount to that of the mortgagor. In McCormick v. Wilson, 25 Ill. 274, it was said, that where the allegation in the petition is of title subordinate to the mortgage, a decree on default affects no title or interest not subordinate thereto. In Eagle Fire Ins. Co. v. Lent, 6 Paige, 635, the chancellor held that a mortgagee has no right to make a person whose claim is prior to the mortgage, and who holds a legal title adverse to the mortgagor and mortgagee, a party to try the validity of such title. To the same effect is a recent decision of the supreme court of the United States in a case from Tennessee. Deal v. Reynolds, 17 Albany Law Journal, 132. See also, Brundage v. D. & F. Miss. Soc., 60 Barb. 204. In Corning v. Smith, 6 N. Y. 82, it was ruled, that where a defendant sets up title adverse and anterior to the mortgage, the plaintiff should dismiss the bill as to him, unless prepared to prove that such claim in fact arose subsequent to the mortgage. In Felton v. Farmin, 18 Wis. 222, a demurrer to an answer setting up paramount title, was sustained, as tendering no issue for trial. In Palmer v. Yager, 20 Wis. 91, upon an allegation of superior equitable title in mortgagor, as against the legal title in a third party, the court says that it seems that such title ought to be examined and determined. In Roche v. Knight, 21 Wis. 324, where there was proof of paramount title, it was held, that a decree barring the holder thereof was erroneous. In Board Sup. v. P. R. Rld. Co., 24 Wis. 119, it was said, if paramount title be alleged and litigated, the decree is erroneous, and should be reversed, but is- not void, and is conclusive unless reversed on error. And in Roberts v. Wood, 38 Wis. 60, where an answer was filed setting up a tax deed as paramount title, it was held that the action was properly dismissed as to such defendant. In Pomeroy on Remedies, sec. 334, the author says: “As titles, interests, and liens, prior and paramount to the mortgage, are in no way affected by it, or by the decree of foreclosure and the sale thereunder, the owners and holders thereof are neither necessary nor proper parties.”
On the other hand, it cannot be questioned that the practice has been quite common in this state to bring in as parties defendant, in a foreclosure suit,-all who claim any interest in the mortgaged premises, whether subordinate, or adverse, to the mortgagor’s title. Especially has this been true in cases of tax deeds, whose validity has been a subject of frequent litigation in such actions. In an early case in this court, Bayer v. Cookerill, 3 Kas. 282, it appeared that the legal title in Bayer had been in the district court held subordinate to the equitable title of the mortgagor, and a decree of fore closure rendered barring him of all interest in the premises; and this decree was sustained. This is kindred to the case from 20 Wis., supra. True, the question here presented does not appear to have been raised in the 3 Kas. case; at least, it was not noticed by the court. It is therefore not decisive, and is authority only as showing the practice of able lawyers, and, to that extent, the common understanding of the profession.
The question is one of statutory construction; for that the legislature has power to authorize the litigation of adverse titles in foreclosure actions, cannot be doubted. That such joinder tends to confusion, by multiplying the issues, or that it enhances the value of judicial sales by presenting the property stripped of all embarrassing questions of titles and claims, are matters for legislative rather than judicial consideration. So also are the suggestions, that in recognizing such a procedure we are no longer walking super antiquas vias; or conversely, that it harmonizes with the general policy of the code, which aims to have the whole subject-matter of any controversy settled in a single action. The code, section 83, authorizes the joinder of several causes of action, whether legal, or equitablej or both, where they arise out of “the same transaction, or transactions connected with the same subject of action;” “but the causes of action so united, must * * * affect all the parties to the action, except in actions to enforce mortgages or other liens.” We had occasion to examine this section with some care in the case of Scarborough v. Smith, 18 Kas. 399, where we held it authorized the uniting of a cause of action for the recovery of real property, one for rents and profits, and one for partition. Is the title to land mortgaged, so connected with the mortgage, that they can be said to be transactions connected with the same subject of action? An action on a note and mortgage involves two things — first, an inquiry as to the amount due on the note; and in that, it is personal; and second, a proceeding to charge the real estate mortgaged with the payment of the amount found due; and in that respect it is in the nature of a proceeding in rem. Ogden v. Walters, 12 Kas. 294. So far as the mere personal side of the action is concerned, it is immaterial what the title ■to the land may be, or whether there be other liens or claims upon it. But so far as the second branch is concerned, it is material to know what is the title, and what the other liens. They affect the value of the decree; and the title as much or more so than the liens. So far as it is a proceeding in rem, the status of the .rem, the quantity of interest to be reached and covered by the decree, is material. The right to have the real estate subjected to the payment of the debt, may be said to be the subject of the action. Another lien is not the “same transaction,” but is a “transaction connected with the same subject of action.” It is connected by the real estate upon which the two liens are charges. The same connecting link binds a lien to an adverse title. If there are two mortgages, but upon entirely separate tracts, there is no connecting link, and the transactions are not connected with the same subject of action. A proceeding in rem touches the property. It aims to seize and sell the thing itself, and not the mere interests or claims of persons in the thing. But can it be fully adjudged, that the debt is a lien upon the real estate, and that this, the res, is to be sold without a determination of adverse claims? Otherwise, the res may be sold or not; all, or nothing, may pass; and a purchaser, buying at a sale purporting to be a salé in a proceeding in rem, may have seized a substance, or only grasped a shadow.
It will be borne in mind that the right of a mortgagee to have other lien-holders made parties, is not the right of two lien-holders to unite and foreclose their separate liens in one action. It is the right of the single lien-holder to bring in, as parties defendant, other lien-holders, and litigate, as against them, the validity and extent of their alleged liens. He unites with his cause of action on his mortgage, and for establishing his own lien, a cause of action against the other lien-holders to contest their claims. The nature of the issues, and the extent of the controversy, may be no more difficult or greater in litigating adverse titles, than' in contesting other liens. Suppose that A., a mortgagee, brings his action to foreclose his mortgage, making B., the mortgagor, and C., D. and E., parties defendants. C. answers, setting up another mortgage; L. alleges a conveyance from the mortgagor of a moiety of the land made prior to the mortgage, but recorded subsequently, but that A. took his mortgage with notice thereof; while E. alleges a tax deed, and therefore claims the entire land as against all the other parties. A. replies, alleging that C.’s mortgage is void, or has been paid, that he had no notice of D.’s conveyance, and that the tax deed of E. is void upon its face, and therefore that E. has only a tax lien. Now that A. may litigate with C., is conceded. The latter’s mortgage is a transaction connected with the same subject of action. Are not' the claims of D. and E. just as much transactions connected with the same subject of action? Are they not as fully and as closely connected with A.’s right to have the real estate subjected to the payment of his mortgage ? Does the giving of the lien to C. affect A.’s rights any more than the conveyance to D., or the tax deed to E.? Wherein is a cause of action against C. more closely connected with enforcing a charge upon the real estate, than one against D., or E.? We fail to see. The interests, the questions to be litigated, may be different; but the connection is not more close, real, or material. Such adverse claimants may not be, are not, necessary parties. Neither are other mortgagees. If not made parties, their rights are not affected. But if made parties, they may litigate their claims; and having litigated them, are concluded by the litigation. Certain obstacles which prevented, under the old practice, the uniting of the two causes of action, no longer exist. The separate courts of law and equity have been abolished, and now all actions, whether legal, or equitable, are triable in one tribunal. The forms of procedure are simplified and unified; so that, if the foreclosure, and the litigation of the adverse title, were neccessarily in separate actions, they would each be brought in the same court, and the same form of action. So far as uniting two causes of action, in one of which defendant may be entitled to a jury as matter of right, and in the other not, we reply, that so far as the foreclosure is concerned it was long ago held, in this court, that defendant was entitled to a jury, it being an action for the recovery of money, though not one for the recovery of money only. Clemenson v. Chandler, 4 Kas. 558; Gen. Stat., p. 680, sec. 266. Further, that if the mortgagor be in possession, and the holder of the adverse title out of possession, the litigation of such adverse title would not be in the nature of an action for the recovery of real property, or give a right to a jury; and finally, that as the uniting of such causes of action is a matter of choice, and not of necessity,'the mortgagee cannot, by uniting, deprive either defendant of any right he would be entitled to in case the actions were separately brought. This last remark is applicable to the objection, that if the holder of the adverse title be in possession the action is tantamount to an action for the recovery of the possession, in which the statute gives the defendant a right to two trials.
To conclude upon this question, it seems to us, that a foreclosure suit is, as to one branch, in the nature of a proceeding in rem; that the aim and scope of such a proceeding is to seize the rem and convey it, discharged of all claims and liens; that the objections formerly existing to the adjudication of adverse titles, on account of the jurisdiction of the court, and the form of action, have been done away with; that the litigation of an adverse title, is as truly and closely connected with the right to subject the real estate to the payment of the plaintiff’s mortgage, as the determination of the validity and extent of other liens, and that the joinder of the two is therefore authorized by the statute. We come to this conclusion with hesitation, because of the course of decision elsewhere; but it seems to us justified by the statute, and it upholds a practice which has become common in this state.
III. Was the mortgagor’s title in fact paramount? Or perhaps more correctly, does the record show that the court erred in holding it paramount? The testimony was as follows: As evidence of plaintiff-in-error’s title, a receiver’s receipt was offered, dated 23d October 1873, acknowledging the receipt from James De Long, mayor of the city of Independence, “for the several use and benefit of the inhabitants thereof,” of $100, being in full for a tract of eighty acres, in which it is admitted were embraced the lots in controversy; and also, a chain of conveyances from De Long to plaintiff in error. And as evidence of the mortgagor’s title, though offered in evidence by the plaintiff in error, were a petition filed in the probate court of Montgomery county on the 12th of July 1871, by the city of Independence, by E. E. Wilson, its mayor, seeking to purchase the laud as school lands, and for the benefit of the occupants; an order of said court of date 5th October 1871, that said Wilson, mayor, etc., be allowed to purchase said lands at the appraised value “in trust for the settlers, occupants, and inhabitants of said city, with improvements;” and a patent from the state of Kansas to E. E. Wilson, dated 28th October 1871, and a conveyance from Wilson to the mortgagors. This was all the testimony bearing on the question of title. The land was in section 36. The patent was to E. E. Wilson personally, and not as mayor, trustee, or for the benefit of or in trust for any persons — does not recite or refer to the petition and order — but simply recites that he has purchased the land from the county treasurer, according to the provisions of the act of 1864, and has paid the full amount as appears from the certificate of the ■ county clerk of Montgomery county.
The validity of this patent to Wilson, is challenged on several grounds. It is said that it is void upon its face, because purporting to be issued under authority of a statute no longer in existence. It recites that it is issued in accordance with the provisions of an act of 1864, entitled “an act to provide for the sale of school lands,” etc. And we think that that act, as an entirety, was still in force at the time of the issue of the patent, and was the act under which it was issued. The act was continued in force in the revision of 1868. (Gen. Stat., p. 941.) And the acts of 1870 and 1871, (laws of 1870, p.228; laws of 1871, p.315,) were simply amendments of particular sections. The original act, as a whole, was never repealed. It was only amended, and that too only in a few of its sections. The amendments became part of the original act. And while it might have been more strictly accurate to say, “the act of 1864, and amendments,” yet the defect, if defect it be, is not one that affects the validity of the instrument. Again, it is said that it was issued without authority of law; that the petition was by the city of Independence, and that the statute authorized no purchase by such a party; that the order allowed E. E. Wilson to purchase in trust for the occupants, etc., and that the act allowed only purchases by parties in their own right; and finally, that the patent does not follow the petition, or order, as it grants the land to Wilson personally, and not in trust for any one. Now whether, if it affirmatively appeared that the patent was based upon this petition and order, it would be open to collateral attack, we need not inquire. It may be that no one but the state, or some purchaser from the state, could question its validity. But be that as it may, the patent is valid upon its face. It does not appear from anything in it, that it was based upon or in any manner connected with the proceedings in the probate court. There was no testimony showing or tending to show that there were not other proceedings had by Wilson, personally, in that court, or that these proceedings by him as mayor or trustee had not been set aside or superseded in that court by his personal petition. Those proceedings were not offered by the mortgagee in support of the patent, but by the plaintiff in error in attack upon it; and it devolved upon her to show, either by the papers themselves, or evidence aliunde, that the patent was based upon those proceedings, before any question of their sufficiency to sustain it is before the court.
