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Per Curiam
The same questions are involved in this case as in the case of S. M. Kelsey, W. C. Roberson, and John Bayha, partners as Kelsey, Roberson & Co., v. Thomas Harrison, just decided; and the decision in that case will control in this. We might, however, state in this case, as it was not specifically stated in that, that the chattel mortgage executed by Thomas Harrison to 'Edgar Hull was executed’ to secure the sum of $535.50, while the property mortgaged was of the value of about $3,500. It would- seem that this amount of property would be more than sufficient to secure that amount of debt; .but still we do not think that this great difference between the value of the mortgaged property and the amount of the debt secured will invalidate the mortgage. While it may be some slight evidence of fraud, yet it of itself will not prove fraud where the other circumstances of the case would tend to show good faith. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by plaintiffs in the district court of Atchison county, under § 1, ch. 113, Oomp. Laws 1879, to recover of defendants treble damages, for cutting and carrying away timber from certain real estate belonging to plaintiffs. Verdict and judgment were in favor of plaintiffs, and defendants allege error. The case, as to many of its facts, is peculiar. Its exact parallel we have not been able to find in the books; and its like will probably never arise again. Yet the principles which underlie its decision are, we think, neither novel nor difficult. The facts are these: The plaintiffs were the owners of a certain twenty- acre tract of land. Their title was absolute and perfect. This title they had held since 1866, taking it then, by inheritance, from one William L. Davis, who held it by regular chain of title from the government. All taxes levied thereon had been duly and seasonably paid. The land was vacant and unoccupied. In the winter of 1879 and 1880, defendants entered upon one portion of it, cut and removed the timber. The only possession of defendants was their occupation for the purpose of cutting and removing timber. The land was rocky, and covered with some young timber. It appears from the testimony, that the plaintiffs had been getting their fire-wood from this tract, and had at one time, years ago, cut some trees upon the particular portion of the tract upon which the trespass is alleged. It is also true, that after 1871 the defendants made a claim of title to this last-men.tioned portion of the tract, and warned parties off from it. But except in these trifling matters, and the occupation for the purpose of cutting and removing the timber in controversy, there was no actual possession by either party. Of course, the constructive possession followed the legal title, and was in plaintiffs. Now the first proposition of counsel for defendants is, that no action can be maintained under this statute for trespass upon property not in actual possession of the plaintiffs. But the converse of this proposition has already been decided in this court, (Fitzpatrick v. Gebhart, 7 Kas. 35,) in which it is expressly decided, that under such statute the owner of real estate may recover the damages therein provided for, whether he be in possession of the real estate or not. These cases also tend to sustain the same doctrine, although perhaps not positively deciding it: Wright v. Brown, 5 Kas. 600; The State v. Herald, 9 Kas. 194; The State v. Armell, 8 Kas. 288; Railway Co. v. Arnold, 10 Kas. 473. See also Vandusen v. Young, 29 N. Y. 9; Edwards v. Noyes, 65 N. Y. 125; Marr v. Boothby, 19 Me. 150; Griffin v. Creppin, 60 Me. 270.
As heretofore stated, the defendants made a claim of title to the real estate; and the next question is, whether such title was of any validity, and if invalid, whether it was colorable, and such as would defeat plaintiffs’ remedy under the statute. This is probably the important, as well as the most difficult question in the case. The land as claimed by plaintiffs was described as the west half of the northwest quarter of southeast quarter of section 20, township 6, range 21. By that description it had been conveyed; by that entered on the tax rolls, and the taxes thereon duly levied and paid. On the other hand, it appears that this tract was within the limits of the town site of Sumner, as prescribed by ch. 106, Private Laws 1859. Also, that in 1858 a lithograph map of the town of Sumner was prepared and generally circulated, upon which that portion of plaintiffs’ lands upon which the trespass was committed was platted into streets and 'blocks, and described as blocks 61, 62, 63, and 64. Also, that a map or plat of Sumner City, with the same showing of blocks, was made and recorded by the county surveyor in the plat book of the register of deeds office, on December 31,1859. Also, that upon the tax books' of Atchison there was entered for taxation for the years 1866, 1867,1868,1869 and 1870, said blocks 61, 62, 63, and 64, and that the taxes were duly levied thereon, the property sold, and deeded to one of the defendants. This was the basis of their claim of title. On the other hand, it appeared that in pursuance.of eh. 24, Laws of 1859, the Sumner Town Company did, on April 15,1859, file a map or plat of said city, duly acknowledged as required bylaw. Upon this map or plat, the • property in question does not appear subdivided into blocks, nor do any such blocks as 61, 62, 63, and 64, appear thereon. One thing further should be stated, and that is that this lithograph map had been generally circulated through the country during the years 1858 and 1859, and this with the knowledge of I. B. Norris, then owner of the 20 acres. The testimony offered by defendants was all rejected; the court holding that it was insufficient to show that this property had ever been platted into blocks, as a part of Sumner City, and that the tax deed based upon such subdivision, into blocks, was an absolute nullity. This, as we have said, is the important-question in the case. We think the ruling of the district court was correct. In the first place, all the taxes legally chargeable upon this land had been paid by the owners; hence, by the statute, no sale or conveyance was “of any validity.” (Comp. Laws 1879, ch. 107, §140.) In the second place, the public authorities cannot, by merely changing the description, tax a piece of real^estate twice.- Thirdly, except as limited and qualified by express statutory provisions, the rule of caveat emptor applies to all purchases at tax sales, and if the public has nothing to sell, the purchaser gets nothing. (Lyon County v. Goddard, 22 Kas. 389; Hart v. Henderson, 17 Mich. 218; Lynde v. Melrose, 10 Allen, 49; Packard v. New Limerick, 34 Me. 266; Cooley on Taxation, pp. 375 and 472.) So, also,-the risk of all mistakes is with the tax purchaser. Fourthly, where property has once been entered upon the tax r0^s by a certain legal and proper description, the owner may iii subsequent years pay upon the same description, unless by some legal proceedings the description has been changed. Now the testimony shows that this property was entered for taxation from at least the year 1864 by the description of “the west half,” etc. The first time that the testimony shows any attempt to list it by blocks, was in 1866; so that the owners, finding it entered for taxation by a proper description, and so continued from year to year, were safe in paying taxes according to that description, unless in some legal way that description was changed. If thereafter, through some mistake of the taxing °fficers> bhe same property is entered a second ^ime on the tax rolls by another and incorrect description, and under such description sold, the tax purchaser absolutely gets nothing as against the real owner of the land— no title to it, no right of possession, no right to be reimbursed by such owner the amount of taxes paid by him, no defense to any action for trespass upon the property. His only recourse is that given by statute against the county, at least as to everything except the value of permanent improvements. As to them, it is unnecessary in this case to determine the scope and effect of the occupying-claimant statute. As to all other matters the owner is entitled to full protection, to recover the possession if it has been taken from him, and to recover all common-law and statutory damages for injuries to the property. Neither was there anything to show any legal change in the proper description of the land, any legal platting of it into blocks. The mere fact that the legislature had -included it within the territorial limits of the city did not operate to change its legal description, subdivide it •it into lots and blocks, or authorize any one but the legal owner to subdivide and plat it. A county surveyor had no authority to act for the owner and subdivide or plat it. The legislature provided a method for its subdivision and platting. That was the only method, and no other proceedings, unless such as to work an _estoppel upon the owner, were sufficient to accomplish a subdivision and platting, or a change in the legal description. The mere fact that parties were circulating a lithograph map worked no es- . ° ° 1 x ... toppel on the owner, lie took no part in the circulation, did not authorize it to be lithographed, sold no property according to its description, made no representations to any one that it was correct; and the mere fact that he knew of its circulation, a circulation without his authority or consent, does not estop him or his grantees from insisting upon the very truth. Hence we conclude that the ruling of the district court was correct, and that there was nothing in all these tax proceedings and tax titles to interfere with the plaintiffs’ right of recovery. This decision may be a hardship on the defendants, but if they invest in tax titles they must take all the risks, and except so far as the statute furnishes a remedy for failure of title, or mistakes of officers, they are absolutely remediless. The owner discharging his full duty to the public by the payment of all taxes, is entitled to the amplest protection.
Thirdly, the defendants raise the question of the statute of limitations. The petition was filed January 15, 1881. The testimony showed that the timber was cut in December, 1879, and carried away in January, 1880. The exact time in either month of 'the cutting or removal is not affirmatively and distinctly shown by tbe testimony or found by the jury. Now, the defendants contend that this action, being for a penalty, was barred within one year, under subdivision 4 of §18 of the code of civil procedure. Oh the contrary, the court charged that the plaintiffs could recover for any trespass committed within two years. In answer to special questions, the jury answered that the timber was cut in 1879, and hauled away in 1880. They did not specify in their answer when the hauling was finished, whether before or after January .15, 1880. We cannot assume, therefore, that the hauling was continued until after January 15, 1880. Doubtless when timber is cut and hauled away, the trespass may be considered as a continuing trespass, not completed until the timber is hauled away, and under those circumstances the statute of limitations would not commence to run until the removal of the timber was completed; but in view of the uncertainty in the testimony, the instructions .of the court, and the indefiniteness of the findings, we cannot assume, that the trespass was continued until, and completed only after, January 15, 1880. Now while under subdivision 3 of said § 18 an action for trespass upon real estate can be prosecuted at any time within two years after the trespass, yet when the treble damages given as penalty by said ch. 113 are sought to be recovered, the action must be commenced within one year. It follows therefore that the recovery can be sustained only as to the actual damages for the trespass committed, and not for the treble damages given by said chapter 113. That an action under said chapter 113 is an action for a penalty, cannot be doubted. The general rule in respect to all torts is that compensation, and compensation alone, is recoverable. Where more than actual compensation is asked, it is by virtue of some express statute, and the excess is by such statute given in the way of penalty. We think, therefore, under the instructions and the answers to special questions, only the actual and not the treble damages may be recovered.
A final matter is this: The tax deed was taken in the name of Daniel Sullivan. In' the fall of 1879 he had given the land to his co-defendant and son, John Sullivan, to clear off and fence for a homestead for himself. In pursuance of the supposed right thus obtained, John Sullivan' and his brother, the other defendant,- had entered upon the land, and cut and carried away the timber. ■ Daniel Sullivan’s connection with these acts was only that of having given the land to his son. The court, in substance, instructed a verdict against all three of the defendants, and now plaintiffs in error insist that as to Daniel Sullivan this instruction was erroneous. The exact testimony of the witnesses is not stated in the record, but only in a general way the scope and substance of the testimony. Now we think that something more must be shown than that the father had given the land to his son, before the former would be liable under the statute for the trespass of the latter. Possibly as the testimony fell from the lips of the witnesses, it may have disclosed some direct interference or assistance on the part of the father; but as the record now reads, and of course that concludes us, it states that Daniel Sullivan’s only connection with the trespass consisted in his having given the land to his son. This is an action under a statute. Treble damages- are recoverable, and before a party can be justly held liable therefor it should appear that he in some way aided and assisted in the trespass. He cannot be held responsible, because having at one time held a supposed title he has conveyed it to another party who thereafter commits the trespass. A different rule would .make it extraordinarily perilous for a party to convey a defective title, making him a quasi guarantor against subsequent wrongdoing of his grantees. The judgment, therefore, as to Daniel Sullivan will be reversed, and the case remanded for a new trial.
As to the other defendants, the judgment will be modified by reducing it to the sum of $33.33^, the amount of the actual damages sustained by the trespass. The costs of this court will be divided between the defendants in error and the plaintiffs in error, Jerry and John Sullivan.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The paramount question in this case is whether the lands described herein were subject to taxation. The facts are these: The lands were agricultural school lands. In 1876 they were sold to Haxtun and Baldwin under a time contract, one-eighth of the purchase-money being paid at the time of purchase, and the balance to be paid in seven annual payments. The first two annual payments were made, then the purchasers defaulted. Haxtun sold out his interest to Baldwin. The sale was thereafter, and in 1880, nominally canceled, the purchase bonds surrendered, a new sale made to Baldwin, new bonds issued, he being credited upon this last purchase with the amount of the principal paid by Haxtun and Baldwin. Upon this sale full payment has been made, and patents issued. The original bonds issued to Haxtun and Baldwin provided that the purchasers should pay all taxes assessed upon the lands. Taxes were duly assessed and levied upon the lands for the years 1877, 1878, 1879, and 1880. The purchasers not paying these taxes, the lands were sold for the tax of 1877, and bid in by Mrs. Baldwin, the wife of one of the purchasers, and the plaintiff in the present action. A certificate of sale was issued to her, upon which the taxes of the succeeding years were duly entered. She now seeks to recover these taxes from the county, claiming that the lands were not taxable. In the case of Oswalt v. Hallowell, 15 Kas. 154, the question was presented as to whether Agricultural College lands, held by an individual under contract of purchase, were subject to taxation, and it was held that they were. In that case the sale was made under the law of 1866. This law authorizing the sale upon time, contained no declaration of forfeiture, and in effect created, upon a time purchase between the purchaser and the state, simply the relation of equitable mortgagor and mortgagee. And we held that under those circumstances the purchaser was to be treated as the owner, the land burdened with a mortgage lien in behalf of the state; and that inasmuch as he was the equitable owner, the land could not be considered as “belonging exclusively” to the state, and was therefore not exempt from taxation. In 1871 the legislature amended the statute in relation to the sales of agricultural lands by, among other things, adding this section, (Comp. Laws 1879, p. 85, §'32:)
“Any person failing to pay the purchase-money for any of the lands purchased from the Kansas State Agricultural College, or any installment of the same, shall forfeit all right to the land from the time of such failure' of payment, and the board of regents shall proceed to eject such person from said land if in possession.”
The purchase in this case was made subsequent to this amendment. The cases of Parker v. Winsor, 5 Kas. 362, and Douglas Co. v. Rld. Co., 5 Kas. 615, are cited to show that the lands are not now taxable until after final payment. In those cases the facts were, that the general government, as the ¡owner of certain Indian reservations, had contracted to sell them under a contract, which provided that if full payment was not made there should be a total and absolute forfeiture. And a majority of this court held, that neither the legal nor the equitable title had passed away from the government, and that therefore the lands, as property of the government, were not subject to taxation. The same absolute right of forfeiture was recognized by this court in the case of The State v. Emmert, 19 Kas. 546, as given in the case of the common-school lands by a Section similar to that quoted. So that it may be considered that a failure by the purchaser to make any payment at the time it became due, ipso faeto worked a forfeiture of these lands. The question therefore comes, whether lands held by a contract of purchase from the state, where such contract provides for an absolute forfeiture in case of non-payment, are, prior to any forfeiture, subject to taxation. It may be conceded under the authority of the two cases cited that the lands still belong to the state, but do they “exclusively belong” ? For that is the language of the exemption law. The difference between those cases and this is, that in those it was a question of power; here it is simply a question of intention. By the act of admission the lands and property of the United States were not subject to taxation by this state. And as long as lands remained the property of the United States, no matter what contracts they had made in reference to them, it was properly held that they were not taxable. But as to lands belonging to the state, there is no such limitation of the state’s power to tax. It could determine absolutely when these lands which it held for a given purpose should become subject to taxation. So long as the land remained the absolute property of the Agricultural College, it was in effect the absolute property of the state. It was exempt from taxation, (Regents v. Hamilton, 28 Kas. 376,) and this because it then “exclusively belonged” to the state. But after a sale, even with the right of forfeiture, can it be said to “exclusively belong” to the state? Has not the purchaser a real and substantial interest? Something it is true which he may forfeit, but something of which the state can not deprive him, something of which he is the owner and which he can use or sell as he sees fit? Does the state’s right of forfeiture destroy all interest which the purchaser acquires by bis contract, and make the property “exclusively belonging” to the state? Take an extreme case: Suppose a time contract, every payment but the last made by the purchaser, and he with the money in his pocket ready to make that when it becomes due; although if he fails to make that payment he forfeits the land; does it not seem very like trifling with language to say that prior to such forfeiture, or any right to forfeiture, the land not only belongs but “ excl usively belongs ” to the state? It seems to us that a good deal of force must-be given to the word “ exclusively ” when used in this connection in the exemption statute, and that by its use the legislature intended to exempt only that property which belongs to the state, and belongs to it free .from any contract or interest on the part of an individual; that it intended that at the moment any property or any interest in property of the state was transferred to an individual, such an interest as the state of its own volition could not destroy or take away, that moment the property or interest transferred should become subject to taxation; and this notwithstanding any provisions which it established for the protection of its own interest in the property. In the ease of the sale of the common school lands, although the right of forfeiture exists there as here, we held that the land after the sale was subject to taxation in the hands of the purchaser. (Prescott v. Beebe, 17 Kas. 320.) It is true in that case the statute expressly provides that the land shall be subject to taxation, and therefore . that case is not absolutely decisive of this. But the legislation there considered is significant as indicative of what the legislature intended by the use of the words “exclusively belonging.” We have placed no stress upon the intention of the parties to this contract of purchase, as evidenced by the stipulation therein that the purchaser should pay all taxes levied upon the property, nor upon the fact that the purchaser of the tax-sale certicates was the wife of one of the purchasers from the college, and purchasing the certificate at his instance; for upon general principles we think that .lands sold under such contract of purchase cannot, prior to any right of forfeiture, be adjudged to be exclusively belonging to the state. The judgment of the district court will therefore be reversed, and the case remanded with instructions to grant a new-trial.
Horton, C. J., concurring. | [
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Per Curiam:
The judgment will be reversed, and the case remanded for a new trial, on the authority of The State v. Schweiter, 27 Kas. 499, sixth paragraph of syllabus. | [
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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 Michael Sword against W. Q. Wickersham, to recover the possession of ten acres of land. The case was tried by the court below without a jury, and judgment was rendered in favor of the defendant and against the plaintiff for costs. The plaintiff now brings the case to this court for review. It appears from the evidence introduced on the trial of the case, that the plaintiff originally owned the land in dispute, but that on May 9, 1873, he with his wife conveyed the same by deed, of general warranty to the Salt Springs town company, of Greenwood county, Kansas; that on November 29, 1873, the town company conveyed the land to J. B. Clogston; that on February 23, 1875, Clogston and wife conveyed the land to James F. Rawson; and that on May 17, 1877, Rawson and wife conveyed the land to the defendant W. Q,. Wickersham, who is now in possession of the premises, claiming the same as his own.
The first point made by the plaintiff is, that the Salt Springs town company never had any legal or valid existence ; and this is claimed upon the ground that the charter of such company is void upon its face; and this latter claim is made upon the ground that the charter does not sufficiently show the purpose for which the corporation was formed, and does not sufficiently show that three of the persons who signed and acknowledged the charter of incorporation were citizens of the state of Kansas. The plaintiff also claims that, even if the corporation ever had any legal or valid existence, its evistence has terminated by lapse of time, and that the property in controversy has reverted to the plaintiff. The charter of incorporation reads as follows:
“Salt Springs, April 14, 1873.
“'We, the undersigned, citizens of Greenwood county, state of Kansas, organize ourselves into a company for the purpose, of purchasing, locating and laying out a town site, and the sale and conveyance of the same in lots and subdivisions, or otherwise.
“ The corporation shall be known as the Salt Springs town company.
“The business of said company shall be transacted at the town of Salt Springs, situated on a part of sections 12 and 13, township 28, S., of range 12, east, containing twenty acres.
“ Said corporation shall exist for the period of five years.
“Said company is organized with five directors. Directors’ names for the first year: G. B. McLeran, John Gage, John Riley, M. Sword, J. B. Clogston — all of Salt Springs, Greenwood county, Kansas.
“Capital stock of company, $1,500; divided into thirty shares. D. C. Aylesworth.
M. Sword.
G. B. McLeran.
John O. Riley.
G. S. Holder.
“Personally appeared before me, a notary public in and for Greenwood county, Kansas, D. C. Aylesworth, G. B. McLeran, M. Sword, and acknowledged the foregoing corporation to be their voluntary act and deed.
[Seal.] J. B. Clogston, Notary Public.”
This charter was filed in the office of the secretary of state,, at Topeka, Kansas, on April 17, 1873; and at above stated, the plaintiff and wife conveyed the land in controversy to the Salt Springs town company, on May 9, 1873.
Sections 6, 8 and 42 of the act of 1868, relating to corporations, read as follows:
“Sec. 6. A charter must be prepared setting forth: First, the name .of the corporation; second, the purpose for which it is formed; third, the place or places where its business is to be transacted; fourth, the term for which it is to exist; fifth, the number of its directors or trustees, and the-names and residences of those who are appointed for the first year; and sixth, the amount of its capital stock, if any, and the number of the shares into which it is divided.”
“Sec. 8. The charter of an intended corporation must be subscribed by five or more persons, three of whom at least must be citizens of this state, and must be acknowledged by them before an officer duly authorized to take acknowledgments of deeds.”
“Sec. 42. Upon the dissolution Of any corporation already created by or under the laws of this state, unless a receiver is appointed by some court of competent authority, the president and directors, or managers of the affairs of the corporation, at the time of its dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its •dissolution, as far as such money and property will enable them; and for this purpose they may maintain or defend any judicial proceeding.” (Comp. Laws, 1879, pp. 217, 223.)
It will be seen from the foregoing charter that the persons signing and acknowledging the same designated themselves as “citizens of Greenwood county, state of Kansas,” and further stated that they were “all of Salt Springs, Greenwood •county, Kansas;” and they also stated the object of the corporation to be “for the purpose of .purchasing, locating and laying out a town site, and the sale and conveyance of the same in lots and subdivisions, or otherwise; ” and the plaintiff, Michael Sword, signed and acknowledged this charter, thereby admitting its truthfulness and the correctness of its statements. Therefore, the points made by the plaintiff against the charter we think are not well founded.
As before stated, this charter was filed with the secretary of state on April 17, 1873, and the plaintiff, with his wife executed a deed of conveyance for the land to the town company .on May 9, 1873, thereby admitting the legal existence of the town company, and that its organization had been fully and completely effected. There was no evidence tending to show that the town company had not been fully and completely organized'. It will also be seen that, by virtue of the provisions of §42 of the act relating to corporations, upon the dissolution of any corporation, property belonging to it does not revert to the original owner of the property, but it is either placed in the hands of a receiver, or goes into the hands of the president and directors, or managers of the affairs of the corporation, for the purpose that the affairs of the corporation may be settled and the debts paid, and the prop-' erty distributed among the stockholders of the corporation, Hence, even if the town company had not conveyed away the property in dispute to Clogston or others, still it would not revert to the plaintiff, but after paying the debts of the corporation, would go to the stockholders thereof.
We suppose that the deeds from the town corhpany to Clogston, and from Clogston to Rawson, and from Rawson to tbe defendant, are legal and valid; but it is not necessary to enter into a consideration of their validity or invalidity, for whether they are valid or invalid, the plaintiff has no right to recover in this action. All his title to the property in controversy passed from him on May 9, 1873, and so far as the evidence shows, no portion of the title to any part of the property in controversy has ever passed back again to him.
The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a proceeding for contempt, brought against Samuel L. King, mayor of the city of Atchison, and Owen E. Seip, James Anderson, James Yates, Anton Ostertag, Robert Wetzel, Samuel Stevenson, Charles W. Banning, and Samuel McClellan, councilmen of said city, for a failure or refusal on their part to obey a peremptory, writ of mandamus, issued by the judge and clerk of the district court of Atchison county, ordering them to levy a certain tax. The principal facts of the ease are substantially as follows: On September 23, 1881, a peremptory writ of mandamus was allowed and issued by the judge and clerk of the district court of Atchison county, commanding the mayor and councilmen of'the city of Atchison, and each of them, to meet on or before the 3d day of October, 1881, and then and there in their official capacity to levy a tax on the taxable property in said city sufficient to pay a certain judgment which had previously been rendered in favor of Benjamin Carley and against the city of Atchison, for the sum of $225, and costs taxed at $3.70, and to cause such tax to be collected, and when collected, to pay the same in satisfaction of said judgment. The mayor and councilmen were each named specifically in said writ, and the writ was allowed and signed by the judge, and attested by the clerk. This writ was placed in the hands of William Blair, sheriff of Atchison county, for service, and he served the same by delivering a certified copy thereof to each of the defendants, except Wetzel; and he served the same on Wetzel by leaving a certified copy of the writ at Wetzel’s usual place of residence. Neither the mayor nor any one of the councilmen ever had the original writ in his possession, and never even saw the same. On October 3, 1881, the mayor and council met in regular session, all being present, and transacted some business, but failed and refused to take any steps toward the levy or collection of the tax which they were commanded to levy on that day, by said writ of mandamus. Afterward, and on October 7, 1881, a rule was issued against the mayor and councilmen, requiring them, and each of them, to appear before the judge of the district court, on1 the first day of the next term of the court, to be held on November 7,1881, at the court house in Atchison county, then and there to show cause, if any they had, why they should not be punished as for a contempt in failing to obey the commands of the said writ of mandamus. On November 5, 1881, two days prior to the day set for the hearing of the proceeding for the supposed contempt, W. W. Guthrie purchased the said judgment against the city of Atchison, and took an assignment thereof to himself; and on the 7th day of the same month, and before the hearing of the contempt proceedings was commenced, he appeared in open court, and exhibited the assignment to the court, and moved the court that all further proceedings agains.t the mayor and councilmen of the city of Atchison should cease, and that they, and each of them, should be no longer held to answer for any neglect or refusal on their part to levy taxes, or to perform any other act looking to the payment or satisfaction of said judgment. This motion was refused and disallowed by the-court; and thereupon the defendants filed their motion to quash the said writ of mandamus, for various reasons, which motion was overruled by the court, and the defendants excepted. Immediately thereafter the defendants filed their return to said rule to show cause why they should not be punished as fop? a contempt, which the court, upon consideration, held to be insufficient, and adjudged that each of the defendants, except Wetzel, was guilty of a contempt in neglecting and failing to obey the writ of mandamus, and adjudged that each of the defendants, except Wetzel, should pay a fine of $100 and his proportionate share of the costs of the contempt proceeding; to all of which the defendants, except Wetzel, duly excepted, and within three days thereafter they moved for a new trial, upon various grounds, which motion the court overruled, and the defendants duly excepted; and they now appeal to this court, and asb for a reversal of the said judgment imposing said fine and costs upon them.'
The defendants raise many questions in this court; but the most of them, however, can be considered only upon a petition in error in the mandamus case. If the judge of the court below had jurisdiction to issue the writ of mandamus, (and that he had we suppose is not questioned,) and if the writ itself was valid, and the service ' sufficient, then the defendants undoubtedly committed a contempt of the court on October 3, 1881, by refusing to take any steps toward the levy or the collection of the tax which they were commanded to levy on that day, by the writ of mandamus; and it can make no possible difference how many errors the judge may have committed in the mandamus proceeding, or what may have transpired after the contempt was committed. So far as this appeal is concerned, it may be admitted that the judge of the cdurt below committed numerous errors in the mandamus proceeding; and that it was manifestly erroneous for him and the clerk to issue said writ; and it may also be admitted, that after Guthrie purchased the Carley judgment' he had the absolute control of the mandamus proceedings, and had a right to have the same stayed or dismissed, if he chose, and had the right to relieve the defendants from levying the said tax, or from taking any steps toward the levying or collecting of the same; and yet all this would not be any defense to the contempt proceeding. It might, perhaps, be shown in mitigation of the punishment, but could not be shown as a defense to the action. Unless the writ of mandamus or the service thereof was absolutely void, it was the duty of the defendants, on the 3d day of October, 1881, to obey the writ, and no mere errors in issuing it could have the force or effect, after the contempt was really committed, ’ r J . } to transform their contemptuous conduct in dis-writ jnto harmless or innocent acts. No act of Carley, the original judgment creditor, or of Guthrie, to whom the judgment was assigned, could purge the defendants of their previous contempt, or transform their previous contempt into some innocent or harmless act, or relieve them from the .liability which they assumed when they committed the contempt. We assume, for the purposes of this case, that when Guthrie purchased the judgment that he then obtained full power and control over the mandamus proceedings, and that he then had power to stop the proceedings where they were, and to relieve the defendants from levying any tax to pay the Carley judgment, and to relieve them and the city of Atchison from all liability to himself and to Carley incurred by reason of their failure to levy the said tax; and indeed to release the judgment absolutely, and to release all other liabilities which the defendants or the city of Atchison might have placed themselves under, either to Guthrie or to Carley, in connection with the said judgment or with reference to the mandamus proceedings; but he had no power to release the defendants from their liability to the state of Kansas for the contempt which they had, in fact, committed more than a month before Guthrie purchased the judgment. Their refusal to obey the writ of mandamus was an offense against the state of Kansas and the dignity of the court, which neither Guthrie nor Carley could pardon or excuse.
With these preliminaries, we now come to the questions, whether the writ of mandamus was valid, or not, and whether the service of the same upon the defendants was valid, or not; and these are really the only questions of any importance in the case, for if these questions were answered in the affirmative, the judgment of the court below punishing the defendants as for a contempt should be affirmed; but if either of them should be answered in the negative, then the judgment should be reversed. If the court below did not err in holding that both the writ of mandamus and the service of the same were valid, then no substantial error was committed in the case.
We shall now proceed to consider these questions.
The statutes to be considered with reference to these questions are as follows: Section 688 of the civil code as amended-in 1870, and §§ 690, 693, 699 and 709 of the civil code as adopted in 1868, as follows:
“Sec. 688- The writ of mandamus may be issued by the supreme court, or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board, or person, to compel,” etc.
“Sec. 690. The writ is either alternative, or peremptory. The alternative writ- must state, concisely, the facts showing the obligation of the defendant to perform the act and his omission to perform it, and command him that immediately upon receipt of the writ, or at some other specified time, he 'do the act required to be performed, or show cause before the court whence the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as he is commanded. The peremptory writ must be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded must be omitted.”
“Sec. 693. The allowance of the writ must be indorsed thereon, signed by the judge of the court granting it, and the writ must be served personally upon the defendant. If the defendant, duly served, neglect to return the same, he shall be proceeded against as for a contempt.”
“Sec. 699. Whenever a peremptory writ of mandamus is directed to any public officer, body, or board, commanding the performance of any public duty specially enjoined by law, if it appear to the court that such officer or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding five hundred dollars, upon every such officer or member of such body or board.' Such fine, when collected, shall be paid into the treasury of the county where the duty ought to have been performed; and the payment thereof is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.”
“Sec. 709. All writs and orders -for provisional remedies and process of every kind shall be issued by the clerks of the several courts, upon a precipe filed with the clerk demanding the same.”
We suppose it will be admitted that the judge and clerk of the court below had jurisdiction to issue the writ of mandamus in this case, for there is not the slightest ground for claiming otherwise; but it is claimed that the writ was not legally issued, because at the bottom of the writ the allowance thereof was written thereon, and the same signed by the judge and attested by the clerk in the following form, to wit:
“The right of the plaintiff to require of the defendants the performance of the duties specified in the foregoing writ being clear, and it being apparent that no valid excuse can be given for not performing them, the foregoing peremptory writ of mandamus is allowed. The defendants, being present by their attorney, Henry Elliston, excepting thereto.
“Done at chambers, in Atchison, Atchison county, Kansas, this 23d day of September, 1881.
D. Martin, Dist. Judge.
Attest: W. W. Church,
(Seal.) Cleric of the District Court.
We think the writ was valid. It was really issued by both the judge and the clerk, although the allowanee thereof was by the judge alone, as provided by the statute.
The next question is, whether the service of the writ upon the defendants was valid, or not. This question must be answered in the negative. The statute contemplates that the writ shall be served by delivering the writ itself . _ _ 7..¶ to the defendant, and it is the writ itselt which must be returned by the defendant to the court. No mere copy of the writ is sufficient in either case. This was also the rule at common law. Section 690 of the civil code provides that the writ shall command the defendant, “that immediately upon receipt of the writ, or at some other specified time,” he shall obey its mandates, “and that he then and there return the writ with his certificate of having done as he is commanded.” Of course the defendant could not be in' “receipt of the writ” unless it was delivered to him; nor could he “return the writ” unless he had previously received the same. He could not “return the writ” if he had never received anything but a mere copy of the same. Section 693 of the civil code provides that “the writ must be served personally upon the defendant; if the defendant, duly served, neglect to return the same, he shall be proceeded against as for a contempt.” Now the defendant could not “ return the writ” if he had never seen the same nor had it in his possession. He could not “return the same” if he had never had anything but a mere copy of “the same” in his possession. And while the section provides that the defendant may be proceeded against as for a contempt if he neglect on his part to return the original writ, yet it does not provide for any proceeding against him, or for any punishment, for any failure or neglect on his part to return a copy of the original writ. And while the' defendant may commit a contempt by failing to obey the mandates of the original writ, he could not under any statutes of Kansas be held to be in contempt for failing to obey the mandates of a mere copy of the original writ. We think it therefore follows from the statutes of Kansas, that if the original writ is not delivered personally to the defendant, the service of the same upon him is void. It is probably true, where the defendant in an action of mandamus is a board of persons, that a service may be made by delivering the original writ to the chairman or principal officer of such board, and delivering copies of the writ to the other members of the board; for in such case the chairman or principal officer represents the board, and could make a return of the writ for the entire board. There are cases supporting such a view. But it has been said, however, in some of such eases, that all the members of the board should be permitted to see the original writ. It has also been held in cases of municipal corporations, that the service may be made by delivering the original writ “to the mayor, as the most visible part of the corporation.” (The Queen v. Chapman, 6 Mod. [Eng.] 152.) But where there are several separate and independent defendants, we think an original writ should be served upon each one of them. The original writ is better evidence of what the de-, fendants are required to do than any mere copy can possibly be. The original writ is signed by both the judge and the clerk of the court issuing the same, and it is attested by the seal of the court, and it carries with it, upon its face, the highest evidence of its own force, validity, and power. No mere copy can carry with it such high evidence. The writ may be served by any person, by a mere delivery of the same to the defendant; and the defendant is bound to know from the writ itself that it is authentic and that he is bound to obey its mandates. It cannot be so with a mere copy of the writ. The defendant cannot know from a mere copy of the writ that it is a genuine copy of the original, or that there is any genuine original, or that he is bound to obey its mandates under penalty of being prosecuted and punished as for a contempt; for a mere copy cannot be authenticated as the original writ always is; and there is no provision of the statutes authorizing the giving of a copy, or the certifying of the same; and no provision of the statutes authorizing any such service; and there is no provision of the statutes requiring the defendant to obey the mandates of a mere copy of any writ of mandamus.
The rules of the common law with respect to the service and return of writs of mandamus, we think are substantially the same as are the rules fixed by the statutes of Kansas. In the present case, the original writ was not delivered to any one of the defendants, and no one of them ever saw the same. Now this, we think, rendered the service void. In Wisconsin, where a peremptory Writ of mandamus was issued against a town board, and the sheriff served copies only of the writ upon the members of the board, and returned the original writ to the court, it was held that such service was void. (State v. Mineral Point, 22 Wis. 396.) We think the same thing must be held in Kansas. (See also Moses on Mandamus, 225.) Where there are several separate and independent defendants, it would probably be better to issue an original writ for each defendant. In Kansas^ an alternative' writ of mandamus answers the purpose both' of a summons and of a pleading. So far as. it answers the purpose of a summons, the defendant may waive the formal service thereof by voluntarily appearing in the action and answering thereto; the peremptory writ answers the purpose of an execution, and the defendant may waive its formal service by voluntarily performing its mandates. But until the writ is served, and served in such a manner that the service could not be held to be void, the defendant could not be held to have committed a contempt by any failure or refusal to obey its mandates.
We think the service of the writ of mandamus in the present case was void, and therefore that the defendants did not commit any contempt by refusing to obey the mandates of such writ.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
The judgment in this case will be affirmed, upon the authority of Doyle v. Wisconsin, 94 U. S. 50. | [
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The opinion of the court was delivered by
Valentine, J.:
On July 1,1878, John W. Whitman and Elizabeth Whitman his wife executed to Smedley Darlington a note and mortgage upon certain land situated in Neosho county,'Kansas. This note and mortgage were afterward transferred by Darlington to J. M. Baker. On January 4, 1879, Whitman and wife executed a deed for the land to David Cassidy — Cassidy by the terms of the deed to take the land subject to the note and mortgage. On November 18,1880, a judgment was rendered on the note and mortgage in favor of Baker and against Whitman and wife for the sum of $1,141.87 and costs; and the mortgaged property was ordered to be sold to satisfy such judgment. On September 24, 1881, the mortgaged property was sold to John Hall for $70. The property was worth at the time at least $1,550. There were some irregularities connected with this sale: for instance, the order of sale recited that the judgment for costs was for $11.10, while in fact it was for only $10.10; and it does not appear that the notice of sale, which was published in a newspaper, was published in the last issue of the paper immediately preceding the day of the sale. Neither Baker nor either of the Whitmans, nor any person representing them, was present at the time of the sale. On November 14, 1881, David Cassidy and wife, executed a quitclaim deed for the land to Hall. Afterward, the plaintiff Baker filed his written motion to set aside said sale on several grounds, the first being unavoidable casualty, accident and misfortune, by which the plaintiff was prevented from being present at said sale; and in consequence thereof (and the irregular proceedings of the officer and purchaser) the land was sold at a grossly inadequate price. In his motion to set aside the sale, the plaintiff offered to bid $1,400 for the land, in the event of a new sale being ordered; and also offered to pay Hall 12 per cent, interest on his $70 paid for the land from the day of the'sale to the day the sale might be set aside. The defendants, the Whitmans, also filed their motion to set aside said sale, assigning substantially the same grounds set out in Baker’s motion; There was no written motion filed by any one to confirm the sale, but Hall moved orally for a confirmation _ thereof. On the hearing of these motions, affidavits and other evidence were introduced by all the parties, including Hall. On February 1, 1882 — that being a portion of the November term, 1881, and a portion of the. term at which said sale was made — the court made an order that if the plaintiff would stipulate to bid the sum of $1,550 for the land, the sale should be set aside. The plaintiff excepted to that part of the order requiring him to bid $1,550, but agreed'to bid that sum; and thereupon the court set aside the sale, and ordered that a new order of sale be issued on February 15, 1882. Said order of February 1, 1882, reads as follows:
“And now, to wit, on this first day of February, 1882, came the parties, plaintiff and defendants, and John Hall, the purchaser of the land in controversy, to wit, the south half (£) of the northeast and the east half (-J) of the southeast quarter (¿) of section number fourteen (14), in township number thirty (30), south, of range number seventeen (17), east, containing one hundred and sixty acres, in Neosho county, state of Kansas.
“And this cause is submitted to the court, upon the motion of plaintiff and defendants to set aside the sale herein, and the motion of the said purchaser to confirm said sale, and after the submission of the proofs and affidavits of the various parties, and the offer of plaintiff to bid $1,400, if a new sale be ordered; and after argument of counsel thereon, it is considered and ordered that if the plaintiff will here now stipulate to bid for said mortgaged- premises the sum of $1,550, the said sale will be set aside and a new sale ordered; otherwise the said sale will be confirmed, and the sheriff directed to execute a good and sufficient deed to the said purchaser: to which direction and order of the court that plaintiff bid $1,550 the plaintiff duly excepted, and the plaintiff being present, stipulated and agreed to bid said sum of $1,550.
“ Wherefore, it is ordered and decreed that said sale be and hereby is set aside; and it is further ordered that an order of sale issue for the sale of said premises on February 15, 1882, and that said bid of $1,550 shall be the first bid; to which plaintiff excepted.”
On February 15, 1882, a new order of sale was issued, under which the land was again sold, this time to the plaintiff Baker, for $1,550. On April 5, 1882, this sale was set aside, because of certain irregularities connected therewith, for which irregularities Hall’s counsel claimed, and the court afterward found, that the plaintiff’s counsel was responsible. We shall probably have more to say with respect to this matter hereafter.
. Afterward, another order of sale was issued; and on June 17,1882, the land was again sold to the plaintiff, for $1,550. On July 13, 1882, the plaintiff filed his motion to confirm this sale; and on July 17, 1882, Hall filed a motion asking that the sale of June 17 be set aside, and that the order of the court of February 1 be also set aside, and that the sale made to him on September 24, 1881, be confirmed. The grounds pf said motion were as follows:
“1. The said order of the court conditionally setting aside said sale of real estate made to said John Hall, on the 24th of September, 1881, was obtained by fraud.
“ 2. The said plaintiff J. M. Baker, has willfully and knowingly refused and neglected to comply with the order of this court respecting the time within which an order of sale should issue and the land be advertised and sold, made as a condition to the conditional setting aside of said sale, and has willfully refused and neglected to comply with the stipulation filed by him on the first day of February, 1882, in compliance with the order of the court, and has willfully, corruptly, and fraudulently prevented said real estate from being sold on the order of sale, issued as required by the order of this court on the 15th day of February, 1882.”
When this motion came on for hearing, and after it had been read to the court by one of Hall’s counsel, L. Stillwell, an attorney at law — who had previously appeared for both Baker and the Whitmans, to have the sale of September 24, 1881, to Hall, set aside, but who had not previously appeared for any other purpose, made a special appearance for Whitman, to object to the consideration of the motion until Whitman had notice thereof. The court responded, in substance, that the hearing of the motion could proceed and the question of notice to Whitman could be considered in the future; and that if it seemed necessary or proper that Whitman should have further notice, it could then be given. Neither Still-well nor the Whitmans made any further appearance in the case, and the hearing and determination of the motion proceeded. Hall read in evidence a number of affidavits, the object of which seemed to be to show that the publication notice of the March sale had been tampered with by a rov ing journeyman printer, at the instance of the counsel for the plaintiff Baker. The court took the motion under advisement until the adjourned term in August, and at such adjourned term, on August 10, 1882, sustained Hall’s motion, and set aside the sale of June 17, and the order of the court of February 1, and confirmed the sale made to Hall on September 24, 1881. The order with reference to these things was dated back two days, and made to read as though it had been made-on August 8, 1882. The record of the case, as made and brought to this court, with respect to said order, reads as follows:
“And thereupon the following order was entered of record in said cause, which said order was inadvertently entered of record as having been made the 8th day of August, 1882, when in truth and in fact it was made on the 10th day of August, 1882. The following is a copy of said order as entered on the journal:
“ J. M. Baker, Plaintiff, v. John W. Whitman, Elizabeth Whitman and John A. Bowman, Defendants. — Confirmation of Sale. — And now, on this 8th day of August, 1882, the court having had this case under advisement, and having considered the several motions of the plaintiff and of John Hall, the owner of the equity of redemption and purchaser at the sheriff’s sale, and the affidavits, oral testimony and other evidence introduced by the respective parties upon the hearing of said motions, and being fully advised in the premises, does find that the real estate in the judgment and decree herein described, to wit, the south half of the northeast quarter, and the east half of the southeast quarter of section No. fourteen (14), in township No. thirty (30), south, of range No. seventeen (17), east, in Neosho county, Kansas, was, on the 24th day of September, 1881, by the sheriff of Neosho county, Kansas, pursuant to said decree and judgment, sold to said John Hall; and that the proceedings of said officer in making said sale were in all respects regular and in conformity to law; that on the first day of February, 1882, upon the motion, of said plaintiff, and for certain equitable reasons by him shown, the court made an order herein, setting aside said sale of September 24, 1881, conditionally, the conditions thereof to be performed by said plaintiff, and said plaintiff having entered into a stipulation to perform the same accordingly.
“And the court further finds that the grounds in the motions of said John Hall contained and set forth are true, and that subsequent to the making of the said conditional order and stipulation the said plaintiff and his attorney, C. H. Kimball, Esq., in collusion with the defendant John W. Whitman and others, by deceit .and fraudulent practices in violation of said stipulation and conditional order, prevented the conditions thereof from being performed; whereby great worry and injustice will be done to said' John Hall, purchaser at the previous sale and owner of the equity of redemption, if said conditional order is made absolute, and the sale made on the 17th of June, 1882, is confirmed.
“ It. is therefore by the court here ordered, that the motion of said J. M. Baker, plaintiff, to confirm the sale of June 17,1882, be and the same is hereby overruled and denied, and the said motions of said John Hall be and the same are hereby sustained, and that the sale made by the sheriff of Neosho county, Kansas, herein, on the 17th day of June, 1882, to J. M. Baker, plaintiff, be and the same is hereby set aside and the said J. M. Baker, plaintiff, pay the costs that have accrued herein since said sale of September 24, 1881, taxed at $-.
“It is further ordered, that the conditional order made herein on the 1st day of February, 1882, setting aside conditionally said'sale of September 24, 1881, be vacated and held for naught; and upon production of the order of sale issued pursuant to the judgment herein, on the 8th day of August, 1881, with the return of John Berry, sheriff of Neosho county, Kansas, indorsed thereon, showing a sale of the property decreed to be sold in this action and heretofore described, to John Hall, on the 24th day of September, 1881; and the court having carefully examined said order of sale and the return of said John Berry, sheriff, indorsed thereon, and all the proceedings of said sheriff in making said sale; and the court being satisfied that said sale has in all respects been made in conformity to the laws of the state of Kansas; it is therefore ordered that said sale be and the same is hereby confirmed; and it is further ordered that the clerk of this court make an entry on the journal of the court that the court is satisfied of the legality of said sale; and it is further ordered that the sheriff of Neosho county, Kansas, execute and deliver to said John Hall, the purchaser at said sale, a deed for the lands and tenements so sold, to wit, the south half of the northeast quarter and the east half of the southeast quarter of section No. fourteen (14), in township No. thirty (30), south, of range No. seventeen (17), east, in Neosho county, Kansas.
The record does not show why the order was antedated as it was, so as to make it read as though it was made on August 8, 1882, instead of on August 10, 1882, as it in fact was. .This order was made at an adjourned term of the court which convened on August 8, 1882, and adjourned sine die on August 10, 1882. At the time this order was made, neither the plaintiff nor either of the defendants, nor any one representing any one of them, was present. On August 12, 1882, and within three days after the order was made, Stillwell, as attorney for defendant Whitman, went before the judge of the district court of that district, at chambers, and on behalf of the defendant Whitman, without any notice to Hall, applied for an order extending the time to make a case for the supreme court. Stillwell also, at the same time, presented a letter from Kimball, the attorney for the plaintiff Baker, with reference to the same subject. The judge then made the following order:
“Now, on this 12th day of August, 1882, before me, H. W. Talcott, judge of the seventh judicial district, state of Kansas, at chambers, lola, Allen county, Kansas, comes the plaintiff, J. M. Baker, by C. H. Kimball, his attorney, and also comes the defendant, J. W. Whitman, by L. Stillwell, his attorney; and, at the request of said Baker and Whitman, and for good cause shown, it is ordered by me that the time allowed by law to said Baber and Whitman to each make and serve a case for the supreme court of Kansas, of the proceedings had in this action, be and the same hereby is extended to and including the 12th day of September, 1882. And it is further ordered, that the time allowed by law for all parties having adverse rights herein to said Baker and Whitman (including John Hall, the purchaser at the first sheriff’s sale herein), to suggest amendments to said case-made, be and the same is hereby extended for the period of ten days after said September 12, 1882, and the time for settling said case-made is hereby extended for the period of ten days after said last-named period of time; said case-made to be settled upon at least five days’ notice.
“Given under my hand, at chambers, lola, Allen county, Kansas, this August 12, 1882.
H. W. Talcott, Judge.”
Afterward, a case for the supreme court was properly made, served, settled, signed, attested, filed, and authenticated. The order of the judge of the court settling the case.is as follows:
“And now, on the 28th day of September, 1882, at three o’clock and fifteen minutes after, in the afternoon of said day, before me, H. W. Talcott, judge of the seventh judicial district court, Statd of Kansas, at Fredonia, Wilson county, Kansas, came the plaintiff, J. M. Baker, by C. H. Kimball, his attorney, and likewise at the same time and place comes the defendant, John W. Whitman, by L; Stillwell, his attorney, and said Baker and Whitman present for settlement and allowance their case-made in the said cause of J. M. Baker v. John W. Whitifaan, Elizabeth Whitman and John A. Bowman. Said Baker and Whitman, by their respective attorneys as aforesaid, also presented to me the amendments of said case-made suggested by John Hall, the purchaser at the first sheriff’s sale herein, which amendments were served on L; Stillwell, the aforesaid attorney for John W. Whitman, on Monday, September 25, 1882; and I finding and being satisfied that said case-made was properly, and within the time fixed by the order of the undersigned judge, served on John Hall, the purchaser at the first sheriff’s sale in this case, for the suggestion of amendments; and I further finding and being satisfied that said John Hall was duly notified in accordance with the order of said judge, that said case-made would be presented to me for settlement and allowance on the 28th day of September, 1882, at 2 (two) o’clock p. m., at Fredonia, Kansas, I do thereupon proceed to examine said case-made and the aforesaid suggestions of amendments thereto. Where said amendments are time, I have allowed them, and caused them to be inserted in this case-made; and where they are not true, I have not allowed them. And I certify that the above and foregoing case-made contains a true and full statement of all the proceedings had in said cause; that said case-made contains all the evidence introduced upon each and all of the several motions therein set forth; and that said case-made is a full, complete and true case-made in said cause, and is signed and allowed by me as such, on this 29th day of September, 1882, at Fredonia, Wilson county, Kansas. And I further certify, that on this September 28, 1882, at 2 o’clock p. m., came before me John Hall, the aforesaid purchaser at the first sheriff’s sale (ac companied by C. F. Hutchings, one of his counsel), atusaid city of Fredonia, where I was engaged in holding a regular term of the district court in and for said county; and said Hall and Hutchings stated, in substance, that they appeared to participate in settlement of the case-made in this cause, according to the notice served on Mr. Hall. Said C. H. Kimball and L. Stillwell, attorneys for Baker and John W. Whitman, respectively, had not yet arrived; whereupon I exhibited to said Hall and Hutchings, and they read the same, a postal card I had previously received from said C. H. Kimball by mail, which card was in the following words:
“‘Dear Sir: Your card received. I will be there on arrival of train on 28th inst., to present case in Baker v. Whitman, for settlement.
Yours respectfully, 0. H. Kimball.
Parsons, Sept. 26,1882.
[Addressed:] Hon. H. W. Talcott, Fredonia, Kas.’
“Only one regular passenger train arrives per day from points east of Fredonia, and that is due at Fredonia at 3:10 P. M. A freight train from points east of Fredonia, which carries passengers who desire to ride thereon, arrives at about 1 o'clock P. M. each day. Said Hutchings and Hall waited at the court house where I was engaged in the dispatch of such business as could be submitted to the court without the consideration of a jury. The jury, when Messrs. Hutchings and Hall appeared as aforesaid, and-at 2 o'clock of .said day, were in their room deliberating upon a case a short time before that hour submitted to them, and there was at or very near that hour a considerable time intervening which might have been occupied in settling said case-made, had the at-' torneys Kimball and Stillwell been present; but the court, however, did not adjourn for the day that afternoon until about 6 o'clock p. m. Soon after 3 o’clock p. m., and before any appearance by the plaintiff or defendant, or either of their attorneys, Messrs. Hutchings and Hall informed me that they would wait no longer, inasmuch as they were compelled to be at Osage Mission, in an adjoining county, which city is about fifty miles distant, the next day, and they came with a carriage and horses or team, and that the appearance was so indicative of a storm which would make the Verdigris river; over which they were compelled to cross, impassable, they felt compelled to hasten and not wait longer. They informed me they strenuously bbjected to my signing the case-made, should Kimball and Stillwell appear on the ground; that the time fixed for the settlement of the case by notice had elapsed, and that Stillwell and Kimball were in default and had made no appearance, and that they were not required to wait longer. I did not say nor indicate to them whether I would take any action in the matter, or whether I would not; and they said to me that if I did conclude to act in the matter and settle the case, they requested that my certificate thereto should state fully all the facts concerning their appearance and the non-appearance of the opposite parties. They made no further appearance, and left the court room a few minutes after 3 o’clock p. m., and I have not seen them since. Within a few minutes after the departure of said Hall and Hutchings, the said Kimball and Stillwell entered the court room, informing me they had just arrived on the passenger train, and informed me that they were present to get the case-made in this case signed and allowed. I proceeded to examine said case-made and the suggestions of amendments on said 28th day of September, 1882, at Eredonia, Wilson county, Kansas, as soon as I could leave the 'bench where I was holding court; and not being able to conclude the examination of said case-made and suggestions of amendments on the 28th day of September, I continued the examination of said case-made and the suggestions of amendments on the succeeding day, September 29, 1882, at the aforesaid place; and having on the day last aforesaid concluded the aforesaid examination, I do, on this September 29, 1882, at Eredonia, Wilson county, Kansas, sign, settle and allow the same as a true and complete case-made. H. W. Talcott, Judge.
Attest: M. W. Adaib,
(Seal.) Clerk District Court.
[Indorsed:] 2770.— J. M. Baker v. John W. Whitman, et al. — Case-made; filed Oct. 2,1882.— M. W. Adaib, Clerk Dist. Court.”
The clerk of the district court also attached the following certificate to the case-made, to wit:
“The State oe Kansas, Neosho County, ss. — In the District Court of Neosho County, Kansas. — J. M. Baker, Plaintiff, v. John W. Whitman, Elizabeth Whitman and John A. Bowman, Defendants. — I, M. W. Adair, clerk of the district court of Neosho county, Kansas, do hereby certify that the case-made hereto attached in the above-entitled action, filed in my office October 2, 1882, contains true, full and correct -copies of the following-named papers and proceedings in said action: the petition of the plaintiff, the summons issued in said action with the return of the sheriff thereon, the judg meat of the court in said action, all the various orders of sale issued in said action with the returns of the sheriff thereon, all the motions filed fin said action to set aside or confirm any sheriff’s sale made in said action (except the motion of defendant John W. Whitman, which is missing from the files), all the affidavits filed in support of or in opposition to any motion to confirm or set aside any sheriff’s sale (except the, affidavit of defendant John W. Whitman, which is missing from the files), all orders made by the court setting aside or confirming any sheriff’s sale in said action, and the order of the judge of said court at chambers extending the time to make a case in said action.
“And I further certify that said case-made contains a true, full and correct transcript from the record of all the matters of record in said case in this, and as follows:
“It contains a true copy of the petition, the summons thereon, the judgment of the court, all orders of sale with the returns of the sheriff thereon, all motions filed in said cause except the motion of defendant John W. Whitman, which is missing from the files, and all orders in said cause, of the court and of the judge, made and entered of record in my office, save and except the said motion of Whitman and affidavit thereto attached. I certify that said case-made contains a full and' true transcript from the records of every paper filed in said cause, and of all the judgments and orders of the court made and entered of record in said cause.
“Witness my hand and the seal of the' district court of Neosho county,'Kansas, at my office in Erie, Kansas, this 25th day of November, 1882.
(Seal.) M. W. Adair, Clerk Dist. Court.”
The case-made, with the petition in error and certificates, was filed in the supreme court on December 1, 1882.
Hall, who is defendant in error in this court, moves to dismiss the petition in error and case-made from this court, on the grounds, first, that the case was not made for the supreme court within three days after the order was made, and that Baker and the Whitmans did not within that time ask for any extension of the time within which to make a case for the supreme court; second, that no notice was given to Hall that Baker and the Whitmans intended to ask leave of the judge of the trial court for an extension of the time within which to make a case for the supreme court; third, that the ease was not presented to the judge of the trial court for settlement at the hour at which notice was given that the case would be so presented, and the case was settled and signed in the absence of Hall and of his attorneys.
The motion will be overruled. Proper application was made for an extension of the time within which to make a case f°r supreme court, and the time was properly extended, and the case was properly made, served, settled, signed, attested, filed, and authenticated, as heretofore stated. Besides, according to the certificate of the clerk of the court below, the case-made con-ta’ns a full transcript of all the papers and proceedings constituting the record of the case in the court below. The order of the court below, made on August 10, 1882, but entered as of August 8, 1882, setting aside the sale of June 17, 1882, and also setting aside the order of the court made on February 1, 1882, and confirming the sale made to Hall on September 24, 1881, must be reversed. We think the sale made on June 17,1882, should be confirmed. At least this should be so, unless other facts are hereafter shown which have not up to this time been shown in the case. It.is probable, however, that in justice to the Whitmans and in justice to Hall, no interest or costs accruing on the judgment of the plaintiff Baker from the time the second sale was set aside, on April 5, 1882, up to the time when the plaintiff filed his motion to confirm the third sale¿ on July 13,1882, should be allowed; for it seems that it was the fault of the plaintiff’s counsel that prevented the second sale from being regular, and thereby prevented it from being confirmed; and it would seem that this was done for the purpose that the judgment, with interest and costs, should so increase in amount that it would take the entire amount bid for the land to pay the judgment and costs, and leave nothing to go to Hall, the party holding the equity of redemption. We think the said order made by the court on August 10, 1882, dated August 8, 1882, ought to be reversed, for the reason, among others, that it was made in the absence of the Whitmans, and without any notice to them. Of course, where no motion is pending to set aside a sale for matters not appearing on the face of the papers and proceedings in the case, the sale may be confirmed or set aside upon the papers and proceedings already in the case, without either the plaintiff or the defendant being present, and without any formal motion being made by any person, and without notice to any person; for all the parties are bound to take notice of all papers and proceedings which are already of record in the case, and if an error is committed on the papers and proceedings already of record in the case, such error can easily be corrected; but no sale can ever, be properly set aside for irregularities not appearing upon the face of the papers and proceedings already of record in the case, or upon grounds which require evidence, outside of the papers and proceedings which are already of record in the case, to be introduced, unless a proper motion is made and proper notice given to all persons interested in the sale. (Freeman on Executions, §306; Sears v. Low, 8 Ill. 281; Cline v. Green, 1 Blackf. 52; State Bank v. Marsh, 7 Ark. 390; Parks v. Person, 1 S. & M. Ch. 76; Wright v. Leclaire, 3 Iowa, 221, 241; Lyster v. Brewer, 13 Iowa, 461; Clamorgan v. O’Fallon, 10 Mo. 112; Toler v. Ayres, 1 Tex. 398; Bentley v. Cummins, 8 Ark. 490.)
As to setting aside a sheriff’s sale for gross inadequacy of price, see Dewey v. Linscott, 20 Kas. 685; Rorer on Judicial Sales, §§549, etseq., and 1086, etseq.; Freeman on Executions, § 309. In the present ease, the first sale was for a grossly inadequate price — for only $70, when the land was worth at least $1,550 — and it would be an outrage upon justice to permit such a sale to stand. We think the court below, exercising a sound judicial discretion, properly and rightfully set aside said sale for such gross inadequacy of price and for other irregularities. This was done on February 1, 1882, and we think the order setting the sale aside should be allowed to remain in force. The court also, at the same time, very wisely required the plaintiff to make a bid on the land for what the land was reasonably worth, to wit, $1,550; but as the plaintiff’s counsel afterward attempted to commit a wrong upon the purchaser and upon the defendants by changing the notice of sale so that the second sale, and the one at which the plaintiff was required to bid $1,550 upon the land, should be illegal and should be set aside, and thereby cause an amount of costs and interest to accrue upon the judgment to the extent that the judgment and costs might take the whole of the $1,550 to satisfy the judgment, and thereby defeat the order of February 1 in spirit if not in terms, we think it would be fair for the. court not to permit such wrongful acts of plaintiff’s counsel in any manner to prejudice the rights of either Hall or the Whitmans.
We would also here say that the order of the court, made August 10, 1882, dated August 8, 1882, was not only made in the absence of the Whitmans, and without notice to them,' but the finding that Whitman actéd in collusion with plaintiff’s counsel, in violating the order of the court of February 1, 1882, and delaying proceedings as aforesaid, is not sustained by the evidence. We do not think that the evidence shows that any person connected with the case acted in collusion with the plaintiff’s counsel in doing any of these things, or participated to any extent in the wrong. It would seem to be such counsel’s own individual act, in connection with other persons having no connection with this case. It is to be hoped, however, that he may yet show that not even he participated in the wrong.
From the charges made in the briefs of counsel against adverse counsel, it would seem that the standard of professional ethics among themselves cannot be very high. This must to some extent be the case, whether the charges made by counsel against each other are true or false. If the charges are true, then it is certainly the case; but if they are not true, then counsel have been too fast in making charges. It is hoped, however, that the condition of affairs in that locality is not as bad as the briefs of counsel would seem to indicate.
The order of the court below, made August 10, 1882, and entered of record as of August 8, 1882, will be reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Valentine, J.:
Mary Jane Shaffer brought three actions of ejectment in the district court of Dickinson county — one against R. F. Gross, one against James Holland, and one against William Chamberlain. The three cases were tried together before the court and a jury, and a verdict and judgment were rendered in each case in favor of the plaintiff and against the defendant therein; and the defendants now bring their several cases to this court, and ask for a reversal of the judgments therein. The plaintiff, defendant in error, now moves to dismiss the several cases from this court, upon the ground that the subject-matter thereof has been settled and compromised. The evidence, however, offered on the motion, while it shows that the defendants, plaintiffs in error, have severally purchased the plaintiff’s interest in the land in controversy, yet it does not show that the subject-matter of the controversy in either case has been settled or compromised. There was no agreement on the p^rt of the defendants, plaintiffs in error, to dismiss their actions in this court, or to pay the.costs thereof, or indeed to pay any costs; but they simply agreed that they would pay.the plaintiff the amount which they had agreed originally to pay for the lands, with $50 additional; and she agreed to execute, and did execute to them deeds for the lands. The motion to dismiss will be overruled.
We now come to the merits of the case. It appears from the record brought to this court that the lands in controversy are situated in Dickinson county, Kansas, and formerly belonged to Nathan Shaffer, who lived in Stark county, Ohio. In 1871, Nathan Shaffer died, leaving James S. Shaffer, his brother, as his executor, with power to sell the lands. T. C. Henry, a land agent, of Abilene, Dickinson county, Kansas, had for a number of years acted as the agent, first of Nathan Shaffer, and subsequently of James S. Shaffer, with ■ respect ■ to these lands. Henry had also, during the same time, acted as the agent with respect to certain other lands situated in Dickinson county, Kansas, belonging to some persons by the name of Johnson, who also resided in Stark county, Ohio. All the correspondence with respect to both the Shaffer lands and the Johnson lands was carried on between T. C. Henry and Isaiah Johnson, who had an interest in the Johnson lands, and who was a near neighbor and friend of Nathan Shaffer during his lifetime, and of James S. Shaffer, his executor. Only a small portion of the correspondence between Henry and Johnson is preserved in the record brought to this court. It appears, however, that in 1877 or 1878, James S. Shaffer, the executor, met Isaiah Johnson, and requested him to write to their agent in Kansas, T. C. Henry, to sell the Dickinson county lands, the lands now in controversy, giving prices, etc. Mr. Johnson, who testified on the trial in this ease, states the conversation as follows:
“He [Shaffer] said he would like to sell that land out west — no; he said he would like to ‘get shut of’ the land west, or sell it; and I said/which?’ and he'said ‘that out in Dickinson county.’ He wanted to sell first; and he wanted me to write out to our agent, T. C. Henry, to sell it for us. Then I asked him what he wanted an acre. Then he told me. . . . He said that for the half-section he wanted $4, and for the quarter-section that is up by the school house, he wanted $5, as we always have to pay more taxes. ... I agreed to write to- him [Henry]. Question: With whom? Answer: With James S. Shaffer. I did agree to write immediately, but I did not. I do not think I wrote until sometime in the winter.”
Afterward, Johnson wrote to Henry, and the letter is in the following words, to wit:
“Feb. 27, 1879, Alliance, Stark Co., Ohio.
“ T. C. Henry, of Abilene: I received your letter, dated Feb. 18, and noticed the contents carefully, and should answered sooner. The Johnsons land hant for sale now, but they would let some person farm for breaking. Shaffers aers — [heirs] in the name of Nathan Shaffer, their land is for sale. S. e. q; sec. 5, town 12, 4, for five dollars 25 cents per acre. E. 2. of sec. 7, town 12-4 for $4.25 per acre. In cash all down, discount the 25 cents per a., and if you take a notion to send me or Shaffers aers a letter in respect to the lands, please inform me what that quarter would bring on sec. 9, s. w. q. town 12-4. .Please excuse for me not answer sooner.
Isaiah Johnson, agt. for Johnson & Shaffer ayers.”
In pursuance of this letter from Johnson, Henry, in the spring of 1879, sold the lands in controversy to the present defendants, within the terms and the instructions of the letter; and the purchasers soon thereafter, in pursuance of the sale, took possession of the lands, and made lasting and valuable improvements thereon. Henry forwarded to the executor, through Mr. Johnson, deeds in blank to be executed by Shaffer, and also notes and mortgages to secure the deferred payments. These reached the executor’s hands, and. have not been returned. The executor did not, so far as is known, execute the deeds to these purchasers, and he never rescinded the sale nor informed his agent, T. C. Henry, nor the purchasers of the land, that he (Shaffer) was not satisfied with the sales, although he afterward had correspondence with Henry. In 1881. the executor executed a deed to these lands to Mary J. Shaffer,- the present plaintiff, defendant in' error, who was a sister of the executor, and had knowledge at the time of the previous sales to the present defendants.
On the trial, the court gave the jury the following among other instructions:
"7. And further: That the expression CI will sell,’ or ‘I want to get shut of the lands and will sell,’ on specified terms alone does not confer any authority on the agent to make a contract of sale.
“8. And further: A correspondence with a real-estate agent concerning the lands and prices and terms of sale, does not alone confer any authority upon him to make a contract for the sale of the land.
“9. And further: A delegated authority to an agent to sell real estate — not including in this term an executor — a delegated authority to an agent to sell real estate cannot be re-delegated ; or, in other words, one agent cannot re-delegate the authority to another to perform the subject-matter of his agency.”
We think that instruction No. 7, although perhaps good law in the abstract, was misleading in its character and erroneous in the present case; for there was a great deal of evidence in the case besides the words “I will sell,” or “I want to get shut of the lands and will sell,” which tended to show that power was conferred upon the agent, T. C. Henry, to sell the lands; and this evidence consisted of evidence of both words and acts.
Instruction No. 9 is also erroneous. The instruction seems to be based upon the idea that Johnson was the party appointed by Shaffer to sell the lands, and that he re-delegated his power to Henry; whereas, the facts of the case show that such was not the nature of the transaction. Mr. Henry was the party who was authorized to sell, and Mr. Johnson was the party who was authorized to communicate this authority to Henry. And there was really no re-delegation of agency or authority involved in the transaction. Mr. Johnson was to perform one part in the transaction, and Mr. Henry was to perform an entirely, different part. We do not think the evidence was such as to compel the jury to find in favor of the defendants, but still we think it was such that the j ury might have found in their favor if they had not been misled by the instructions of the court.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought under the 10 th section of the dramshop act, (ch. 35, Comp. Laws 1879,) in which the defendant in' error (plaintiff below) recovered ajudgment.of $1,000 actual damages, and $400 exemplary damages against the plaintiff in error, for having caused the intoxication of her husband.
I. It is alleged the court erred in overruling the motion to make more specific and certain the allegations of the petition as to the second, third, fourth and sixth grounds therein. It appears from the record that the petition was filed on. April 13, 1881. On the 14th day of May succeeding, plaintiff in error filed a motion containing six grounds, to make more specific and definite certain of the allegations of the petition. Upon the hearing, the court sustained the motion as to the first and fifth grounds. Thereupon defendant in error was allowed thirty days in which to amend the petition. On the 5th day of September following, she filed an amended petition. To'this amended petition the plaintiff in error filed his answer, without attacking it by motion or otherwise. As the amended petition was substituted for the first petition, he is in no condition now to insist upon any defects in the original one. He filed his answer to the amended petition, and to this answer a reply was filed, thus settling the issues in the case.
II. At the term at which the cause was tried, plaintiff in error moved the court for judgment in his favor upon the pleadings. This was overruled, and upon the trial he objected to the defendant in error offering any evidence, for the alleged reason that the amended petition did not state facts sufficient to constitute a cause of action. These rulings are ■now complained of. It is the theory of plaintiff in error that as the dramshop act had been repealed prior to the trial, such repeal destroyed any right of action that might have existed during the existence of the statute; and Dillon v. Linder, 36 Wis. 344, is referred to in support of this doctrine. This authority, when fully considered, is not in opposition to the ruling of the trial court. Subdivision 1 of §1, ch. 104, Comp. Laws 1879, reads:
“The repeal of a statute does not revive a statute previously repealed; nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
Section 10 of ch. 35, Comp. Laws 1879, under which this action was brought, was taken up bodily and transferred to ch. 128, Laws of 1881, which repealed said chapter 35, Comp. Laws 1879. Sec. 15 of ch. 128, Laws of 1881, is identical with §10, ch. 35, Comp. Laws 1879. Therefore the provisions of §15, ch. 128, Laws 1881, being the same as those of §10, ch. 35, Comp. Laws 1879, must be construed as a continuation of such provisions, and not as a new enactment. (City of Troy v. Rld. Co., 11 Kas. 519; see also Gilleland v. Schuyler, 9 Kas. 569.) Nor can it be said that §15 is in conflict with §16, art. 2 of the constitution. (Werner v. Edmiston, 24 Kas. 147.) It is urged that no right of action existed under the dramshop act of ch. 35, Comp. Laws 1879, upon the ground that the act was in violation of art. 2, § 17 of the constitution, because it did not have uniform operation throughout the state. This position is wholly untenable. There are no words limiting the operation of the dramshop act, and if the reasons urged by counsel were correct, and if any of the laws referred to were unconstitutional, it would be the prior act of ch. 31, Comp. Laws 1879, prohibiting the selling of intoxicating liquors in unorganized counties.
III. It is contended that the court below erred in permitting counsel to ask certain witnesses as to their best recollection whether or not they had seen John Borgman drink any liquors, or under the influence of liquor., at plaintiff in error’s saloon within two years prior to April 13, 1881. The witnesses referred to are Jacob Bern's, Andrew Oswald, and Matt. Oswald. The first witness answered that it was his best impression that he had not seen Borgman drink at the saloon within two and a half years before he went away, but probably had within three years, but could not say for certain; that he kept no record. The second witness answered that he had probably seen Borgman at plaintiff in error’s saloon under the influence of liquor within two years before he went away. The third witness answered that he could not say, but presumed he had. Portions of the answers were not responsive to the questions, and if injurious to the plaintiff in error, would doubtless have been stricken out, if a motion had been made therefor. The questions themselves were proper, especially as the witnesses interrogated showed a disposition to evade answering to facts within their knowledge. Oral evidence is after all only the uttered or spoken statement of existing facts or past transactions, and the witness in making his statements under oath of a past event, relies wholly upon his memory or recollection. Therefore if he gives his best recollection of a past transaction or event, he" testifies only to that of which he Has knowledge or recollection. When asked to give his recollection, his opinion is not called for. An opinion is the judgment which the mind forms. The questions did not ask the witnesses their opinions, as counsel seemingly argue.
. IV. Upon the trial, the defendant in error testified that in the spring of 1878, she found her husband at plaintiff in error’s saloon, sitting in a chair, drunk, and that then she notified plaintiff in error that she wished he would not sell her husband any more liquor; that this was the only hotifi.cation. This evidence was objected to, as being incompetent, irrelevant, and immaterial. The objection is mainly based upon the fact that this notification was given more than two years prior to the commencement of this action. Certainly the calling of the attention of plaintiff in error to the drunken condition of the husband by the wife, and notifying him not to sell the husband any more liquor, were material facts to go before-a jury upon the question of exemplary damages; and whether such notification was given during th'e two years before the commencement of the action, or a little earlier, is immaterial.
V. It is urged that the first instruction was erroneous and misleading. It is as follows:
“If from the evidence you believe that the plaintiff had been for the last ten years the wife of John Borgman; that for - several years previous to the commencement of this suit he was habitually intoxicated; that within two years before the commencement of this action the defendant sold or gave to him intoxicating liquor, and thereby caused his intoxication in whole or in part; that by reason of said intoxication the said John Borgman was rendered .incapable of performing and transacting his ordinary business; that the plaintiff was dependent upon him for support; that in consequence of said intoxication she has been injured in means of support, then you will return a verdict for the plaintiff for such damages as from the evidence you may believe she has sustained in consequence thereof.”
This instruction 'is sustained by the provisions of said § 10} ch. 35, Comp. Laws 1879, excepting that part directing the jury to consider whether Borgman had been habitually intoxicated for several years previous to the commehcement of this action. (Hayes v. Phelan, 4 Hun, 732; Jackson v. Brookins, 5 Hun, 535; Bertholf v. O’Reilly, 8 Hun, 18.) Under the evidence we perceive no objection to the court directing the jury to consider that fact. The habits of Borgman as an habitual drinker for two years prior to the institution of this action was a matter for the consideration of the jury,-and if the direction called the attention of the jury to a period prior thereto, it could not have been prejudicial to the plaintiff in error, because the court expressly limited his liability to the intoxicating liquor' sold or given to Borgman within two years before the action was commenced, and also instructed the jury not 'to consider any act of plaintiff in error established by the evidence as having taken place prior to April 13, 1879.