Again, it is said that the state had no title, because, before the government surveys, a town-site had been laid out and occupied on this land, and that the receiver's receipt is conclusive upon this question. We think as the record stands we must hold adversely to this claim. In arguments of counsel are copied certain letters from the Commissioner of the Land-Office, and we have since been favored with newspapers containing a letter from the Secretary of the Interior; but the only matter before us as evidence against the'title apparently conveyed by the patent, is the mere receiver’s receipt, executed nearly two years after the patent. Prima facie, section 36 passed to the state as school lands. (Act of admission, Gen. Stat., p. 67, § 3; 16 U. S. Stat. at Large, 362, § 12.) The state, treating the title as in itself, conveyed it by patent. Unless “sold, or otherwise disposed of,” is the language of the grant, in the act of admission. Whoever would claim as against the apparent grant of this section eo nomine, must establish the exception. He must show that the land was previously “sold or otherwise disposed of.” Does the mere issue of a receiver’s receipt to a third party, nearly two years after the patent, without other proof of any examination or inquiry before the land officers, or of any notice to the parties claiming under the patent, or to the state, or to parties in possession, or anybody else, establish the exception? We think not. Conceding all that may be claimed for the land-officers, that they constitute a tribunal to adjudicate upon such questions, and that its decisions upon matters of fact are conclusive, yet it is certainly an inferior tribunal. There is no presumption of notice to adverse parties, and an ex parte investigation can certainly conclude the rights of no third parties. We go no further in our inquiry than this. We do not discuss questions which might perhaps fairly be noticed; for we are advised by letters and papers outside of this case, that there is a serious question, involving large interests, between parties holding under the patent from the state, and those holding under conveyance directly from the United States, a question we do not care to decide until the whole mater can be fully presented. We simply decide, first, that the patent is not void upon its face, because purporting to be issued under authority of the act of 1864; second,.that it is not shown to have been based upon the petition and order presented in the record; and third, that the prima facie title-conveyed by it is not avoided by the mere production of a receiver’s receipt issued nearly two years thereafter.
Upon the whole case then, as it stands before us, we see-no error, and the judgment will be affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
Statement of the case. Salary of county clerk: liability of county. This was an action brought by John Anderson against the board of county commissioners of Saline county, for $900, claimed to be due as salary as county clerk from January 10th, to October 10th, 1876. Judgment was rendered in favor of the plaintiff and against the defendant for $549.28, and the defendant now brings the case to ^us cour* f°r review. The facts of the case, so far ag ^ jg necessaly t0 state them, are substantially as follows: At the general election held in November 1875, John Anderson and Fred H. Wildman were opposing candidates for the office of county clerk in and for said county. Anderson received a majority of all the votes cast, and the canvassers awarded to him the certificate of election. Great irregularities however occurred in holding said election, and for this reason Wildman contested the same. The contest court decided in favor of Wildman, awarding to him the certificate, and annulling the certificate previously issued to Anderson. The certificate to Wildman was issued January 10th 1876. Wildman immediately qualified and took possession of the office. Anderson then took the case to the district court on petition in error, where the judgment of the contest court was reversed, and the office awarded to Anderson. Wildman then brought the case to the supreme court • on petition in error, where the judgment of the district court was affirmed, December 5th 1876. (Wildman v. Anderson, 17 Kas. 344.) Wildman in the meantime held said office, and received the salary and fees from said 10th January 1876 up to October 10th. But as soon as the case was decided in the supreme court, he delivered the office up to Anderson. The county commissioners had during all this time full knowledge of all these proceedings, but nevertheless paid said salary to Wildman as aforesaid. Wildman was and is insolvent; but whether the county commissioners were aware of this fact, we think the record does not show. There are some other facts in the case, but we do not think that it is necessary to state them. Upon the foregoing facts the following question arises: Are the county commissioners, as representatives of the county~ liable to Anderson for tI~e salary which they have already paid to Wildman? We think they are not. Benoit v. Auditors of Wayne County, 20 Mich. 176; Smith v. Mayor of N. Y., 37 N. Y. 518; Conner v. Mayor of N. Y., 5 N. Y. 285; Parker v. Supervisors, 4 Minn. 59; McAffee v. Russell, 29 Miss. 84, 97; Wheatly v. City of Covington, 11 Bush. 18, 22; The Queen v. Mayor of Cambridge, 12 Adolphus & Ellis, 702. It is held otherwise in California: People, ex rel. Dorsey, v. Smyth, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193. But Ohie~ Justice Campbell of Michigan says, in the Michigan case, (page 183,) that, "the California authority, (Dorsey v. Smyth, 28 Cal. 21,) is based entirely upon New York cases which are not law in the latter state, and which were made in disregard of the previous decision in Conner's case. It has no reasoning of its own, and does not seem warranted by principle." The decision in the other California case, that of Carroll v. Seibenthaler, is founded linen thet. of the nrevioiis ease of Dorsey v. Smyth.
But returning to the case at bar: Wildrnan was an officer de facto. He held the office under color of title. He took possession of the same in good faith, under a certificate of election duly issued, under a judgment of a court duly rendered, under a judgment of a court of competent jurisdiction, and a judgment that was not finally overthrown. until December 5th 187~, when the decision of the supreme court was rendered, which was long after the 10th of October 1876 — up to whiclTtime only Wildman received said salary. Such an officer as Wildman was, may hold the office and perform all the duties thereof pending any litigation concerning the same. The State v. Durkee, 12 Kas. 308, 314; Leach v. Cassidy, 23 Ind. 449. And all his acts connected with the office will be valid so far as the public and third persons are concerned, unless they are void for some other reason than merely that he is only an officer de facto. This last proposition is so nearly axiomatic that it needs no citation of authorities to sustain it. As Chief Justice Campbell says, in the Michigan case, (p. 181,) “The doctrine of the validity of the acts of officers de facto has been carried as far as possible. In The State v. Williams, 5 Wis. 308, it was held to make good the approval of a statute by a governor usurping that office. In Venable v. Card, 2 Head, (Tenn.) 582, it was carried to the questionable extent of making good the action of a court under an invalid statute. In Doty v. Gorham, 5 Pick. 487, where an officer de facto had made a sale, it was held that in a suit against himself, with others, for removing property thus sold, he could justify under the sale. In Leach v. Cassidy, 23 Ind. 449, it was held that a school officer de facto could not have his title questioned in an application made by him for a mandamus to compel the payment to him of school moneys by local officers. In Desmond v. McCarthy, 17 Iowa, 525, it was held that in a replevin by an officer de facto, to recover the papers belonging to his office, which had been withheld on a claim that he was not the lawful officer, his title could not be questioned, but that the only inquiry on that must be in proceedings to oust him.” See also, Hunter v. Ferguson, 13 Kas. 463, 475; Rheinhart v. The State, 14 Kas. 318; Higby v. Ayers, 14. Kas. 331, 338.
Now as Wildman was an officer de facto, holding under color of title, every person had a right to recognize him as a legal and valid officer, and to treat him as such. The public, the county, the county commissioners, and private individuals, had a right to do business with him as an officer, and to pay him for his services, if they chose, without taking any risk of having to pay for such services a second time. It might be greatly to the interest of the public, or of the individuals .doing business with such officer, to pay him when his fees or salary become due; and should they not be allowed to consult the interest of the public and their own interest to so pay him? It is not their fault that he is wrongfully-in the possession of the office; and how are they to know whether he is in the posses-sion of the office rightfully, or wrongfully ? Are they bound to know who is entitled to the office in advance of any final adjudication of the question by the courts ? Are they bound to anticipate the decision of the courts? And are they bound to decide the question for themselves, as it thus comes up incidentally and collaterally in the payment of fees or salary? And if they should determine that the courts would eventually decide against the officer de facto, must they refrain from paying him any fees or salary at perhaps a great loss to themselves, or. to the public? Judge Cooley says, in said Michigan case, (page 187,) that “The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow process of a litigation to try the title, have a right to treat as valid the official acts of the incumbent, with whom alone, under the circumstances, they can transact business. This rule is an obvious and necessary one for the protection of organized society ; for, as was said in Weeks v. Ellis, 2 Barb. 325, the affairs of society cannot be carried on unless confidence were reposed in the official acts of persons de facto in office. And private individuals, in controversies between themselves, are not permitted to question the acts of an officer de facto, for the further reason that to do so would be to raise and determine the title to his office in a controversy to which he was not a party, and in which he could not be heard.” Now, the interest of the public in the “continuous discharge” of official duties, would authorize the payment of the legal fees or salary for the performance of such official duties to the person performing the same; and to allow a person not in the possession of the office, but who claims to be entitled thereto, to sue for the fees or salary thereof, would be to allow the question of the title to the office to be raised and determined against the officer de facto “in a controversy in which he was not a party, and in which he could not be heard.” Such certainly could not be allowed. But if this suit can be maintained, then it would be allowed. The salary of a county clerk is payable quarterly; (Laws of 1875, page 137, §5,) and if Anderson can maintain this action, then he could have maintained an action against the county commissioners for the first quarter’s salary on and at any time after April 10th 1876, for it was due then, although Wildman was still in the possession of the office, and although his title to the office had not yet been finally adjudicated, but was still pending in the courts. It may be that Wildman could not have recovered .the salary in an action brought by himself, (though upon this question we do not wish to express any opinion;) for it may be, that as between himself and others, where he has to rely upon his own title to the office the question of his title could be raised, and his title held to be void; though upon this question we express no opinion. But that is not this case. He is not suing for his salary in this case. He is not a party to this suit, nor has he any interest therein. The question of his title to the office arises between third parties in this case — between Anderson and the county; and does not arise but only incidentally and collaterally. We do not think that the question can be raised and'litigated between such parties and in such a manner. It must be remembered that Wildman was not a mere usurper; but he was an officer de facto, having possession of the office under color of title. What would be the rule if he were a mere usurper, it is not necessary for us to decide in this case. All that we now decide is, that where a person is in possession of the office of county clerk, under color of title, and is the county clerk de facto, and claims to be the county clerk de jure, and the board of county commissioners pays to him the salary due to the rightful incumbent of such office, the county clerk de jure has no action against the county board for such salary, and this, notwithstanding the fact that the county board may have known at the time they paid said salary that the question as to the title to the office was in litigation, and notwithstanding the fact that the county clerk de facto may be insolvent. The remedy of the county clerk de jure in such a case is an action against the county clerk de facto.
The judgment of the court below will be reversed, and the cause remanded with the order, that judgment be rendered in favor of the defendant below, and against the plaintiff below, for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by Josiah Claw-son as plaintiff against Margaret A. Dean and Zina Mason, defendants. Margaret A. Dean was sued as an heir, and also as the administratrix of the estate of Adam D. McCune, deceased. Zina Mason was sued in his individual capacity. The action was on three promissory notes, and to subject certain land to the payment of said notes.
The first and principal question in the case is, whether said notes were barred by any statute of limitations before this action was commenced. There are a few other questions involved in the case, and several others involved in this main or principal question. It will be necessary to mention the particulars of only one of said notes. The last one due, and the smallest one in amount, was executed on the 15th of March 1865, by Adam D. McCune, for $100, payable on 15th March 1866, with interest at the rate of ten per cent, per annum. Zina Mason was an indorser, and a surety thereon. McCune, the maker, died August 15th 1866. James B. McCune was appointed his administrator on the 21st of August 1866. He made three payments on said note in 1868, to-wit, one on 14th of March, of $2.50; one on 15th March, of $27.50; and one on 7th August, of $65. He died August 29th 1868. On the 10th of September following, Margaret A. McCune, widow of said Adam D. McCune, was appointed administratrix de bonis non of her husband’s estate. On the 28th of February 1871, she paid $10.07 on said note. On March 11th 1873, she paid $7.80 on'said note. And oil the 16th of November 1875, this action was commenced. Mrs. McCune never gave notice of her appointment as administratrix as required by the statutes. (Comp. Laws of 1862, page 523, §74; Gen. Stat. of 1868, page 436, § 29.) Since her appointment she has been married again, and is now Mrs. Margaret A. Dean, one of the defendants in this action.
Under the acts relating to executors and administrators, all claims against an estate must be duly and legally exhibited to the administrator before they can be allowed, or classified, .or paid. As the acts of 1859 and 1868 are precisely the same, so far as we shall have occasion to refer to them, we shall refer only to the act of 1868 found in the General Statutes of that year, pages 429 to 472. Claims or demands against an estate can be legally exhibited only in one of three different- ways: 1st, by duly reviving an action against the administrator which had previously been commenced against the decedent; (sec. 82 of said act;) 2d, by commencing an original action against .the administrator; (sec. 83;) 3d, by serving a written copy of the demand upon the administrator; (sec. 84.) All demands which have been thus “legally exhibited” within three years after the granting of letters of administration, may, after such exhibition, be allowed, and classified, and paid; (sections, from 80 to 101.) But- — •
“No probate court shall allow any demand against any estate, unless the claimant first make oath in open court, or file an affidavit with such claim, stating to the best of his knowledge, and belief, he has given credit to the estate for all payments and off-sets to which it is entitled, and that the balance claimed is justly due. The affidavit in this section shall not be received as evidence of the demand, but the same shall be established by competent testimony before it is allowed or adjusted.” — (Sec. 88.)
“The executor or administrator may [however] pay any demand against the estate, not■ exceeding fifty dollars, in its regular order, without the allowance of the probate court, upon the same affidavit being made as would be required by the allowance of the account by the probate court.” — (Sec. 90.)
This allowance by the probate court can be made only after due notice, has been given to the administrator; (Scroggs v. Tutt, ante, 271; sec. 91, et seq., of said act.) And it can be made only upon a hearing in the nature of a trial; (sec. 94, et seq.) And this hearing and allowance is an adjudication, and the whole proceeding taken together is a “suit,” within the meaning of section 106 of said act; (Hanson v. Towle, 19 Kas. 273.) Section 106 reads as follows:
“No executor or administrator, after having given notice of his appointment, as provided in this act, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within three years from the time of his giving bond.”
The general statute of limitations, (Gen. Stat. 633, civil code, § 18,) would have barred any action on said notes within five years after they became due, unless something intervened to take the ease out of the statute. Now as the holder of the demand in this case did not legally exhibit his claim within three years after1 the granting of letters of administration ; and as he did not commence any suit thereon in any court within three years after the administrator or administratrix was appointed; and as he did not commence any action on said notes in any court within five years after the notes became due, is not his demand barred by all of said three different sections limitating actions? Is it not barred by the limitations prescribed in sections 81, and 106, of the act relating to executors and administrators, and by section 18 of the civil code?
I. With reference to the first limitation, (that embodied in said section 81,) we suppose that the plaintiff would say that the required exhibition of a demand against an x - ° . estate is merely for the purpose of informing the administrator of the existence of such demand, an(j ^at, ag a(jministrator in this case already had full knowledge of such demand there was no necessity for making any formal exhibition thereof to him. But the statute would seem to require more than merely giving notice to the administrator. The object of the statute in requiring the exhibition of a demand against an estate would seem more particularly to be, to get notice to the other creditors of the estate, and to the probate judge, so that all claims against the estate could be properly classified, and thereby be properly paid in the order of their priority. (See sections 80 and 85; also, Hanson v. Towle, 19 Kas. 279.) If this is the object of the statute, then a reasonably formal exhibition of all claims should be made. The language of the statute would also seem to indicate that a formal exhibition of the claim should be made. Thus the statute says, that the claim shall be barred unless it is “ thus exhibited ” — “ legally exhibited ; ” that is, • exhibited as prescribed by the statutes. But without deciding this question we shall pass to the next.
II. With reference to the second limitation, (that embodied in said section 106,) we suppose the plaintiff would say that Mrs. McCune, or Mrs. Dean, never gave any notice of her appointment as administratrix as required by the statute, (sections 29, 106:) and therefore the limitation embodied in said section 106 does not operate in this case. But as the plaintiff knew that she was appointed administratrix, and received payments from her as such administratrix, perhaps he cannot now raise the question as to whether her failure to give such notice would take this case out of the operation of said statute. (Collamore v. Wilder, 19 Kas. 67, 77, 78.) But upon this question we shall express no opinion.
III. With reference to the third limitation, (that embodied in section 18 of the civil code,) the plaintiff actually claims ^at sa^ payments and said acknowledgments took case out 0f the operation of the-statute. And this he does upon the strength of section 24 of the civil code. (Gen. Stat. 634, 635.) Said section 24 reads as follows :
“In any case founded upon contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment, or promise, must be in writing, signed by the party to be charged thereby.”
Now no acknowledgment or promise was made in the present case that would'take the case'out of the operation of the statute. For while the administrator and administratrix may have orally acknowledged the debt against the estate, and may have orally promised to pay the same — while indeed they may have made such an acknowledgment in writing, and may even have signed the same — yet neither of them ever made to the holder of the claim any such acknowledg ment or promise in writing signed by either of them, or by the party to be charged thereby; and therefore they did not by any acknowledgment or promise which they may have made, suspend the running of said statute of limitations. (Sibert v. Wilder, 16 Kas. 176; Hanson v. Towle, 19 Kas. 273.) The acknowledgments and promises which they did make were either not made in writing, or not signed by them, or by the party to be charged, or not made to the holder of the claim, or to any agent of his. The only acknowledgment of the debt, in writing, signed by either of them, if any such acknowledgment was ever made, was an acknowledgment made to the probate court, and not to the holder of the debt. But would the signature of the administrator or administratrix be sufficient in such a case? The acknowledgment, or promise, in order to be of any force or value, must be “ signed by the party to be charged thereby.” Now is the administrator, or the estate, 'the “ party ” contemplated in such a case? Which is the “party” to be “charged?” If it is the estate that is to be “charged,” then where does-the administrator get his authority to sign for the estate? Can “ the party to be charged,” sign by or through an agent? We shall not decide any of these questions in this case, and yet, for the purposes of this case we shall assume that the signature of the administrator would be sufficient. (But see Hanson v. Towle, 19 Kas. 282.) Perhaps however the reasons hereafter given to show that certain payments made by the administrator and administratrix are p0werless to' suspend the operation of the statute, will also show that any acknowledgments or promises that might be made by an administrator concerning demands of over fifty dollars would also be powerless to suspend the operation of the statute. It may certainly be questioned, whether an administrator could in any case, by any acknowledgment or any promise concerning any such a demand, suspend the operation of the statute against such demand. Said payments, we think, were void so far as they affect any question arising in this case. That is, they were void for the purpose of suspending the operation of the statute of limitations. Said notes were never legally exhibited to the administrator. They were never classified by the administrator, nor by the probate judge. They were never allowed by any court. No' oath or affidavit, setting forth that they were justly due and unpaid, and that there were no set-offs against them, was ever made, as is required by sections 88 and 90 of the administrators act. And each of them was for more than fifty dollars. Now by what authority did the administrator or administratrix make any of said payments? An administrator is not allowed to pay any demand of over fifty dollars, or any part thereof, until it has been allowed by some court. And he is not allowed to pay any demand of less than fifty dollars, or any part thereof, until said affidavit (mentioned in sections 88 and 90) has been made and presented to him. The statutes have therefore been violated in two particulars by making and receiving such payments — first, by the partial payment of said demand, although it was for more than fifty dollars and had never been allowed by any court; second, by the partial payment of said demand although no affidavit was ever made or presented as required by said section 90. It is true, that the most of the payments were for less than $50. But still each “demand” was entire, and was for more than $50. The least demand was for $100 and interest. And we hardly suppose that'it will be claimed that a single and entire demand for more than $50 may be split up into smaller demands, of $50, or less, so that it would be legal to pay such entire demand by paying it in installments, when it would be illegal to pay it in its entirety. Could an administrator pay a one-hundred-dollar note by paying $50 at a time, when it would be illegal to pay the whole amount at once? Could he pay a thousand-dollar note in the same way, although it had never been allowed by any court? If he could, then he could easily evade the law requiring that all demands of over $50 should be allowed and classified before payment. He could pay .a thousand- dollar demand in twenty consecutive minutes by making a payment of $50 each succeeding minute. Pie might take twenty hours or twenty days however if he chose. If it be claimed however that a demand may be split up or divided into principal and interest, so that each would become a separate and independent demand, we would answer that we hardly think it could be done, except where the principal and interest are represented by separate instruments in writing. But if it could be done, and if each should then constitute a separate and independent demand, would the payment of one of such separate and independent demands suspend the operation of the statute of limitations as against the other? But the demand in this case was not so divided in fact. The first payment on the $100 note was for less than the amount of the interest then due thereon. Every other payment on said note was for more than the interest due at the time of payment. And the third payment was solely a payment on the principal, and was a payment of over $50. This is a fair sample of the payments made on the other two notes. And if must also be remembered that no affidavit was ever ma(3e showing that the amounts of these payments were justly due, or unpaid. Hence, even if a demand could be split up and then paid in installments, still the payments in this case were illegal. We think however that the amount due on each of said notes, including both’ principal and interest, was only a single demand — a single cause of action — and could not be split up or divided so as to constitute more than one demand for each note, and therefore that said payments would have been illegal even if said affidavit had been made and presented to the administrator. Now can the plaintiff have the operation of one statute suspended because he has been privy to the violation of another statute? Can he found rights upon the violation of a'statute for which violation he himself is responsible? Can he become entitled to benefits because he violated the law? We think not.
It will be seen from the foregoing that an administrator cannot, by making payments on a demand of over $50, suspend the running of the statute of limitations against such demand. Whether he could, by making payments on a demand of $50 or less, suspend the running of the statute against such demand, we leave as an open question.
This disposes of the case in this court. We might say however that we- think the question of whether the plaintiff could maintain an action against Mrs. Dean, as heir of Adam D. McCune deceased, and to subject her land to the payment of said notes, provided they were still not barred by the statute of limitations, falls under the decision in the case of Johnson v. Cain, 15 Kas. 532, rather than under the decision in the case of Shoemaker v. Brown, 10 Kas. 383. See also in this connection, Collamore v. Wilder, 19 Kas. 67. We do not think it is necessary however to decide this question.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error sued plaintiff in error before a justice of the peace, and recovered judgment. This judgment was affirmed on error by the district court, and is now brought here for reexamination. Defendant moved the justice to dismiss the action on the ground that the plaintiff was a minor. This motion was overruled, and this is the alleged error. A bill of exceptions duly taken shows, that it appeared from the records and admissions of plaintiff, in open court, that plaintiff was a minor. If this were all, the question would be one of easy solution, for a minor can sue only by his next friend, or guardian. (Civil code, §31, Gen. Stat., p. 636.) But in the docket of the justice appears this entry:
“November 15th, 1876, one o’clock p.m. — Case called. Present, the plaintiff and defendant. By agreement of the parties to this suit, this case is adjourned for trial to the 22d of November 1876, at 1 o’clock p.m.; and the defendant agrees to waive all right he might have from the fact of the plaintiff being a minor, and asks that the case be tried the same as if the plaintiff was of full and lawful age.
“R. H. Bishop, J. P.”
And it also appears, that before the motion to dismiss was filed the plaintiff had been required to give and had given approved security for costs. Now it may be said that the fact that plaintiff was a minor, was a defect which defendant could alone raise, and that he had already waived it; that the object in requiring the action of a minor to be brought by his next friend, or guardian, is, that there should be some responsible party against whom, if the plaintiff loses, a judgment may be rendered for costs, and that here approved security had already been given. On the other hand it is said, that the waiver above quoted is not a matter which by statute goes upon the record, was not brought upon it by bill of exceptions, and must therefore, under the authority of Hagaman v. Neitzel, 15 Kas. 387, be disregarded, and that the statute is peremptory, that an action of a minor must be by his next friend, or guardian. So far as the last matter is concerned, we have had little difficulty. The positive requirement of the statute cannot be obviated by the mere giving of security for costs. The guardian or next friend is not merely responsible for the costs; he controls the action, and directs the manner of its management. The law does not deem it wise to grant to a minor unlimited license to sue; it prefers that he should be guided and directed by the discretion of some adult person. With regard to the former we have had much doubt. But we have concluded that it is a statement not properly on the record, and therefore to be disregarded. It is not a matter named in the statute as one of the entries on the justice’s docket. It is not an order of the justice, nor a motion of one of the parties. Neither is it connected with or made the basis of any order. It is not an entry of appearance, nor a waiver of any defect in the process, or service. It is true, it purports to be a consent of one of the parties made in open court; but it does not follow from this that it is a matter the justice may rightfully enter on his docket. Many agreements of counsel, or parties, of like character, must be shown by bills of exceptions, if advantage is to be sought thereafter from them. Whatever is in the nature of testimony, clearly must be so shown.
Here we find a motion to dismiss, regularly made and decided, a bill of exceptions showing proof of the fact stated in the motion; and all this is to be overthrown by a statement, found on the justice’s docket, disconnected from any motion, or order, that the defendant had theretofore waived the defect. Suppose an action of attachment, charging non-residence of the defendant as ground therefor, a motion made to dissolve, and proof that defendant was in fact a resident, the motion overruled, and a bill of exceptions of the testimony and ruling taken: would it not seem strange, to a party prosecuting error, to find that the justice had noted on his docket a statement that defendant when he first appeared admitted that he was a nonresident? and to have this entry presented as sufficient answer to his claim of error? There is danger too, of wrong, from such entries as this. The justice may without intentional wrong enter statements of consent or admission from some general talk between the parties, when neither party understands that such consent or admission has been in fact made. The litigation proceeds on both sides as though none had been made. Bills of exceptions are prepared upon the like belief; and only when a copy of the docket is asked, for purposes of error in the district court, is the entry of the supposed consent or admission noticed. Bills of exceptions are ordinarily examined by both parties before they are signed, but the justice makes up his docket entries himself, and without consultation with the parties. And we see no wisdom in enlarging the scope of his docket.
For this error the judgment must be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action under the law of 1874 to recover for stock killed and wounded on the track of the railroad of plaintiff in error. The facts were these: Two mares got onto the track, the same being unfenced, and in attempting to cross the railroad bridge, became fastened in it, their legs slipping down through the open spaces between the ties. While in this position a freight train came along, and in getting the animals off from the bridge, which was done by the train men, and without any collision, between the animals and the locomotive, they were both injured, one so badly that she died shortly after therefrom. The jury found specifically, that the employés of the road did not use ordinary care in removing the animals from the track, and also that the injuries were caused partly by the falling into the bridge in the first instance, and partly in the removal therefrom, but without in any manner apportioning the damages caused by these several injuries. True, they found that one mare was injured in the removal about 75 per cent, of her value, and the other about 25 per cent.; but they did not find the value of either. It is evident however, from the special findings, taken in connection with the amount of the verdict, that they regarded the major injuries as sustained in the removal. Upon these facts two questions arise: were the injuries received in removing the animals, received in operating the railway? and secondly, were the injuries received in falling into the bridge likewise thus received, within the meaning of the act?