VI. Great complaint' is made of the eighth instruction given by the court, mainly upon the ground that it informed the jury that defendant in error was entitled to recover exemplary damages whether she had sustained actual damages or not. This objection is without force, because the court in one of its instructions expressly charged the jury that exemplary damages could not be recovered until the defendant in error had established, by a preponderance of evidence, that she had received actual damages to her means of support, by reason of the intoxication of her husband, caused within two years next preceding April 13, 1881,,by the act of plaintiff in error, in selling, bartering or giving to her husband intoxicating liquors. Therefore, as all the instructions are to be taken and considered together, the eighth instruction is not subject to the complaint against it. i
VII. Complaint is also made of the direction to the jury, “that direct loss of employment by the said John Borg-man, in consequence of intoxication, the proceeds of which would naturally, except for his intoxication, go to the support of plaintiff, would be actual damages.” Counsel say that this instruction would be correct only when the defendant in error’s husband had not sufficient other employment, or means to support his wife, and this exception should have been stated; otherwise the correct rule for estimating actual damages is enlarged. Further, counsel say that there is no evidence tending to show that the husband lost any employment by reason of intoxication. In answer we reply, that it is apparent sufficient evidence was introduced upon which to base the instruction. Defendant in error testified among other things, that her husband left her on the 18th day of January, 1881; that for the two and a half years before he went away his habits were very bad; that he drank a great deal; that he was under the influence of liquor most of the time; that he neglected his business and did not support his family, which consisted of herself and seven children, as he ought to have. done, and could have done if he had been sober; that she had . to borrow flour and potatoes; that the groceries he provided were scanty; that she had worked very hard herself; that at times she suffered for clothing, and when she asked for things her husband would complain and “say that he did not have money;” that her husband was appointed census enumerator for Hanover township in Washington county for the year 1880; that he was turned off and Charles Morgan appointed in his place; and that he was so turned off, she supposed, on account of his drunkenness; that when her husband left her, he left the family in destitute circumstances; that the neighbors and the lodge helped them some, and that she had become an object of public charity. Gribson, a witness, testified that he had lived in Hanover for nine years; that he knew John Borgman; that the first time he came to take the census at his house he was too drunk; the next time, he took it; that he drank a great deal; that he did not take the census of the township; that Charles Morgan, of Little Blue, came and took the census of the township after Borgman failed. One Pratt, a witness, testified that he knew John Borgman; that he had some business with him, and when he went to get him to do the work he was too drunk; that he had collected money for him, and that he went back the next day and got the money. Spence, another witness, testified .that he was acquainted with John Borgman’s habits; that they' were bad, and that he would call him an habitual drunkard; that he had done business for him; that he went three times to get him to draw up a deed; that the first time he was at home, up-stairs drunk; that the second time he told him he was not fit to do the work; but at the third time he got the deed..
Borgman was morally and legally bound to supply his wife with the necessaries and comforts of life, and if he had no other resource, it was his duty to contribute his labor and its proceeds to her support. It is evident that his intoxication caused him to neglect his business, made him habitually indolent, and deprived him of employment. As he had during the past few years no means of support except his own labor, and as his intoxication incapacitated him from labor and also caused him to lose employment, the wife was injured “in means of support,” because any deprivation of her right or interest in the proceeds of his labor or his capacity to labor, was an injury to her in her means of support. (Schneider v. Hosier, 21 Ohio St. 98.) The loss of her means of support in consequence of the intoxication of her husband was to her actual damages. The injury to the means of support of a married woman, caused by the sale of intoxicating liquors to her husband, by which he acquires habits of intemperance and idleness, may vary greatly according to the age, condition and circumstances of herself and husband. Therefore evidence in such cases that the husband was a sober, industrious man, providing for and supporting his family prior to the time when the defendant caused his intoxication by selling to him intoxicating liquors, and after such sales and in consequence thereof he became less industrious than he had been before; that such sales caused him to neglect his business or work, or squander his means to any extent, so as to decrease the means of support of his wife, is admissible, and the jury may be instructed to take these circumstances into consideration, on the question of damages. (Dunlavey v. Watson, 38 Iowa, 400.)
NTH. The court below refused to give instructions fourteen and fifteen asked for by plaintiff in error. Fourteen reads:
“That a fact admitted is the same as a fact conclusively proved; that in this case plaintiff admits that she signed voluntarily and of her own accord, divers and sundry petitions for defendant and several other persons to sell intoxicating liquors in Hanover, where she and her husband lived, and for the same time included in the pleadings and shown by the evidence in this case.”
Instruction fifteen reads:
“That if the plaintiff contributed to the intoxication of her husband, either by drinking with or encouraging him to drink, or by providing means whereby he could and did obtain intoxicating liquor, that in that case she cannot recover.”
These instructions were properly rejected. During the time the dramshop act was in force, the sale of intoxicating liquors by a party having a dramshop, tavern or grocery license, was lawful, and a person signing a petitioner recommendation that the party applying for such a license was a fit person to keep the same, did not thereby consent that the party obtaining the license might sell intoxicating liquors contrary to the provisions of the act, or might injure others by selling, bartering or giving intoxicating liquors without being liable for damages. The most that can be said is, that the defendant in error assisted the plaintiff in error by her signature to obtain for him a license to sell liquors under the terms of the statute. But by signing his petition, she did not authorize him to barter, sell or give intoxicants to her husband or any other person in violation of the statute, nor by so acting did she consent that he might injure her in person or property, or means of support, by intoxicating her husband. (Jackson v. Brookins, supra.) The instruction about contributing to the intoxication of her husband by drinking with or encouraging him to drink, or by providing him means whereby he could obtain intoxicating liquors, was not supported by evidence, as defendant in error was not guilty of such conduct at any time within two years prior to the commencement of this action, even if she was ever guilty. • The time that plaintiff in error testified the defendant drank beer at his house which her husband bought, was, according to his testimony, about six years before the trial. The instruction was also erroneous, because it declared that defendant in error could not recover if she provided the means whereby he could and did obtain liquor, without saying that she provided the means, “knowing it was to be used for that purpose.”
IX. The eighteenth instruction, which was refused, is:
“The court instructs the jury that if they find from the evidence the defendant sold the plaintiff’s husband intoxicating liquor within two years prior to April 13, 1881, at a time when he was sober, and that’ at such times plaintiff’s husband did not become intoxicated, they should not consider such sales in determining the amount of plaintiff’s recovery.”
It has already been decided by this court, that it is no defense to an action brought under §10 of the dramshop act, that the intoxication was caused partly by liquor sold by other parties. It is enough, if the liquor sold by the party complained of was the direct cause, either in whole or in part, of the intoxication. (Werner v. Edmiston, 24 Kas. 147.) The instruction prayed for would have enabled the jury to return a verdict for plaintiff in error, although the intoxicating liquor sold to Borgman was the direct cause of subsequent intoxication ; because where two glasses of liquor are sold by two different parties, and intoxication follows therefrom, no analysis can correctly apportion the causes between the two sales. The statute holds each responsible for the result caused by the two separate sales. (Werner v. Edmiston, supra.) Borg-man may have been sober at the times that plaintiff in error made some of the sales, and at such' times did not become intoxicated ; but if upon another glass 'being sold by another party, he did become intoxicated, in part from the liquor first furnished, both parties are responsible for the result. If Borgman had taken one or more glasses of liquor at the saloon of plaintiff in error, which did not at once intoxicate him, and before its effect however had passed 'off, he obtained other glasses of intoxicating liquor from other saloons, which together with that previously drunk caused him to be intoxicated, then all the parties are guilty, because the liquor first sold was a direct cause, either in whole or in part, of such intoxication. Again, if half a dozen sales are made by half a dozen saloon keepers, on or about the same time to the same person, no inquiry is possible as to the particular glass of liquor which caused the intoxication, and the statute very properly holds each seller responsible for the result caused by the sales. If the instruction had read that the jury were not to consider any sales made to Borgman by plaintiff in error within the two years prior to-April 13, 1881, which did not contribute in whole or in part to his intoxication, the instruction might have been pertinent to the issue.
Further, the evidence is very conclusive that during the two or three years before Borgman left his family, he was-under the influence of liquor most of the time. . One witness testified that “he drank badly for two and a half years before the trial;”, another, that “he was drunk three-fourths of the time;” another, that “for two years prior to April 13, 1881, he was under the influence of intoxicating liquor more of the time than he was sober;” another testified that “when he was acting justice of the peace, upon a trial he was so-drunk as to go to sleep while the attorney was arguing the case before him;”, another, that he “drank a great deal, and that he had seen him drinking at all of the saloons in town.”' Considering therefore the habits of Borgman, a sale of intoxicating liquor to him at any time within two years prior to-April 13, 1881, could scarcely be said not to have contributed in part to his intoxication; so in any view the instruction was not prejudicial.
X. Several instructions asked by plaintiff in error were given as requested, excepting the court eliminated therefrom the word “credible” before “evidence.” This was not erroneous. The instructions were in an unusual form, and the-word credible seems to have been inserted before evidence, to mystify rather than to instruct the jury. If the plaintiff in error had wished the jury to be directed “that they were the exclusive judges of the facts from the testimony in the case, and of the credibility of the witnesses,” such an instruction if asked would undoubtedly have been given.
Counsel dwell at length upon the question of exemplary damages. They contend that the doctrine of awarding such damages is wrong in principle. It is also insisted upon, that as § 6 of the dramshop act makes it a misdemeanor for one to sell liquors to a person in the habit of becoming intoxicated, after having received notice thereof, that therefore exemplary damages cannot be allowed, because the wrong done is an offense punishable by indictment or information, and if exemplary damages be awarded a party is punished twice for the same offense. The statute expressly authorizes the recovery of damages coextensive with the injury, and likewise exemplary damages. Therefore in sustaining exemplary damages jin cases of this character, we are not engrafting upon the law. In sustaining such damages we are only executing the law as enacted. In answer to the claim that if exemplary damages are allowed, the wrong-doer is liable to be punished twice, we cite as decisive, Wiley v. Keokuk, 6 Kas. 94. See also Titus v. Corkins, 21 Kas. 722.
Counsel in commenting upon the decisions of this court awarding exemplary damages, contend that the question should be reconsidered. Where the statute expressly authorizes the recovery of exemplary damages, the authorities are with this court. In Indiana in an early case, the court held that where the sale was illegal, thus rendering the seller liable to a criminal prosecution, he coqld not be punished with vindictive damages in a civil action. (Struble v. Nodwift, 11 Ind. 65.) But it has been since held that the act of 1873 of that state has expressly abrogated this rule. (Schafer v. Smith, 4 C. L. J. 272.) In the latter case it was said: “While it is admitted that the.general assembly of this state, in the enactment of the said twelfth section of the aforementioned act, intended to and did give a right of action to the person mentioned in said section, for the recovery, not only of actual damages, but also of exemplary damages, it is urged by appellant that the gen eral assembly is prohibited by our constitution from enacting such a law. In support of this position, appellant directs our attention to the fourteenth section of the first article of the constitution of this state, which provides that ‘No person shall be put in jeopardy twice for the same offense.’ But we fail to see the applicability of this provision of our state constitution to the section of the act now under consideration. We recognize the rule which ordinarily prevails, that where a given act is or may be ‘the subject of a criminal prosecution, and also of a civil action for damages in favor of the-party thereby injured, exemplary damages will not be allowed in such action.’ This rule, however, like most of the rules of civil practice, is a proper subject of legislative action, and the general assembly may well provide in such a case as the case at bar, that the injured party may recover, not only actual damages, but also exemplary damages, and the courts of the state will be bound to carry out and enforce such provision. In considering this subject, appellant’s counsel seem to confound the terms fine and exemplary damages, and to regard the one as the synonym of. the other; but there is a marked and well-defined difference between the meaning of these terms. A fine is an amercement imposed upon a person for a past violation of law; but exemplary damages have reference rather to the future than the past conduct of the offender, and are not given as a compensation to the injured party, but as an admonition to the offender not to repeat the offense.” (See also Franklin v. Schermerhorn, 8 Hun, 112; Ganssly v. Perkins, 30 Mich. 492; Hackett v. Smelsley, 77 Ill. 109; Meidel v. Anthis, 71 Ill. 241; Schneider v. Hosier, supra; Brannon v. Silvernail, 81 Ill. 434; Corcoran v. Harran, C. L. J., vol. 15, 29.) While the statute expressly authorizes the recovery of exemplary damages in cases like this, they are not to be awarded unless the conduct of a defendant is willful, wanton, reckless, malicious, oppressive, or otherwise deserving of condemnation beyond the mere actual damage. Hence the material question is, whether the evidence brings the plaintiff in error within the rule thus announced. We think it does. The evidence shows that the sales complained of were made after the wife had found her husband sitting in a chair in the saloon of plaintiff in error, drunk, and had notified him at that time not to sell him any more liquor; that the husband during the two years prior to the commencement of this action was an habitual drunkard; that he lived only three blocks from the saloon of the plaintiff in error, and that his habits (of intoxication must have been necessarily known to him. The evidence further shows that the husband often visited the saloon of plaintiff in error, and that he was on several occasions furnished with- whisky and beer, and upon some occasions was given intoxicating liquors while in a state of intoxication. The plaintiff in error can have no excuse for his conduct, and his disregard of the law and the rights of the wife may well merit the award of exemplary damages’. (Hackett v. Smelsley, 77 Ill. 109; Kellerman v. Arnold, 74 Ill. 532; McEvoy v. Humphrey, 77 Ill. 388; 44 Iowa, 670; 30 Mich. 492.)
It is not clear to our minds that the amount of exemplary damages recovered is excessive; and'as the amount of such damages is left to the sound discretion of the jury, subject to be controlled by the court when the discretion is abused, and not finding such discretion abused,- considering all the circumstances of this case, we cannot disturb the verdict. 1
Some minor matters are submitted in the briefs of counsel, but it is unnecessary to comment upon them. After an examination of the record, and a full consideration of all the questions submitted, we perceive no error prejudicial to the interests of the party complaining.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought by the plaintiff as administrator’of the estate of Susan B. Snyder, deceased, whose death was alleged to have been caused by the carelessness and negligence of the St. Joseph & Western railroad company, and was based upon § 422 of the code.
Upon the demurrer to parts of the answer filed by the defendant, two questions are presented : First, whether the term “estate,” as used in §1, eh. 37, Comp. Laws of 1879, includes a claim for damages for causing the death of the intestate, under §422 of the code; second, if the term “estate” embraces assets only of the intestate — that is, property, rights or .choses in action held by, or belonging to, the intestate at the time of her death, and which are subject to be applied by the administrator to the payment of debts — whether in an action of this character it can be shown as a defense that the probate court had no jurisdiction to issue letters of administration on the estate of the deceased. It seems to be conceded in the argument of counsel that the deceased left no estate in the county of Doniphan, .unless the claim for damages for causing her death, under §422; may be denominated assets of the deceased, within the meaning of the statute authorizing the granting of letters of administration in this state. Sec. 1, ch. 37, Comp. Laws 1879, reads:
“ That upon the decease of any inhabitant of this ,state, letters testamentary or 'letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death; and when any person shall die intestate in any other state or country, leaving any estate to be administered within this state, administration thereof shall be granted by the probate court of any county in which there is any estate to be administered; and the administration which shall be. first lawfully granted in the last-mentioned case shall extend to all the estate of the deceased within the state, and shall exclude the jurisdiction of the probate court in every other county.”
Section 422 of the code'provides :
“ When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or the next of kin, to be distributed in the same manner as personal property of the deceased.”
In the subsequent sections of chapter 37, “estate” in §1, evidently refers to and includes only the goods, chattels, moneys, real estate, rights and credits of the deceased, or in other words, the assets of the deceased. As the deceased was not an inhabitant or resident of Doniphan county at the time of her death, unless the action given' by said § 422 is assets, the probate court of Doniphan . . , _ county had no jurisdiction to issue letters or administration on her estate, or to appoint the plaintiff jfche administrator. Now the action given by said section is for causing the death by a wrongful act or omission in a case where the deceased might have maintained an action had she lived, for an injury by the same act or omission. The right of compensation for the bodily injury of the deceased, which died with her, remains extinct. The right of action created by the statute is founded on a new grievance, viz.: causing the death, and is for the injuries sustained thereby by the widow and children or next of kin of the deceased, for the damages must inure to their exclusive benefit. They are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund when recovered is not that of the representative of the deceased, but of a trustee for the benefit of the widow and children or next of kin. As the action is for their exclusive benefit, if no such persons exist, it cannot be maintained. (Rld. Co. v. Swayne’s Administrator, 26 Ind. 477.) The administration law of Kansas contemplates that when a person dies intestate in any other state or country than Kansas, in' order to authorize the granting of letters testamentary or letters of administration the deceased must have left an estate to be administered within this state, and that estate must be something of a tangible nature to pay the costs and expenses of administration and the debts of the intestate, if any.exist. The money recovered by the administrator in an action given by §422 cannot be used for the costs and expenses of administration, or to satisfy the debts of the creditors of the deceased; and an action based upon this statute is not an “estate” or “assets” within the act respecting executors and administrators. (Comp. Laws of 1879, ch. 37, p. 408; Railway Co. v. Cutter, 16 Kas. 568.)
If the deceased was not an inhabitant or resident of this state at the time of her death, and if she left no estate to be administered within this state, and none came into it afterward, then the probate court of Doniphan county had no iurisdiction to issue letters of administraJ tion on the estate of the deceased, or to appoint the plaintiff her administrator, and all .its acts in doing so are void in ioio. It has been decided in many cases that administration granted on the estate of a person not really dead is totally void. (Stephenson v. Superior Court, 15 Reporter, p. 140; Griffith v. Frazier, 8 Cranch, 23; Williams on Exec. [Am. Notes by Perkins] 632, and notes to p. 631.) The jurisdiction of the probate court of Doniphan county to issue letters of administration is derived from the provisions of the statute, and can be only exercised under the circumstances •and in the cases provided for thereby. Therefore if the deceased, not being an inhabitant or resident of this state at the time of her. death, left no estate to be administered within this state, and none comes into it afterward, that court under the statute has no jurisdiction to grant administration. But it is said that the probate court had jurisdiction -to ascertain whether as a fact the deceased left any estate in Kansas, and its judgment granting letters of administration is Conclusive until revoked or reversed. Where the jurisdiction of a court is conceded, as a rule its judgment is conclusive of all matters involved; but if the jurisdiction be disproved, then the judgment is void for all purposes. (Mastin v. Gray, 19 Kas. 458, and the cases there cited; Melia v. Simmons, 45 Wis. 334; Moore v. Smith, 11 Rich. [S. C.] Law, 569.)
Now the probate court of Doniphan county had no authority to grant letters of administration unless the deceased left an estate in that county; and it will not do to say that the finding of that fact by the court is conclusive of its own jurisdiction, for this would be, to use a common expression, “reasoning within-a circle.” The probate court of that county we suppose assumed that the deceased had left an estate to be administered, and thereupon appointed the plaintiff administrator. But the letters in this case are no more valid, and the appointment of an administrator no more effective, than - if fhe probate court of Doniphan county had granted letters of administration upon her estate when in fact she was'not dead.. In either case, the appointment of an administrator would be void for all purposes; and as in this casé the jurisdiction of the probate court rests upon the fact of an estate belonging to the deceased in Kansas, if the defendant can clearly show that the deceased died-without leaving any estate of any kind, it must result that the entire proceedings before the probate court were without jurisdiction, and void. (D’Arusmart v. Jones, 11 Cent. L. J. 253; Thompson v. Whitman, 18 Wall. 457; Jochemsen v. Bank, 3 Allen, 87.)
It has already been decided by this court that an administrator appointed in another state'or territory can maintain an action in this state under §422 of the code; and therefore if the probate courts of this state have no jurisdiction to grant letters of administration upon the estate of the decedent, tad the probate court of any .other state has that jurisdiction, the foreign administrator thus appointed can prosecute the action. (Railway Co. v. Cutter, supra.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is the second time that this ease has been to this court. (Lindh v. Crowley, 26 Kas. 47.) After its return to the district court, the plaintiff so amended his petition as to make the action an action by P. E. Lindh as plaintiff, against J. W. Crowley alone, as the defendant. The action is founded upon three promissory notes, for $260, $270 and $280, respectively, with interest, each signed “Freeman & Co.,” and a due-bill for $150, also signed “Freeman & Co.”' It is admitted by the parties that there was a partnership, consisting of Charles F. Freeman and some other person, whose partnership name was “ Freeman & Co.; ” and it is admitted that the notes and due-bill were signed by Charles F. Freeman, the managing partner of the fir m, in the partnership name; but it is denied by the defendant that he, the defendant, was a member of the partnership, or that he ever received any benefit from the consideration for the notes and due-bill, or that any portion of such consideration ever went into the partnership business, or even that there was any legal consideration for the notes and due-bill; and it is claimed by the defendant that the transaction between Lindh and Freeman was a purely personal transaction, having no connection with the partnership business, and that it was instituted and carried out for the sole purpose of defrauding the partner of Freeman, and that Lindh, as well as Freeman, was fully cognizant of the object and purpose to be subserved by the execution of the notes and due-bill, and of all other facts connected with their execution.
This case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the amount of recovery at $1,066.33. The defendant then moved the court for a new trial, upon the following grounds: “1. That said verdict is not sustained by sufficient evidence, and is contrary to the weight of the evidence. 2. The said verdict is contrary to law. 3. Error of law occurring upon the trial, and excepted to at the time by the defendant.” The court below sustained the motion for the new trial. Upon this subject the record brought to this court shows, among other things, as follows:
“The court thereupon decided to grant the said motion for a new trial, upon the ground that the evidence introduced in said trial did not sufficiently prove that the money paid by the plaintiff to the said Charles F. Freeman went into the firm business of Freeman & Co., and that the said evidence did not prove sufficiently that the said J. W. Crowley ever received any benefit therefrom. This is the theory upon which the case has been tried, and it is not sustained by the evidence to the satisfaction of my mind. To which decision and ruling of the court plaintiff excepted at the time.”
The plaintiff brings the case to this court, assigning as error the order of the court granting the new trial. It is evident from the pleadings, the evidence, and the instructions of the court below, that the court below did not mean to say that the case was tried solely upon the theory that the money paid by the plaintiff to the defendant in consideration of the notes and due-bill went into the firm business of Freeman & Co., and that J. W. Crowley thereby received benefit from such money, for they all show that other questions were involved in the case, and that litigated in the case was whether J. W. Crowley was a member of the firm of Freeman & Co., or not. The court, for instance, instructed the jury, among other things, as follows:
“The plaintiff here claims that the firm was composed of the said Charles F. Freeman and the defendant J. W. Crowley. The defendant denies this, and says he was not a member of that firm. He admits the existence of such a firm as Freeman & Co., but says Mary Crowley, his mother, was a member of it, and not himself; and this would seem to be the first question to be disposed of in the case. If you should find and believe from all the testimony that the defendant was not a member of that firm, then it would be your duty to find a verdict for him, and that would be the end of this case before you; but if you should find and believe from the testimony that the defendant was a member of the firm of Freeman & Co., then other questions would arise on the other portions of the answer of the defendant..... The burden of proof is upon the plaintiff to satisfy your minds of the fact that this defendant was a member of the firm of Freeman & Co., and that he is entitled to recover against it.”
Evidently the court below, by using the language above quoted in sustaining the motion for the new trial, simply meant to say that the case was tried by the plaintiff not only on the theory that J. W. Crowley was a member of the firm of Freeman & Co., and that the notes were given and received in good faith for money loaned by the plaintiff, but also that the case was tried- by the plaintiff upon the further theory that the money loaned by the plaintiff to Freeman & Co. actually went into the partnership business, and that J. W.-Crowley thereby received a benefit therefrom; but that there was not sufficient evidence, in the opinion of the court, to prove that the money was so used, and therefore that a new trial should be granted because of such failure in the proof; and construing such to be the meaning of the language of the court below, we think the court granted a new trial for an insufficient reason. First, the partnership was a trading partnership or mercantile partnership, being organized for the purpose of buying, selling and dealing in drugs, medicines, etc.; and second, the notes and due-bill were signed by the managing partner, and in the partnership name; and under such circumstances it will be presumed that the notes and due-bill were executed for a partnership purpose, and in the course of partnership dealings, and the burden of proof will rest upon him who asserts the contrary. (Davis v. Cook, 14 Nev. 277; Teft v. Stewart, 31 Mich. 373, 377; Deitz v. Regnier, 27 Kas. 94, 104, et seq. See also other cases cited in counsel’s brief for plaintiff in error, as follows: Gregg v. Fisher, 3 Brad. 261; 1 Parsons on Notes and Bills, 128; Whitaker v. Brown, 16 Wend. 511; Gansevoort v. Williams, 14 id. 138; Carrier v. Cameron, 31 Mich. 377; Kraft v. Freeman Printing and Pub. Co., 1 N. Y. Cond. Rep. 169.)
As the jury found in favor of the plaintiff and against the defendant in this case, it must also be presumed that the whole of the transactions had between the plaintiff and Charles F. Freeman were in good faith; that the money was actually loaned by the plaintiff to Freeman, and the plaintiff at least believed that the money was to be used in the partnership business. The court below has said nothing that tends to destroy the force of these presumptions. It is true the court below has said there was not sufficient evidence to prove that the money loaned by the plaintiff to Freeman was actually used in the partnership business, or that Crowley ever received any benefit therefrom. But this fact we think is wholly immaterial. It makes no difference, so far as the plaintiff is concerned, whether the money loaned was actually used in the partnership business, or not; or whether Crowley ever received any benefit therefrom, or not. If he believed when he loaned the money that it was to be used in the partnership business, that was and is sufficient so far as he is concerned. (See authorities above cited; also, Lindley on Partnership, 266, et seq., 269, et seq.; Fox’s Digest of Partnership, 262, 263.) When a person in good faith loans money to a commercial partnership, and loans it to the managing partner of the firm, as in this case, such person cannot be held to be responsible for the use of the money afterward. Such managing partner is not the agent of the lender of the money, but is in fact the agent of the partnership; and if he fails to use the money in the partnership business, or fails to use it for the best interest of the partnership, it is the partnership that must suffer, and not the lender of the money. It will be seen that the court below in this case granted a new trial on account of a).wholly immaterial matter; and therefore it would seem to follow that the order of the court below granting a new trial should be reversed. In the case of Field v. Kinnear, 5 Kas. 238, is is said that “ this court will exercise a supervisory control over the action of the district court in either granting or refusing a new trial, and reverse the order of the district court in either case whenever that court misapplies or mistakes some settled principle of law, or manifestly abuses its discretion to the prejudice of either party.’.’ In the present case, we think the court below mistook a settled principle of law, or, in other words, was mistaken with regard to the law. If the court below had overruled the motion for the new trial without stating its particular reasons therefor, it is probable that this court would not reverse its ruling, for the reasons often stated by this court in refusing to disturb an order of the district court granting a new trial; but in this case the trial court has stated its reasons specifically, and we think the reasons are not sufficient. If it was clear that the defendant’s motion for a new trial should be granted for some other reason than • those stated by the court below, it is probable that this court would not disturb the order granting the new trial, although the order was avowedly granted for a reason which we deem to be insufficient. But we cannot say from the record before us that the defendant’s motion for a new trial should be granted for any reason. The defendant suggests that the reasons given by the district court for granting the new trial are sufficient, for the following reasons: At the time the plaintiff loaned the money to Freeman, and took the notes and due-bill sued on, the plaintiff did not know who the other member of the firm of Freeman & Co. was, and that he loaned the money principally, if not entirely, upon the credit of Freeman. This we think cannot make any difference, for he loaned the money to go into the partnership business — loaned it to the managing partner, and took the notes and due-bill in the partnership name. He evidently gave the credit to the partnership business, as well as to Freeman.
The order of the court below granting the new trial will be reversed, and the cause remanded for further proceedings.'
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, plaintiff below, brought its action against the defendant on an acceptance signed by the firm of Jennings & Whitney. The defendant claimed a release from liability thereon. The case was tried by the court without a jury, and judgment entered in favor of the defendant. Plaintiff alleges error, and the single question presented s, whether the testimony was sufficient to justify a finding of a release from liability. The facts are: In 1876 defendant and one N. C. Whitney were partners, doing business at Streator, Illinois. As such partners they purchased of the plaintiff certain agricultural implements, and for their price gave this acceptance in the name of the firm. That these implements were purchased by the firm, and that this acceptance was given by the firm and in the first instance binding upon this defendant as well as upon his partner, is conceded. In 1877, the firm dissolved, Whitney taking all the property and assuming all the liabilities. The acceptance has never been paid. Defendant claims that upon the dissolution the plaintiff agreed to take Whitney for the debt, and release him. All the officers of the plaintiff were witnesses, and testified that they never released defendant or accepted Whitney alone for the debt, and that they never authorized anyone to enter into such an agreement for the plaintiff. The defendant on his direct examination testified as follows:
“I had an understanding with Whitney that he was to take the notes, goods, etc., of the firm of Jennings & Whitney, and pay the debts of the firm, including this draft, and I think an agent of the company was present at the conversation. If such agent was not present at the time Whitney and I had the understanding, he was present when it was stated to him afterward, and made no objection.”
On cross-examination he said:
“ I do not say, in the strict sense of the word, that I have been released from the payment of the draft by the Eagle manufacturing company, yet I think the company was knowing that there was an understanding between Whitney and myself, that he (Whitney) was to take care of that claim and pay it. To my knowledge, the plaintiff never released me and accepted Whitney for the same, except as stated in my direct examination. I do not think that any member or agent of said plaintiff ever released me from liability on the same, except as I have stated in my direct examination. The conversation above referred to was the only conversation I ever had in regard to release from said draft. I have never paid the 'draft sued on in this action. In the conversation above referred to, in the presence of the agent or plaintiff, the substance of it was in speaking of the indebtedness of the firm pertaining to the arrangement of Whitney and myself. I simply explained to him what the arrangements were between Whitney and me; this was the only conversation I ever had on the subject of'release, and this was all of said conversation.”
Further than that, when the acceptance was presented to him in this state for payment, he made no claim of a release from liability, but simply said that he was unable to pay and that Whitney ought to have paid it. It is not pretended .that at the time of the dissolution a new partner took defendant’s place and such new firm assumed the debt, or that any additional security \yas given by Whitney, or that the original acceptance was taken up and new paper given, or that the plaintiff received any consideration whatever.
If this were all that there was in the case, there would not be room for the slightest doubt. The only question arises from the following matters: Defendant filed an affidavit for a continuance, for the purpose of obtaining the testimony of Whitney. Such affidavit 'stated as follows:
“Said defendant verily believes that said Whitney will testify that said Jennings was released from said acceptance mentioned in plaintiff’s petition, and that the plaintiff was to look to and hold said Whitney as the only person liable thereon; that there was an understanding between this affiant and said Whitney by and with the consent of said manufacturing company, plaintiff, that said Whitney was to pay said acceptance, said Jennings, this affiant, to be released therefrom.”
Plaintiff consented that this should be received as the deposition of said Whitney; the continuance was overruled, and the case went to trial. Is there, enough in this, taken in connection with the other testimony, to sustain the judgment? We are constrained to think not. In the first place, much of it is a mere statement of the conclusions of the witness, rather than of the facts which he saw and heard, and as such is objectionable'testimony. (Shepard v. Prattt 16 Kas. 209.)' Again, it fails to show any consideration for the alleged release. Still again, a legitimate inference is, that it refers to the same conversation and pretended release referred to by the defendant in his testimony. And still further, the answer which was filed contains no direct allegation of a release of defendant. All that it says in respect thereto is in these words:
“That this plaintiff had due notice of said dissolution and the assumption of all liabilities of said N. C. Whitney, and that they accepted him for the payment of said bill of exchange.”
We think, therefore, putting all these things together, that the judgment of the district court ought not to be sustained. The partnership purchased plaintiff’s goods; it gave this acceptance; the acceptance was clearly binding upon the defendant; the dissolution of the partnership, the taking of all the partnership property, and the assumption of all partnership liabilities by Whitney, in no manner released defendant. The alleged promise of plaintiff was made after the dissolution, and not as an inducement to or consideration of it. The acceptance has never been paid. Upon the dissolution no new partner took defendant’s place and furnished his responsibility as security to the plaintiff. No additional security of any kind was furnished; the acceptance was not destroyed and new paper given. The plaintiff received absolutely no consideration, and even if it did promise (which is positively denied) that it would look to Whitney, such promise was entirely without consideration, and in no manner discharged the defendant. The defendant in his verified answer does not explicitly assert that he was ever released, and his testimony plainly shows that he was not.
We think, therefore, that the judgment of the district court ought not to be sustained; that it must be reversed, and the case remanded for a new trial; and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine,-J.:
This case grows out of the same facts as are reported in the case of Stationery and Paper Co. v. Case, 26 Kas. 299, together with certain other and additional facts, which will be mentioned hereafter in this opinion. The facts of this case, stated briefly, are as follows: Sometime in the year 1880, F. N. Miller, a constable, of Topeka, levied an attachment, issued in a certain case, in which John Foley was the plaintiff and George O. Wilmarth was the defendant, upon certain goods belonging to George O. Wilmarth. Afterward, and while the goods were still in the possession of Constable Miller, A. Kuykendall, another constable, attempted to levy three executions upon them, which executions, in the aggregate, amounted to $453 and costs. The plaintiffs in these executions were: (1) M. H. Case; (2) The Williamson-Stewart Paper Co.; and (3) T. J. Kellam & Co. George O. Wilmarth was the defendant in all these executions. Afterward, Constable Miller levied five executions upon the same property, which excecutions amounted, in the aggregate, to $332 and costs. The plaintiffs in these last-mentioned executions were as follows: (1) The Western News Co.; (2) James Douglas; (3) J. M. W. Jones Stationery and Paper Co.; (4) Reynolds & Reynolds; and (5) Kate Douglas. George O. Wilmarth was the defendant in all these executions. Afterward, Constable Miller sold a sufficient amount of these goods to satisfy the attachment in the case of Foley v. Wilmarth; and there still remained in his possession a portion of the goods, of the value of about $225. The question then arose as to’which had the superior right to the possession of these goods s.till remaining unsold, and the prior lién thereon — Constable Miller, or Constable Kuykendall; and, to save costs and expenses and much litigation, it was agreed by the plaintiffs in all these executions that Constable Kuykendall might take the possession of the goods under his executions, and advertise them for sale, and sell them, and deposit'the proceeds of the sale in the Topeka bank; and that the question as to which of the two constables, and as to which of the two sets of plaintiffs in the executions, had the superior right to the possession of the goods, and the prior right to the proceeds of the sale thereof, should be submitted to the district court for its determination. This entire agreement was strictly complied with and carried out by the parties and the constables. Constable Kuykendall took the possession of the goods, advertised them for sale and sold the same for $225, and deposited the proceeds thereof in the Topeka bank; and the question of the priority of rights and of liens was submitted to the district court for its determination; which court decided that Constable Kuykendall, and the parties whom he represented, had the prior right with respect to the property, and the prior right to receive the proceeds thereof. The case was then taken to the supreme court, which reversed the decision of the district court, holding that Constable Miller, and the plaintiffs in execution whom he represented, had the prior right to' the goods, and to the proceeds thereof. (Stationery and Paper Co. v. Case, 26 Kas. 299.) After the case had been so reversed, and after it had been remanded to the district court,'George O, Wilmarth, the execution debtor in all these cases, transferred his interest in the proceeds of the sale of the goods to F. G. Hentig, by executing the following instrument in writing, to wit:
“Topeka, Kansas, November 5, 1881.
A. Kuykendall to Q. 0. Wilmarth, Dn.
To amount of my goods sold by you as constable, - $225.
For value received, I hereby assign and transfer to F. G. Hentig all my right, title and interest to and in the above account, and authorize him to collect the same for his own use and benefit. George O. Wilmarth.”
Hentig then demanded the money — said proceeds — of Kuykendall, and Kuykendall then commenced this action in the nature of a bill of interpleader, to have the question determined as to who was entitled to receive the money. The court below decided that Hentig was entitled to receive the same; and the plaintiffs in error now bring the case to this court for the purpose of having the decision of the court below reversed.
We think the court below committed error; for, whoever may be entitled to the proceeds of said goods, we think it certainly cannot be Hentig. When Constable Miller first levied his attachment upon the goods, he obtained a lien thereon, and a right to the possession thereof, paramount to the adverse claims of all other persons; and, as against Miller, the constable; and Foley, the plaintiff in the attachment, Constable Kuykendall and the parties whom he represented could not, and did not, obtain any interest in the goods. Kuykendall’s attempted levies upon the goods were at that time as against Miller and the parties whom he represented, ineffectual and void. The subsequent levies, however, of the subsequent executions held by Miller, were valid and bind ing, although of course they ymre subsequent in time and subsequent in right to the levy of Foley’s attachment; and there has nothing transpired since that time to destroy or invalidate these levies made by Miller, except, the subsequent agreement had between all the plaintiffs, and the proceedings had under such agreement. Afterward, as previously stated, Kuykendall, by virtue of his levies of the executions which he held in his hands, and by virtue of the agreement of the parties, obtained the possession of the goods, and advertised the same for sale, and sold them. Now, as against Miller, arid the parties whom he represented, this did not give Kuykendall, and the parties whom he represented, any priority of right to the goods, or to the proceeds thereof. Really, as between Miller and the parties whom- he represented, on the one side, and Kuykendall and the parties whom he represented, on the other side, the levies made by Kuykendall must be treated as void. (Stationery and Paper Co. v. Case, 26 Kas. 299.) But it does not follow from this, that as between Kuykendall and the parties whom he represented, on the one side, and Geo. O. Wilmarth and his assignee, Hentig, on t^ie other, that the levies made by Kuykendall must still be treated as void. Kuykendall attempted, in ^good faith, to levy upon the goods; he did at the time everything that was necessary to be done in order to make the levy valid, except that he did not get the immediate possession of the property; but afterward, and by virtue of his levies and of the said agreement he did get the full, complete and absolute possession of the property. This, we would think, would be sufficient, as against Wilmarth and his assignee, to make the levies made - by Kuykendall valid. Indeed, as against Wilmarth and his assignee, we would think that we' should consider that all the levies made by both Miller and Kuykendall were valid. Of course, when we come to determine the priorities of rights as between the parties represented by Miller on the one side, and the parties represented by Kuykendall on the other side, we must say that the rights of the parties represented by Miller are paramount. But when we come to consider the priori ties of rights as .between ’Wilmarth’s assignee on the one side, and any of the other parties or persons on the other side, we must say that the rights of all the other parties and persons, except those of Wilmarth himself, are paramount to the rights of Wilmarth’s assignee, Hentig. Hentig is now asking for the money which Kuykendall received on the sale of said goods. But when Kuykendall received it, did he not have the right as against Wilmarth to appropriate it to the satisfaction of the executions which he then held in his hands against Wilmarth? and this, even though his prior levies may have been void. A constable has a right to appropriate any money' of the execution debtor, which may come into his constable’s hands, to the satisfaction of any execution which the constable may Ijold against the execution debtor. At this time Hentig had no interest in the matter. The assignment to him had not yet been executed. We would think, from the agreed statement of facts and the admission of the parties, that the priorities of the rights of the parties with reference to the Proceeds of the sale made by Kuykendall are as follows: (1) The Western News Co.; (2) James Douglas; (3) J. M. W. Jones Stationery and Paper Co.; (4) Reynolds & Reynolds; (5) Kate Douglas; (6) M. H. Case; (7) Williamson-Stewart Paper Co.; (8) T. J. Kellam & Co.; and (9) F. G. Hentig, assignee of Geo. O. Wilmarth. Foley’s claim was satisfied' out of the proceeds of the sale made by Constable Miller. Foley, of course, had a lien prior to the claims of any of the other parties. But his lien has been satisfied.
This case is an equitable'proceeding, and we think we should look upon the rights of all the parties, so far as legal principles will permit, in a purély equitable ‘manner; and, doing so, we think that there is nothing as between Hentig, the assignee of Wilmarth, on the one side, and the judgment creditors of Wilmarth, on the other side, that should render any of the proceedings had in this case void. Kuykendall’s levies can be said to be void only as against those who claim under Miller’s levies. We think that all the proceedings had in this case should be treated as valid as against Wilmarth’s assignee; and the proceeds of the sale of Wilmarth’s goods should be paid out to the parties in accordance with their respective priorities, as we have indicated.
The judgment of the court below will be reversed, and cause remanded for further proceedings, in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a proceeding originally instituted by the St. Louis, Fort Scott & Wichita railroad company, to condemn a strip of land through Greenwood county, for the purpose of appropriating the same as a right of way for the company’s railroad. The facts of the case are substantially as follows: On October 10, 1881, the St. Louis, Fort Scott & Wichita railroad company, by its attorney J. F. Hill, applied to the judge of the district court of Greenwood county to appoint three commissioners, under § 87 of the act relating to corporations, to lay off a route, and to make appraisements and assess damages along the line of the company’s proposed railroad. The judge' made the appointment as prayed for. On October 13, 1881, the commission ers qualified and proceeded to the performance of their duties. Among other things, they established the route of the company’s proposed railroad across certain land belonging to John D. Martin, and assessed the damages thereto at the sum of $247. On December 8, 1881, they made their report, and within ten days thereafter, to wit, on December 18, 1881, Martin appealed from their determination to the district court, by filing the proper appeal bond. A full transcript of all the proceedings had in the ease, up to the time of taking the appeal, was filed in the district court. On May 1, 1882, the railroad company appeared in the district court, by its attorney T. L. Davis, and filed a motion to compel Martin to file a petition in the case. This motion was sustained by the court, and on May 4,1882, Martin filed his petition, entitling it “John D. Martin, plaintiff, v. The St. Louis, Fort Scott & Wichita Railroad Company, defendant,” and setting forth therein substantially and in general language all the foregoing facts, and alleging further, that by reason of the appropriation of his land for railroad purposes, he was damaged in the sum of $850, and asking that judgment for that amount, with interest and costs, be rendered in his favor. On May 19, 1882, the railroad company answered this petition by filing a general denial. On August 7, 1882, the railroad company filed a disclaimer, setting forth that it disclaimed all right, title, interest and possession in and to or concerning the plaintiff’s land. On August 18, 1882, the case came on for trial, and the railroad company, with the permission of the court and the consent of Martin, withdrew its general denial; and the case was then submitted to the court for decision upon the petition of Martin and the disclaimer of the railroad company, and without the introduction of any evidence by either party. The court decided the case in favor of Martin and against the railroad company, and rendered judgment therein that the railroad company had no right, title or interest in or to the. land in question, and that Martin should recover his costs from the railroad company, taxed at $9.55. Of this judgment for costs, and for costs only, the railroad company now com plains, and asks that the judgment shall be reversed, and that judgment be rendered in its favor and against Martin, for costs.
We think the judgment of the court below is correct. In the proceeding as it was originally instituted, the railroad company was substantially the plaintiff and Martin substantially the defendant. The railroad company proceeded in the case until it procured, in legal contemplation, a right to the perpetual use of a portion of the plaintiff’s land for a right of way for its railroad. Nothing further was to be done on its part to secure its object, except to pay the amount of damages awarded by the board of commissioners. But Martin was not satisfied with the damages awarded to him, and hence he appealed to the district court. His appeal, however, did not disturb any of the other proceedings. (See § 68 of the act relating to corporations.) His appeal enabled him merely to litigate the question as to the amount of damages which he should recover, and nothing else. It did not, and could not, disturb the company’s right to its right of way across his land. If that right were to be disturbed, or in any way impaired, it could only be done with the consent of the railroad company itself. As the railroad company had already obtained all that, it ■ sought to obtain by virtue of the condemnation proceedings, it properly ceased to be the plaintiff, and Martin, who was seeking for a greater amount of damages, and who took the appeal to the district court, very properly became the plaintiff in that court. This has gen.erally been recognized as the proper mode of treating the parties. At least this mode of treating them, on appeal in condemnation proceedings, has generally been recognized as the proper mode in Kansas. But exactly such a case as the present one has never before been brought to the attention of this court. After the condemnation proceedings were taken on appeal to the district court, the railroad company chose to abandon all its rights obtained by virtue of such proceedings, and to surrender them to Martin. It virtually chose to dismiss the condemnation proceedings which it had previously' instituted, and virtually to accept a nonsuit. The abandonment of all the rights and interest which it had obtained by virtue of the condemation proceedings, is in effect very similar to the dismissal of an ordinary action, or the acceptance of a nonsuit in an ordinary action. It is true that, with respect to the damages, and after the case was appealed to the district court, Martin would seem to be the plaintiff and the railroad company the defendant. But with respect to the entire proceedings, from the commencement to the conclusion, (the whole of the condemnation proceedings,) the railroad company would seem more properly to answer to the description or definition of a plaintiff, and Martin to the description or definition of a defendant; and hence the abandonment by the railroad company of everything connected with the condemnation proceedings, would more properly seem to be a dismissal or abandonment of the case by the railroad company than by Martin. A dismissal or abandonment by Martin would simply be a dismissal or abandonment of his appeal, leaving the railroad company to enjoy all its rights and privileges obtained under the condemnation proceedings. Martin had nothing but his appeal to dismiss or abandon. But he did not dismiss or abandon his appeal. He prosecuted it to the end, and until the railroad company agreed on its part to virtually abandon the whole condemnation proceedings and all the right which it had obtained under such proceedings.
An appeal from the award of condemnation commissioners is taken substantially in the same manner as an appeal is taken from a judgment of a justice of the peace; and we suppose when a transcript is filed in the district court of all the condemnation proceedings, that the district court may take judicial notice of such proceedings. The district court should take judicial notice how the proceedings were instituted, how they were brought into existence, and how they were brought into the district court, and of all things connected therewith; or, more properly speaking, the district court should take judicial notice of all such proceedings, so far as the same are embodied in the papers of the case, and filed in the district court. Hence it would not be necessary-on the trial of the case in the district court for either party to show by evidence any of the previous proceedings bad in the case which the papers in the case already show. Of course, if the railroad company had not abandoned its proceedings, and Martin had insisted upon a judgment for damages, it would have devolved upon Martin to prove his damages. But Martin even then would not have been required to prove by evidence introduced on the trial, that the railroad company had instituted the proceedings, or the nature of such proceedings, or that such proceedings were condemnation proceedings; for the court would take judicial notice from the papers in the case of all these matters, leaving Martin simply to prove that he was damaged, and the nature and extent of his damages. On an appeal to the district court in condemnation proceedings, all that the owner of the land is required to prove is his damages. He will be required to show his interest in the land, and the nature and extent of the injuries to it, and of all else the court will take judicial notice from the papers in the case. But if the railroad company, after instituting condemnation proceedings, and after prosecuting the same until it had obtained interests in the property, should then say to the owner of the property: “We do not want your land; we do not choose to use it for railroad purposes, or for any other purpose, but return it to you; ” and if the owner should not wish to prosecute the case any further for the damages already committed by the railroad company, we would think that it would be proper for the court to render a judgment in favor of the owner of the land and against the railroad company for costs. It would certainly seem to be useless to introduce evidence for the purpose of showing who originally instituted the proceedings, or the nature or character of the proceedings, when the papers in the case themselves sufficiently showed such facts. It would certainly seem to be useless to introduce evidence tending to show actual damages, when the owner of the property was no longer claiming a judgment for damages; and it would cer tainly seem fair and right and just, after a railroad company has instituted a kind of proceedings which necessarily requires the creation of costs, and then voluntarily abandons such proceedings, that the railroad company should pay all costs.
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.:
This action was brought by Luke Over-man against Sarah A. Hathaway, for the purpose of procuring a complete and perfect title to a certain piece of land situated in Leavenworth county, Kansas, and containing two and one-half acres. The action was tried by the court below without a jury, and the court made the following findings and conclusions of fact and of law, to wit:
FINDINGS OF FACT.
“1. Prior to 1879, John F. Hathaway and the defendant were, and they now are, husband and wife, living and cohabiting as such.
“2. In the spring of 1879, said John F. Hathaway made a contract in writing, which was not signed by the defendant or anyone for her, by which he obligated himself upon the payment of $35 to him by the plaintiff, to convey to the plaintiff the two acres of land in the petition mentioned. Twenty-five dollars of the purchase-money was paid by the plaintiff to the said John F. Hathaway directly, and the remainder thereof was paid by the plaintiff to the defendant for the said John F. Hathaway'about the time of the purchase of said land by the plaintiff, with the consent of said Hathaway and without.objection by the defendant. The plaintiff went into possession thereof, made valuable improvements thereon, and still .holds possession of the same.
“ 3. Subsequent to the purchase above mentioned, and prior to September 21, 1880, the plaintiff made a verbal agreement with the said John F. Hathaway for the purchase of the one-half acre mentioned in the petition, for the consideration of $10, which one-half acre adjoins the two acres above mentioned, and immediately took possession thereof and inclosed the same with a fence. The purchase-money for the one-half acre was paid by the plaintiff by work for him upon and about his residence, under the direction sometimes of the said Hathaway, and sometimes under the direction of the defendant.
“4. The said two and one-half acres, at the time of the purchase thereof by the plaintiff, were the property of said John F. Hathaway in his owh right, and he held the title to the same, and they constituted no part of his homestead or that of his family.
“ 5. The defendant, at the time of the sale of each of the tracts mentioned, knew of the agreements between the plaintiff and the said John F. Hathaway for the purchase and conveyance of the same, and made no objection thereto until after the purchase-money had been fully paid, when she refused to join the said John F. Hathaway in the execution of a conveyance of the property to the plaintiff.
“6. On September 21, 1880, the said John F. Hathaway, alone, and without his wife joining therein, executed, acknowledged and delivered to the plaintiff a general warranty deed for the said two and one-half acres, which deed was received and placed on record by the plaintiff, knowing that the defendant not only had not executed or acknowledged the same, but that when requested so to do had refused.”
CONCLUSION OP LAW.
“The defendant is entitled to a judgment against the plaintiff for costs.”
We think the court below erred in its conclusion of law. The facts as found by the court below, we think would authorize a judgment in favor of the plaintiff-and against the defendant; and they certainly do not place the defendant in any very enviable position in an equitable proceeding such as this is. The defendant consented to the contracts made for the sale of the land, for she had full and complete knowledge of the same and made no objection thereto, although under the circumstances it was her duty to object if she did not approve such contracts. She consented to her husband’s putting the plaintiff in the possession of the land under the contracts; because she stood by, saw the same done, and made no objection thereto. She consented to the plaintiff making lasting and valuable improvements upon the land under and by virtue of such contracts; because she stood by and saw it all done without making any objection thereto. She consented to the plaintiff paying the purchase-price for the land, or a part thereof; because she received it herself for her husband without objecting thereto. She also consented thereto, because a portion of the purchase-price of the land was paid by the work of the plaintiff upon the homestead of the defendant and her husband, which work was for the mutual benefit of herself and husband, and was done, partly at least, under her direction, and at all times she was perfectly cognizant of all the circumstances of the case. After thus acquiescing in and consenting to all these things; after the payment of all the purchase-money; after receiving the benefit of a portion of it at least, by the work and labor of the plaintiff upon her homestead under and by her direction, can she then, for the first time, object to the transfer of title to such land, by refusing to join her husband in a conveyance of the same, or otherwise, and thereby defeat the plaintiff in procuring a perfect title to his land ? We think the acts and conduct of the defendant constitute an implied contract to transfer to the plaintiff all her interest in the land; and she is certainly now estopped by sucb acts and conduct frofn claiming any interest in the land herself. If she is not so estopped, she will be permitted to perpeti’ate a fraud upon the.plaintiff — a kind of wrong which courts of equity never encourage, and never even allow, if they can prevent the same. The plaintiff undoubtedly had the right to suppose from the acts and conduct of the defendant that she would unite with her husband in conveying to him the land in controversy whenever he had performed all the conditions precedent on his part, and she has no right now to object. It is a well-established principle in equity, that if a person having an interest in land or other property permit or encourage a person to buy the same of another, the purchaser, under such circumstances, will obtain a good title thereto as against the person having such interest therein. (Smiley v. Wright, 2 Ohio, 506, 510, and authorities there cited; Storrs v. Barker, 6 Johns. Ch. 166;) and this rule.prevails against femes coverts, as well as against other persons; (same authorities.) And it certainly prevails under the statutes of Kansas, which place married women in about the same condition as married men. The defendant, at the time of the contracts of sale, had an interest in the land in question. It is true that her interest in such land was only contingent and inchoate; but still it was an interest which might at some time become absolute and complete. (Madigan v. Walsh, 22 Wis. 501.) Her interest we think was undoubtedly sufficient to enable her to sue or be sued with reference thereto. (See authorities above cited, and statutes of Kansas.) We also think that the acts and conduct of the defendant during the time while the plaintiff was paying for the land, so far bound her to alienate her interest in the land that a court of equity now has the power to and will enforce the completion of such alienation. (Edwards v. Fry, 9 Kas. 417, 426, 427.)
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant was convicted in the district court of McPherson county upon a charge of violating §3, ch. 128 of the Laws of 1881, in this, that being a practicing physician and having filed the affidavit required by said section, he made a prescription for intoxicating liquors in a case in which there was no actual sickness, and where there was no necessity for the use of such liquors. From this conviction he appeals to this court, and claims first that such section is unconstitutional. He insists that the subject-matter of the section is not expressed in the title of the act, as required by §16 of article 2 of the constitution. The title of the act is '“An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the sale thereof for such excepted purposes.” Section 3, so far as it bears upon this question, prohibits the sale for medical purposes except upon the prescription of a physician, and describes the conditions upon which a physician may give a prescription. This is clearly j-pe SCOpe 0f tjje title. To regulate the sale for medical purposes: this comprehends all the steps which must be taken for such a sale. A medical prescription is a condition of such a sale; that is one thing by which the selling is regulated. If a medical prescription is within the scope* of the title as a regulation of sale, a penalty for an improper prescription is also comprehended within the scope of the title; for generally when a title is broad enough to include a command, it is broad enough to include a penalty for disobeying the command. The case of The State v. Barrett, 27 Kas. 213, contains nothing in conflict with this. The first proposition of the defendant therefore cannot be sustained.
The'second question raised is the one of most importance. It appears that a complaint was filed before a justice of the peace, charging the defendant with a violation of said § 3. Upon this complaint he was tried before the justice, convicted, and sentenced to pay a fine of $100 and costs. From this conviction he appealed to the district court. In the district court, the county attorney instead of asking leave to file an amended complaint, or proceeding to trial upon the complaint filed before the justice, filed an original information and immediately thereafter nollied the other prosecution. To this information the defendant filed a plea in abatement, and now insists that such prior prosecution abated the action upon this information. He claims that at the time of filing this information there was a subsisting conviction for the same offense, and that to compel him to go to trial upon this information was to place him a second time in jeopardy. It may be stated that at the time of filing the information, the prosecuting attorney said to the court that he intended to proceed no further with the original prosecution, and did in fact dismiss that before the filing of the plea in abatement. It is insisted that the appeal from the judgment of the justice did not vacate such judgment, but only suspended it, and the case of The State v. Volmer, 6 Kas. 379, is cited. But there is'this difference between that case and the one at bar: there the appeal was from the district court to this for review, and here from the justice to the district court for trial. Yet even in that case it was held that the appeal suspended the judgment for all purposes. A fortiori, the appeal in this case was equally potent. Further, while doubtless the appellant may dismiss his appeal, and thus reinstate and make final the judgment against him, yet the appeal conditionally vacates the judgment. (Blackshire v. Rld. Co., 13 Kas. 514; City of Kansas v. Rld. Co., 18 Kas. 331; Rld. Co. v. Hammond, 25 Kas. 208; Rld. Co. v. Rld. Co., 28 Kas. 453.) There is after the perfecting of the appeal only a pending prosecution. The case stands in the district court for trial as an original prosecution there. The state may dismiss the prosecution, and then there is no judgment or case in any court. The case amounts simply to this, that while one prosecution is pending and undetermined, the state commences another prosecution for the same offense. Does the prior prosecution abate the latter? The author ities indicate not. In 1 Wharton’s Crim. Law, § 521, the author says: “If a prior indictment be pending in the\same court, the course is to quash one before the party is put to plead on the other. If in different courts, the defendant may abate the latter by plea that another court has cognizance of the case by a prior bill. It is said, however, that the finding of a bill does not confine the state to that single bill; another may be preferred and the party put to trial on it, although the first remains undetermined.” Also in §523: “The practice is to prefer a new bill against the same defendant, before an application to quash is made on the part of the prosecution.” So also §547: “Where the defendant, at a previous term, has pleaded to another indictment for the same offense, the fact of the former indictment being still pending is no bar to a trial on the second. The better practice, however, is to withdraw the first indictment.” See also the following authorities: Com. v. Dunham, per Thacher, J., 1 Boston Law Reporter, 145; Thacher’s C. C. 513; Com. v. Drew, 3 Cush. 279; State v. Tisdale, 2 Dev. & Bat. 159; Dutton v. State, 5 Ind. 532; Com. v. Murphy, 11 Cush. (Mass.) 472; Com. v. Berry, 5 Gray (Mass.) 93; O’Meara v. State, 17 Ohio St. 515; Hardin v. State, 22 Ind. 347; U. S. v. Herbert, 5 Cranch C. C. R. 87.
In the case from 17 Ohio St., supra, the court uses this language: “It is insisted, in the first place, that the indictment under which the defendant was convicted is a nullity,' because of the pendency of a former indictment for the same offense at the time it was found. We know of no such law. The last indictment is as valid as the first. Two indictments for the same offense are often pending at the same time. The state can only proceed upon one of them, but may elect upon which it will proceed. Of course the right of election implies that both are good and lawful indictments.” If by § 209 of the code of criminal procedure the rule of the civil code is made applicable, then we find that by demurrer or answer the defendant may raise the question “thSt there is another action pending between the same parties for the same cause.” And at the time of filing this plea in abatement there was no other action pending. In Averill v. Patterson, 10 N. Y. 500, it is held that when the pendency of a former suit for the same cause of action is pleaded, the subsequent discontinuance of such former suit forms a good reply. See also the authorities cited by the court in the opinion in that case. We think, therefore, the ruling of the court .against the plea in abatement must be sustained. We may add that while we concur with what is said by Paige, J., in People v. Van Horn, 8 Barb. 160, that the practice of filing two or more informations for the same offense is to be discountenanced, yet in the case at bar no substantial wrong was done to the defendant. On the contrary, he was benefited by the action of the state. The complaint before the justice was not as full as the information. The state had a right, if such complaint was found defective, to file a new complaint in the district court. (Section 22, ch. 83, Comp. Laws 1879.) And a conviction under such amended complaint would carry the costs of the proceedings before the justice. Instead of doing this the 'state commenced a new prosecution, stating at the time that it did not intend to continue the former case, and in fact dismissed it immediately thereafter at the cost of the state. So that in effect the defendant received benefit rather than injury from this action. And in criminal appeals to this court we are required to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Cr. Code, § 293.)
Again, it is insisted that the court erred in the questions which it permitted to be propounded to the witnesses; yet no particular question is pointed out as objectionable, nor can we see that the general course of the inquiry was such as justifies a reversal of the judgment. Similar is the complaint made as to the instructions, and a similar comment is perhaps all that is necessary. We may add a word thereon in considering the further and final question made by counsel. It is insisted that the verdict is not sustained by the evidence. It is conceded that the defendant as a physician had filed the affidavit required by the section, and that he prescribed two bottles of beer. It is testified to that the witness Blau, for whom the prescription was made, went to the defendant and claimed that he was sick. The defendant made an examination, and prescribed the beer. The defendant testified that he acted in good faith, believed that the beer was the proper remedy, and so believing, prescribed it. Now it seems to us that upon the testimony the only real question was the good faith of the defendant; and in respect to this it appears that the witness Blau had been in the habit of drinking beer in moderate quantities for several years; that he had had none for many days, and that he went to the defendant and told him'that he wanted him to prescribe two bottles of beer, and the defendant gave him the prescription. He told the defendant wherein he was feeling badly; that he thought he needed beer, and the defendant agreed to it. After getting the beer he took the bottles back to the office of the defendant, and was invited by him to go and eat some oysters. He accepted the invitation, and the two went to a bakery near by and got some oysters, taking with them two bottles of beer, of which each drank one. Whether these bottles were the two which he obtained on this- prescription, or two furnished by the defendant, may not be certain; for it appears that two or three hours before getting this beer he had taken a prescription from defendant to the same place and obtained for him four bottles of beer, and it may be that the beer which was drank was a part of the beer then obtained. It also appears that the defendant and the witness after eating the oysters and drinking the beer, attended a party, remained there awhile, and then returned to the office of the defendant and stayed there until ten or eleven o’clock, and then the witness went home. It does not appear that the witness was confined to his house at any time, or disabled from attending to his ordinary business. Upon this testimony, as we have said, we think the only substantial question for the jury was whether the defendant was acting in good faith, and made the prescription in the honest belief that the witness was sick and needed the remedy prescribed, or was seeking simply to enable a habitual drinker to continue his regular potations. We do not think that it can be held that upon'this testimony the jury were bound to acquit. It fairly presents the question of good faith, a question whose solution would doubtless be largely helped by the appearance and manner of the witnesses on the stand (the defendant being a witness on his own behalf), and one whose determination adversely to the defendant cannot when approved by the district court be held by us to be unwarranted by the evidence. Upon this question of good faith, the court charged as follows: “If you shall find and believe that it was a ease of actual sickness in which he ought to prescribe as a physician, and that he did in good faith believe and form the judgment that beer was a necessary remedy, then he should not be convicted, though you might think he was wrong in his judgment. It is not sufficient in this view that the defendant has a so-called belief or idea that beer was necessary, but was it his honest judgment as a physician? There shohld be allowed no trick, device, or dishonesty of purpose, to evade the law.” This we think was sufficient, and presented the question fairly to the jury. The court further in its instructions explained the meaning of the word “necessary” as used in the statute. Counsel criticise this. We think it may be doubted whether too restricted a meaning was not given to this word, but we do not care to pursue the inquiry at present, for the question in the case, as it appears to us, was one of good faith on the part of the defendant, rather than as to the need of the remedy. In conclusion, therefore, we add that we see no error in the proceedings, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bjrewer, J.:
The defendant was convicted in the district court of Trego county of the crime of petit larceny, and from such conviction has brought his appeal to this court. He alleges as error, first, that the district court erred in overruling his. application for a change of venue. This application was based on the ground of an alleged prejudice on the part of the inhabitants of Trego county. The application was both supported and opposed by many affidavits, and the question is, whether upon the affidavits such a showing of prejudice was made as icompels us to reverse the decision of the trial court. The statute under which the' case of Smith v. The State, 1 Kas. 365, was decided hás been changed, and the change of venue no longer rests upon the mere affidavit of the defendant. (Comp. Laws 1879, p.752, § 177; The State v. Horne, 9 Kas. 119; City of Emporia v. Volmer, 12 Kas. 622; The State v. Bohan, 15 Kas. 407; The State v. Adams, 20 Kas. 311.) The facts stated in support of the application are substantially, that the prosecuting witness is a local preacher and treasurer of the county, and by reason thereof, possessed of great influence; that he has given his unqualified opinion that the defendant is guilty of the crime charged; has publicly ex-expressed a determination to convict the defendant, even though it cost him a large portion of his salary; that another party, who was a witness on the preliminary examination, and assisted in the search for the property alleged to have been stolen, has caused certain articles to be published in The Wahéeney World, a paper published and of general circulation in said county, reflecting on the defendant and his witnesses and the methods employed by his counsel. The articles referred to are attached to the application. We have examined these articles, and find in them nothing more than ordinary newspaper accounts of an alleged crime, the arrest of the party charged, and the preliminary examination. They are simply records of matters of public interest, alleged to have taken place; they contain no denunciations, invectives, appeals to passion, or efforts to create a prejudice against the defendant. If they did create a prejudice, it is simply because the matters stated therein to have been done by the defendant are not popular with a community which believes in respecting the rights of property. The affidavits of the state by several witnesses show a general knowledge of the feeling and opinions of the community, and tend to show that the alleged crime has not been a subject of general comment, and has aroused no feelings of passion or prejudice. Taking all the facts together as detailed in the several affidavits, we cannot see that there was any error in overruling the application for a change of venue. We see nothing which indicates any popular excitement, any deep feeling pervading the community, anything which would prevent a full, fair, and impartial trial. The prosecuting witness may be a man of character, standing and influence, firm in his belief of defendant’s guilt, and determined to use his own means in carrying on the prosecution and to secure the defendant’s conviction. Yet such a fact is not likely to sway the passions or arouse the prejudices of the community, especially in a case where the offense charged is simply the stealing of a few sacks of wheat. Neither is a newspaper account of the preliminary matters likely to be any more potent. We see nothing in this to justify any interference with the judgment.
Again, it is claimed that the court erred in overruling a question put to a juror on his voir dire. We think the question was competent and relevant, and should, not have been overruled; unless it be true, as suggested by the state in its brief, that the examination of the juror had been unnecessarily protracted and accompanied by needless repetitions. The record, however, contains only this single question; and that being the only one, we think the court should have permitted it. The- record also shows that this juror was one who was finally sworn and sat in the trial of the case. But the record fails to show that this juror was challenged either peremptorily or for cause, or even that the defendant made any peremptory challenge. Hence we.think it must be held tfyat the error was waived. (Morton v. The State, 1 Kas. 468; Wiley v. Keokuk, 6 id. 94.)
Again, it is claimed that the court erred in permitting the state to prove in the first instance that the defendant and his parents had the reputation of being thieves. That such testimony was incompetent is beyond dispute. (The State v. Thurtell, ante, p. 148.) Nevertheless, the error in its admission cannot avail the defendant, and this because no exception was saved to the ruling of the court admitting it. Further, it appears that after its admission the defendant moved to strike it out, and. thereupon the court instructed the jury to disregard all of such testimony.
Again, error is alleged in the following ruling of the court: As heretofore stated, the charge in this case was the larceny of a few sacks of wheat. The testimony disclosed that the prosecuting witness liad raised one hundred and ten bushels of wheat, that twenty-four bushels thereof were alleged to have been stolen, and the balance, eighty-six bushels, was sold and.delivered to a Mr. Rhett, a grain merchant at Ellis; that eighteen bushels of wheat were taken from the defendant’s cellar on a search warrant, and were at the time of the trial in the possession of the justice of the peace who issued the search warrant. This justice lived about fifteen miles from the place of the trial. Now in the midst of the trial the defendant moved the court to send the jury out to examine the wheat at the justice’s, or to send an officer with compulsory process to bring in the wheat, and stated that during the absence of the jury or the officer he would secure the attendance of Mr. Rhett as a witness. This was for the purpose of showing that the wheat found in defendant’s cellar was in weight, grade and quality unlike that sold to Mr. Rhett. The court declined to delay the trial for this purpose,'and of this action the appellant now. complains. ■ We see no error in the ruling. While a court may send a jury out to examine;the place in which any material fact occurred, (Comp. Laws 1879, p.768, §316; The State v. Adams, 20 Kas. 322,) yet no application of this kind was made to this court. It was not' to examine the place from which the property was alleged to have been stolen, or the place in which this wheat was found, but to examine the wheat itself. Neither can we say that the court abused its discretion in refusing to delay the trial for the sake of bringing in this wheat and securing the testimony of Mr. Khett. The matter of identity is one which should have been anticipated and prepared for by counsel, and no excuse for a failure to do so is shown. As to the objection that the verdict is contrary to the evidence, it is enough to say that it does not affirmatively appear that all the testimony is preserved.
The only other question we deem of sufficient importance to require special notice arises on the motion for a new trial. It is claimed that the verdict was not the just expression of the convictions of all the jurors, but was simply a compromise between those who believed the defindant guilty of grand larceny and those who believed the defendant innocent of any crime. In support of this motion the affidavits of the bailiff and one of the jurors were filed. In regard to the affidavit of the juror, it may be remarked that the affidavits of jurors are seldom received to impeach a verdict, though often to* sustain it; (The State v. Horne, 9 Kas. 132; Perry v. Bailey, 12 Kas. 139;) and they are never received for -the purpose of impeachment to show anything that inheres essentially in a verdict such as the personal opinion of the jurors. Stripping these affidavits of all that show mere personal convictions of. the juror, and they show simply this: that at the close of the second ballot, which resulted in a vote of eleven for conviction and one for acquittal, the one juror who voted for acquittal said that he was surprised at the vote; that he believed the defendant innocent, but was willing to agree on a verdict of petit larceny, which on the next ballot was accepted by all. The value of the property charged to have been stolen does not appear to have been shown beyond dis pute to be in excess of $20, and was found by the jury to be $19.62. It does not appear that the jury were out any length of time, or that there was any serious or protracted dispute between them. Under these circumstances ought the verdict to be set aside? We think not. It is no uncommon thing for a jury lipón first consultation to disagree as to the verdict, and to finally reach the result only upon consultation, discussion, and yielding of extreme notions on the part of some. And when the testimony is such as clearly to justify the result finally obtained, and no undue influence appears to have been exerted, the mere fact that concessions were made on both sides of those holding the extreme views does not justify a court in disturbing the verdict. This case is unlike that of The State v. Bybee, 17 Kas. 462, for in that the testimony left only this alternative: either the defendant was guilty of an offense much more heinous than that of which he was found guilty by the verdict, or else he was innocent of all crime; and the testimony showed such a condition that it was evident that the verdict did not express the convictions of any of the jurors, but was simply a result reached by undue pressure. Here there was no outside pressure, no attempt on the part of the court to extort a verdict, and all that can be said is, that those representing extreme views on either side conceded a little for the sake of unanimity. We of course must assume that the jurors were all honest men, and that they finally concurred in the result they announced. Hence we think the court did not err in refusing to disturb the verdict. There being no other question we deem of sufficient importance to require notice, and upon the whole record there appearing no material error, the conviction will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The single question in this case is as to the taxation of costs, and whether certain witnesses were entitled to the mileage claimed by them. The facts are these: The case was set for trial September 21; the witnesses were subpenaed prior thereto, and attended that day. It being apparent that the case could not be reached for trial on that day, upon the request of attorneys on both sides the court postponed the trial to September 26, and notified the witnesses that they must be present upon that day. Thereupon the witnesses returned home, and came back on the 26th to attend the trial. Eor like reasons, and upon like requests, the court a second time postponed the trial, and again notified the witnesses to be present at the day fixed. The witnesses a second time returned home, and again appeared at court on the day finally fixed for the trial. The single question is, whether these witnesses- were entitled to mileage on the occasion of those two postponements, for each trip home and back. Counsel for plaintiff in error insist that they were entitled to but one allowance of mileage for the term, and this notwithstanding the case was postponed from time to time during the term. The statute (Comp. Laws 1879, ch. 39, § 15) provides “that witnesses shall receive the following fees: For attending before any court, per day, $1.50; for each mile necessarily and actually traveled in going to and returning from the place of attendance, tpn cents.” Of course this statute controls. A witness is entitled to have taxed such fees and only such fees as the statute prescribes. Now we agree with counsel, that in a general* way this section contemplates one allowance of mileage for attendance at one term upon one subpen a. But we think it also contemplates a witness’s continued attendance from day to day until the final disposition of the case for the term, and as a consequence, his per diem while thus waiting in attendance. Witnesses ought not to be subpenaed until they are needed, and then should be discharged as soon as their presence ceases to be necessary. In such a case they would be entitled to their single allowance of mileage and their per diem while in attendance. But if parties seek and obtain from the court an order which in effect dispenses with the per diem to the witnesses, they cannot insist that such witnesses remain in attendance without compensation. By obtaining an order dispensing with their attendance, they in ■effect consent to their returning home, and if thereafter they insist upon their attendance, it is equivalent to a new subpena. It is a second demand for their attendance, and the witnesses are entitled to their mileage for miles necessarily and actually traveled in obedience to this second order. Any other construction of the statute would put it in the power of the parties to sometimes grievously oppress a witness. The case at bar is only a mild illustration. By postponing the case from the 21st to the 26th, they in effect deprived these witnesses •of their per diem for four successive days. Now if the wit nesses could not go home and charge mileage on their return in obedience to the order of the court, they would in effect be compelled to stay around the court for four days without any compensation. Such a construction would obviously be ■ unjust to witnesses, and we think not warranted by’the letter as well as manifestly against the spirit of the statute. (Hathaway v. Roach, 2 Woodb. & M. 63.) ' The ruling of the district court was therefore correct, and it must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the state of Kansas against School District No. 25, Stafford county, to establish the liability of said school district -upon certain bonds and coupons issued by School District No. 58, Barton county. The facts of the case, as set forth in the petition of the plaintiff, are in substance as follows: By an , act 0f ¿he legislature of 1875, (Laws of 1875, ch. 61, p. 88,) certain territory included within the boundaries of the unorganized county of Stafford was detached from that county, and added to and included within the boundaries of the county of Barton. Within this territory, in accordance with law, and upon the petition of the inhabitants, the county superintendent of Barton county proceeded to, and did, in May, 1878, constitute and create School District- No. 58. Shortly after the creation of this school district, the electors thereof) in pursuance of law, and at an election duly ordered and held, voted to issue the bonds of the school district for the purpose of erecting a school house within such district. The bonds were issued in conformity with this vote, and the proceeds arising from the sale thereof were expended in the building of a school house. The purchasers of these bonds were the school fund commissioners of the state of Kansas, who bought them with money drawn from the permanent school fund of the state, and the bonds thereupon became a part of that fund. It was subsequently discovered that the detaching of this territory from the unorganized county of Stafford by the legislative act above mentioned reduced the area of Stafford county below the constitutional limits, (Const., art. 9, § 1;) and thereupon a proceeding was instituted in the supreme court of the state, to test the constitutionality of the legislative act, and to restore the detached territory. [The State v. St. John, 21 Kas. 591.) The said act was held to be unconstitutional by the supreme court; and thereupon the boundá&ies of'Stafford and Barton counties as they existed before the act were restored, and all this territory, including that within the limits of School District No. 58, became again a part of'Stafford county. For some time thereafter no effort was made to disorganize or change School District No. 58. It retained its number; was composed of the same inhabitants; was controlled by the same officers, and enjoyed all the privileges that it had enjoyed during the time that it was included within and subject to the jurisdiction of the county of Barton. The school house which had been built with the avails of these bonds was still used and occupied by the inhabitants of the district, and the school census was taken in Stafford county as it had been in Barton, and a requisition made upon the permanent school fund for its (the school district’s) due proportion of the distributive share of such fund was duly honored, and it received the money to which it was supposed to be entitled, just the same as all other school districts of the state of Kansas received their money. Soon after the restoration of this territory, the county of Stafford was organized; and thereupon the first county superintendent of Stafford county proceeded to renumber the school districts within the territory which had been detached and restored, but left the boundaries thereof the same as they had been created by the county superintendent of Barton county. In the ensuing fall an election of officers took place, and the county superintendent who was then elected proceeded to change the boundaries of all these districts, enlarging some and diminishing others, but in no instance leaving the boundaries of any district the same as they had been made by the county superintendent of Barton county. In the case of School District No. 58, however, the territory was enlarged in all directions, and named School District No. 25, Stafford county, which last-mentioned school district included all the territory which had previously been included within the original boundaries of School District No. 58, Barton county.