With regard to the first question we have little doubt. A train finds certain obstructions upon the track, and the train men proceed to remove them. Surely, whatever they do in removing these obstructions is done in operating the road.. It is essential to the operating of it. All movement of trains at that point stops until the obstructions are removed. The track must be kept clear, and in position to enable the trains to move; and whatever is done in accomplishing these results, is done in operating the road. It is not included in the original construction and equipment of the road. But with a road-bed completed, track laid, and road stocked with cars and engines, keeping the track clear is part and parcel of the operating of the road. . The expense of it would be charged to operating expenses. Accidents and injuries in it, are accidents and injuries in operating the road.
But with the other question we have had some doubt. An animal falls into a tie bridge, and is thereby injured. Is it injured in the operating of the road? Suppose the road were abandoned, or had never been used, would not the same injury result? Is an injury, because it occurs on the track, an injury done in the operating of the road? Suppose an individual had attempted to walk across that bridge, and his feet slipping, had fallen between the ties and been injured: could it be said that he was injured by the company in operating its road ? Does not the very term operating, imply some action on the part of the company tending to produce the injury? Where the company is wholly inactive, and the only active force is the volition of the animal or person, can it be that the resulting injury is in the operating of the road, merely because it happens on the track, and by reason of the manner in which that track was originally constructed? It seems to us that this question must be answered in the negative. The act does not reach such cases. It does not follow from this that the company is not liable for such an injury. If it is chargeable to and results from the negligence of the railroad company in the construction of the bridge, or otherwise, then upon general principles the company may be liable; but such liability does not arise under this particular statute. In the case at bar, the bill of particulars charged negligence. The testimony showed that the bridge was changed immediately after the accident, so as to make a cattle-guard at either end, and thus prevent cattle from walking onto it. The court instructed concerning negligence, and the jury found negligence. So that as the record stands, we think the company was properly held liable for the damages resulting from both the injuries.
Can the award of attorney-fees be sustained ? We think not. So far as part of the injuries sustained are concerned, there would be no liability under the statute for such fees. There is nothing in the verdict or findings by which any apportionment can be made of the damages. The attorney-fees were allowed in the action, and for aught that appears, as though the full liability of the company were under the stat ute. As we cannot apportion the damages, neither can we the attorney-fees, and they must be stricken out. The judgment will therefore be modified by striking out the attorney-fees. Otherwise it will be affirmed. The costs of this court will be divided.
Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the case. | [
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The opinion of the court was delivered by
Houton, C. J.:
This action was commenced in the district court on the 10th of April 1876, by the plaintiffs in error against the defendants, for the purpose of obtaining a partition of the east half of the southeast quarter of section 31, and wes^ southwest quarter of section 32, all in township twenty-two south, of range sixteen east, containing 160 acres, situate in Coffey county. The facts of the case are substantially as follows: On the 7th of May 1874, and for a long time prior thereto, Noah Vandiver owned and occupied the land in controversy as a homestead. His children were all grown, and were living apart from their father and mother. Said Noah and his wife occupied the premises alone. On said 7th of May 1874, said Noah Vandiver died intestate, leaving the following-named persons as his heirs, and none others, namely, Hannah Van-diver, his widow, and four children, to-wit, Charles T. Vandiver, John Vandiver, Rachel I. Burr, and William Vandiver; also, two grandchildren, Cornelia H. Vandiver and W. B. Vandiver, children of his deceased son Addison J. Vandiver. On the 11th of May 1874, Hannah, the widow of Noah, sold and conveyed all her interest in this land to her son William; and on the 2d of November 1874, William died intestate, leaving as his sole heirs the defendants Rowena Vandiver, his widow, and Arthur Vandiver, a son. After the death of Noah, his widow continued to live upon the property until after she conveyed her interest therein to her son William ; and some of her property still remained on the premises at the time of the commencement of this action.
The defendants were all duly served with summons by publication. The defendants Rowena and Arthur appeared and answered; and William B. appeared by guardian ad litem, and filed an answer. At the August term 1876, after the plaintiffs had offered their testimony, the defendants filed a demurrer thereto, which demurrer was argued by counsel, and sustained by the court, and judgment given for the de fendants. The plaintiffs excepted to the action of the court in sustaining the demurrer to their evidence, and in giving said judgment. On the same day plaintiffs made a motion for a new trial, which was overruled and excepted to, and thereupon the plaintiffs made a case for this court, and the action is now before us on error.
The question presented is, whether the children who have arrived at majority, have left the family of their father and mother, and reside elsewhere than on the homestead occupied by the intestate at his death, are embraced within the provisions of sections 1 to 6, inclusive, of chapter 33, General Statutes. The first impression of the writer of this opinion, on consideration of this case, and the sections of the act of descents and distributions above referred to, was, that the members of the family actually occupying the homestead as a residence, at the time of the death of the intestate, were the only parties entitled to any interest in the premises exempted from distribution under the laws of the state; but a more careful examination of the subject has led him to a contrary conclusion. The former construction would be attended with many difficulties, and be the certain cause of dissensions in families, where the intestate left children engaged in business on their own account, sometimes making the homestead their home, and other times living separate and apart from the family. Other serious objections present themselves with this interpretation. If we adopt the construction contended for by defendants in error, and say “children,” as used, mean only minors, we interpolate the word minor, and thus judicially legislate upon the question, rather than expound the law. Section 2 provides for the occupation of the homestead, after the death of the intestate, by his widow and children. The ordinary definition of “children,” in relation to the father, is his sons and daughters; and unless it is clear the word is used solely in reference to minors, we are bound to consider it as usually understood, when used in relation to parents. Here it is so used, and means, in this connection, sons and daughters, or either — not minors alone. Again, if minor children only are intended, then daughters who compose the family at the death of the father, and are of age, and living at home, are at once dispossessed by the law of any right to such residence, as a home, or otherwise. If it is insisted that these provisions are for the special benefit of the widow, when old, poor, and decrepit, then this construction is not in harmony with sections 5 and 6, which authorize the homestead to be partitioned, and if not susceptible of division, to be sold, when all the children arrive at the age of majority. When her children reach majority, the mother and widow is more advanced in years than at any prior time. If the exemption is paramountly for her benefit, and to prevent her being left homeless in her old age, instead of providing for the,division or sale of the homestead at this late time in her life, the law would have made provision for the premises to be then set apart to her during her natural life, or to revert to her in fee simple. Such is not the direction of any of these sections. Instead, a division may then be had at the instance of any child — the law assuming, that when all the .children have arrived at age, the necessity for the preservation of the old homestead for the widow, or children, no longer exists., In pursuance of this idea, it seems to us that the main object for the adoption of these several sections in the act relating to descents and distributions, was to preserve intact to the widow and family the homestead occupied by them prior to the death of the father, free from the claims of creditors and distribution under the laws of the state. The exemption from distribution was to continue till the widow should marry again, or the children arrive at majority. When either occurs, the homestead is to be divided, or sold. If the intestate leaves no children, the widow is entitled to the homestead. If he leaves children, and no widow, the children are entitled to it. Thus the homestead is saved from immediate distribution, and the demands of creditors (if there be any,) for the family specially needing it on the death of the husband. If the widow remarries, or the children are of age at the death of the father, or when they all become of age, the homestead, so occupied by the family after the death of the intestate, is distributable as the other real estate of the intestate, viz., one-half in value to the widow, and the other half to all the children. This construction secures to the widow and children of the intestate the present use and ultimate benefit of the homestead, and does no great injustice to any of them. If it be urged, that this construction favors the barren and unfruitful widow, in preference to the mother who has raised up children to man’s estate, we answer, the other provisions of the act of descents and distributions does the same, if such a mode of distribution may be called favoritism, because it is thereby provided, if the intestate leaves no issue, the whole of the estate shall go to the wife. This matter of pretended invidious distinction, however, should be disregarded as an argument. Generally, the interests of the mother and her children are not greatly adverse. No good reason exists why the homestead of the intestate, “toward which the eye of the creditor need never be turned” in the lifetime of the debtor, shall, upon his death, be liable for the claims of creditors, when continued to be occupied by the widow or children of such debtor. Nor is there any very good reason why the homestead, when the widow re-marries, or all of the children become of age, shall not be distributed as the other real estate of the intestate. Whether the reason be good, or bad, it is the policy of the law thus to dispose of it. In exceptional cases, the rule here adopted may work injury; but the general purpose of these provisions regarding the exemption of the homestead, is better supported thereby, than if a different doctrine is approved.
We are not called upon now to determine the nature of the occupancy after the death of a debtor to exempt the homestead from the payment of his debts; but certainly the requirement of “occupancy” should be liberally construed, so as to favor the beneficial purposes of these sections of the law.
In this case, the homestead was subject to partition upon the evidence presented in the district court, and the judgment must be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to restrain the collection of a judgment against the plaintiff, on the ground that since its rendition it had been fully paid and discharged. The case was tried by the court without a jury, special findings of fact made, and judgment rendered for defendants. The court made 32 findings. As to most of them no objection was taken, the matters embraced in them being beyond dispute. The 28th, 29th, 30th, and 31st are objected to, and it is insisted that the court erred in those findings, and in not making two findings tendered by plaintiff. The facts are substantially as follows: The plaintiff and C. K. Holliday were accommodation indorsers on a note given by the King bridge company. On 5th January 1874, Chouteau, Harrison & Valle recovered judgment thereon against the plaintiff and Holliday. Prior to the judgment, and to secure plaintiff and Holliday, the bridge company gave to them a chattel mortgage on certain bridges. Under that mortgage they took-possession of the bridges, and thereafter sold the same to the Kansas Midland Railroad Company. The railroad ■company gave them therefor, on 1st August 1874, its promissory note payable November 1st 1874, for the exact amount ■of the judgment and interest, and as collateral security $30,000 first-mortgage bonds, and $250,000 stock certificates of the company. The bridges were taken and used on the line of the railroad. On October 31st 1874, the Kansas Midland Railroad Company, having partially completed its road, and being in an embarrassed condition, made a contract with its creditors, who entered into a joint-stock association known as the “Consolidated Railroad Construction Company,” or.more commonly as the “Pool,” by which the pool agreed to finish the construction of the road, and the railroad company to turn over its entire assets to the pool. The articles of association of the pool signed by the parties thereto recited that it was entered into for the purpose of compromising, settling, validating and discharging, or providing for the payment and discharge, or securing the claims of the creditors of the railroad company, as well as for the completion of the r.oad; provided that it should enter into a contract for the completion of the road;, that the members of the pool should turn over to it all bonds and securities held by them for their claims against the railroad company; that the business of the pool should be transacted by three trustees, Andrew J. Dull, George W. Veale, and D. L. Lakin, and that on the completion of the road the assets should be distributed among the members of the pool in proportion to their several interests, as determined by the amount of their claims, a schedule of which was attached to the articles. In such schedule appears an item described as “ Holliday Bridge Claim,” which referred to the indebtedness heretofore named. Henry Levis was the clerk of the trustees, and as the special representative of Andrew J. Dull, who was absent most of the time, took an active sháre in the management of the business of the pool. On April 29th 1875, Chouteau, Harrison & Valle assigned the judgment to Henry Levis. On the 3d of May 1875, Levis as assignee, executed to Holliday a release of all liability on the judgment, receiving in consideration therefor Holliday’s half-interest in the K. M. •Railroad Company note, with the collateral bonds and stock certificates, and also an assignment of a claim of $5,000 for money advanced to the K. M. Railroad Company, and named and allowed in the schedule attached to the articles of association heretofore referred to. On May 5th 1875, Crane, by an attorney-in-fact, duly authorized, assigned and transferred his interest in said note and collaterals to said Levis, and received in consideration therefor a partial release and discharge as to the judgment. Between November 12th 1874, and August 3d 1875, the pool, in settling the debts of the K. M. Railroad Company, and in completing the construction of the road, disbursed some $240,631.13, taking therefor 259 receipted vouchers. In the list of disbursements reported by the trustees appears the note of the railroad company to Crane and Holliday.
Upon the facts above stated there is little dispute. The bone of contention is, whether the K. M. Railroad Co., or the pool, ever assumed to pay the judgment, or ever in fact paid it. The district court found that they had done neither. And upon both questions we must sustain the conclusions of that court. It would be enough to refer to the i’epeated rulings of this court, that the findings of fact made by the trial court, like the verdict of a jury, settle all disputed questions of fact. But we may go further, and say that, as we read the testimony, it points unmistakably to the conclusion reached by that court-. The papers executed indicate this. The railroad company found some bridges in the possession of Crane & Holliday, and bought them. It gave its note with collateral security for them. That note evidenced its promise. It was a negotiable note. It was a promise to pay Crane & Holliday directly. Did the railroad company also agree to pay the judgment? If before maturity the payees had indorsed the note to a bona fide holder, would the company have been under a double liability — one to the holder of the note, and the other to the plaintiffs in the judgment against Crane & Holliday? It certainly would have been, if it had promised to pay the judgment. The identity in amount of note and judgment proves nothing. The judgment-debtors sold the bridges to raise means to pay the judgment, and therefore the size of the judgment determined the price of the bridges and amount of the note; “only this and nothing more.”