The defendant demurred to the plaintiff’s petition, upon the ground that it did not set forth facts sufficient to constitute a cause of action. Upon the hearing of this demurrer, the court below overruled the same, and delivered the following opinion:
“This case is heard on petition, and demurrer thereto.
“The petition shows that School District No. 58, in Barton county, Kansas, was, as a matter of fact, duly and properly organized.
“That being so organized, and after having complied with all the statutory conditions precedent, did, on the 25th day of May, 1878, execute and deliver the two certain bonds or obligations in writing, with interest coupons thereto attached, and sell the same' to the commissioners of the permanent school fund of the state of Kansas, whereby they became the property of the state of Kansas, the plaintiff in this action.
' “That the plaintiff still holds them, the same being due and unpaid.
“That because of the unconstitutionally of the law, approved March 5, 1875, attaching a portion of the county of Stafford, including this territory, to Barton county, the territory of said school district was relegated to Stafford county; and at the commencement of this suit and at the present time this territory, with its inhabitants and school property, is included in and forms a part of said School District No. 25, Stafford county, Kansas.
“The above is a sufficient statement of the case in the plaintiff’s petition to lead us to a consideration of the questions raised by the demurrer of the defendant, which are:
“1. Though, as a matter of fact, School District No. 58, Barton county, Kansas, was organized and issued its bonds and sold them to the state permanent school fund of Kansas, as alleged in the plaintiff’s petition, yet, as a matter of law, no such school district ever existed, for the reason that the said act of the legislature, which took the territory forming said district from Stafford county, was, and has been held by our supreme court, unconstitutional, and that therefore the superintendent of Barton county had no power tó put in motion the machinery whereby said district was created, or to issue and sell the bonds in question, and hence what he did was absolutely void.
“2. That if School District No. 58, Barton county,, Kansas, was a school district with power to issue bonds, sell them, and bind itself by its promise to pay them, School District No. 25, Stafford county, is not liable on such bonds, because it is another and distinct corporation.
“Now, conceding the unconstitutionality of the act of the legislature taking the territory included within this district with other territory from Stafford county, and attaching it to Barton county, was School District No. 58, Barton county, Kansas, at the time it issued the bonds, the payment of which-is demanded by this suit, such a corporation as could execute and sell and deliver bonds, and bind itself by its promise to pay them?
“I think it was.
“The law making its territory a part of Barton county was approved March 5, 1875. In May, 1878, (more than three years afterward,) there being no question of the validity of such law, the superintendent of public instruction of Barton county, pursuant to the provisions of the law in such case made and provided, together with the people of the territory within the boundaries of said district, created and constituted such territory and the inhabitants thereof a school district, and numbered the same 58.
“It is conceded as a matter of fact, that every step necessary to constitute a proper school district under the laws of the state of Kansas was duly and properly taken in the creation of said District No. 58, and that afterward every step necessary for the proper and legal issue of bonds by a school district was duly and legally taken in connection with the execution, sale and delivery of the bonds by District No. 58.
“On the authority of the case of Hildreth v. McIntire, 19 American Decisions, p. 63, (1 J. J. Marshall, 206,) as well as the decisions of our own supreme court in the cases of Wildman v. Anderson, 17 Kas., pp. 344, 347, 348; Voss v. School District, 18 Kas., pp. 467, 472, 473; Krutz v. Paola Town Co. 20 Kas., pp. 402, 403; and Pape v. Capitol Bank, 20 Kas. 440, 445, 1 am satisfied that the law recognizes a corporation de facto as distinguished from a corporation de jure, in the same manner and to the same extent that it recognizes an officer defacto from an officer de jure, and that the same rule that defines and distinguishes an officer defacto from an officer de jure, also defines and distinguishes a corporation de facto from a corporation de jure.
“An officer de facto is one, though not a good officer in law, who has color of appointment or an election, and whose acts therefore the law recognizes as valid.
“Applying this definition to a corporation, a corporation de facto is one, though not good in law upon an inquiry in the nature of quo warranto, yet exists by color of ^authority, the acts of which the policy of the law recognizes as binding upon it and third parties. Such a corporation must have the same de facto existence as a corporation de jure — that is, it must exist in fact, and be apparently possessed of all the powers of a corporation de jure, and must exist in good faith, holding itself up before the public as a corporation, with full power to act as such.
“School District No. 58 was duly and properly organized. It had an actual de facto existence, and for a long time held itself up before the public as such, and in good faith claimed to be a proper corporation, and so dealt with the public, (including this plaintiff,) issued its bonds, sold them, and with the proceeds built within its boundaries a school house, organized and ran a school therein, and as such school district obtained its share of the state school fund, and used the same in like manner as de jure school districts. If all these things did not make School District No. 58 a corporation de facto, then it is difficult to understand what would. But the defendant claims that the color of authority to act, or the corporate existence, must flow from a constitutional law, and that the action of the superintendent of Barton county and the inhabitants of said District 58, Barton county, was under a void law, and therefore void. It is true that the law of 1875, attaching a portion of the territory of Stafford county to Barton, was void ; but such law did not authorize the creation of a-school district. The action of the superintendent of Barton county and the inhabitants included within the boundaries of District No. 58, of Barton county, in creating said District No. 58 out of a portion of such attached terri tory, was authorized by another and valid law of the state. But the position taken by the defendant, so far as it relates to the necessity that the authority to act be under a constitutional law, is not the true one. I think the weight of authority on this subject supports the position that the acts of one who claims to be the officer he assumes to be, and has color of an appointment, or an election under a legislative act 'having all the forms of law, until such act is adjudged unconstitutional in the courts, are valid and binding upón the officer and third parties; and the same rule applies to corporations. (Ex parte Strang, 21 Ohio St. 610; Laver v. McGlachlin, 28 Wis. 364, 365, 366; Brown v. O’Connell, 4 Am. Rep. 89; same case, 36 Conn. 432.)
“ In this latter case, the legislative authority of the state of Connecticut attempted to give authority to the city council of •the city of. Hartford to appoint a police judge. The city exercised such delegated authority and appointed a police judge, who for a time served as such. Afterward the law conferring such authority was adjudged unconstitutional, and the appointments under its provision void; and yet the acts of the judge while acting as such were held by the court of last resort of said state to be-valid, and the judge an officer de facto. So in this case, the law attaching the territory of Stafford county, including the territory of District 58, Barton county, to Barton county jurisdiction of such territory for school-district purposes; and the district created by him, and .the inhabitants thereof within such territory, existed at least by color of authority emanating from the law-making power of the state. (See case of State v. Carroll, 9 Am. Rep., pp. 428, 429, 430, 431, 432, 433, 434; same case, 38 Conn. 449.)
“ So, in like manner, a corporation created pursuant to and acting under such a law, is a corporation de facto. It may be a question whether, when after the law of 1875 was adjudged unconstitutional, and Stafford county was held to exist, with its territory, the same as immediately before the passage of said act, and said county of Stafford was temporarily organized, and the county superintendent of said county recognized School District No. 58, created while such territory was a part of Barton county, by taking a census of the pupils of school age therein, reporting the same; and obtaining from the state school fund the apportionment of such fund for said district, such district did not thereby ripen into a corporation de jure. But it certainly became a corporation de facto, with power to issue and sell its bonds, and bind itself by its promise to pay them.
“Such being the case, was the liability of said District 58, Barton county, transferred to the defendant, District No. 25, Stafford county? I think it was.
“The defendant district succeeded to all the rights and property of said District 58, including all its territory, inhabitants, school property, and power of taxation, and by reason thereof assumed the indebtedness of the extinguished corporation, District 58, the successor of which it became. The supreme court of the United States, in the case of Mount Pleasant v. Beckwith, 100 U. S. 514, has so decided.
“It may properly be said that this is not a case where a non-resident corporation went into a jurisdiction and induced the inhabitants thereof to vote bonds for the benefit of such foreign corporation, but one in which the inhabitants of the jurisdiction on their own motion voted bonds for their own benefit to build a school house in which to educate their own children, and who then went abroad with their bonds, and. induced others to purchase them. For this reason, together with the fact that all the property of District 58 is now in the possession of the defendant district, the equities of this case are with the plaintiff, and the plaintiff has a right to recover. The petition therefore states a sufficient cause of action.
“The demurrer is overruled, and judgment entered for the plaintiff for the sum of $245.33, to bear interest at 10 per cent, from the 5th day of January, 1882.”
This ruling of the court below overruling the defendant’s demurrer is the only ground upon which the defendant, plaintiff below, bases its petition in error, and the only ground upon which it seeks a reversal of the judgment of the court below. The defendant, plaintiff' in error, claims that School District No. 58 never was a school district either de jure or de facto, and consequently that the court below erred in holding that such district was a school district de facto, and in holding that the defendant was liable on the bonds in controversy, as the successor of such School District No. 58. Was the ruling of the court below erroneous? It would be very unfortunate for the interests of justice if such were really the case. Here we have an act of the legislature, plain and explicit in all its terms, providing in unmistakable language for detaching this territory from the county of Stafford and attaching the same to the county of Barton; and for years all persons believe the act to be valid, though for occult reasons the act is void; and in the full faith that the act is valid and that the territory has been so detached and attached, the inhabitants of such territory duly petition the county superintendent of Barton county to create this school district from such territory; he makes the necessary order; the school district is duly organized; the school census is duly taken; 'a school meeting is duly called; a director, a clerk and a treasurer are duly elected; a petition is duly circulated for the submission of a proposition to vote bonds to build a school house; the bonds are regularly voted and issued in conformity to law,- and duly registered by the county clerk of Barton county, under the direction of the officers of the school district; and with the money arising from the sale of these bonds — which, by the way, are duly offered for sale, and sold to the school fund commissioners of the state of Kansas, in accordance with the statutes of the state — a school house is built; a school teacher is employed; the children of the district there congregate within its commodious shelter, and are there taught the elements of knowledge; and this continues from the date of this, organization, which was in every respect legal in form, down to and long after the time when the decision of the supreme court declares the legislative enactment which detached this territory from Stafford county and attached the same to Barton county, to be unconstitutional and void. Even after this decision is made, the old number of the school district ig for some time preserved, and the organization preserved intact, with the same officers as before the decision; and the district by its old number makes its claim for such proportion of school money as its census of children of school age'shows it to be entitled to, and it receives the same.
This district was everywhere recognized [and acknowledged to be a legal and valid district. It was not only so recognized and acknowledged by its own inhabitants and by its own officers, but it was also recognized and acknowledged to be a legal and valid school district by the county officers of Barton and of Stafford counties, and also by the state officers of the state of Kansas; and all this recognition would seem to have been' in the best of • faith, and without the slightest element of dishonesty or fraud.
There can be no doubt that when the inhabitants of this territory petitioned to be constituted a school district, they did it in the best o'f faith; without the slightest intent to commit a fraud; without any purpose to repudiate any indebtedness which they might create, and in fact innocent of the slightest belief on their part that they might repudiate such indebtedness by reason of the unconstitutionality of the act of the legislature which made them residents of Barton county. There can be as little doubt that the county superintendent believed, when he issued the order creating this school district, that he was acting within the scope of his authority, and was proceeding in strict compliance with his official duty. Neither can it be supposed that the school-fund commissioners, when they purchased these bonds, believed otherwise than that they were dealing with a legal and valid school district, possessing all the lawful rights, all the powers, privileges and immunities possessed by other school. districts of the state. There was nothing, in fact, to put' them upon inquiry as to the defective character of this organization, because, although in furtherance of justice the courts uphold the maxim that “ ignorance of law excuses no one,” it is nevertheless true that the unconstitutionality of legislative acts, until they are attacked directly, is often so latent and obscure as not to be discoverable, even by courts of justice, in any casual examination of such acts. In this instance the element of unconstitutionality was entirely outside of the act itself, hidden and obscure, and could only be discovered by ascertaining the actual area within the diminished boundaries of Stafford county. And the fact that the jurisdiction and power of Barton county, over this attached territory, were exercised without question ■ for years, would seem to indicate that the defect in this act was not discovered, or known, prior to the commencement of the action in the supreme court, in which action this act of the legislature was declared unconstitutional and void.
The plaintiff in error, defendant below, claims that School District No. 58 could not have been a de fado organization, or school district, because, as it claims, there was no law in ■existence under which it could have been organized, or could have a legal and valid existence. This we thin'k is a mistake. It was organized under the general laws of the state authorizing the creation and organization of school districts; (Laws of 1876, ch. 122, art. 3; Comp. Laws of 1879, p. 824, et seq.;) and every act that was done or performed with reference to the organization of this school district, was done and performed under valid and existing laws. The school district was not organized under the act changing the boundaries of Stafford and Barton counties, for that act made no provision for the organization or creation of school districts. That act said nothing with reference to school districts. But the school district was really and in fact organized and created under said chapter 122, art. 3, of the Laws of 1876, and the bonds were voted and issued under valid and existing laws, and the school-fund commissioners purchased the same under valid and existing laws.
It has been suggested, however, that the most difficult ■question for the defendent in error (plaintiff below) to overcome, is one growing out of the fact that the territory comprising School District No. 58 was taken from the unorganized county of Stafford before the bonds were voted or issued, and was returned again to the unorganized county of Stafford after the bonds were so voted and issued; and that no statute then existed authorizing the creation or organization of school districts in unorganized counties. In other words, that the School District No. 58 was created and organized and the bonds were voted and issued, while the territory of such school district belonged, in legal contemplation, to an unorganized county, and while there was in fact no statute author izing the creation or organization of a school district in an unorganized county. If this were so, i,t might be asked, Can there be a de facto school district in an unorganized county, when there is no law authorizing the organization or creation of any school district in such unorganized county? This would certainly be a Very difficult question if in fact there was such an omission in the statutes as has been suggested; but, under the circumstances of this case, we would still think that the question might perhaps be answered in the affirmative. A school district is not necessarily or really a school district of any particular county, but it is more properly a school district of the state. There is no inexorable necessity or inherent reason why a school district should exist only in an organized county. There is no reason in the nature of things why it might -not exist in several counties, as is often the case; or why it might not exist in an unorganized county, or indeed, outside of any and every organized or unorganized as well as in an organized county. This very case shows that a school district can in fact be created and organized in an unorganized county; and a school district in fact is properly a school district defacto, although it may not, in legal contemplation, be a school district de jure; and all the acts and doings of a corporation de facto' must be treated as. legal and valid as to third persons, unless there is something more to make such acts or doings illegal or invalid than the mere fact that the corporation is not a corporation de jure. But it is not true that there is no statute authorizing the creation or organization of a school district in an unorganized county; for certainly §§ 31 and 32 of chapter 72 of the Laws of 1873, by the clearest implication, if not in positive terms, authorize the creation and organization of school districts in unorganized counties. (Comp. Laws of 1879, pp. 270, 271.) This statute provides for the appointment of a deputy county superintendent for the unorganized county by the county commissioners of the county to which the unorganized county is attached for judicial purposes; and also provides that all school districts in such unorganized county shall be separately described and numbered. In the present case, Stafford county was attached to Pawnee county for judicial purposes; (Laws of 1874, ch. 67, §<2; Comp. Laws of 1879, p. 323;) and the county commissioners of Pawnee county evidently had the authority to appoint a deputy county superintendent for Stafford county, who, with the people of such county, might have created and oranized school districts in Stafford county, the same as though such county had been duly organized. It is trae, that the present school district.was not so created or organized, and therefore that at the' time of its creation and organization it was not a school district de jure; but as before stated, it was unquestionably a school district dejado. It is true that it was not created and organized by a deputy county superintendent of Stafford county appointed by the county commissioners of Pawnee county, acting in conjunction with the people of such district, but it was in fact created and organized by the county superintendent of Barton county, acting in conjunction with the people of such district, and therefore its creation and organization were irregular in point of law; but, except for this irregularity, it was created and organized in strict con'formity to all the requirements of law, and to all the forms of law, and from the begining to the end was created and organized by persons authorized to create and organize school districts. The act of the legislature attempting to change the boundaries of Stafford and Barton counties was passed by a body of men legally authorized to change the boundaries of counties; the district was created and organized by men authorized by law to create and organize school districts; the people of the district had a right to have the district created and organized at the time when it was created and organized, and out of the very territory out of which it was created 'and organized, and without waiting for the organization of Stafford county; and the district was created and organized by these people acting in conjunction with the county superintendent of Barton county, who had authority within his own jurisdiction (and the territory out of which this school district was created and organized was, in jad though not in law, within his jurisdiction) to act in .the creation and organization of school districts; and the district was afterward recognized as a legal and valid school district by all persons having dealings with the district, and by persons authorized by law to deal with and to recognize the validity and legal existence of school districts; and this de facto organization of the district was not annulled or abrogated when its territory was set back into Stafford county, but its organization was preserved and made valid by ratification, and by the recognition of all persons having dealings with it; and Stafford county was .immediately afterward organized as a county, and it included within its boundaries this school district now in controversy.
Under all the circumstances of this case, we think it must be held that School District No. 58 was a school district defacto, aQd that its acts are binding upon the district and upon third persons, the same as though it had been a school district de jure; and therefore that its bonds were not only valid as against it, but are also valid as against its successor, the present plaintiff in error, defendant below.
In addition to the authorities already cited, we would refer to the following authorities, cited by counsel for defendant in error: Thompson v. Abbott, 61 Mo. 176; Scaine v. Bellville, 39 N. J. L. (10 Vroom), 526; Broughton v. Pensacola, 93 U. S. 266; Town of Depere v. Town of Bellevue, 31 Wis. 120, 125; Morgan v. Beloit, 74 U. S. 613; Beloit v. Morgan, id. 619; Von Hoffman v. City of Quincy, 71 U. S. 535, 555; Mills v. Gleason, 11 Wis. 470.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Harvey county, by J. E. McGrath and sixty- one others, to perpetually enjoin the city of Newton, a city of the second class, and its officers, from collecting certain alleged illegal taxes. Upon the filing of the petition a temporary injunction was granted by the court, and the defendants then filed a motion to dissolve-such injunction, upon the following grounds:
“1. That the plaintiffs herein are improperly joined, and have no such community of interests herein as legally entitles them to join in this action.
“ 2. That the facts stated in the petition herein filed are not sufficient to constitute a cause for the injunction herein prayed for, and are not sufficient in law to justify the issuance of the same.
“ 3. That the facts stated in said petition, as the grounds asking for said injunction, are not true.”
The defendants also, at the same time, filed an affidavit of the city attorney denying the truth of all the allegations of the plaintiff's petition, except such as were consistent with the validity of the ordinance of the city levying the said taxes, and the right of the city to collect the same. On the hearing of this motion, both parties introduced evidence; and at the conclusion thereof, the court sustained the motion' and ■ dissolved the injunction. To this ruling of the court the plaintiffs excepted, and now bring the case to this court for review. Did the court below err?
The principal facts, briefly stated, are substantially as follows: In the'year 1882, R. W. P. Muse was mayor of the °^7 Newton. H. W. Hubbard was the president of the council, and acting mayor in the absence of Muse. Hubbard was .also a member of the council; and J. W. Edwards was the city clerk. Sometime prior to June 21, 1882, three members of the city council, including Hubbard, petitioned the mayor to call a special meeting of • the city council, to be held on June 21, 1882, at 8 o'clock P.'m., 'for the purpose of acting upon a special business-license ordinance, and to make special levies of taxes, and for other purposes. The mayor was absent from the city at the time, and H. W. Hubbard, as acting mayor, called the special meeting thus prayed for. The meeting was held at the time and place designated in the petition, and all the members of the council were present, and Councilman Hubbard acted as the president. The said license ordinance was duly passed at this meeting — every member-of the city council, including .Hubbard, voting therefor. Hubbard also, as acting mayor of the city, approved the ordinance, and told Edwards, the city clerk, to sign his (Hubbard’s) name thereto, which Edwards on the next day and in the absence of Hubbard did, in the following form :
“Approved June 21, 1882.— H. W. Hubbard, President of Council and acting Mayor, per E.
Attest: J. W. Edwards, City Clerk.”
This ordinance was properly published, and was afterward copied into the book of ordinances, and the copy was duly signed by Hubbard as acting mayor. During all this time ^the mayor was absent from the city. At the next regular meeting of the city council, the minutes of the special meeting at which the ordinance was passed were read, and approved by the council. .The ordinance, as adopted at said special meeting, was entitled “An ordinance to provide for a business-license tax,” and it levied a license tax upon almost every kind of business that was then or might thereafter be transacted or carried on within the city limits. The ordinance was divided into thirty-one sections, and generally a separate section was devoted to each separate class of business as classified by the city council, though sometimes two or three classes of business were provided for in the same section. Each separate class of business, as classified by the city council, generally included several kinds of business, though sometimes a separate class included only one kind of business. The ordinance levied different amounts of taxes upon different classes of business, and in some cases provided different ways for fixing and ascertaining such amounts. Thus merchants generally, whose average stock of goods did not exceed $1,000, were taxed at only $5 per annum, while druggists having the same amount of stock were taxed at $15 per annum; and circuses and menageries had the high tax of $40 per day imposed upon them. Merchants who had a stock of goods 'amounting to more than $1,000 were taxed at a less rate upon the additional amount in excess of $1,000 than they were upon the first thousand dollars. Permanent “ chiropodists” were taxed at the rate of only $10 per annum, while “transient corn doctors” were taxed at the higher rate of $2 per day.
The plaintiffs claim that this ordinance is void for the following reasons: (1.) Because it was not passed at a regular meeting of the council. (2.) Because the meeting was not called by the mayor or acting mayor upon the written request of three members of the council, independent of the acting mayor. (Comp. Laws of 18^9, ch. 19, § 20.) (3.) Because the ordinance was not signed by either the mayor or acting mayor. (4.) “Because it is inequitable, oppressive, unjust, unreasonable, tyrannical, in restraint of trade, and inflicts punishment unusually cruel and unwarranted.” (5.) “ Because it imposes upon the business of the city an undue proportion of its burdens.” (6.) Because it “.discriminates against certain kinds of business by casting the whole burden of taxation upon them.” (7.) Because “the title of the ordinance is, ‘An ordinance to provide for a business-license tax/ ” which is not sufficient under § 9, ch. 19, of the Compiled Laws of 1879. (8.) Because the statute upon which the ordinance is founded, to wit, § 47, ch. 19, of the Comp. Laws of 1879, as amended by § 3, ch. 40, of the Laws of 1881, is void, being in contravention of § 4 of- art. 11, and § 5 of art. 12 of the constitution.
Now whether the ordinance is valid, or not, in all its particulars, in all its details, and in all respects, we do not think it is necessary to decide; but we do decide that it is not wholly and entirely void. Ordinances may be passed at special meetings of the city council; and special meetings may be called by the acting mayor in the absence of the mayor upon the request of three members of the council, although one of such members may at the time be the acting mayor himself. Be sides, in the present case, every member of the council was present and voted for the ordinance in question. An ordinance may be valid without the signature of either the mayor or the-acting mayor. (Comp. Laws of 1879, ch. 19, § 24.) It is the duty of the mayor or acting mayor to either sign or veto any ordinance passed by the city council; but if he does not do either, then the ordinance becomes a law without his signature. And again, we might say that not only two-thirds of the members of the city council voted for this ordinance, a number sufficient to pass an ordinance over the mayor’s veto, but they all voted for it. And the ordinance, is not so inequitable or unreasonable as to be invalid as to every one and all of the various kinds of business which it taxes. We suppose that the tax levied upon auctions and auctioneers is unquestionably valid, (Fretwell v. City of Troy, 18 Kas. 271;) and probably the tax levied upon insurance companies and insurance agents is also valid, (City of Leavenworth v. Booth, 15 Kas. 627;) and we might- also mention several of the other specific taxes levied upon other kinds of business, such as hacks, drays, peddlers, places of amusement, and the like, as being valid. (See the numerous authorities cited in brief of counsel for the defendants, as follows: Sacramento v. Crocker, 16 Cal. 119; City v. Sternberg, 4 Mo. App. 453; City v. Green, 7 id. 468; Slaughter v. Commonwealth, 13 Gratt. 767; Mayor &c. v. McWilliams, 52 Ga. 151; Henry v. State, 26 Ark. 523; Anderson v. Kerns, 14 Ind. 499; 15 id. 251, 449; People v. Coleman, 4 Cal. 446; Ex parte Hurd, 49 id. 557; People v. Illinois, 13 Ill. 554; 48 id. 172; 50 Ala. 113; Selectmen v. Spalding, 8 La. An. 87; Sears v. West, 1 Murphey, 291; Comm’rs v. Patterson, 8 Jones, N. C. L. 182; 69 Mo. 289; Burroughs on Taxation, § 54; Dillon on Mun. Corp., § 632, and note; Sedgwick on Stat. and Const. Law, 2d ed. 504-507; City of Leavenworth v. Booth, 15 Kas. 628.) And all license taxes which may reasonably come within the police power of the state and the city to impose, may be valid.
We think the title to the ordinance is sufficient, and while we do not at present wish to express any opinion as to whether the statute upon which the ordinance is founded is wholly and entirely valid, yet we do express the opinion that it is not wholly and entirely void. With reference to some of the employments upon which the license tax is levied, we think that both the ordinance and the statute are valid; but with reference to some of the other employments, we express no opinion.
The defendants, however, claim that the plaintiffs cannot maintain this action, for the reason that 'the several plaintiffs have no community of interest, and their several causes of action are improperly joined. In this action there are sixty-two different plaintiffs, and these plaintiffs represent at least twenty-one different kinds of business. They are grocers, dry-goods merchants, hardware merchants, lumber dealers, doctors, jewelers, stationers, news dealers, milliners, auctioneers, coal dealers, boot-and-shoe dealers, butchers, real-estate agents, loan agents, insurance agents, dealers in candies and fruits, keepers of restaurants, boarding-house keepers, harness dealers, furniture dealers, bankers, and bakers. Now if the representatives of these various kinds of business can maintain this single action to enjoin the various taxes levied upon them, then the representatives of all the various kinds of business taxed by the said ordinance could also maintain one single action to enjoin all the various taxes severally levied against them. Itinerant “corn doctors” could unite with merchants; circus proprietors could unite with bankers, and indeed, not only persons with no possible community of interest, but persons with adverse and conflicting interests, could unite with each other in prosecuting this kind of action. What community of interest is there between dry-goods merchants and boarding-house keepers? Or between bankers and doctors? Or between butchers and milliners? Or between coal dealers and insurance agents? In what respect would the relief of one of these classes of persons benefit the other classes? In what respect would a hardware merchant be benefited by having a confectioner relieved from paying his (the confectioner’s) taxes? Or in what respect would a jeweler be benefited by having an auctioneer relieved from paying taxes? Each class of persons may be benefited by having its own class relieved from paying taxes; but no class of persons could receive any possible benefit from having some other class of .persons, differing wholly from its own class, relieved from paying taxes. Only such parties as are united in interest should be made plaintiffs in any action. (Hudson v. Atchison, 12 Kas. 140; Swenson v. Moline Plow Co., 14 Kas. 387; Dobbs v. Stauffer, 24 Kas. 127; Civil Code, §§ 26, 35, 37, 38.) The plaintiffs cite § 253 of the civil code, and claim that it is applicable to this case, and that it authorizes the joinder of all the present plaintiffs, and all their several causes of action. Now possibly said section may be applicable in some'cases, for the purpose of enjoining the kind of taxes,sought to be enjoined in this case; but even if it is, it does not authorize'all the present plaintiffs to join in the present action. It authorizes only such persons to join in an action as have property affected by the same illegal tax. (Hudson v. Atchison, 12 Kas. 140.) It would not authorize the merchants to unite with the auctioneers to enjoin either the tax against the merchants, or the tax against the auctioneers, or both taxes; for the two taxes are not one and the same tax, or one and the same illegal tax. They are two taxes, and one of them may be valid, and • the other invalid. The tax against the auctioneers, in the present case, we think is valid, while we do not wish to express any opinion with reference to the tax against the merchants. The two taxes in the present case are levied by two different sections of the ordinance, by different modes, are different in their amounts, and have no connection with each other. Whether said § 253 of the civil code applies to such taxes as are sought to be enjoined in the present case, or not, we would think that all the merchants of the same class might unite as plaintiffs in one action to enjoin the tax against themselves. This would avoid a multiplicity of suits; their interests would be identical; and they would be uniting to enjoin one and the same illegal tax, if it were illegal. So also might all the druggists, or all the physicians, or all the lawyers, or all the insurance agents, or all the land agents, unite to enjoin a tax levied against their own separate and particular class; but we do not think that any one class could unite with any other class to enjoin the separate and distinct taxes which have been separately levied against it, by separate and distinct sections of the ordinance, by separate and distinct modes, and in different amounts. Each separate class must attend to the .separate tax levied against itself, and cannot object in the courts to taxes levied against the other classes. A tax as above mentioned, against one class, cannot at all be said to be a tax against any other class; and for this reason each class must sue for itself. We shall not examine all the various kinds of business taxed in the present case, to determine whether the ordinance is valid as to all of them or not; and this for the following reasons: (1.) We are not called upon to do so. (2.) The question is a difficult one, and would require a greater amount of labor and investigation than we have time to devote to it, where the case itself does not require that we should do so. (3.) The decision of the court below is consistent with the validity of all the taxes levied by the ordinance, and with the ordinance itself in its entirety; and either the decision of the court below is correct, or else counsel for the plaintiffs have not been very industrious in hunting'for authorities showing that it is erroneous. (4.) Even, if we should come to the conclusion that some of the taxes levied by the said ordinance are void, still we would have to affirm the decision of the court .below, the ‘same as though all were valid, upon the ground that the various classes of plaintiffs have no community of interest with each other, and that one class has no interest in enjoining the taxes levied against any. one of the other classes.
The judgment and order of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff alleged in her petition that she was at the commencement of this action the owner in fee of the undivided one-half of certain real estate situate in Johnson county, and demanded partition thereof. The case was submitted to the court upon an agreed statement of facts, and thereon the court found as its conclusions of fact substantially as follows: That Cornelius Deweese and the plaintiff, Margaret Martz, were married on November 5, 1868, and cohabited together from that time until about the 15th day of August, 1870, as husband and wife; that during said period they occupied as a homestead the premises described in the petition; that the legal title thereto during such occupancy was in the name of the said Cornelius Deweese; that prior to August 15, 1870, plaintiff was compelled to leave and abandon the premises on account of the cruel treatment of her husband; that she has not occupied the premises since her abandoment thereof; that on August 15, 1870, she instituted proceedings in the district court of Johnson county against said Deweese to recover a divorce and alimony pendente lite, and also permanent alimony; that she prayed in her petition that the alimony, whatever it might be, should be declared a lien upon the land and tenements described in the petition; that at the November term, 1870, of said court, she was decreed an absolute divorce from said Deweese on account of his,fault and aggression, and judgment was rendered in her favor against Deweese for $100 as alimony pendente lite, and $300 as permanent alimony, all of which, together with the costs of said proceedings, were declared a lien on said lands and tenements; that thereafter she caused divers executions to issue upon said judgment, and directed' the same to be levied upon said lands and tenements; that for want of personal property, the said lands and tenements were advertised for sale, but before sale the executions were-returned, with the payment of the judgment and costs indorsed thereon; that the sum of $100 allowed as alimony pendente lite was satisfied by Deweese by executing a mortgage to St. John & Parker, attorneys of plaintiff, on said lands and tenements, on March 4, 1871,.and the permanent alimony, together with costs, was satisfied on the same day by Deweese executing a mortgage to the plaintiff on the premises for $389.50; that the mortgage to St. John & Parker was not signed by plaintiff; that the mortgage for $389.50, with the note evidencing that sum, was assigned by plaintiff on May 3, 1871, to N. A. Skinner; that this mortgage was released in November, 1871, by said Skinner, upon payment being made thereof by Deweese; that on the 26th day of May, 1871, Deweese mortgaged the lands and tenements to one John C. Clinton for .the sum of $600, and out of said sum paid off the mortgage executed to St. John & Parker of $100, and also the mortgage executed to plaintiff and assigned by her to Skinner; that subsequently, Clinton assigned the note and mortgage of $600 to one J. W. Sponable; that the latter foreclosed the same, in the Johnson county district court, and an order of sale was issued thereon; that on November 5, 1877, Deweese conveyed the lands and tenements . by warranty deed to Thomas N. Newton, the defendant, for $1,600; that Newton paid as part of the purchase-money the balance due on the judgment in the foreclosure action of Sponable v. Deweese, amounting, with costs, t.o $543.30; that plaintiff never signed or executed any instrument or conveyance of the said lands and premises, or of any of her interest, dower or right therein; that the taxes levied and assessed against the lands and tenements for the years 1870, 1871, 1872 and 1873, became delinquent, and the lands were sold for the non-payment of the taxes, costs and charges for the year 1870; that a tax deed was executed to one I. H. Shep pard, the assignee of the purchaser at the tax sale; that the tax deed so executed bears date December 28, 1874, and was recorded the same day in the office of the register of deeds of Johnson county; that the amount of taxes mentioned therein was $538.56; that Deweese assented to the assignment of the tax-sale certificate in writing, directed to one W. A. Ocheltree, the holder of said certificate; that on November 6, 1877, Sheppard conveyed by quitclaim deed all his right, title and interest in the lands and premises to the defendant for the consideration of $927.31; that defendant gave him a mortgage on the premises, which is now partly unpaid; that in the year 1878 plaintiff removed to the southern.portion of the state, now resides there, and has never remarried; that Deweese died in October, 1880, leaving plaintiff surviving, and also several children and grandchildren, but no children by the plaintiff.
Upon these facts, the court found as a conclusion of law that the plaintiff was not entitled to any relief, and rendered judgment against her in favor of the defendant for all costs. Plaintiff excepted, and brings the case here.
Plaintiff claims that she is entitled to recover under the provisions of § 646 of the code, which provides, among other things, that—
“When a divorce shall be granted by reáson of the fault or aggression of the husband, the wife' shall be restored to all her lands, tenements and hereditaments not previously disposed of, and restored to -her maiden name, if she so desires, and shall be allowed such alimony out of her husband's real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable; and if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed her as alimony, of which he was seized at the time during the coverture, to which she had not relinquished her right of dower.”
The principal question sought to be presented is not before us upon the findings of the court, as it appears that the premises were sold in 1871', for the delinquent taxes of 1870, to one W. A. Oeheltree; that on December 24, 1874, the latter assigned the tax certificate to Isaac H. Sheppard, and on December 28,1874, Sheppard obtained a tax deed thereon, which was by him duly recorded on the same day. This tax deed was of record for more than five years prior to the commencement of this action. The deed, therefore, if regular, on its face and not fraudulently obtained, is protected by the statute of limitations, unless plaintiff was under legal disability prior to the death of her husband. (Gen. Stat. of 1868, ch. 107, §§112, 116; Laws of 1876, ch. 34, §§138, 141; Maxson v. Huston, 22 Kas. 643; Keith v. Keith, 26 Kas. 27; Jordan v. Kyle, 27 Kas. 190.)
Counsel contends that the tax deed is void upon its face, for the reason that the description therein is uncertain. Not so. The description is as follows: “The north part of the northeast quarter of section number A A ten, township number fifteen, range number twenty-three, east, containing one hundred acres, situated in the county of Johnson and state of Kansas.” This description evidently means the north one hundred acres of the northeast quarter of section ten, township fifteen, range twenty-three, in said Johnson county, and is therefore so described as to be easilyddentified. (Comm’rs of Jefferson County v. Johnson, 23 Kas. 717.) The intimation that the tax deed was fraudulently obtained, or that Oeheltree was the agent of Deweese in the purchase of the premises at the tax sale, is not supported by the findings. It is true that Deweese assented to the transfer of the tax certificate from Oeheltree to Sheppard, on December 24, 1874, but there is no finding that Oeheltree was the agent of Deweese, or that he was under obligation to pay any tax upon the premises in controversy, or “even bound to consult Deweese as to whomdie should transfer or assign the tax certificate. There are some circumstances connected with the transfer of the certificate to Sheppard, a,nd the purchase by Newton of Deweese and Sheppard, that tend to support the suspicion that Ocheltree and Sheppard were acting; in the interest of Deweese, but r o ' as against the general finding the mere suspicion that these parties were acting in collusion cannot overturn or set aside the interpretation given to the findings of fact by the trial court. If it were a fact, as now claimed, that the tax deed was a fraud known of and participated in by Deweese, Sheppard, and Newton, some attempt should have been made upon the^trial to clearly establish this, rather than to have 'submitted the case upon an agreed statement, and then permitted the trial court to construe the facts as consistent with good faith on the part of all the parties. If Sheppard obtained his tax deed in good faith — and there is no finding or presumption to the contrary — he had on December 28,1874, the superior title to the premises. He had the right to sell to the defendant, and his conveyance of November 6,1877, was to all appearances valid. If Deweese had any secret or other interest in the tax certificate, or in the tax deed, that interest has not been disclosed.
Further, it is urged that the plea of the statute of limitations is bad in this case for the reason that plaintiff’s right of action did not accrue until the decease of her former husband, Cornelius Deweese, which occurred in October, 1880. Even if this were so, it is immaterial, as the tax deed is good upon its face, and it has not been successfully assailed by evidence aliunde; therefore it conveyed the superior title held by Sheppard to Newton, and the plaintiff is not entitled as against Newton to claim any interest or estate in the premises.
Several of the findings of the court are objected to upon the ground that they are incompetent, irrelevant, and immaterial. But we cannot discuss these objections, because the findings are based upon an agreed statement of facts, signed by the parties to the action. In the final 'clause of the agreed statement of facts is the following: “ Both parties hereto reserve all right to present such objections as she, he or they may deem proper to any portion of the foregoing facts, on account of the incompetency, irrelevancy or immateriality of the same, upon the trial of said cause, and exceptions may be taken on all rulings upon such objection.”
It does not appear, however, that upon the trial any objections or exceptions were made by either party to the consideration of the facts set forth in the agreed statement, and the attention of the trial court was not called to the objections to the agreed statement of facts now presented.
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.:
The facts in this case are as follows: In 1874, one A. E. Nicholas was owner in fee simple of the land in controversy; on July 30, 1874, he was indebted to Greenwood county in the sum of $25,000, because of his default as county treasurer thereof in that sum. On said July 30, in part payment of that sum, he conveyed the land in controversy, with other lands, to Greenwood county. On April 13, 1877, Greenwood county, by its board of county commissioners, conveyed by deed of general warranty the land to one J. S. Torrence. To secure the payment of the purchase-money of the land, Torrence and wife executed and delivered to Greenwood county the mortgage deed sued on, which was recorded May 25, 1877. Ever since said April 13, J. S. Torrence has been and is now in possession and occupancy of the land; the land was taken by the county of Greenwood for the sole purpose of securing, to the extent of its value, the indebtedness of the «defaulting treasurer, A. F. Nicholas, and has never been used for any purpose except as hereinafter stated. The county clerk of Greenwood county placed the tract of land on the tax roll for the year 1877 for assessment, extended the tax thereon, and placed the tax roll in the hands of the treasurer of the county for the collection of the taxes. The taxes so charged against the tract of land for the year 1877 remaining unpaid, the treasurer of the county, on the 3d day of September, 1878, for want of other bidders sold the land to the county for the tax, penalties and charges alleged to be due thereon for the year 1877. The subsequent taxes, charges and penalties assessed against the land for the years 1878, 1879 and 1880, remaining unpaid, were by the treasurer of the county charged back to the tax sale of 1878, made for the taxes, charges and penalties of the year 1877. On the 10th day of August, 1881, J. J. Durkee took an assignment of the tax-sale certificate on the land, paying therefor to the treasurer of the county the sum of $126.38; on the 5th day of September, 1881, the county clerk of the county executed and delivered to Durkee a tax deed for the tract of land sold at the.tax sale of 1878; on the 14th day of December, 1881, Durkee paid to the treasurer of the county the sum of $22.70 in full for the taxes on the land for the year 1881. The assessment and tax proceedings on the land were all regular, and in compliance with the tax laws, if the land was subject to taxation for the year 1*877.
Upon these facts the trial court found as conclusions of law that from the 30th day of July, 1874, to the 13th day of April, 1877, the land was the exclusive property of and belonging to Greenwood county; that the land was not subject to taxation for the year 1877; that the sale of the land on the 3d day of September, 1878, for the taxes of 1877, was void; that the tax deed based upon that sale was void; that J. J. Durkee has no right, title or interest whatever in the land, and had not any right, title or interest therein at the ■commencement of this action. Plaintiff in error (defendant below) excepted to the conclusions of law and the judgment rendered thereon, and contends that the land was subject to taxation for 1877, and that the tax deed of the 5th of September, 1881, to Durkee, vested in him an absolute estate in fee simple to the land. We think otherwise. At the time the land was listed for taxation in 1877, it was not taxable under the sixth subdivision of § 3, ch. 107, Laws of 1879, and §1, art. 11 of the state constitution. (Board of Regents v. Hamilton, 28 Kas. 376.)
In accepting the land, the county authorities were not going into the real-estate business for speculative purposes, or to use the same for other than county purposes. Therefore, as the property was1 taken to satisfy a debt due to the county, and was taken and used exclusively for county purposes, it was exempt from taxation. In Washburn College v. Comm’rs of Shawnee County, 8 Kas. 344, the property taxed was acquired for the sole purpose of erecting the permanent buildings of the college thereon, but it was not used for that purpose, or for any actual use of the college. Here the property was taken to secure a debt; and while not in actual use, in the way of cultivation or with public buildings, nevertheless it was held for the use of the county, and exclusively for the county, and when sold the proceeds were for the use and benefit of the county. (See Board of Regents v. Hamilton, supra.)
Counsel for plaintiff further contend that Greenwood county could not and did not own the land in question in 1877, for the reason that the legislature had conferred no power upon the county to hold land, and therefore that the deed of A. F. Nicholas to Greenwood county of the'date of the 30th of July, 1874, was void. Not so. Sec; 1, ch. 25, Comp. Laws of 1879, permits counties to purchase and hold personal and real estate for the use of the county, and to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers. The county treasurer being in default and failing to pay moneys due the county, it appears from the facts that the county accepted the land in part payment of. moneys due it. It is not shown that the county could have otherwise collected the moneys from its county treasurer or from his bondsmen; and it may be that the only recourse the county had to recover anything from its defaulting county treasurer, was by accepting the lands conveyed to it by Nicholas.
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.:
The appellant was tried at the June term, 1882, of the district court of J'ohnson county, on the charge of grand larceny, found guilty, and sentenced to the penitentiary for the term of four years. From that conviction he appeals to this court; The evidence against the appellant was circumstantial. Upon the trial, one William Holton testified on the part of the prosecution that on a certain occasion he saw the appellant at Louisburgh, in this state, with a man named Starr; that he had no knowledge of appellant being connected with horse thieves, and had no conversation with him or in his presence on that subject, and did not know the object of appellant’s visit to Louisburgh. He further testified over appellant’s objection, that he (witness) and Starr were both professional horse thieves; that the gang to which they belonged had a secret oath, and that the appellant was reported to belong to this gang of horse thieves. The admission of the evidence “ that appellant was reported to belong to a gang of horse thieves,” is complained of, and we think very properly. It is not competent for the prosecution to initiate the inquiry as to the general character of the prisoner, and it is only after the prisoner has elected to put his character in evidence by calling witnesses and adducing evidence in its support, that the prosecution is permitted to follow and disapprove the evidence so offered. Further, the evidence objected to was mere hearsay, and of a character highly prejudicial, under the circumstances of the case, to the appellant. (3 Greenl. Ev., § 25; People v. Fair, 43 Cal. 137; Cheney v. State, 7 Ohio, 222.)
The judgment of the district court will be /reversed,/and the cause remanded for a new trial; the appellant will be re-, turned from the penitentiary, and delivered over to the jailer of Johnson county, to abide the order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Section 1, chapter 121, Laws of 1875, provides: That in any civil action brought in a district court of the state, before the clerk shall issue summons there shall be filed in his office, by or on behalf of the plaintiff, a bond, to be approved by the clerk, conditioned that the plaintiff will pay all costs that may accrue in the action, in case he shall be adjudged to pay them, and that he will pay all costs made by him, in case the same cannot be collected from the defendant, if judgment be obtained against him; provided, if the plaintiff have a just cause of action, and by reason of his poverty he is unable to give security for costs, upon- filing an affidavit to that effect no bond shall be required. Sec. 1, ch. 13, Comp. Laws 1879, reads:
“That no state or county officers, or their deputies, shall be taken as surety on the bond of any administrator, executor, or other officer, from whom, by law, bond is or may be required, and no practicing attorney shall be taken on any official bond, or bond in any legal proceedings as aforesaid, in the district in which he may reside; and if any such officer or deputy is surety in any such bond filed in any office provided by law for the deposit thereof, such officer with whom ' such bond is filed shall, within thirty days from and after the taking effect of this act, notify the principal on such bond to give additional security, which shall be approved as the law requires.”
In Sherman v. The State, 4 Kas. 570, it was held, that where a practicing attorney signed a recognizance for the appearance of a prisoner, he could not avoid judgment thereon by reason of the statute prohibiting officers, of the law from taking a practicing attorney as surety. That decision was based upon the doctrine that an attorney ought not to escape a legal responsibility voluntarily assumed by him, and thus obtain an advantage by his own wrongful act. The question before us is one of a different character. The attorneys upon the bond are not here interposing their office in avoidance of the obligation. The defendant below (plaintiff in error) excepts to the validity of the bond, because'it was taken by the clerk in violation of the statute. We think he has the right to so intervene, and ask that the summons shall be quashed and set aside, because the bond required by law has not been executed. This conclusion in no way conflicts - with the decision of Sherman v. The State, supra, and gives the statute full force where exception is taken at the first opportunity, by a party interested in the bond.
The ruling and order of the district Court will be reversed, and the cause remanded with direction to the court below to quash and set aside the1 summons.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The controversy between these parties has been pending since July, 1877, and, in one form or another, has been already three times in this court. (25 Kas. 13; 25 id. 19; 28 id. 315.) A brief history will help to a solution of the questions involved. On or about June 15, 1877, one Forsyth was the owner of certain municipal bonds issued by the townships of Cedar and Center, and the city of Fredonia, the par value of which was $8,000. On that day he entered into a contract in writing by which he gave to the plaintiff, the defendant in error, the refusal of these bonds for $3,100, to be paid to Angelí Matthewson, at the First National Bank at Parsons, any time before July 1, 1877. The bonds, with a copy of this contract, were left with said Matthewson. On June 30, shortly after banking hours had closed, Kirkpatrick having failed to put in an appearance, Matthewson sold the bonds to Meixell, the present plaintiff in error. Thereafter, and before sundown of that day, Kirkpatrick came, tendered the contract price, and demanded the bonds. Failing to get them, he brought this action. It appears that immediately after his purchase Meixell sold the one-half interest in the bonds to Matthewson. The action was commenced in the Wilson county district court, and against Matthewson, Meixell and Forsyth. Service was made in that county on Matthew-son, and thereafter in Labette county, on Meixell. Forsyth seems to have been dropped out of the case altogether. While no writ of replevin was issued or asked for, the petition stating the facts prayed for a recovery of the bonds or their value. To this petition a demurrer was filed upon several grounds — some jurisdictional, and some not; among others, that the court had no jurisdiction of the person of the defendant, that the petition did not state facts constituting any cause of action, and that several causes of action were improperly joined. The court sustained the demurrer, on the ground that several causes of action were improperly joined. It at the same time gave the plaintiff leave to file separate petitions against defendants Meixell and Matthewson. Petitions were filed in pursuance of this order, and the defendant Meixell failing to answer, judgment was rendered against him for the sum of $9,475, the value of the bonds, and costs. Thereupon defendant moved to set aside that judgment, and for leave to file an answer. Such proceedings were had as to result in a second judgment against Meixell, which judgment was reversed in this court in the case first cited. Meantime, certain arrangements were had between the plaintiff and defendant Matthewson, against whom a judgment had been also obtained, which resulted in an assignment of the judgment against Matthewson to his wife. Thereupon Meixell brought his action to restrain the collection of the judgment against him. The ruling of the district court, refusing to restrain the collection of such judgment, was affirmed here in the second case cited, supra. Trial was again had of the issues in the case originally brought by Kirkpatrick against Meixell, which resulted in a judgment of $7,500 for the plaintiff. To review this judgment, this present proceeding in error has been brought.
In support of his petition, plaintiff in error makes some twelve allegations of error. We shall not attempt to consider them all, for we think, upon the record, the plaintiff in error was entitled to a new trial, and therefore we shall not stop to consider those matters which rest largely in the discretion of the district court, but shall notice only those matters which we think entitle the plaintiff in error to a new trial, and those which may become material in the progress of such new trial.
First, as to the question of jurisdiction. It is insisted, as this action was commenced in Wilson county, and service only made upon the defendant in Labette county, that therefore the court had no jurisdiction of the person of the defendant. It seems strange that, after five years of litigation, this question of the jurisdiction of the person should still be a matter of inquiry, and yet as it is presented it requires consideration and determination; for if the court had no jurisdiction of the person of the defendant, that avoids the necessity of all further inquiry. Had the district court such jurisdiction ? This question must be answered in the affirmative. The action was commenced in Wilson county, against Matthewson and Meixell. Matthewson was served in that county, and Meixell in Labette county. Now if Matthewson and Meixell were improperly joined as defendants, and that fact was made to appear, and the single question of jurisdiction over Meixell presented, it may be conceded that no jurisdiction over Meixell was obtained, and that the plea to the jurisdiction should have been sustained. But it is also true that the district court of Wilson county had ample jurisdiction over the subject-matter, and when Meixell appeared in that court, and by his pleadings raised questions other than jurisdictional, he thereby submitted himself and his rights to the jurisdiction of that court. ■ When served with the summons, he appeared and filed a demurrer, which, while it alleged a lack of jurisdiction, presented also a number of other defenses, and defenses on the merits. Such plea, by the prior adjudications of this court, was equivalent to an appearance. A party who denies the jurisdiction of the court over his person must first present this single question. He may not mingle with his plea to the jurisdiction other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction. As heretofore stated, the defendant by his demurrer raised a number of questions other than those which were jurisdictional, and invoked the judgment of the court thereon. By such other pleas, he submitted himself and his rights to the jurisdiction of the court, and can no longer be heard to say that it had no jurisdiction. (Greenwell v. Greenwell, 27 Kas. 530; Bury v. Conklin, 23 Kas. 460; Burdette v. Corgan, 26 Kas. 102; Carver v. Shelly, 17 Kas. 472; Hendrix v. Fuller, 7 Kas. 331; Cohen v. Trowbridge, 6 Kas. 385; Hefferlin v. Stuckslager, 6 Kas. 166.)
The second question we deem important, is as to an alleged settlement and satisfaction. As heretofore intimated, the court upon the hearing of the demurrer sustained it upon the ground of an alleged misjoinder of actions, and permitted the filing of- a separate petition as against each of the two defendants, Matthewson and Meixell. Upon separate trials of the issues thereafter joined as against each, a judgment was rendered in favor of plaintiff, and against each. After such judgments, plaintiff settled and compromised with Matthewson. At the request of Matthewson, instead of releasing the judgment against him, he assigned the judgment to Mrs. Matthewson, and she thereafter entered full release and satisfaction. Now it is contended that this operated as a satisfaction of all claims against the defendant Meixell, and this upon the theory that a judgment in an action of trover represents the price or value of the property, and that a satisfaction of such judgment waives and releases all further claims to the property or to its value. So far as this proposition stands as a general proposition, it is well supported by authority, and we have no disposition to dissent therefrom. Where there is but a single defendant, and a judgment of trover is rendered against him, and such judgment is thereafter satisfied, the satisfaction releases all claims of the plaintiff to either the property, or its value. (Lovejoy v. Murray, 3 Wall. 17; Thurst v. West, 31 N. Y. 210; Cooley on Torts, 458; 1 Greenl. on Ev., §533; Bell v. Campbell, 17 Kas. 211.) But that is not this case. Here there were two defendants, each of whom was charged with a tort against the rights of the plaintiff. Against each a judgment was rendered. Thereafter they were debtors of the plaintiff, judgment debtors. Under those circumstances, by the provisions of our statute, (Comp. Laws 1879, ch. 75,) ^e plaintiff might compromise with and release either without destroying his claim against the other. (See also Irvine v. Millbank, 36 Superior Court N. Y. 264; Irvine v. Millbank, 56 N. Y. 635.) Of course one full payment by either debtor discharges the entire debt, but a compromise with one operates only as satisfaction pro tanto of the claim against the other. Hence the payment of $500 by defendant Matthewson, being a compromise of the judgment claim against him, operated only as a satisfaction pro tanto of the claim against Meixell. (3 Wall. supra.) And notwithstanding the form in which this transaction was accomplished, namely, an assignment to Mrs. Matthewson, and a satisfaction by her, we think the exact facts and terms between the parties could be proved as they were by parol. We find no fault with the ruling of the court in this respect, unless it be in the fact that it failed to treat the $500 as pro tanto a satisfaction of plaintiff’s claim.
Again, this action, as heretofore intimated, was for the recovery of eight municipal bonds of the par value of $8,000? or their value. On the trial, one witness, Matthewson, testified that such bonds were worth in the market from thirty to fifty cents; another witness, that they had no market value, but were offered for sale about the time from twenty-five to thirty per cent., but that he thought they were worth their face, less the cost of collection. This was the only direct testimony as to value, and indeed the only evidence of value, save such as would be implied from certain conversations between plaintiff and defendant. The defendant asked the court to instruct the jury that the measure of damages was the market value of these bonds. This instruction the court refused, and in lieu thereof gave the following:
“The rule for measuring the damages is this: Prima facie value is the amount due on them, both principal and interest. You should, however, in ascertaining their value, consider any and all evidence, if any has been produced, which tends to diminish their value, and make your estimate accordingly.”
The contract price of these bonds as between Forsyth and the plaintiff was $3,100; the value as found by the jury, $7,500. We are constrained to think that the instruction of the court as to the measure of damages was misit leading, and the value as returned by the jury excessive. It is undoubtedly true that as to a note, a bill of exchange, or any other chose in action, the damages for its conversion are prima facie the amount due thereon. (Field on Damages, §823; Booth v. Powers, 56 N. Y. 22.) As to municipal bonds this difference should be recognized: while they are in a certain sense mere promises to pay, and in that respect resemble ordinary choses in action, yet courts may not blind their eyes to the fact that they have become so abundant as to rank with ordinary chattels personal, with a market value like that which obtains as to corn, wheat, etc.; and where any article has an established market value, that value is the measure of damages in any action of conversion. We do not doubt that a municipal bond so far resembles an ordinary chose in action that, where no evidence of value is offered, its face value is to be deemed the market value, and to this extent the instruction of the court is beyond criticism; but we think that it must be also conceded that such securities have become so abundant, and so much received as an article of ordinary commerce, that they possess strictly speaking a market value; and when such market value is shown, that is to be deemed as the measure of damages for any conversion. Now the instruction given by the court, inasmuch as it refused any consideration of the market value and directed the attention of the jury to the face valuej except as to evidence impeaching such face value, would we think naturally mislead the jury. The contract price as undisputed was $3,100; the market value by the evidence was but little if any in excess of this amount, and yet the jury valued the bonds at $7,500. It seems to us they could have reached this conclusion -only by following the letter of the court’s instruction, and placing the damages at the face value, except as limited by the responsibility of the obligors and the cost of collection. In no other way can we satisfactorily account for the value as returned by the jury. It certainly was not in response to any testimony as to market value, or contract price, or price in fact obtained. The jury evidently must have considered the face value as controlling, and reduced only by the expense of collection and the probable pecuniary responsibilities of the municipal corporation. While we should be glad to terminate the controversy between these parties with the present trial, and end the litigation which has continued so many years, we can but think that the jury reached their conclusion herein as to the damages from an erroneous valuation, a valuation induced if not compelled by the instruction of the court. The plaintiff purchased these bonds for $3,100. That, from the testimony, would seem all that could have been realized from their sale, and there is no testimony from which we think it could fairly be deduced that intermediate the sale and the trial they had advanced nearly 250 per cent, in value. Obviously the jury approached a question of value from the wrong standpoint, and obviously they were led to this by the refusal of the court to grant'the instruction asked by defendant, and giving that which it did. Reluctantly we are constrained to say that in this there was error materially prejudicial to the rights of the defendant, and which compels us to withhold our assent from the conclusion reached by the jury. For this error the judgment must be reversed, and the case remanded for a new trial.
One other matter requires notice — a matter which could perhaps be corrected upon the findings of fact made by the jury without any new trial, if this were the only error. As heretofore stated, the action was for the recovery of bonds or their value. The testimony showed that the bonds had passed beyond the control of the defendant, so that, as well said by counsel for defendant in error, the action was one in effect for the wrongful conversion of the bonds. Now it is undisputed that the plaintiff contracted to purchase these bonds for $3,100; that he did not in fact obtain the bonds, and that he paid nothing, because the bonds had wrongfully been transferred to defendant, the latter paying to the original owner the contract price of $3,100. The original owner has therefore no further claim. The present plaintiff is entitled to recover from the defendant the bonds upon the payment of $3,100, and such other sums as he has already received on account of the wrong committed against him. But the judgment to be rendered in his favor should not include the amount he has agreed to pay, or the amount he has already received. He agreed to pay $3,100, but in fact paid nothing, so jje was (jamaged by the wrongful action of the defendant only to the extent of the difference between the value of the bonds and the $3,100 contracted to be paid. That was in the first instance his damages, and if since then he has received any sum of money on account of such wrongs ful conduct, such moneys received operate pro tanto as a satisfaction of his claim for damages. If this were the only error, we think, upon the special findings of fact made by the jury, the judgment could be corrected; but for the matters heretofore noticed a new trial must be granted, and we only refer to this in order that it may be corrected upon the subsequent trial.
These are all the matters we deem necessary to consider. Several matters of practice, and several rulings in the trial, we have not noticed, because we think they will become unimportant on the subsequent trial.
The judgment of the district court will 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 in the district court of Brown county, brought by defendant in error, plaintiff below, to compel the specific performance of a contract for the sale of real estate. A decree was entered in favor of the plaintiff, and defendant alleges error. The facts are these: In 1879, the land belonged to one J. S. Johnston, a resident of Illinois. In the spring of that year he visited Brown county, and applied to one Rounsaville to act as his agent for the sale of the land, naming $480 as the price. Nothing was done during that year, but in the spring of 1880 the plaintiff applied to Rounsaville to purchase the land. On the strength of this application, Rounsaville wrote to Johnston, asking if he still owned the land, and what was his price. Johnston replied that he would sell for $720. To this Rounsaville answered, saying that a neighbor offered the sum of $475, part in cash, and part on time. This letter was dated June 8, 1880. The name of the proposed purchaser was not given. On July 31, Johnston wrote, saying: “We will take $475 cash, purchaser paying your commission.” On the strength of this letter Rounsaville, as agent for Johnston, executed a contract of sale to plaintiff, in which he recites that Johnston has sold to Furnish the land, describing it, for $475, and the commission of Rounsaville as agent, “to be paid as soon as said Johnston has cleared the same of the tax title and taxes thereon up to the year 1880, when said Johnston is to execute his warranty deed to the sale.” This contract was placed on record. The agent also wrote to Johnston, as follows: “Your man says he has the money, $475, ready for you, and now prefers to pay the cash rather than to ask you for time on the 120 acres of land. He will settle with me for my commission, and you receive by return express or mail, as you may direct, the sum of $475, in accordance with directions in your letter. Make out deed in favor of Luther Sperry, and inclose clear abstract of title up to date.” It will be seen that in this letter the agent directed a deed to Luther Sperry, although the person with whom he had made the contract was the plaintiff, Furnish. This was the first time that any name had been given to, Johnston. The facts in reference thereto are these: Furnish intended to borrow from Sperry the money to make payment of the land, but after some negotiations finally agreed to let him have the land at an advance of $100 above the price he was to pay, and so directed the deed to be made to him. Upon an examination of the title it was found to be incumbered with a tax deed belonging to one Bierer. ■ Negotiations were had with Bierer for the purchase of his tax title, but they failed; so, at the instance of Johnston, a suit was brought to set aside the tax deed. This suit resulted in setting aside the tax deed upon the payment of the taxes and interest for which it had been executed. This suit of course caused considerable delay, and the taxes, interest and costs charged against the land as the result of litigation amounted to over $200. Sperry, tired of the delay, declined to carry out his contract with Furnish, and Furnish thereupon insisted upon the deed being made to himself. This was the first intimation that Johnston had that Furnish was the real purchaser. In the meantime, Johnston, irritated at the delay, at the result of the suit to set aside the tax title, and evidently suspicious of the conduct of his agent, had written to his-co-defendant, the present plaintiff in error, John P. Johnston. After some correspondence he finally sold the land, and conveyed it to said John P. Johnston. Thereupon this suit was commenced to compel a specific performance of the original contract, which resulted, as heretofore stated, in a decree for the plaintiff; and now defendant claims that there was error in said decree, and for these reasons: “First, the contract of sale executed by Rounsaville, who, to say the most, was only a special agent, being unauthorized by the principal and in violation of his instruction, conveyed no equitable title to the land; second, the contract of sale, dated August 2,1880, was a fraud and an imposition by the agent and Furnish on J. S. Johnston. They had led J. S. Johnston to believe that a sale had been made to one Luther Sperry, and even after they ■claimed the contract was signed, directed the deed to the land to be made to Sperry; third,'J. P. Johnston is a subsequent purchaser without notice.”
We disagree with counsel, and think that upon the evidence none of the three reasons can be sustained. Aside from the parol authority given to Rounsaville in 1879, there was the written authority from Johnston in 1880 to sell the land for $475 cash, net. The contract executed by Rounsaville was not in excess of the authority conferred. It purported to sell the land for $475, the same to be paid as soon as the land was cleared of incumbrances. This was not as counsel contend, a time contract, but a cash transaction. It only stipulated for that which the purchaser was entitled to upon the authority given in the letter, and that was a clear, unincumbered title, and an ordinary warranty deed. Certainly, when the owner of real estate authorizes a sale of it, he means, in the absence of special words of restriction, that the real estate shall be unincumbered, and that he will make an ordinary warranty deed. Johnston’s letter to Rounsaville authorized him to make the contract which he did in fact make, and the contract when made was binding on Johnston.
Again, the contract was no fraud upon Johnston; neither was there any imposition practiced upon him in directing the deed to Luther Sperry. It was nothing to him as to who should be named as grantee in the deed. All that he had a right to insist upon was the $475 in cash, and whether the purchaser wanted the deed made to himself, his wife, a child, or a stranger, was a matter which in no manner concerned the vendor, and gave him no ground of complaint.
Again, the delay in the accomplishment of the sale resulted only from Johnston’s efforts to remove the tax title from his land, and was not a matter for which the purchaser was to blame, or which in any way affected the validity of the contract or the rights of the purchaser therein. Again, John P. Johnson had read the contract of sale before he took his deed from John S. Johnston, and was therefore not a purchaser without notice. We think, therefore, in conclusion, that the findings of fact were justified by the testimony and compelled the decree which was made, and it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is alleged that the petition was fatally defective in not showing that F. M. Sands had given a bond as surviving partner. As the action was commenced in the name of F. M. Sands, as the sole surviving partner of the late firm of F. & C. Sands, if the other allegations in the petition were sufficient, the failure to allege that the plaintiff had given a bond as surviving partner was no defect whatever. Upon the death of a partner, the survivor becomes a trustee for all concerned. He holds the legal title to all the personal property, choses in action, and other assets of the firm; and his control of all the partnership assets, real and personal, legal and equitable, is absolute and indefeasible, limited only by the purposes for which it is-granted to him, and the provisions of the statute concerning partnership estates. Until plaintiff was cited under the provisions of §35, ch. 37, Comp. Laws 1879, to give a bond as surviving partner, he had the right to the possession of the partnership property. {Carr v. Catlin, 13 Kas. 393.) The citation was a matter personal to the plaintiff as surviving partner, and it was an act required to be done to divest him of his right to control and dispose of the property. Unless he was cited or voluntarily appeared in the court and refused to give the statutory bond, or in some other way declined to take charge of the partnership property so as to waive a citation-, he was never divested of his control over said property.
II. The plaintiffs in error (defendants below) offered to show that after the execution of the redelivery bond by them, one hundred of the sheep died without any fault or neglect on their part, and from unavoidable causes. This evidence was excluded, and of this, complaint is made. There was nothing in the answer setting forth that any of the property described in the petition between the commencement of the suit and the trial was lost through the act of God, and no supplemental answer was filed alleging such loss, and therefore under the issues in the case, as made by the pleadings, the evidence was not admissible.
Upon the question discussed in the briefs, whether the fact that property is lost through the act of God may be set up as a defense, the rule is that where a party is in possession of personal property belonging to another, and is to be regarded as a mere bailee for the owner, the property in his possession is at the risk of the owner. On the other hand, a person not being the owner of goods, who takes them out of the possession of the real owner, holds them in his own wrong and at his own risk. He has deprived the real owner of the possession, and has also deprived, him of the means of disposing of the property pending the litigation to recover it, and if at the end of a litigation over the property it is determined that he has no right to the possession thereof, and judgment is rendered against him for the return of the property dr its value, he cannot on principle or authority be excused from satisfying said judgment under a plea that the property has been lost in his hands, even by the act of God. (De Thomas v. Witherby, S. C. of Cal., 14 Reporter, 262-3.
III. The final and the important question in this case is as to the effect of the attempted transfer and sale by C. E. Sands, as,,member of the firm of F. & C. Sands, to the plaintiffs in error (defendants below) of all the partnership property of the firm without the consent and in the temporary absence of his copartner as evidenced by the bill of sale of September 8,1881. The trial court, in excluding the bill of sale and other evidence tending to prove that plaintiffs in error bought the sheep in controversy of the firm of F. &.C. Sands by arrangements with C. E. Sands, held that any sale or transfer by C. E. Sands without the consent and in the absence of his copartner would not bind the firm of F. & C. Sands, unless it was shown that F. M. Sands received some benefit from the sale, or in some manner ratified it by receiving the money, or that C. E. Sands had authority to sign the firm-name, and that without ratification or authority or the reception of the money by F. M. Sands, the bill of sale of September 8, 1881, was an absolute nullity. It was disclosed by the evidence that the partnership between F. & C. Sands was not strictly a trading partnership, but one devoted to the increase and improvement of the sheep owned by them; generally no purchases being made except of breeding sheep, and no sales except culls of the flock. It was understood between the partners that each was to do his share of the business and take his share of the profits that resulted from it; that they were to continue in the sheep business until they made more money out of it; but there was no contract, either written or verbal, for the partnership to continue to a time certain. During the spring and summer of 1881, both of the brothers of the firm were personally in charge of the sheep in Butler county in this state, until the 5th or 6th of July. Just previously they had finished shearing the sheep, and F. M. Sands went home, partly to make a visit, and partly to see about selling the wool. The wool had been shipped to Boston, Mass.; and the home of F. M. Sands was in Dutchess county, N. Y. The sheep were then left in charge of the brother, C. E. Sands, with no special or general authority to dispose of them as a herd or flock. The sale to plaintiffs in error of all the sheep and property of the firm was made by C. E. Sands, on September 8, 18,81, while his brother was east. C. E. Sands died within two days after the same, and F. M. Sands returned to Butler county immediately afterward.
As the partnership of .F. & C. Sands was not strictly a trading one, and as the business in which they were engaged rendered it indispensable for the ownership of the partnership property to be continued in the firm until a dissolution thereof, or other arrangements were made, C. E. Sands had no power to sell or dispose of all of the joint property in the temporary absence of his copartner. While a contract of partnership constitutes each of its members an agent for the others, it is only for the purpose of carrying on the partnership — not for destroying it. Stripping a firm of all its property is a thing not contemplated in carrying on a partnership, and consequently no agency for such a purpose is intended to be created; therefore no authority can be admitted in one partner to sell the entire property of the firm, when the object of the firm is not trading, buying and selling, but a business in which the continued ownership of the property is necessary. (Slaon v. Moore, 77 Pa. St. 217; Kimball v. Ins. Co., 8 Bosw. [N. Y.] 495; Kirby v. Ingersoll, Harrington’s .Ch. Rep. [Mich.] 172. See also John v. Crichton, 11 Reporter, 811; also Parsons on Partnership, 3d ed., pp. 174-190; 2 Lindley on Partnership, 4th ed., pp. 697, 698.)
The doctrine above stated in no way conflicts with Williams v. Barnett, 10 Kas. 460, when that case is fully examined, and in Deitz v. Regnier, 27' Kas. 94, it is expressly stated that partnerships in occupation or employment are controlled by rules different from those applicable to commercial or trading ones. While F. M. Sands had no authority to make an absolute transfer of the whole property of the firm without the consent and in the temporary absence of his copartner, yet 'the sale of September 8, 1881, was valid as against himself, and by the sale he transferred to plaintiffs • in error all of his interest in the partnership property. [North v. Mudge, 13 Iowa, 496; Chris v. Sherman, 10 Iowa, 535; Rhodes v. Amsick, 38 Md. 345; Tapley v. Butterfield, 1 Metc. 515; Arnold v. Stevenson, 2 Nev, 234; Sutlive v. Jones, 61 Ga. 676.) After the sale of September 8, 1881, ■by C. E. Sands, he had .no interest of share.in the sheep sold, or any of the partnership property, until his subsequent purchase of September 9, 1881. With that purchase, however, we have no concern, as the sheep in controversy were not included therein. As there was no contract for the partnership to continue to a time certain, the sale by C. E. Sands of September 8, 1881, operated as a dissolution of the partnership of the firm of F. & C. Sands, and the plaintiffs in error were substituted as the owners of the interest of C. E. Sands. After the dissolution, each of the parties — that is, the plaintiff and the defendants below — had as much right to any of the particular sheep sued for as any other of said parties, and all had as much right as the plaintiff. After the dissolution of the firm, plaintiff and defendants below became tenants-in-common of the joint stock of the late firm; and as under the bill of sale of September 8, 1881, they were tenants-in-common of the property in controversy, the exclusion of the bill of sale and other evidence tending to establish that C. E. Sands had sold and transferred his interest in the joint property of the firm to the plaintiffs in error, was material error. Every partner has authority to sell his interest in the joint property of the firm, or any part thereof, and as plaintiffs in error were put in actual possession by the partner who had charge of the sheep, and purchased of him his interest therein, they became, as above stated, tenants-in-common of the joint stock, and replevin would not lie against them. In this view also, the instructions given by the court were erroneous.