Again, Holliday, who was jointly interested with Crane in note and judgment, testifies positively, that he conducted the negotiations for the sale of the bridges to the railroad company, and that it did not.assume to pay the judgment; that the note was the evidence of its promise in fact, and that he, with the knowledge of the officers of the company, and without any objection from them, tried to dispose of the note and collaterals before maturity. And again, his own conduct speaks still more strongly to’ the same effect. Himself a member of the pool, familiar with its purposes, its articles, and its officers, after the purchase of the judgment by Levis, we find him giving in settlement of his liability on the judgment, not merely his interest in the note and collaterals, but a large allowed claim against the pool. Surely this would not have been done if the railroad company had assumed to pay the judgment, and the pool had succeeded to its obligations. As against this, the talk at the meeting for the organization of the pool, and the understanding of its members, is hot sufficient. In the first place, they who were present do not agree as to either. In the second- place, Holliday and Crane were evidently the objects of interest, rather than Chouteau, Harrison & Valle; in other words, the parties present were more anxious to save Holliday and Crane from loss, than to secure Chouteau, Harrison & Valle their money. The only solicitude about paying the judgment was because thereby the judgment-debtors would be released. In the third place, as the situation of the parties was pretty thoroughly understood, it was natural that the result sought to be accomplished, rather than the specific means, the general fact rather than the details, should be spoken of, and that the expressions, “the bridge matter,” the “Holliday claim,” and the “ Chouteau judgment,” should be freely used as referring to the same obligation.
With reference to the payment or assignment of the judgment, the testimony is undisputed, that both judgment and note were transferred to Levis, that the trustees reported a payment of only the note, and that upon the record the judgment still remains vested in Levis. It seems clear also, that at the time the judgment was assigned to Levis the pool did not have the funds with which to purchase it, and that Levis either paid his own money, or obtained means elsewhere than from the pool. Levis was not examined, and there is no positive testimony showing whose money was so used, or whence obtained; and notwithstanding some circumstances throwing suspicion on the transaction, we cannot say that the plaintiff, on whom the burden of proof rests, has shown that the purchase of the judgment was by the pool, or at its instance, or for its benefit. There is certainly nothing to prevent an agent, as Levis, from purchasing such a judgment at his own cost, and for his own benefit; and if the principal makes no objection thereto no one else can complain.
The judgment clearly follows from the findings of fact, for if the pool never assumed to pay, and never did pay the judgment of Chouteau, Harrison & Valle, there is no ground for restraining its collection. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was based upon four bills of lading, issued by the Atchison, Topeka & Santa Fé Railroad Company, covering four shipments of wheat. Two of the bills of lading called for 23,000 pounds of wheat each, and two called for 25,000 pounds each — all consigned to the order of Henry Schneider at St. Louis, Mo. As the point involved here is the same, as to each of the bills of lading, we will follow the course pursued by the counsel in their argument, and state the case as if covering simply one bill.
On the 4th of September 1876, Henry Schneider delivered to the railroad company, at Valley Center, a certain lot of wheat which was put into a car to be consigned to kjg orcjer^ or assjgnSj gk Louis,'Mo. At the time of the delivery of the wheat to the railroad company, the defendant’s agent at Valley Center issued and delivered to Schneider two original bills of lading, of the same terms, tenor, and effect, for the wheat, and each of which •showed the receipt of 23,000 pounds of wheat, and its consignment to Henry Schneider, or to his order or assigns. There was not more than twenty-three thousand pounds of wheat delivered, covered by the two bills of lading. Schneider procured the issue of two original bills of lading, instead of one, upon his statement that he wished one original bill of lading to file in his office as a memorandum of the transaction. Schneider took the two original bills of Mding to Wichita, and on September 5th, negotiated one of them to Messrs. Woodman & Son, for a valid consideration. On the •6th of September, Schneider negotiated the other original bill of lading to the plaintiff, a banking corporation, in the regular course of business, and duly transferred and indorsed the same in writing to the bank. The bank accepted the bill of lading from Schneider, and advanced him in good faith the money sued for upon the bill of lading, and wholly relying upon it for security for the advancement, and without any knowledge that two bills of lading had been issued for the wheat. The wheat was forwarded to St. Louis by the railroad company, and there delivered to the holder of the bill of lading so negotiated to Messrs. Woodman & Son. The defendant was, at the several dates above named, a railway corporation, and engaged in operating a line of railway from the city of Wichita, by and through the town of Valley Center, and by and through the county of Sedgwick, in the state of Kansas, to Kansas City, in the state of Missouri, and in carrying and transporting grain and other commodities for hire to St. Louis, Missouri. It was the usage and custom of the railroad company, at its station of Valley Center, to~ issue but one original bill of lading for any one shipment of grain, which custom was known to plaintiff. The agent of the defendant by whom the bills of lading were issued had authority to receive wheat to be transported by the railroad company over its line to St. Louis, Missouri, and to issue bills of lading therefor; but the company had given the agent no authority to issue more than one original bill of lading for any single shipment. Schneider being worthless, and having absconded, the bank lost the principal part of the amount of its advancement, and thereupon brought this action to recover the amount of its loss. Upon an agreed statement of facts, substantially in accordance with the foregoing, the district court rendered judgment for the defendant.
The amount involved in this action is less than $1,000, but the'questions in issue are exceedingly important. Our state is a great producer of grain, large amounts => 1 . . ° °f which seek markets outside of its boundaries. The means of its transportation are mainly limited to railroads, and commercial transactions by our grain dealers extend to millions, each year. The great mass of these products, when started to eastern markets, are purchased and paid for through bills of lading. The custom of grain dealers is to buy of the producer his wheat, corn, barley, etc., then deliver the same to a railroad company for shipment to market. The railroad company issues to the shipper its bill of lading. The shipper takes his bill of lading to a bank, draws a draft upon his commission merchant, or consignee, against the shipment, and attaches his bill of lading to the draft. Upon the faith of'the bill of lading, and without further inquiry, the bank cashes the draft, and the money is thus obtained to pay for the grain purchased, or to repurchase other shipments. Iu this way, the dealer realizes at once the greater value of his consignments, and need not wait for the returns of the sale of his grain to obtain money to make other purchases. In this way the dealer, with a small capital, may buy and ship extensively; and while having a capital of a few hundred dollars only, may buy for cash, and ship grain valued at many thousands. This mode of transacting business is greatly advantageous both to the shipper and producer. It gives the shipper who is prudent and posted as to the markets, almost unlimited opportunities for the purchase and shipment of grain, and furnishes a cash market for the producer at his own door. It enables the capitalist and banker to obtain fair rates of interest for the money he has to loan, and insures him, in the way of bills of lading, excellent security. It also furnishes additional business to railroad companies, as it facilitates and increases shipments of produce to the markets. A mode of business so beneficial to so many classes, ought to receive the favoring recognition of the law to aid its continuance; and the later decisions have gone very far to strengthen the quasi negotiability of bills of lading, independent of any statutory authority. Mr. Justice Miller said, in McNeal v. Hill, Woolw. 96, “As civilization has advanced, and commerce extended, new and artificial modes of doing business have superseded the exchanges by barter, and otherwise, which prevail while society is in its earlier and simpler stages. The invention of the bill of exchange is a familiar illustration of this fact. A more modern, but still not recent invention, of like character, for the transfer, without the somewhat cumbersome and often impossible operations of actual delivery of articles of personal property, is the indorsement, or assignment, of bills of lading and warehouse receipts. Instruments of this kind are sui generis. From long use and trade, they have come to have among commercial men a well-understood meaning, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named, as would a bill of sale. * * * If the warehouseman gives to the party who holds such receipt a false credit, he will not be suffered to contradict his statement which he has made in the receipt, so as to injure a party who has been misled by it.” The authorities speak of bills of lading passing from successive vendor to vendee, and thus become muniments of title of .great value. Where one advances money on a bill of lading, or buys the property therein set forth by taking a transfer of such instrument absolutely, the only evidence which he has of the quantity of goods which he has bought, or advanced money on, may be the statement contained in the bill of lading. Indeed, one of the main uses of bills of lading of grain, at this day, is to afford shippers opportunity to obtain advances upon their shipments. When issued, the parties issuing them have the knowledge that they may and probably will be used with commission merchants, or at some bank, to obtain advances of money. In the most of cases, this result is almost certain to follow. We may say that the bills of lading, covering the shipments in this case, were issued with the expection that one of the two originals would be hypothecated with some banker, commission merchant, or other party, so universally is this practice recognized and adopted. We make these preliminary remarks, of the character and usage of bills of lading, as - they tend to clearly present the questions in controversy, and make, it seems to us, the solution of them easy.
In accordance with well-settled rules, the plaintiff, knowing the custom of the defendant to issue only one original bill of lading for any one shipment of grain, having made advances on the faith of the bill of lading issued by the agent of the company within the apparent scope of his authority, was entitled to recover of such defendant all damages resulting to him from the issuance of two original bills of lading for the same grain — or perhaps we might better say, for this false bill of lading — as the defendant was' bound by the act of its agent, and therefore estopped from denying it had the grain stated in the bill sued on. When the defendant knew to what uses bills of lading could be and usually were employed, it was guilty of negligence in issuing two original/-" bills for the same wheat, in violation of its usual custom. It is true, one was issued, so that Schneider might file it away; but when issued, it should have been marked or designated as a “duplicate,” as to be incapable of being hypothecated to defraud those who dealt in such paper. After the wheat shipped by Schneider had been sold to Messrs. Woodman & Son, by transfer of the bill of lading negotiated to them on September 5th, the other bill of lading, transferred to the plaintiff on September 6th, was as worthless and valueless, as if it had been a false bill. Indeed, it was, in this respect then false, for it purported to cover certain wheat which it did not represent. The defendant directly afforded Schneider opportunity to commit a fraud upon the plaintiff by issuing the second bill of lading; and its action in this regard was just as harmful to the plaintiff as if it had issued said bill with the intention to defraud the bank, or as if no wheat had been received by it at all. Both of the bills are admitted to be originals, and the company was certainly guilty of culpable negligence.
In a late English case, Brett, J., stated the doctrine of estoppel as follows: “If in the transaction itself, which is in dispute, one has led another into the belief of a certain state of facts, by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act, by mistake, upon such belief, to his prejudice, the second cannot be. heard afterward as against the first to show that the state of/ facts referred to did not exist.” Carr v. London Railway, Law Rep. 10; C. P. 307. In the case of Armour v. M. C. Rld. Co., 65 N. Y. 111, it was said, that defendant’s agent, having authority to issue bills of lading, upon delivery to him by M. of a forged warehouse receipt, issued to M. two bills of lading, each stating the receipt of a quantity of lard consigned to plaintiffs at New York, and to be transported and delivered to them. Said agent was informed by M. at the time of the delivery of the bills of lading that he intended to use them at bank. M. drew sight-drafts on plaintiffs, to which he attached the bills of lading. These were delivered to a bank, and were forwarded to New York, and the drafts were paid by plaintiffs, on presentation, upon the faith and credit of the bills of lading. In an action upon the bills of lading, it was held that defendant was bound by the acts of his agent, and was estopped from denying the receipt of the lard, and that plaintiffs were entitled to recover. See also, Bigelow on Estoppel, 429; In re Brown, 1 Bissell, 76; Bradstreet v. Heran, 2 Blatchf. C. C. R. 116; Michael v. Ware, 3 Neb. 229; Relyea v. New Haven R. M. Co., 42 Conn. 579; Meyer v. Peak, 28 N. Y. 590; McGowan v. Ins. Co., 18 Kas. 300; Redfield on Car. & Bail., § 247.
Considering the custom of the railroad company, the mode of doing business with bills of lading, the bank was guilty of no negligence in advancing the money to o o o ^ J Schneider. The company was guilty of culpa^;|6 negligence, which resulted in the consummation of the fraud. “The representations in the bills were made to any one who in the course of business might' think fit to make advances on the faith of them.” The bank acted on these representations in good faith. Schneider, who obtained the fruits of this fraud, has fled the state, and is insolvent. The bank, or the railroad company, must suffer. Who, under all the circumstances, ought to bear the loss? The superior equity is with the bank. It advanced moneys on certain representations which were virtually untrue. In this case, is presented every element to constitute an estoppel in pais, within the doctrine that, where one of two innocent persons must suffer by reason of the fraud or misconduct of a third, he by whose act, omission, or negligence, such third party was enabled to consummate the fraud, ought to bear the loss. Thus the defendant was liable, and the court below committed error in holding otherwise.
We agree with the counsel for the defendant, that a bill of lading is not a negotiable instrument, and with much that is stated in their brief concerning the character of ¿[jese instruments in general. But most of the decisions referred to by them contain discussions of the negotiability of this class of paper, and are not strictly authority, as the defendant’s liability does not depend upon the negotiable character of bills of lading. Probably it would be beneficial to the commercial interests of the state, for the law-making power to make these instruments negotiable in all the meaning these words imply; but in the absence of such legislation the defendant ought not to have authority to issue bills of lading for grain, and thus put it in the power of the holder thereof to treat with the public on the representation made in them, and then, when money has been advanced on the faith of such statements, by innocent parties dealing in such paper in the regular course of business, contradict the representations of the paper, and thereby injure the persons who have been misled. The principle of estoppel does and ought in such cases to apply.
The judgment of the district court will be reversed, and the case remanded, with instructions to enter judgment for the plaintiff for the amount stated in the agreed statement of facts, with costs.
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of Franklin county of the crime of burglary, and from such conviction has appealed to this court. Many errors are alleged, some of which present questions of importance and difficulty, while others have already been settled, or require but. a passing notice.