We do not intend in any way to intimate that the assignee of a partner’s interest can withdraw his share of the joint effects of a partnership from the partner or partners in possession, or that such an assignee can maintain an action to recover his interest in the chattels of the firm. He may sue for an accounting, and will recover whatever his assignor would have been entitled to on a settlement of the partnership accounts; and until the affairs of the partnership are thus wound up, the partner who did not sell and has the manual possession of the -firm property 'is entitled to the possession ofthe same. (Miller v. Brigham, 50 Cal. 615; Horton’s Appeal, 13 Pa. St. 67; Meaher v. Cox, 1 Sel. Cases, Ala., 156; Parsons on Partnership, 3d ed., 173-177.)
Other questions are presented, but as a new trial must be had we do not think they are material, or comment thereon necessary.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution, brought by the state of Kansas against George L. Miller, in which the defendant was charged with keeping and maintaining a common nuisance, to wit, a place where intoxicating liquors were illegally kept for unlawful sale, barter and use, and without any permit therefor, and contrary to the statute in such cases made and provided. The action was commenced before a justice of the peace, and was afterward taken on appeal to the district court, where the case was again tried, before the court and a jury, and the defendant was found guilty, and sentenced to pay a fine of $250 and the costs of the prosecution, and to stand committed to the county jail until the fine and costs were paid. The defendant now appeals to this court, and claims that three material and substantial errors were committed by the court'below, to wit:
“First, In excluding John Estlinbaum from the jury, upon the challenge of the state.
“Second, In overruling the defendant’s challenge to John Hay.
“Third, In overruling the motion for a new trial, and rendering judgment upon the verdict of the jury, notwithstanding the fact that the verdict is not sustained by sufficient evidence.”
The first ground for error is founded upon the ruling of the court had upon the examination of John Estlinbaum, who was called and examined for the purpose of ascertaining his competency to serve as a juror in the case. The examination and ■ruling are as follows:
“John Estlinbaum, being'sworn on his voir dire, testified: ‘ I live in Junction City, Davis county; have lived here a number of years; know the defendant, George L. Miller; have heard of this case; have formed an opinion upon it; have not expressed an opinion; know nothing about the facts in the case; I was absent in Colorado during all the time covered by the complaint, viz., from October 1st to December 15th; returned about six weeks ago to Junction City. My opinion is formed upon rumor; it would take some evidence to remove it, but I could try the case impartially as a juror. I have'not been doing business in Kansas since the 1st day of May, 1881. I have not been employed by the defendant since that time, except about three days assisting in moving a house for him. Had tended bar for him a short time prior to May 1, 1881.’”
This was all the evidence introduced as to the competency of the juror. The court sustained the challenge of the state, and discharged the juror, to which ruling of the court the defendant excepted. We do not think that'the court below committed any substantial error as against the defendant, for, although it may be that Estlinbaum was not so absolutely incompetent to serve as a juror that the court below would have committed material error by permitting him to serve as a juror, yet it cannot be doubted but that twelve men more competent could easily have been found and obtained to serv on the jury. We think that a trial court has, and should have, a very extensive and almost unlimited discretion in discharging a person called to serve on . \ . . ° ° x . . a jury, who might, in the opinion of the court, not make the fittest or most competent person to serve on the jury in the particular case. We can hardly see how the court could commit substantial error by discharging any person from the jury, when twelve other good, lawful and competent men could easily be had to serve on the jury. (Stout v. Hyatt, 13 Kas. 232; A. T. & S. F. Rld. Co. v. Franklin, 23 Kas. 74.) There is an immense difference between discharging a juror, and retaining him. To discharge him can seldom, if ever, do any harm; while to retain him, if his competency is doubtful, may do an immense injury to one party or the other. Hence the same rule as to competency should not govern in discharging a juror that should govern in retaining him.
The second ground of alleged error is, the action of the court below in overruling the defendant’s challenge to John Hay as a juror. The evidence with respect to John Hay’s competency to serve as a juror is as follows:
, “.John Hay being called as a juror in this case, and being sworn upon his voir dire, testified: ‘I reside in Davis county; am a citizen of the county. I am acquainted with the defendant, Miller. X was called as a juror in this case upon the trial of it before the justice of the peace, and I was peremptorily challenged by the defendant at that time. I have an opinion in my mind as to the guilt or innocence of the defendant upon the charge in the complaint in this case; I have no doubt as to the correctness of my opinion"; this opinion would remain until removed by evidence. I have •not expressed an opinion. Opinion founded on rumor. I have no bias or prejudice against the defendant, and would be governed entirely by the evidence in making up my verdict. I believe I could try the case impartially.’ ”
This was the only evidence tending to show the competency or incompetency of the juror. The court overruled the defendant’s challenge, and the defendant excepted. The defendant afterward challenged Hay peremptorily, and in doing so exhausted all of his peremptory challenges. Was Hay competent'to serve on the 'j ury ? We do not think that he was. Every person charged with a criminal J r ° offense, in Kansas, has a right to be tried “ by an impartial jury.” (Const., Bill of Rights, § 10.) Now is a juror who possesses an opinion with respect to the guilt or innocence of the accused; and who has “no doubt” as to the correctness of his opinion, an “impartial” juror? And is a juror who, having such an opinion, and who would continue to entertain the same until it should be removed by evidence, an impartial juror? Suppose that this opinion was that the defendant was guilty: then, would it be possible for the juror to presume that the defendant was innocent, until the contrary.was proved? Would he not rather presume that the defendant was guilty, until the contrary was proved? Section 228 of the criminal code requires that every defendant in a criminal prosecution shall be “presumed to be innocent, until the-contrary is proved.” Would the juror, in the case supposed, be competent under this section ? Besides, § 205 of the criminal code provides that “it shall be a good cause for challenge to a juror that he has formed or expressed an opinion on the issue, or any material fact to be tried.” Now would the juror, in the case supposed, be competent under this section? But it may be said that the opinion of the juror in the present case was founded merely upon rumor. Now there is nothing in the constitution, or in the statutes, providing, or even intimating, that a juror who has formed an opinion upon rumor only may be,competent to serve in the case. It may also be said, in the present case, that the juror stated upon his voir dire that he had .no bias or prejudice against the defendant, and would be governed entirely by the evidence in the case in making up his verdict, and that he believed that he could try the case impartially. The juror was probably sincere in stating this; and he probably could state the same again with the same sincerity, even though he may have heard all the evidence introduced on the trial of'’the case. Indeed, it is probable that every juror who tried the case could honestly state, if called upon to try the case again, that he believed that he had no bias or prejudice against the defendant, and would be governed entirely by the evidence in making up his verdict; and that he believed that he could try the case impartially. Men are seldom conscious of being biased or prejudiced, or of being in such a condition that they could not try any case impartially, and be governed entirely by the evidence introduced on the trial of the case.
The fact, in the present case, that the juror had an opinion with respect to the guilt or innocence of the defendant, and that he had no doubt as to the correctness of his opinion, and that his opinion would remain until it should be removed by evidence, was sufficient to render the juror incompetent to serve in the case; and we think that the court below erred in overruling the defendant’s challenge to the juror for cause. With this view of the case, it is unnecessary to consider the other ground of alleged error.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a triangular controversy,, in which J. D. Fowler, Alfred Moore and White Marshall are respectively the three parties in interest. The facts are these: On July 2, 1878, Alfred Moore, holding the legal title to lot 20, Jefferson street, Topeka, sold the property to White Marshall, executed to him a warranty deed, and took back a mortgage for part of the purchase-price. Marshall defaulting in his payments, on May 13, 1880, Moore commenced an action in the Shawnee county district court to foreclose the mortgage, making Marshall and his wife the only defendants. Thereafter, J. D. Fowler, having on his own motion been made a party to the suit, filed his answer, claiming to be the equitable owner of the property by reason of a prior purchase from Moore, and also claiming that White Marshall entered into possession of the property as his tenant. The pleadings having been all completed by answers and replies, the case went to trial before the court without a jury; and in addition to the deed and mortgage between Moore and Marshall, these further facts appeared: On December 10, 1877, Fowler made a contract of purchase from Moore of the property, as evidenced by the following writing:
“Received of J. D. Fowler, five dollars, part payment of $125, and interest at 10 per cent, interest, to apply on purchase of lot No. 20, Jefferson street, city of Topeka, Kansas; balance of payments to be made in payments of $5, with interest on each payment as it becomes due at 10 per cent. Said $5 payments to be made oh the 10th day of each month hereafter, until the full sum of $125 is fully paid. ,
Alfred Moore.-
By E. Langel, Agent.”
Upon this contract Fowler testified that he paid $35 to Langel, Moore’s agent, though Moore testified he received only $20. After this contract, Fowler took possession and put $100 worth of improvements on the premises. Thereafter, and in May, 1878, he transferred the possession to Marshall. Fowler testified that Marshall entered as his tenant; that after Marshall had so entered there was an arrangement made between him and Marshall for a sale of the property, and a contract in writing drawn up but never signed. Marshall testified that he did not enter as tenant, but only upon a contract of purchase, and under such contract paid $22; in support of which he offered the receipts, which read that the money paid was “to apply on house and lot-place.” Sometime in June, 1878, one Rudolph, as the agent of Moore, (Langel having died,) notified Fowler that he had forfeited his contract, and that therefore he had sent the papers- away. He also informed Marshall of the same fact. Fowler thereupon told Marshall, as he testifies, “that I could not receive any more money from him, as I could not perfect my arrangements with Moore; that I had no place to make my payments, and after this made no more demands upon him for money.” After this notification by Rudolph of the forfeiture of his contract, Fowler made no more payments thereon, made no demand of money from Marshall, never tendered to Moore the remainder due on the contract, and never save by this answer insisted upon his rights in the premises, either as against Moore or Marshall. There is no testimony showing the terms of the contract between Marshall and Fowler, whether that was a tenancy as claimed by Fowler, or a purchase,as asserted by Marshall, nor of the unsigned contract spoken of by Fowler. No special findings of fact were made, but the court found generally against Fowler, and entered a decree foreclosing the mortgage in favor of Moore and barring Fowler of any interest in the premises. Fowler brings the case here for review, claiming that by his contract of purchase of December 10, 1877, he acquired an equitable interest in the premises, which he has never forfeited, which is a sufficient basis for a decree of specific performance, and which it was error to divest him of, as was done by the decree of the court.
The testimony is very meager and incomplete, and does not fully disclose all matters which we deem important to a full determination of the rights of the parties. We have hesitated somewhat whether we ought not to remand the case for a new trial, in order that the facts may be more fully shown. As it is, we are compelled to rest our decision somewhat on presumptions. Yet the party who now alleges error is the one whose duty it was to make a full disclosure of the facts, and any failure in this respect is one which while it makes against his claims, is also one for which he is responsible. He is asserting an equitable interest in the property, and he must see that all facts are presented which will justify a court of equity in recognizing and enforcing such interest. It is doubtless true that by his contract of December, 1877, he acquired an equitable interest in the property, an interest sufficient to lay the foundation of an action for specific performance; and it is also clear that there is no positive testimony showing an affirmative surrender or a forfeiture of such interest. But it is also true that an action of specific performance appeals largely to the discretion of the trial court, and that specific performance will not be decreed unless it affirmatively appears that it is equitable to do so. (Story’s Eq. Jurisp., §§742, 769, 771.) The court having found generally against him, this must be construed as equivalent to a finding that Marshall did not enter into possession as his tenant as he claims, but only under the contract of purchase as Marshall testifies. So we think there are three grounds which, taken together, are sufficient to justify us in not disturbing the decision of the court: First, the time which elapsed before Fowler made any effort to assert his rights; second, the assertion of forfeiture by Moore with the seeming acquiescence of Fowler; and third, the unknown terms of the contract by which Marshall took possession.'
With reference to the first ground, in Fry on Specific Performance, §730, it is said that:
“It is now clearly established, that the delay of either party in not performing its terms on his part, or in not prosecuting his right to the interference of the court by the filing of a bill, or, lastly, in not diligently prosecuting his suit when instituted, may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific performance, to an abandonment on his part of the contract.”
A brief reference to .some of the decided cases may not be uninstructive. In England, in Marquis of Hertford v. Boore, 5 Ves. 719, a delay of fourteen months was considered no bar. In Eads v. Williams, 4 De G. M. & G. 674, a delay of three and a half years was adjudged fatal. In Southcomb v. The Bishop of Exeter, 6 Had. 213, a delay from January 17, 1842, to August 30, 1843, was held to have the same effect. In Lord James Stuart v. Railway Co., 1 De G. M. & G., 721, a delay from October, 1848, to July, 1850, was thought fatal. See also Spurrier v. Hancock, 4 Ves. 667; Harrington v. Wheeler, 4 Ves. 686; Guest v. Homfray, 5 Ves. 818; Watson v. Reid, 1 R. & My. 236. In this country, in Hedenburg v. Jones, 73 Ill., 149, four years were thought too long for the party to wait. In Roby v. Cossit, 78 Ill. 638, six years’ delay was considered fatal. In Rld. Co. v. Bartlett, 10 Gray 384, three years were held to have the same effect. In Gariss v. Gariss, 16 N. J. Eq. 79, two years were considered too long for a party to wait; in Haughwout v. Murphy, 21 N. J. Eq. 118, two years and a half. See also Merritt v. Brown, 21 N. J. Eq. 401; Miller v. Henlam, 51 Pa. St. 265; Eastman v. Plumer, 46 N. H. 464; Ritson v. Dodge, 33 Mich. 463; Iglehart v. Vail, 73 Ill. 63; Brown v. Hayes, 33 Ga. 136; McDermid v. McGregor, 21 Mich. 111; Gentry v. Rodgers, 40 Ala. 449; Mix v. Balduc, 78 Ill. 215.
• It is true that in some of these eases there were other considerations than the mere lapse of time, yet in others time was the only fact, and in all of them stress is laid upon it. "We do not wish to be understood as holding that the mere lapse of time, in the case at bar, would of itself be sufficient to defeat plaintiff in error’s recovery, but only refer to it as one of the matters which contribute to justify an upholding of the decision.
In reference to the second matter, and turning again to Fry on Specific Performance, we find in §'737 that the author says:
“And where one party to the contract has given notice to the other that he will not perform it, acquiescence in this by the other party, by a comparatively brief delay in enforcing his right, will be a bar; so that in one case two years’ delay in filing a bill after such notice, and in another case one year’s like delay, have been held to exclude the intervention of the court:” citing Heaphy v. Hill, 2 S. & S. 29; Watson v. Reid, supra.
Several of the authorities heretofore cited under the first point discuss and enforce this rule; notably the cases from 40 Alabama, 16 New Jersey Equity, and 21 Minnesota. In the latter case it appears that on July 14, 1868, one Austin, the owner of a tract of land, sold it to the plaintiff for $500; $200 cash and the remainder in one, two and three years. The first note, with all interest, was paid June, 1869. Possession was taken at the time of sale, and the land cultivated by plaintiff (although no buildings were erected) until February, 1872, when he abandoned the possession, selling the fences which were around the place. On February 27,1872, he sent $40 in a letter to Austin, as part payment of the interest on the two unpaid notes. This money Austin returned, saying that he considered the contract forfeited, and declined to receive any further money from him. On May 7, 1872, Austin conveyed to defendant for $500, which was fully paid at the time. Plaintiff knew of this sale within three days after it was made. The defendant, after his purchase, put a house and other improvements upon the premises. In March, 1873, plaintiff commenced his action for specific performance, and it was held that he was too late. Now in the case at bar the vendor’s agent notified both Fowler and Marshall, in June, 1878, that the contract was at an end. Fowler declined to receive any more money from Marshall, made no further payments himself on his contract, or efforts to enforce his rights, until this suit some two years thereafter. He thus apparently acquiesced in the assertion of forfeiture, and abandoned his claim to the premises. Upon notice of this alleged forfeiture, Marshall bought, and paid his money.
Finally, we must assume, as heretofore stated, that the court found that Marshall entered under a contract of purchase, and upon that contract paid $22. Now the terms of that contract are not shown. We do not know whether that contract called for $20, or $200. Perhaps the consideration was so nearly paid by Marshall that equity would regard the remainder as coming within the maxim, He minimis non curat lex, especially after Fowler had himself declined to receive any more money from Marshall. Perhaps there were other conditions in it which would make it inequitable, at the present time, to enforce specific performance. In this case, as Fowler had contracted to sell to Marshall, he must show affirmatively that he is equitably entitled to relief, not merely against Moore his vendor, but also against Marshall his vendee. The silence of the record in this respect is against. his claim, and we cannot hold that the court erred in refusing him relief without knowing the terms of the arrangement between him and Marshall. It is perhaps unnecessary to comment further. We have examined the authorities and questions presented and discussed by the various counsel, and for the reasons indicated have concluded that upon the meager record it cannot be adjudged that the district court erred in refusing affirmative relief to the plaintiff in error. The judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by the board of county commissioners of Norton county, against A. S. Burroughs, a former commissioner of said county, to recover $62, alleged to have been overdrawn by Burroughs, as compensation for his services while acting as county commissioner, in 1880. The case was submitted to the district court upon an' agreed statement of facts, and the only question presented to that court was one of law, and was as follows: Does the limitation of one hundred dollars contained in the proviso to amended § 13 of the act relating to counties and county officers, (Comp. Laws 1879, p. 274, ch. 25, § 13,) which relates to the compensation of members of the board of county commissioners, include pay for the services of such members while attending meetings to equalize assessments, to levy taxes, and t,o canvass the returns of elections, and for services on committees as well as compensation for services in attending regular and special meetings of the board held in pursuance of or under said § 13? The district court decided that the defendant as a member of the board was entitled to draw pay for his services rendered in committee work, in excess of the one hundred dollars mentioned in said proviso, but that he was not entitled to receive anything for his services rendered in attending the meetings of the board to equalize assessments, to levy taxes, or to canvass the returns of elections, provided he had already received one hundred dollars as compensation for attending other meetings of the board within the year. The defendant contended at. the trial of this case, and now contends, that the said one hundred dollars limitation applies only to compensation for services of members of the county board in attending the regular and special meetings mentioned in the first part of said § 13; and also that the proviso to said § 13 is void, for the reason that the legislature in enacting it did not comply with the provisions of the first two clauses of § 16, art. 2, of the constitution. Changing the order of these two questions, we would say that we see no good or sufficient reason for holding that the proviso to said § 13 is void. The only plausible ground for claiming that it is void is as hereinafter stated. The original § 13 was first enacted in 1868, and it did not contain said proviso. . The section was afterward amended in 1873, by an ■ act designated as chapter 74, and approved March 3, 1873; and the section thus amended did not yet contain said proviso. In 1879 the section was again amended, by an act entitled “An act to amend chapter 74 of the statutes of 1873, approved March 27, 1873.” In the section as thus amended the proviso first appears; and the principal ground for claiming that the proviso is void, is that the title to the act states that the former act was approved on March 27, 1873, while in fact it was approved March 3, 1873. We do not think that this mistake of the legislature renders the act of 1879, or the proviso, invalid. There is enough to indicate, and to clearly indicate, what the legislature intended. There is but-one chapter 74 of the Laws of 1873, and there is but one chapter of the Laws of 1873 to which this amendment, contained in the act of 1879, could be applicable. Hence we perceive no good reason for holding that said proviso is unconstitutional or void. We think the subject of the act is sufficiently expressed in the title, and that the amendment of said § 13 by adding said proviso is not unconstitutional or void on account of any indefiniteness or uncertainty in the title to tfie act.
We shall now proceed to consider the first question presented by counsel for plaintiff in error, defendant below. We think the court below erred in holding that said proviso applies to compensation for services rendered by the county commissioners in attending meetings as a board for the equalization of assessments; or as a board to levy taxes; or as a board to canvass the returns of elections. Said amended section reads as follows:
“The board of county commissioners shall meet in regular session at the county seat of the county, on the first Monday of January, and the first Monday after the. first Tuesday of April, and tfie first Mondays of July and October in each year, and in special session on the call of the chairman at the request of two members of the board, as often as the interest of the county may demand: Provided, The pay for such service, including all regular and special meetings, shall never exceed the sum of one hundred dollars to each commissioner in any one year.” ■
This section it-will be perceived, provides for regular meetings of the CQunty board to be held'on the first Mondays of January, July, and October, and on the first Monday after the first Tuesday in April, and provides for special meetings to be held “ on the call of the chairman at the request of two members of the board.” And no other regular or special meetings are provided for by the said section. The proviso states: “That the pay for such service, including all regular and special meetings, shall never exceed .the sum of one hundred dollars to each commissioner in any one year.” Now the words “such service” unquestionably mean the service performed at the regular and special meetings provided for in the body of the section. Under no rule of language can they mean anything else; and the words “all regular and special meetings ” are intended to embrace only such services as are included in the previous words, “such service.” The language itself indicates this, and it cannot mean anything else. The language is: “Such service, including all regular and 'special meetings.” Besides, there are no meetings of the board which can properly be termed régular or special meetings, except such as are provided for in the body of said §13.' The other meetings of the commissioners are not held at the times designated for the regular meetings in January, April, July, and October; nor are they called directly or indirectly by “the chairman at the request of two members of the board.” These other meetings are fixed by law, and are for special purposes; and are not intended for the transaction of ordinary county business. On the first Monday of June ,of each year, the commissioners meet as a “board of equalization ” to equalize the assessments of property, (Comp. Laws 1879, ch. 107, art. 11, §73, et seq.j) on the first Monday of August of each year, the county commissioners meet as a board to levy taxes, (Comp. Laws 1879, ch. 107, art. 13, § 83;) and on the Friday next following an election, the commissioners meet as a board of canvassers to canvass the election returns, (Comp. Laws. 1879, eh. 36, art. 3, § 28, et seq.j) and general elections are held on the Tuesday succeeding the first Monday in November, (Const., art. 4, §2;) and township elections are held on the first Tuesday in February in each year. (Comp. Laws 1879, ch.'llO, art."2, §1.)
We do not think that said §13 includes meetings of the county commissioners to equalize assessments, or to levy taxes, or to canvass election returns;, and therefore we think the court' below erred.
The judgment of the court below will therefore be reversed, and cause remanded, with the order that judgment be ren dered in favor of the defendant and against the plaintiff for costs.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action' for damages, brought by the defendant in error (plaintiff below), an employé of the Atchison, Topeka & Santa Fé ■ railroad company, against the company on account of injuries received from the alleged negligence of the company in having in use a defective and a dangerous engine. The plaintiff was employed by the company as an engine wiper or cleaner, at its round-house at Las Vegas, in the territory of New Mexico. W. T. Allen at the time was in charge of the round-house and the yards; James W. Crystal was the foreman at the place; Eugene Elmore was also an engine wiper or cleaner, and worked at the time with Holt. The evidence on the part of the latter conduced to show that on the evening of the 9th of February, 1881, he went to the round-house at about seven o’clock; that he had been there only a short time when Crystal told Elmore and himself to go and clean engine No. 82, which was over the pit. Elmore and Holt started to obey the order, and went from the round-house to the engine. Elmore' got upon the engine to shake down the fire and clean the fire-box; Holt got under the engine into the pit to clean the ash-pan. "While Holt was standing in the ash-pit, leaning forward and • supporting himself with his right hand resting on the rail, and hoeing the ashes with a short hoe in his left hand, the engine moved automatically backward about three feet, by reason of ■the steam escaping through the throttle, and one driver passed over his fingers, mutilating and injuring them so that three had to be amputated.
In our view of the case, the pivotal question is, whether the special findings of the jury hereinafter mentioned are supported by the evidence. If so, the verdict of the jury and the judgment of. the trial court have abundant foundation upon which to rest. It is conceded by all the counsel that the rule of the common law prevails in the territory of New Mexico, and therefore the railroad company is not liable in that territory to Holt or other employés, for injury produced by fellow-servants engaged in the same business and co-employment, provided there is no negligence in the employment or retention of the fellow-servants. It is nevertheless the rule, even under the common law, that a master employing servants upon any work, particularly a dangerous work, must use due and reasonable diligence, that he does not induce them to work under the notion that they are-working with proper and safe machinery while employing defective and dangerous machinery; and if an employé is-injured on that account, and without fault of his own, the master is liable in damages. In some cases, the master is charged with a duty to those serving him which he cannot divest himself of by any delegation to others. Thus, it is a general rule that any employer, whether corporate or not, must take care that there is no negligence in procuring safe machinery, appliances, etc., and the employer, whether corporate or not, must see that the machinery is kept in proper repair; at least, reasonable and proper vigilance must be exercised to see that it is in proper condition for the purposes-for which it is being used. Where business is carried on by such machinery as is used in operating a railroad, it is the-duty of the railroad company to keep the machinery in such condition as from the nature of the business and employment, the servant has the right to expect that it will be kept; and where the company fails to do so, through the exercise of ordinary care, it is liable for injuries arising from its neglect.
Again, engines and other appliances used in operating a railroad are liable to wear out, to break, become defective and dangerous, and a railroad company employing such agencies is charged with notice of this fact, and consequently is bound to exercise a degree of watchfulness over them,. commensurate with the nature of -the business in which they are employed, and the consequences incident to neglect. Therefore, if a company fails to make frequent examinations of its engines, machinery and appliances, or fails to take other measures of precaution necessary to prevent such appliances and machinery from becoming defective and dangerous from natural causes; and if from such defects, which might have been known by the use of ordinary care or diligence, an employé suffers injury without his fault, negligence may be predicated thereon, as such omission would be regarded as negligence.
The question as to whose negligence shall be imputed to a corporation, as the negligence of the principal itself, in no way affects the general rule, which requires of any employer, whether corporate or not, to take care that there is no negligence in procuring proper machinery, appliances, etc., and in making use of like kind of machinery. (Gravelle v. Rld. Co., 2 Fed. Rep. 569; Totten v. Rld. Co., id. 564; Gibson v. Rld. Co., 46 Mo. 163; Keegan v. Rld. Co., 8 N. Y. 175; Patterson v. Wallace, Macq. H. L. Cas. 748; Rld. Co. v. Barber, 5 Ohio St. 541; Hayden v. Co., 29 Conn. 584; Paulmier v. Co., 34 N. J. L. 151; Sullivan v. Co., 113 Mass. 396; Moss v. Rld. Co., 49 Mo. 167; Rld. Co. v. Moranda, 12 C. L. J. 348; Cowles v. Rld. Co., 13 C. L. J. 546; Brabbits v. Rld. Co., 38 Wis. 290; Rld. Co. v. Elliott, 1 Coldw. 612; King v. Rld. Co., 15 C. L. J. 367, and cases there cited.)
The findings of the jury referred to are as follows: That engine No. 82, inflicting the injury complained of, was dangerous and unsafe for use; that the officers of the defendant and the person in charge of the engine did not exercise ordinary care and prudence to know the condition of the engine on the day of th'e injury, or at any reasonable time prior thereto; that the engine had been unsafe and dangerous for some considerable time before the day of the injury, and that this fact could have been known to the company by the exercise of ordinary care; that the injury to Holt was caused by the use of the defective and dangerous engine; that he was not aware that the engine was defective when he was ordered under it, or while under it; that he was injured in consequence of the engine moving upon, his hand; that he was obeying orders and performing his duty when injured; that he would not have been injured if the engine had not been defective and dangerous; and that he did not contribute!by any negligence of his own to the injury.
The finding that the engine was dangerous and unsafe for use on account of its defective or leaking throttle, was amply supported by the evidence. Several of the witnesses of the plaintiff testified to it, and three witnesses of the railroad company, among others its master mechanic, testified in substance that an engine 'that leaks so badly at the throttle as to move automatically is not a safe engine. The particular findings controlling in the case, which are challenged, relate to the want of'the exercise of ordinary care and prudence on the part of the defendant to know the unsafe and dangerous condition of the engine, and the failure to exercise ordinary care in acertaining its unsafe and dangerous condition.
Fletcher R. Allen testified that his occupation was locomotive engineer; .that he was acquainted with the engine inflicting the injury; that on the day of the injury it was leaking steam, and that it leaked bad enough so as to start, itself; it did start itself that day; that the'throttle had been leaking a good while, or quite a while; that he noticed in handling the engine several times before', that the throttle was leaking; that the engine started with him when the cylinder cocks were open, and that he did not consider himself safe to crawl under it without blocking it securely. •
James Howard testified that he was yardmaster and conductor for the Chicago, Rock Island & Pacific railroad company at Leavenworth; that he had been with, the company for eleven years, and that he knew a good deal about engines; that the leakage in the throttle in an engine is such a defect as to be readily observed by those in charge; that the engineer ought to know it at once, and that when an engine leaks at the throttle to such an extent as to permit it to move of its own accord, it would be the duty of the engineer in charge to report the engine to the foreman of the round-house or shops for repairs, or to make the repairs himself.
Frank H. Grover testified that he was a locomotive engineer on the Chicago, Rock Island & Pacific railroad; that if the throttle of an engine leaked so as to cause the engine to move, it was not safe, and should be reported for repairs; that where the throttle leaked to any considerable extent so as to cause an engine to move, the defect is easily discoverable; then an engineer could and should see it at once; that it would be the immediate duty of the foreman of the roundhouse or shops to whom the report was made, to see it repaired.
This evidence we deem sufficient to show the company might have known by the exercise of reasonable care and diligence that the engine was unsafe and dangerous, and therefore sufficient to support the findings specially challenged. If the railroad company knew, or ought to have known of the defective and dangerous condition of the engine at the time that Holt was ordered by the foreman to clean the engine, and Holt did not know, and was not bound to know of the existence of the defect, the liability of the railroad company is fixed, if Holt was otherwise' in the exercise of due care. The law will not allow the engines and machinery of the railroad company in constant use to be out of repair for want of ordinary care and skill in their management. The property of the company and the lives of passengers, as well as of railroad employés, depend upon the vigilance and frequent examination in this regard, and it is the duty of the company to keep a sufficient force at hand, and of capacity sufficient to discover obvious defects in its engines and other machinery and apply the remedy. Neglecting to keep its engines and machinery in ¿'reasonably safe condition, if injury or loss occurs thereby the company will be liable; and it ought to be so liable, because it is required to exercise reasonable and proper care to see that its engines and machinery are in proper condition, and, to guard against defects that may arise from use or other natural causes. From this responsi bility the company cannot be relieved except by showing that the defect was sudden or unforeseen, or that it could not be discerned or remedied by ordinary care or foresight.
If a railroad corporation does not appoint a foreman or other person whose business it is to examine, supply, repair or remedy defective engines and other machinery in actual use, it is guilty of negligence in omitting to do something that a reasonable employer would do. If it does appoint a foreman or other person to represent the corporation in this regard, and such foreman or other person omits his duty when he has knowledge of defects existing in engines and machinery in use, or fails to ascertain and remedy defects he ought to have known and might have known by the exercise of reasonable and proper care on his part by examining and inspecting the same, his negligence will be the negligence of the corporation. Counsel contend, however, that if the wheels of the engine had been blocked when placed over the pit to be cleaned, the injury complained of might have been prevented, and argue that the person charged with this duty must be presumed, in the absence of evidence defining his duties and describing his position, to have been a fellow-servant with Holt, and therefore that no recovery can be had, because the company is not at common law liable for the negligence of a co-employé. Even assuming that it was the duty of some fellow-servant of Holt to have blocked the wheels of the engine, the argument of counsel is not sound, because if the negligence of the master or employer combines with the'negligence of a fellow-servant, and the two contribute to the injury, the servant injured may recover damages from the master. In Cayzer v. Taylor, 10 Gray, 274, it was decided that the master is liable to his servant for injuries resulting from a defect in his machinery, although the negligence of a fellow-servant contributes to the accident. See also Crutchfield v. Rld. Co., 76 N. C. 320; Booth v. Rld. Co., 73 N. Y. 38; Paulmier v. Rld. Co., 34 N. J. L. 151. In the latter case the track over a trestle-work was not capable of supporting an engine, and the engineer in charge had orders not to put the engine thereon, but disobeyed orders, and a fireman who was on the engine and who was unaware of the orders or of the danger, was killed in consequence of the trestle-work giving away, and it was held a case for damages. The reason of this rule is, that while at common law the servant impliedly agrees to take the risk of negligence on the part of his fellow-servants, which „ the master cannot prevent, he does not impliedly agree to take the risk of any negligence on the part of the master. As we have placed the affirmance of the judgment of the trial court upon the special findings ofi the jury supported by the evidence, that Holt was injured while obeying orders and performing his duty without fault upon his part through the use of a dangerous and unsafe engine, which moved backward upon him by reason of the steam leaking through a defective throttle-valve, and- of which defect in the engine the company ought to have known and might have known prior to the injury, by the exercise of reasonable and proper care on its part, we do not think it is necessary to examine or discuss the various propositions concerning the alleged errors in the giving and refusing of the instructions. In our view, even if the instructions are subject to the criticism made upon them by counsel, the errors, if any, arising therefrom are immaterial. The same may also be said of the other alleged errors. Had? the engine of the company not been defective and dangerous, the failure of the trial court to have declared more clearly that the company in the territory of New Mexico was not liable to an employé for the negligence of a co-employé, might have been prejudicial. But as the case was tried, and is now presented, we think upon the special findings of the jury, no error injurious in, its results occurred to the party complaining.
The judgment of the district court will therefore be afafirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on an undertaking given under § 511, code of civil procedure; and the principal question is, whether the facts show any breach of that undertak ing. It appears that on the 23d of April, 1880, defendants in error obtained a personal judgment against C. C. Randolph, one of the plaintiffs in error. Thereafter, upon proper proceedings, an execution against the person having been issued, Randolph was arrested, and gave the undertaking sued on. Prison bounds, by said section, are coextensive with the limits of the county; and the condition of the undertaking is that if the debtor goes beyond the prison bounds before being discharged by law, the sureties will pay the amount of the judgment. All these proceedings were had in Sumner county; and the single question presented, as heretofore stated, is, whether the principal in the undertaking went outside the limits of Sumner county under such circumstances as to constitute a breach of the undertaking. Two breaches are alleged. The first arises on these-facts: Geuda springs are' situated on the county line between Sumner and Cowley counties. The bath house is in Cowley county, from sixty to one hundred feet east of the county line. Randolph visited the springs one Sunday in company, with some friends, and being informed and supposing that the bath house was within the limits of Sumner county, went thither. After being there a few minutes he was informed that the bath house was in Cowley county, and east of the Sumner county line. Immediately thereafter he returned west of the line; and the question now is, whether that constituted, a breach of the undertaking. Tried by the letter of the undertaking, unquestionably it was, for the bath house was in fact a few feet east of the line. . The sureties in the undertaking stipulated that if Randolph went outside the county limits, they would pay the debt. He did in /act go outside the county line; therefore, as counsel for defendants in error argues, there was an unquestioned and voluntary breach of the terms of the undertaking. ■ It matters not that Randolph’s action was through mistake, that in fact he was-but a few feet over- the county line, and there but for a few> minutes-^-it is-as much a breach as though he had intentionally gone miles beyond the county line and there stayed for months. In support of this he cites the following .authorities: Burrows v. Lowder, 8 Mass. 373; Reed v. Fullom, 2 Pick. 158; Trull v. Wheeler, 19 Pick. 240; Farley v. Randall, 22 Pick. 146; Illsey v. Jewett, 3 Metc. 430; Bissell v. Kip, 5 Johns. 89. We have examined these authorities, and think they sustain the claim of defendants in error. They lay down the proposition, that any overstepping of the prison limits, no matter how minute or unintentional, constitutes a breach of the undertaking which renders the sureties liable for the amount of the debt. This was in harmony with the general course of ruling at the common law, which laid great stress on minuteness, exactness, and form; and which by its subordination to matters of form and technicality, compelled the growth and development of the coordinate and beneficial system of equity, whose cardinal doctrine is to regard substance rather than form. To-day the two systems are blended. The healthful principles of equity permeate all the rules and proceedings of law, and courts of justice in administering the rights of parties look beyond the form and the letter to the substance and spirit. Tried by these healthier rules of interpretation, what is the intent and purpose of a debtor’s undertaking, like the one in question? The procedure assimilates that of the old equity proceeding of ne exeat. The purpose is to keep the debtor within the jurisdiction of the court, so that the proceeds of his labor may be reached by the process of the court and subjected to the payment of the debt. It is not intended as a trap to catch the sureties, and to transfer to them the burden of the debtor’s obligation. It means that the debtor shall stay within the limits óf the county; that while he has freedom to pursue his ordinary business, he shall yet be within reach of the process of the court, so that the proceeds of his labor, and the profits of his business, may be reached by like process for the payment of his debt. Now in the case at bar, the debtor was striving to obey the stipulations of the undertaking. He was intending to live up to its terms. Before going to the springs he made inquiry, and was informed that they were within the limits of Sumner county. He was acting in the utmost good faith, intending to remain within the jurisdiction of the .court, and to keep within the very letter of his undertaking. As soon as he found the mistake, he returned within the limits of his county. And notwithstanding the stringency of the old rulings, we think his momentary, slight, and unintentional overstepping of the bounds of the county cannot • be adjudged such a violation of the conditions of ^.g un(jer^a]j.jI1g as render the sureties liable for his debt. We do not doubt that if the debtor intentionally passed beyond the county lines for ever so short a distance, or ever so few moments, or if he went beyond them carelessly, without inquiry, and in utter indifference to the obligations of the undertaking, it would have to be adjudged a breach. But nothing of that kind appears in this case. Insurance policies often contain a stipulation that if the insured die by his own hand, the policy shall be void. But the general construction has been that this stipulation does not apply to cases in which in a state of insanity, or by an’ accidental blow, the insured kills himself. Only an intentional act is contemplated. Here there was no intentional breach. The language of the undertaking, “shall go,” implies voluntary action. If Randolph had been carried forcibly and against his will outside the county, no breach would have been claimed; his action would not have been voluntary. He voluntarily, it is true, went to the bath house, but he did not intentionally go outside the county. There was no voluntary breach.
Again, where time contracts are entered into, courts will seize upon the slightest excuse to prevent a forfeiture, at least in all cases in which the adverse party has suffered no loss through the default. And here the obligees have suffered nothing from Randolph’s act; he has not fled from the county; has not put himself beyond the jurisdiction of the court, and is not seeking to avoid any liability. We find in the later adjudications no decision upon a question like this. The old idea of the law, that the debtor is a criminal,.has long since passed away. It is simply a memory, a tradition and a fossil. The person of the debtor is now taken only in case of fraud, and even then he can obtain the freedom of the county, and his continued presence within the county is insisted upon, rather as a means to secure the proceeds of his further labor, than as a punishment. In harmony with this, and with the general equitable rulings of the day, it seems to us that a mere technical, slight, temporary and unintentional overstepping of the limits of the county, should not be adjudged a breach of the undertaking. The cases of Downer v. Dana, 19 Vt. 338, and Perldns v. Dana, 19 Vt. 589, tend to sustain this view. In those cases it appeared that a tree stood some rods exterior to the jail limits, established by the county court, but that for many years the prison debtors had looked upon that tree as on the line of the jail limits, and had been in the habit of going to it. And it was held that one going to such tree had not violated the provisions of his jail bond. We think that decision right; that its spirit is in harmony with the general rule of decision to-day, and with the conclusion we have reached in this case. Indeed, we think the defendants in error are in a position to require the application of a similar rule, for several technical errors and defects are pointed out in their proceedings. None of them we think are matters of substance, or sufficient to invalidate the undertaking given by the plaintiffs in error, and yet they present technical departures from literal exactness.
The other breach alleged is in the fact that Randolph went to the state of Illinois; but this he did upon leave obtained from the judge of the district court. The power of the judge to' grant such leave is denied: the power was exercised and leave given under § 514 of the code. That section authorizes the court or judge to discharge, on such terms as may be just, a person imprisoned “in case of his inability to perform the act, or to endure the imprisonment.” Under this section application was made, after notice to the plaintiffs in the judgment, for leave for the imprisoned debtor to go to Illinois, on .account of the,illness of his wife. - .Upon the hearing of this application, the leave was given to him to be absent for the term of thirty days. ' Before the expiration of the thirty days he returned, and has since remained within the county. Now it is claimed that this order was void; that the inability referred to in the statute is a personal and physical inability; that no such inability was alleged; and that therefore the 'court had no’ power to act. We cannot assent to this. Power is given by the statute to the court to grant a discharge on account of inability. Application was made under this, statute. Notice of the application was given to the adverse party. Both parties were present: a showing was made, and the court actéd. There was therefore a hearing before a competent tribunal, with jurisdiction of both parties; and the order made after such hearing cannot be adjudged void. ' Whether the,court .erred in its ruling upon the facts, whether the order was or was not erroneously made, can only be determined by proceedings in error. As long as there was enough to challenge judicial action, the order cannot be declared void in a collateral proceeding. (Burke v. Wheat, 22 Kas. 722; Bryan v. Bauder, 23 Kas. 95; Hodgin v. Barton, 23 Kas. 740.)
As these are the only two matters in which any breach of the undertaking is claimed, and as we think neither of them constitutes a breach, it follows that the district court erred. The judgment of the district court will therefore be reversed, and the case remanded with instructions to enter judgment upon the findings in favor of the plaintiffs in error, defendants below, for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
A motion for a rehearing is made in this case. In one respect we are constrained to think that there was error in the opinion heretofore filed, and that the order we made was improper. The facts are these: The action was an action of ejectment. Trial by the court; special findings of fact, and judgment for plaintiffs; the defendants brought the record to this court. Plaintiffs’ title rested upon a sheriff’s sale made upon executions issued on two judgments. Jurisdiction of the defendant in those judgments was obtained by attachment and publication. The returns on the writs of attachment were not signed by the officer, and were defective in other respects. We held the returns insufficient to confer jurisdiction, but that the defects could be cured by amendment if the facts justified. Thereupon, instead of reversing the judgment and remanding the case for a new trial, we said that it seemed to us that the case had been fully tried and all available testimony introduced, and that it would be unnecessary to put the parties to the expense of a new trial, and ordered that the case be remanded to the district court, with instructions that if within a reasonable time the sheriff’s returns in the attachment cases should be amended, the judgment in this should be affirmed. The argument on the motion for a rehearing convinces us that the order is erroneous, and that the judgment should have been that of reversal, and remanded for a new trial. As to matters like this, this court is one solely of appellate and not original jurisdiction. We simply review what has been done by the trial court. If right, we affirm it; if wrong, we reverse. Doubtless we have a discretion in some respects, and' a power beyond the mere order of affirmance or reversal. If the judgment does not conform to.the findings, we may correct the judgment. A defect in the pleadings or proceedings, which ought to have been corrected below by amendment, will be disregarded here, or considered as amended. So in some cases, if the judgment is excessive, we may direct an affirmance upon the filing of a remittitur as to the excess. Yet in these and all kindred cases we are limited to the record as it stands. We do not open the case to hear additional testimony as to any fact. We examine nothing not presented to the trial court. We review, not try. And whatever order we make is founded upon the pleadings, evidence and proceedings as presented and had in the court below. Now upon the record as it stood, we found that there was a fatal error, a defect in the proof, and that, not as to some collateral and comparatively unimportant matter, but as to the principal fact in controversy. What was needed was not an amendment, but further proof. There was nothing in this record to amend. The further proof was obtainable, it is true, by amendment, but it was by amendment of the records of other cases. And when introduced into this case it was simply testimony upon a controverted question which might be met by counter testimony. Our oi’der practically shut off the defendants from such counter testimony, if any they have. This ought not to be done. Satisfied that we erred in making the order which we did, it is our duty to correct the error. The judgment heretofore entered in this court will be set aside, and the order will be entered that the judgment of the district court be reversed with costs, and the case remanded for a new trial.
Other questions are made by counsel in their motion for a rehearing. We have examined them all: we see nothing in the syllabus that was filed, which we think ought to be changed. The argument of counsel has caused us to doubt whether we were well advised in expressing in the opinion, as we did, a dissent from the case of Sharp v. Baird, 43 Cal. 577; and therefore we desire to withdraw such expression of dissent. We shall not attempt now definitely to decide the question, inasmuch as counsel for defendants in error failed to make any argument thereon, or present any further author ities. We simply leave the matter open for farther consideration, if occasion shall require. As to all other matters in the opinion, we see nothing that demands any correction. We are satisfied with the conclusion reached upon the facts and law, except as above indicated, and think that if upon the new trial the returns on the writs of attachment are such as to vest jurisdiction, and no new facts appear, the judgment should be for the plaintiffs. As to amendments,, see the case of Rapp v. Kyle, 26 Kas. 89.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant in error obtained judgment before a justice of the peace against plaintiff in error, upon a bill of particulars alleging default in a breach of a contract to convey certain goods. Two errors are alleged: first, that the record shows no service; and second, that judgment was rendered upon default without any proof of value or damages. Both points we think are well taken. The return on the summons shows that it was served by delivering a copy thereof “ to D. W. March, agent of said U. P. R. R. Co., Manhattan, Kansas.” Where this was served, or what kind of an agent of said defendant said D. W. March was, is not shown. Such service is insufficient. It does not show that said March was president or chairman of the board of directors, or other chief officer, cashier, treasurer, secretary, clerk, or managing agent, and is therefore not good either under § 68, ch. 80, Comp. Laws 1879, or § 13, ch. 81, Comp. Laws 1879. Neither does it show service upon any person named as the service-agent of a railroad corporation under §§ 68a, b and c, ch. 80, Comp. Laws 1879, or upon any person authorized to receive service in case of a failure by a corporation to name such service-agent, or at a place designated in such sections. For aught that appears, said March may have been an agent to purchase coal, or to transact any temporary business on behalf of the company, with no office or residence in the county. The sections above referred to provide ample and easy means for service upon a railroad corporation; and before it can be adjudged in default, and subjected to a judgment upon default, the record must affirmatively show that, in some of the ways named in the statute, service has been made upon it. None such appears here, and therefore judgment was improperly rendered against it.
Again, the record shows that upon the default judgment was rendered against the corporation without any testimony. Obviously this was improper. Allegations of value or amount of damages are not admitted by failure to controvert them. Even upon default they must be proved. (Comp. Laws 1879, ch. 80, § 128.) No evidence was introduced of value or damage; hence judgment was improperly, rendered upon the supposed default. For these reasons there was error in the judgment as it comes to this court, and the case must be remanded to the district court with instructions to set aside the judgment of the justice of the peace, and retain the case for further proceedings.
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced on the 25th of November, 1876, by the commissioners of Rice county, in the district court of that county, against the defendant, Black-man E. Lawrence, county treasurer, and the sureties upon his official bond. The petition set forth, among other things, that the defendant, as county treasurer of Rice county, collected $20,000, which he neglected and refused to render a just and true account of, and which he neglected and refused to pay over, although duly demanded of him by the proper authorities. Issue was joined upon the petition by all the parties, the defendants filing an answer containing a general denial. In June, 1877, by agreement, a change of venue was had in the case to Reno county; trial was -had to the court and a jury, but the jury failed to agree. On February 5th, 1878, Lawrence being present in person and by his attorneys, it was ordered by the court that the issues in the action be referred to a referee; in compliance with this order and the appointment of the court, one A. R. Scheble qualified and proceeded to take and hear the evidence in the case; his report as referee was confirmed on the 15th day of April, 1878, and judgment rendered for $14,293.17 against Lawrence only; on the 5th day of June following, execution was issued upon the judgment, and on August 3 thereafter, certain personal property and real estate belonging to the defendant were sold upon the execution; on April 8, 1879, the sale oí the real estate was confirmed. On June 20, 1876, and while the civil action was pending against him, but before the issues in that case had been referred to a referee, Lawrence was informed against in the district court of Rice county, upon the criminal charge of having embezzled large sums of money while acting as treasurer, of'that county; on August 21,1877, the case was transferred for trial to Reno county, on a change of venue; on February 5, 1878, (being the same day of the reference of the civil action,) he was sentenced for embezzlement to the state penitentiary for the term of three years; he was confined in the penitentiary under this sentence'1 until the month of June, 1880, when he was released upon a pardon from the governor. On February 4, 1882, he filed his. motion to set aside the judgment rendered in the civil action against him on the 15th day of April, 1878, as being void, because while the action was pending against him, he had been convicted of a penitentiary offense, had been imprisoned under his sentence when the judgment was obtained, and no trustee was appointed to manage his estate or defend the action. The facts in the case were agreed to in writing by the parties, and thereon by stipulation the validity of the judgment was tried upon the motion. The motion was sustained, and the judgment set aside as being void. This ruling is complained of, and the question arises whether, under the statute, the conviction and sentence to the state penitentiary of a party defendant, pending the action against him and prior to the hearing or trial thereof, abate the action.
Sec. 338, ch. 82, Comp. Laws 1879, reads:
“ Whenever any person shall be imprisoned in the penitentiary for a term less than his natural life, a trustee, to take charge of and' manage his estate, may be appointed by the probate court of the county in which said convict last resided; or, if he have no known place of abode, then by the eoprt of the county in which the conviction was had, on the application of any of his relatives, or any relative of Lis wife, or any creditor.”
Sec. 343 of said chapter 82, is:
“Such trustee may sue for and recover, in his own name, any of the estate, property or effects belonging to, and all debts and sums of money due or to become due to such imprisoned convict, and may prosecute and defend all actions commenced by or against such convict.”
Under these and the other sections of the article relating to the custody and management of the estates of convicts, we think that the service of a summons upon a defendant, while imprisoned in the penitentiary for a term of years — excepting in a single instance hereafter noticed — must be treated as void, and that the conviction, sentence and imprisonment of the defendant in the state penitentiary, pending the action against him prior to the hearing or trial thereof, must abate the action;' at least, a judgment rendered in such a case may be treated as a nullity and set aside by the court rendering it, upon proper proceedings had. (Comp. Laws 1879, art. 17, 770-773.) Of course, if a trustee is "appointed under the statute, he may contest an action already commenced against the convict, and the judgment thus rendered would be valid in all respects. The provisions of said article 17 prescribe the remedy to be pursued by the court, when the civil rights of the debtor are suspended by imprisonment in the ■ penitentiary under sentence for life, or for a term of years less than life, and these provisions, in the nature of things, are and ought to be exclusive, not merely cumulative. In extricable confusion would follow, if one creditor proceeded personally against the convict after he is imprisoned, and another against a trustee, appointed upon his application. Not only would the proceedings to collect the judgments be liable to conflict, but, moreover, the object of the statute would be nullified. After a debtor is imprisoned under the law, he is in no condition to appear to .defend a civil action pending against him; he is in no condition to consult or advise with witnesses or counsel concerning the ■defense of the action; nor is he in any condition to employ counsel, or continue the services of counsel previously engaged. The conviction, sentence and imprisonment of the defendant suspended his civil rights, and also suspended his creditors’ rights to bring actions against him. After his imprisonment, a trustee might have been appointed, upon the application of plaintiff or any ’ other cre'ditor, to take charge of and manage his estate; but no valid judgment could be rendered after his imprisonment, without the appointment of a trustee.
We are referred by counsel to the case of Davis v. Duffey. 8 Bosw. 617, as an authority sustaining the doctrine that process for the commencement of an action against a convict may be served upon him in prison, and that conviction and sentence of a convict to prison do not abate an action pending against him. That decision comes from an inferior court, and is made upon the provisions of a statute of New York, which is not before us and which we have been unable to examine; but the reading of that decision shows that it is in conflict with the opinion of the trial judge, Mr. Justice Hoffman, and also in conflict with Davis v. Érhardt, decided at a prior general term held by Justices Duer, Campbell, and Slosson.
Further, it was decided in O’Brien v. Hagan, 1 Duer, 664, that when the plaintiff or defendant in a civil actjon is sentenced to imprisonment in the state prison, although only for a term of years, the suit is abated.
Again, our attention is’ called to § 639 of the tcivil pode, empowering a district court to grant a divorce where either of the parties has been convicted of a felony and imprisoned in the penitentiary therefor subsequent to the marriage. Upon this, counsel contend that the statute recognizes that process for the commencement of an action against a convict may be served after imprisonment. Granted; but this is an exception specially provided for by the statute, and therefore does not militate against the construction given by us to the statute regarding the estates of convicts. In an action for divorce, for such a cause the .conviction and imprisonment are the material facts to be proved, and there are manifest and manifold reasons, which will naturally occur to any one upon consideration, why the service in a divorce proceeding founded upon the conviction and imprisonment of the defendant ought to be excepted from the general rule forbidding the service of process upon a defendant in prison.
Counsel further insist, that as a jurisdiction was rightfully obtained in the first instance over the defendant, that the judgment rendered was good, notwithstanding his conviction, sentence and imprisonment, and then assert the law to be that if jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequent to his death is not void, thereby intending to make the application that as the defendant was properly served with the process in the first instance, the judgment was not a nullity. If counsel intend to assert that the judgment obtained in an action which is commenced against a party in his lifetime is valid and binding, notwithstanding the death of the party before the hearing or trial,, we do not assent. “ 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 pn 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 the 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.” (Green v. McMurtry, 20 Kas. 189.) Even the authorities cited by counsel do not sustain his position so far as applied to the facts of this ease. In Collins v. Mitchell, 5 Fla. 364, it was said:
“The death of a party before the judgment rendered does not make the judgment void, but it is error óf fact for which the same may be recalled or revoked by writ of error r ethrnable in the same court where the record remains, called a writ of error coram vobis, or quae coram vobis resident, for error in fact is not error of the judges, and reversing it is not reversing their own judgment.”
In Loring v. Folger, 7 Gray, 505, the question was whether the judgment was to be treated as wholly void or merely voidable upon a writ of error, and it was held that the judgment was a nullity, and might be avoided by the administrator without a writ of error. In Coleman v. McAnnulty, 16 Mo. 173, it was decided that plaintiff’s death did not render the judgment void, but only voidable. In Yaple v. Titus, 41 Pa. St. 195, the judgment was rendered against a person after his death, and it was held that it was reversible if the fact and time of death appear in the record, and by writ coram vobis if the fact had to be shown aliunde. To the same effect are most of the cases .cited by counsel. On the other hand, many authorities hold that the judgment rendered against a dead person is absolutely void. Thus in Carter v. Carriger, 3 Yerg. 411, it is said: “That no proposition of law is more clear than this: that a judgment Tendered against a dead man is an absolute nullity. . The object of all law is the living man — not the dead body.” In Elwald v. Corbitt, 32 Cal. 493, it was held, that owing to the death of the defendant, the judgment was null and void. See Norton v. Jamison, 23 La. 102; McCulloch v. Norwood, 58 N. Y. 562; Sturgis v. Vanderbilt, 73 N Y. 384.
In the case at bar it is unnecessary for us to decide whether the judgment rendered against the defendant was void, or merely voidable. To all intents and purposes, by the written stipulation of the parties, the proceedings had before the district court were in the nature of a writ of coram vobis, and under the .decisions cited, the latter court properly recalled or revoked the judgment rendered while the defendant was in the penitentiary, even if the judgment were voidable only.
Theorderand judgmentof the district court will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The defendants were prosecuted in the district court of Johnson county, on a charge of obstructing a highway in said county. In June, 1877, the defendants were convicted on this charge, and on appeal to this court such conviction was reversed, and the case remanded for a new trial. (19 Kas. 504.) At the second trial, in June, 1878, the defendants \vere again convicted, and from such conviction a second time appeal to this court.
The first question is as to the jurisdiction of the district court. The question was raised by plea in abatement, filed by leave of the court. Upon this question the facts are these: The quarter-section on which the offense is said to have been committed is within the reservation secured to the Shawnee Indians by virtue of the treaty of Augusts, 1831, and also a part of the 200,000 acres of said reservation retroceded to the Shawnees by the treaty of November, 1854. It was, under said treaty of 1854, patented in severalty to a member of said tribe, and thereafter conveyed by said patentee by approved deed, long before the time of the alleged offense. The contention is, that this quarter-section never became a part of the territory of Kansas; and this by virtue of the following proviso to the first section of the act of admission :
“That nothing contained in the said constitution respecting the boundary of said state shall be construed to impair the rights of person or property, now pertaining to the Indians of said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with such Indian tribe, is not, without the consent of such tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the state of Kansas, until said tribe shall signify their assent to the president of. the United States to be included within said state, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never passed.”
The tenth article of the treaty of 1831 provided that the reservation should never be included within the bounds of any state or territory, nor subject to the laws thereof. And if this treaty had remained unchanged and with all its stipulations, and the title to this land had never passed from the Indians, doubtless this contention of defendant would have to be sustained. But the treaty of 1854 expressly ceded this entire reservation back to the government, reserving therefrom 200,000 acres for homes for the Shawnee people. This treaty also provided for an allotment in severalty of such portion of this land as individual Shawnees might select, with a right to patents, and also thereafter to dispose of such lands by deeds approved by the secretary of the interior. It further stipulated for the payment of a large sum of' money to said tribe in consideration of such cession and in satisfaction of all claims of said tribe, “and it release of all demands and stipulations arising under former treaties.” In the case of The Kansas Indians, 5 Wall. 737, the supreme court of the United States, while deciding that lands held by the Shawnee Indians in severalty under the treaty of 1854 were not subject to taxation, failed to hold that all the stipulations of the treaty of 1831 were carried into and became a part of the treaty of 1854. The opinion of the supreme court in that case was adverse to the opinion of this court, (3 Kas. 299,) and so far as it goes concludes us. . But the present question was not involved in that case. That court did not decide that these lands were not within the territorial limits of the state of Kansas, but simply that while owned by the Indians they were not taxable. But in the case at bar the lands are no longer1 Indian lands.. Not only were they set apart in severalty to an Indian and patented, but by such Indian they had been properly and legally conveyed. They are not a part of any reservation; they do not belong to and are not in the possession of any Indian. The reasoning in the opinion in the ease of Miami Co. v. Brackenridge, 12 Kas. 114, seems to be applicable. We think the lands were not excluded by said proviso'from the territorial limits of the state, and there being no longer any Indian ownership or possession, the state has full and complete jurisdiction over them. The plea in abatement was properly overruled.
The other errors complained of are in reference to the instructions. It is insisted that the court erred in giving the fourth and eighteenth instructions asked by the state, and in refusing the 21st asked by the defendants. The fourth instruction asked by the state was in respect to a fifteen-years user of the road as a highway. The eighteenth was as follows:
“If the jury find from the evidence that the road com monly called the Santa Fé road was declared by the legislature of the territory of Kansas to be a territorial road, and that it was continuously used and traveled by the public until and after the year 1864, and never was vacated by law, then I charge you that the said road became a state road by §14 of ch. 110 of'the laws of Kansas for the year 1864.”
The twenty-first asked by defendant was in reference to the validity of what is called the “Stuck survey.” Now we remark that the record does not affirmatively show the whole of the charge given by the court to the jury. It contains a certain number of instructions asked by the state, as well as certain instructions asked by the defendants, and gives the ruling of the court upon each of these instructions. It contains no general charge of the court, and does not show that one was not given. Neither does it affirmatively show that other instructions were not asked by both the state and the defendants. All that we have before us is the fact that certain instructions were asked by both the state and the defendants, and that the court gave or refused these instructions. Now in reference to such a record, this court has repeatedly ruled: First, as to instructions refused, that they may have béen refused because already given in the general charge, and a refusal to repeat works no error. (Wilson v. Fuller, 9 Kas. 176; Morgan v. Chapple, 10 Kas. 217; DaLee v. Blackburn, 11 Kas. 190; Ferguson v. Graves, 12 Kas. 39; Railroad Co. v. Brown, 14 Kas. 469.)
Second. In reference to instructions given, that unless the instruction is so full and complete, that by other instructions, modifications and qualifications, the whole law applicable to the case could not have been correctly presented to the jury without a contradiction of that given, no allegation of error will be sustained. See 9 and 10 Kansas, supra. It has also been decided that where an error has been committed, it will not be sufficient to justify a reversal of the judgment unless it be one working injury to the substantial rights of the party complaining. (Railroad Co. v. Pointer, 9 Kas. 620; Budd v. Kramer, 14 Kas. 101.) So that whether these instructions given were correct, or not, if upon the undisputed facts of the case, the question affected by -those instructions must have been decided as it was, no error will lie. Now, that the defendants closed up a road is an undisputed fact. True, it was not formally conceded, but the uncontradicted testimony establishes it beyond question. The real and only question litigated was, whether this road when it was obstructed by defendants was a legal highway. It appears from the testimony that ever since 1832 there had been a road running from Westport southwesterly through the territory of Kansas in the direction of Santa Fé, New Mexico, popularly known as “The Santa Fé trail,” or “Santa Fé road.” The general course and direction of this road were unchanged during all these years, and yet as the territory was open and unfenced, the traveled track moved backward and forward, varying in location sometimes as much as three miles. ' The first territorial legislature passed an act declaring this-Santa Fé road a territorial road. (Private Laws 1855, ch. 118.) The act described the road as the Santa Fé road, and located it further, by certain points named along its line. It also provided that it should be the duty of the county courts-of the different counties through which it passed to keep said,road in repair at not less than 100 feet in width, and that it should be regulated and kept in repair as other territorial roads were kept. In 1864 the legislature of the state (Laws 1864, ch. 110, §14) enacted that roads theretofore laid out by authority of law, and known as territorial roads, and which had "not been legally vacated, should be considered state roads, and should be kept open and in repair according to the provisions of the general road law. It was on the strength of this legislation that the trial court gave the instruction number 18. In 1865, (Laws 1865, eh. 65, §1, ¶ 37',) the legislature directed the establishment of a state road from Olathe, northeasterly, connecting with the Lawrence and Westport road. According to the testimony of one of the commissioners named in this act, such commissioners, with J. C. Stuck as county surveyor, in the summer of that year laid out and surveyed such road, made out a report of their proceedings, and filed the same with the county clerk of Johnson county. Such report was, however, not to be found in his office, though there was in it a map of such survey made by said County Surveyor Stuck. The road laid out by this survey crossed the quarter-section in question a few rods distant from the traveled track of the old Santa Fé road.. The obstruction was placed on the line of the Stuck survey, and not on the line of the old Santa Fé road. Now, that a report of this Stuck survey was duly made and filed, is shown, not only by the oral testimony of the commissioner, but also by the following entries on the records of the county board of Johnson county, of date respectively January 4, 1866, and January 6, 1871:
“Report of the Olathe and Westport road passed third reading, and there being no objections thereto, and no damages being claimed by the property-holders on the route, it is ordered that the within report be adopted, and the overseer of highways along said route be ordered to open and keep the same in repair, and the plat and report of said road be adopted and recognized, and the fees therein be paid.
“On motion of Addison Bowen, it is ordered, that the road 'known as the Olathe and Westport road be reopened from' Olathe to Sherman post office, in accordance with the survey of June, 1865, which said survey, with the report of the commissioners, was adopted at the January term, 1866, by the board of county commissioners for Johnson county, Kansas, and on said day said road was established; and it is further ordered, that the overseers along said road immediately reopen and' keep open said road in their respective districts; and it is further ordered, that the county surveyor go forthwith along said line of road, and designate by survey to said overseers the location of said road, according to the survey of June, 1865.” ■
It is true that this map prepared by Stuck bears no file-marks, yet it appears from the testimony of the county clerk that it has been for a series of years among the papers in his office. There is also the testimony of a surveyor, that in 1866 he, by authority of the county commissioners of Johnson county, made a resurvey of this road; that he obtained this map from the county clerk at the time he made the survey, and that he had seen it frequently in the county clerk’s office. There was also testimony that this road, as shown by the Stuck survey, was from time to time worked by the road overseers, and was generally traveled by the public. Now we remark that whether the acts of the legislature establishing the Santa Fé road as a highway are valid, or not, is entirely immaterial. It is perfectly clear from the testimony that the traveled track of the Santa Fé road was several rods distant from the road established by the Stuck survey. It is also clear that the obstructions were placed upon the line of the Stuck survey, and if the testimony showed a legal highway established by such survey, that is enough. We think the testimony was amply sufficient. That a road was laid out and surveyed, under the provisions'of the act of 1865, by the commissioners named therein and in conjunction with the county surveyor, is positively testified to by one of the commissioners who participated in the survey. . That a report of such survey was duly made and filed by the county commissioners, appears from the same testimony, and is shown also by the records of the county commissioners based thereon. The exact line of that survey is indicated by the map prepared by the surveyor and deposited with the county clerk. This map, though bearing no file-marks, was proved to be a , record of the county clerk’s office. It had been made the basis of official surveys by subsequent surveyors: the line as indicated by such map was accepted by the public as correct: the road was worked and .traveled. With all these facts, although the report as made and originally filed has been lost or destroyed sometime during the twelve years intervening between the survey and the obstructions complained of, we think it clear that a legal highway existed across^ this quarter-section, and where the obstructions were put by the defendants. We think, there- . fore, irrespective of any question as to the validity of the acts declaring the Santa Fé road a public highway, the judgment of the district court was right. We do not hold that the instructions of the district court, in reference to this Santa Fé road, were or were not correct, but simply that they were not necessary for a determination of this case. Nor do we think that even if incorrect, they were in view of the abundant testimony as to the Stuck survey, so material as to justify us in disturbing the judgment; and it will therefore be affirmed.
All the Justices concurring. | [
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Per Curiam:
With the declarations of the law as stated in the syllabus filed with the original opinion filed in this case, we are fully satisfied. A reexamination of the record, how ever, convinces us that the trial court committed material error in refusing to permit the witness Challiss to testify as to the admissions made by Mr. Andrews in his lifetime, of the value of the lots in controversy. The alley back of his lots was appropriated by the railroad company about August 1, 1877. There is evidence tending to show that there were brick houses upon the lots at the time of the appropriation of the alley. There is, however, no positive evidence in the record as to the date the houses were built. Mr. Challiss was asked:
“Q,. State if you had a conversation with Mr. Andrews in his lifetime in regard to this property. A. Yes, sir.
“Q. About when? A. I could not state; I guess it was before 1880; I won’t say positively. It was just about the time he commenced building the brick house which is on the property.
“Q. Did you say 1880? A. I would not be positive.
“Q. You locate it with reference to the time he commenced building the brick house? A. Yes, sir.
“Q. Now state what that conversation was, if at all, to the market value of the property.”
Objected to by plaintiff; objection sustained; defendant excepting.
By Mr. Waggener :
“We now offer to prove by the witness the market value of that property as placed on it by R. S. Andrews in his lifetime, about the time of the construction of the brick buildiug, and shortly previous to the laying down of the track in the alley.”
Objected to by plaintiff; objection sustained; defendant excepting.
By Mr. Waggener:
“We offer to prove by this witness that shortly before the commencement of this action, aud after the track was laid down in the alley, that he had a conversation with R. S. Andrews with reference to this property, and that Andrews then placed a valuation on the same.”
Objected to by plaintiff as incompetent, and not being proper practice.
By the Court:
“I think it is proper practice to make the offer in the way. but I think the evidence is incompetent, and I will sustain the objection for that reason.”
Defendant duly excepting.
“Q. State if you had a conversation with Andrews about this property. A. Yes, sir; after I came back from New York to remain here. I haven’t been away from here since 1878.
“ Q,. State what that conversation was, and what E. S. Andrews stated to you about this property.”
Objected to by plaintiff; sustained; defendant duly excepting.
“Q. Were you in this city in 1876 ? A. Yes, sir; I was away for a year and a half, 1875 and 1876; in 1876 up to September, 1876.”
This action was originally commenced September 13,1878. It appears from the foregoing that the statements sought to be introduced were not only competent, but were material and important; therefore the judgment of the district court should be reversed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of ejectment, brought by S. Pearson in the district court of Allen county, to recover from John Ford the east half of the southwest quarter of section thirty-four, in township twenty-five, range twenty, in Allen county, Kansas; and also for damages for its unlawful detention. In the second trial Pearson obtained a judgment for the recovery of the land, together with $200 as damages for the wrongful detention of the same. John Ford complains here that he was not given a second trial, such as is authorized by the statute in actions of this nature upon a mere demand. He asserts that after the first trial was had, and pending a second trial, Pearson applied for leave to amend his petition by striking out of the description “township thirty-five,” and inserting in lieu thereof “township twenty-five,” and that this application was granted over the objection of the defendant. He claims that the tract which was the subject of controversy in the second trial was a different one, and is situated sixty miles distant from the one involved in the original trial; and hence the refusal- of his demand for a third, or what he would term a second trial, was error. The record does not justify his claim. The record discloses that the petition originally filed placed the land in controversy in township twenty-five, and not in township thirty-five. It is shown that after the first trial was had, the plaintiff asked and obtained leave to amend his petition by correcting the description; but the record does not state the correction that was made. No amended petition is embraced in the record, and the court in giving judgment on the second trial, adjudges that Pearson shall “have and recover of the defendant the real property mentioned in the petition,” and the petition originally filed, as we have seen, described the land as a part of township twenty-five. The testimony on the first trial is not here, nor is there any statement in the record from which we can say that the first trial was concerning a tract of land in township thirty-five. We cannot presume error. Before the plaintiff in error is entitled to a reversal, he must affirmatively show that material error was committed. (Bartlett v. Feeney, 11 Kas. 593; Comm’rs of Brown Co. v. Roberts, 22 id. 762; Humphrey v. Collins, 23 id. 549.) This he has not done, and from the pleadings and course of trial we think that the real controversy in both trials was concerning the same tract of land. The nature of the action was such that it must be brought in the county where the land is situated. Township twenty-five is situated in Allen county, where the action was brought, while township thirty-five is sixty miles further south, far beyond the limits of Allen county, and over which the court trying the case had no jurisdiction. In his answer the plaintiff in error admits that he is in possession of the land in controversy, and he did not amend his answer after the petition was amended. We think the plaintiff in error could not have been prejudiced by the amendment made; and there being no error shown, the judgment of the district court will be affirmed.
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Opinion by
Simpson, C.:
On the 1st day of August, 1883, William H. Estes, aged twenty years, at his solicitation was employed by S. W. Parr, foreman of the round-house of the shops of the Union Pacific Railway Company at Armstrong, Wyandotte county, to work for the company. Before this time, Estes had worked for a short time for the company in the boiler shops. Before his employment by the plaintiff in error he had worked for about three months in the yards of the Chicago & Alton Railroad Company as a helper to a hostler. He was assigned to the night watch, commencing at six o’clock each evening, and his duties were to wipe engines, throw switches, and draw the fires from the ash-pans. The first three nights of his employment he was engaged in the house, wiping engines, and on the evening of the fourth he was ordered to the yards as a helper to a hostler. The duty of the hostler is to take engines from the engineers, and run them to the round-house, or from one place to another in the yards, wherever they may be wanted by the engineer in charge. It was the duty of Estes, as a helper, to open and shut switches for the hostler. Estes worked as a helper during the succeeding nights, until a few minutes after six o’clock on the evening of the 11th day of August, when, in his attempt to step on an engine then in motion, his foot slipped off, rested on the rail, and a wheel of the engine cut it off' in front of the ankle-joint, leaving the heel intact. The jury, in response to special interrogatories submitted by both parties, found this state of facts: First, as to the engine: It was provided with a step at the rear of the cab, and another at the front end of the side of the tender, and hand-holds on the rear corner of the cab and front corner of the tender, and these steps and hand-holds were for the sole use of the employés of the railroad company, who had duties to perform on the engine, in getting in and out of the cab of the engine, and they were about two feet apart. It was at the step in the rear right-hand side (the engineer’s side) of the cab, or engine, that the injury occurred. This step is called in the evidence, findings, and instructions, the “side step.” It was an adjustable scoop-shovel step, with a setscrew, and was about twenty-eight inches above the rail, and was adjusted to suit the convenience of the regular engineer in getting on or off the engine. On the front end of the engine, and on the rear end of the tender, there were foot-boards from eight to twelve inches wide, extending across the entire length of the engine and tender, and being from six to eight inches above the rails. There were hand-rails on the front end of the engine and the rear end of the tender, and these foot-boards and haud-rails were for the use of employés in riding. The foot-board at the rear end of the tender was the safest place for Estes to get upon the engine when in motion. The foot-boards and hand-rails on the front end of the engine and the rear end of the tender were in such a position that a person could get upon said foot-boards with out getting between the rails. The rod supporting the side steps was bent, and the danger increased thereby.
Second, as to the injury: Estes threw a switch in front of the engine, and signaled the hostler to move ahead over the switch; as the engine came forward he was standing near the switch, and waited until the step of the engine between the cab and the tender was opposite to him, when he stepped upon it, his foot slipped and the injury occurred. As the engine came opposite to him the hostler caused steam to be emitted from the cylinder-cocks against and upon Estes, and this interfered with his view of the steps; the cylinder-cocks were about twenty feet from the steps; he could see the steps, but not plainly, on account of the escapement of the steam and the dust blown up thereby.
These are the facts as found by the jury, but there are other statements bearing on both propositions that will be referred to in the opinion.
There are numerous legal questions arising on this state of facts, and they have been presented both to the court below and to this court in many different ways. In fact, all legal methods have been exhausted by the plaintiff in error in the preparation of this case for review here. There was a demurrer to the original petition, that it did not state facts sufficient to constitute a cause of action. At the trial there was a demurrer to the evidence of Estes, on the ground that it did not state facts to entitle him to recover. There was a motion for judgment in favor of the railroad company on the special findings. There was a motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence, and because it was contrary to law. There were exceptions to the rulings of the court on the admission and rejection of evidence. There were numerous exceptions to the giving of certain instructions. With the record in this condition, giving this court an opportunity to review every step in the proceedings, and every incident of the trial, we have carefully considered the evidence, examined the findings, reviewed the instructions, and, in a word, given the whole case a thorough'and conscientious consideration.
The theory upon which the defendant in error tried the case was this: Estes was young, and inexperienced in the discharge of a dangerous duty assigned him; that he was told by the hostler to climb on the engine while in motion; that he attempted to obey orders by getting on at the side step; that the rod supporting the step was bent, and the adjustment of the step was such that it was unsafe, by reason of being pushed back under the tank; and that by reason of this condition of the step the injury was inflicted. The negligence of the railroad company in not providing a safe and proper step at the rear right-hand side of the cab fixes its liability.
The plaintiff in error tried the case on this theory: Estes having solicited employment in the round-house, this was an assertion on his part that he was competent to perform all ordinary round-house duties; that in getting on or off an engine in motion he must choose the safest place; that the side step at the rear end of the cab was a standard step used on engines of that make; that it was for the sole use and convenience of employés who had duties to discharge in the cab of the engine; that Estes as a helper to a hostler had no such duty to perform as to require him to use that step; that he attempted to use it when it was so obscured by escaping steam and blowing dust that it could not be seen ; that it was the duty of Estes to choose the safest manner to discharge a dangerous duty, and that his injury was occasioned by his want of ordinary care.
The trial court charged the jury as follows:
“Fifth: If the plaintiff had no duty to perform on the engine, and the foot-boards of the engine were provided for him to ride upon, and the rear foot-board was a safer place for him to get upon the engine, and safer place to ride than the side steps, then it was his duty to get upon the rear foot-board, and if he chose to get upon and ride upon the side steps of the engine he cannot recover because of any defect in said step.
“Sixth: If the side step of the engine that plaintiff claims was defective was not there for his use, and he had no duty to perform at the time he was injured, that required or made it necessary for him.to use it, he cannot recover in this case even though said step was defective.”
“Eighth: It was not the duty of the plaintiff and he had no right to get upon the engine when in motion at the time he was injured, if for any reason he saw that there was any greater danger than usual in the performance of the duties assigned to him.
“Ninth: The duty of the plaintiff to open and close switches did not require him to get upon the engine in motion if the engine was going too fast to enable him to do so with safety.”
“Eleventh: If the plaintiff had no duty to perform on the cab of the engine when he was injured, and if he was required to get upon it while in motion in order to ride back and forth in the performance of his duties as helper, it was his duty to get upon it in the safest place, and if he voluntarily got upon it or attempted to get upon it in a dangerous place, he cannot recover in this action.”
I. The first question that we shall discuss is, the competency of Estes to do the work assigned to him. Counsel for defendant in error contend that by reason of his youth and inexperience, and the neglect of his superior to instruct him in his particular line of duty, his case is brought within the rule that “An employer who places a young and inexperienced person at work in an exposed, dangerous situation, is bound to give him due caution, and if he fails to do so, the mere fact that the servant had means by use of eyesight to see peril, will not alone charge the latter with contributive negligence.” This rule has no application to the facts in this case, for several reasons. In the first place, it is one of the implied conditions of every contract for service that the servant is competent to discharge the duties for which he is employed, and that he possesses the requisite skill. (Wood Mas. & S. [2d ed.] 166; 2 Parsons on Contracts, §54; Bishop on Contracts, enlarged edition, §246, and citation in foot-note 4; 20 Pa. St. 130.) It is his own fault if he undertakes without sufficient skill or applies less than the occasion requires. (2 Kent’s Com., 458; Story on Bailment, 281; Jones on Bailments, 91.) Ordinarily, when an adult person solicits employment from another in a particular line of work, the act of solicitation is an assertion on the part of the person seeking employment that he is competent to discharge all its ordinary duties.
It must be held in this case, as a matter of law, that when Estes solicited employment in the round-house, he asserted his competency to discharge all the ordinary duties of workmen therein engaged, and that this was one of the implied conditions of his employment.
The jury, in answer to the fifteenth special interrogatory submitted by the defendant in error, say that Estes was inexperienced in the business he was required to perform.
The defendant in error, in his cross-examination, stated that before his employment in the round-house he had worked a “little” for the railway company in the boiler shops. He also stated that he had worked as a helper to a hostler in the Chicago & Alton railroad shops for about three months.
The fair implication from the evidence is, that while he was working in the boiler shops he made an application to Parr, foreman of the round-house, for a situation, and that this was prompted by his former experience in the Chicago & Alton yards. The duty required of him as defined by the evidence, while dangerous, was not difficult or complex. A few days’ experience would be sufficient for an ordinarily intelligent performance of all its requirements. He had been discharging that duty for seven days without accident before the injury complained of occurred, in the immediate presence of his superiors, and it is a fair inference from this fact alone that his experience or aptitude was such as to render his services satisfactory. In addition to this, Estes stated on his cross-examination “ that he wanted to get on the side step of the engine; that he had always adopted the plan of riding at the side,” and said this in immediate connection with a statement that as the engine approached him he thought it unsafe to attempt to get upon the front foot-board. Now he had come to the conclusion, after thought and experience, that he would always get on the side of the engine. He had deliberately adopted a plan of riding on the side, and hence on this occasion, notwith standing the fact that he considered it unsafe to attempt to get on the front foot-board, he followed his previous line of thought, and tried to get on the side. This shows most conclusively that out of his experience had grown a determination on his part as to how he would perform a dangerous duty, that of getting on the engine while it was in motion. This fact and all the other facts recited above, repel the assumption of counsel for defendant in error that he comes within the rule first quoted. As a matter of fact apparent from the evidence, it must be held that he was competent to perform the work required of him by reason of his experience in that line, and hence it follows that the trial court erred in the second instruction given the jury where the following language is used: “That in arriving at a determination as to whether or not Estes exercised reasonable and ordinary care to avoid the injury, they might take into consideration his age, experience, or want of experience;” while in the eighteenth instruction they are told “ that when Estes took service with the railway company there was an implied contract that he was competent to discharge the duties for which he was employed.” The first is contradictory and misleading, and the second, under all the facts, is the law of the case.
II. The employment sought and accepted by Estes being a dangerous one, it was his duty to at least exercise reasonable and ordinary care to avoid injury. If the employment is a hazardous service, he is required to use very great precautions to avoid danger. If, in the discharge of a dangerous duty, an employé voluntarily places himself in a dangerous position, unnecessarily, when there are other places that are safe, or safer, that he could have chosen, and is injured, he cannot recover. These propositions seem to be firmly established as the law governing such cases; and it must be held in this case, both on the evidence and the findings of the jury, that the employment sought by Estes was dangerous; that in its discharge he was required to exercise reasonable and ordinary care to avoid injury; that if, in the discharge of the duty, he voluntarily placed himself in a dangerous position, unnecessarily, when there were other places that he could have chosen that were safe, or safer than the one chosen, and injury occurred by reason of his choice, he cannot recover.
The juiy found in answer to special interrogatories that at the time of the injury there were on the front end of the engine, and the rear end of the tender, foot-boards from eight to twelve inches wide, extending across the entire ends of the engine and tender, and from six to eight inches above the rail; that there were hand-rails on the front end of the engine, and at the rear end of the tender; that these hand-rails and foot-rails were for the use of the employés in riding; that the foot-board at the rear end of the tender was the safest place for Estes to get upon the engine when in motion; that the foot-boards and hand-rails on the front end of the engine and rear end of the tender were in such a position that a person could get upon said foot-boards without getting between the rails. Estes stated, when on the witness stand, that he had adopted the plan of getting on the side, and riding on the side; that he thought it was the safest place. This declaration shows that he had deliberated upon the question, and determined in his own mind that the side step was the safest. The jury found that at the time the injury occurred the rear step was the safest; and the great weight of the testimony is in that direction. So that it was a deliberate choice that he made on that occasion, of the manner of getting on the moving engine, and in this choice he was evidently mistaken.
Another consideration must not be lost sight of in this connection. Estes stated that he did not attempt to get on the foot-board in front of the engine, because he did not consider it safe, as it was coming too fast. It was moving at the rate of about three miles per hour. This shows that he was considering the safest way to get on the engine, and that he had determined on the side step. This brings him within the rule of having voluntarily placed himself unnecessarily in a place of danger, when there was another place that was safer than the one chosen. But there is still another and better view to be taken of this transaction. ■ If. it be a fact that as the engine was moving toward him it was unsafe to attempt to get on in front, the danger was greatly increased by the escapement of steam from the cylinder-cocks against and upon him that created a dust, and the steam and dust so obscured the sight of ■the step that it was not plainly to be seen, and this rendered an attempt to get on a side step extremely hazardous. The jury found that the distance from the cylinder-cocks to the step where the injury occurred was about twenty feet; that as the engine was passing Estes, the hostler caused steam to be emitted from the cylinder-cocks against and upon the defendant in error, and that the steam and the dust blown up thereby somewhat obscured the step. It must have somewhat obscured the vision of Estes. Under these circumstances it was not ordinary or reasonable care on the part of Estes to attempt to get upon the side step of the engine.
III. The condition of the steps attempted to be used by Estes at the time the injury occurred, is the subject of much controversy both by witnesses and counsel. The plaintiff in error contends that the step at the rear of the cab on the right-hand side of the engine was a flat cast-iron plate, seven inches in diameter, with an iron rod let down from the cab running through a hole in the back of the step and fastened to the rod by an iron set-screw, so that it could be moved up and down and from side to side on the rod, and adjusted to any position desired by the engineer. To support its contention, the plaintiff in error produced a step of this description on the trial, and S. W. Parr, the round-house foreman who had been in charge for six years, identified it as being the step on the engine ; that he took it off from the right-hand side of the cab; that it had been there ever since the railway company brought the engine into the yards from the Carbondale road in 1879.
McKensie, who was assistant master mechanic at the time the injury occurred, and who examined the step within a few moments after the occurrence, had no recollection as to the kind of step, but that this was a McKay engine, and they all had a round flat step, corrugated on top so as to make it rough, with no rim around it.
Kirkpatrick, a locomotive engineer who had been running this engine for three months, and who was in charge of it the day before and the day after the injury, said that the step on the right-hand side of the cab was a round step. He was shown the step identified by Parr, and said it was shaped like that, and when asked whether it was the step said that he could not swear that it was the same step, but it was shaped like that.
Dorman, who was the regular fireman on the engine, stated that the step at the place indicated was a round step, and on being shown the round step, said, “ I think that is the step, or one just like it.”
Kemp, the hostler, said that the step was a round step; was shown several of different pattern, and was asked to take up one like it. He picked up the round step and said, “This is like it.” He was then asked whether or not this was the identical step, and said: “I think it is; I won’t be positive, but I think that is the same step.” He stated, in answer to a question, that the round step is in all respects like the one that was on the cab.
The defendant in error claimed, and the jury found, that the step on the rear of the right-hand side of the cab of the engine was an adjustable scoop-shovel step, with a set-screw; and he supported this by two witnesses.
Steading, who was a hostler, said he examined the step within an hour after the injury, and that it was a scoop-shovel step with a rim around it. If a person looked at it at all, he could see that it was out of line, whether the engine was in motion or standing still. Dickson, who worked at the roundhouse wiping engines, had seen the step, and being shown a casting, he said it was not like it; fairly described it as a scoop-shovel step.
While it is not very material in the view we take of the duty and obligation of Estes, whether the step was such as claimed by the plaintiff in error, or as found by the jury, it must be conceded that on this particular question the great weight of the evidence was with the plaintiff in error, both on account of the number of witnesses and their opportunities for knowledge.
About the same proposition is observed in the question as to whether the step was bent so as to make it unsafe. It was claimed by the defendant in error that the rod supporting the step was bent, so that the step was thrown under the body of the cab, or tank; and it having been adjusted at an angle, the opening for the foot, the place where was no rim, was so far back under the frame of the cab that it could not be stepped upon. It was asserted, on the other hand, that if the rod was bent at all, it was but very slightly, and insufficient to impair the use, or render it unsafe; that it was adjusted straight from the engine, and not at an angle. The engineer, who daily handled the engine, and his fireman, being the persons who used the step more than anyone else, and for whose convenience it was adjusted, Mr. Parr, who examined it as a matter of duty, to see if it needed repair, and others, testified to its safe condition, thus giving the plaintiff in error the weight of evidence on this proposition.
It is established, we think, beyond question, by the evidence, that the side step — the one at the rear right-hand side of the cab — and the other, at the front end of the side of the tender, were for the use and convenience of those who had duties to perform in the cab of the engine. There were tools on the engine to so adjust them as to suit the length of the step of the engineer in charge. It is equally clear, that at the time Estes was injured he had no duty to perform that required him to use the steps, or either of them. He was allowed, or he might have been required, to ride from place to place in the performance of his sole duty to throw switches, but there is nothing in the nature or demands of such work to require him to attempt to get upon the cab of the engine.
IV. Estes did not use ordinary and reasonable care to avoid injury. He was engaged in the performance of a dangerous duty, with a constant obligation resting upon him to exercise that degree of caution and care which was necessary to prevent injury. He attempted to get upon the engine when was in motion; he had adopted the plan of getting on the side when the rear was the safer place; he had no acquaintance or familiarity with this particular engine; had noticed it but slightly; knew it had a foot-board in front, but did not know whether it had in rear or not. As it approached him he did not consider it safe to attempt to get on in front; as the cylinder-cocks came opposite to him they emitted steam in such quantities as to blow up a dust, and this so obscured the side step that he could not plainly see it. He took hold of the hand-rails on the side of the cab and tender, attempted to place his left foot on the side step at the rear right-hand side of the cab; the foot slipped off, rested on the rail, a wheel of the engine mashed and mangled it so that it was amputated in front of the ankle-joint.
There was a want of ordinary care in attempting to get upon the engine by the cab step when he had no duty to perform that required him to place himself in such a position. There was a want of ordinary care in attempting to get upon the side step, when he had resolved not to attempt to get upon the front foot-board because the engine was moving too fast. There was a want of ordinary care in attempting to get upon the side step when a safer plan could be selected, one where he could have got on without getting between the rails, as he could have done on the rear foot-board. There was a want of ordinary care in attempting to get upon the side step when it was so obscured by the steam and dust occasioned by the emission of steam from the cylinder-cocks of the engine that it could not be plainly seen. There was a want of ordinary care in adopting the plan of getting on the side step when there was a safer place to get upon the engine when in motion. There was a want of ordinary care in attempting to get upon the side step of an engine without any previous knowledge of its condition, or examination of its steps, when it was moving so fast as to create a fear that it was not safe to try the front foot-board. There was a want of ordinary care in attempting to get upon the moving engine at any place when it was moving so fast that he was afraid to get upon the front foot-board, and when the escaping steam and the dust blown up thereby obscured the vision.
V. These conclusions are not only fairly deducible from the evidence, but the strength of the testimony compels us to adopt them; and we have considered them in the several aspects of the case as presented by the demurrer to the evidence of the defendant in error; on the motion of the plaintiff in error, for judgment on the findings of the jury, as well as on the motion of the plaintiff in error for a new trial, on the ground that the verdict of the jury was not sustained by sufficient evidence.
Now, grouping the facts together as found by the jury in answer to the special interrogatories, so as to follow the order of the recitations of the facts stated in the instructions that would prevent a recovery, we have these findings of the jury:
In answer to question 4, submitted by the plaintiff in error, they find that Estes had no duty to perform on the engine, except to ride from place to place where it was necessary to throw switches.
Finding 31: The engine was provided with foot-boards. Finding 25: The foot-board on the rear end of the tender was the safest place for the plaintiff to get upon the engine when in motion, at the time he was injured. The jury were instructed that if these facts were found, that the plaintiff could not recover, and the jury found these identical facts — found every fact necessary under the instruction to bar recovery on the part of the plaintiff. They also found the exact facts that they were told in the sixth instruction would prevent a recovery.
Taking instructions 8, 9 and 11 together, and comparing the findings, and again we see that the jury found the facts that under the instructions would render the railway company not liable to the plaintiff in damages. While it is probably true that these instructions very fairly embodied the law of this branch of the case, it was the bounden duty of the jury to obey them, whether the instructions were proper or not.
In this class of cases the jury must take the law as the court gives it, and a reasonable obedience to the instructions would have resulted in a verdict for the railway company.
There is an assertion in the brief of the counsel for the defendant in error that is so plausible and yet so fallacious that we must notice it. It is said: “ Had he been successful in his attempt to get upon the engine and had reached his place, and then there had been a collision by which he was injured, such collision having occurred through the negligence of the railway company, would he have no remedy ? He certainly would have a remedy ; and if so, why should he not have his remedy if a step which was used in getting into the cab was so defective and out of order that he was thereby injured ? In both instances he is injured by reason of the negligence of the railway company.” We answer, if Estes had been successful in getting upon the engine at the proper place, and had then been injured by the negligence of other employes of the railway company, he would have his remedy against the company. They say: “If a step that was used in getting into the cab was so defective and out of order that he was thereby injured, why should he not have his remedy?” We answer, if the step was for his use and convenience in getting in and out of the cab, and he attempted to use it in the performance of some duty, and it was defective, and the company knew it, or had reasonable opportunities of knowing it, and Estes did, or had not, he could recover. But if he had no duty to perform in the cab that required the use and convenience of the step, he could not recover. In the first inquiry, it would be the negligence of the other employés of the company; in the second, it would be the negligence of Estes in attempting to use a step when he had no duty to perform that required its use. While a railroad company may be liable for injuries to a person whose duty it is to use some defective machinery or appliance, it may not be liable to a person who is injured thereby who had no duty to perform in connection with the defective machinery.
Our conclusion in this case is, that the court below ought to have sustained the motion of the plaintiff in error for judg ment in its favor on the findings of the jury. It is therefore recommended that it be remanded to the district court, with instructions to render judgment for the railway company on the special findings of the jury.
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.:
There are really but two points in controversy between the parties in this case: one is, whether a person who purchases or otherwise obtains cattle that are diseased with Texas, splenic, or Spanish fever, and who drives or causes them to be driven through any county of the state, shall be held liable for all damages that may arise by the communication of disease from the cattle so driven, without regard to whether he knew or should have known that the cattle were diseased, or liable to communicate disease to the domestic cattle of the state. The other point involved is, whether the doctrine of contributory negligence is applicable to an action like the present one. The action was brought under the statute enacted for the protection of cattle against contagious diseases. (Laws of 1881, ch. 161; Laws of 1884, ch. 3.) The act of 1881, in section 1, provides:
“That no person or persons shall drive or cause to be driven into or through any county in this state, any cattle diseased with the disease known as Texas, splenic or Spanish fever. Any person violating any provision of this act shall on conviction be adjudged guilty of a misdemeanor, and shall be fined not less than one hundred and not more than one thousand dollars, and be imprisoned in the county jail not less than thirty days and not more than one year.”
The act then provides how such cattle, or the cattle of any person violating the act, shall be restrained and disposed of. .In the sixth section it is provided that in the trial of persons charged with a violation of the act, proof that the cattle driven are wild, and of undomesticated habits, shall be taken as prima fade evidence that the cattle are diseased with the fever. Section 7 of the act is as follows:
“Any person or persons who shall drive or cause to be driven into or through any county in this state, any of the cattle mentioned in section 1 of this act, in violation of this act, shall be liable to the party injured for all damages that may arise from the communication of disease from the cattle so driven, to be recovered in civil action; and the party so injured shall have a lien upon the cattle so driven.”
The act of 1884 is substantially the same as the act of 1881, so far as the civil liability provided for is concerned. It sets apart a portion of the state as quarantine ground, upon which Texas cattle, or cattle liable to communicate Texas, splenic or Spanish fever, may be permitted to range under the care of keepers; makes it a misdemeanor for any person to allow Texas cattle to go upon any grounds outside of the quarantine grounds, with penalties similar to those imposed by the act of 1881; and it further provides that such person “shall be held liable for all damages that may be done by said cattle, either by communicating disease, or in any other manner; and the person or persons so injured shall have a lien on the cattle so doing the damage.” In construing the acts upon which the alleged liability is founded, we are not aided by testimony of the nature of the disease, and of the peculiarities of the cattle against which this legislation is directed, as the record contains none of the evidence. We are of opinion, however, that the court took the correct view of the statutes in holding that no recovery could be had against the defendant where he acted in good faith, unless he had knowledge, or such facts existed as made him chargeable with knowledge that the cattle were diseased, or were of a kind liable to communicate the disease to the domestic cattle of the state. The statute does not in terms dispense with the necessity of averring and proving the knowledge of the defendant. The theory of the statute is that the liability arises upon the negligence of the party who drives, or causes to be driven the cattle that communicate the fever; and how can negligence be attributed to those who go into a market in the state and purchase such cat-tie, when they have no notice and no facts exist by which they would be chargeable with notice that the cattle had the fever, or were liable to communicate it? The rule of the common law in such cases is, that knowledge is indispensably necessary to a recovery. (Wade on Notice, 2d ed., 271; Chitty’s Pleading, 69; Vrooman v. Lawyer, 13 Johns. 339; Dearth v. Baker, 22 Wis. 73; Lyke v. Van Leuven, 4 Denio, 127.)
In construing statutes, it is well to keep in mind the rules of the common law; and in respect to this it has been well said that—
“Statutes are to be construed in reference to "the principles of the common law; for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides, what has been plainly pronounced.” (Dwarris on Statutes, 185.)
Doubtless the legislature has the authority to dispense with the necessity of alleging and proving knowledge, but before a party who is without fault or without knowledge that his cattle can cause injury, can be held liable, the legislative design to create such liability should be “plainly pronounced.” An example of how slow the courts are to extend this rule is shown by a decision given in Wisconsin. In 1866 the legislature of that state provided that—
“The owner or keeper of any dog or dogs which shall have wounded, maimed, or killed any cattle, horses, sheep, or lambs, or injured any persons, shall be liable to the owner or legal possessor of such cattle, horses, sheep, or lambs, or to the person injured, in all damages so done by said dog or dogs, without proving notice to the owner or keeper of such dogs, or knowledge by him that his dog was mischievous or disposed to kill or worry sheep.”
Notwithstanding the general terms used in that statute in stating that for injuries done by dogs to persons, or to cattle, horses, sheep, or lambs, the owner should be held liable with out notice, the supreme court, in an action brought under the statute for injury done to a person, remarked that it was strongly inclined to the opinion that the necessity of proving a scienter was still necessary in all actions except for killing or worrying sheep. (Kertschacke v. Ludwig, 28 Wis. 430. See also Auchmuty v. Ham, 1 Denio, 495.)
Then again it seems to us that a subsequent statute on this subject shows that it was never intended by the legislature to dispense with proof of knowledge in these cases. The legislation on this subject is for the protection of the domestic cattle of the state, and nearly all of the provisions made are very strongly in the interest of the owners of such cattle. Those who bring in diseased cattle, or cattle liable to communicate the Spanish fever, are made both criminally and civilly liable. To render the law easy of enforcement against such persons, it is provided that in any trial under the act, proof that the cattle are wild and of undomesticated habits is prima facie evidence that they are diseased. Then in 1885, the legislature, to still further relieve the plaintiff from the burdens imposed by the general rules of law, provided that where the cattle which communicated the disease were brought into the state —
“ From south of the thirty-seventh parallel of north latitude, it shall be taken as prima facie evidence that such cattle were capable of communicating and liable to impart Texas, splenic or Spanish fever, within the meaning of the act, and that the owner or owners, or the person in charge of such cattle, had full knoioledge and notice thereof, at the time of the commission of the alleged offense.” (Laws of 1885, ch. 191, § 5.)
By this provision, the legislature recognized that proof of knowledge was and is necessary. It modified the general rule by making the facts stated prima facie proof of something which was deemed essential to a recovery. The plaintiff was thereby relieved to some extent from a burden which the legislature assumes rests upon him. There was no necessity for making this provision if the proof of knowledge was not required. We conclude that the interpretation placed upon the statute by the plaintiff in error is not sound, and that the true rule upon the question was stated by the district court.
"With regard to the question of contributory negligence, we have no doubt that it enters into and may constitute a defense. The action is not for the recovery of a penalty, but to recover compensation for the willful negligence wrought by another. Penalties are prescribed in the criminal features of the statute, and certainly it was not intended that any others should be imposed. There is nothing in the statute indicating that the obligation of the defendant is absolute, or that the plaintiff can recover where the injury is the result of his own wrongdoing. “When the wrong of both parties contributes to the injury, the law declines to apportion the damages, and so leaves the injured party without any compensation.” (K. P. Rly. Co. v. Pointer, 14 Kas. 50.) If the plaintiff, as was alleged in the answer, willfully and negligently opened the gates of the inclosure, and turned her cattle in with those that were diseased, the injury was the direct result of her own negligence. What the facts were as developed on the trial we cannot know; and we can or do decide is, that the rule of contributory negligence is applicable in these actions, and that the instruction thereon was warranted under the pleadings in the case. (K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kas. 501; Curry v. Railway Co., 43 Wis. 665; Railway Co. v. Methven, 21 Ohio St. 586; Keech v. Railroad Co., 17 Md. 32.)
We find no error in the record.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
John W. Eckard and N. Pettinger, partners as Eckard & Pettinger, were in business, and owned a stock of goods and a store building in Westmoreland, Pottawatomie county. On the 4th day of October, 1884, Pettinger sold out his interest in the partnership to Eckard, the other partner, and took notes of $1,225 each, one secured by a chattel mortgage on the stock of goods, and the other by a real-estate mortgage on lot 30 and the east, half of lot 29, in Cochran’s addition to Westmoreland. The store building was on these lots. At the time of this sale of the interest of Pettinger to Eckard the firm was largely indebted, and from the evidence in the case may be said to have been insolvent. The matter in question here is the real-estate mortgage. It was recorded October 4th, and on the same day was assigned by Pettinger to his son, Vernon Pettinger, who had been in the employment of the firm, and who knew all the circumstauces under which it was executed. On the 7th of October he sold and assigned the note and mortgage to Trout & Leach, bankers at Wamego. Vernon Pettinger was indebted at the bank of Trout & Leach, and he was paid by the surrender of his own paper to the amount of $800, and he received in addition $200 in cash. The paper on which Vernon Pettinger was responsible to Trout & Leach was the paper of the partnership; Trout & Leach knew of the partnership; had dealt with it; knew that this mortgage was on the partnership property, Leach having been at Westmoreland some time before, and examined it, and knew that a mortgage was given in some settlement between the parties; and they knew also that the firm of Eckard & Pettinger were “hard up;” that they carried too much on their books; that they had not money to pay their bills; that Trout & Leach had loaned them money. At the time of the execution and the delivery of the mortgage by Eckard to Pettinger, the firm of Eckard & Pettinger was indebted to the plaintiffs in error in the sum of $1,530.23; to Tootle, Hanna & Co., $140.72; to another firm, $165; to another, $1,008.33; to A. J. Gray, $300; to A. Grimes & Co., $1,093; to Roll, Thayer, Williams & Co., $205.78; to Kendall & Emery, $700; for which chattel mortgages were given on the stock of merchandise by Eckard, on the 11th day of October. The plaintiffs in error were also secured by a mortgage on lot 30 and the east half of lot 29, the same being the lots on which the store building was situated. The indebtedness of the firm, as shown by this record, including the judgment of Freyschlog of $243.33, and the amount due Trout & Leach for w'hich Vernon Pettinger was responsible, say $800, amounted to over $6,000, exclusive of interest and the costs of litigation. The value of the lots and the store building, and of the entire partnership property, was from $4,500 to $5,000. The object of this action was to set aside the mortgage made by Eckard to Pettinger, and assigned through the son of Pettinger to Trout & Leach, as fraudulent against the plaintiffs in error, who are creditors of the firm of Eckard & Pettinger, and who have a mortgage on the store property, executed and recorded on the 11th day of October. The case was tried by the court without the intervention of a jury, and the findings of fact and conclusions of law are as follows:
“1. That John W. Eckard and N. Pettinger, were part ners in business at Westmoreland, Pottawatomie-county, Kansas, under the firm-name of Eckard & Pettinger, up to about the 1st day of October, 1884, at which time the partnership was dissolved, and Pettinger sold all his interest in the partnership property to Eckard.
“2. That lot No. 30 and the east half of lot No. 29, in Cochran’s addition to Westmoreland, in Pottawatomie county, Kansas, was a part of the partnership property of said firm of Eckard & Pettinger, and that Pettinger sold his interest therein to Eckard on or about the 3d day of October, 1884.
“3. That on the 3d day of October, 1884, John W. Eckard and Annie E. Eckard his wife executed and delivered to N. Pettinger their promissory note for $1,225, a part of the purchase-money of his interest in the partnership property, due eighteen months after date, drawing interest at the rate of ten per cent, per annum from date, and on the same day executed and delivered to said N. Pettinger a mortgage upon said real estate to secure the payment of said note, which mortgage was duly filed for record on the 4th day of October, 1884, at 11 o’clock A. M.
“4. That on the 4th day of October, 1884, the said N. Pettinger sold and indorsed said note and assigned said mortgage to V. Pettinger, and that said assignment of said mortgage was duly filed for record the 4th day of October, 1884.
“5. That on the 7th day of October, 1884, V. Pettinger sold and indorsed said note and assigned said mortgage to the defendants Trout & Leach, and that said assignment of said mortgage was duly filed for record on the 7th day of October, 1884.
“ 6. That the said Trout & Leach bought said note and mortgage in good faith and for a valuable consideration, and then became and still are bona fide the owners and holders thereof and that said mortgage is the first lien upon said estate.
“7. That on the 3d day of October, 1884, John W. Eckard and N. Pettinger, partners as Eckard & Pettinger, wereindebted to the plaiutiffs I. Weil & Co. in the sum of $1,530.23, and that no part thereof has since been paid.
“8. That on the 11th day of October, 1884, thesaid John W. Eckard and Annie E. Eckard his wife, for the purpose of securing said indebtedness of Eckard & Pettinger to I. Weil & Co., executed and delivered to the said I. Weil & Co. a mortgage on the aforesaid real estate, which was duly filed for record on the 11th day of October, 1884, and that said mortgage is the second lien upon said real estate, and that appraisement was by said defendants John W. Eekard and Annie E. Eckard duly waived.”
To each and every of the said findings of fact the said plaintiffs duly excepted separately.
CONCLUSIONS OP LAW.
“ 1. That the said plaintiffs I. Weil & Co. are entitled to recover from John W. Eckard and N. Pettinger the sum of one thousand six hundred and four and dollars, and to a foreclosure of said mortgage and an order of sale of said real estate without appraisement, after the expiration of six months, and that the same be held to be the second lien on said real estate.
“ 2. That when the said sale is made the said Trout & Leach will be entitled to recover out of the proceeds thereof the amount then due upon the aforesaid note of John W. Eckard and Annie E. Eckard now held by them; and the same be held to be the first lien on said real estate.
“ 3. That when such sale is made, the proceeds, after paying the costs of said suit and the said sale, and the taxes, if any then accrued and unpaid on said real estate, must be applied, first, in payment of the amount then due upon the aforesaid note of John W. Eckard and Annie E. Eckard, now held by Trout & Leach; and second, in payment of said judgment of I. Weil & Co., with interest accrued thereon, up to the time, of said sale. ”
To each and every of said conclusions of law the plaintiffs duly excepted. Thereupon the said plaintiffs filed in said court their motion for a new trial of this cause, for all the statutory causes. The court overruled said motion, to which ruling the plaintiffs excepted. Thereupon the court ordered, adjudged and decreed that the plaintiffs do have and recover of and from the defendants John W. Eckard and N. Pettinger the sum of one thousand six hundred and four and tb^-q dollars, and the costs of suit, taxed at-; and hereof let execution issue. The court further ordered, adjudged and decreed, that the mortgage of the plaintiffs on the premises, lot No. 30 and the east half of lot 29, of Cochran’s addition to the city of Westmoreland, in Pottawatomie county, Kansas, be foreclosed; that after six months from this date an order of sale of said premises issue, and that said premises be sold without appraisement; and it was further ordered, adjudged and decreed, that the mortgage owned and held by Trout & Leach be and the same hereby is declared to be a first lien on said premises, and that the mortgage of the said Weil & Co. be and the same hereby is declared to be a second lien on said premises. The court further ordered, adjudged and decreed, that the moneys arising out of the sale of the said premises be applied: First, to the payment of the taxes accrued and unpaid on said premises; second, to the payment of the costs of this action; third, to the payment of the amount then due to Trout & Leach; fourth, to the payment of the judgment of the plaintiffs; and that the defendants John W. Eckard and Annie E. Eckard, N. Pettinger and Vernon Pettinger, be forever foreclosed and barred of and from all and every interest, right, title or claim in or to said mortgaged premises. And it was further ordered, that the injunction heretofore issued in the cause be dissolved, and that the order dissolving said injunction be, suspended for sixty days, and until decision of the supreme court, if petition in error be filed.
To all of which findings of fact and conclusions of law, orders, judgments, decrees and proceedings the plaintiffs then and there duly excepted.
It makes no practical difference how much we may be impressed with the views of the counsel for plaintiffs in error; in the condition of the record we can do nothing but sympathize with him. There was no special finding requested, or even given, on the question of the insolvency of the partnership at the time of the execution of this mortgage by one partner to the other. While we might think the evidence justified such a finding, we must hold in accordance with established principles and repeated decisions, that the general finding and judgment include every material fact necessary to sustain such judgment; and that in legal contemplation there is a finding that the partnership was not insolvent at that time.
This compels an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.' | [
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Opinion by
Holt, C.:
This case was first tried before a justice of the peace and a jury, and the verdict and judgment were for plaintiff in error, for $66. Defendant in error, plaintiff below, appealed to the district court, where the case was tried by a jury at the October term, 1885; verdict for plaintiff, for $80, and judgment thereon; motion for a new trial overruled. The defendant below is plaintiff in error.
This action grew out of the following facts: In the year 1884, plaintiff placed his mare and colt in the possession of the defendant, for the purpose of breeding the mare to a horse of the defendant. About the first of August, the same year, the mare and colt were taken sick, and both died while in the possession of the defendant. Plaintiff claimed that they died for want of proper care and attention, and brought suit against the defendant. The defendant answered by a general denial, and also asked judgment against the plaintiff for the care and keeping of the mare and colt.
Plaintiff makes four assignments of error. We shall consider only a part of them. The plaintiff, in his bill of particulars in which his cause of action was formally stated at some length, claimed that the contract between himself and defendant was that he should take good care of said mare and colt, and return them to plaintiff in good condition. He further alleged that defendant neglected said mare and colt, and by reason of such neglect they sickened and died. Testimony was introduced, over the objection of the defendant, showing that plaintiff stipulated for special and extra care of the mare and colt on the paid of the defendant. The instructions to the jury were upon the theory that the defendant had introduced evidence showing that he had contracted to give more than ordinary care to the animals while in his possession. The findings of fact by the jury also seemed to follow the same theory. The first question answered was: “Did the defendant agree to take more than ordinary care of the mare and colt?” Answer, “Yes.” The second question was: “If the above is answered yes, state what care was contracted for.” Answer, “ Good care.” While we believe that ordinary care is good care, and a claim in the bill of particulars that the defendant contracted to give good care to the mare and colt of the plaintiff was simply an allegation that it was a contract for ordinary care, yet it is evident from the questions answered that the jury at least made a distinction between ordinary care and good care. They very naturally made that mistake under the instructions of the court, and the manner of introducing the evidence, a portion of which was offered to show that a degree of care greater than ordinary care was agreed upon between the parties in the keeping of the mare. Such evidence ought not to have been admitted under the pleadings. A number of instructions were given on the theory that more than ordinary care was contracted for. They were erroneous.
The defendant also complains of special instruction number 4, given by the court to the jury. The instruction is as follows:
“Should you believe from the evidence that before the mare and colt were taken by defendant, that there was distemper or other disease among the horses or colts of the defendant, and that such fact was not communicated to the plaintiff, and that by reason of such disease being communicated to the colt, it became sick, and by reason of such sickness it died, and also caused the death of the mother by its not sucking the mother, and that disease was of a dangerous and contagious kind, then the court instructs you that it was a fraud for the defendant not to inform the plaintiff of such facts, if the same were known to defendant, or if the defendant by the exercise of reasonable diligence would have known the same, and the failure of the defendant so to do would be negligence, if you find that from such failure the plaintiff has sustained a loss.”
We believe that instruction is misleading, and not applicable to the facts in the case. There was nothing either in the pleadings in this action, or the evidence as it appears in the record brought here, that would suggest an instruction relating to fraud, much less justify or warrant such an one; and, taken in connection with the other part of the instruction, and the testimony bearing upon the question, of the distemper among the horses of the defendant, we think it was erroneous.
The contract was made by plaintiff and defendant in June, and the horses were taken there almost immediately thereafter. The plaintiff states that the horses and colts of the defendant had had the distemper, the disease of which the colt died, in the spring previous, while the defendant testified that the disease had been among his colts the fall and winter before. There is no testimony showing that for a considerable length of time prior thereto there had been any distemper a all among the horses of defendant. There is nothing in the evidence in this case that would indicate that it was the duty of defendant to say anything about the distemper which had been among his colts some time previous, much less could any fraud have possibly been inferred from his silence on that subject. There is no allegation in the bill of particulars that the mare died from the distemper, and the fact that she did die because the colt was sick with the distemper, was not the necessary and natural result of such sickness of the colt. The plaintiff, as a matter of fact, does allege that the mare died “wholly by reason of the carelessness and neglect of said defendant.” The mare died, as the evidence introduced tends to show, be cause the milk gathered in her bag, causing it to cake, on account of the colt being unable to suck the mare because the distemper affected its throat, and because the defendant neglected to give her proper care. It is certainly reasonable to believe that the instruction complained of would, under the evidence, confuse and mislead the jury.
It is recommended that the judgment of the court below be reversed, and the cause remanded.
By the Court: It is so ordered.
All the Justices concurring. | [
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Rulon, C.J.:
S.F., the biological mother of M.F., appeals the termination of her parental rights to M.F., arguing the district court failed to follow the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2006), in the proceedings which ultimately resulted in the termination of S.F.’s parental rights. We conclude the ICWA was not properly followed and reverse and remand for further proceedings.
On November 6, 2006, the State filed a petition alleging M.F. was a child in need of care (CINC). At that time, the State had no information regarding whether M.F. had Native American heritage. The district court appointed a guardian ad litem (GAL) for M.F. and held a custody hearing the next day. M.F.’s alleged father, D.J., appeared at the hearing despite the fact he was not listed on M.F.’s birth certificate. S.F. did not appear. The district court ordered the State to complete service on the mother. The State requested temporary custody of M.F. because of S.F.’s homelessness and possible drug use, because S.F. abandoned M.F. at the hospital, and because there was a question of paternity and whether the alleged father could care for M.F. The district court ordered genetic testing and determined an emergency existed to place M.F. in the custody of the Department of Social and Rehabilitation Services (SRS) with the authority to find suitable placement.
The district court later became aware of M.F.’s possible Native American heritage and sent a notice of the CINC proceedings to the Northern Arapaho Tribe (Tribe). The State informed the district court genetic testing confirmed D.J. was M.F.’s father. D.J. did not contest the claims in the petition that M.F. was a CINC, and a trial was set for a CINC determination as to the mother.
Eventually, the Tribe sent notice of the Tribe’s intent to intervene in the case. The Tribe requested to be notified of all hearings and actions in the matter. The State filed the Tribe’s notice with the district court. Included with the Tribe’s notice was a document stating a Tribe enrollment technician had determined M.F. was not enrolled with the Tribe, but M.F. would be eligible for enrollment.
Because S.F. had not stipulated M.F. was a CINC, the district court scheduled a hearing to make that determination. At the beginning of the hearing, S.F.’s counsel reminded the district court the ICWA applied. The State was unaware of whether the Tribe had been notified of the hearing. The GAL argued the Tribe had nonetheless received proper notice so the hearing could proceed. However, the GAL argued the district court should apply the ICWA’s higher standard of proof. S.F.’s counsel agreed if the district court applied the higher standard of proof such proof would sufficiently comply with the ICWA. The district court stated: “I think out of an abundance of caution we’ll go ahead and apply the other standard. I’m not sure that is absolutely necessary, but it is not going to hurt anything to apply that higher standard. We’ll go ahead and proceed today.”
The only testimony offered at the hearing was the social worker who was the case manager for M.F.’s case. At the time of the hearing, M.F. had been hospitalized for 2 months. According to the case manager, S.F. had not called to check on M.F. and did not know M.F. was hospitalized. The case manager testified there was an element of danger and risk to M.F. by S.F. not responding to the hospital because a potential caregiver would need to learn how to care for M.F. after M.F. was released from the hospital. The State argued the evidence complied with the ICWA standard of proof beyond a reasonable doubt that M.F. was in danger and needed immediate placement. The GAL additionally argued there was good cause for departing from the ICWA’s placement preferences because neither parent was capable of handling M.F. or providing for M.F.’s special needs; no extended family members had come forward; and there was nothing more than an indication the Tribe would intervene. S.F.’s attorney argued the district court should apply the ICWA standard, which required testimony by an ICWA qualified expert, and the case manager who testified was not a qualified expert. The State’s expert did not testily she had ever dealt with Indian issues or Indian children. The State contended it had met an exception under the ICWA by showing dangerousness, so there was no need for testimony from an expert in Indian child welfare. The State claimed it just needed an expert in child welfare.
The district court found the State had met its burden, and the case manager testified appropriately as an expert in the matter. Additionally, the district court found the evidence was clear beyond a reasonable doubt M.F. was in danger and out-of-home placement was immediately necessary for the child. The court held there was good cause to depart from any Indian placement because neither parent could care for the child, no family had come forward, and the Tribe had done nothing but indicate a desire to intervene. The district court found M.F. was a CINC pursuant to K.S.A. 38-1502(a)(2) and set the matter over for disposition after finding continued out-of-home placement was necessary. The district court ordered notice be given to the Tribe. Importantly, the district court never issued a journal entry adjudicating M.F. a CINC.
Eventually, the State filed a motion to terminate the parental rights of S.F. and D.J., or for appointment of a permanent custodian. The district court filed a permanency plan in which it found reintegration of the family was not a viable alternative because M.F. had been in SRS custody since birth; M.F. had a serious medical condition; and there was a lack of effort by the parents.
The district court held a pretrial hearing and counsel for S.F. stated there was no journal entry for the CINC finding and there had not been any expert testimony, which was required in order make a CINC determination under the ICWA. The district court directed the State to journalize the CINC finding. However, no such journal entry is contained in this record.
S.F. filed a motion to transfer jurisdiction to the Tribal Court of the Northern Arapaho Tribe (Tribal Court) pursuant to 25 U.S.C. § 1911(b) (2006). The GAL argued good cause existed not to transfer jurisdiction of the case because the motion was untimely and it would be inconvenient to transfer the case to Wyoming, the location of the Tribal Court. The district court held a hearing on S.F.’s motion to transfer, and ultimately, the district court denied the motion.
At the hearing on the issue of termination of parental rights, S.F. appeared. Before evidence was presented, the district court noted a representative from the Tribe had contacted the district court and requested to participate in the trial by telephone, but the court was unable to arrange for such participation. S.F.’s counsel again argued the district court was not complying with the ICWA. Testimony was taken from Lindsey Howes, a case manager who had been involved in M.F.’s case since M.F. was placed in State custody. Howes recited the case history and all the contacts she had with S.F. and D.J. In Howes’ opinion, M.F. needed permanency through an adoptive home that could provide for M.F.’s medical care and needs. Howes did not believe S.F. could meet- M.F.’s needs, which required a parenting ability beyond even normal parenting abilities due to M.F.’s extreme medical needs.
S.F. testified at trial she knew of two family members who were interested in caring for M.F. if the district court determined S.F. could not regain custody of M.F.
Ultimately, the district court entered an order terminating the parental rights of S.F. and D.J. to M.F. S.F: timely appeals. D.J. does not appeal.
On appeal, S.F. argues the district court failed to comply with the ICWA in any of the proceedings before the district court. This issue requires us to interpret various statutory provisions of the ICWA, and interpretation of a statute is a question of law over which appellate courts have unlimited review. In re M.B., 39 Kan. App. 2d 31, 36, 176 P.3d 977 (2008).
The Kansas Code for Care of Children, K.S.A. 38-1501 et seq., was in effect at the time these proceedings were initiated and applied to proceedings concerning any child who appeared to be a CINC. See K.S.A. 38-1503(a). The Revised Kansas Code for Care of Children, K.S.A. 2008 Supp. 38-2201 et seq., became effective January 1, 2007, and applies to proceedings concerning a child that is possibly a CINC. See K.S.A. 2008 Supp. 38-2203(a). However, neither mentioned code applies when the proceedings involve an Indian child, because in those instances, the ICWA applies. K.S.A. 38-1503(a); K.S.A. 2008 Supp. 38-2203(a). The ICWA defines an “Indian child” as an unmarried person under the age of 18 who is either a tribe member or who is eligible for tribe membership and is the biological child of a tribe member. 25 U.S.C. § 1903(4) (2006). Here, the Tribe determined M.F. was eligible for Tribe membership, and no one disputes on appeal that M.F. is an Indian child or that the ICWA applies.
The State argues we do not need to determine whether the ICWA was properly followed because S.F. failed to argue these issues before the district court. We disagree. S.F. argued at least twice the district court had not relied on the necessary expert testimony in making the CINC adjudication. This issue was properly preserved for appeal, and in any event, this issue can be raised for the first time on appeal because 25 U.S.C. §1914 states that “any parent . . . may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of [25 U.S.C. §§ 1911, 1912, and 1913].” See In re S.M.H., 33 Kan. App. 2d 424, 430, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005).
The ICWA establishes both jurisdictional and substantive procedures for custody determinations of Indian children. In re A.P., 25 Kan. App. 2d 268, 274, 961 P.2d 706 (1998). Jurisdictionally, S.F. argues the district court erred in denying her motion to transfer jurisdiction to the Tribe. Tribal courts have jurisdiction in custody cases involving children who reside on the reservation or who are wards of the tribe. 25 U.S.C. § 1911(a). Concurrent jurisdiction exists with state courts over children not domiciled on the reservation. 25 Kan. App. 2d at 274. Cases involving children not domiciled on the reservation shall be transferred to the jurisdiction of the tribe upon a request by either parent or the child’s tribe, absent an objection by either parent, declination by the tribal court, or good cause not to transfer. 25 U.S.C. § 1911(b).
In reviewing the district court’s decision to decline to transfer jurisdiction, we determine whether there is clear and convincing evidence to support the district court’s determination there was good cause for the state trial court to refuse to transfer to the tribal court. See In re A.P., 25 Kan. App. 2d at 276-77 (Upon review of the congressional intent, we conclude the standard most consistent with the ICWA requires clear and convincing evidence of good cause for a state trial court to refuse to transfer to the tribal court.”). Consequently, we must determine whether, after viewing all the evidence in the light most favorable to the State, there was sufficient evidence from which a rational factfinder could have found it highly probable that good cause existed not to transfer jurisdiction. See In re B.D.-Y., 286 Kan. 686, 705-06, 187 P.3d 594 (2008).
Although the ICWA does not define “good cause” to refuse a transfer request, the Bureau of Indian Affairs (BIA) has adopted criteria to use when making a good cause determination. Included in the reasons for finding good cause not to transfer exists are if “[t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing” and if “[t]he evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.” 44 Fed. Reg. 67,591 (1979); see 25 Kan. App. 2d at 275.
Here, the district court cited the applicable BIA guidelines and found good cause existed not to transfer because the proceedings were at an advanced stage; the motion was untimely; and the case could not be presented in the Tribal Court without undue hardship to the parties and witnesses. We conclude the district court’s decision is supported by clear and convincing evidence. S.F. did not file her motion to transfer jurisdiction until 15 months after the proceedings against her interests first began. Transfer to a court in Wyoming at such a late stage in the process would have created an undue hardship. Furthermore, the record on appeal reveals while the Tribe did not expressly decline jurisdiction of the case, the Tribe withdrew its own request to have the case transferred to its jurisdiction, which further supports the district court’s decision not to transfer jurisdiction of the case. See 25 Kan. App. 2d at 275-76 (finding that when the tribe was aware of the case and elected not to intervene, the failure to intervene could not be considered a declination of jurisdiction, but it could be used to support a finding of good cause not to transfer the case).
S.F.’s remaining arguments concern the district court’s failure to follow the ICWA’s substantive procedures. This court has adopted a two-step process for dealing with the termination of parental rights when the ICWA applies. Kansas statutoiy law for termination of parental rights is applied first, and then the ICWA standards are applied. See In re S.M.H., 33 Kan. App. 2d at 431. Here, regardless of whether the district court followed Kansas statutes, clearly the district court failed to properly comply with the requirements of the ICWA.
Before an Indian child can be placed in foster care, it must be determined, based on clear and convincing evidence including tes timony by a qualified expert witness, that continued custody of the child by the parent “is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(e) (2006). Before parental rights may be terminated, there must be a determination made, supported by evidence beyond a reasonable doubt including testimony of a qualified expert witness, “that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). Furthermore, when the State is seeking to place an Indian child in foster care or is seeking termination of parental rights to an Indian child under state law, the State must “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d).
None of the above ICWA provisions were followed by the district court in this case despite S.F.’s counsel repeated requests the district court comply with the ICWA. The district court was aware the ICWA applied and was aware the ICWA required different standards than state law. However, the district court failed to journalize its CINC findings, so there is no evidence of compliance with the ICWA standards in that determination. Although there is a journal entiy of the termination of parental rights, such determination was not supported by proper evidence. The witness who testified at the CINC hearing did not testify she was a qualified expert in determining whether an Indian child will suffer damage by continuing to remain in the custody of his parents. The same witness was the only person testifying for the State at the termination of parental rights trial as well.
Testimony from a qualified expert witness is a requirement before a child can be adjudicated a CINC and before these parents’ rights can be terminated. 25 U.S.C. § 1912(e) and (f). The BIA guidelines offer support for which individuals are “most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings,” including a “member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organi zation and childrearing practices,” and a lay expert witness who has “substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.” 44 Fed. Reg. 67,593 (1979). Although the final example is simply a “professional person having substantial education and experience in the area of his or her specialty,” our court has determined the ICWA requires a witness be qualified as an expert and the witness testify that evidence existed to support the State’s burden under the ICWA. 44 Fed. Reg. 67,593 (1979). See In re S.M.H., 33 Kan. App. 2d at 434-35. There was no such testimony in this case.
On appeal the State contends notice was given to the Tribe and the Tribe did not intervene. Notice is required to be given to the tribe pursuant to 25 U.S.C. § 1912(a), and pursuant to 25 U.S.C. § 1911(c), the tribe can intervene at any point in the proceedings. The ICWA still applies regardless of the failure of the Tribe to intervene.
Here the district court failed to comply with the requirements mandated by the ICWA for child custody proceedings involving an Indian child. We reverse and remand for the district court to comply with the ICWA’s requirements at each step of the proceedings. | [
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Green, J.:
Emrinder Kaur Sandhu, a native of India, married Paul Sarbjeet Sandhu, a United States citizen, in November 2005, in Ludhiana, Punjab, India. To secure Emrinder s entry into this country, Paul signed a federal affidavit of support. In the affidavit, Paul agreed to support Emrinder at or above 125 per cent of the federal poverty level annual guidelines unless a terminating event occurred during the period in which the affidavit was enforceable. Paul later petitioned for an annulment or a divorce. The trial court granted an annulment and determined that neither party was entitled to maintenance. On appeal, Emrinder contends that the trial court erred in failing to enforce the contract by failing to award maintenance. In addition, Emrinder asserts that she is entitled to an award of attorney fees. We disagree. Accordingly, we affirm.
Paul executed a federal affidavit of support, Form 1-864, in which he agreed, inter alia, to support Emrinder at or above 125 percent of the federal poverty line until the occurrence of a qualifying terminating event.
In July 2007, Paul petitioned for an annulment or a divorce. Emrinder answered, alleging that she was entitled to “maintenance and attorney fees, along with various other benefits contractually promised to her by Petitioner.” The trial court granted an annulment to the parties in March 2008, and took issues relating to support under advisement.
In response to Emrinder’s request for maintenance and fees, Paul argued that the trial court lacked jurisdiction to enforce the affidavit of support because the issue involved an interpretation of federal law.
Following a hearing on the matter, the trial court determined that maintenance was not appropriate for either party and that both parties were responsible for their own attorney fees. With respect to the affidavit of support, the court found that it was unnecessary to reach the issue of jurisdiction because Emrinder was earning $316 per week when the case was heard. This amount was over 150 percent of the 2008 United States poverty level guidelines. Therefore, the court found that Emrinder had no cause of action against Paul for violation of the contractual terms of the affidavit of support. Further, the court stated:
“Without ruling on the jurisdictional issue, it would seem to die Court that the language of the Affidavit of Support, I-864, wherein the sponsor agrees to submit to the personal jurisdiction of any federal or state court would apply only if that court were to have subject matter jurisdiction of the lawsuit against the sponsor to enforce obligations under form I-864 and that the Kansas District Courts would not likely have subject matter jurisdiction over the interpretation and enforcement of United States statutory family-sponsored immigration laws.”
Did the Tnal Court Err in Denying Emrinder s Motion for Maintenance?
Emrinder alleges that the trial court erred in denying her motion for maintenance. Specifically, she contends that Paul is bound by the terms of the federal affidavit of support.
As a preliminary matter, Paul contends that the trial court lacked jurisdiction over issues relating to the federal affidavit of support because it lacked subject matter jurisdiction to interpret and apply federal immigration law. As stated previously, the trial court did not rule on the jurisdictional issue but noted that it may not be the appropriate venue for the case.
The trial court, however, incorrectly addressed the merits of the case before deciding whether it had jurisdiction to decide the particular matter. If the trial court lacked subject matter jurisdiction, it had no authority to reach the merits of the case and the court would have been required to dismiss the case for lack of jurisdiction. Further, if a trial court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). As a result, it is of paramount importance for us to determine whether the trial court had been invested with authority to handle the maintenance issue under the federal affidavit of support.
Whether jurisdiction exists is a question of law over which this courts scope of review is unlimited. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006). Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on an appellate court’s own motion. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).
While there are no Kansas cases on point, the issue of state court jurisdiction over the Form I-864 affidavit of support was recently addressed by the Sixth Circuit Court of Appeals. In Davis v. United States, 499 F.3d 590 (6th Cir. 2007), the husband executed an affidavit of support and 1 year later he filed for divorce. The divorce court ordered the husband to support the wife for 8 years without specifically enforcing the affidavit of support. The wife appealed, and the Ohio Court of Appeals ordered the divorce court to enforce the affidavit of support. 499 F.3d at 592. The husband then filed suit in federal court to clarify his obligation under the affidavit of support; the district court dismissed the case for lack of subject matter jurisdiction. On appeal to the Sixth Circuit, the husband argued that there was subject matter jurisdiction because his claim relating to the affidavit of support arose under federal law. 499 F.3d at 592-93. In affirming that there was no subject matter jurisdiction over the cause of action related to the affidavit of support, the Sixth Circuit stated:
“Moreover, § 1183a authorizes exactly the land of support order that the Ohio court issued in this case as a means of enforcing die Affidavit of Support. ‘Remedies available to enforce an affidavit of support . . . include an order for specific performance . . . and include corresponding remedies available under State law.’ 8 U.S.C. § 1183a(c). Specific performance of the Affidavit as ordered by the Ohio Court of Appeals is thus explicitly permitted under the statute. We therefore conclude that the district court did not err when it dismissed Davis’s complaint for the lack of subject matter jurisdiction.” 499 F.3d at 594-95.
Other cases that have addressed the enforceability of the affidavit of support by the sponsored immigrant have determined it is “a legally enforceable contract and that the sponsored immigrant ‘has independent standing to enforce the sponsor’s obligation’ in any federal or state court. [Citations omitted.]” Moody v. Sorokina, 40 A.D.3d 14, 18-19, 830 N.Y.S.2d 399 (2007).
As a result, we determine that the trial court had subject matter jurisdiction over issues relating to the affidavit of support. Although the court erred in failing to first address the jurisdiction issue, the error was harmless because the court ultimately reached the merits of the case.
Turning to the merits of Emrinder s argument, we note that the express terms of Form 1-864 state that by signing the form, the sponsor is obligated to provide the sponsored immigrant with whatever support is necessary to maintain the sponsored immigrant at an annual income level that is at least 125 per cent of the federal poverty level annual guideline. By signing a Form I-864 the “sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A) (2002).
“The sponsor’s obligation under Form 1-864 terminates only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanendy departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. See 8 U.S.C. § 1183a(a)(2). Divorce is not a condition under which the sponsor’s obligations under Form 1-864 can be terminated. [Citation omitted.]” Shumye v. Felleke, 555 F. Supp. 2d 1020, 1024 (2008).
In the present case, the trial court determined that Emrinder was earning an income of $316 per week when the March 2008 hearing was held. The court further determined that this amount, whether it was gross or net income, exceeded 150 percent of the federal poverty level annual guidelines. On appeal, Emrinder does not challenge this finding; rather, she contends that none of the five circumstances terminating support have been met, and therefore, Paul is still hable under the affidavit of support.
“Determinations of fact not appealed from are final and conclusive. [Citation omitted.]” In re Adoption of B.G.J., 281 Kan. 552, 564, 133 P.3d 1 (2006). In general, a litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal. This provides the trial court with an opportunity to correct the findings and conclusions. Where no objection is made, an appellate court presumes the trial court found all facts necessary to support its judgment. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006).
Here, the record lacks a hearing transcript or any other documentation that indicates how the trial court determined that Emrinder’s income exceeded 150 percent of the federal poverty level annual guidelines, nor is there any suggestion that Emrinder objected to or otherwise challenged this determination. While Emrinder is correct that Paul is still bound by the terms of the federal affidavit of support, she did not allege and did not show that her income was below 125 percent of the federal poverty level- annual guidelines when the hearing was held. Only then would she be entitled to Paul’s support.
“An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails. [Citation omitted.]” City of Mission Hills v. Sexton, 284 Kan. 414, 435, 160 P.3d 812 (2007). In the absence of any objection to the trial court’s income determination, we must presume that the trial court found all facts necessary to support its judgment. Therefore, Emrinder’s claim of error must fail.
Affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action to recover upon a promissory note executed on November 1, 1883, by Frank G. Stiles and W. W. Manspeaker in favor of Watson & Thrapp, for the sum of $250, payable in one day after date, with interest at twelve per cent, per annum. Prior to the commencement of the action the note was duly sold and transferred to the plaintiff, James W. Steele. The execution and delivery of the note were admitted, and the indorsement and sale were not questioned ; but it was alleged by way of defense, that the note was given in pursuance of a contract whereby James W. Steele agreed to sell a tract of land to Francis L. Stiles for the sum of $10,000, and the note was given as a part of the purchase-price of the land sold. Among the terms stated in the agreement of sale were that the balance of the purchase-price should be paid within twenty days from the date of the agreement, or as soon as the deed was signed and delivered, and an abstract furnished showing a clear title in Steele. It was also conditioned that in case the title was not shown to be perfect, or the first party failed to deliver the deed upon demand, then the $250 paid on the purchase, and for which the promissory note in suit was given, should be refunded. When the testimony was concluded, the court advised the jury that the de7 fendants below had wholly failed to establish the defense set up, and directed a verdict in favor of the plaintiff for the amount shown to be due upon the note. This ruling is the ground of error assigned for the reversal of the judgment.
If the testimony submitted had no tendency to establish the theory of the defense, or a proposition essential to the maintenance of the defense, it was the duty of the court to direct the verdict. The defense was a failure of consideration because Steele had not a good title to the land agreed to be sold, and further, had failed to execute and deliver a sufficient deed to the proposed purchaser on demand. It devolved on the plaintiffs in error to show the title of Steele to be imperfect, or that he refused on demand1 to convey the land. An abstract of title was furnished by Steele immediately after the agreement of sale was made. This was taken by Stiles to attorneys for examination, and after obtaining their opinion with respect to the title he met and informed Steele that, judging from the opinion of his attorneys, he did not think the title was good. For this reason he denied liability on the note, and refused payment. The written opinion of his attorneys was offered in evidence, but as it was clearly incompetent to show imperfect title it was properly rejected by the court. Even in the opinion rejected, the attorneys certify that Steele appears to have a good title to the land. They add, however, that in an early conveyance of the land the grantor was represented to be, and conveyed, as an unmarried man, while in conveyances of other land made at other times, the same grantor conveyed with another as his wife, and it is suggested that if he had a wife at the time the land in question was conveyed, who is yet living, or had survived her husband, the title of Steele would be imperfect. The examiners, however, do not find or state that this grantor had a wife living when the conveyance first mentioned was executed and delivered. If, therefore, the opinion was competent and admissible, it furnished no proof militating against the title of Steele.
Taking all the testimony in the case, with all the inferences which the jury might properly draw from it, there was nothing to show that the title of Steele was not good. There was also an absolute failure of proof that Stiles demanded, and that Steele refused, the execution and delivery of a deed to the land. In that state of the case there was nothing to go to the jury, and hence no error in directing a verdict.
The judgment will be affirmed.
All the Justices concurring. | [
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Leben, J.:
All states have statutes of limitations, which mandate that lawsuits must be brought within a limited time period after a claim arises. These statutes of limitations ensure that court proceedings take place while evidence about the claim is still available and relatively fresh, and they also provide finality and predictability in legal affairs. Once the suit is filed, the case may proceed to trial without further worry about the statute of limitations.
But claims are often filed shortly before the statute of limitations expires, and sometimes such suits are dismissed for technical or procedural reasons. In some cases, the statute of limitations stops running while a suit is pending, but the limitations period begins to run again once die suit is no longer pending. Thus, if a suit is filed the day before the statute of limitations expires and then is dismissed and refiled a week after its dismissal, it would be time-barred because it would be outside the statute of limitations.
The Kansas Legislature, like most other state legislatures, has provided a solution for this situation. It’s called the savings statute, which is found at K.S.A. 60-518. When the terms of the savings statute are met, it literally saves a suit that otherwise would be time-barred. The savings statute provides that “[i]f any action be commenced within due time” and be dismissed for a reason other than the merits of the dispute, “the plaintiff . . . may commence a new action within six (6) months after such failure” even though “the time limit[] for the same shall have expired.” For the savings statute to apply, then, (1) the first suit must have been filed before the limitations period expired (thus “commenced within due time”), (2) the first suit must have been dismissed for reasons other than the merits of the claim, (3) die second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the savings statute, the limitations period must have expired when the second suit was filed.
All the parties in our case agree that Charles Campbell filed his second suit against his former attorneys after the limitations period had expired. Even when reviewing the facts in the light most favorable to Campbell, the 2-year statute of limitations on his claims expired June 4, 2005; his second suit was filed June 8, 2006. Thus, if the first suit was not commenced within due time, the savings statute cannot rescue Campbell’s suit. See Handy v. Reed, 32 Kan. App. 2d 247, 254, 81 P.3d 450 (2003), rev. denied 277 Kan. 923 (2004) (savings statute does not apply when first action not commenced within due time).
It would seem a simple matter to determine when the first lawsuit began: look at the date it was filed. But things get complicated a bit here because Campbell’s first suit was filed in Arizona and his second suit was filed in Kansas. And it turns out that a statute defines when a suit is commenced, and Arizona and Kansas both provide different statutory definitions. The appeal now before us ultimately comes down to whether Arizona or Kansas law is applied to determine whether the Arizona lawsuit was “commenced within due time.”
Before we get to that question, we must discuss the way in which the issue was raised because this determines how we must treat the underlying facts of the case. The defendants filed a motion to dismiss in the district court. On that motion, the parties presented several matters outside the pleadings, and those matters were considered by the district court. In this situation, we treat the motion as one for summary judgment; thus, all facts and inferences that may reasonably be drawn from the evidence must be resolved in favor of Campbell. Underhill v. Thompson, 37 Kan. App. 2d 870, 874, 158 P.3d 987, rev. denied 285 Kan. 1177 (2007); see K.S.A. 60-212(b).
The district court did not recognize that the motion should be treated as one for summary judgment, but it did view the facts “in the light most favorable to [Campbell,]” which was proper. Under this standard, the events listed below occurred on the dates shown:
June 4, 2003: The Kansas federal court entered its final judgment dismissing Campbell’s employment-discrimination suit. The defendants had represented Campbell in that suit; Campbell became eligible to sue his attorneys for malpractice claims at least by this date.
April 29, 2005: Campbell filed his legal-malpractice lawsuit in Arizona.
June 4, 2005: The 2-year statute of limitations expired on Campbell’s claim.
August 25, 2005: Campbell served the defendants with the Arizona lawsuit.
January 11, 2006: The Arizona federal court granted Camp-ell’s motion to voluntarily dismiss one defendant, Lowell Finson. The Arizona court concluded that it lacked personal jurisdiction over defendants Dirk Hubbard, John Klamann, and Courtney Hueser, and it granted the motion to dismiss in their favor. The decision did not decide the merits of Campbell’s claim.
June 8, 2006: Campbell filed his legal-malpractice lawsuit in Kansas against the same defendants.
The district court has correctly summarized the key facts when taking the record in the light most favorable to Campbell. Though the defendants suggest that they were not actually served with the Arizona lawsuit on August 25, 2005, evidence in the record supports Campbell’s claim that they were served then. Thus, on the standard applicable to a motion for summary judgment, we must accept the evidence most favorable to Campbell.
If Kansas law applies to determine whether the action was commenced within due. time, Campbell loses. With one exception, K.S.A. 60-203(a) provides that an action is commenced at the time of filing only if service of process is obtained within 90 days. Campbell obtained service outside that 90-day period. The one exception is that a 30-day extension may be obtained, but it may be obtained only if you ask for the extension before the 90-day period expires. Read v. Miller, 247 Kan. 557, Syl. ¶ 2, 802 P.2d 528 (1990). Campbell did not ask the Arizona court for an extension under this Kansas procedural statute. Under Kansas procedural law, then, the case was not “commenced” until service occurred on August 25, 2005, which was after the statute of limitations had expired.
But Arizona law is different. Under Arizona’s rules, an action “is commenced by fifing a complaint with the court.” 16 Ariz. Rev. Stat. Ann. Rules of Civil Procedure, Rule 3 (2001). That rule is essentially identical to Rule 3 of the Federal Rules of Civil Procedure. Although the case was filed in federal court in Arizona, the basis for jurisdiction in the federal court was the diversity of citizenship between the plaintiff, an Arizona resident, and the defendants, residents of other states. When a federal court hears a case based on the diversity of the citizenship of the parties, it must apply the law of the state in which that federal court is located (called the forum state’s law) in determining the date of a suit’s commencement. 4 Wright & Miller, Federal Practice and Procedure § 1057 (3d ed. 2002). Thus, while the suit was pending in the Arizona federal court, that court would have applied the Arizona state rule that the suit was commenced simply by fifing it.
The district court in our case concluded that Kansas law applied to determine whether the Arizona lawsuit was commenced within due time. The district court noted that the “claims asserted were state law claims,” presumably governed by Kansas law, and concluded that “the determination of the date of the 'commencement’ of the action is dependent upon Kansas law.” While the substantive issues on Campbell’s claims may indeed be determined by Kansas law, we cannot agree that the procedural issue of when a lawsuit is commenced in Arizona is governed by Kansas law.
First, such a reading is not required by the language of the Kansas savings statute, K.S.A. 60-518. It saves actions “commenced within due time,” and it does not explicitly say “commenced within due time under K.S.A. 60-203.” (Emphasis added.) Thus, it does not explicitly incorporate the requirement that a suit be served within 90 days to be timely commenced. In our mobile society, the possibility that a suit might be filed in one state, dismissed, and refiled in another is not so remote that no one has thought of it. See Prince v. Leesona Corp., Inc., 720 F.2d 1166, 1169 (10th Cir. 1983) (holding that Kansas savings statute applies when first suit was filed in another state). Yet the legislature has not explicitly limited the application of the savings statute to cases in which service of process was obtained within 90 days.
Second, such a reading would be procedurally unworkable. While the first suit is pending, it may be difficult or impossible to determine in a case with multiple defendants from different states- — and causes of action that may have arisen in different states — -which state’s law will ultimately determine when the action was commenced. In Campbell’s case, the Arizona court issued an order that informed him that he must obtain service of process within 120 days of filing the suit. On the facts taken in the light most favorable to Campbell, he fully complied with that order. If a new and different rule would apply in each of the other 50 states when a suit is dismissed in one state and refiled elsewhere, uniform and predictable outcomes would be unattainable. And neither a policy reason nor a legislative directive suggests to do so.
Third, when choosing which state’s law to apply in a given case, the law of the forum is usually applied on procedural issues. See Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 790, 89 P.3d 908 (2004); Bezek, Conflict of Laws in Kansas: A Guide to Navigating the Dismal Swamp, 71 J.K.B.A. 21, 30 (Sept. 2002). Thus, a person who filed a suit in Arizona would expect that Arizona law would be applied to procedural issues such as how and when to serve the suit on the defendants.
As we have already noted, federal courts apply the law. of the state in which the court is located in determining when a suit was commenced for purposes of a state statute of limitations. The leading case is Walker v. Armco Steel Corp, 446 U.S. 740, 752-53, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980), in which the United States Supreme Court held that state service requirements that were “an integral part of the state statute of limitations” must be applied when a case is in federal court based solely on diversity of citizenship. The district court in our case concluded that Walker sup ported the application of Kansas law requiring service of process within 90 days for the filing of a case to prevent the running of the statute of limitations. But the lawsuit in Walker was filed in Oklahoma federal court and a service requirement of Oklahoma state law was applied; Walker did not involve the filing of a suit in one state and a later refiling in another. Walker certainly does not explicitly require that Kansas procedural law be applied when deciding when a suit has been properly started in Arizona. For the reasons we have set forth above, we think such a ruling would be unwise and contrary to standard choice-of-law principles.
In sum, under the law that applied to the Campbell’s first suit in Arizona, it was commenced on time. No more should be required for the Kansas savings statute to apply. We must therefore reverse the district court’s decision granting defendant’s motion to dismiss the legal-malpractice claims based on the statute of limitations.
In addition to the claim for legal malpractice, Campbell also brought claims against the attorneys for violation of the Kansas Consumer Protection Act (KCPA). The district court dismissed the KCPA claims in part because the statute of limitations had run. But the analysis of the statute of limitations applicable to a KCPA claim differs from the application of the limitations period to a tort claim like negligence. In a negligence claim, there is no claim until the plaintiff has been damaged; thus, the time limit to bring suit does not begin to run until the damage occurs. As we will see, the situation differs for KCPA claims.
In Campbell’s case, he alleged that his attorneys were negligent in representing him in a lawsuit regarding employment matters, but he wasn’t damaged until that separate lawsuit was lost. Thus, the district court concluded that his time limit for bringing the malpractice claim did not begin to run until he lost that lawsuit, which took place on June 4, 2003. But a consumer is not required to provide damages to have a claim under the KCPA. See K.S.A. 50-626(b); Ray v. Ponca/Universal Holdings, Inc., 22 Kan. App. 2d 47, 49-50, 913 P.2d 209 (1995). Thus, the time limit for bringing a claim under die KCPA begins when the KCPA violation occurs. There is no additional period provided to discover the claim or to assess the damages before the limitations period begins to run. See, e.g., Four Seasons Apts. v. AAA Glass Service, Inc., 37 Kan. App. 2d 248, Syl. ¶¶ 2, 5, 152 P.3d 101 (2007). The attorneys quit representing Campbell more than 3 years before Campbell filed the first suit, and a 3-year statute of limitations period applies to KCPA claims. K.S.A. 60-512(2). Thus, the district court correctly ruled' that the statute of limitations barred Campbell’s KCPA claims.
Campbell tries to avoid this result by arguing that the attorneys should be prevented from arguing the statute of limitations because the attorneys had duties of disclosure to him and he claims that they concealed their bad acts. But the list of acts upon which Campbell bases this claim are the very acts that form the basis for his KCPA claim. To hold that the statute of limitations does not apply because of the very acts that form the claim would effectively eliminate application of the statute of limitations for such claims. There must be something more — some affirmative inducement beyond the underlying cause of action that lulls the plaintiff into not filing his action until the limitations period has already run. Here, there is not.