I. It is claimed that the court erred in permitting the information to be verified after the trial had commenced. The record does not sustain this statement, or disclose any error in this respect. That which was done, was done a prior trial, after a plea of not guilty had been entered, and a jui’y impanneled, and in which the jury disagreed and returned no verdict. And at such prior trial the information was not “verified,” but the court permitted the clerk to sign the jurat and attach his seal, it appearing from his oral statement, not under oath, that the county attorney had in fact subscribed and sworn to the information before the filing thereof. In this was no error prejudicial to the substantial rights of appellant, or of which he can now take any advantage. The State v. Otey, 7 Kas. 69.
II. Again, error is alleged in overruling an application for a change of venue. In support of the application the defendant filed the affidavits of seventeen persons, all showing more or less acquaintance with public opinion, some alleging that they had heard frequent threats against the defendant, and all expressing an opinion that there was such a prejudice against him as would prevent a fair trial. In opposition thereto the state filed the affidavits of nineteen persons, showing fully as great if not a greater knowledge of the general talk and sentiment of the community, and expressing the opinion that there was no such prejudice against him, and that there was no reason why he could not obtain a fair and impartial trial. Without noticing in detail all the matters referred to in these affidavits, we may say in general, that a perusal of them inclines us decidedly to the opinion that the ruling of the court was correct. So far as means of knowledge, opportunities for acquiring information, and the probabilities of a correct apprehension of public sentiment in this respect, are concerned, the state’s testimony is equal if not superior to that of the appellant. There is a generality of statement on both sides. Perhaps to a certain extent this is necessarily so; but in a view of such generality, the means of a witness’s knowledge becomes an important factor in determining the value of his testimony. Again, while some of the appellant’s witnesses say they have heard threats, they give the names of no persons who have made these threats, nothing by which the state could investigate or contradict such allegations. Again, it would be strange if, after a party had been arrested and tried before one jury, which disagreed, and then arrested on further charges, {for at the time of this application there were three informations filed against him,) there’was not considerable talk about him, and the charges, and expressions of opinions pro and con thereon. And scarcely any case of importance occurs in which, between the arrest and the trial, expressions equally as strong and bitter with those alleged here could not be shown to have been made by many persons. We are not satisfied from these affidavits, and cannot hold, that the district court ought to have found prejudice in the community such as to warrant a change of venue.
III. The motion for a continuance was.properly overruled. The State v. Thompson, 5 Kas. 159; The State v. Dickson, 6 Kas. 209. These decisions may have been based upon a rule of this court since repealed; but notwithstanding, they are still authority, for in lieu of the rule is an enactment of the legislature of the same import, and equal force. Gen. Stat. p. 689, sec. 317; p. 854, sec. 210.
IY. Error is alleged in the admission of testimony, in this, that evidence was admitted which simply tended to show defendant guilty of another offense, and in no manner tended to connect him with the crime charged. The rule of law applicable to questions of this kind is well settled. It is clear, that the commission of one offense cannot proven on the trial of a party for another, mere]y for the purpose of inducing the jury to believe that he is guilty of the latter, because he committed the former. You cannot prejudice a defendant before a jury by proof of general bad character, or particular acts of crime other than the one for which he is being tried. And on the other hand, it is equally clear, that whatever testimony tends directly to show the defendant guilty of the crime charged, is competent, although it also tends to show him guilty of another and distinct offense. The State v. Folwett, 14 Kas. 105. A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him. A man may commit“half ajlozen distinct crimes, and the same facts, or some of them, may tend directly to prove his guilt of all; and on the trial for any one of such crimes it is no objection to the-competency of such facts, as testimony, that they also tend to prove his guilt of the others. By this rule, whatever is done in preparation for a crime, or in concealing the fruits, is competent, although in such preparation or concealment is committed another and distinct offense. And wherever there is testimony showing a conspiracy to commit a crime, evidence of acts done intermediate the conspiracy and the crime, in-preparation of means for such crime, is competent, and that notwithstanding through some outside intervention the means-so prepared are not actually used, but the crime is otherwise-accomplished. Within the scope of these rules comes the testimony objected to in the case at bar. The facts are these: The charge was burglary, in breaking into a store. The information was against four parties. One was called as a witness by the state, and, admitting himself to be an accomplice,, testified that all four were engaged in the burglary; that 'they all met, two nights prior thereto, and arranged for committing: the crime, and fixed the time at which it should be committed; that defendant then said that a bar of iron and a pair of pinchers was all that was needed, and he would get them; that at the time appointed all met, and defendant had with him the bar of iron and the pinchers. Other witnesses-testified that on the day before the burglary they saw this defendant, and one of the other parties charged with the crime, sitting together in a store engaged in conversation for a long time. And then a witness was permitted to testify that he saw this defendant coming out of the same store, after-such conversation,-with a carpenter’s brace, which he hid behind some-coffin boxes, and which, after his departure, was-taken and returned to the owner. This last is the testimony objected to. As detailed by the witnesses it establishes an independent crime, that of larceny. As such, say counsel, it is incompetent. Nor is it competent as evidence of preparation, for the brace was not an instrument intended to be used,, or in fact used in the burglary. To this we reply, that the state, having offered evidence of a conspiracy and agreement between the parties to commit the crime, might properly show any conduct or acts of either thereafter tending to sustain the evidence of the agreement, and indicating preparation to accomplish the crime, or remove the fruits. It is not essential that the state establish beyond peradventure that the acts or conduct were based upon the conspiracy, or in reference to the crime; it is enough that they harmonize with and tend to confirm the charge of the conspiracy, and are reasonably indicative of preparation for the crime. If no act or conduct of the defendant could be shown, unless the motive therefor, or the connection between- it and the crime, were made undisputably clear, the range of inquiry'would be-limited and narrow. It is enough that the act has an apparent or probable connection .with the crime; and then the, motive of the defendant, and the weight of it as testimony, are to be eonsidered by the jury. The fact that defendant and another of the four implicated in the conspiracy were engaged for a long time, in private conversation the noon prior to the burglary, may of itself, when the nature and substance of their conversation is unknown, prove nothing; yet it is a circumstance harmonizing with the alleged conspiracy, and proper for the consideration of the jury in determining whether there was, as charged, such a conspiracy. So, while the testimony of the accomplice is, that a bar of iron and pinchers were to be and were the instruments of the crime, may not the state show that defendant was engaged between the conspiracy and the crime in procuring other instruments therefor? That a brace and bit might be very serviceable in forcing an entrance through a door, cannot be doubted; that the brace stolen by defendant was not used in the burglary, was prevented by the act of one who witnessed its larceny; that-it was intended to be so used, is not affirmatively shown. But inasmuch as it was an instrument one intending burglary might naturally seek to obtain, as it was taken intermediate the conspiracy and the crime, and immediately after a long interview between two of the conspirators, the taking and concealment of it was a circumstance which might fairly be presented to the jury for their consideration. Suppose, that instead of stealing a brace, the defendant had on that day gone many miles away and brought his own brace thence to a place whence it could easily be obtained on the coming night for the contemplated burglary, and that then, without the knowledge of defendant, it was taken away by .some third party: could not this circumstance be shown, and that, notwithstanding the testimony of the accomplice as to what was agreed to be and what was in fact used? Would not the act be one tending to show preparation — a preparation made fruitless by the unexpected act of another ? Could it not be shown that one charged with homicide, immediately prior thereto, was providing himself with several weapons, though ^only one was in fact used? and if so, does the manner in which he so provides himself affect the competency of the testimony? If one weapon he stole, one he borrowed, and one (his own) he simply put in order, would proof as to the first be incompetent, while evidence as to the others was admissible? and must it be affirmatively shown that each weapon was procured with reference to the homicide, before evidence concerning its procurement is competent? or are the facts concerning all to be put in evidence, leaving their weight to be determined by the jury? This we think must be laid down as the true rule: that where there is evidence of a conspiracy to commit a crime, and of its subsequent commission, the state may in support and corroboration thereof show any act or conduct of the alleged conspirators inter-, mediate the conspiracy and the crime, which apparently recognizes the existence of the conspiracy, or reasonably indicates preparation to coinmit the crime, or preserve its fruits; and this, notwithstanding such special act of preparation was not the one discussed and agreed upon by the conspirators, and is rendered actually fruitless and unavailing by the unexpected interference of third parties, and also involves the commission of another and distinct crime. The State v. Crowell, 12 Nev. 337; Hester v. Commonwealth, Sup. Ct. of Penn., 6 Cent. Law Jour. 395.
V. During the trial the court sent the jury in charge of an officer to examine the place of the burglary. One of the jurors, being familiar with the locality, was directed to show the same to his fellows. Neither judge, attorneys, nor defen<iant-> accompanied the jury during this inspection. The record does not show whether defendant applied for leave to accompany them, or not. It simply shows that the jury went alone with the officer. And this, it is claimed, is fatal to the proceedings. This claim is based upon section 10 of the bill of rights, which provides, that—
“In all prosecutions the accused shall be allowed to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, and to have compulsory process to compel the attendance of witnesses in his behalf,” etc.
And see § 207 of the code of criminal procedure, which reads that—
“No person indicted or informed against for a felony can be tried unless he be personally present during the trial,” etc.
Section 316 of the code of criminal procedure is the one under which this proceeding was had. It reads — •
“Whenever in the opinion of the court, it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the officer, and a person appointed to show them the place, shall speak to them on any subject connected with the trial.”
This claim of appellant finds some warrant in the authorities. In 3 Whart. Am. Cr. Law, (7th ed.,) § 3160, it is said, that the defendant ought to be permitted to accompany the jury in such a visit of inspection. In The State v. Bertin, 24 La. An. 46, it was held that where the defendant was not permitted'to accompany the jury, there was fatal error; while the case of Benton v. The State, 30 Ark. 328, to the same effect, is on all-fours with the ease at bar. There the record is silent as to any request of defendant, and simply discloses that as a fact the jury went alone in the charge of the officer. There also a juror, and not an outside party, was appointed to show the premises. In these respects the cases are parallel. More than that, the Arkansas constitution and statute are like ours. So that the case is squarely in point. Notwithstanding, we cannot concur with these authorities, and are of opinion that the action of the court was authorized by the statute, and without error. ~eo. 316, above quoted, plainly authorizes ust what was done. They were conducted in a body undercharge of an officer. So the statute reads. One of their number was appointed by the court to show them the place. So runs the language of the section. Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems to imply that only the jury and officer in charge are to be present. The trial is not temporarily transferred from the court-house to the place of view. They are "to be conducted in a body" "while thus absent." This means that the place of trial is unchanged, and that the jury, and the jury only, are temporarily removed therefrom. Just as when the case is finally submitted to the jury, and they "retire for deliberation,'~ there is simply a temporary removal of the jury. The place of trial is unchanged. And whether the jury retire to the next room, or are taken to a building many blocks away, the effect is the same. In contemplation of law the place of trial is not changed. The judge, the clerk, the officers, the records, the parties, and all that go to make up the organization of the court, remain in the court-room. The jury retire to discharge one duty connected with the trial, and yet~ though absent while discharging that. duty, inasmuch as it is done under the direction of the court, and while in charge of an officer appointed by the court, they are in legal contemplation in the presence of the court. Though the defendant may not go with them into their place of retirement, he is nevertheless personally present during that portion as well as the rest of the trial. Sec. 207 is of no higher au thority than section 316. The defendant must be personally present, says the one; the jury may retire to view the place, says the other. Section 207 does not imply that the defendant must be with the jury, and keep in their presence all the time, but rather that he must remain with the court, and keep in its presence. The court is the fixed and permanent thing; the jury only temporary, and serving but a partial purpose in the trial. And the defendant must be in the presence of the court, to be personally present during the trial. So that as between the two sections of the statute there is really no conflict; and in exercising the discretion conferred by the one, the court in no manner violated the other.