The judgment of the district court dismissing the KCPA claims is affirmed. The judgment of the district court dismissing the legal-malpractice claims is reversed, and the case is remanded for further proceedings. | [
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Rulon, C.J.:
Defendant Johnnie C. Davis appeals his conviction for driving under the influence of alcohol (DUI), contending the his blood was not drawn in a medically reasonable manner. We affirm.
Underlying Facts
On September 23, 2006, Trooper Mitch Clark of the Kansas Highway Patrol was en route to the jail in Barber County after making an arrest when a vehicle driven by the defendant pulled out in front of him, failing to yield. Trooper Clark activated his emergency signals and stopped the defendant’s vehicle. When Trooper Clark approached the defendant to request defendant’s license and registration, Trooper Clark smelled a strong alcohol odor; saw the defendant’s eyes were bloodshot and watery; and saw an open beer can behind the defendant’s seat. The defendant told Trooper Clark he had consumed about four or five beers. Trooper Brian Quick arrived on the scene, and Trooper Clark asked Trooper Quick to take over the investigation of the defendant so Trooper Clark could finish transporting his previous arrestee to the jail.
Trooper Quick approached the defendant, identified the defendant with defendant’s driver’s license, and asked the defendant if he had been drinking. The defendant said he had had about four beers. Trooper Quick noticed the defendant’s eyes were bloodshot, defendant’s speech was slightly slurred, and there was the odor of an alcoholic beverage. Trooper Quick performed sobriety tests on the defendant.
After finishing the sobriety tests, Trooper Quick arrested the defendant for DUI and transported the defendant to the Barber County Sheriff s Department. Trooper Quick gave the defendant a copy of the implied consent advisory and asked the defendant to take a blood test. The defendant consented, and the defendant’s blood draw was completed in the kitchen area of the sheriffs office and sent to the Kansas Bureau of Investigation (KBI) for analysis. The KBI lab report would later show a blood alcohol level of .12.
Trooper Quick issued the defendant a citation for DUI under K.S.A. 2006 Supp. 8-1567, transportation of liquor in open container (open container) under K.S.A. 2006 Supp. 8-1599, and failing to stop when emerging from alley, building, private road, or driveway (failure to stop) under K.S.A. 8-1555.
At trial before a magistrate judge the State presented the testimony of Trooper Clark and Trooper Quick, as well as the testimony of Heide Alojacin, the medical technologist who completed and signed the defendant’s blood draw form. Alojacin testified the form contained her handwriting, but she could not recall working on the date the blood was drawn and had no recollection of the defendant.
The defendant objected to the admission of the KBI lab report on the blood sample, arguing the State failed to provide sufficient foundation for the report because Alojacin could not remember the draw and therefore there was no evidence the draw was performed in a medically reasonable manner.
Eventually, the magistrate judge found the “means and procedures employed” in taking the blood draw “did not violate Fourth Amendment standards of reasonableness.” The magistrate judge found the lab test report was admissible and found the defendant guilty of DUI and open container. The defendant was found not guilty of failure to stop. The defendant timely appealed to the district court. The parties waived jury trial and stipulated the district court could decide the case based upon the transcript of trial before the magistrate judge and the briefs previously submitted by the parties.
The district court found the “drawing of blood by a medical technologist who regularly works in that capacity at the local hospital using the equipment described is appropriate and reasona ble.” Accordingly, the district court found the defendant guilty of DUI and open container. .
The defendant timely appealed.
Medically Reasonable Manner
On appeal, the defendant argues the State failed to meet the prosecutor’s burden to establish sufficient foundation for the admission of the defendant’s blood test results. Specifically, the defendant contends the State was not able to show the defendant’s blood was drawn in a “medically reasonable manner,” because the medical technician who drew the blood was unable to recall the draw.
In response, the State contends the prosecution should not be required to show a blood draw was done in a medically reasonable manner unless the defendant objects on those grounds at the time the blood is drawn or through a subsequent motion. The defendant did neither here. The State contends the defendant consented to the blood draw and there is no evidence in the record suggesting the blood draw was not completed in a medically reasonable manner.
The general standard of review for questions regarding foundation is as follows: A district court usually has considerable discretion in evidentiary rulings regarding foundation evidence, and its decisions in this regard are reviewed for an abuse of this discretion. City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993). The question of the adequacy of an evidentiary foundation is a question of fact and is reviewed for substantial competent evidence supporting the district court’s finding. 253 Kan. at 773.
This case involves a constitutional search and seizure question. Application of the Fourth Amendment to the United States Constitution in the context of our DUI statutes is a question of law over which this court has unlimited review. See State v. Murry, 271 Kan. 223, 224-33, 21 P.3d 528 (2001).
The drawing of a blood sample from a criminal suspect “implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution.” Murry, 271 Kan. at 226; see Schmerber v. California, 384 U.S. 757, 767, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Any warrantless search is considered unreasonable unless it falls within one of the recognized exceptions to this rule. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007). A warrantless blood draw from a DUI suspect falls within such an exception so long as the blood draw meets three requirements: (1) There are exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence; (2) the officer has probable cause to believe the suspect has been driving under the influence of alcohol; and (3) reasonable procedures are used to extract the blood. Murry, 271 Kan. at 227. The State bears the burden of proving the lawfulness of a search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
The defendant concedes, in DUI cases, exigent circumstances almost always exist to satisfy the first requirement for a warrantless blood draw. As we understand this, defendant does not challenge exigent circumstances existed here. Neither does the defendant challenge the State satisfied the second requirement in showing the troopers had probable cause to suspect the defendant of DUI. Instead, the defendant contends the State was unable to satisfy the third requirement and show the blood draw was done in a medically reasonable manner, because the medical technician who drew the defendant’s blood could not specifically remember drawing the defendant’s blood and so was unable to testify as to the manner in which the blood draw was completed.
Before addressing the defendant’s argument, we first consider the State’s contention the prosecution had no burden to show the blood draw was taken in a medically reasonable manner because the defendant consented to the blood draw and failed to object at the time of the draw or through a motion.
As previously noted, the defendant concedes the State does not have to satisfy the exigency requirement if there is consent, but argues consent does not abrogate the need for the State to show the test was done in a medically reasonable manner.
Probable cause plus exigent circumstances is one exception to the warrant requirement in Kansas. Consent constitutes another, separate exception. See State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). In setting forth the three-part test for warrantless blood alcohol evidence in Murry, our Supreme Court essentially listed the probable cause plus exigent circumstances exception and added the requirement the procedures used to extract the blood be reasonable. See Murry, 271 Kan. at 227. Consequently, consent could effectively replace the exigent circumstances and probable cause requirements. However, the State concedes, there is no authority indicating consent would abrogate the State’s responsibility to show the blood draw was performed in a reasonable manner.
The questions of probable cause and exigency are determined by circumstances in place before a suspect gives his or her consent to a blood draw. On the other hand, whether a blood draw is conducted in a reasonable manner may be an ongoing question left open during the course of and immediate aftermath of the blood draw, all of which occurs after a suspect has consented to the draw. Consequently, a defendant’s consent should not necessarily relieve the State of its burden of showing the blood draw was conducted in a medically reasonable manner.
Regarding the defendant’s failure to object at the time of the blood draw, there is no controlling authority requiring such an objection. Here, the defendant properly raised an objection to the admission of the exhibit, on foundational grounds, after the State’s witness was unable to recall and testify to the manner of the defendant’s blood draw. The California case cited by the State to support this argument addresses the requirements for a suspect to validly refuse to submit to a certain manner of testing. See Wegner v. Department of Motor Vehicles, 271 Cal. App. 2d 838, 840-41, 76 Cal. Rptr. 920 (1969). Wegner does not address the issue here, which involves the State’s burden to demonstrate the lawfulness of a search and seizure by showing the three requirements set forth by our Supreme Court in Murry were met.
We now turn to the merits of the defendant’s argument on appeal. The requirements our Supreme Court set forth in Murry were drawn from the United States Supreme Court’s decision in Schmerber. Specifically, the third Murry requirement was derived from the following passage in Schmerber:
“Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of a stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” 384 U.S. at 771-72.
See Murry, 271 Kan. at 227.
The factors to be considered in determining the reasonableness of the procedure used to draw the suspect’s blood include the quahfications of the person drawing the blood, the environment in which the blood was drawn, and the manner in which the blood was drawn.
Furthermore, the Kansas implied consent statute provides the blood draw of a DUI suspect may be performed only by persons with certain quahfications. See K.S.A. 2008 Supp. 8-1001(c). Such qualified persons include physicians, physician’s assistants, or a person acting under the direction of either; a registered or licensed practical nurse; any qualified medical technician; or a phlebotomist. K.S.A. 2008 Supp. 8-1001(c). As we understand, the defendant is not challenging the quahfications of Alojacin under this statute. Rather, the defendant is focused on Alojacin’s inability to testify as to the specific manner of the blood draw in this case.
The testimony before the district court showed the blood draw was conducted by Alojacin, a medical technologist who worked in the lab at Medicine Lodge Memorial Hospital for about 3 years prior to taking the defendant’s blood. Alojacin is a licensed medical technologist. As part of Alojacin’s job at the hospital, she draws blood on a daily basis. The hospital lab is sometimes called by the sheriffs office, as in this case, to come into the office and do a blood draw. The sheriffs office provides needles, syringes, gloves, iodine, cotton, and tape tourniquet for the draws. Alojacin estimated she had previously performed about 20 draws at the sheriff s office.
Alojacin identified her handwriting on the section of the defendant’s blood draw form that is designated for completion by medical personnel. Although Alojacin could not remember the defendant or the blood draw, the blood draw form Alojacin completed indicates Alojacin conducted the blood draw.
Trooper Quick observed the blood draw and testified the blood draw took place in the kitchen area behind the sheriff s dispatch office, using a blood tube from a kit provided by the KBI. The kit contains the blood tube, evidence tape, and a plastic container and a baggy used to seal the blood sample so there is no chance of the blood tube breaking or spilling during transport. Once Alojacin drew the blood, she handed the sample to Trooper Quick, who labeled the sample and sent the sample to the KBI for testing.
There was no evidence presented suggesting the blood draw here was conducted in anything other than a medically reasonable manner. Rather, the testimony showed the blood draw was conducted by a licensed medical technologist, using a kit provided by the KBI, in the sheriff s office. While Alojacin was unable to specifically remember the defendant’s blood draw, such an inability is not unexpected when a routine blood draw is taken by someone who performs such draws on a daily basis.
Reasonableness in the Fourth Amendment context depends on the totality of the facts and circumstances in each case. See State v. McClelland, 215 Kan. 81, 83, 523 P.2d 357 (1974). Here, the facts and circumstances discussed above (a licensed medical technologist taking a routine blood draw) are sufficient to permit an inference the blood draw was taken in a medically reasonable manner, given there is no evidence suggesting the contrary.
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The opinion of the court was delivered by
Horton, C. J.:
On May 4, 1882, the plaintiff obtained in the district court of Greenwood county a judgment against the defendant quieting his title to certain real estate in that county. The only service made was by publication, and there was no appearance on the part of the defendant. Afterward the defendant filed his application to have the judgment opened, and that he be permitted to defend. This application came up for hearing at the May term of the district court for 1885, and the court made the following order:
“Now on this 6th day of May, 1885, the second day of the May, 1885, term of this court, comes the said defendant, W. H. Hudson, by his attorney, Z. Harlan, and by motion makes application to have the judgment heretofore, to wit, on the 4th day of May, 1882, and at the May, 1882, term of this court, rendered and entered in this action, opened, and to be let in to defend; and it appearing to the court that three years have not yet elapsed since said judgment was rendered, and that the same was rendered against the defendant without other service than by publication in a newspaper; and it further appearing to the court here, that the said defendant has given due and legal notice to the said plaintiff of his intention to make said application at this time; and it further appearing to the satisfaction of the court by affidavit and otherwise, that during the pendency of this action the said defendant had no actual notice thereof in time to appear in said court and make his defense, and the said defendant having filed a full answer to the plaintiff’s petition in said action, and it appearing from said answer that the said defendant has a just, legal, and sufficient defense to said action, it is therefore ordered and adjudged by the court that the judgment heretofore, to wit, on the 4th day of May, 1882, and at the May, 1882, term of this court rendered and entered herein in favor of said plaintiff and against said defendant, be and the same is hereby opened, and the said defendant let in to defend; and it is further ordered that the said plaintiff demur or reply to said answer on or before the 22d day of May, 1885.”
Subsequently the plaintiff filed a motion to vacate and set aside the order of May 6, 1885, but this motion was overruled, and thereupon the plaintiff obtained leave to file a reply to the answer of the defendant on or before June 20, 1885. At the trial upon the merits, on September 7, 1885, the judgment of May 4, 1882, was vacated, and judgment rendered in favor of the defendant for costs.’ The plaintiff excepted, and brings the case here. He alleges that neither the application of the defendant to have the judgment opened, nor the order of the district court opening the judgment, was made within three years after the date of the judgment of May 4, 1882. The record in this court is in such a condition that we cannot consider the merits of the question presented. There has been no transcript filed in this court of all the proceedings of the district court, and the proceeding is not brought here upon a case-made. The only certificate to the transcript is as follows:
“I, W. S. Robinson, clerk of the district court within and for the county of Greenwood, state of Kansas, do hereby certify that the above and foregoing contains a true, complete and full copy of the entries on journal records in the above-entitled cause, now in my office.
[ Seal.] W. S. Robinson, Clerk District Court.”
The application of the defendant, and the notice given by him to the plaintiff, are omitted from the record, but the court makes a finding in the journal entry as follows: “That the said defendant has given due and legal notice to the said plaintiff of his intention to make said application at this time;” and in the journal entry it is also recited “that three years have not yet elapsed since the judgment of May 4,1882, was rendered.” It was decided in Albright v. Warkentin, 31 Kas. 442, that where the application is made in time, and on account of certain proceedings had no final action is taken by the court to open the judgment, such delay does not necessarily deprive the defendant of his right to have the judgment opened. The record, defective as it is, shows that some proceeding in the case was pending on December 24, 1884, and that a continuance of the matter then pending was had, upon the application of the defendant, until the May term of the court for 1885. To do justice to both parties, the provisions of §77 of the code should be construed in no technical way, but fairly and reasonably. So, also, the journal entries should be construed to uphold, if possible, the' order of the district court. Not being able to say from the record as presented, that the original1 application and notice were not filed and served within the time, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only question for consideration is: Was the judgment in question discharged by reason of the defendant’s discharge as a bankrupt? To determine this question, the provisions of the bankrupt law must be examined. Section 506 of the act of 1867 provides:
“No creditor whose debt is provable under this act shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined; and any such suit or proceeding shall be, upon the application of the bankrupt, stayed to await the determination of the court in bankruptcy on the question of said discharge.”
There is an exception to this provision,which provides thatthe creditor may proceed to judgment by special leave of a bankruptcy court, for the sole purpose of ascertaining the amount due; which, when determined, may be proved in bankruptcy as an adjudicated claim. Under this section there were two ways in which the judgment might have been affected: first, by the appearance of the defendant with his showing that he had been declared a bankrupt, and by moving that the cause be continued until his discharge could be procured from the bankruptcy proceedings; second, the plaintiff might have procured leave of the court in which the bankruptcy proceedings were pending, to proceed to final judgment, and after such judgment, have proved the same as a claim against the bank rupt; but both might waive such right. The plaintiff by so doing would not abandon his right to prove his judgment, and would have the right to file his judgment as a claiin against the bankrupt estate, and share with the other creditors. The defendant might abandon his right to have the proceedings stayed to await his final discharge, but in so doing he would not forfeit his right to plead his final discharge in bankruptcy, when procured; and if he did not receive his discharge until after judgment had been rendered against him in the state court, then he might proceed, as in this case, to have the judgment discharged:
Since this case was submitted to this court, the supreme court of the United States has passed upon the same question involved in this case. Mr. Justice Miller, speaking for the court, says:
“These provisions exclude altogether the idea that the state court has lost jurisdiction of the case, even when the bankrupt shall have made application showing the proceedings against him. The whole section is also clearly impressed with the idea that this is a provision primarily for the benefit of the bankrupt, that he may be enabled to avoid being harassed in both courts at the same time in regard to such debt. It is therefore a right which he may waive. He may be willing that the suit shall proceed in the state court, for many reasons: First, because he is not sure that he will ever obtain his discharge from the court in bankruptcy, in which case it would do him no good to delay the proceedings at his expense in the state court; in the second place, he may have a defense in the state court which he is quite willing to rely upon there, and to have the issue tried; in the third place, he may be very willing to have the amount in dispute liquidated in that proceeding, in which case it becomes a debt to be paid pro rata with his other debts by the assignee in bankruptcy. If for any of these reasons, or for others, he permits the case to proceed to judgment in the state court, by failing to procure a stay of proceedings under the provisions of this section of the bankrupt law, or the assignee in bankruptcy does not intervene, as he may do, he does not thereby forfeit his right to plead his final discharge in bankruptcy, if he shall obtain it, at any appropriate stage of the proceedings against him in the state court. And if, as in the present case, his final discharge is not obtained until after judgment has been rendered against him in the state court, he may produce that discharge to the state court, and obtain the stay of execution which he asks for now.” (7 Supreme Court Reporter, 984; see also 24 Cent. L. J. 587.)
In view of this opinion, we recommend that the case be reversed, and remanded for further proceedings, in accordance with the views herein expressed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was tried by a jury, at the August term, 1885, of the district court. Plaintiff in error was defendant below, and defendant in error was plaintiff below. The action was brought upon a note signed by defendant and two others, for $300, given in Missouri in 1881, and due in one year after date. There is a conflict of testimony as to whether Tays, the defendant, was one of the principals, or surety on the note. The defendant, before the cause was called for trial, made a motion in writing to strike out certain parts of the depositions of sundry witnesses, because such parts were incompetent and irrelevant. The motion did not contain the testimony claimed to be incompetent and irrelevant, but designated it by stating in each instance at what line and page of the depositions such testimony began, and at what line and page it ended. Of the depositions complained of, the record shows that the plaintiff read from them, how much or how little, or what part, we are left to conjecture. It does not state that all or any of them were introduced in evidence except the deposition of Homer W. Carr, which was all read to the jury. The depositions are not preserved in the record, and there is no proof that the parts of the depositions complained of were, as a matter of fact, admitted in evidence, Carr’s only excepted. In his deposition was a letter of defendant to J. R. Good, Esq., who, the defendant claims, was his attorney at the time the letter was written. Objection was made to its introduction, and an offer to prove that the relation of attorney and client existed as claimed. The court declined to hear evidence on that point, and allowed the letter to be read. This was no error. An attorney is incompetent to testify concerning any communication made to him by his client, without the client’s consent. It is not the communication itself from an attorney to his client, that is incompetent; but the attorney is prevented from testifying concerning it. (The State v. Buffington, 20 Kas. 599. See also The State v. White, 19 Kas. 445; Wilkins v. Moore, 20 id. 538.)
Plaintiff in error complains because the district court refused to hear the motion at that time, i. e., before the beginning of the trial, and says that such refusal of itself is error. This objection may be answered by simply stating that no material error has been preserved in the record in this case. Further, we are inclined to believe that the time of deciding whether certain testimony in a deposition is competent or- relevant, may be either before the trial of the case, or very properly after the trial has commenced, and during its progress. The defendant, however, cites us to §365 of the civil code, viz.:
“ The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions, before the commencement of the trial.”
Pie claims that this section is mandatory and leaves no discretion in the court, but it must hear and decide all such exceptions before the commencement of the trial. If that section stood alone, his claim might be correct, but §364 reads as follows: “No exception other than for incompeteucy or irrelevancy shall be regarded, unless made and filed before the commencement of the trial.” If we give §365 the force defendant claims for it, §364 would be left without any meaning; or, by a strained construction, it might be held to mean that any exception to incompetency and irrelevancy, if filed before the commencement of the trial, must be heard and decided only at that time, but any exceptions upon those two grounds made after the trial began could be heard during its progress. Such a construction would be a forced one, and without any sound reason for the distinction sought to be made, and would not be a liberal construction of the two sections referred to. By a natural rendering we can give both sections a reasonable and definite meaning, each in harmony with the other. When that can be done, it is the duty of the court to so construe them. Section 365 would then be held to mean that all exceptions, save those for iucompeteney and irrelevancy, must be heard and decided before the commencement of the trial; and it may fairly be inferred by §364, that the proper time to take exceptions to the incompetency and irrelevancy of evidence in depositions, would be during the progress of the trial. (Johnson v. Mathews, 5 Kas. 118.) It would follow, of course, that at that time they must be heard and determined. If such is the proper construction — and it seems a natural one — it would be unreasonable to say, because such exceptions happened to be made before the trial began they must be decided then, and not at the time when the law contemplates they should be. But § 364 is not in this matter mandatory; we believe that the time when the question of competency and relevancy is to be settled rests usually in the discretion of the trial court. It is a practice prevailing in some of the district courts of the state, and one to be commended, to decide the competency and relevancy of the testi mony offered in depositions during the progress of the trial; but when a deposition is claimed to be incompetent and irrelevant in its general scope and effect, then the objections raised may perhaps be settled before the beginning of the trial. When only a portion is objected to, the question can ordinarily be best determined during the progress of the trial and after a part of the other evidence in the case has been introduced.
Another objection urged by the plaintiff in error is to the general instructions of the court. The only exception thereto is as follows: “To the giving of the general instructions as shown above, by the court to the jury, the defendant Tays objected and duly excepted.” By such an objection the attention of the court was not directed to any particular portion of the charge of the court as objectionable; and in this case, where it is of considerable length, the objection is insufficient and too indefinite to be considered, unless in its general scoj>e the charge is erroneous. (Wheeler v. Joy, 15 Kas, 389; Hentig v. Kansas L. & T. Co., 28 id. 617.) We have examined the instructions given by the court, and believe they fairly state the law applicable to the case, and we have been unable to detect that any portion of the same is erroneous.
After the general instructions had been given, the defendant orally requested the court to instruct the jury as follows:
“ If you find from the evidence that defendant R. L. Tays was surety on the note sued upon in this action, and that the time of payment was extended for a definite period of time for a valuable consideration, without the consent of said R. L. Tays, then they must find for the defendant.”
The instruction asked is correct as an abstract principle of law, but our statute (Civil Code, § 275) provides that if either party desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party asking them, and delivered to the court. This is the plain provision of the statute, and must govern in this case. In this instance the instruction was not applicable to the evidence introduced in this action.
There was some testimony showing that Tays was surety on the note; also that the time of its payment had been extended, but there .was not a scintilla of evidence showing that there was any valuable consideration given for such extension. On the other hand, it does appear that not all of the interest then due on the note was paid, and so far as the consent of Tays was concerned, the talk of extension was made at the store where he was at work, and discussed before him, and although he did not formally agree to its extension, he made no objection to it.
The plaintiff in error complains of other alleged errors. We think it is unnecessary to specially mention them. We find no material error in the record.
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
Horton, C. J.:
Alfred Taylor brought this action against the Franklin Sugar Company to recover the sum of four hundred dollars, alleging that he entered into a verbal contract with the company to take charge of and superintend its cane department for the term of one year, commencing April 1, 1884, at a salary of twelve hundred dollars, payable monthly; that he entered upon the performance of his duties as superintendent in April, 1884; but that on November 30, 1884, without any reasonable cause, he was wrongfully discharged from employment, and was paid only eight hundred dollars. Trial had before the court, with a jury; verdict for the plaintiff. After Taylor had introduced his evidence the company demurred thereto, which demurrer was overruled, and exception taken.
The contention is, that Taylor made a verbal contract for several years’ service, to begin at some future time; and there fore that his contract was void by the statute of frauds. Taylor testified, among other things, that he had negotiations with W. L. Parkinson, for the sugar company, at various times prior to April 10,1884, as to his employment as superintendent of the company; that on April 10,1884, it was agreed that his salary should commence April 1,1884, and that he was to receive twelve hundred dollars for the year ; that he was in the service of the company from April 1, as superintendent, until November 30,1884, when Parkinson informed him that the president “wanted to get rid of him to cut down expenses;” that he continued to work for the company until the 3d day of December, 1884, when he was discharged; that he was then offered by the company two dollars and twenty-five cents a day to work in the mill, but refused so to do; and that he was ready aud willing to perform all the services for which he was employed during the entire year.
A parol contract will not be adjudged void by reason of the prohibition of the statute of frauds aud perjuries, unless it affirmatively appears that, fairly and reasonably interpreted, it does not admit of a performance within the year. (Sutphen v. Sutphen, 30 Kas. 510.) It appears there was ample evidence introduced on the part of Taylor that after he commenced work, the date of April 1, 1884, was fixed as the commencement of his services, and also the date for the commencement of his pay; and therefore the contract would remain good for one year from that time. The court committed no error in overruling the demurrer to the evidence. For like reasons, the court committed no error in the instructions complained of. If there were verbal negotiations concerning the employment of Taylor as superintendent prior to April 1, 1884, yet after he commenced work a contract was entered into on April 10, 1884, between him and the sugar company that he was to serve for one year as superintendent, commencing April 1, for twelve hundred dollars, the contract was clearly to be performed within one year; therefore it was not necessary that it should be in writing.
It is further contended that the district court erred in ad mitting in evidence various letters written by Parkinson to Taylor. It appears that the sugar company was not incorporated until March 21,1884, and some of the letters were dated prior to that time. One of the letters, however, from Parkinson is dated after the incorporation of the company. Concerning these letters, the court instructed the jury that if they were written before the sugar company was incorporated, they would not bind the company, unless the compauy with a knowledge of their contents afterward ratified and confirmed them. The testimony shows that the arrangements of the compauy, as detailed in the letters of Parkinson, were carried out by the company after its incorporation. Urner was made president, Parkinson managing director, and Taylor superintendent of the cane department. This evidence, however, could not have been prejudicial to the sugar company, because it clearly appears from its own evidence that Parkinson was the managing director of the company after its incorporation, and that he was the official of the company having the entire control of hiring and discharging employés.
As there was evidence to sustain the verdict, and as the alleged errors are insufficient to set the verdict aside, or to require a new trial, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The investigation of the important questions involved in this case has been much lightened and expedited by the very careful and judicious preparation of the cause for review in this court. The record of the case-made is printed in large, clear type, and supplied with a thorough and admirable index; the documentary evidence is arrayed in the natural order for examination; and, in a word, everything has been done to lessen the labor of the court, and to render its discharge of duty easy and pleasant. We express the obligation of the court to counsel for plaintiff in error, for their care and skill in the preparation of the case for review here. Counsel on both sides have exhausted the sources of information on the legal questions involved, and left to the court nothing to complain of in this regard. Condensing the documentary and oral evidence into a brief summary, and reciting both in chronological order, the material facts are as follows: The note sued upon by the plaintiff below was executed by the president of the railroad company, and it was claimed that this was done in pursuance of a resolution of the board of directors, adopted at a meeting held on the 10th day of March, 1882. The authority of the president to execute the note is denied by a verified answer. As this is one of the most vigorously contested questions in the case, we pass it for the present. The residue of the plaintiff’s demand against the railroad company consisted of a claim for salary as president and general manager from March 7th, 1882, to March 7th, 1884, at an established rate of $5,000 per year; and about this part of the claim there does not seem to be much controversy. The answer of the defendant below alleges that Tiernan and Ayers were promoters, incorporators and directors of the railroad company, and that Tiernan was its president and active manager; that while acting in that capacity, he and Ayers, on the 12th of January, 1881, purchased from one M. S. Carter a road-bed of a defunct railroad corporation extending from Fort Scott to Humboldt, at its full value for $15,000, and then, in collusion with other certain officers and directors of the St. Louis, Fort Scott & Wichita Railroad Company, sold it to that company for the sum of $200,000 cash, or its equivalent, and $3,600,000 of the capital stock of said company; that this was done in violation of their obligations and duties as officers of said railroad company; and that the stock was of par value; and defendant prays for a judgment against Tier-nan for $3,804,600.95.
For some years before the organization of the St. Louis, Fort Scott & Wichita Railroad Company, there had been graded a road-bed, with some bridges built on it, from Fort Scott to a little distance beyond Humboldt, by an organization known as the Fort Scott, Humboldt & Western Railroad Company. The length of this road-bed was about forty-four miles. The company which had graded the road-bed and built the bridges had failed, and one M. S. Carter had foreclosed a mortgage against it, and bid in its property, consisting of the road-bed and bridges, and had become the absolute owner thereof. On the 17th day of February, 1880, Carter sold this road-bed to Francis Tiernan and Alexander M. Ayers, together with all maps and profiles in the possession or in the control of Carter, of said line of road between Fort Scott and Humboldt, and thence westward or southwestward through the state of Kansas. ' The consideration of this sale was the sum of fifteen thousand dollars, to be paid as follows: one thousand dollars within ninety days, and fourteen thousand dollars within one year, and the additional agreement that the said Tiernan and Ayers were to commence within thirty days to procure the unsecured right-of-way over which the said road bed or line of railroad was originally surveyed, established and partially graded, and all deeds and contracts for the right-of-way, side tracks and switches, depot grounds, tanks, and stock yards, were to be taken in the name of M. S. Carter, and were to inure to his benefit and to be absolutely his until Tiernan and Ayers paid in accordance with the terms herein specified; and Tiernan and Ayers agreed that within ninety days they would use their best endeavors to secure aid to said road, by procuring bonds to be voted by the various municipalities through which said line would pass in Bourbon and Allen counties, and that all such aid procured in the construction of a railroad from Fort Scott to Humboldt should accrue to the benefit of Carter and become his property if they should fail to pay him as specified. The terms of this agreement were reduced to writing, and signed by the parties on the 17th day of February, 1880. The first one thousand dollars was paid on the 14th of May following. On the 23d day of February, 1880, thecharter of the St. Louis, Fort Scott & Wichita railroad company was filed in the office of the secretary of state. It was signed and acknowledged by Francis Tiernan and Alexander M. Ayers in Champaign county, Illinois, on the 20th day of January, 1880. On the 20th day of February, 1880, the company was organized at Fort Scott by the election of Francis Tiernan as president, Alexander M. Ayers as vice president, and Ira D. Bronson as secretary.
On the 17th day of April, 1880, Tiernan and Ayers sold to John J. Franklin, of Philadelphia, one-third interest in the road-bed known and called the Fort Scott, Humboldt & Western Railroad, commencing at Fort Scott and running to Humboldt, the estimated distance being forty-four miles, for the consideration of twenty-five thousand dollars. Of that amount five thousand dollars was to be paid as soon as Franklin could examine the title and approve it, and the sum of twenty thousand dollars was to be paid within eight months. When Franklin paid the $5,000 he was to be elected treasurer of the St. Louis, Fort Scott & Wichita Railroad Company. Sometime during the month of May, 1880, the St. Louis, Fort Scott & Wichita Railroad Company made an agreement to purchase the old road-bed of the Fort Scott, Humboldt & Western Company, and it is this agreement which is hereafter referred to in the minutes of the meeting of the directors of the St. Louis, Fort Scott & Wichita Railroad, held on November 12, 1880. On the 12th day of November, 1880, the directors of the St. Louis, Fort Scott & Wichita Railroad adopted a resolution approving and confirming the contract of Tiernan, Ayers and Franklin of the sale by them, and the purchase by the company, of the road-bed, etc., ordering the issue and delivery of the stock, and the execution and delivery of orders for cash, or first-mortgage bonds, as provided in the agreement of sale. On the 3d day of December, 1880, Franklin sold to Ira J. Bronson all his right, title, interest and claim in and to the St. Louis, Fort Scott & Wichita Railroad Company, and' the old road-bed, etc-On the 6th day of March, 1881, at a meeting of the stockholders of the St. Louis, Fort Scott & Wichita Railroad Company, the following resolution was adopted, by a vote of all the stockholders present, in its favor:
“Be it resolved, That all actions of the board of directors of the St. Louis, Fort Scott & Wichita Railroad Company, in relation to selling and disposing of the capital stock of said railroad, and receiving payment therefor in the manner and kind in which such payments were made, be and they are hereby approved and ratified.”
The road-bed was paid for by issuing to Francis Tiernan, Alexander M. Ayers and Ira J. Bronson, or his assignee, each $1,200,000 of paid-up capital stock, and an order on the railroad company in favor of each one of these persons for $66,666.66f in cash, or first-mortgage bonds, but the order for cash or bonds was in no manner to become a lien on that part of the road running from Fort Scott to a point where it crosses the Kansas City, Lawrence & Southern Kansas Railroad in Allen county. At the time of these various transactions about the old road-bed there had been no amount of the capital stock of the railroad company issued, the first being issued to one L. M. Bates, of New York, in December, 1880. Bates was an assignee of Ira J. Bronson for a part of Bronson’s share of the stock of the purchase of the road-bed.
On this state of facts, supplemented by the other acts of the parties, which will be noticed hereafter, the contention of counsel for plaintiff in error is:
First, Tiernan was president, general manager and chairman of the executive committee for two years, during which time no agreement existed whereby he was to be paid for his services, and at the end of that time he and his associate directors could not legally vote him a salary for services theretofore rendered.
Second, Ayers, Bronson and Hill were respectively vice president, secretary and superintendent of the company during the time Tiernan was president. No contract or agreement had been made whereby they were to be paid a salary, and no resolution or by-law had been adopted to that effect. At a meeting of the directors, at which Tiernan, Ayers, Hill, Bronson and another, who was a subordinate officer of the company, only were present, and no notice of the meeting had been given to the absent directors, a resolution could not be legally adopted allowing salaries to Tiernan, Ayers, Bronson and Hill for services theretofore rendered, and authorizing the execution of the company’s notes therefor.
Third, The by-laws of the company, adopted by the stockholders at a meeting regularly called for that purpose, provided the manner in which the company’s notes should be executed, and persons who were both stockholders and directors, and who had favored the adoption of such by-laws, could not ignore them and procure the company’s notes to be executed to themselves in a manner different from that prescribed in the by-laws.
Fourth, Tiernan and Ayers, occupying the positions herein-before recited, bought an old road-bed which the company needed, for fifteen thousand dollars, and for the purpose and with the intention of selling it to the company, with an agreement among themselves, Bronson and Hill, to divide the profits of the transactions, sold it to the company for $200,000 cash and $3,600,000 of the company’s capital stock, and then carried out their agreement about the division of profits. The company is entitled to recover of Tiernan the difference between the price paid by him and Ayers for the road-bed and that at which they sold it to the company.
Fifth, Tiernan and Ayers did not disclose to any of their associate directors, except Bronson and Hill, the price paid by them for the road-bed, and the other, five directors had no knowledge on that subject. Such a transaction will not be upheld when it is challenged in a proper action by the company.
Sixth, Tiernan took $3,600,000 of the company’s capital stock in the manner above set forth, and in a proper action by the company he is answerable to it for the par value of the stock, and judgment should be rendered against him accordingly.
Seventh, Tiernan was a director from the time of the organization of the company down to the time of the commencement of the action to recover for the matters hereinbefore referred to, and as during all that time he was trustee for the company, statutes of limitation did not commence to run as long as that relation continued.
CONTENTIONS AS TO THE NOTE.
Numerous questions arose on the pleadings, and at the trial, with reference to the authority of the board of directors of the railroad company to execute the $10,000 note set forth as the first cause of action in the petition of the plaintiff below; and they are as follows:
First. It is claimed that after services had been performed by Tiernan as president of the company, without any express agreement as to their value and payment, the board of directors could not legally vote him a salary for past services. We do not think this objection fairly states the facts in this particular case, for this reason, that there is in the record some evidence tending to show that there was a common understanding among those persons who were actively engaged in the work of the company that they were to receive compensation for such ser vices. It is true that the record does not disclose any affirmative action by the governing body of the company at the commencement of these services, or for a long time thereafter, declaring a liability and providing a measure of compensation in respect to them, but the fact remains that they all went to work with a common understanding that if their united efforts were successful, and anything substantial resulted from their labors, fair pay for labor performed would follow. It must be recollected that the only capital this railroad company possessed at its birth and in its earlier struggles for existence was the energy and capacity of Tiernan, Ayers, Bronson, and Hill. They necessarily reserved the question of compensation for the future, to be settled and determined by the success attained, for unless their labors resulted in the construction and equipment of a railroad there would be no revenue produced sufficient to pay expenses or salaries. If their projected road became an accomplished fact, the measure of compensation was to be determined by the degree of success. If there is any one thing more manifest in the record than all others, it is the tireless energy and wonderful management of these four men in the organization of the company and the success of the enterprise. It may be fairly said that the resolution of the board of directors of the company, passed on the 10th day of March, 1882, allowing salaries to the persons therein named, was but expressive of the common understanding had at the commencement of the work that they were to be paid a reasonable compensation for services rendered whenever the success of the enterprise justified the payment.
This case differs from that of National Bank v. Drake, 29 Kas. 311, in this respect, for in the reported case it was claimed on the part of the bank that when Drake was appointed cashier he had agreed to act without compensation. He was a large stockholder, and was allowed room in which to transact his private business, and space in the safe of the bank in which to deposit his valuable private papers; and because he owned a large share of the stock, and was allowed these other privileges and facilities for the transaction of his private business, he assumed the duties of cashier without other compensation. It is said in that case, page 330:
“As this case goes back for a new trial, we desire to add, to guard against any misconception, that we do not agree with all the authorities heretofore cited as to the lack of power on the part of the directors to appropriate money in payment of the salary of the cashier, or other officer, after the services have been rendered, and in cases when such cashier, or other officer, happens to be a director, we think the rule is, in the absence of positive restrictions, that when no salary is prescribed, one appointed to an executive office, like that of cashier, is entitled to reasonable compensation for his services, and that the directors have power to fix the salary after the expiration of the term of office, and this though such appointee is also a director, and continues to be such while holding the independent office.”
We therefore'conclude, that the board of directors had the power to pass the resolution of the 10th of March, 1882, for the reason that it only expresses a previous agreement, and that the board had the right to award reasonable compensation to an officer for services performed, after they had been rendered. It is not necessary, in view of the fact that there is ample testimony in the record to establish the common understanding existing as to compensation, to sustain our ruling in the case by that of the Drake case. The writer of this opinion has serious doubts as to the application of the rule in that case to the facts here presented, and is very decided in his conviction that such a rule cau only be supported with reference to a class of appointive officers who have no control over the management and disposition of the property of a corporation. It is Very clear that the learned judge who delivered the opinion in the Drake case, and had considered all the cases now cited, had the distinction between managing and controlling officers and ministerial ones in mind, and that his remarks were made with reference to that distinction.
Second. It is insisted by counsel for plaintiff in error that the resolution of the board did not authorise the execution and delivery of a note of $10,000 to Tiernan for his services. The • answer of the company denied the authority of its officers to execute the note sued upon. The answer was supported by an affidavit, and while this raised the other question disposed of above, this question still remains. The minutes of the proceedings of the directors’ meeting held on the 10th day of March, 1882, recite that—
“ Whereas, The salaries of A. M. Ayers, president, E. Tier-nan, vice-president and general manager, J. D. Hill, superintendent, and Ira J. Bronson, secretary and treasurer, not having been heretofore fixed: therefore, it is
“Resolved, That the salaries of each of said officers be and the same are now fixed at $5,000 per annum from the 4th day of March, 1881, to March 7,1882.
“And whereas, There is due F. Tiernan $5,000 on said salary, etc.;
“And whereas, This railroad company is now unable to pay such salary: therefore, be it
“Resolved, That the railroad company, by its president and secretary, at once execute and deliver its promissory note for the amount herein specified.”
Then follows a resolution pledging some Eureka township bonds to secure the payment of the note, but this is not material. It was under and by virtue of the authority of this resolution that the $10,000 note sued upon was executed. The plaintiff below claimed that the record of the minutes when rightly understood would show the amount recited to be due Tiernan as $10,000, instead of $5,000; that the intention of all present and participating in the meeting was to authorize the execution of a $10,000 note, and that the record originally read $10,000, but had been changed to $5,000. The plaintiff introduced the testimony of several witnesses upon this question, over the objection of the railroad company, and may fairly be said to have established this state of facts: That the original proceedings of the meeting were noted on loose sheets of paper and afterward transcribed from those loose sheets into the record book, and the explanatory evidence consisted of a book called the record of “bills payable,” in which was recited the notes executed by the railroad company. These recitals were made up by the direction of Bronson, the treasurer, the entries being made a short time after the notes were executed. This book showed under date of March 10, 1882, “time, 180 days;” drawer, “The St. Louis, Fort Scott & Wichita Railroad Company,” .in favor of “Francis Tiernan;” where payable, “The First National Bank of Fort Scott;” due, “Sept. 6th, 1882;” amount, “$10,000.” Bronson testified that he had in his possession the original short notes of the proceedings of the meeting, made on the day it was held, and as the transaction occurred. They read as follows: “March 10th, 1882, board convened pursuant to adjournment; present, same as yesterday'. Motion by Hill as to Malin bonds, carried; motion for salaries, $5,000 per annum. Motion as to note 180'days, and Eureka bonds, carried.” Bronson produced a second paper, identified it as'bis handwriting, but did not give a very satisfactory account of its origin. The contents of this paper are substantially those of the first, except that the proceedings of the meeting are in greater detail. In this paper there is the statement that there is due- Tiernan on his salary the sum of $10,000. It was first inserted in figures $5,000, and that is crossed out by parallel lines being drawn over it with a pen, and followed by the figures $10,000. Herrick, Bronson’s clerk, who transcribed the minutes from these loose papers into the record book, testified that he had first written “Whereas there is due Tiernan on his salary $10,000,” and had subsequently erased $10,000 and written $5,000, but that he had no recollection positively why the change was made, and that the erasure could be seen from the under side by looking through the leaf. Hill, who introduced the resolution about the salaries, testified that the object and purport of the resolution was to fix the salaries of these officers at $5,000 per annum for each year, for all the time past and all the time to come in the future.
This is enough of the evidence to show the character of the objection made by the railroad company to its introduction. This objection is two-fold: in one of its features it is technical, being confined to the admissibility of parol evidence to vary, contradict or impeach the record. The other feature goes to the authority of the board of directors to execute the notes of the company, except in the manner and under the conditions prescribed in its by-laws. On the first feature, or reason given to sustain the objection, we think reason and authority alike concur in affirming the ruling of the trial court. That parol testimony is admissible for the purpose for which it was admitted in this case, is manifest from the decision of this court in the case of City of Troy v. A. & N. Rld. Co., 11 Kas. 519, and this on the theory most favorable to the plaintiff in error, that the record book absolutely stated that the amount due was $5,000. The precise contention here is, what did the record say — $5,000, or $10,000? Herrick says that it was first written $10,000 and then changed to $5,000, and this leaves the question as to what are the facts, an open one. Official bodies, such as the board of directors of a railroad company, have the same right as courts of record to make their journals speak the truth; or if a question arises as to just what facts the record does state where it contains erasures and interlineations, what did occur and was attempted to be recorded, can be established, to aid in the construction of the recitations in the record. We are not disposed to disturb the finding of the trial court in this respect, necessarily included in the general judgment rendered in favor of the plaintiff below, because it seems to have been amply justified by the evidence introduced, and this evidence is reinforced by the strongly suggestive fact that on the very day that this resolution was adopted, the note was executed for $10,000.
The other ground of objection can be stated in a few words: A by-law of the company adopted at a meeting of the stockholders provided, “If cases arise in which it may become necessary to issue the notes of the company, instead of its acceptances, such shall be drawn by the auditor to the president or vice president, countersigned by the treasurer, and a proper record made of their maturity by the latter officer.” Who shall determine when it shall become necessary to issue the notes of the company but the governing body, the board of directors? Then the objection goes, not to the authority of the board, but the mere form of the note. It is objected to because not drawn in accordance with the requirements’ of the by-law. It is, in effect, saying, We will not pay this paper, because it is not in exact accordance with the form we have prescribed for our notes. We suppose that, in the absence of any by-law prescribing the form or authorizing the issuance of promissory notes of the corporation, if it became necessary in the transaction of the ordinary business of the company, the president, by the order of the board of directors, could execute the promissoi’y note of the corporation for a valuable consideration; and as this objection is clearly technical, and goes to the form and not to the substance, it ought not to be allowed to bar a recovery. The execution of the note is the act of the company, done in pursuance of an order made at a meeting of its directors, made in accordance with an agreement between its creditors and the company, delivered because the company had not the money to pay for services rendered, and for which payment was due and ought to have been made; and the company ought not now to be allowed to say, We wdll not pay this company’s note, because it is not drawn in strict conformity to the company’s by-laws. Even a cursory glance at the two authorities cited by counsel, 1 Wool worth, 400, and 2 Atkyns, 400, ought to have satisfied them that in those cases the court was considering matters of substance and not of form. The question as to whether the facts existed which authorized the officers of a railroad company to execute its notes, is a different question from whether the notes are in the exact form prescribed in the by-laws, or not. The first determines the existence of the notes, the other concedes the right to issue, but insists on a certain prescribed form. In Samuel v. Holladay, 1 Woolworth, 400, the question was, whether or not a deed of trust was void because the meeting of directors at which it -was executed was held without the notice prescribed for such meeting by the by-laws of the company. In Charitable Corporation v. Sutton, 2 Atkyns, 400, the officers of the company lent money on pledges, repeated loans on the same pledges, and on imaginary pledges, in violation of the by-laws.
Third. Another error assigned and urged for reversal is this: The court admitted the note in evidence when only the signature of the officers excuting it had been proved, and this was done over the objection of the plaintiff in error. The authority of the officers of the company who had executed the note to make it, was put in issue by the sworn answer of the company, and under the state of the pleadings at the time of the trial some preliminary proof of the authority of the officers to execute the note should have been given before it could be permitted to be read. If this # 1 ruling stood alone, isolated from the other facts and rulings of the court, it could not be sustained; but the error was subsequently cured by the admission of the parol and other evidence heretofore noticed, tending to show the power of the officers under the resolution adopted at the meeting on the 10th of March, 1882, and hence the ruling complained of does not operate to the prejudice of the plaintiff in error.
This disposes of the first three contentions of the plaintiff in error.
AS TO THE TWO YEARS’.SALARY.
Counsel for the plaintiff in error do not indulge in a very lengthy controversy about the two years’ salary, which constitutes the second cause of action in the petition of the plaintiff below, but what is said may be resolved into these two objections: First, the resolution adopted by the board of directors at the meeting held on the 10th of March, 1882, did not fix the salary for the future; second, the payments made thereon, made by the auditor of the company, were without authority, and did not bind the company to make any further payments.
The proper solution of the first objection depends upon the construction to be given the resolution of the 10th of March, 1882. Construing it in the light of the testimony of its author, and it appears that it was intended to fix the salary at $5,000 per annum for the past and for the future, and in the absence of all evidence it would seem that this is the natural inference from the words of the resolution. The salary was fixed at a definite sum per annum, and then in view of all the other facts apparent on the face of this resolution, it was determined what was due for past services. Under and by virtue of this resolution, as it remained on the record of the proceedings of the board of directors, any person who had succeeded Tiernan in the office could have reasonably concluded that his salary was fixed at $5,000 per annum. There does not seem to be any dispute but that Tiernan performed the services for the payment of which he seeks to recover, and as the record discloses that about this time he sold out all the stock he had, and the others ceased to have any connection with the company, Tiernan could certainly recover the value of services performed at the rate established by the resolution, unless there is some affirmative showing of a different agreement.
Avery short statement will dispose of the second objection. Tiernan was performing the duties of president and general manager of the railroad company from March 7, 1882, to March 7, 1884; during this time he was paid in cash, and articles described, the sum of $4,600.95. These payments were made by the auditor of the company, the last one of $3,000 cash, being made on the 21st day of October, 1884, at a time long subsequent to the performance of the services. This payment was made by the order of one Miller, who was then vice president and general manager of the company, who gives in his testimony the reasons that prompted the payment. A part payment is an admission of some liability. r j j We think that the officers of the company, under tihe facts heretofore stated with reference to the resolution of the board of directors, had authority to make the payment, and that Tiernan is entitled to recover the balance due.
AS TO THE ROAD-BED.
1. Some very important questions grow out of the purchase of the road-bed by Tiernan and his associates, and their sale of it to the railroad company. It is alleged in the answer of the railroad company, that at the time the purchase was made Tiernan was one of the incorporators and directors of the company, and occupied such a position toward the company that whatever dealings he had respecting the road-bed resulted to the benefit of the corporation; or, that if this is not so, then if he made the sale to the company while acting in the capacity of president and director, he was bound to disclose the price he paid, the profit he was making, and that the whole transaction must be characterized by fair, open and unmistakable candor in all its features. The first question we shall discuss is, were the defendants in error, Tiernan and Ayers, corporate fiduciaries at the time they purchased the road-bed ? They signed and acknowledged the charter of the St. Louis, Fort Scott & Wichita Railroad Company on the 20th day of January, 1880, at Champaign county, state of Illinois. It was filed with the secretary of state on the 23d day of February, 1880. The contract of purchase of the road-bed was made on the 17th day of February, 1880. It thus appears that the road-bed was purchased before the railroad company had any existence. Section 10, chapter 23, of the Compiled Laws of Kansas, 1885, being the act concerning private corporations, is as follows: “Sec. 10. The existence of the corporation shall date from the time of filing the charter, and the certificate of the secretary of state shall be evidence of the time of such filing.” This expi’ess statutory declaration determines the fact that the railroad company had no existence prior to the 23d day of February. Important legal consequences flow from this determination. The legislature has prescribed the act that gives life to a corporation, and the date of the performance of that act is the birthday of its creation. From the moment of the filing of the charter with the secretary of state, the duties and obligations of those named as its first directors began. There could not have existed any fiduciary relations before that time, because there was no corporation in existence to create them. It is clear, then, that at the time they made the purchase of the road-bed, they were not direct ors, and did not occupy such a relation of confidence and trust to this railroad company, that this purchase was presumably for its benefit, or by operation of law resulted in its favor. All such theories and considerations are swept out of our pathway by the vigorous terms of the statute.
It is sometimes the case that parties who are dealing with each other about the organization of a corporation, make such declarations or give such pledges respecting its future creation, that causes of action arise between them which must be settled in accordance with the recognized rules of law with reference to contracts, agency, or partnership. There is nothing developed in the record which justifies the assertion that such causes of action arose against Tiernan and his associates on behalf of others who participated in the organization. We do not believe that anyone would seriously contend for a single moment that there is such a statement of facts in the record, that, if Tiernan had refused to sell his road-bed to the railroad company, it could have enforced the sale. To make him responsible in - this action there must be an affirmative showing that at the time he made the purchase he was either acting for and on behalf or the company, 0 A J J or he so assumed to act, of that he occupied such a relation of trust and confidence with respect to the company that his purchase resulted to its benefit, and not to his own profit. The first we regard as impossible, because at that time the company had no existence, and hence he could not have acted on its behalf or authority, and for the same reason he could not have assumed to act for a corporation when there was none in being.
2. It is alleged in the answer of the railroad company that Tiernan was a promoter of the railroad company, and the same statement is repeated in the briefs with italicized vigor, and great stress seems to be laid upon the assumed fact. This word promoter had its origin in the methods by which joint-stock companies were formed in England, where by law they were declared partnerships. Subsequently, when the era of railroad building began in that country, the business of pro moting the organization of such companies assumed definite form. The ordinary proceeding was this: The promoter introduced the enterprise to the notice of persons of wealth in the locality through which the line of the road was proposed to be located, informing them of its nature and prospects, and furnishing an estimate of its probable cost. These persons were solicited to aid by their influence or subscriptions, or both. Enough persons were secured to constitute a provisional committee, and then this committee appointed from their number a managing committee, which issued a prospectus, announcing the nature and probable profits of the scheme, the proposed means to carry it out, the amount of capital required, the number and price of shares, and other details, to which were generally attached the names of the promoters, with references to the names of those persons constituting the provisional committees. If all this resulted in fair probabilities of success, application was then made to parliament for a bill of incorporation. If the scheme failed, the expenses incurred gave rise to litigation, and many questions as to the liability of these committees and of the promoters were determined. If the incorporation was secured by the action of parliament, then another class of questions arose as to what acts of the promoters could be ratified by, and what acts resulted to the benefit of, the incorporation, and many others growing out of the condition of affairs; that that has no resemblance to our method of organizing corporations. It is true that the word has been found to have its uses in our jurisprudence, but in a much more restricted sense than that used in the English reports.
The American cases upon this subject are not very numerous, and most all of them will be found in the 16th American Law Eeview, and in Morawetz on Corporations, vol. 1, p. 545. Assuming that a promoter is a person who organizes a corporation, and that he intends to sell its property, or to subscribe for its stock, or to take an active part in its management and business, let us inquire whether there are sufficient facts recited in this record to determine that the fiduciary relation of promoter of this corporation was ever assumed by Tier-nan, or whether his acts in respect to its organization were such that a relation of this character could fairly be inferred. To start on, there is not one single word of parol testimony which can be fairly said to authorize an inference that Tiernan was the promoter of the corporation. It does not appear that he ever advised or suggested the organization of the company. In the next place, there is nothing in very many voluminous written instruments in the record that justifies any such inference. The charter itself would seem to rebut any such conclusion so far as Tiernan was concerned, as it was signed and acknowledged by him in the state of Illinois. There is nothing to justify the allegation in the answer of the railroad company, or the assumption of its counsel in their briefs, that Tiernan was a promoter of the company.
There is in the written agreement between Tiernan, Ayers and Franklin, whereby a one-third interest in the road-bed purchased by them from Carter was sold to Franklin, an understanding on the part of Franklin that if Tiernan and Ayers wish to sell the road-bed to the St. Louis, Fort Scott & Wichita Railroad Company, Franklin will join in the conveyance of it to the company, if his share of the purchase-money is not less than $40,000, but this agreement was made on the 7th day of April, 1880, after the purchase by Tiernan and Ayers, and after the organization of the company; so that we cannot utilize this fact to establish a relation as existing before the railroad company had any corporate life. There is no evidence that Tiernan was a promoter.
3. At the time of the sale of the road-bed to the railroad company, Tiernan was part owner of the road-bed, and was a director and president of the railroad company; and hence it is very properly said that the sale must be a fair, open one in all respects ; the price paid by Tiernan and his associates must have been disclosed to the directors of the company, and the whole transaction must not only be for the evident interests of the company, but it must have been conducted in all its stages in the utmost good faith on the part of the directors, and with a complete knowledge of the time when, the circumstances under which, and the exact amount paid by Tiernan at the date of his purchase, to be relieved of that suspicion with which courts of justice universally regard a transaction in which the seller and the buyer are represented by one and the same person. It has been decided that a director is not prohibited from dealing with his company; he can sell it real estate or any other kind of property, but there are certain rules strictly applicable to him that do not operate upon a person entirely disconnected with the corporation, and these he must faithfully observe to make his contract of sale one that the law will uphold. (Hotel Company v. Wade, 97 U. S. 13; Morawetz on Corporations, §§ 297, 521, 545; Simmons v. Vulcan Oil Co., 61 Pa. St. 202; Van Cott v. Van Brunt, 82 N. Y. 535; Parker v. Nickerson, 137 Mass. 487.)
It has been decided, time and time again, that the owner of a mine, an oil well, or a valuable patent, can organize a corporate company to develop mineral, or oil, or to manufacture the patented article, take a very large amount of stock in payment of his mine, oil well, or patent, and trust to the value given the stock by the success of the corporation for payment of his labor and discovery. In this class of cases there is a mere transfer of the status of the mine, oil well, or patent. It ceases to be personal property, and becomes corporate property, and each individual interest, as well as that of the owner, discoverer, or patentee, is represented by shares of stock.
It is now decided in this case that the owners of a graded railroad bed can sell the same to a railroad company whose officers and directors are composed of the same identical persons who own the road-bed, and issue the capital stock of the railroad company in payment thereof, at a time when those who sell the road-bed and own and control the railroad corporation are the absolute owners of all the stock issued by the railroad company, and when the terms of sale and the issue of stock are matters of record on the books of the railroad company, and when this transaction occurs months before any other or additional stock is issued by the company; that parties owning an old railroad grade with culverts and some bridges erected thereon, and who organize, control, manage, and own a railroad company, whose stock at the time of the issue has no market but only a nominal value, can transfer the railroad grade to the railroad company and issue the stock of the company in payment therefor; they, and they alone, at that time, being the only persons interested in the road-bed, and in the railroad company. At the time of the sale of the railroad grade, or old road-bed, it was owned by Tiernan, Ayers, Bronson, and Hill, and they in fact constituted the railroad company. There were some other directors, but the evidence is that just sufficient stock was placed in the name of the other directors to authorize them to act as such, and this transfer was but temporary, and for that sole purpose. This sale was ratified by the directors of the railroad company, and subsequently by the stockholders, but the directors, stockholders and owners of the road-bed were one and the same persons. By this transaction the value of the road-bed was represented by the stock of the railroad company, instead of remaining as the personal estate of the owners. At the time of the sale, and when the board of directors ordered the issue of the obligations and stock of the company in payment of the purchase-price of the roadbed, the record affirmatively shows that all the persons who had any interest of any kind or character whatever in the railroad company, except Bates, the assignee of part of Bronson’s stock, were Tiernan, Ayers, Bronson, and Hill. They owned the road-bed, they constituted the railroad company, they sold the road-bed to the railroad company and took the stock of the railroad company in payment, at a time when witnesses on both sides concede that the stock had only a nominal value. The-developments in this record abundantly show that the title to and possession of the road-bed were of great pecuniary benefit to the railroad company. It alone enabled the company to construct the first fifty miles of its road, and to make such a beginning that its future sue cess and final accomplishment were assured. The record does not show that there has ever been any other stock issued by the railroad company, except small amounts to municipalities through whose territory the line was built, and that it is owned, managed and controlled to-day by the amount of stock issued to pay for this road-bed. Tiernan and his associates sold their stock to Gould, in August, 1882, for a consideration of $100,000, so that now, so far as it appears, the value of the stock issued representing a completed road one hundred and fifty miles in length is much less than the actual cost of the road-bed. The railroad company in this action represents this stock, and it seeks to retain it. It has the use and enjoyment of the road-bed, and wants to recover from Tiernan the par value of the stock, being the sum of $3,600,000.
It is useless to pursue the discussion further, as it is not controlled, or governed, or affected in any degree by those self-evident, equitable principles, and unyielding rules of law that govern in all cases where persons sustain fiduciary relations to corporations, or to other persons, by reason of their being representatives of their pecuniary interests. This case involves the proposition as to whether or not the absolute owners of property can, when it seems to them to be to their profit, so change the relation of their property as to make it stock in a corporation. Whoever succeeded to the rights of Tiernan and his associates as the holders of the stock, did so with all the facts showing the sale and purchase of the road-bed and the issue of the obligations and stock of the railroad company spread upon its record, and have now no right to complain, however different the case might be if they had then an interest in the corporation. This same issue in its most important features has very recently been tried and decided by the circuit court of the United States for the district of Kansas, in the action of E. R. Stewart v. The St. Louis, Fort Scott & Wichita Railroad Company, a manuscript opinion of Judge Foster’s having been furnished us. Stewart brought his action to recover on several promissory notes issued by the railroad company, aggregating $85,000. These notes constituted a part of the $200,000 that was to be paid in cash, or its equivalent, for the road-bed, and a $5,000 note issued to Hill for salary as general manager. The same defenses which are made here, were set up in that action. The circuit court rendered judgment for the full amount claimed by Stewart, overruled all the defenses and discussed very many of the questions alluded to in this opinion, with the same result.
We see no material error in the record, and recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
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Caplinger, J.:
The State of Kansas appeals the district court’s order dismissing the charges against Carlos E. Montes-Mata based on speedy trial violations. The State contends the district court erred in finding that although Immigration and Customs Enforcement (ICE) issued an immigration detainer to the Lyon County Sheriffs Department while Montes-Mata was jailed based on charges pending in this case, Montes-Mata was being held in jail solely by reason of the instant charges under K.S.A. 22-3402.
We conclude that the immigration detainer at issue here merely expressed ICE’s intention to seek future custody of Montes-Mata and requested that Lyon County provide notice to ICE before terminating his confinement. Because it did not place a hold on Montes-Mata, he continued to be held solely by reason of the im stant charges under K.S.A. 22-3402. Therefore, we affirm the district court’s dismissal of the charges based on the State’s failure to timely bring Montes-Mata to trial.
Factual and procedural background
On October 4, 2005, Montes-Mata was arrested and charged with one count each of possession of marijuana with intent to sell, deliver, or distribute; conspiracy to possess marijuana with intent to sell, deliver, or distribute; and failure to affix a drug tax stamp. Montes-Mata remained in custody from his arrest until the district court’s ruling on his motion to discharge.
Montes-Mata pled guilty to conspiracy to possess marijuana with intent to sell, in exchange for the State’s dismissal of the remaining two counts. Prior to his sentencing, the Lyon County Sheriffs Department received an I-247 Immigration Detainer — Notice of Action from the United States Bureau Immigration and Customs Enforcement (ICE), which notified the department that ICE had initiated an investigation “to determine whether [Montes-Mata] is subject to removal from the United States.”
The district court subsequently granted Montes-Mata’s attorney’s motion to withdraw as defense counsel, appointed new counsel, and granted Montes-Mata’s motion for a continuance of sentencing to permit him to file a motion to withdraw his plea.
Montes-Mata filed a motion to withdraw his plea, and the district court granted the motion on April 14, 2006, finding the plea was not freely, voluntarily, and intelligently made.
On April 28, 2006, the district court conducted a motions hearing, during which Montes-Mata moved to suppress the evidence resulting from the traffic stop and his subsequent statements. Following a June 30, 2006, suppression hearing, the district court granted the motion in part and denied it in part. On July 7, 2006, the State appealed the district court’s suppression order.
A panel of this court, in State v. Montes-Mata, No. 97,155, filed March 30, 2007, affirmed the district court’s ruling, and on May 9, 2007, the district court sent the State a letter questioning whether the State wished to proceed with the case using the non-suppressed evidence. •
On May 14, 2007, Montes-Mata moved “for his discharge from further liability in this case and dismissal of this action” because of the State’s alleged violations of his speedy trial rights, pursuant to K.S.A. 22-3402. The State responded, arguing the immigration detainer vitiated the 90-day speedy trial requirement because after the detainer was received, Montes-Mata was no longer “held in jail solely by reason” of the instant charges.
On June 1, 2007, the district court granted Montes-Mata’s motion, concluding he was held for 111 days and the immigration detainer was not a “hold” as contemplated under K.S.A.-22-3402. Rather, the court found the notice served only to advise the Lyon County Detention Facility that upon Montes-Mata’s release, “the Department of Homeland Security seeks custody of the defendant for the future purposes of arresting and commencing federal removal proceedings against the Defendant.”
Discussion
The State appeals the dismissal of the charges against Montes-Mata, arguing the district court erred in finding a violation of Montes-Mata’s statutory speedy trial rights. Specifically, the State contends Montes-Mata’s statutory speedy trial rights were not violated because after the county received the immigration detainer, Montes-Mata was no longer being held in-jail solely by' reason of the instant charges.
Montes-Mata argues the district court properly dismissed the charges against him because the State failed to try him within 90 days from the April 14, 2006, hearing at which the court granted his motion to withdraw his plea. Additionally, Montes-Mata contends the district court correctly concluded the immigration detainer did not require that he be held for immigration authorities.
Whether a defendant’s statutory speedy trial right was violated is a question of law over which we exercise unlimited review. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007).
Every person accused of a crime has a constitutional statutory right to a speedy trial under the Sixth'Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution. State v. Strong, 8 Kan. App. 2d 589, 591, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983). Kansas has adopted K.S.A. 22-3402 to “define and implement these constitutional guaranties to a speedy trial.” Strong, 8 Kan. App. 2d at 591. Under that statute:
' “If any person charged with a crime and held in jail solely by reason thereof shall-not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant . . . .” (Emphasis added.) K.S.A. 22-3402(1).
This 90-day time limit may be extended by certain statutorily-prescribed conditions, such as pending competency determination proceedings, the unavailability of material evidence, or because other pending cases do not permit the district court sufficient time to commence the trial. K.S.A. 22-3402(5). A defendant who is not being held “solely by reason” of the pending charges is not entitled to the protections of the 90-day time limit. Strong, 8 Kan. App. 2d at 591-93.
A defendant is not being held solely on the pending charges if separate criminal charges are pending against the defendant or the defendant is being held for a parole or probation violation. See State v. Noriega, 261 Kan. 440, 458-59, 932 P.2d 940 (1997), overruled in part on other grounds, State v. Mathenia, 262 Kan. 890, Syl. ¶¶ 2-3, 942 P.2d 624 (1997); State v. Hill, 257 Kan. 774, 778, 895 P.2d 1238 (1995); Strong, 8 Kan. App. 2d at 591-93, 596.
The State bears the responsibility to ensure that the defendant receives a speedy trial; a defendant need not “take any affirmative action to ensure that his or her right to a speedy trial is observed.” Adams, 283 Kan. at 369. However, any delays caused by the “application or fault” of the accused are not counted against the 90-day speedy trial period. Strong, 8 Kan. App. 2d at 595.
The parties, agree that Montes-Mata was held for 111 days prior to the district court’s dismissal of the petition — i.e., the period from April 14, 2006, when the district court permitted Montes-Mata to withdraw his plea, until June 1, 2007, when the district court dismissed the charges. This time period excludes the time in which the State’s interlocutory appeal of the suppression order was pending before this court. State v. White, 34 Kan. App. 2d 182, 183, 115 P.3d 785 (2005).
Whether an immigration detainer constitutes a pending charge under our speedy trial statute is a matter of first impression for the court. However, we find guidance in State v. Sanchez, 110 Ohio St. 3d 274, 853 N.E.2d 283 (2006), which thoroughly considered substantially the same issue raised by the State here.
In Sanchez, the defendant was arrested as the result of a traffic stop and charged with money laundering and possession of criminal tools. Within 5 days of her arrest, an immigration detainer was issued by ICE. 110 Ohio St. 3d at 275. After 89 days, Sanchez moved to suppress. After 92 days, Sanchez moved to dismiss the charges, alleging her speedy trial rights had been violated because her trial had not been commenced within 90 days of her arrest. 110 Ohio St. 3d at 276. The district court denied the motion, Sanchez appealed, and the Sixth Appellate District Court reversed, and vacated her sentence. The Ohio Supreme Court reversed the Sixth Appellate District Court and reinstated Sanchez’ conviction, finding that her motion to suppress had tolled the clock for speedy trial violations. 110 Ohio St. 3d at 276. However, the court also considered the impact of the immigration detainer on Sanchez’ speedy trial rights.
Ohio Rev. Code Ann. § 2945.71(C)(2) (Anderson 2008) provides that a person charged with a felony must be brought to trial within 270 days after their arrest. However, for purposes of computing time, “each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.” Ohio Rev. Code Ann. § 2945.71(E) (Anderson 2008). The remedy for a speedy trial violation in Ohio is the discharge of the defendant from further liability for the charged crimes. Ohio Rev. Code Ann. § 2945.73(B), (D) (Anderson 2008). However, Ohio’s triple-count provision applies only to those being held solely on the pending criminal charges, and not those who are being held for a parole or. probation violation or being held for separate criminal charges. See State v. Brown, 64 Ohio St. 3d 476, 479, 597 N.E.2d 97 (1992); State v. Martin, 56 Ohio St. 2d 207, 211, 383 N.E.2d 585 (1978).
In reaching this conclusion, the Sanchez court relied on 8 C.F.R. § 287.7(a) (2008), which it said
“serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” 110 Ohio St. 3d at 278.
The Sanchez court reasoned that the immigration detainer did not seek to hold Sanchez “in concurrent custody on previously adjudicated charges” while she awaited trial on the new charges, but only sought “to notify the State of Ohio that ICE may seek custody of Sanchez in the future.” 110 Ohio St. 3d at 280. Consequently, the court held the detainer did not nullify the triple-count provision within' Ohio’s speedy trial statute and the state had only 90 days in which to bring her to trial. 110 Ohio St. 3d at 279.
Unliké Ohio’s speedy trial statute, K.S.A. 22-3402 contains no triple-count provision. However, both statutes require a 90-day trial date for defendants jailed solely because of the pending charges. Moreover, the two statutes have the same remedy, i.e., dismissal of the charges. Accordingly, we find the Ohio court’s analysis in Sanchez persuasive here.
And, as in Sanchez, a plain reading of the immigration detainer leads' to the conclusion that it requests only that the Lyon County Sheriff s Department notify ICE prior to' Montes-Mata’s release. The document indicates that ICE has initiated an investigation “to determine whether [Montes-Mata] is subject to removal from the United States” and it requests that the sheriff hold Montes-Mata for a period not exceed 48 hours “to provide adequate time for ICE to assume custody of the alien.” The immigration detainer form contains other provisions which, had they been checked or selected, might have changed the outcome of this proceeding. For instance, the form could serve to notify a sheriffs office of: (1) a notice to appear or other charging document initiating removal proceedings; (2) an arrest warrant in removal proceedings; or (3) a deportation order or order of removal from the United States. However, these options were not selected here, and the options explicitly selected clearly state that ICE seeks notification only if Lyon County plans to release Montes-Mata.
The State suggests in its brief that the detainer in this case may be distinguished from the detainer in Sanchez because here the detainer contains several references to the term “hold.” However, this is an inaccurate representation of the record.
As the State conceded at oral argument, the immigration detainer form (I-247) does not contain numerous references to the term “hold.” Rather, the State apparently intended to refer to a one-page document which is included in the record immediately following the immigration detainer form. That document indicates at the top of the page in large, bold letters: “INS HOLD.” Handwritten information on the document identifies the name and contact information for the “INS contact person” as well as the time INS was contacted. That notation indicates that INS was contacted by someone from the Lyon County Sheriff s Department on February 6,2006. The word “HOLD” is also printed three times across the bottom of the page.
However, the State conceded at oral argument that the record contains no indication as to who prepared this document or its significance. Thus, it is impossible to discern from the record whether the one-page document was prepared by someone at the Lyon County Sheriff s Department or was included with the original detainer notice. Further, the record reveals that this issue was not argued to the district court, and the district court made no mention of the one-page document in its decision. Thus, we have not taken the document into consideration in reaching our decision in this case.
We conclude the immigration detainer issued to the Lyon County Sheriff s Department merely expressed ICE’s intention to seek future custody of Montes-Mata and requested notice from Lyon County prior to terminating Montes-Mata’s confinement. The detainer did not, however, place a hold on Montes-Mata, and he continued to be held in custody solely by reason of the instant charges. See K.S.A. 22-3402.
Consequently, the immigration detainer issued by ICE did not vitiate Montes-Mata’s right to be brought to trial within 90 days under K.S.A. 22-3402, and we affirm the district court’s dismissal of the charges based on a violation of Montes-Mata’s statutory speedy trial rights.
Affirmed. | [
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Greene, J.:
The State appeals the district court’s dismissal with prejudice of criminal charges against Michael S. Boehmer of driving under the influence, driving while suspended, and transporting an open container. The State argues the circumstances did not merit the dismissal and the district court abused its discretion. Concluding the State’s appeal is untimely as to one charge, we have no jurisdiction and dismiss this aspect of the appeal. As to the remaining charges where the appeal was timely, we reverse and remand for furtiher proceedings.
Factual and Procedural Background
Boehmer was originally charged in April 2007 with driving under the influence, driving while suspended, and transporting an open container. At a preliminaiy hearing in May 2007, Boehmer moved to dismiss the charge of driving under the influence because the charging document was materially defective. The State requested an opportunity to amend, but the district judge granted Boehmer’s motion, stating:
“Interlineation or amendments are fine for small errors, you know, such as correcting a date or a location or a spelling. I’d even allow them for correcting a victim’s name, to change an entire victim’s name. But, you know, the vehicle that brings this man to court needs to be sufficient on its face. And that’s like allowing you to — it just is not permissible at this stage. So I’m going to sustain the defense’s objection.
“I believe they can appeal it, yes. And I’m just going to say this.
“I know this is a heart breaking thing for you. But you have learned a lesson that you will never ever, ever forget in your career as an attorney. Those are the best learned lessons. And I’ll bet you you never ever go into court again without having read the information.
“The motion is sustained. The case is — Count One is dismissed. The two remaining counts. I’m not making any findings whether or not it can be refiled or not. That’s something that will be up to the District Attorney’s office, and possibly subject to a motion at a later time.”
Following the dismissal, Boehmer’s counsel told the court Boehmer was prepared to plead to the two remaining counts. After some discussion, the State moved to dismiss the case “and contemplate refiling it.”
The record contains two orders reflecting the outcome of the proceedings from the May hearing. The first is a “motion minute sheet” indicating that Boehmer’s motion to dismiss count one was “sustained” because “[c]ourt finds that count'one of the complaint/ information fails to set forth/allege a criminal offense. Dismissed w/ prejudice.” The second is a journal entry form for prehminary examination listing all three counts and stating only “[dismissed— motion to dismiss granted.” Both orders were filed on May 11, 2007.
The State subsequently refiled the same three charges against Boehmer under case No. 07CR1710. Boehmer moved to dismiss, arguing that case No. 07CR1710 ignored the district court’s dismissal of case No. 07CR1368 and that case No. 07CR1710 should be dismissed with prejudice. The district court held a hearing on the matter and granted the motion to dismiss with prejudice, finding that the previous case, case No. 07CR1368, had been dismissed with prejudice. At this hearing, the district judge stated:
“But my ruling was that it was dismissed with prejudice. And if I was unclear in what I said, then I apologize for that, if I somehow led you to believe that it was okay. But that my intent in — it says right here on the minute sheet, Laura was writing it down as I was speaking, that I dismissed the case with prejudice based on the case law provided. ...
“My intent at the time was to dismiss it with prejudice. I did dismiss it with prejudice, and I apologize for leading you to believe otherwise.”
The State appeals the dismissal of case No. 07CR1710 with prejudice.
Was the State’s Appeal Timely From the Dismissal Order of May 9, 2007?
Boehmer suggests we have no jurisdiction to address the dismissal of count one, driving under the influence, that was ordered on May 9, 2007, because the State failed to timely appeal that decision. Whether appellate jurisdiction exists is a question of law. State v. Thomas, 283 Kan. 796, 805, 156 P.3d 1261 (2007).
The question of jurisdiction is dependent on the nature of the dismissal effected by the court on May 9, 2007. The nature of the district court’s dismissal is a question of law over which an appellate court, has unlimited review. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
A district court may dismiss a criminal complaint with prejudice if the interests of justice require such an action, but such power must be exercised with great caution and only in cases where no other remedy would protect against abuse. State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982); State v. Funk, 27 Kan. App. 2d 712, 713, 8 P.3d 32 (2000). Where the dismissal is with prejudice, however, the judgment is final; when such a dismissal occurs in a criminal case, the dismissal is final and appeal-able, but the dismissed charge may not be refiled.
Here, there is really no question as to the district judge’s intent. The motion wás for dismissal with prejudice, and it was sustained. The judge’s comments from the bench stating, “I believe they can appeal it, yes” imply an intent for the dismissal to be with prejudice, and the motion minute sheet certainly expresses an unequivocal intent that the dismissal was “with prejudice.” If there remained any uncertainly about this intent, the judge again clarified its intent in the July hearing in stating, “But my ruling was that it was dismissed with prejudice.” We are convinced that count one was intended to be and was in fact dismissed with prejudice.
The dismissal of count one with prejudice was effected on May 9, 2007. The State’s notice of appeal was filed July 20, 2007, more than 30 days from the entry of final judgment on that count. The State argues on appeal that we should find excusable neglect and accept a belated appeal under K.S.A. 60-2103(a), because the prosecutor was unaware of the language employed by the court on the motion minute sheet. We disagree for the same reasons cited above; there was no question about the court’s intent to dismiss with prejudice. These are not circumstances where we have applied the doctrine of excusable neglect under K.S.A. 60-2103(a).
The State’s appeal was untimely, and we lack jurisdiction over the dismissal of count one. State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001).
Did the District Court Abuse Its Discretion in Dismissing the Remaining Counts With Prejudice Upon Their Refiling?
We review a district court’s dismissal of criminal charges for an abuse of discretion. State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 (1991). Judicial discretion is abused when the court has acted in a manner that is arbitrary, fanciful, or unreasonable. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
The State argues the district court abused its discretion -in dismissing the remaining two counts of case No. 07CR1710 because the reason cited by the court — that these counts had been dismissed with prejudice — is not born out by the record. We agree.
Based upon the same bench comments and written motion minute sheet quoted and discussed above, it is clear that the initial dismissal of these counts was intended to be without prejudice. In fact, at the initial motion hearing, the district judge specifically stated with respect to the two remaining counts that “I’m not making any findings whether or not it can be refiled.” But at the second hearing, it is apparent that the district court failed to recognize that it had made a distinction in the nature of dismissal among the various counts. We conclude that the. singular reason cited by the court for the dismissal of remaining counts in the subsequent hearing was erroneous.
As we have noted above, our Supreme Court has suggested caution should be used in dismissing a criminal charge with prejudice and that it should be exercised “only in cases where no other remedy would protect against abuse.” State v. Crouch & Reeder, 230 Kan. at 788. Where the only reason given by the district court for a dismissal with prejudice has been shown to be erroneous, the dismissal with prejudice was an abuse of discretion.
For this reason, we conclude the dismissal with prejudice of the remaining counts, specifically the charges of driving while suspended and transporting an open container, must be reversed. We remand for reinstatement of diese charges and for further proceedings consistent with this opinion.
Dismissed in part, reversed in part, and remanded with directions. | [
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Davis, J.:
This is an appeal by the Kansas Workers’ Compensation Fund (Fund) from the judgment of the district court finding that respondent was not engaged in an agricultural pursuit. K.S.A. 1985 Supp. 44-505(a)(1).
Claimant Marvin Witham was a 30-year-old male hired by respondent Mary Anne Parris in March 1981. Claimant’s job was to train horses. His duties included breaking, feeding and grooming horses; traveling with respondent to horse shows; mending fences; and helping with the general upkeep of the stalls and grounds. At the time of his injury on February 25, 1982, claimant was holding a horse while a veterinarian took a blood sample. Claimant’s leg was broken when the horse panicked and kicked him.
Respondent started her business in November 1980, when she purchased twenty acres of ground near Wichita, Kansas. Of the twenty acres, approximately five acres were taken up by corrals, barns and exercise areas. None of the acreage was in cultivation, although respondent had sowed the land with brome seed to use as pasture for the horses. Since there was not enough grass to sustain life, the horses primarily ate feed which was purchased.
Respondent testified that her business consisted of the boarding and training of horses for a fee. She stated that she participated in horse shows all over the country and that the horses she took to shows belonged to other people. She also raised, bred, sold, bought and traded horses as part of her regular business. At the time of claimant’s accident, respondent had 45-50 horses on her property, of which she owned less than five percent.
Respondent further testified that she had attempted to breed some sheep, but sold them after several died. Respondent also kept a calf on the land which she butchered and consumed. Respondent had planned to use the. sheep for personal consumption.
On January 19, 1984, an award was entered by administrative law judge Steven Howard to the effect that claimant was not entitled to workers’ compensation benefits because respondent was engaged in an “agricultural pursuit” pursuant to K.S.A. 44-505(a)(l). On March 29, 1984, the order of the director of Workers’ Compensation was filed modifying the administrative law judge’s award in holding the claim compensable. The director further found that the Fund was required to pay the award pursuant to K.S.A. 1985 Supp. 44-532a since there was no insurance carrier and respondent was financially unable to pay compensation. On January 29, 1985, the district court upheld the director’s order in all respects, finding that respondent was not engaged in an “agricultural pursuit or employment incident thereto” and awarded claimant benefits to be paid by the Fund. The Workers’ Compensation Fund timely appeals.
The sole issue for review is whether the district court erred in finding that respondent was not engaged in an “agricultural pursuit” at the time of claimant’s injury. The relevant statute is K.S.A. 1985 Supp. 44-505(a)(1), which provides:
“[T]he workmen’s compensation act shall apply to all employments wherein employers employ employees within this state except that such act shall not apply to: (1) Agricultural pursuits and employments incident thereto . . . .”
The issue raised by the Fund is a question of fact and thus the scope of review by the appellate court is to determine whether the district court’s judgment is supported by substantial evidence. The evidence is viewed in the light most favorable to the party prevailing below and if there is substantial evidence to support the district court’s factual findings, the appellate court has no power to weigh evidence or reverse the final order of the district court. Dieter v. Lawrence Paper Co., 237 Kan. 139, 145, 697 P.2d 1300 (1985); Box v. Cessna Aircraft Co., 236 Kan. 237, 241, 689 P.2d 871 (1984); Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981); Heer v. Hankamer Excavating Co., 184 Kan. 186, 187, 334 P.2d 372 (1959); Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 334-35, 678 P.2d 178 (1984). “ ‘The term “substantial evidence” when applied to workers’ compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved.’ ” Crabtree v. Beech Aircraft Corp., 229 Kan. at 442.
We have reviewed the facts of this case in accordance with the above standard and conclude that there was substantial evidence to support the district court’s findings.
At the same time, we have some difficulty with the trial court’s definition of “agricultural pursuit.” We note that the Kansas Legislature chose not to enact a statutory definition of “agricultural pursuit,” leaving Kansas courts to determine the question on a case by case basis. The definition of the trial court includes the traditional meaning of agriculture and for the purposes of this case its conclusion is well supported.
The 1974 legislative amendments to the Workmen’s Compensation Act discarded the traditional hazardous/nonhazardous distinction used in workers’ compensation cases. After 1974, the courts were left without any tangible guidance for determining whether an employer was engaged in an agricultural pursuit. We recognize the need for guidelines in our case by case analysis of whether a specific pursuit is an agricultural pursuit under the provisions of K.S.A. 1985 Supp. 44-505(a)(l).
The Idaho Supreme Court has adopted a framework within which to analyze whether an employer is engaged in an agricultural pursuit. In Tuma v. Kosterman, 106 Idaho 728, 730, 682 P.2d 1275 (1984), the court concluded that the trier of fact must look at the following factors in arriving at a determination of whether an employer is engaged in an agricultural pursuit:
“1) ‘the general nature of the employer’s business’;
“2) ‘the traditional meaning of agriculture as the term is commonly understood’; and,
“3) ‘that each business will be judged on its own unique characteristics.’ ”
The court, in Tuma, adopted the principles of Lesperance v. Cooper, 104 Idaho 792, 663 P.2d 1094 (1983).
While these factors in Idaho are used in conjunction with a legislative definition of agricultural pursuit, the factors, without legislative definition, have merit. In this state, where agriculture predominates the economy, an analysis incorporating the traditional meaning of agriculture, together with a general and specific consideration of the pursuit or business questioned, provides the necessary guidelines for a determination on a case by case basis as to whether the pursuit is essentially agricultural under the provisions of K.S.A. 1985 Supp. 44-505(a)(1).
For these reasons, we adopt the three Tuma factors recognizing that it is not our function to determine for future cases which arise whether an agricultural pursuit is established. The factors adopted herein offer flexibility and provide a framework for a substantive analysis on a case by case basis whether a specific pursuit is essentially an agricultural pursuit under the provisions of K.S.A. 1985 Supp. 44-505(a)(l).
In applying the first factor to the case at bar, the general nature of respondent’s business is boarding and showing other people’s horses. Although she did participate in breeding horses, which might be considered an agricultural pursuit, it appears that it was limited to providing stud service rather than breeding her own horses to sell to the public.
As to the second factor, the traditional meaning of agriculture would probably not include boarding and showing other people’s horses. It does not appear that showing and boarding horses would be typical of an ordinary farmer or in any way related to an agricultural pursuit.
Finally, in examining the unique characteristics of respondent’s business, it is apparent that she is involved in a variety of horse-related business activities. Because respondent was primarily involved in a. commercial enterprise which entailed providing services for other people’s horses, it appears that the work being done by claimant while he was injured (caring for a horse being boarded) is covered under the Workmen’s Compensation Act.
Both the Fund and the claimant concede that there are no Kansas cases which directly decide the issue of whether or not boarding and training horses is considered an “agricultural pursuit.” The Fund cites several other jurisdictions which have held that boarding horses is an agricultural business, but relies primarily on a Kentucky case in support of its position. In Fitzpatrick v. Crestfield Farm, Inc., 582 S.W. 2d 44 (Ky. App. 1978), the Kentucky court of appeals held that the boarding and training of horses is an activity generally recognized as an agricultural pursuit. The Fund argues that Kansas should adopt this approach and include the training of horses in the definition of agricultural work.
The trial court correctly distinguished the Kentucky case from the case at bar, stating that the Kentucky Legislature specifically included in the definition of agricultural pursuit “the raising of livestock for food products and for racing purposes.” 582 S.W.2d at 46. It further stated that the Kansas Legislature did not enact a statutory definition of agricultural pursuits, instead leaving the determination to the courts on a case by case basis. The court also pointed out that horse racing is a part of Kentucky’s economy, which is not true in Kansas.
We note that the results from the application of the three factors above and the conclusion of the trial court are consistent with Kansas law dealing with agriculture. K.S.A. 47-1402(c) defines livestock as including horses, but only if “used in and for the preparation of meat or meat products.” In addition, K.S.A. 47-1502 provides that the feeding of livestock shall be construed to be an agricultural pursuit. Since respondent was not going to use the horses for meat, boarding and feeding them would not be considered an agricultural pursuit under Chapter 47.
It is clear that respondent was a business woman and not involved in “agricultural pursuits and employments incident thereto.” There was substantial evidence to support the district court’s findings. The order of the district court holding the Workers’ Compensation Fund liable for claimant’s injury is affirmed. | [
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Brown, J.:
Plaintiff brought a civil suit against defendants, parents of three minor children, pursuant to K.S.A. 38-120, alleging: (1) The children willfully and maliciously damaged and destroyed plaintiff s barn by starting a fire; and (2) the children’s conduct was due to parental neglect. The jury found for the plaintiff and the defendants appeal the trial court’s denial of their motions for summary judgment and directed verdict.
Defendants contend that the trial court should have granted their motions for summary judgment because the minor children are presumed, as a matter of law, to be incapable of committing a willful or malicious act. We disagree and adopt the statement of the Kansas Supreme Court in Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659 (1960):
“[I]thas been held that there is no precise age at which a child may be said, as a matter of law, to have acquired such knowledge and discretion as to be held accountable for all his actions to the same extent as one of full age, and the question of capacity of a particular child at a particular time in avoiding a particular danger is one of fact, falling within the province of a jury to determine. [Citation omitted.]”
The motions for summary judgment were properly denied.
Defendants next contend that the trial court should have granted their motions for directed verdict at the close of plaintiff s case because the plaintiff s evidence did not support his allegation that the children willfully or maliciously damaged or destroyed the property of the plaintiff.
The Kansas Supreme Court, in Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), stated the scope of review that applies to the lower court’s denial or grant of a directed verdict motion:
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. [Citations omitted.] The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. [Citation omitted.] Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. [Citations omitted.]”
Therefore, we must look at the facts and evidence and draw all inferences in favor of plaintiff in determining whether reasonable minds could reach different conclusions on the question of whether the three minor children acted willfully or maliciously.
Before looking at the evidence, it must be decided what the legislature intended by the words “willfully or maliciously.” The majority of jurisdictions require both the act and the resulting injury to be intentionally done, i.e., the children intended to start a fire and intended to burn down plaintiff s barn. Sutherland v. Roth, 407 So. 2d 139 (Ala. Civ. App. 1981); Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W. 2d 301 (1982); Crum v. Groce, 192 Colo. 185, 556 P.2d 1223 (1976); McKinney v. Caball, 40 Mich. App. 389, 198 N.W. 2d 713 (1972); Peterson v. Slone, 56 Ohio St. 2d 255, 383 N.E. 2d 886 (1978); Annot., 8 A.L.R. 3d 612.
The definitions of “willful” and “malicious” found in PIK Civ. 2d follow the above analysis that both the act and the injury/damage must be intended:
“An act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another is a wilful act.” PIK Civ. 2d 3.03.
“Malice is a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse.” PIK Civ. 2d 3.04.
Therefore, K.S.A. 38-120 requires both the act and its harmful result to be intended before parental liability will be imposed.
The next question is whether the trial court properly denied defendants’ motions for directed verdict, i.e., whether reasonable minds could reach different conclusions concerning whether the three minor children intended to start a fire and intended to burn down the plaintiff s barn.
After fully reviewing the transcript of the trial, we are of the opinion that, while there was evidence that the children willfully and intentionally lit matches and small piles of hay on fire, they believed the fires were extinguished and the evidence fails to prove the children intended to burn down plaintiff s barn. The trial court should have granted the defendants’ motions for directed verdict.
Reversed and remanded with directions to enter judgment for the defendants. | [
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Meyer, J.:
This appeal involves a contempt proceeding arising out of a temporary injunction issued to enjoin defendants from competing with plaintiffs, their former employers.
Plaintiffs, First American Investment Group, Inc., and First American Investment Group Service Division, Inc., are Kansas corporations engaged in the business of buying and selling “jumbo” ($100,000.00 or over) certificates of deposit for a broad range of investors. Defendants are former employees of the plaintiffs, and held the title of “Account Executives.” As account executives, defendants were to solicit new investors and “roll over” the investments of existing customers.
Between the last week of July 1985 and the first week of August 1985, defendants left the employ of First American and went to work for Goldstone Investment Corporation. Goldstone Investment Corporation engages in the same type of money-brokering activity as First American.
On August 12, 1985, plaintiffs commenced an action against defendants seeking a temporary and permanent injunction to restrain defendants from using plaintiffs’ customer lists, confidential information, and trade secrets which defendants acquired while working for the plaintiffs. Further, plaintiffs sought injunctive relief to restrain defendants from “operating or engaging in” a business competitive with the plaintiffs. In essence, plaintiffs sought the enforcement of the following provisions of the employment contracts of defendants Henry, Lucas, and Meens, which provided:
“[First American] has developed specialized customer lists of Investors and Depositories, knowledge, methods, and techniques for obtaining engagements by and providing services to Investors and Depositories. The parties agree that such knowledge, methods, and techniques . . . are unique and confidential, and constitute valuable proprietary rights and trade secrets of First American, Kansas.”
“[T]he Confidential Information constitutes important and confidential trade secrets which materially affect the successful conduct of the Business of the Company and its goodwill.”
“Employee agrees that any relationships developed between the Employee and the Investors and Depositories . . . are developed at the sole expense of the Company and any information obtained by Employee concerning the Investors or Depositories is obtained solely within the employ of Company and is the sole and exclusive property of the Company.”
“Employee will not . . . either directly or indirectly use or divulge, disclose or communicate the Confidential Information to any person, firm or corporation, whether within or outside of the Territory.”
“Employee will not undertake any employment or activity competitive with the Business where his duties would require or involve his revealing or otherwise using the Confidential Information.”
“For a period of one (1) year following the termination of Employee’s employment for any reason, Employee shall not undertake any activity competitive with or similar to the Business . . . .”
Plaintiffs’ petition alleged that defendants had violated these and other terms of the employment contracts by working for Goldstone Investment Corporation and engaging in the same type of work or activity that they were engaged in while working for plaintiffs.
On August 12, 1985, the district court issued an ex parte restraining order temporarily enjoining defendants from directly or indirectly providing services to investors in connection with the purchase and sale of certificates of deposit and from using or communicating to third parties any of the confidential information, trade secrets, and confidential name lists defendants acquired while working for plaintiffs. Upon defendants’ motion, the district court thereafter modified the T.R.O. to restrain defendants from, inter alia, using any lists, written material, or documents generated by the plaintiffs and from conducting or soliciting business from any customer with whom they did business while employed by the plaintiffs.
On August 22 and 23, 1985, the district court heard plaintiffs’ motion for a temporary injunction. After receiving evidence regarding plaintiffs’ motion, the district court determined that the anti-competition clause in the parties’ employment agreement was overbroad and modified the covenant as follows:
“[D]efendants should be enjoined for one year from contacting customers with whom they have dealt while under the employment of the plaintiff. The injunction applies only to individual customers, not depositories, since depositories are matters of public record and cannot be considered confidential information.”
The temporary injunction applied only to defendants Henry, Lucas, and Meens; the court expressly excluded defendant Gordinier from the provisions of its order. Defendant Accardi was made a party to the temporary injunction by the district court on September 25, 1985.
On October 11, 1985, plaintiffs filed a motion for an order to show cause why the defendants should not be held in contempt of court for violating the temporary injunction. The plaintiffs alleged that defendants had contacted customers with whom they had dealt while under the employment of the plaintiffs.
The district court heard plaintiffs’ motion on October 22, 1985. During the hearing, defendant Lucas was dismissed from the case, and the court continued the matter until December 11, 1985.
The evidence was undisputed that the remaining defendants had contacted depositories who were customers of the plaintiffs at the time the defendants left plaintiffs’ employ. However, there was no evidence that defendants had contacted “individual” investors. Again, the court’s temporary injunction stated that “[t]he injunction applies only to individual customers.” The defendants therefore contended that they had not violated the temporary injunction because they had not contacted any “individual” investors. The plaintiffs, on the other hand, read the injunction to restrain the defendants from contacting any former customer of plaintiffs, including depositories, and asserted that defendants had violated the injunction and should be held in contempt. In this regard, we note that plaintiffs had no “individual” customers, and defendants were aware of this fact.
The court concluded that its initial injunction was ambiguous and modified its language to restrain the defendants from “contacting any customer, depository, organization or individual, with whom they dealt while under the employment of the plaintiffs,” for one year from December 20, 1985. The court also stated that because the original temporary injunction was ambiguous, the court could not find any willful violation of its orders, and concluded that the defendants were not in contempt of court. Both parties have appealed.
Defendants first contend that, because the Secretary of State forfeited plaintiffs’ articles of incorporation on July 15, 1985, for failure to pay delinquent taxes, the district court lacked subject matter jurisdiction to issue the temporary injunction. We disagree.
K.S.A. 17-6801 et seq. governs the dissolution of corporations and the disposition of corporate assets upon dissolution. K.S.A. 17-6807 provides for the limited continuation of corporate existence following dissolution. That statute provides, in pertinent part:
“All corporations, whether they expire by their own limitation or are otherwise dissolved, including revocation or forfeiture of articles of incorporation, . . . shall be continued, nevertheless, for the term of three (3) years from such expiration or dissolution or for such longer period as the district court in its discretion shall direct, bodies corporate for the purpose of prosecuting and defending suits, whether civil, criminal, or administrative, by or against them, and of enabling them gradually to settle and close their business, to dispose of and convey their property, to discharge their liabilities and to distribute to their stockholders any remaining assets, but not for the purpose of continuing the business for which the corporation was organized.” (Emphasis added.)
During the three-year period following a corporation’s dissolution, the corporation may not conduct the business for which it was originally incorporated. It may conduct only such business as is “incidental and necessary to . . . wind up.” Patterson v. Missouri Valley Steel, Inc., 229 Kan. 481, 489, 625 P.2d 483 (1981) (quoting with approval Johnson v. Helicopter & Airplane Services Corp., 404 F. Supp. 726, 731 [D. Md. 1975]). Defendants contend that because plaintiffs’ injunction action relates to the enforcement of covenants not to compete in defendants’ employment contracts, plaintiffs’ action to enforce these covenants was not business “incidental and necessary” to winding up the business. Defendants maintain the injunction action constituted a protection of plaintiffs’ business, which could no longer continue under the provisions of the corporate survival statute, K.S.A. 17-6807. We are not persuaded.
At common law, the dissolution of a corporation was its civil death which terminated the corporation’s capacity to sue and be sued. Patterson, 229 Kan. at 489 (quoting Johnson, 404 F. Supp. at 730). The corporate survival statute, K.S.A. 17-6807, prevents the abatement of a dissolved corporation’s right of suit, and is therefore remedial in nature. As such, the survival statute should be liberally construed, so that its purpose may be accomplished. See, e.g., Squires v. City of Salina, 9 Kan. App. 2d 199, 202, 675 P.2d 926 (1984).
Our liberal construction of K.S.A. 17-6807 results in the following conclusions. A corporation’s continued existence is limited when it is dissolved, Patterson, 229 Kan. at 489 (quoting Johnson, 404 F. Supp. at 731). During the three years following dissolution, a corporation may not conduct the business for which it was originally incorporated. K.S.A. 17-6807. However, the corporation does have the capacity, during the three-year period, to sue or be sued. K.S.A. 17-6807. Further, the corporation may gradually settle and close its business. According to the Johnson case, “[t]he power given to the corporation to dispose of its affairs during this period expressly includes the capacity to sue and be sued.” Johnson, 404 F. Supp. at 731. Further, our supreme court held in Patterson that “[a] Kansas corporation may sue or be sued during the three-year wind-up period immediately following its dissolution, whether voluntary or involuntary.” Patterson, 229 Kan. at 490.
Nonetheless, defendants contend that the capacity of a forfeited corporation to sue is strictly limited to actions which are necessary to wind up the corporation’s business affairs, and does not extend to actions to enforce anti-competitive clauses. We disagree.
The parties herein stipulated that the customer lists and the relationships developed between defendant employees and the investors and depositories were developed at the sole expense of the plaintiffs and were the sole and exclusive property of the plaintiffs. It is obvious these items possess value, and the defendants’ alleged misuse of the corporation’s properties could tend to devalue the corporation. It would not serve justice or the express wording of K.S.A. 17-6807 to require a corporation to sit idly by while its property is taken, without the ability to prevent the action. Certainly, a corporation has the right to preserve its property rights following dissolution, and K.S.A. 17-6807 serves this purpose. We conclude the trial court had jurisdiction to issue the injunction.
Defendants further contend the district court erred in ordering that its modified injunction run for one year from the date the modified order was entered, rather than for one year from the date the defendants terminated their employment with the plaintiffs, as bargained for by the parties in the employment contract. We agree that the trial court erred, as analyzed below.
At the outset, we believe that it is important to note that the parties herein expressly agreed in the employment contract that “[f]or a period of one (1) year following the termination of Employee’s employment for any reason, Employee shall not undertake any activity competitive with or similar to the Business, whether as an officer, employee, agent, independent contractor, partner, shareholder, or principal of any corporation, partnership, proprietorship, firm, association, person, or other entity.” The defendants terminated their employment with the plaintiffs sometime in late July or early August of 1985. Thus, according to the express language of the parties’ contracts, the proscription against competition would have ended one year from that time.
However, the trial court, after modifying the terms of its original injunction in its December 20, 1985, order, decided that the injunction should run one year from that date, thus lengthening the duration of the parties’ covenant beyond that to which they had originally agreed by approximately five months. We conclude this was error.
First and foremost, while the trial court has the equitable power to enforce anti-competition clauses to the extent necessary to insure the protection contemplated by the parties, cf. Foltz v. Struxness, 168 Kan. 714, Syl. ¶ 3, 215 P.2d 133 (1950), we know of no authority allowing a trial court to extend the effect of such covenants, especially, as in this case, where the party restrained has been found to have been in compliance with the court’s initial order.
Secondly, we are not persuaded by the fact that the trial court found its original injunction ambiguous, and that it could “start over” by issuing a new injunction with a one-year duration. The trial court admitted that it probably did not understand the case as well as it should have, and we presume that its lack of understanding caused the court to issue the ambiguous order. However, we do not believe the trial court’s lack of understanding should result in the defendants being punished by extending the injunction imposed upon them. The trial court extended the duration of the injunction “to protect . . . the integrity of the Court.” We believe that the court erred in doing this at the expense of the defendants herein.
The one-year period following the termination of the defendants’ employment was a provision specifically bargained for by the parties. Further, considering the month-to-month rollover of certain accounts, the plaintiffs needed protection from the loss of those accounts immediately following the termination of defendants’ employment. In an effort to protect the plaintiffs, the trial court extended the injunction for the five months during which the court’s initial injunction was in effect. However, the harm that the anti-competition clause sought to prevent had already been suffered by the plaintiffs; the court’s extension of the injunction did nothing additional to protect the plaintiffs. The only true “protection" plaintiffs could obtain for the five months during which the court’s initial ambiguous injunction was in effect would be in the form of an action for breach of contract, which, we understand from oral argument, is contemplated by the plaintiffs. However, the court’s extension of an injunction because of the ambiguity created by its own order, we believe, was error. Consequently, we conclude that the trial court’s injunction order must be reversed and the case remanded for proceedings consistent with this opinion.
The parties have raised several other issues concerning the trial court’s December 20, 1985, order, relating to whether the trial court erred in finding the defendants not guilty of contempt of the initial injunction and to the court’s failure to award attorney fees. It would serve only to lengthen this opinion to discuss these issues in depth, and we conclude that the trial court did not abuse its discretion in finding the defendants not guilty of contempt of the trial court’s initial injunction. Further, because the trial court made no findings with respect to the defendants’ request for attorney fees, and no objection to this omission appears in the record, the omission in the trial court’s findings presents nothing for appellate review. Green v. Geer, 239 Kan. 305, 310-11, 720 P.2d 656 (1986).
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Rees, J.:
This is a wrongful attachment action brought against the principal and surety on a statutory bond. Plaintiff Ron P. Fink seeks to recover on an attachment bond the damages he sustained when his property was seized pursuant to an order of attachment issued at the direction of defendant Jerry Allen in an underlying action brought by Allen against one Robert Gray and to which Fink was not a party. The district court granted judgment in favor of Fink against Allen’s surety on the bond, United States Fidelity. & Guaranty Life Insurance Company (USF&G). USF&G appeals.
The dispositive issue for our resolution is whether, under K.S.A. 60-705(a), the surety on an attachment bond is liable for payment of damages by reason of the wrongful attachment of property of one who is neither a named obligee nor a party to the underlying action in which the bond is filed and the order of attachment is issued. We hold it is not, and reverse.
The bond executed by USF&G in Allen’s case against Gray for the recovery of an indebtedness provided that “Allen shall pay . . . Gray all damages which . . . Gray may sustain by reason of the attachment, if the Order be wrongfully obtained.” That language parrots the language of the statute, K.S.A. 60-705(a), which provides:
“When a bond is required, the bond shall be executed by the plaintiff and one or more sufficient sureties in a sum double the amount of plaintiff s claim ... to the effect that the plaintiff shall pay to the defendant all damages which the defendant may sustain by reason of the attachment if wrongfully obtained . . . .” (Emphasis added.)
In this case, USF&G argues to us and argued below that third parties may not recover on the attachment bond by virtue of the plain language of the bond and of K.S.A. 60-705(a). Fink counters that K.S.A. 60-705(a) does not say third parties cannot recover, and argues the policy of the statute is to secure payment to any party injured by wrongful attachment. The parties respectively malign and acclaim the case relied on by the district court, Bratton v. McReynolds, 125 Kan. 665, 266 Pac. 31 (1928). We agree with USF&G.
A bond is a contract the meaning of which is to be ascertained in the same manner as the meaning of any other contract and within that meaning, the surety is bound to the extent it has agreed to be bound. Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 76, 415 P.2d 236 (1966). When a statute requires a bond to be given, and a bondsman undertakes to furnish it, the obligation of the bond imposed by the statute is read into the terms of the bond, and the bond must be interpreted in the light of the statute. Bartley v. Bartley, 171 Kan. 465, 233 P.2d 735 (1951); Ellsworth v. Hurt, 158 Kan. 232, 233, 146 P.2d 365 (1944). Statutory bonds may impose additional liability on parties, but as such they cannot be extended beyond the fair import of the statutory terms. Wells v. Mehl, 25 Kan. *205, *206 (1881).
Clearly, the risk USF&G undertook by the language of the bond it executed was to insure the obligation of Allen for wrongful attachment damages sustained by Gray, not by Fink. Fink does not claim that USF&G and Allen intended the bond to cover Fink’s damages, or that USF&G itself counseled, directed or ratified Allen’s conduct in wrongfully obtaining the attachment order. See Bratton v. McReynolds, 125 Kan. 665 (case remanded for new trial on issues of what parties to attachment bond intended and whether principal and surety counseled sheriffs conduct). Likewise, K.S.A. 60-705(a) by its plain language requires only that the attachment bond inure to the benefit of the defendant in the action in which the bond is filed and the attachment order is issued, or in this case, Gray. In light of the unambiguous terms of the statute, we are unpersuaded by Fink’s argument that as a policy matter, all third parties should be allowed to recover against the attaching plaintiffs surety. Indeed, the best evidence of the legislature’s intent appears in the “plaintiff” and “defendant” language used consistently throughout the statutory attachment scheme. K.S.A. 60-701 et seq. In addition, we observe the Bratton case, on which Fink relies, does not extend liability against the surety for the benefit of third parties; the party damaged by the wrongful attachment in Bratton was not a third party but a co-defendant to the action in which the attachment order was issued.
Of course, a third party like Fink whose property has been wrongfully attached has a cause of action for damages against the attaching plaintiff, the principal on the bond. See, e.g., Braun v. Pepper, 224 Kan. 56, 60, 578 P.2d 695 (1978). However, for us to judicially extend the surety’s liability to include uncontractedfor liability for payment of damages sustained by third parties is unwarranted in light of the plain language of K.S.A. 60-705(a). We therefore hold that where, as here, a party has executed a statutory attachment bond as surety and has not otherwise contracted to undertake liability for payment of damages sustained by one not a party to the action in which the bond is filed and the attachment order is issued, that third party may not recover on the bond its damages sustained by reason of wrongful attachment.
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Meyer, J.;
In this juvenile offender adjudication under the Kansas Juvenile Offenders Code-(K.S.A. 1984 Supp. 38-1601 et seq.), respondent C.A.D. appeals from the court’s amendment of its original order of restitution imposed pursuant to K.S.A. 1984 Supp. 38-1663(h).
The facts of this action were stipulated by the parties involved as follows.
On June 15, 1984, a complaint was filed in the Juvenile Department, District Court of Sedgwick County, charging respondent with one count of aggravated kidnapping, a class A felony, contrary to K.S.A. 21-3421. The respondent denied the charge at his initial appearance on July 3, 1984, and the matter was tried before the district court on July 19 and 20, 1984. The court found that the respondent had committed the acts alleged in the complaint, and adjudged respondent a juvenile offender.
The matter was set for dispositional hearing to be held on August 30, 1984. Prior to that hearing, the victim of the offense and her parents filed a claim with the restitution officer of the court, seeking restitution of $534.74, which was the amount of expenses incurred by the victim prior to the dispositional hearing. At the dispositional hearing, the respondent was placed on probation, with one condition of probation being payment of one-half of the restitution, or $267.37. The remainder of the restitution was to be paid by a co-respondent.
On November 21, 1984, the restitution officer of the court filed a motion for review, based on a claim made by the victim and her parents alleging that additional expenses of $651.51 had been incurred since the time of the dispositional hearing. The restitution officer requested that the respondent be ordered to pay one-half of the additional expenses as a condition of probation.
This matter was set for hearing on December 13, 1984. In the meantime, a new complaint was filed, charging the respondent with one count of battery. This matter was set for hearing on December 13 as well. At that hearing, the respondent pleaded no contest to the new complaint. The court then took up the matter of the restitution officer’s request for additional restitution.
The respondent objected to any amendment of the amount of restitution originally ordered on the following grounds:
1. The respondent believed that the court was without authority to amend the amount of restitution after a judgment had been entered in the matter;
2. The respondent had not been permitted to examine documents submitted to the restitution officer to verify the claim; and
3. The respondent argued that the amount of restitution which would be required following the proposed amendment would be unduly burdensome, in light of the respondent’s age, his earning capacity, his family resources, and his degree of participation in the offense.
The district attorney appeared at the hearing and argued that the court had authority to enter such an order because restitution was a condition of probation over which the court has continuing jurisdiction; that restitution is not a judgment; that the victim’s right to privacy outweighed the respondent’s need to examine the documents in question; and that the amount of proposed increase was not unduly burdensome.
The court, in response to the respondent’s objection concerning documentation, read into the record the amount of each of the bills submitted, as well as the name of the establishment to which each bill was payable. The court, having considered the statements of counsel and having examined the files in the case, then entered an order finding the following:
1. That the respondent was in violation of his probation due to his failure to make timely payments of the restitution originally ordered;
2. That the expenses incurred by the victim had increased to $1,186.25; and
3. That the amount of restitution the respondent should be required to pay should be increased from $267.37 to $593.13.
From the order of the district court, the respondent has filed this appeal.
Respondent first contends that the trial court was acting outside its authority when it amended the amount of restitution originally ordered. Respondent views probation as an “agreement” whereby the court impliedly agrees to continue the probation ordered without modification as long as the original conditions of probation imposed are satisfied.
The State, in contrast, asserts that restitution is a condition of probation and as such may at any time be modified.
This instant action involves a court’s authority in a juvenile offender case to increase the amount of restitution ordered at a disposition hearing because of subsequent increased expenses by the victim. Because of the Kansas Legislature’s delegation of judicial authority in K.S.A. 1984 Supp. 38-1601 et seq., if a court is to be considered authorized to amend restitution once it is ordered, authority for such action must be found in the statute itself.
K.S.A. 1984 Supp. 38-1666 addresses a court’s power to modify an offender’s probation:
“If the court finds . . . that the juvenile offender violated a condition of probation . . . the court may extend or modify the terms of probation . . . ."
As stated, a court is given the power to modify a term of probation if the offender is found to have violated a condition of probation. In the present case, respondent was found by the court to have committed a violation of probation because he failed to make timely payments of the restitution originally ordered. Based upon the language in K.S.A. 1984 Supp. 38-1666, at first blush it appears the court was acting within its authority when it modified the amount of restitution owed by respondent. A condition of probation had been violated, and the court was operating under a statute allowing modification under such circumstances.
We are unable to place full reliance upon K.S.A. 1984 Supp. 38-1666 for the reason that the amendment of restitution in the instant case does not appear to be a modification imposed because of respondent’s violation of a condition of his probation, but rather appears to be an amendment imposed solely because the victim’s expenses had increased since the time restitution was originally ordered. Authority for this assumption is found in the fact that the victim requested an increase in restitution on November 21,1984, and it was not until December 13,1984, that respondent was found to have violated a condition of his probation. Accordingly, we question the applicability of K.S.A. 1984 Supp. 38-1666. That statute provides that a court must first find a violation of a condition of probation and only then may modify the terms of probation. The facts of this case belie the applicability of the statute.
We conclude that a resolution of this issue must be found in K.S.A. 38-1663(h), which provides as follows:
“Whenever a juvenile offender is placed pursuant to subsection (a) or (b), the court, unless it finds compelling circumstances which would render a plan of restitution unworkable, shall order the juvenile offender to make restitution to persons who sustained loss by reason of the offense. The restitution shall be made either by payment of an amount fixed by the court or by working for the persons in order to compensate for the loss. If the court finds compelling circumstances which would render a plan of restitution unworkable, the court may order the juvenile offender to perform charitable or social service for organizations performing services for the community.
“Nothing in this subsection shall be construed to limit a court’s authority to order a juvenile offender to make restitution or perform charitable or social service under circumstances other than those specified by this subsection or when placement is made pursuant to subsection (c) or (d).” (Emphasis added.)
This statute mandates that if the court places the offender on probation or in the custody of a parent or other suitable person, the court must order restitution unless it finds compelling circumstances which would make restitution unworkable. No ex plicit authority for amendment of any order of restitution is present in this statute; likewise, there are no Kansas cases interpreting a court’s authority to modify restitution in juvenile offender situations. We note with particular attention, however, the statutory language highlighted above which states: “Nothing in this subsection shall be construed to limit a court’s authority to order a juvenile offender to make restitution . . . .” Since “restitution” seeks to restore the status quo (In re Dept. of Energy Stripper Well Exemption Lit., 578 F. Supp. 586, 593 [D. Kan. 1983]), the very nature of the term implies one is to be repaid all expenses for damages suffered. Accordingly, if expenses increased after an initial award was ordered, it seems logical that the wrongdoer would be held responsible. Thus, this language giving the court authority over restitution is interpreted to provide a court with the power and authority to amend awards of restitution.
Respondent contends, however, that “probation” is an “agreement” between the court and the juvenile offender which must not be altered by the court in the absence of a violation of the agreement by the offender. In support, respondent cites Swope v. Musser, 223 Kan. 133, 573 P.2d 587 (1977). Swope involved a defendant, originally placed on probation, who had that probation revoked by the court even though the defendant had not violated any of the conditions of probation. Although the Kansas Supreme Court did analyze the defendant’s probation in the context of an agreement between court and defendant, the supreme court’s emphasis was on the defendant’s due process rights which suffered as a result of an arbitrary revocation of probation. The court’s holding was limited to a requirement that a due process hearing be held to determine if conditions of probation had been violated before revocation of that probation could occur. Swope, 223 Kan. at 136.
The instant case is distinguishable from Swope in that, here, there is no arbitrary revocation of probation; rather, there is only an amendment of a condition of that probation. Moreover, in the instant case, the amendment of restitution owing was not an arbitrary action by the court, but was in response to increased expenses incurred by the victim.
In sum, this case asks us to determine the extent of a judge’s power relative to restitution in juvenile offender cases. We conclude that the authority to modify restitution once it has been ordered exists and is found in the broad granting clause of K.S.A. 1984 Supp. 38-1663(h), which gives a court authority over matters of restitution.
Respondent next contends that he was denied due process of the law because the trial court refused to allow either respondent or his counsel to examine the bills submitted as evidence for increased expenses incurred by the victim.
At the December 13, 1984, hearing, the victim presented bills representing increased medical expenses and asked for an increase in the amount of restitution the court had ordered respondent to pay. Although the bills, including the amount and name of the establishment to which the sums were owing, were read into the record, neither respondent nor defense counsel was allowed to examine the bills individually. Respondent now claims on appeal that the court’s action denied him due process because he was unable to dispute any given amount as unreasonable, to dispute any medical procedure as unrelated to the offense, and to dispute whether any bills were duplicitous or incorrectly figured. Respondent contends the court’s action was violative of the right to confrontation and fundamental fairness.
The State, in contrast, contends that our United States Supreme Court has declined to apply the essentials of due process to preadjudicative and dispositional stages of the juvenile process, citing In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967). The State contends a juvenile offender, during the preadjudicative or dispositional stage, is not entitled to the same due process of the law accorded an adult criminal offender.
An examination of the Kansas Juvenile Offenders Code reveals that our legislature has statutorily provided juvenile offenders with certain substantive and procedural due process rights. K.S.A. 1984 Supp. 38-1663 thus accords the offender with the right to notice, the right to counsel, the right to a speedy trial, the right to subpoena witnesses, the right to testify and to refuse to testify, as well as many other rights enumerated therein. Concerning restitution, the statute authorizing such an action makes no mention of the right to a full hearing on the matter, but instead states only that the court “shall order the juvenile offender to make restitution to persons who sustained loss by reason of the offense.” K.S.A. 1984 Supp. 38-1663(h). The fact that the legisla ture has recognized that juveniles possess certain due process rights, however, does not act as a limitation on other rights to which juveniles may be constitutionally entitled.
The standard for determining what due process requires in a particular juvenile proceeding is “fundamental fairness.” McKeiver v. Pennsylvania, 403 U.S. 528, 543, 29 L.Ed.2d 647, 91 S.Ct. 1976 (1971); Bible v. State, 253 Ind. 373, 254 N.E.2d 319 (1970); Patterson v. Hopkins, 350 F. Supp. 676 (N.D. Miss. 1972). It is evident from our Juvenile Offenders Code that the judge in a juvenile offender case is intended to have maximum flexibility in dealing with the juvenile. The Juvenile Offenders Code was conceived so that the juvenile hearing and subsequent disposition would be free from the formalities, procedural complexities, and inflexible aspects of adult criminal proceedings. The juvenile court is to be an institution where corrective and rehabilitative attention is to be given the juvenile. The juvenile is to be subjected to the closest scrutiny and care in order to best help him avoid a life of crime. All this is found in the parens patriae doctrine now expressed in K.S.A. 1984 Supp. 38-1601 as follows:
“K.S.A. 1982 Supp. 38-1601 through 38-1685 shall be known and may be cited as the Kansas juvenile offenders code and shall be liberally construed to the end that each juvenile coming within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.”
We recognize the above and other attributes of the juvenile justice system. We are aware, however, that broad discretion carries with it the possibility of abuse, and informality carries with it the danger of irregularity. This is why the disposition of juvenile matters should be guided by the succinct rule that “ [constitutional rights should not be grudgingly extended.” Cook v. State, 231 Ind. 695, 701, 97 N.E.2d 625 (1951). In short, we must be guided by the “fair treatment” under “due process” rule in dealing with juvenile cases. Kent v. United States, 383 U.S. 541, 16 L.Ed.2d 84, 86 S.Ct. 1045 (1966); Summers v. State, 248 Ind. 551, 230 N.E.2d 320 (1967).
The leading decision of the United States Supreme Court to which the State points in support of its argument is In re Gault, 387 U.S. 1. Gault involved a fifteen-year-old boy who had been committed to a state industrial school for the period of his minority because of an obscene phone call he had made. Procedural safeguards were practically nonexistent throughout the juvenile proceedings. Finding that the “unbridled discretion” perpetuated by the parens patriae doctrine was often a poor substitute for procedure, (387 U.S. at 18) the Gault Court held juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment. 387 U.S. at 41.
Although Gault stated “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone” (387 U.S. at 13), it went on to point out that practically all jurisdictions grant certain rights to adults which are withheld from juveniles. The court stated-, “We do not mean by this to denigrate the juvenile court process or to suggest that there are not aspects of the juvenile system relating to offenders which are valuable.” 387 U.S. at 22. Further:
“While due process requirements will, in some instances, introduce a degree of order and regularity to Juvenile Court proceedings to determine delinquency, and in contested cases will introduce some elements of the adversary system, nothing will require that the conception of the kindly juvenile judge be replaced by its opposite, nor do we here rule upon the question whether ordinary due process requirements must be observed with respect to hearings to determine the disposition of the delinquent child.” 387 U.S. at 27.
It is arguable that, since the Supreme Court has specifically refused to extend its holding, the Court, at least impliedly, has approved of the proposition that a juvenile in the dispositional stage of delinquency proceedings is not entitled to the full due process of the law. Indeed, we note a careful effort on the part of that Court to emphasize that it intended no wholesale incorporation of the rights of adults in criminal trials into the juvenile system.
“We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile ‘delinquents.’ For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. . . . We consider only the problems presented to us by this case.” 387 U.S. at 13.
And further,
“ ‘We do not mean ... to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.’ ” 387 U.S. at 30, quoting Kent v. United States, 383 U.S. at 562.
The Court, just one year before it decided Gault, however, decided Kent v. United States, 383 U.S. 541, wherein Mr. Justice Fortas stated:
“While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children,” (Emphasis supplied.) 383 U.S. at 555-56.
Ourreading oí Kent and Gault leads us to conclude thatthe U. S. Supreme Court has left undecided the question of the extent to which a juvenile offender is to be extended due process of the law in post-adjudicative dispositional stages of the juvenile offender process. But, after careful consideration of the case law, our Juvenile Offenders Code, and the guidelines formulated by the Supreme Court, we have reachedthe conclusion that, applying the concept of fundamental fairness, a juvenile, at a dispositional stage of the offender process, may not be ordered to make restitution to the victim without being given ahearing in which he is apprised of the evidence illustrating the costs incurred by the victim, and without being given an opportunity to defend himself through examination of any and all evidence and the right to examine and cross-examine any and all witnesses. Due process of the law in post-adjudicative dispositional stages of juvenile offender cases necessarily includes the right to a hearing with counsel, confrontation of witnesses, and the right to examine evidence and present evidence in the offender’s own behalf.
In sum, this court takes the position that providing a juvenile offender with full due process of the law does not interfere with the administration of the juvenile system, but instead adds appreciable protection to the rights of the juvenile. We believe that the rights to examine evidence, cross-examine witnesses, and confront accusers afford a juvenile the constitutional protection required without diminishing the beneficial elements intended by our Juvenile Offenders Code.
In the instant case the victim’s bills were read into the record; however, the offender was denied the right to examine the bills for himself. As stated above, a juvenile offender is entitled, under due process of the law, to examine evidence entered against him as evidence of increased expenses suffered by the victim. The failure of the district court to grant these due process rights was violative of the law and its action relative thereto must be reversed.
The action of the district court is affirmed, except for that part thereof which denied respondent the opportunity to examine evidence offered against him, which is reversed.
Affirmed in part, reversed in part, and remanded with instructions that the trial court afford respondent full due process in determining the validity of the victim’s alleged increased expenses. | [
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Briscoe, J.:
Plaintiffs, Mr. and Mrs. Greg Winner, sued defendant, Roger Flory, for false imprisonment and were granted default judgment after defendant failed to answer the petition or make any court appearance. Defendant subsequently filed a motion to set aside the default judgment, which was denied by the district court.
The defendant contends (1) the trial court abused its discretion in refusing to sustain his motion to set aside the default judgment; and (2) the trial court erred in failing to set aside the default judgment because the plaintiffs failed to comply with Supreme Court Rule 118, 235 Kan. civ-cv. We reverse on defendant’s second issue and, consequently, need not address his first issue.
The underlying facts of this case are not in dispute. Roger Flory operated the Commerce Plaza service station in Lawrence, Kansas. Greg Winner was mistakenly arrested for filling his tank with gas at defendant’s station and then leaving without paying for the gas. In fact, all Greg Winner had done was wash his car windows at the station and then leave.
Plaintiffs filed suit against defendant on December 20, 1984. Defendant was served on December 27, 1984, but failed to file an answer within 20 days as required. On January 23, 1985, the plaintiffs filed a motion for default judgment and a February 1, 1985, hearing date was set. Notice of the default hearing was mailed to defendant on January 23, 1985. Defendant did not appear at the default hearing and default judgment was entered on February 8, 1985. The court awarded the plaintiffs each $3,000 for false imprisonment, for a total award of $6,000 plus costs. On February 26,1985, defendant filed a motion to set aside the default judgment based on excusable neglect. The motion was denied by the trial court and defendant appeals.
Supreme Court Rule 118 provides:
“PLEADING OF UNLIQUIDATED DAMAGES, (a) In any action in which a pleading contains a demand for money damages ‘in excess of ten thousand dollars ($10,000)’ as provided in Sec. 60-208(a), if the party against whom relief is sought serves a written request of the actual amount of monetary damages being sought in the action on the party seeking relief, the party seeking relief shall within ten (10) days following service of the request serve his adversary with a written statement of the total amount of monetary damages being sought in the action and at the same time cause a copy of the written statement to be filed in the action. The amount recited in the written statement may be amended downward at any time prior to the action being submitted to the trier of facts for determination. The amount recited in the written statement may be amended upward if the judge hearing a Motion to Amend the amount recited in the written statement is satisfied the reasons recited in the motion justify the amendment.
“(b) In any action in which the party seeking relief demands an unliquidated amount of money as all or part of the relief he seeks and which action is to be tried to a jury in the district court, the parties and attorneys may state in voir dire and in arguments their valuation of an item of claimed damage and the total amount of damages claimed to have been suffered. They shall not mention any amount as being the award demanded in the written statement.
“(c) The costs of the action contemplated by this rule shall be allowed to the party in whose favor judgment is rendered as per Sec. 60-2002(a), unless the judge, upon his or a party’s motion finds the amount of damages sought, as recited in the last written statement filed under (a) above, was frivolously chosen by the party filing same, in which event, the judge shall apportion the costs as justice requires.
“(d) Before any default judgment is taken in any action contemplated by this rule, the party seeking relief must notify the party against whom relief is sought of the amount of money for which judgment will be taken. Said notice shall be given by certified mail, return receipt requested, or as the court may order, at least ten (10) days prior to the date judgment is sought. Proof of service shall be filed and submitted to the court.”
Defendant maintains that plaintiffs failed to comply with subsection (d) and therefore the default judgment should have been set aside. As this case was initiated with a petition seeking unliquidated damages, defendant contends subsection (d) ap plies. Subsection (d) requires a party seeking default judgment in an unliquidated damages case to give the defaulting party ten days’ prior notice of the amount of damages sought. In the present case, the default judgment hearing was conducted on February 1, 1985, only nine days after notice was mailed to defendant on January 23, 1985.
Plaintiffs, on the other hand, contend that Rule 118(d) does not apply to the present case. Plaintiffs note that subsection (d) applies only to those actions contemplated by Rule 118. According to plaintiffs, the ten-day notice requirement applies only to the two types of actions defined in subsections (a) and (b). The first is “any action in which a pleading contains a demand for money damages ‘in excess of ten thousand dollars ....’” Rule 118(a). The second type is “any action in which the party seeking relief demands an unliquidated amount of money . . . and which action is to be tried to a jury . . . .” Rule 118(b). Plaintiffs argue that the prayer in their petition did not contain a demand for damages in excess of $10,000 and, when asked at the default hearing the amount of damages sought, they requested only $6,000. Therefore, plaintiffs contend their case does not fall within subsection (a). In addition, their case was not tried to a jury so subsection (b) does not apply.
We do not believe Rule 118 (d) applies only to those unliquidated damage situations described in subsections (a) and (b) of the rule. In reaching this conclusion, we look first to the caption of Rule 118, “Pleading of Unliquidated Damages.” This caption would imply the rule applies to any case where unliquidated damages are pleaded. Further, subsection (d) begins by stating, “Before any default judgment is taken in any action contemplated by this rule,” ten days’ prior notice shall be given. Also, the notice provisions of subsection (d) do not have any meaningful relationship to the entire context of the provisions of preceding subsections. For instance, if a case is at the voir dire stage as contemplated by subsection (b), and both parties have apparently made an appearance in the case, a default judgment would be foreclosed. Given the caption of the rule and the language of subsection (d) when read with the remainder of the rule, we conclude the ten-day notice provisions of Rule 118(d) apply when default judgment is sought on any pleading of unliquidated damages. The more specific language of subsec tions (a) and (b) is intended only to provide litigants guidance in the two specific areas they address, not to limit the applicability of subsection (d).
Plaintiffs would have us apply subsection (d) of Rule 118 only to unliquidated damage actions specifically described in subsections (a) and (b). This interpretation would subvert the obvious goal of the notice requirement set forth in subsection (d), which is to require the party seeking default judgment to inform the other party of the amount sought before the party seeking default judgment may recover.
Plaintiffs’ petition, by containing only the following prayer and no other reference to damages, clearly qualifies as a “pleading of unliquidated damages” under Rule 118:
“WHEREFORE the plaintiffs pray for a judgment against the defendant for slander and false imprisonment, for punitive damage, for attorney’s fees, for court costs, and for all reasonable and just costs which the judge deems reasonable.”
Failure to request a jury trial or failure to employ the magical words “in excess of ten thousand dollars” in their pleading does not relieve the plaintiffs from providing defendant notice of the amount sought prior to entry of default judgment pursuant to Rule 118(d).
Reversed and remanded for further proceedings. | [
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Briscoe, J.:
Jene A. Miller appeals from the trial court’s enforcement of a Colorado judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq.
The facts of this case are not in dispute. Warren Worthington obtained a default judgment against Miller in Larimer County, Colorado, on December 23, 1974. This judgment remained unsatisfied and, on January 30, 1984, Worthington obtained an order from a Colorado district court reviving his original 1974 judgment.
On June 20, 1984, Worthington filed a certified copy of the Colorado judgment in Rooks County, Kansas, pursuant to the requirements of the Uniform Enforcement of Foreign Judgments Act. Following registration, Worthington executed garnishment against Miller’s property located in Kansas. Miller filed a motion to suspend the garnishment in Rooks County District Court and also to cancel registration of the Colorado judgment. The court upheld the registration and enforcement of the Colorado judgment.
On appeal, Miller contends the Kansas statute of limitations bars registration of the 1974 Colorado judgment because the judgment was ten years old when Worthington registered it in Kansas. Miller relies on the five-year statute of limitations in K.S.A. 60-511(5) to argue that, in order to enforce a foreign judgment, the judgment must be registered in Kansas within five years from the date the judgment was rendered.
Key to our determination of this statute of limitations issue is our resolution of the underlying issue of whether the 1984 Colorado revival action created a new judgment, or whether it merely extended the 1974 judgment. Miller argues that revival merely extended the original judgment and, therefore, the Kansas statute of limitations bars registration. The trial court agreed with Worthington, who argues that revival created a new judgment in 1984 which could be registered within the Kansas statute of limitations because the judgment was then only several months old. In our review of this issue of law, we are guided by the premise that a trial court’s conclusions of law are subject to appellate review and will be set aside if incorrect. Baker v. R. D. Anderson Constr. Co., 7 Kan. App. 2d 568, 571, 644 P.2d 1354 (1982).
In Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 661 P.2d 1242 (1983), our Supreme Court again recognized that full faith and credit shall be given in each state to the judgments entered in sister states. The court went on to explain how statutes of limitations and revival of earlier judgments have affected the general premise of full faith and credit:
“[I]t has been recognized that a state may refuse to enforce the judgment of a sister state, where an action on that judgment is brought later than the applicable statute of limitations of the forum permits, even though the judgment would not have been barred in the state which rendered it.
“The principle is also well established that, where an action is brought in another state upon a judgment of a sister state which is a revival of an earlier judgment, and under the law of the state rendering the revival judgment it is a new judgment and not merely an extension of the statutory period in which to enforce the original judgment, a judgment of revival, as a new judgment, is entitled to full faith and credit and may not be refused enforcement on the ground that under the law of the forum the original judgment could not have been revived at the time it was revived by the judgment of the sister state. The rule has been applied both where the judgment of revival was rendered in the state where the original judgment had been rendered [citation omitted], and also where the judgment of revival was rendered in a sister state. [Citation omitted.] This principle was recognized in Tanner v. Hancock, 5 Kan. App. 2d 558, 619 P.2d 1177 (1980).” 233 Kan. at 408-09.
In order to determine whether the revival of judgment here created a new judgment, we must apply Colorado law. Johnson Brothers, 233 Kan. at 409. Colo. Civil Rules Annot. 54(h) (1985) provides:
“A judgment may be revived against any one or more judgment debtors whether they are jointly or severally liable under the judgment. To revive a judgment a motion shall be filed alleging the date of the judgment and the amount thereof which remains unsatisfied. Thereupon the clerk shall issue a notice requiring the judgment debtor to show cause within ten days after service thereof why the judgment should not be revived. The notice shall be served on the judgment debtor in conformity with Rule 4. If the judgment debtor answer, any issue so presented shall be tried and determined by the court. A revived judgment must be entered within twenty years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an.original judgment. If a judgment is revived before the expiration of any lien created by the original judgment, the filing of the transcript of the entry of revivor in the register of actions with the clerk and recorder of the appropriate county before the expiration of such lien shall continue that lien for the same period from the entry of the revived judgment as is provided for original judgments. Revived judgments may themselves be revived in the manner herein provided.” Emphasis added.
By stating the revived judgment may be treated “as” an original judgment, the language of the rule leaves in doubt whether the revived judgment is a new judgment. Further, Colorado case law provides little guidance. Fortunately, the identical issue has been considered by both the United States and Missouri Supreme Courts.
In Union Natl. Bk. of Wichita v. Lamb, 358 Mo. 65, 213 S.W.2d 416 (1948), the Missouri Supreme Court refused to enforce a Colorado judgment that had been originally rendered in 1927 and revived pursuant to Colorado law in 1945. According to the Missouri Supreme Court, such a judgment was not entitled to full faith and credit because under Missouri law revival was limited to a ten-year period. The United States Supreme Court reversed and concluded that the Colorado judgment was entitled to full faith and credit if under Colorado law revival created a new judgment and did not merely extend the original judgment. Union National Bank v. Lamb, 337 U.S. 38, 93 L. Ed. 1190, 69 S. Ct. 911, reh. denied 337 U.S. 928 (1949). In the majority opinion, Justice Douglas concluded that under Colorado law “a revived judgment has the effect of a new one.” 337 U.S. at 44. This conclusion is mere dicta, however, as the Supreme Court was not required to determine the issue. On remand, the Missouri Supreme Court considered the issue, reviewed the language of Colorado’s Rule 54(h), and ultimately concluded that under Colorado law revival created a new judgment. Union Natl. Bank of Wichita v. Lamb, 360 Mo. 81, 89, 227 S.W.2d 60 (1950). The Missouri Supreme Court opinion, like that of Justice Douglas, relied primarily on the language of the rule itself as well as the Colorado case of LaFitte v. Salisbury, 43 Colo. 248, 95 Pac. 1065 (1908).
Although the language contained in LaFitte is far from conclusive in resolving the issue, the only persuasive authority presented to us supports the trial court’s conclusion that a revival under Colorado law creates a new judgment. This conclusion is correct and is upheld.
Miller next contends the registration in Kansas is barred by Worthington’s failure to register the judgment within five years from the date the original cause of action arose, citing K.S.A. 60-511 and -516. Miller argues that the five-year statute of limitations bars registration of this particular foreign judgment whether or not revival created a new judgment. He cites Warner v. Warner, 9 Kan. App. 2d 6, 668 P.2d 193 (1983), and Alexander Construction Co. v. Weaver, 3 Kan. App. 2d 298, 594 P.2d 248 (1979), for the proposition that the time limit for registering a foreign judgment begins to run when the cause of action arises rather than when the judgment is rendered. Neither case sup ports the rule suggested. In fact, the court in Weaver noted that under the statute of limitations time begins to run when the judgment is rendered. 3 Kan. App. 2d at 301-02. The Kansas Supreme Court followed the same rule in Johnson Brothers, 233 Kan. at 409, when it allowed registration of the foreign judgment in Kansas ten years after the cause of action had arisen because the judgment had been revived and registered in Kansas within five years from the date of revival.
Lastly, Miller contends the trial court erred in not finding the Colorado judgment void for lack of personal service. Miller maintains the trial court should have refused to register the foreign judgment because it was void. Miller alleges the original Colorado judgment was ineffective because he was never personally served.
Miller was entitled to attack the jurisdiction of the original Colorado judgment, and if jurisdiction was lacking the judgment was not entitled to full faith and credit. Brockman Equipment Leasing, Inc. v. Zollar, 3 Kan. App. 2d 477, 482, 596 P.2d 827 (1979). In challenging jurisdiction, however, “The burden of undermining the verity which [foreign] decrees import rests heavily upon the assailant.” Williams v. North Carolina, 325 U.S. 226, 233-34, 89 L. Ed. 1577, 65 S. Ct. 1092 (1945). In the present case, Miller has not met this burden. Miller did not raise the jurisdictional issue initially in the original Colorado case, but instead waited to raise the issue until after the Kansas trial court had ruled in favor of Worthington. The jurisdiction issue was first raised at a hearing on Miller’s motion to amend the Kansas trial court’s order. At the hearing, counsel argued that Miller’s father would testify that the service of process in the original Colorado action was inadvertently served on him, Jene Miller, rather than on defendant, Jene A. Miller. According to defense counsel, the proper defendant never had notice of the original Colorado proceedings. No actual evidence was ever offered to support this contention.
It is generally held that a sheriff s return on summons may not be impeached by oral testimony, after judgment, ás to matters therein recited which were within the officer’s personal knowledge. Kackley State Bank v. Nichols, 162 Kan. 648, Syl. ¶ 1, 179 P.2d 186 (1947). In the present case, the original Colorado judgment notes that personal service was had upon Jene A. Miller on November 11,1974. Miller’s jurisdiction argument was therefore inadequate as he failed to present evidence which would have permitted the trial court to void the original Colorado judgment.
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Clark, J.:
Plaintiff David N. Allen appeals from an order of summary judgment made pursuant to K.S.A. 60-256 that declared his sole remedy for personal injuries received to be that fixed under the Workmen’s Compensation Act, K.S.A. 44-501 et seq.
The subject of the appeal is the scope of both statutes cited above.
The issue that we will resolve here is whether under the uncontroverted facts a self-employed person can be brought within the Workmen’s Compensation Act as a “statutory” worker pursuant to K.S.A. 44-503.
The facts presented to the trial court by defendant in support of his motion for summary judgment were not controverted by plaintiff. Those facts material to the issues follow.
Plaintiff at all times pertinent owned and operated a sawmill in Reno County. Defendant, during the same time period, operated a plant in Butler County where lumber was used to make goods for sale to the public. Defendant was one of plaintiff s customers. As a general business practice, defendant would notify plain tiff that a truckload of wood was needed. Plaintiff would in turn notify defendant when the wood ordered was ready. Upon receipt of that notice, defendant would dispatch his driver with a truck to pick up the load of wood at the business place of plaintiff.
On rare occasions, plaintiff would journey to Butler County, get the defendant’s empty truck, return to his place of business, load the truck, and then deliver the wood back to defendant’s plant. On one of these rare occasions, plaintiff was injured while driving the defendant’s truck back to Butler County with a load of wood. Plaintiff s deposition testimony reveals how he happened to be in defendant’s truck on the day of the accident. He said that he had called defendant a few days before the injury and offered for sale a load of wood.
“Tom told me he had plenty of lumber, and he would pick it up sometime next week, the load, and I said, ‘Tom, I need the money,’ He said, 1 just picked up a load,’ and he said, ‘What did you do with that money?’ I said, ‘It’s spent, and I need another load out,’ and he said, ‘The only way you’re going to get another load out is come and get the truck. I’m not paying a driver overtime to come get that load because I don’t need it anyway.’ I said, T need the money, I’ll come get the truck.’ He said, ‘I’ll have Pam [Milliken, the regular driver] fill it up for you, we’ll put the ticket on the dash of the truck.’”
Reciting these facts, defendant then moved for judgment as a matter of law.
The trial judge interpreted the applicable statutes, examined the case law controlling, and reasoned that plaintiff was “injured while performing services for defendant. The plaintiff was the defendant’s subcontractor, but at the time of plaintiff s injury he was acting as an employee of his [plaintiff s] business,” a sole proprietorship. “It could be said that he was in effect wearing ‘two hats’ at the time of the accident.” The judge ruled that plaintiff was a “worker” pursuant to K.S.A. 44-503 because he was his own employee doing a subcontractor’s work for his principal, the defendant here.
We next examine the law applicable to the facts here.
If the party moving for summary judgment is to prevail, two things must be proven: First, “[t]hat there is no genuine issue as to any material fact,” and second, that he “is entitled to a judgment as a matter of law.” K.S.A. 60-256, and case law annotated thereunder; Vernon’s Kansas C. Civ. Proc. § 60-256 (1967); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-256 (1979).
Under the facts here, plaintiff was at the time doing his own business as a self-employed person.
Here then is the question. Is plaintiffs sole remedy for personal injuries received that fixed under the Workmen’s Compensation Act?
The answer is to be found by reading the Act with the purpose in mind of finding what the legislature intended by the words therein.
First, at K.S.A. 1985 Supp. 44-505, the legislature said in part that:
“[T]he workmen’s compensation act shall apply to all employments wherein employers employ employees within this state.”
Second, at K.S.A. 1985 Supp. 44-501, it is provided that:
“If in any employment to which the workmen’s compensation act applies, personal injury ... is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen’s compensation act.”
Next, at K.S.A. 44-503, another category of workers was brought under the Act when the legislature wrote — insofar as material here — that:
“Where any person (. . . principal) undertakes . . . work which is a part of his trade or business or which he has contracted to perform and [then] contracts with any other person ... [to perform all] or any part of the work undertaken . . . the principal shall be liable to pay to any workman employed . . . any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him.”
We believe that the reliance of the trial judge upon the legislative mandate of K.S.A. 44-503 is not well founded for the following reason. At K.S.A. 1985 Supp. 44-508(b) it is written that:
“As used in the workmen’s compensation act:
“(b) ‘Workman’ or ‘employee’ or ‘worker’ means any person who has entered into the employment of ... an employer .... [S]uch terms shall not include individual employers ... or self-employed persons.”
A study of the case law reveals that our Supreme Court recently set out in Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 193, 689 P.2d 837 (1984), that:
“It is well settled that the workers’ compensation act provides the only remedy for injuries which are encompassed within its scope. [Citations omitted.]
“The workers’ compensation law has also been held to be contractual in nature . . . with the terms and provisions of the statute being incorporated into the employment contract.”
For K.S.A. 44-503 to be operative, it is necessary that there be a contract between the contractor and the worker that creates between them the relationship of employer and employee. There cannot be such a contract when one person is purportedly both the contractor and the employee. This is for a plain and simple reason. No man can contract with himself. 1 Williston on Contracts § 18, p. 32 (3d ed. 1957); 2 Williston on Contracts § 308, p. 450 (3d ed. 1959). There must be at least two parties to the making of a contract. 1 Williston on Contracts § 18, p. 32. As our Supreme Court has said:
“There must be at least two parties to a contract. It is not possible for an individual, simply by his own mental operations, to enter into a contract with himself, or with himself and others, even though he acts in different capacities.” Sinclair Refining Co. v. Long, 139 Kan. 632, Syl. ¶ 2, 32 P.2d 464 (1934).
See Kumberg v. Kumberg, 232 Kan. 692, 699, 659 P.2d 823 (1983).
Reading the Act in light of the case law, it is clear that the legislature intended to provide through the Workmen’s Compensation Act a means whereby injured employees could have payment for injuries received while doing the work of their employers. K.S.A. 1985 Supp. 44-501; 44-505. It was further intended that, for purposes of the Act, employees of a contractor also are “statutory employees” of the contractor’s principal. K.S.A. 44-503.
Now turning to the facts of the case before us, viewed in light of the law, we see that if defendant is to prevail, he must prove that plaintiff was his employee at the time injury was sustained by plaintiff.
The contract between the parties was this. Defendant would buy and plaintiff would sell a load of wood. The price to be paid by defendant to plaintiff was based upon the load being delivered to the business place of defendant. The relationship between the parties was that of contractors in an arms-length transaction. The plaintiff here was at the time a self-employed person. The legislature did not intend to bring such a relationship within the scope of the Workmen’s Compensation Act. K.S.A. 1985 Supp. 44-508(b).
Defendant has not shown that he is entitled to judgment as a matter of law under the uncontroverted facts.
The judgment of the trial court is reversed. This case is remanded for further proceedings not inconsistent with this opinion. | [
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Wahl, J.:
This case arises in conjunction with an investigation into whether liability exists for unemployment taxes. In an action by appellee Secretary of Human Resources for an order to enforce a subpoena duces tecum issued upon appellant Richard L. Schurle, d/b/a Schurle Sign Service, appellant appeals an order overruling his motion to quash.
Richard L. Schurle operates a sign business in Riley, Kansas. He first became an employer for purposes of paying unemployment taxes under the Employment Security Law, K.S.A. 44-701 et seq., on January 1, 1978, by employing one or more people during twenty different calendar weeks. Schurle filed the required quarterly reports and paid the appropriate taxes through the first quarter of 1982. Thereafter, he filed wage reports showing no payment of wages for eight consecutive quarters. The Department of Human Resources marked Schurle’s file “inactive” on March 31, 1984.
On October 19, 1984, Schurle again began paying wages and filed an appropriate report. Thereafter, the Department of Human Resources, Division of Employment, assigned a field representative, Herbert L. Huerter, to “investigate for liability” for employment taxes due from Schurle’s sign business.
The investigator testified that he had no evidence to believe Schurle had paid wages to employees from April 1982 through October 1984, but he suspected an unemployment tax violation during that period because he had seen Schurle’s truck around town twice. Schurle admitted continuous operation of his business but contended he had employed no one. On December 11, 1984, Huerter caused a subpoena to issue from the Human Resources Department upon Schurle commanding him to produce “check stubs from all checking accounts, check register, general ledger, disbursements journal, Federal Forms 940, 941 and 1099, time and payroll records and all other records of expenditures by or for the business entity indicated above, so that the status of workers and the wages paid from January 1, 1982, to the current date can be verified.”
Schurle refused to obey the command of the subpoena.
On January 29, 1985, the Secretary of Human Resources filed this action in the district court seeking an order enforcing the subpoena. The court issued the requested order on February 4, 1985. Two days later, with aid of counsel, Schurle filed a motion to quash the subpoena contending, among other things, that the Department lacked jurisdiction for failure to show that he was an “employer,” and that the Department lacked authority under case law to embark on a “fishing expedition.”
The case was heard on March 21, 1985. On July 2, 1985, the court issued an order overruling Schurle’s motion to quash. The court found that Schurle had remained an employing unit subject to Department supervision because he had never requested termination of his status as an “employer.” The court also found that fishing expeditions are a legitimate administrative investigatory tool and that the subpoena here was authorized, definite, and reasonably relevant to the Department’s inquiry. Schurle filed a pro se notice of appeal.
On appeal, Schurle argues that because the Secretary has not shown him to be an employer subject to the Employment Security Law, K.S.A. 44-701 et seq., the Secretary has no authority to issue a subpoena upon him. We disagree.
The Kansas Employment Security Law is an act complete within itself, providing its own procedure. City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P.2d 117 (1973). In recognition of the legislative determination that economic insecurity due to unemployment is a “serious menace to [the] health, morals, and welfare of the people of this state,” it is the Act’s policy that the compulsory setting aside of unemployment reserves for the benefit of persons unemployed be accomplished under the police powers of the State. K.S.A. 44-702.
The Act requires all employers to pay contributions to the employment security fund at a rate established by the Secretary. K.S.A. 1985 Supp. 44-710(a). “Employer” is broadly defined, but in pertinent part is:
“Any employing unit which . . . (ii) for some portion of a day in each of 20 different calendar weeks . . . had in employment at least one individual . . . .” K.S.A. 1985 Supp. 44-703(h)(2)(A).
Once an “employing unit” becomes an “employer,” it will continue to be an employer under K.S.A. 1985 Supp. 44-703(h)(6), which defines employer as:
“Any employing unit which having become an employer under this subsection (h) has not, under subsection (b) of K.S.A. 44-711 and amendments thereto, ceased to be an employer subject to this act.”