So far as the provision in the bill of rights is concerned, there are two questions. 1st:. Is it anything more than the grant of certain privileges, which an accused may • o i i . i , , ,. waive c 3,ud where the record shows no applica- # L L tion for the benefit of such privileges, and no refusal of the court to grant them, and no objection to any action of the court thereon, is there any error? And 2d: Does the sending of a jury to view the place of the alleged crime, in the absence of the defendant, trespass on any of its guaranties? First: The language is permissive. “The accused shall be allowed;” that is, he may have if he wishes. If he does not wish, he may forego. If he does not wish them, he cannot complain that they were not forced upon him. Generally that which is a mere personal privilege, which is not essential to jurisdiction, which is not absolutely and peremptorily required by statute or public policy, may be waived. In the case of The State v. Polson, 29 Iowa, 133, the defendant' consented that a copy of the testimony given in a former trial might be read as evidence instead of an oral examination of witnesses, and he was held concluded by such consent. His right to meet the witnesses face to face, he had waived. So while he is entitled to have counsel,' he is not compelled to have them. He has a right to a subpena for his witnesses, but he is not obliged to have one issued. And the record need not show that these privileges or rights were formally tendered to him and formally declined, or that an express waiver was signed. It is enough if it does not appear that they were denied when he applied for them. So there are many other matters which his failure to object to at the time prevents his afterward complaining of. If a leading question be asked, he must object at the time, or the error is waived. If an instrument, not properly authenticated, or a deposition, be offered in evidence, and he remains silent, he cannot thereafter complain. If to avoid a continuance he consents that an affidavit be read as the testimony of an absent witness, he is estopped to say that he did not meet the witness face to face. Documentary evidence brought from a distant state is competent testimony, notwithstanding said section 10. (People v. Jones, 24 Mich. 215.) Contrast the language of said section 10 with that in section 207, above quoted. He “shall be allowed.” “No person can be tried.” The one expresses a privilege to the defendant, the other a condition of valid trial. Further, the origin of these provisions in the bill of rights indicates the extent to which they should be carried. It is well known that at the old common law the defendant was allowed no counsel. The judge was supposed to look after his rights. He was not allowed any witnesses in his own behalf. It was considered derogatory to the crown to contradict or impeach its witnesses. To obviate this injustice, and secure to the accused the right of a full defense, was the purpose of these provisions. That purpose is accomplished when he has the undeniable right to employ counsel and summon witnesses. We are of opinion therefore, that the fact that the jury were sent in a body under charge of an officer to view the place of the crime, unaccompanied by the defendant, is not necessarily an error fatal to the trial, and that where the record discloses no objection thereto by the defendant, and no application for permission to accompany them, and no error alleged on account thereof in the motion for a new trial, it is too late to insist in this court that the judgment must be reversed there for. It is unnecessary therefore to consider the second branch of the question as to whether it would be error if challenged by the defendant at the time.
VI. Again, while the jury were in retirement, consulting as to their verdict, one of their number being wanted as a witness in a case, the district court sent the sheriff to the jury-room, had the juror brought into court, examined as a witness, and then returned to the . t ' jury-room. In this we see nothing which could by any means work injury to the substantial rights of the defendant. The juror was all the while in the charge of an officer, or in the immediate presence of the court. There was no opportunity for tampering with him, ascertaining the state of the deliberations of the jury, or any other possible mischief. The propriety of such a separation depends upon the urgency of the need for such juror’s testimony, and must rest largely with the discretion of the court.
VII. The instructions are challenged in three or four respects. It is said that the court used the word .“satisfy,” with reference to the conviction produced by the testimony upon the minds of the jurors, without coupling with it the phrase “beyond a reasonable doubt,” and thereby con- ^ J veye(i the idea that a mere preponderance of tesmony was sufficient. But “ to be satisfied, of the truth of a fact or proposition, in law, is to have every reasonable doubt of its truth removed from the mind.” Field v. Kinnear, 5 Kas. 237; 1 Greenleaf Ev., § 2. And besides, where the court was speaking directly of the conviction to be reached by the jury, it distinctly charged that they must be satisfied beyond a reasonable doubt. Taking the charge as a whole, the jury could not have been misled.
VIII. In reference to the testimony of the accomplice, the jury were advised that it was unsafe to give it entire effect “ur>less he is so far corroborated as that the corroborating testimony shall render his statements credible,” and that the corroboration “ need not be as to everything to which he has testified, but if he be so far corroborated that the jury are convinced that he has told the truth.” We see no error in this. If the jury were convinced by the corroborating testimony that the accomplice had testified to the truth, they were justified in giving credence to his testimony. His unaided testimony is legally sufficient to sustain a verdict; 1 Wharton Am. Cr. Law, 7th ed., § 785, and cases cited in note; State v. Hyer, Sup. Ct. New Jersey, 5 Reporter, 505. But it is always proper to advise a jury not to convict upon it alone, and for reasons which in the charge in this case the court well and clearly stated to the jury.- And when the reasons are so clearly given, and the advice repeated once and again, we see no grounds of error in'that the court did not in terms say that the'corroboration should be as to some material fact.
The defendant asked an instruction in reference to circumstantial testimony, based on the decision of this court in Horne «• The State> 1 Kas- 42- Ií; was PTOPerly refused, first, because this case contained positive as well, as circumstantial testimony, and the instruction seemed to imply that the case rested solely on the latter; and secondly, the court had already sufficiently stated the rule as to such testimony when it charged, that the “circumstances must be such that wholly satisfy the minds of the jurors that the fact not only may have existed, but -necessarily must have existed from the facts proven.” A distinction between the two is not easily perceptible.
IX. A final objection is, that the verdict does not specify the degree of crime of which the defendant is found guilty. The crime charged was burglary. There are three degrees of burglary. The verdict found the defendant ° , . __ . . . . guuty as charged. Hence error is claimed, on tJje authority of The State v. Beddiclc, 7 Kas. 143, anj the The State v. Huber, 8 Kas. 447. The. authorities are not in point. The facts stated in the information constituted burglary in the second degree, entering a store in. the nighttime. Under that information the defendant could not have been convicted of any other degree of burglary. Burglary iu the day-time is not included in burglary in the night-time. The State v. Behee, 17 Kas. 402. But section 239 of the code of criminal procedure, (Gen. Stat., p. 859,) upon which the decisions above cited were based, reads: “Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.” But under the information before us, there could be no conviction of burglary in any degree other than the second. Different degrees were not included in the charge. Hence the section does not apply, and the verdict could have reference to only the one offense charged.
Upon the whole record then we see no error of which defendant can justly complain, and the judgment must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
After the appellant, A. J. Snyder, was discharged by this court in the case of In re Snyder, reported in 17 Kas. 542, he was rearrested for having obtained by false pretenses, on November 28th 1876, the signature of the firm of Messrs. Hood & Kincaids to a check of $850, and having also obtained by like pretenses the possession of the check after it had been certified. Under the information subsequently filed against him, he was convicted on one of the counts, and his punishment assessed at three years’ confinement at hard labor in the penitentiary. He has assigned a number of errors committed by the district court on his trial, only one of which it is necessary for us to notice in this opinion. This relates to the presence of the bailiff of the jury in their room during their deliberations. The facts are, that one H. H. McGlothlin was a material witness for the state, and testified .on the trial that he had a conversation with Snyder, at the depot at Kansas City; Mo., about December 1876, concerning the $3,850 obtained by Snyder, and that Snyder, in talking about the matter, stated that D. A. Painter & Son owed him $3,900 and this was one way, or the only way, he had to get even with them. After the jury had been charged by the court, this witness was appointed the bailiff of the jury.
It appeared from the affidavits filed on the part of the appellant, on his motion for a new trial before the district court, that the jury retired for deliberation a little after twelve o’clock on the morning of the 1st of August 1877, and were out several hours before they agreed upon a verdiet; that said McGlothlin remained in the room with the jury during their deliberations and their discussion of the case the greater portion of the time they were absent from the court-room, and was actually present with them while they were considering what their verdict should be. No counter-affidavits were filed, and all the statements contained in these affidavits we may assume to be true. We suppose it must be conceded, that the continued presence of the officer in the jury-room during their deliberations was an irregularity; and the question is presented, whether such conduct will render the verdict void, and require it set aside, in the absence of all explanation of the reasons of the officer with the jury, and in the absence of all showing whether the accused was prejudiced. It was held in The State v. Mulkins, 18 Kas. 16, that where the court allows the jury to separate, and fails to admonish them as required by law, it will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced during said separation, because of such failure, and the burden of proving that the rights of the defendant were not so prejudiced rests upon the prosecution. In Madden v. The State, 1 Kas. 340, it was said: “It is of the utmost importance that triers, who pass upon the lives and liberties of men, should so act that no possible suspicion can attach to them of having been in a position where improper influences, prejudicial to the accused, or in his favor, may have operated on their minds. Where the opportunity for such influences is afforded, if the verdict is against the accused, he is Entitled to the presumption that the irregularity has been prejudicial to him, and it is incumbent on the state to show that no such injury could have occurred by reason of the irregularity.”
In view of the law thus stated, and the provision of the criminal code, that the court shall grant a new trial “when the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors,” if the irregularity of the officer could have affected the rights of the prisoner injuriously, we are required to undo what was. improperly done. Can we say it is no harm for a bailiff, who has been produced on the part of the state -in a criminal action to testify to material facts against an accused, to be with the jury in their deliberations? This certainly would be a very unsafe rule, if answered in the affirmative. If the bailiff in this very case had been the prosecuting witness, John Hood, and he had acted as McGlothlin did, no argument would be needed to show the gross impropriety of sanctioning such proceedings; and the fact that the bailiff only testified to a few material matters instead of many, as Hood did, lessens, perhaps, the probabilities of improper influences being used toward the jury, but does not convince us that his presence might not have been prejudicial. The actual presence of the bailiff was not only unfair to free and private deliberation by the jury, but was a constant menace to the jurors who might have wished to question the facts testified to by the witness. Would not his presence have been likely to have deterred discussion upon his own evidence, and thereby prevented a fair expression of opinion on the part of the jurors? The very fact that this witness gave evidence against the prisoner at the instance of the prosecution, might have induced the belief, in the minds of some of the jurors, that he believed the defendant guilty, aud was favorable to his conviction; and with this idea some of them might have hesitated to express themselves as freely in his presence as if allowed to consult and converse in his absence. The officer’s presence, to use the mildest language, under the circumstances, was a restraint upon the deliberations of the jury, entirely at variance with the seclusion and privacy which the wise provisions of the law attempt and intend to secure to its members, when they have retired to agree upon a verdict. Such restraint should not be imposed upon jurors. In this case there seems to be no excuse therefor, and no good reason given why it took place. We cannot be too strict in guarding trials by jury from improper influences, and in compelling a rigid and vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials. The verdict, when returned into court, must command entire confidence. It must be secure from all improper bias, and even from the suspicion of improper bias.
Note. — Pursuant to the order of the,, court, stated in the foregoing opinion, Snyder was returned to the custody of the sheriff of Linn county; and afterward, on the 17th of July 1878, the county attorney entered a nolle prosequi to the information, and Snyder was discharged.
We are clearly of opinion that the law does not sanction a verdict surrounded with the opportunities for improper influences as this was, and that the district court erred in refusing to grant a new trial. It is therefore ordered that the verdict of the jury and the sentence and judgment of the court be annulled and avoided, and that the case be remanded for a new trial. It is further directed that the appellant be returned from the state penitentiary, and delivered over to the jailer of Linn county, there to abide the order of the district court of said county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question at issue is, whether the assignment of Joseph McComb and E. F. Duncan, of the firm of “McComb & Duncan,” to the defendant in error, in trust for the creditors of the said firm, is valid. If valid, the judgment of the court below must be affirmed; if void, the judgment must be reversed. The first and leading objection to the assignment is, that the special clauses in the instrument, to the effect that the assignee shall take possession of the property transferred to him, sell and dispose of the same with all reasonable diligence, either at public or private sale, for the best prices that can be obtained therefor, and to convert the same into money, “unless the indebtedness of the said Joseph Me Comb and E. F. Duncan, partners as aforesaid, can be paid or settled otherwise by amicable arrangements between creditors of the said McOomb & Duncan,” etc., * * * “and out of the proceeds of such sale, if any be made,” etc., render the assignment void. The difficulty in the case arises from the doubts of the purpose of the insertion of these special provisions, and their proper interpretation. But an examination of all the instrument, and the facts developed upon the trial, aliunde the instrument, that the total indebtedness of the firm at the date of the assignment was only $596.41, and the amount and value of the assets of the firm was $614.18, lead us to the conclusion that there was an intention in executing the deed to hinder and delay the creditors; that this intent was actually entertained by the debtors, and not only that there was such actual intent, but that such intent was a fraudulent one. It appears to us, that it was anticipated by the making of the assignment, that the creditors would be forced into some compromise or settlement of their claims, and that when the assignment had accomplished its purpose of releasing the firm from the immediate payment of their debts, or had resulted in having the creditors take the property and effects in satisfaction of their claims by “amicable arrangement” between themselves, it was expected the mission of the deed would be accomplished. In such an event, there was to be no sale, and indeed nothing further for the assignee to do. The assignment was to have effect if no “amicable arrangements” between the creditors could be made; if such arrangements were made, then there was to be an immediate end of the assignment. The laws of the state in relation to assignments were to be disregarded, and the estate closed up by the creditors, either with the assignors, or assignee, regardless of the express provisions of the statutes. It was a plan to tie up the property to induce a settlement with creditors. A power to assignees to compound with all or any of the creditors, in such manner and upon such terms as they should deem proper, was regarded in a leading case in New York as peculiarly objectionable, and one that it was impossible to sustain. Wakeman v. Grover, 4 Paige, 247, same case on appeal, as Grover v. Wakeman, 11 Wend. 187. In Illinois, a clause in a general assignment, authorizing the trustee to compound with the creditors, renders it void. Hudson v. Maze, 4 Ill. 578. If it was intended in any way by these special provisions in the deed of assignment, to reserve to the assignors any power or control over the property assigned by it, in the event of an amicable arrangement among the creditors, their effect is equally fatal. Powers of this kind “poison it throughout.” Counsel for-the defendant in error, fearing the construction which may be given to these special clauses, attempts to parry any injury to the deed of assignment with the argument that our statute prescribes the duty of the assignee, who becomes and is an officer of the court, and must cany out the assignment as required by the statute without regard to the provisions of the instrument; and in substance, when an assignment is once made, however fraudulent or void upon its face, it is cured by the operation of the assignment laws. Not so. The court has no right to make a new deed of assignment, any more than a new contract between parties. The fact that the assignment may be construed in opposition to the requirements of the general assignment laws, is an additional argument of its invalidity. If an assignment is made for the benefit of creditors, and thereby an insolvent’s property is unconditionally and unreservedly transferred to an assignee, with a general authority to the latter, to receive, hold and dispose of it, for the equal benefit of all the creditors, the statutes of the state provide and regulate the assignee’s conduct, etc. But when an assignment is void, owing to its fraudulent conditions, or from a purpose of hindering, delaying, and defrauding creditors, the law gives it no aid or assistance; and when properly attacked by a creditor, it has no power or force, either within itself, or from the authority of the assignment act.
These views render it unnecessary to consider the other objections made to the assignment.
The judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine,!.:
This was an action brought by School District No. 70, of Greenwood county, to recover a judgment for $603 against School District No. 49, of the same county.
It appears from the record that on 13th June 1874, School District No. 70 was created out of territory belonging at that time to School District No. 49; .that District No. 49 was allowed to retain all the property belonging to the old district, and in consideration therefor was adjudged and ordered to pay to District No. 70 the sum of $603. This sum was never paid, and on 4th March 1876 this action was commenced therefor. Judgment was rendered in favor of the plaintiff below, and the defendant below now brings the case to this court, and claims that the judgment of the court below should be reversed for the following reasons:
“First: Because the plaintiff’s petition is fatally defective in not stating that the defendant below was duly notified, or had knowledge of the division of the property of the district, and of the amount it was required to pay to the plaintiff below.
“Second: Because the evidence utterly fails to show that the defendant below had any knowledge that the property of the district had been divided, or that it was owing the plaintiff any sum whatever.
“Third: Because the plaintiff below cannot maintain an action for a recovery of a judgment for the claim sued on.”
I. The first question was raised in the court below by a general demurrer to the plaintiff’s petition. This demurrer was overruled, and the defendant then filed an answer denying generally all the allegations of the plaintiff’s petition. This answer was not verified by affidavit. The evidence did but little if anything more than to sustain the allegations of the petition. Hence the sufficiency of the petition still remains a question in the case.
We do not think that the petition is fatally defective for the reasons given by the plaintiff in error.- It sufficiently alleges among other things, that on 13th June 1874 said District No. 70 was duly created and “organized out of said defendant’s territory;” that it then became and has since been “a body corporate, duly authorized under the laws of Kansas;” that the defendant kept the property of the old district, and the county superintendent of public instruction awarded to the plaintiff said $603 as aforesaid; “that said defendant has refused to pay the said sum of $603 to the said plaintiff, although often requested to do so, and that the same remains due and unpaid.” Now as this suit was not commenced until nearly two years after the creation and organization of School District No. 70, and as School District No. 49 had often been “requested” to pay said $603, and had “refused” to do so, it would not seeta probable that School District No. 49 remained all that time wholly ignorant of all these things. But what kind of a notice should School District 49 have had? The only notices required (in June 1874,) to be given by any person, or to any person, in any matter connected with the formation of a new school district, were notices merely to the people of such new district, and these were mere notices of the boundaries and number of such new district and of the time and place for holding the first district meeting. (Laws of 1872, page 372, §1.) And the law then in force provided, that the new district should “be deemed duly organized” when the officers constituting the district board should be elected. (Gen. Stat. 920, §22.) According to the petition, District No. 70 was duly organized; and therefore said notices were duly given. But suppose that they were not given: has District No. 49 any right to complain? We would think not.
II. The evidence fully sustained the petition; and it was. shown by the evidence that the treasurer of School District No. 70 actually made a demand of School District No. 49 for said $603. Besides, as we have before stated, the answer denying the allegations of the plaintiff’s petition was not verified by affidavit.
III. Can this action be maintained? The plaintiff in error says that it cannot, because nothing is gained by the judgment rendered therein. The reason given by the plaintiff in error is not sufficient, for something is gained by the judgment. If the final judgment in the action should be for the defendant, it would end all controversy between the two districts with reference to said $603. If it should be for the plaintiff however, then, while the judgment could not be enforced by execution, yet it would conclusively and finally settle the question that the defendant owed the plaintiff said $603. The plaintiff might still have to resort to its remedy of mandamus to compel the officers of district No. 49 to levy the proper tax to pay said judgment. But in the prosecution of such remedy the judgment rendered in this case would be conclusive evidence that district 49 owed said amount. Without such judgment the officers sued in mandamus might set up the defense that their district did not owe any such amount. But with such judgment they could not make any such defense available. It will therefore be seen that such an action as this may accomplish something, whether the judgment be rendered for or against the plaintiff. The only question in a case like this may be, whether one district owes the other anything; and if so, then it will certainly not be claimed that mandamus is a more proper remedy. The officers of the delinquent district might be very desirous to do their duty, but not believing that their district owed anything, might for that reason alone refuse to levy the tax. In such a case it would certainly be better to sue the district in an ordinary action, than to resort to the extraordinary remedy of mandamus against the‘ officers who were really acting in good faith. If it were admitted that the one district owed the other the amount claimed, and if the officers of the delinquent district were merely acting willfully in refusing to levy a tax to pay such indebtedness, then of course mandamus would be the more proper remedy, and perhaps the only remedy. In such a case the plaintiff district would really gain nothing by a mere judgment ascertaining and determining the amount due. But such a case is not this case. In this case the defendant'district disputed everything. It filed a general denial to the plaintiff’s petition, and admitted nothing.
It is possible that the plaintiff’s petition was defective in not stating that there was a dispute as to whether 'the defendant owed the plaintiff anything; but if such defect existed then the defendant amply supplied such defect by showing in its answer that everything was disputed. If the defendant had filed an answer admitting that it owed the plaintiff $603, as alleged in the plaintiff’s petition, and alleging that such indebtedness had never been disputed, but that it was willfulness on the part of the officers of the district that had caused the delay in levying the tax, and if it had then been shown that this answer was true, it is possible that the plaintiff’s action should have been abated, as a useless proceeding. But upon this question we express no opinion. We think however that the action, as in fact prosecuted and defended, was properly sustained by the court below.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On 12th January 1872, the defendants in error, plaintiffs below, commenced this action against the county clerk and treasurer of Lyon county, to perpetually enjoin the collection of certain taxes levied by the city of Emporia. At the time this action was commenced, and up to 15th August 1872, these taxes were illegal and void, and might properly have been enjoined; but on said August 15th, the city of Emporia relevied said taxes, and thereby made them legal and valid. On February 25th 1873, the plaintiffs below amended their petition, making the city of Emporia also a party defendant. All the defendants answered, and the plaintiffs replied. In November 1873 the case was tried, and judgment as prayed for was rendered in favor of the plaintiffs. This judgment was afterward reversed by the supreme court. (City of Emporia v. Bates, 16 Kas. 495, 498.) Afterward, and in November 1876, the case came on again for hearing in the district court. At this time judgment was rendered in favor of the defendants, except as to costs accruing prior to 15th August 1872; and with reference to these costs the court below made the following order, to-wit:
“That so much of the costs in this case as had accrued previous to said relevy of taxes on 15th August 1872, and amounting to $13.80, be taxed against said defendant, the city of Emporia; and hereof let execution issue.”
The city of Emporia not desiring to pay this amount of costs, appealed to this court. These costs were taxable and taxed under section 591 of the code of civil procedure. This section reads as follows:
“In other actions, [than for the recovery of money only, or for the recovery of specific real or personal property,] the court may award and tax costs, and apportion the same between the parties, on the same or adverse sides, as in its discretion it may think right and equitable.” (Gen. Stat. 747, sec. 591.)
None of the evidence introduced in the court below has been brought to this court. It will be seen from the fore going section that the taxing of costs in a case of this kind is in the discretion of the trial court; and we cannot say from the foregoing facts, and the record brought to this court, that the court below abused its discretion.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The main questions involved in this case are — First, Did Eliza Richardson, a member of the Ottawa tribe of Indians, who if she had lived till the 1st of December 1865 would have been entitled to a patent from the United States for the land in controversy, have, at the time of her death, in the fall of 1862, an inheritable estate in such land? Second, Do the restrictions upon alienation contained in the seventh article of the Ottawa treaty of 1862, apply to the heirs of said Eliza Richardson, if she had such an inheritable interest ? Eliza Richardson was included in that class, who, under the denomination of “all other members of the tribe,” was to receive eighty acres of land each, under article 3 of said treaty. This article is as follows:
“It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen, and headmen of the tribe, for their services to them many years without pay, it is hereby stipulated that five sections of land are reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and headmen, as the members of the tribes shall in full council determine; and it shall be the duty .of the Secretary of the Interior to issue patents in fee simple of said lands, wben located and apportioned, to said' Indians. In addition thereto, said last-named persons, and each and every head of a family in said tribe, shall receive 160 acres of land, which shall include his or her house, and all improvements, so far as practicable; and all other members of the tribe shall receive eighty acres of land each; and all the locations for the heads of families, made in accordance with this treaty, shall be made adjoining, and in as regular and compact form as possible, and with due regard to the rights of each individual and of the whole tribe.”
The treaty was proclaimed 28th July 1863. Eliza Richardson died in the fall of 1862. The patent was issued to-her heirs on the 1st of December 1865, for the eighty acres in suit. Within the authorities the absolute right to eighty acres of land in the reserve passed immediately to Eliza Richardson upon the ratification of the treaty, and the title to the specific eighty acres in controversy, when selected and approved in the manner provided in the treaty, became absolute and perfect in her heirs, upon her decease. Doe v. Wilson, 28 How. 457; Forsyth v. Ballance, 6 McLean, 562. The case of the reserve, in Doe v. Wilson, supra, is so similar to the case of Eliza Richardson, that it is unnecessary to recite the reasons and arguments upon which this conclusion is based.
In regard to the question, whether the restrictions on alienation apply to the heirs, it is necessary to refer to the article in which they are contained. This article (7) is as follows:
“* * * And all the above-mentioned selections of lands shall be made by the agent of the tribe, under the direction of the Secretary of the Interior. And plats and records of all the selections and locations shall be'made, and upon their, completion and approval proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or her in any manner, until they shall, by the terms of this treaty, become a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void. And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title; provided, that such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of their lands as are subject to sale, with the consent of the Secretary of the Interior, at any time.”
The letter of this article limits these restrictions to the individual members of the tribe entitled under the treaty to the lands selected and allotted to them, and to whom patents are issued, or to be issued. The reservation, as to the conveyance, is personal, from the language used, and was not intended to bind the heirs of allottees. While by the terms of the treaty, the lands reserved in article 3 are inalienable in the hands of the original patentee, except as otherwise provided, on the death of such patentee they descend under the laws of the state to the heirs, and in their hands there are no restrictions on the conveyance of the lands- so inherited, and they can be disposed of in the same manner and under like circumstances as the lands of other owners may be conveyed. Farrington v. Wilson, 29 Wis. 383. In this light, the plaintiff has no title, and no right of possession to the premises, as the restrictions did not apply to the heirs of Eliza Richardson. Plaintiff seems to concede that if the patent had been issued to Eliza Richardson in her lifetime, the restrictions would have died with her, but claims this rule has no application in this case, because, he assumes, that Eleanor Richardson received the title to the land direct from the United States by a patent. The patent was not issued to Eleanor Richardson, but to “ the heirs of Eliza Richardson,” and said Eleanor Richardson obtained her interest, not as an allottee, nor as the patentee, but by virtue of the laws of the state of Kansas, which authorized her, as an heir of Eliza Richardson, to inherit the estate of her sister. If Eliza had lived, the lands would have been allotted and patented to her. After her death, they were patented to her heirs, without naming them; and the law of the state determined who these were. Eleanor simply inherited the lands granted to Eliza during her life; and the patent is- evidence of the partition of the lands, and the division made in pursuance of the treaty. The death of Eliza Richardson did not change the terms and conditions of the treaty, nor annul the grant to her; but as the patent could not issue to a dead person, it was necessarily issued to the heirs of Eliza; but such heirs were not controlled by the restrictions applicable to the allottees and patentees. If the patent had issued to Eliza in -her lifetime, her death would have abrogated the restrictions on the alienation of the land; and having issued after her decease, it placed the heirs in the same condition, as to their rights in the property, as if issued before. These restrictions should have been omitted from the patent-, as they could not apply to the heirs of the allottee; and being unauthorized and unwarranted, they were void, and constitute no restraint on the conveyance of the premises. The issuance of the patent is a ministerial act; and a clause inserted therein not authorized by law, is void.
As affecting the proceedings on the trial, it is alleged as error, that the court admitted, as evidence, a certified copy of the deed of the premises from Eleanor Richardson to ¥m. Hurr, of date 19th March 1866, from the register of deeds of Franklin county. This deed was-recorded 8th May 1868. As the plaintiff admitted in court that the original deed was not within the control of the defendants, the court committed no error. Sec. 28, ch. 22, Gen. Stat., makes duly-authenticated copies of such instruments competent evidence. The word “now,” contained in the first line of said section, refers to the time fixed for the taking effect of the act regulating conveyances of real estate. This was October 31st 1868. The deed offered and received in evidence was copied in the books in the office of the register of -deeds of Franklin county prior to that date. The objection to it was properly overruled.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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