The Secretary of Human Resources is granted the authority and duty to administer the Act, K.S.A. 1985 Supp. 44-714(a); K.S.A. 1985 Supp. 44-703(e), and to that end the Secretary is accorded the power and authority “to adopt, amend, or revoke such rules and regulations . . . require such reports, make such investigations, and take such other action as [he] deems necessary or suitable.” (Emphasis added.) K.S.A. 1985 Supp. 44-714(a). In the discharge of the duties imposed by the Employment Security Law, the Secretary, or any duly authorized representative, has explicit power “to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records deemed necessary as evidence in connection with . . . the administration of the employment security law.” (Emphasis added.) K.S.A. 1985 Supp. 44-714(g). The Act further bestows jurisdiction upon any court of this state to hear an application of the Secretary for enforcement of any subpoena which has been disobeyed. K.S.A. 1985 Supp. 44-714(i).
In this case, Schurle argues that the Secretary’s subpoena power does not extend to him because he is not an “employer” or “employing unit.” Contrary to Schurle’s argument, nothing in the statute that grants the Secretary subpoena and other broad, investigatory powers limits the use of those powers to investigations of “employers” or “employing units.” K.S.A. 1985 Supp. 44-714(g) simply provides that in the discharge of the duties imposed by the employment security law, the Secretary has certain powers to require the production of those records “deemed necessary as evidence in connection with . . . the administration of the employment security law.” Furthermore, it would seem evident that the effort to collect unemployment taxes would be seriously hampered if the Secretary could not investigate an individual or entity to see if he or it was an employing unit or an employer. United States v. Powell, 379 U.S. 48, 57, 13 L. Ed. 2d 112, 85 S. Ct. 248 (1964), quoting from United States v. Morton Salt Co., 338 U.S. 632, 642-43, 94 L. Ed. 2d 401, 70 S. Ct. 357 (1950), holds that, in matters relevant to purposes for which the agency is authorized, the agency may investigate “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”
Even if the Employment Security Law could be read to limit the Secretary to investigations of “employers” and “employing units,” Schurle never stopped being an “employer” for purposes of the law. Although on inactive status for the Department’s record-keeping purposes, Schurle remained an employer be cause he never made a written application for termination of coverage under K.S.A. 1985 Supp. 44-711(b). The trial court was correct in concluding that the Secretary was not required to make a preliminary showing that Schurle was an employer in order to exercise subpoena power.
Schurle argues the trial court erred in refusing to quash the subpoena because the Secretary had no reasonable basis for issuing it and was merely embarking on a fishing expedition. While no Kansas cases discuss the Secretary’s subpoena power under the Employment Security Law, a well-developed line of cases exists with reference to the subpoena power of the Kansas Commission on Civil Rights, and we find the holdings of those cases persuasive in the issue here before the court under the Employment Security Law.
Kansas has rejected the argument that the stringent relevancy requirements of subpoenas in aid of civil or criminal litigation should apply to administrative agency subpoenas. Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 125, 519 P.2d 1092 (1974). Rather, in light of agencies’ investigatory duties, the test of relevancy requires satisfaction of only three elements: (1) that the inquiry be one which the agency demanding production is authorized to make; (2) that the demand not be too indefinite; and (3) that the information sought be reasonably relevant. Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. at 125. See also Cessna Aircraft Co. v. Kansas Comm'n on Civil Rights, 229 Kan. 15, 622 P.2d 124 (1981); KCCR v. Sedgwick County Mental Health Clinic, 220 Kan. 653, 556 P.2d 180 (1976); Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 741, 533 P.2d 1335 (1975); Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975); Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 531 P.2d 455 (1975); Kansas Comm'n on Civil Rights v. Chance Mfg. Co., 6 Kan. App. 2d 61, 626 P.2d 332, rev. denied 229 Kan. 670 (1981). Moreover, where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive (see K.S.A. 60-245[b]), the statute granting the power to subpoena should be liberally construed to permit inquiry. E.g., Kansas Commission on Civil Rights v. Carlton, 216 Kan. at 741.
The trial court in this case had the same discretion as trial courts in the civil rights cases (1) to modify a subpoena by removing objectionable features while preserving the remainder; (2) to quash an otherwise reasonable subpoena if the delay in seeking to enforce it prejudices the rights of the person subject to the subpoena; (3) to weigh such equitable criteria as reasonableness and oppressiveness; and (4) to require some showing of relevancy as a basis upon which to determine whether the subpoena is unreasonable or oppressive once the scope of the administrative subpoena is called into question.
This leaves for determination whether the trial court abused its discretion by clearly acting in a manner so far from law and reason that no reasonable man could agree with it. Cheek v. Hird, 9 Kan. App. 2d 248, 250, 675 P.2d 935 (1984). Schurle has neither alleged nor shown that requiring him to produce the records under subpoena is unreasonable or oppressive. As a Kansas employer, he is required to maintain and have open for the Secretary’s inspection many of those same records. K.S.A. 1985 Supp. 44-714(f); K.A.R. 50-2-5. The inquiry is within the Secretary’s authority to investigate; it is not indefinite, and appears reasonably relevant to the question whether Schurle paid wages to employees during the time period in question. While the Secretary cannot subject Schurle and his records to the subpoena without some minimal justification (Cessna Aircraft Co. v. Kansas Comm'n on Civil Rights, 229 Kan. at 28), the trial court found such minimal justification in the field representative’s sighting of Schurle’s trucks working around town and in Schurle’s beginning to pay wages again after a period of not paying wages. The trial court did not abuse its discretion in overruling Schurle’s motion to quash.
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Abbott, C.J.:
Defendants, Paul and DeLena Casady, appeal from the trial court’s judgment that a tree growing on their property with branches overhanging the property of plaintiffs, James and Mary Jo Pierce, is a nuisance.
Plaintiffs and defendants are adjoining landowners. The dis pute between them concerns a 75-year-old pecan tree, the trunk of which is on defendants’ property but one foot away from plaintiffs’ property line. The tree, 75 feet in height, leans toward plaintiffs’ property at an angle. Approximately 75 percent of the tree’s canopy overhangs plaintiffs’ property.
The tree has a split in the fork which is above plaintiffs’ property. The length of the split on one limb is four feet and on the other, approximately two feet. If the tree fell due to the split, it would fall on plaintiffs’ property, damaging their garage, home and any automobiles in the driveway. Trimming the tree at the property line is not practical because of its location and the angle at which it leans.
Plaintiffs petitioned the court for a declaratory judgment that they had the right to cut the overhanging branches back to their property line or, in the alternative, to declare the tree a nuisance to be abated by removal. The trial court ruled that defendants had not acquired a prescriptive right to the airspace the tree occupies, and that the tree constitutes a nuisance and is a danger to plaintiffs, causing them to fear for their safety. Defendants were ordered to abate the nuisance by removing the tree either at its base or at the point where it crosses plaintiffs’ property line.
Defendants’ first argument on appeal is that the trial court erred in finding no prescriptive easement to the airspace above plaintiffs’ property. Defendants’ argument is without merit. An easement through the airspace generally may not be obtained by prescription. Hinman v. Pacific Air Transport, 84 F.2d 755, 759 (9th Cir. 1936). There is no case law that suggests an interest by prescription may be acquired by overhanging tree branches.
Defendants argue the tree is not a nuisance. Whether a tree constitutes a nuisance is a case of first impression in Kansas. Whether the tree is a nuisance has practical application to this case. A landowner has a right to trim branches that overhang the landowner’s property even though the trunk of the tree is on a neighbor’s land. The landowner may not, however, go on the neighbor’s land and remove the tree or any part thereof absent the neighbor’s permission. If the tree is a nuisance, the landowner may compel the neighbor to abate the nuisance or, if an injury occurs, look to the neighbor to pay any damages allowable by law. In this case it appears that if the tree is trimmed at the property line it is, in essence, destroyed. In any event, the trial court gave defendant the option of removing the entire tree or cutting it off at the property line.
Whether the tree is a nuisance is a question of fact. Our scope of review is limited as to questions of fact and is so well-defined that we need not set it forth.
Jurisdictions that have considered whether a tree constituted a nuisance have taken different approaches. The cases from other jurisdictions suggest three theories. First, a tree is a nuisance when it constantly drops branches and requires constant maintenance. Bonde v. Bishop, 112 Cal. App. 2d 1, 245 P.2d 617 (1952). Second, a tree is a nuisance when there is a statute so defining it. Gostina v. Ryland, 116 Wash. 228, 199 Pac. 298 (1921). Finally, a tree becomes a nuisance when it does substantial harm or creates an immediate danger of causing harm. See Sterling v. Weinstein, 75 A.2d 144 (D.C. 1950) (overhanging branches constitute a nuisance only when they do sizeable or substantial harm); Whitesell v. Houlton, 2 Hawaii Ct. App. 365, 632 P.2d 1077 (1981) (overhanging branches are nuisances when they actually cause harm to property or the danger of their causing harm is imminent); Turner v. Coppola, 102 Misc. 2d 1043, 424 N.Y.S.2d 864 (1980) (trees are not ordinarily nuisances unless decayed or dangerously unsound). See also Annot., 18 A.L.R. 655; Annot., 76 A.L.R. 1111; Annot., 128 A.L.R. 1221; 1 Am. Jur. 2d, Adjoining Landowners §§ 25, 26, 126, 127.
We choose to follow the jurisdictions holding that trees constitute a nuisance if the overhanging branches do substantial harm or the overhanging branches create an imminent danger.
In the case at bar, the trial court found the tree to be a danger to plaintiffs, reasonably causing them to fear for their safety. There is evidence to support that finding: the split in the fork of the tree located above plaintiffs’ property, the squeaking sound when the wind blows alleged by plaintiffs but denied by defendants, the angle at which the tree leans toward plaintiffs’ property, and the testimony of the experts.
Defendants’ argument that the tree could be made safe by cables and bolts is of no avail because the work would have to be done in plaintiffs’ airspace. Defendants have no right to go on plaintiffs’ property to do that work for the same reasons plaintiffs have no right to go on defendants’ property to trim or cut down the tree.. Likewise, they have no right to the use of plaintiffs’ airspace in order to support any part of their tree.
The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each property owner’s rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.
The record, when viewed in a light most favorable to the party who prevailed at trial, supports the trial court’s judgment that the tree is a nuisance.
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Briscoe, J.:
Plaintiffs, A & M Oil, Inc., and A & M Leasing (hereinafter A & M), filed a declaratory judgment action asking the trial court to determine A & M’s interest in oil and gas leases obtained from the defendants, Francis and Joseph Cadoret, d/b/a Cadoret Oil Company, Douglas and Barbara Cunningham, and John and Cheri Wiehl (hereinafter landowners). The trial court concluded that A & M had commenced drilling operations within the one-year term of the leases, thereby extending the leases under the drilling operations clause contained in each lease.
The landowners contend the trial court erred in concluding the leases were extended by commencement of slant drilling operations on an adjacent lot.
The landowners argue that, in order to commence drilling under the terms of their leases, A & M must physically enter the leased premises within the primary term of the leases, A & M counters by arguing physical entry of the leased premises is not required, and that their commencement of slant drilling within the primary term was sufficient to extend the lease.
All three leases had a primary term of one year, plus a drilling operations clause which reads:
“Notwithstanding anything in this lease contained to the contrary, it is expressly agreed that if lessee shall commence operations for drilling at any time while this lease is in force, this lease shall remain in force and its terms shall continue so long as such operations are prosecuted and, if production results therefrom, then as long as production continues.”
This brings us to the issue in this case — Were A & M’s actions sufficient to “commence operations for drilling” within the one-year term of the leases?
Four Kansas cases have addressed the “commencement” issue; none, however, involve the slant drilling issue posed by this case. Shoup v. First Nat'l Bank, 145 Kan. 971, 67 P.2d 569 (1937); Phillips v. Berg, 120 Kan. 446, 243 Pac. 1054 (1926); Hennig v. Gas Co., 100 Kan. 255, 164 Pac. 297 (1917); Herl v. Legleiter, 9 Kan. App. 2d 15, 668 P.2d 200 (1983). While both parties strain to analogize these cases to the present factual situation, we do not find these arguments helpful. We approach this issue instead by concentrating on the court’s analysis and by examining the language of the drilling operations clause in light of the rules for construing oil and gas leases.
The Cadoret lease was executed on April 7, 1982. The Cunningham and Wiehl leases were executed on April 8, 1982. Unless drilling was commenced before April 8, 1983, and April 9,1983, respectively, the leases expired by their own terms. The three leases covered property within the H-8 drilling unit and were pooled with other property in that unit. Since A & M was unable to purchase and move a house that was located in the center of the drilling unit, A & M decided to utilize slant drilling from an adjacent unit, H-9, to reach the leased properties.
A & M took the following action in pursuit of its slant drilling of H-8: On April 5,1983, A & M received a license from the City of Stockton to directionally drill the H-8 unit from an adjacent vacant lot in the H-9 drilling unit. On April 6, A&M also received a permit from the Kansas Corporation Commission authorizing the directional drilling. On April 4, the H-9 drilling site was prepared and on April 6 the drilling rig was erected and an 88-foot hole was drilled. Drilling progressed at the following rate: on April 7, the hole reached 1240 feet; April 8, 1420 feet; April 9, 1585 feet; and on April 10, 2000 feet. On April 11, the drill bit penetrated the vertical plane of the H-8 drilling unit. The hole was bottomed on April 15, 1983, and resulted in a producing well.
There is no dispute that by commencing on April 6, 1983, the drilling on H-9 commenced within the primary term of all three leases. However, the landowners point out that the H-8 property line was not penetrated until April 11, 1983, which was after all three leases had expired.
When construing oil and gas leases, we are guided by the following well-established rules:
“Among the familiar rules governing the construction of oil and gas leases are these: the intent of the parties is the primary question; meaning should be ascertained by examining the document from all four corners and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof. [Citations omitted.]” Jackson v. Farmer, 225 Kan. 732, 739, 594 P.2d 177 (1979).
In applying the above rules of construction to drilling operations clauses, courts have focused attention on two factors: (1) preliminary steps taken by the lessee toward commencing to drill the well; and (2) the lessee’s due diligence in pursuing completion of the well. Consideration of these two factors balance the interests of the lessor and lessee and reflect their intent in including a drilling operations clause. In the case at bar, we focus our attention on A & M’s efforts to commence. As the landowners correctly point out, whether A & M pursued production with due diligence after commencement is irrelevant to our issue of timely commencement.
In the present case, A & M committed significant resources toward obtaining production from the H-8 drilling unit within the one-year lease period. Preliminary actions to obtain authorization for slant drilling, as well as the commencement of slant drilling, occurred within the lease period. Although the rig was erected and drilling initiated on H-9, the pre-planned destination of the slant drilling was H-8. We cannot agree with the landowners in their assertion that A & M must conduct some physical activity on the leased property in order to commence drilling operations. The leases are unambiguous and cannot be read to require physical entry. The trial court’s finding that the leases were extended under the drilling operations clause is correct.
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Hill, J.:
This appeal concerns an increase in child support. A section of our federal tax code, 26 U.S.C. § 179 (2006), allows sole proprietors to use accelerated depreciation and recover the entire cost of a capital asset in 1 year by subtracting that cost from gross income. Here, William E. Wiese, a farmer and sole proprietor, has used 26 U.S.C. § 179 depreciation to his advantage for several years when deciding his federal tax liability. But when his former wife sought an increase in child support, the district court used straight- line depreciation to fix Wiese’s income instead of accelerated depreciation. Wiese contends the court must use the accelerated depreciation figure to reduce his income for purposes of setting child support because these assets materially affect his cash flow. This is a case of first impression in Kansas. Because our child support guidelines caution that a court may include depreciation as a business expense only if it is reasonably necessary to produce income, we hold the district court did not abuse its discretion by using straight-line depreciation instead of accelerated depreciation to calculate child support income. Therefore, we affirm.
The facts and figures are not disputed by the parties.
Shannon M. Wiese and William E. Wiese divorced on January 4, 2005. In their divorce agreement, William agreed to pay Shannon $511 per month in child support for their two children beginning February 1, 2005. But in March 2007, Shannon moved to modify child support, alleging that William’s income had increased since 2003.
William’s gross income and § 179 property are displayed on his 2004, 2005, and 2006 tax returns.
William’s 2004 income tax return showed the following:
• Gross income of $181,950;
• Total depreciation (regular depreciation and § 179 expense deduction) of $54,839;
• Regular depreciation of $11,880;
• Accelerated depreciation (i.e., § 179 deductions) of $42,959;
• Section 179 property consisted of: One Red Angus bull; 66 cows; a storage trailer; a four wheeler; concrete feed bunks; and a Vs interest in a combine.
William’s 2005 income tax return showed the following:
• Gross income of $340,500;
• Total depreciation (regular depreciation and § 179 expense deduction) of $133,789;
• Regular depreciation of $28,876;
• Accelerated depreciation (i.e., § 179 deductions) of $104,913;
• Section 179 property consisted of: 11 cows; a tub grinder; a sprayer; a grain trailer; a silage bed and hoist; a semi-tractor trailer car transport; and a Vz interest in a 6-row cutter head.
William’s 2006 income tax return showed the following:
• Gross income of $399,087;
• Total depreciation (regular depreciation and § 179 expense deduction) of $88,689;
• Regular depreciation of $41,889;
• Accelerated depreciation (i.e., § 179 deductions) of $46,800;
• Section 179 property consisted of: 47 cows; a bale bed; a truck bumper; and a cattle panel trailer.
Initially this matter was heard by a magistrate but was appealed by both sides to District Judge Cudney.
At a September 2007 hearing on the matter, Quentin Smith, William Wiese’s accountant, testified. He explained the difference between regular depreciation and § 179 deductions. For regular depreciation, Smith stated that capital assets are required to depreciate over the life of that asset. Smith indicated that “for a tractor, it’s seven years” and “for livestock, breeding cattle in this case, it’s five years.” Smith asserted that the “code section sets that percentage that you can take every year [for depreciation].”
Unlike regular depreciation, Smith testified that § 179 allows sole proprietors to recover the entire amount of their expenses in 1 year. Smith stated that § 179 will allow a person to “expense it down to zero” so long as that person is malting a profit. He gave the following example:
“If you sell that wheat and you have a significant amount of money and you go to buy a tractor, you know, sell 50,000 in wheat and buy a [$50,000] tractor, if you didn’t have 179, you could only . . . write off $5,000.00 of that.
“The Code said, and lets you, if you have that protection and you want to sell it, you can go buy that tractor and it doesn’t create no — no tax liability. That’s, you know, that’s the way it works.”
But once a § 179 property is sold, Smith testified that any gain is counted towards income and that person must pay self-employment tax on the full amount of the sale.
Outside of these tax purposes, Smith admitted there was no real distinction between the items claimed under § 179 and the items claimed in regular depreciation.
“Q. [William’s attorney:] . . . .Were there additional items purchased in 2005 which were not used as a 179 expense?
“A. [Smith:]. Yes, in addition to that five-year property, there was an additional $108,732.00 of — and those are primary cattle that would have been purchased that were placed on regular depreciation. Okay.
“Q. Okay. And is there some reason some cattle would be placed under 179 and some would be depreciated out?
“A. No, not necessarily. We have the ability to — to pick and choose from within that, and so sometimes we use cattle, sometimes we use a truck, or — there really isn’t — no, there wouldn’t be any significance in that.”
Smith also asserted that an item is not required to be purchased through cash rather than financing to qualify as a § 179 property:
“Q. [Shannon’s attorney:]. So going back to this 179 expense, it doesn’t make any difference whether you borrow the money from the bank, whether you — to buy the assets, or whether you buy the assets from cash that you’ve generated from your operation, it’s a deductible expense to tire extent of the limitations imposed by the government, is that correct?
“A. [Smith:]. But provided that you had to show a profit on.
“Q. I understand that.
“A. Yeah.”
At the hearing, William also testified. He admitted that in 2005 he tried to expand his herd by purchasing more cows but that he currently tries to maintain a herd of 175 cows. In regards to the specific items he claimed under § 179 , William stated that (1) the 2004 claimed expenses were related to his farming operation; (2) the 2005 claimed expenses were related to his farming operation, including a semi-tractor trailer, but it was also used for hauling cars and eventually leased to another company for that purpose; and (3) the 2006 claimed expenses were all related to his farming operation.
Based on this evidence, the court made the following factual findings. First, the judge found that William generally replaced 11 cows a year; that he expanded his cow herd in 2005; that he has pasture for approximately 150 to 200 cows; and that his cow herd ranged from 150 to 200 cows. Second, the judge acknowledged that between 2004 to 2006, William supplemented his income with other employment. In 2004, William supplemented his income with his custom-hire work by harvesting silage and com for other farmers. Then in 2005, William used his semi-tractor trailer to haul cattle, grain, and cars, earning an additional $82,000. Third, in 2006, William leased the semi-tractor trailer, netting a profit of $59,194.
From her findings, the judge rejected Shannon’s first argument and determined that all of William’s § 179 deductions were reasonably necessary for the production of William’s income. Then, the judge rejected William’s argument that all of the § 179 deductions be made from his income.
The court revised the amount of William’s § 179 deductions by using straight-line depreciation, adding those amounts to his total depreciation, and then in following the custom of its judicial district and the agreement of the parties by adding half of the total depreciation back into William’s income. The court calculated William’s income as follows:
• William’s 2004 figures
• Revised accelerated depreciation (§ 179 ): $8,301
• 66 cows at $36,300/5 years
• V3 interest in combine at $1,250/7 years
• Storage trailer at $650/7 years
• Four-wheeler at $1,950/7 years
• Concrete bunks at $1,249/7 years
• Red Angus bull at $1,550/5 years
• Corrected income for child support purposes: $45,384
• William’s 2005 figures
• Revised accelerated depreciation (§ 179 ): $15,439
• 11 cows at $7,889/5 years
• Farm equipment at $97,024/7 years
• Corrected income for child support purposes: $128,470
• William’s 2006 figures
• Revised accelerated depreciation (§ 179 ): $8,815
• 10 head of cows at $4,500/5 years
• 10 head of cows at $8,855/5 years
• 17 head of cows at $15,051/5 years
• 10 head of cows at $8,855/5 years
• Bale bed at $7,894/7 years
• Truck bumper at $770/7 years
• Cattle panel trailer at $875/7 years
• Corrected income for child support purposes: $77,098
From these calculations, the court found William’s average annual income to be $83,651. Using that figure, the court increased William’s monthly child support to $1,383, effective April 1, 2007, through December 31, 2007, and $1,461, beginning on January 1, 2008.
We examine depreciation and review the three approaches other states have taken when considering the relationship between depreciation and child support income.
For our purposes of setting fair child support, depreciation can be viewed as an accounting technique that determines an annual amount of money to deduct from gross income that can be used to accumulate replacement costs of an asset before it needs to be replaced. The figure represents a decline in an asset’s value because of use, wear, or obsolescence. Straight-line depreciation writes off the cost of an asset at a fixed percentage rate every year of an asset’s useful life. An accelerated depreciation method employs a greater percentage deduction in the earlier years of an asset’s useful life and smaller deductions in the latter years.
Courts across America use three different approaches in considering depreciation expenses while deciding child support. The first group of states rule that depreciation expenses should not be deductible because it is a book figure that does not involve any cash outlay or reduce actual dollar income. A second group views depreciation expenses as deductible because they reflect a diminishment of a party’s income-producing capacity and provide a way to replace the depreciated asset. The third group, including Kansas, holds that depreciation should not categorically be deducted as an expense or treated as income; rather, its inclusion, if any, should depend on the particular circumstances of each case. See Stoner v. Stoner, 163 Conn. 345, 351, 307 A.2d 146 (1972); Gammel v. Gammel, 259 Neb. 738, 743, 612 N.W.2d 207 (2000); Annot., 28 A.L.R.5th 46, 58 §2[a].
Our standard of review considers the discretion of the trial court.
Even though this issue is one of first impression, the standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion, while interpretation and application of the Kansas Child Support Guidelines are subject to unlimited review. In re Marriage of Branch, 37 Kan. App. 2d 334, 336, 152 P.3d 1265, rev. denied 284 Kan. 945 (2007). The question of whether depreciation is reasonably necessary for production of income under the child support guidelines falls solely within the discretion of the trial judge. In re Marriage of Lewallen, 21 Kan. App. 2d 73, 74-75, 895 P.2d 1265 (1995).
Because Kansas sometimes allows depreciation as a reasonable business expense that can be deducted from a parent’s income, we hold the method used to calculate that depreciation rests within the trial court’s discretion.
Both parties equate William’s request for a full deduction of his § 179 expenses as a motion for the court to use the accelerated depreciation method. So do we.
Section II. E. of our Kansas Child Support Guidelines (2008 Kan. Ct. R. Annot. 113) allows a self-employed person to deduct depreciation from his or her income as a reasonable business expense if it is shown that the depreciation is reasonably necessary for production of income. Section II. E, in its entirety, reads:
“1. Self-Employment Gross Income
“Self-Employment Gross Income is income from self-employment and all other income including that which is regularly and periodically received from any source excluding public assistance and child support received for other children in the residency of either parent.
“2. Reasonable Business Expenses
“In cases of self-employed persons, Reasonable Business Expenses are those actual expenditures reasonably necessary for the production of income. Depreciation shall be included only if it is shoum that it is reasonably necessary for production of income. Reasonable Business Expenses shall include the additional self-employment tax paid over and above the FICA rate.
“3. Domestic Gross Income — Self-Employed
“Domestic Gross Income for self-employed persons is self-employment gross income less Reasonable Business Expenses.” (Emphasis added.) Guidelines § II. E. (2008 Kan. Ct. R. Annot. 113-14.)
Additionally, “the guidelines leave room for judicial discretion in determining whether depreciation should be deducted as a reasonable business expense.” In re Marriage of Cox, 36 Kan. App. 2d 550, 554, 143 P.3d 677 (2006). However, because this issue is one of first impression, when depreciation is found reasonably necessary for the production of income, our courts have not yet determined which method should be used for treating that depreciation.
Based on our Guidelines and existing case law, we think Kansas essentially follows the third approach in viewing depreciation expenses for child support purposes. The use of depreciation, if any, should depend on the particular circumstances of each case. The district judge applied this approach in her analysis. Thus, in the absence of a provision in the Guidelines identifying treatment of § 179 deductions, we hold that the method in which a trial court chooses to calculate depreciation lies within its discretion. See Baker v. Baker, 183 Ariz. 70, 72, 900 P.2d 764 (1995) (“We note that some jurisdictions apply a hybrid of this flexible method, providing by guidelines, procedural rules, or case law that the accelerated portion of depreciation presumptively cannot be deducted, but the straight line portion can, so long as the trial court in its discretion does not otherwise find it inappropriate.”); Stoner, 163 Conn. at 352-53 (“In formulating a workable and flexible approach between the two extremes we hold that the amount of depreciation, if any, to be considered in determining the availability of net income for the purposes of alimony and support awards is best left to the court’s discretion, ‘determined from all the circumstances including the amount of depreciation claimed and the property depreciated.’ ”).
We review how four other states have decided § 179 depreciation.
We have found four published cases. See Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008); Gammel, 259 Neb. 738; Major v. Major, 124 N.M. 436, 952 P.2d 37 (Ct. App. 1997); and Watson v. Watson, 60 P.3d 124 (Wyo. 2002).
The Kentucky Supreme Court in Gripshover has issued the most recent opinion on the subject. It is distinguishable from our case because the Kentucky Child Support Guidelines expressly specify that straight-line depreciation is the only allowable method to calculate depreciation. In Gripshover, the court noted that the plain language of its child support guidelines statute states that “ ‘[s]traight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income.’ ” 246 S.W.3d at 468 (quoting Ky. Rev. Stat. Ann. § 403.212[2][c] [Michie 1999; 2008 Supp.]). Abiding by this statutory language, the court in Gripshover held that the trial court erred in ruling that the § 179 deductions were appropriate adjustments to father’s gross income. The court in Gripshover reasoned that although § 179 appears to provide an alternative to the standard straight-line depreciation, its child support guidelines statute expressly excluded such alternatives. 246 S.W.3d at 468.
Here, the district court primarily followed the reasoning of the Nebraska Supreme Court in Gammel. But, Gammel is fundamentally distinguishable from this case. Paragraph D of the Nebraska Child Support Guidelines states that “ ‘if a party is self-employed, depreciation claimed on tax returns should be added back to income or loss from the business or farm to arrive at an annualized total monthly income.’ ” 259 Neb. at 740. From this language, the court in Gammel stated that Nebraska follows the first approach in viewing depreciation expenses for child support purposes. 259 Neb. at 743.
In Gammel, under its child support guidelines, the district court determined that § 179 deductions should be added back to a self-employed trucker’s earned income as depreciation. The father in Gammel appealed, arguing that “a Section 179 deduction reflects an actual cash expenditure, thus reducing the self-employed parent’s available resources from which to pay child support.” Rejecting the father’s argument, the Gammel court held that a deduction under § 179 is “depreciation” under its child support guidelines. 259 Neb. at 744. Reasoning that § 179 deductions served the same tax purpose as depreciation, the court held:
“A deduction pursuant to Section 179, sometimes referred to as a ‘depreciation deduction,’ although technically not ‘depreciation’ under the Internal Revenue Code, serves the same tax purpose as depreciation. Both allow a taxpayer to recover the cost of depreciable property, or, in other words, to take a deduction in calculating taxable income to reflect the cost of using such property. Because a deduction elected under Section 179 has the same effect as depreciation it should be treated as depreciation under paragraph D of the Nebraska Child Support Guidelines.” 259 Neb. at 744.
In his argument, William relies on the New Mexico Court of Appeals ruling in Major to support his position. A review of Major discloses that the New Mexico Child Support Guidelines regarding this subject appear similar to the Kansas Child Support Guidelines. Under the New Mexico Child Support Guidelines, a self-employed parent’s gross income means “ ‘gross receipts minus ordinary and necessary expenses required to produce such income.’ ” 124 N.M. at 437 (quoting N.M. Stat. Ann. 1978, § 40-4-11.1 [C][2][b] [Michie 1995]). Furthermore, it appears that New Mexico also abides by the third approach because the court in Major examined the factual circumstances surrounding the claimed depreciation. 124 N.M. at 437-39. But this case is not directly on point. Claims concerning § 179 arose as a secondary issue when the trial court imposed a monetary limit found in § 179 to cap the amount father could deduct in necessary expenses.
In Major, the father agreed that his depreciation should be added to his net taxable income but requested that the yearly cost of replenishing his breeding herd be deducted as an ordinary business expense. The main issue before the New Mexico Court of Appeals became “whether the annual cost of replenishing the breeding herd is an ordinary expense required to produce business income.” 124 N.M. at 437. Under its facts, the father was a self-employed cattle rancher whose main source of income came from the sale of calves produced each spring from his breeding herd. Also, on an annual basis, he sold his cull cattle during the fall and purchased impregnated cattle in the spring to replace the sold cattle.
In determining this issue, the court in Major gleaned from its previous cases that their courts “are more concerned with a parent’s actual cash flow than . . . with income as represented on tax returns.” 124 N.M. at 438. The court in Major noted that in two prior cases, it allowed deductions of earnings that were reinvested in a business after the evidence established these costs were necessary to sustain it. 124 N.M. at 437-38 (discussing Roberts v. Wright, 117 N.M. 294, 296-97, 871 P.2d 390 [1994], and Jurado v. Jurado, 119 N.M. 522, 530, 892 P.2d 969 [1995]). But, the court in Major also made clear that “earnings reinvested in the business for the purpose of growth of the business should be treated as income for the purpose of child support.” 124 N.M. at 438. Under the facts in its case, because these purchases were required simply to maintain his business at the same level, the court in Major found the father’s necessary cost of replenishing his herd deductible. 124 N.M. at 438.
Significantly, the application of § 179 arose as a secondary issue. In this second issue, the trial court imposed a monetary limitation to the amount of expenses the father could claim in replenishing his herd. Regarding this limitation, the court in Major held that the trial court’s selection of the § 179 limit was arbitrary and unsupported by the record. Therefore, the court in Major held that the trial court’s limitation- of the father’s necessary business expenses to .the § 179 cap was in error. 124 N.M. at 438-39.
William primarily relies on Wyoming Supreme Court’s ruling, in Watson to support his position. But, like Gammel, Watson is distinguishable from this case. In determining income in calculating child support under Wyo. Stat. Ann. § 20-2-303(a)(ii), “‘all reasonable. unreimbursed legitimate business expenses shall be deducted.’ ” Watson, 60 P.3d at 125-26. Interpreting this statutory language, the court in Watson held that the § 179 deduction constituted a “reasonable unreimbursed legitimate business expense” because it impacted father’s actual cash flow. 60 P.3d at 128. The court in Watson ruled: “[A] Section 179 expense differs from depreciation in that it directly affects business cash flow and a parent’s disposable income.” 60 P.3d at 128. Therefore, in viewing depre-ciation in the context of child support, Watson's focus on a deduc tion’s impact to an obligor s cash flow appears to follow the second approach. We do not follow this approach in Kansas.
In Watson, the issue before the court was “whether a section 179 expense deduction claimed by the ranch corporation for the benefit of father can be used to lower father’s monthly net income.” 60 P.3d at 126. Like William, the father argued that his § 179 deduction should not be added back into his income as “depreciation” because “a Section 179 deduction reflects an actual cash expenditure, reducing available resources from which to pay child support.” 60 P.3d at 127. The Watson court agreed and reversed the district court. 60 P.3d at 128-29. The court in Watson reiterated that “the focus should be upon the reasonable and legitimate nature of the expense and its impact on the party’s actual cash flow in the year in question rather than the treatment of the expense by federal law in the context of income taxes. [Citations omitted.]” 60 P.3d at 128. Applying this test, the court in Watson concluded that since the § 179 property is actually paid for in the same year in which the deduction is allowed, it affected the father’s cash flow in that year. Thus, the court in Watson held that “reasonable unreimbursed legitimate business expenses” included expenses claimed under § 179, and therefore, the district court erred in disallowing the § 179 expense claimed by father. 60 P.3d at 128-29.
We look at prior Kansas cases dealing with similar concepts.
Not cited by either party, we note that this court dealt with a similar issue in In re Marriage of Kells, No. 65,115, unpublished opinion filed January 25, 1991. In Kells, the trial court added back a portion of the father’s depreciation shown on his tax return in calculating his income for child support. On appeal, the father argued that the trial court erred, asserting that his income for child support puqposes should have been reduced by the full amount of the depreciation expenses he claimed on farm equipment. In reviewing this argument, it is significant to note that this court was unable to fully examine the merits of the father’s claim- because he failed to furnish a sufficient record. Slip op. at 2, 4. Nevertheless, in applying an abuse of discretion standard, this court rejected father s claim, stating:
“The child support guidelines in effect at the time of the decision provided that ordinary and necessary business expenses which reduce available funds be déducted from gross income of self-employed persons. The guidelines further rest discretion with the court in situations where income is received’ on a sporadic basis, such as farming. (1989 Kan. Ct. R. Annot. 59.) Since Donald has not designated a sufficient record to establish an abuse of discretion, his argument must fail.” Slip op. at 4.
A year later, the court in In re Marriage of Lewallen, 21 Kan. App. 2d 73, mentioned the term “accelerated depreciation” when examining the holding in Freking v. Freking, 479 N.W.2d 736 (Minn. App. 1992). In Lewallen, the court addressed the topic of depreciation for the first time in Kansas. This court followed the ruling in Freking, Lewallen, 21 Kan. App. 2d at 75, stating:
“The topic of depreciation in the area of child support payments has not been addressed by the Kansas courts. Minnesota has addressed it in Freking v. Freking, 479 N.W.2d 736 (Minn. App. 1992). In Freking, the Minnesota Court of Appeals held the trial court properly disallowed an accelerated depreciation deduction when determining a fathers income for child support purposes. The court .went on to hold, that when substantial depreciation deductions are taken on a farming operation, tax returns alone may be insufficient data to determine income. However, a total disregard of depreciation is reversible error. 479 N.W.2d at 740.” (Emphasis added.)
Although this court ultimately found that the district court abused its discretion by completely disregarding the father’s depreciation in his farming operations, its adoption of Freking suggests a closer examination of that case is warranted. See In re Marriage of Lewallen, 21 Kan. App. 2d at 75.
In Freking, the father testified that he inherited, in part, a 50-percent interest in his father’s farm machinery. But, he admitted that the accelerated depreciation taken on the farm equipment for income tax purposes was about twice the actual depreciation. Using this testimony, the district court did not totally disregard his depreciation but disallowed the accelerated portion of the depreciation deduction in calculating his net income for child support purposes. The Minnesota Court of Appeals upheld this portion of the district court’s decision, finding that the district court’s reliance on the father’s testimony that the actual depreciation was about half of the accelerated depreciation did not constitute an abuse of discretion. 479 N.W.2d at 740-41.
Since then, our courts have limited consideration in this area to whether the district court abused its discretion in allowing or disallowing depreciation to be deducted from a self-employed person’s gross income. See, e.g., In re Marriage of Cox, 36 Kan. App. 2d at 554.
Before us is the narrow question of whether the district court abused its discretion in calculating William’s § 179 deductions as straight-line depreciation. We follow the reasoning in Kells and Freking to answer this question. Unless William proves that the court abused its discretion in calculating his expenses using straight-line depreciation instead of accelerated depreciation, we will not modify die court’s holding. Stated in another way, it is within the district court’s discretion to deduct § 179 property as straight-line depreciation (i.e., an amount divided over the life of the asset). Reversible error will be found only where it is shown that the trial court abused its discretion. “ ‘An abuse of discretion is shown only where no reasonable person would take the view adopted by the court.’ [Citations omitted.]” In re Marriage of Cox, 36 Kan. App. 2d at 554.
In this case, Smith testified that they selected items within the depreciation expenses to elect under § 179 , and outside that tax benefit, there was no significant difference between these two categories. Furthermore, contrary to William’s argument on appeal, § 179 does not distinguish its purchases of “section 179 property” in terms of cash or financing. Moreover, Smith provided corroborating testimony on this subject, stating that he did not distinguish the manner in which the § 179 property was purchased. Lastly, William’s reliance on his cash-based argument from Watson is unpersuasive. As stated above, Watson does not follow Kansas’ approach in viewing depreciation for child support purposes.
The Kansas Child Support Guidelines direct all district courts to determine from the facts of each case whether depreciation is reasonably necessary for the production of income. Our ruling preserves the discretion afforded the district courts in making this type of decision. Consequently, under these circumstances, we find the district court did not abuse its discretion in declining to deduct the full value of William’s § 179 property from his gross income.
Because this is a genuine issue raised by the appellant, we decline to grant attorney fees to the appellee for the appeal.
Affirmed. | [
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Opinion by
Simpson, C.:
In the condition in which we find the record in this case, it is impossible that we should consider but one of the very many questions raised by counsel for the defendant, and urged as good reasons for the reversal. There is no bill of exceptions. The rule that on a criminal appeal all matters that by law are not required to be recorded must be embodied in a bill of exceptions, allowed, signed, and ordered by the court to be a part of the record, has been totally ignored. So far as the statutory requirements of record have been complied with, we shall consider all questions arising on that part of the case. But affidavits used on an application for a change of venue, or a continuance, and all other motions or applications, as well as the evidence in the cause, must in cases of this character be embodied in the record by a bill of exceptions. There are some other omissions which preclude us from a consideration of other questions urged. There are no journal entries showing when, and under what circumstances, the names of additional witnesses were indorsed upon the information. The record does not contain the motion for a re-taxation of costs, or the ruling of the court thereon. If there was any showing made on the challenge to the array, it is not declared by this record. The theory of counsel who prepared the appeal record seems to have been that the methods and proceedings necessary to bring civil cases on error to this court, should be followed in the appeal of a criminal case. A notice was served on the county attorney to appear before the judge of the district court at chambers, to settle the case. The judge certified that the case was settled and allowed by him at chambers as being a true and correct transcript in said cause. The clerk then certified to the transcript as being correct, but that the motion to re-ta^; costs had not yet been decided by the court. This certificate of the clerk is dated June 18th, and the record was filed in this court on the 21st day of June, 1886.
The information is by law required to be recorded. It consists of two counts — the first charging a criminal libel of and concerning the participation of the complaining witness in the robbery of the safe in the office of the county treasurer of Rice county; the second contains a charge that we shall hereafter specifically notice. At the trial the defendant was found not guilty on the first count, and guilty on the second count. The sufficiency of the information was challenged by a motion to quash; by an objection to the introduction of any testimony; by a motion to discharge the defendant after the state rested in chief; and by a motion in arrest of judgment. The defendant having been acquitted on the first count, the only question remaining here is as to the sufficiency of the second count. The specific defect most strongly alleged and insisted upon now is, “that it does not contain a malicious defamation of the character of the prosecuting witness.” This count charges substantially, that the defendant unlawfully, falsely, and maliciously did make, publish, and circulate in the Ellinwood Express, a newspaper circulated in Rice county, he being the editor and proprietor thereof, a certain false, malicious and defamatory libel, of and concerning the prosecuting witness, of the following tenor:
“We said that John White [meaning the prosecuting witness] was tricky politically, and that if he was guilty of charges stated by men who live near and know him well, it is due his constituency that he resign, as the people did not want to be represented by a man upon whom the faintest suspicion rests. We say so still, [meaning that the said John W. White is guilty of said robbery, as stated in the first count of this information.] When Mr. White [meaning the said John W. White] shall have cleared up this early-day transaction, it will then be in order for him to state why he attempted, once upon a time, to down a Hutchinson man for $400, and got most gloriously left, [meaning that said John W. "White had, once upon a time, attempted to steal or embezzle $400 from some Hutchinson man.] ”
These, with the necessary allegations as to time, place, and averments to explain the defendant’s meaning by matter previously introduced, caption and conclusion, constitute the second count in the information. The material allegations for an information charging such a crime, according to our statutory definition, are, “that at the time and place stated the defendant did unlawfully and maliciously write and publish of and concerning the person complaining, a false, scandalous and malicious libel, a copy of which must be set out in the information.” If the intent does not sufficiently appear, proper innuendoes must be introduced to show the meaning contended for. Where the meaning of the words is latent, or does not fully appear on the face of the publication, such meaning must be alleged; as in this case, the expression, “ down a Hutchinson man for $400,” is alleged to mean, “ rob or embezzle from a man from the city of Hutchinson.” We think the second count in the information charges a public offense.
On the argument, counsel for defendant confuse the matter contained in the second count with that in the first count. The distinct offense charged in the second count is the robbery or embezzlement of $400 from a Hutchinson man; the first charged a libel concerning the county treasury robbery. We are not called upon to determine in this case to what extent a newspaper can comment on the acts of a state senator from the district within which the paper is published. The acts alleged to have been committed by the complaining witness in this case are not his official acts as senator, but are alleged to have been committed before his election, in one, certainly, if not in both instances.
This is the only question we feel authorized to determine on this record, and the view we take of it compels us co recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only questions involved in this case arose upon a demurrer to the plaintiffs’ petition. The petition states, among other things, as follows: On. November 5, 1879, William Boyd Dickinson died, leaving as his heirs a wife, Mary Dickinson, now Mary Gafford, and one child, Samuel Boyd Dickinson; he also left a large amount of property, both real' and personal. He also left three brothers, Samuel P. Dickinson, Martin Boyd Dickinson, and John C. Dickinson, and one sister, Susan C. Dickinson. After the death of William Boyd Dickinson, Samuel P. Dickinson, Martin Boyd Dickinson, and Susan C. Dickinson, who are now the defendants in this action, entered into a conspiracy to cheat and defraud the said Mary Dickinson, who is mow the plaintiff in this action, and Samuel Boyd Dickinson, her minor son, out of their interest in the aforesaid estate of William Boyd Dickinson, and in pursuance thereof it is alleged that—
“ Samuel P. Dickinson came to the plaintiffj and represented to her that he was her friend, and reminded her that he was the brother of her deceased husband, and told her that the estate was large, and that she was not accustomed to doing business; that she could not settle up the estate, and proposed to her that he would do it for her. He further stated to her that he understood all about the business, having come out of it but a short time before, and that he could and would guard it for her from absorption, and protect her interest and that of her child from being wasted or obtained by anybody, and would preserve it for them. That this plaintiff, relying on these and other protestations and representations, and reposing great trust and confidence in the said Samuel P. Dickinson, and believing that he would carefully guard and protect the interest of the said estate, and would preserve the same for her and her said child, who are the only heirs of the said William B. Dickinson, agreed to receive his counsel and be governed by his advice in regard to all matters pertaining to said estate; that she was stricken with grief and unaccustomed to doing business, and naturally looked for some one to rely upon, and that the defendant Samuel P. Dickinson, taking advantage of her forlorn and desolate situation and the relation of brother to her deceased husband, gained her entire confidence, and she relied implicitly in his friendship and integrity, and actually surrendered to him the management and control of her interest and the interest of her said minor child.”
In pursuance of the aforesaid conspiracy, the following things occurred, and were had and done: No administrator was appointed until June 15, 1881, when Martin Boyd Dickinson was appointed, and on June 17, T881, John C. Dickinson was appointed guardian for the minor son, Samuel Boyd Dickinson. Martin Boyd Dickinson failed and refused as administrator to make an inventory of a large proportion of the property belonging to the estate, and made a false inventory of the remainder. He also permitted a large amount of false and fraudulent claims to be allowed against the estate and in favor of Samuel P. Dickinson and Susan C. Dickinson, and paid them from the estate.. He also sold at private sale and conveyed to Samuel P. Dickinson, for himself and Samuel P. jointly, a large amount of the real estate belonging to the estate, at about one-third of its real value. The conspirators at the proper times fraudulently procured from the probate court all the necessary orders to enable the administrator to perform these acts.
“And this plaintiff further alleges that she did not discover any of the frauds above set forth until long after they were consummated, and all of them were discovered within the last six months by her; that all of the above and foregoing facts, matters and things are the result of an agreement and conspiracy entered into between the defendants in this suit for the purpose of cheating and defrauding said estate, and for the purpose of cheating and defrauding this plaintiff and her said ward and minor child, only heirs of the said William B. Dickinson, deceased, and that the entire administration of said estate is illegal and void for the reasons above set forth.”
A final settlement of the estate by the administrator, with the probate court, was had on June 28, 1884, and the administrator was discharged.
“But that this plaintiff was not present at such settlement; that she was persuaded, to stay away therefrom by the said Samuel P. Dickinson, he representing to her that her presence was unnecessary and that he would attend to her interests there and that she could not understand it in any event; and that, relying on him, the said Samuel P. Dickinson, and not then having discovered that he and the said Martin B. Dickinson were absorbing said estate and cheating aud defrauding the same, and still relying on him, the said Samuel P. Dickinson, to protect her interest at such settlement, and to protect the interest of her said son, she did remain away and trusted everything, as she had done all through the said administration, to said Samuel P. Dickinson.”
On October 13,1884, Mary Gafford, formerly Mary Dickinson, was appointed guardian for her minor son, Samuel Boyd Dickinson, and on June 27, 1885, she commenced this action in the district court of Brown county for herself and as guardian and next friend of her said son. The plaintiff also alleges in her petition that the person who was probate judge when the foregoing proceedings were had is still the probate judge, and that he is a material witness in this case, and that she could not safely proceed to trial without his testimony. The plaintiff then prays in her petition that the entire administration of the estate, including all the proceedings had before the probate court with reference to the estate, be set aside, and that a new administration be had, and for such other and further relief as she may be entitled to; and in case such relief cannot be granted, then that she and her son may have judgment against Susan C. Dickinson for $1,554.57, and against Martin B. Dickinson and Samuel P. Dickinson for $30,000, and interest and costs.
To this petition the defendants demurred, on the grounds: (1) That the district court had no jurisdiction; (2) that several causes of action were improperly joined; (3) that the petition did not state facts sufficient to constitute a cause of action. The court below sustained this demurrer. To reverse this ruling the plaintiff brings the case to this court.
We think the court below erred. The petition states a cause of action and only one, and the district court has jurisdiction of the same. That the district court has jurisdiction, see the following cases: Shoemaker v. Brown, 10 Kas. 383; Musick v. Beebe, 17 id. 47; Markson v. Kothman, 29 id. 718, 723; Brenner v. Bigelow, 8 id. 497; Griffith v. Godey, 113 U. S. 89; same case, 5 Sup. Ct. Rep. 383; Heward v. Slagle, 52 Ill. 336; Stong v. Wilkson, 14 Mo. 116; Jones v. Brinker, 20 id. 87; The State v. Roland, 23 id. 95; Mitchell v. Williams, 27 id. 399; Dillon v. Bates, 39 id. 292; Picot v. Bates, 47 id. 390.
It is true that in the exercise of jurisdiction by the district courts in cases connected with the settlement of the estates of deceased persons, there are some limitations. (Johnson v. Cain, 15 Kas. 532; Stratton v. McCandless, 27 id. 297; Kothman v. Markson, 34 id. 542.) Generally, while the estate is in the course of settlement in the probate court the district court will not exercise its jurisdiction, and this for the reason that the jurisdiction of the district court in such cases is equitable only, and the parties have a plain and adequate remedy in the probate court. The jurisdiction of the district court in all cases like this is merely equitable, and therefore it will generally refuse to exercise such jurisdiction in any case where the parties have another plain and adequate remedy. In this case, however, the settlement of the estate is no longer pending in the probate court. According to the records of the probate court, the estate was finally settled about a year before this action was commenced; and therefore, unless the plaintiff now has a remedy in the district court, she has no remedy. According to the allegations of her petition she was lulled into a belief of perfect security, and then defrauded by the very persons upon whom she relied for protection, and in whom she reposed confidence. She did not suspect fraud, and had no knowledge of the actual fraud that was committed upon her until long after it occurred, and until long after the final settlement.
We think she is entitled to the relief which she now asks, and that she is entitled to obtain it in the district court. Fraud vitiates all things, even the most formal judgments, and the same may be set aside or other proper relief granted, and this in the district court, unless some specific and adequate remedy is furnished by some other tribunal.
The judgment of the court below will be reversed, and the cause remanded, with the order that the demurrer to the petition be overruled, and for such other and further proceedings as may be proper in the case.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The record in this case shows only the petition, affidavits and exhibits attached thereto, and the judgment thereon. This judgment shows that a hearing was had before the court. What evidence was given at that hearing the record does not disclose. It may have been submitted upon the petition and the affidavits attached thereto; but the record does not so show. The court found that the judgment was void, for the reason that it was rendered in vacation. The circumstances under which this judgment was rendered in vacation are not shown. If the evidence had been preserved and brought up with this record, then we might know something more of its history. There must have been some reason or circumstance under which this judgment was rendered in vacation by the court. As to why the report was confirmed and this judgment rendered, is all left to conjecture. Section 591 of the code is as follows: “In other actions 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.” This is one of the class of actions in which the court has the right to exercise this discretion, and how can we say that it abused that discretion, when the record discloses so little of the history of the case ? Before we would be warranted in so finding, there ought to be a clear showing of such abuse.
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.
Valentine, J.:
The only question involved in this case is whether chapter 74 of the Laws of 1886, “An act authorizing and directing the county commissioners of Shawnee county to levy an assessment to build a jail and jailer’s residence,” approved February 4, 1886, is constitutional’ and valid, or not. The court below, the superior court of Shawnee county, upon an application for a temporary injunction, held it to be constitutional and valid, and refused the injunction; (3 Kas. L. J. 118;) and from that refusal the plaintiffs bring the case to this court. The question is now of but very little importance, for the jail and the jailer’s residence — one building — have already been built, and all the other matters and things which the plaintiffs wish to have restrained have been performed. Really the only material question left in the case is, who shall pay the costs ? "We think the act is valid. The words “levy an assessment,” in the title to the act, were intended to mean levy a tax, and as the tax was “to build a jail and jailer’s residence,” the legislature had authority to provide in the body of the act, as it did, for the building of such jail and jailer’s residence, including all the necessary details. The jail and the jailer’s residence were intended to be only one building.
Even if Shawnee county already had a jail, that fact would not prevent the legislature from giving authority to the county commissioners to build another jail; and the fact that there may have been a general law authorizing the building of county jails would not prevent the legislature from passing a special act for the same purpose, provided the general law could not well be made applicable. Also, the fact that the act authorizes the county commissioners to build a jail without submitting the question to a vote of the electors of Shawnee county, we do not think renders the act void. In fact, we think the act is-valid, and the judgment and order of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The defendant’s motion to quash must be treated as a demurrer to the petition, and the only question is, Was the plaintiff entitled to an examination of the records and papers in the office of the register of deeds of Russell county, for the purpose of making a set of abstract books of the titles to the real estate in that county? The statute under which plaintiff claims the right to make this examination of the records in question, is as follows:
“Every county officer shall keep his office at the seat of justice of his county, and in the office provided by the county, if any such has been provided; and if there be none established, then at such place as shall be fixed by special provisions of law; or if there be no such provisions, then at such place as the board of county commissioners shall direct; and they shall each keep the same open during the usual business hours of each day (Sundays excepted); and all books and papers required to be in their offices shall be open for the examination of any person.” (Comp. Laws of 1885, ch. 25, § 211, p. 299.)
The statute also defines the duty of the register of deeds :
“The register of deeds shall have custody of, and safely keep and preserve all the books, records, deeds, maps and papers deposited or kept in his office.” (Comp. Laws of 1885, ch. 25, § 90, p. 281.)
Before the plaintiff can maintain his claim in an action of this kind, he must show affirmatively that the right claimed, and which is denied by the defendant, is a clear legal right, and one of which there can be no doubts or exceptions. The writ of mandamus lies only for this kind of a right. A public officer can be compelled to do such acts as the law requires to be performed, and none other. The plaintiff claims that the records in the office of the register of deeds are public records, which every person has a right to inspect, examine, and copy, at all reasonable times, and in a proper way; that the register cannot deny access to his office or books, for such purpose, to any person coming there at a proper time, and in an orderly manner; and that the register must transact the business of the office, and allow persons reasonable facilities to exercise this right iu that office. On the other hand, the defendant insists that while the records are public records, and that all persons have a right to examine the records and books of that office at all reasonable times, yet this right is controlled to some extent, by the objects for which the examination is made, or the use to be made of such information; and that, as in this case, where the information is to be used for the purpose of private speculation and gain, solely for the benefit of the plaintiff, for no public use or purpose, and not for the purpose of an examination of any title or interest of the plaintiff therein, and not as an attorney or agent of some person having an interest in lands, but solely for the purpose of selling said information to others for compensation and speculation, the privilege will not be granted.
The question is an embarrassing one, and we are not free from doubt. At common law, parties had no vested rights in the examination of a record of title, or other public records, save by some interest in the land, or subject of record. So no authorities at common law can throw any light upon this question — the practice of making abstract records being of more recent date. In some states, the right has been recognized and regulated by law; in others, abstracts are made by permission of the register of deeds; but in this state, no action of the legislature has been had. Then, under the provisions of the statute above quoted, the right of the plaintiff must be found, if at all.
The primary purpose of making and keeping a record of the titles to land is that the title and its history may be preserved and protected, so that the information there contained may be obtained by those who seek it. Without these records there would soon be such uncertainty in the title to real estate as would render it almost valueless, or involve its owners in endless litigation to protect it. Necessity then requires that these records shall be correctly made, and when so made, to be safely and securely kept. The law has imposed this duty upon the register of deeds, and when any persons desire to inspect the same, that inspection must be under the immediate eye and observation of the register of deeds, or his deputy. Otherwise, that provision of the law that requires him to “safely keep,” would impose a duty without the power to perform it. Then the right to inspect must of necessity have some restrictions, and must be exercised under such rules as the register may fairly impose, that will tend to the safety and preservation of his trust. The right claimed by the plaintiff for himself and for every person to inspect the records at will and make copies therefrom, must of equal necessity be governed. If this right exists, it exists for all. If the plaintiff may make abstracts of the records and copies therefrom, then others have the same right. Should two or more desire to make an examination at the same time, who is to decide ivhioh shall first make the examination or abstract, or the length of time to be occupied in'making that abstract ? With the right come things incidental to that right; facilities for making the copies desired. If no decision or direction is to be made, then each may pursue his work at the same time, and this must be done under the immediate observation of the register. He must either superintend and watch over this work, or furnish suitable deputies to do so. The records must be preserved and safely kept. If this construction were to be given, the public would be called upon to furnish greater facilities for the register of deeds and those desiring to make abstracts in his office, and a large expense would be incurred to carry on a work in which the public had no special interest or benefit; it would be enabling private individuals to engage in speculation for gain at the public expense. In large and populous counties the demand for the right to make abstracts would be great, and much time consumed in their making, and instead of having an office where the records were to be kept for public inspection, it would be converted largely into an office for private individuals — for private and not for public use; and if this right is granted, then could it be denied in any other department of county or state government ? The records would be free to be inspected and copied for any and all purposes; for when the right is conceded for private use or inspection, then it is conceded to be equally open for him who examines for idle curiosity or unlawful purposes. If you grant this right to one citizen, yon must grant it to another. No distinction can be made between the good citizen and the bad; both must have the same facilities and the same right, independent of the purpose for which the information is sought.
In Buck & Spencer v. Collins, 51 Ga. 395, the court said:
“But no person has a right to examine or inspect the records of his office, except in his, the clerk’s presence, and under his observation. If he may do this for a minute, the clerk is not ‘keeping them safely and securely.’ A blot or a scratch may be made in a minute that may alter a record; a leaf may be abstracted in a minute, and if one man may of right take a record book and ‘abstract’ its contents — work a week upon it, any other man may do it. If a good, honest man has a right to do this, a bad man has the same right; and if this may be done, except under the clerk’s immediate inspection, no record can be safely kept. If the complainant has the right to do what he claims, he has the right to keep the clerk’s attention from minute to minute, and from day to day, until his book is finished. He has the right to the services of the public officer for months together without pay; for not only the law but every principle of propriety requires that no person shall inspect the books, except under the Watchful observation of the clerk.”
The supreme court of Colorado, under a law that is identical with that of this State, has decided that the right of a person to examine the records is not open for all. The court in Bean v. The People, ex rel., 7 Col. 202, says:
“We are of opinion that the statute in question was not designed to allow individuals who wish to abstract the entire records for future profit in their private business, the privilege of using continuously the public property, and of monopolizing from day to day, for months and years, a portion of the time and attention of a public officer against his will and without recompense.”
The supreme court of Michigan has also decided this question, founded upon a statute much broader than ours. The court says:
“The right once conceded, there is no limit to it until every public office is exhausted. The inconveniences which such a system would ingraft upon public officers: the dangers, both of a public and private nature, from abuses which would inevitably follow in the carrying out of such a right, are conclusive against the existence thereof. . . . The language of the act referred to does not, in clear and unmistakable terms, include a case like the present, and such an one should not be conferred by construction. The object of the act was to enable persons having occasion to make examination of the records for any lawful purpose, ... to have suitable facilities therefor.” (Webber v. Townley, 43 Mich. 534.)
Our statute nowhere intends to give the right to permit the taking of copies of the records. The language is to “ make an examination.” That examination was intended for persons who desire some information that can be readily gained by personal inspection of the records. The duty of granting this right is imposed upon the register, but it was never intended that the inspection would give the right to make entire copies of the records, and consume his time in watching and protecting the records during the time required to take an abstract of the titles of land in any county. This right of inspection should be exercised only by persons who have an interest in the record, or by some one for them, for the purpose of information, and was not intended to give a right to parties to engage in private speculation in connection with the information there received. The statute provides how copies of all records may be obtained, and prescribes fees to the various officers for furnishing such copies. Those desiring to engage in the abstract business can procure the information or copies as the law provides; and if upon examination the statute does not clearly provide for that class of information, or for copies, then the duty will be upon the legislature to provide it, and not upon the court.
The plaintiff cites but two authorities in support of the right claimed by him. The first case cited is The People v. Richards, Register of Deeds, 99 N. Y. 620. In that case there is a remarkable distinction from the one at bar. In that case the relator was a corporation created by a special act of the legislature of New York, and under that statute and charter the company was empowered and authorized to make, and cause to be made, and to procure and pay for such researches, abstracts, including maps and copies of records, as its trustees may deem necessary; and yet under this broad power granted to this company the court refused to grant the right where the register of the city of New York had allowed the relator to put three men in his office with accommodations for making copies of the records in his office. The petitioner claimed that, considering the great number of records of the city, an abstract could not be made in a lifetime by that company with the men permitted to work in the register’s office, and to deny it greater facilities was to deny all the right granted by its charter. The court held in that case that the corporation could make such copies under such reasonable restrictions as the register might impose, and that the regulation imposed was reasonable.
The next case was brought by McLean, in the circuit court of the United States for the southern district of Ohio, asking the court for an order giving the right to the inspection of certain fee books and the judgment docket of that court. The court refused the order, but afterward granted an order giving the right to inspection of certain records in accordance with the fourth rule of the supreme court of the United States, which rule provided for the right of inspecting certain records of the courts of the United States; the court laying down the rule that at common law the right to inspect records and judgments of courts in the United States existed only to the parties to the record, and those having an interest therein. (8 Reporter, 813.) Neither of these decisions can be relied upon as sustaining the right claimed by the petitioner.
It is recommended that a peremptory writ of mandamus be denied.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by William E. Stickel against J. C. Bender for the recovery of certain real estate, the title to which Stickel claimed that Bender acquired fraudulently, while acting as his agent. In 1884, Stickel had possession of one hundred and sixty acres of land in Lincoln county, in this state, under a land contract upon which he had paid four hundred dollars and upon which there was remaining due, as purchase-money, twelve hundred dollars. This land had been purchased by Bender for Stickel from D. Crawford, of Kansas City, Missouri, at ten dollars an acre. In July, 1884, the land in Lincoln county was placed in the hands of Bender for sale. About July 26, 1884, the land was exchanged by Bender to William E. Starr for lots eleven and twelve in block twenty-nine of Keeny and Hodges’ addition to Abilene; and upon that day Starr and wife executed to Stickel a warranty deed therefor. About the same time William E. Starr and wife executed to Bender the conveyance of lots ninety-three and ninety-five, on Spruce street in Abilene. Stickel claims that Bender received these lots as part consideration for the Lincoln county farm; that he fraudulently obtained the title in his own name; and that subsequently the lots were disposed of by Bender for certain other real estate, situated in the county of Dickinson. Bender claims that lots ninety-three and ninety-five were no part of the trade for the Lincoln county land; that the lots were deeded by Starr and wife to him by way of a mortgage to secure a debt of one hundred and fifty dollars which Starr owed Bender; and that the rest of the property, or the proceeds thereof, were to be applied by Bender to the payment of installments upon the land which .Starr obtained from Stickel.
Upon the trial the court submitted the following issues of fact to the jury:
“Did the defendant, J. C. Bender, take the title h> lots ninety-three and ninety-five, on Spruce street, in Southwick & Augustine’s addition, as part of the consideration for the plaintiff’s land, in fraud of the plaintiff’s rights ? No. Or, did he take the title to said property as security for a debt due to him from Starr in part and the remainder in trust for the use of Starr to be applied to the deferred payments on the Lincoln county land ? Yes.”
Upon the special findings of the jury and the evidence introduced in the case, the court found the issues for the defendant, and rendered judgment accordingly. Of this complaint is made. It is urged as error, that the trial court improperly refused to permit Stickel to prove the declarations of Starr concerning the ownership of lots ninety-three and ninety-five. These declarations were made by Starr after the conveyance to Bender, and were not in his presence or hearing. If it was intended to prove by these declarations that Starr is the equitable owner of the lots, the evidence was immaterial. The jury found that the title to the lots was only held by Bender for security. If it was intended to show by the declarations of Starr that Bender procured the conveyance of the lots to himself fraudulently, then the evidence was incompetent and properly excluded. After the execution and delivery of the deed, Starr’s statements made in the absence of Bender and without his knowledge would not affect or bind him. (Crust v. Evans, ante, p. 263.) Starr’s deposition might have been taken if his statements of the transactions with Bender were favorable to the claim of Stickel.
We do not think that the plaintiff was prejudiced by the instructions. Only two issues of fact were submitted to the jury. The jury were not required to render a general verdict, and the only matters for their consideration was the evidence upon the issues of fact submitted. Upon these matters they were required to pass upon the credibility .of the witnesses, and to answer the questions yes, or no. The instructions refused would not have aided the j uiy in deciding the questions of fact presented to them: the same might be said of some of the instructions given. The court submitted these questions to the jury as a matter of advice, and after all the evidence had been introduced, made a general finding for Bender. There is sufficient evidence in the record to sustain the findings and judgment of the trial court; and although much of the evidence is conflicting, this court will not interfere, even if the testimony preponderates against the findings.
The judgment of the district court must be affirmed.
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Hill, J.:
When the estate and heirs of a 17-year-old girl sued for wrongful death in this case, the law allowed any party to ask the district court to call a medical malpractice screening panel to decide whether there was a departure from the standard of practice of the health care specialty involved in the case and, if so, whether that departure caused the damages claimed. The court convened two such panels here — one to consider the administration of anesthesia to the girl and the second panel to look into the performance of the surgeon. Both panels filed reports which were admitted into evidence at trial. For many reasons, the panels took far longer to do their work than the 90-day period set out in the statute, causing a delay of the trial for over a year, with the report about the surgeon being received during the drird week of the jury trial. The reports advised that the screening panels found no deviations from the standards of care by the physicians. At the end of the trial, the jury returned a no-fault verdict. The appellants ask us in this appeal to set aside the judgment of the district court and order a new trial, claiming a deprivation of due process and equal protection of the law.
The record on appeal reveals that while the screening panels’ work was pending, discovery was not stayed in the case, the parties received the anesthesia screening panel report about 5 months prior to trial, and the plaintiffs had ample time to prepare for the report’s admission and prepare for trial. We conclude there was no due process violation with the anesthesia panel in this case.
Further, just before trial, the surgeon, who had originally requested the screening panel, asked the court to disband the surgery panel because the jury trial was imminent and its report was not yet ready. But the plaintiffs objected to disbanding the panel, seeking its report instead. We hold this is tantamount to inviting error— a party cannot seek a ruling of the district court and then complain about that ruling on appeal. Finally, since the plaintiffs failed to raise the equal protection claims to the district court they cannot raise the issue for the first time on appeal. We therefore affirm.
We must first decide if we have jurisdiction to hear this appeal.
The grounds for an appeal are staked out in the notice of appeal. The controlling statute, K.S.A. 60-2103(b) provides: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.’’ (Emphasis added.) This judgment designation is important. Failure to designate can lead to a dismissal of part or all of an appeal.
Here, the appellants’ notice of appeal states: “Notice is hereby given that plaintiffs appeal from the Journal Entry of Judgment entered on July 19, 2006 to the Court of Appeals of the State of Kansas.” We note initially that this is a specific notice of appeal, including none of the “catch-all” language this court has seen used in other notices. The July 19, 2006, journal entry indicates the trial occurred from May 30, 2006, to June 26, 2006, and sets forth the jury’s verdict of no fault as well as the rulings that had been made during the trial. The rulings specified in the July 19, 2006, journal entry include (1) the defendants’ motions for directed verdict; (2) the plaintiffs’ motion for directed verdict concerning comparative fault of Sheena Walker; (3) jury instructions; (4) the plaintiffs’ motion involving evidence pertaining to a prescription invoice; and (5) the plaintiffs’ renewal of various motions for directed verdict.
Both doctors argue the notice of appeal fails to give this court jurisdiction to hear the matters the appellants complain about, namely the screening panels. Dr. Regan Tabor points out the July 19 journal entry refers only to the jury’s verdict and the court’s rulings on motions for directed verdict. According to Dr. Tabor, rulings about the anesthesia panel’s opinion were made in the district court’s decisions on February 4, 2004, and May 26, 2006. Dr. Randall Regehr joins this argument, claiming that the objections at trial over the admission of the anesthesia and/or surgery panels’ opinions are not sufficient to provide this court with jurisdiction to entertain the constitutional issues raised in plaintiffs’ appeal. Dr. Regehr claims that the July 19, 2006, journal entry did not memorialize any ruling on the constitutionality of the screening panel statutes. Therefore, Dr. Regehr contends that the plaintiffs’ objections and the district court’s rulings at trial should be considered as evidentiary, not constitutional claims.
In order to resolve this question, we look for the guidance of precedent. We are taught by our Supreme Court in Key v. Hein, Ebert and Weir, Chtd., 265 Kan. 124, 129, 960 P.2d 746 (1998), that when we must consider discrepancies between a notice of appeal and the issues briefed, we are to reject requests to make the requirements of the notice of appeal technical or burdensome. Instead, our Supreme Court’s approach has been to use a broad or “liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding” as required by the Kansas Code of Civil Procedure. Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 720, 869 P.2d 598 (1994); see K.S.A. 60-102.
In claiming that this court does not have jurisdiction to consider the plaintiffs’ appeal regarding the anesthesia panel opinion, Dr. Tabor asks us to follow the ruling in Raney-Neises v. HCA Health Service of Kansas, Inc., No. 93,740, an unpublished opinion filed May 26, 2006. In Raney-Neises, a panel of this court held it lacked jurisdiction to consider the merits of the appellants’ appeal because the notice of appeal did not encompass the trial court’s pretrial rulings that were challenged on appeal. The panel relied on the facts that (1) the notice of appeal was not filed by a pro se litigant; (2) the particular reference to the judgment in the notice of appeal did not refer to the other rulings from which the appellants tried to appeal; and (3) there was no “catch-all” language in the notice of appeal. Slip op. at 21. Initially, we note that despite its jurisdictional ruling, the court in Raney-Neises continued to address the appellants’ briefed issues in order to demonstrate that no reversible error had occurred.
Nonetheless, we do not believe the Raney-Neises ruling is pertinent to our considerations here. In that case, the appellants’ appeal only related to the trial court’s rulings made before trial, while the plaintiffs here, citing due process grounds, objected to the admission of both screening panels’ opinions at trial on June 1, 2006, prior to the parties’ opening statements.
The July 19, 2006, journal entry in this case set forth the trial dates, and within those trial dates, the district court overruled the plaintiffs’ due process objections to the admission of both panels’ opinions. Dr. Tabor does not now claim he was surprised or placed at a disadvantage by the issues the appellants have briefed. Likewise, Dr. Regehr cannot successfully claim complete surprise concerning the plaintiffs’ due process issue, since the plaintiffs’ counsel raised this issue at trial by stating:
“I want to make an objection on the record before we get started to any reference to alleged screening panel[s] in this case. I think that the admission of the reference to the screening panels will violate our due process rights under the facts and circumstances of this cases which have been discussed over an extended period of time, namely about a year, as to the lateness of the filing by the anesthesia panel request and certainly by the fact we’re starting trial today and we don’t have any panel decision yet. So I think any reference whatsoever would be prejudicial and I want the record to note the objection in the strongest possible terms to those screening panels.” (Emphasis added.)
Therefore, in broadly construing the plaintiffs’ notice of appeal in accordance with the opinion in Hess, we find that the notice of appeal was adequate to provide this court with jurisdiction to review the due process issue.
But, we have no jurisdiction over the appellants’ equal protection issue. First, the plaintiffs failed to raise this argument before the district court. Thus, even under a liberal construction of the notice of appeal, it cannot encompass any rulings made by the district court over this matter as the court made no such rulings. Simply put, the plaintiffs have not preserved this issue for appeal. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). We will not inquire into the equal protection argument but proceed solely with the due process claim.
The parties encountered great difficulties in starting the screening panels.
In September 2003, Sue A. Walker, individually, as mother and heir of Sheena L. Walker, and as special administrator of Estate of Sheena L. Walker, Deceased, brought a wrongful death action against defendants Randall S. Regehr, M.D., Regan Tabor, M.D., and Via Christi Regional Medical Center, Inc., for the death of Sheena L. Walker, who died after thyroid surgery.
Dr. Regehr asked the district court to convene a medical malpractice screening panel in October 2003. We must point out here that during all of the pretrial hearings concerning the malpractice screening panels, District Judge Carl W. Friedel ruled on die matter. But the jury trial and all other pretrial issues were decided by District Judge Warren M. Wilbert. Over the objection of the plaintiffs, the court, on February 4, 2004, granted Dr. Regehr’s motion but ordered discovery in this case to continue “notwithstanding screening panel proceedings.” On April 19, 2004, over the plaintiffs’ renewed objections, the district court ordered two separate panels be called, one for the surgeon and one for the anesthesiologist. The court wanted the panels to be selected by May 3, 2004. After this ruling, Drs. Regehr and Tabor and the plaintiffs each designated their respective screening panel members. But, Dr. Regehr and the plaintiffs were unable to agree upon their mutual member of the surgery screening panel. Because of that disagreement, Dr. Regehr filed a motion for extension of time to designate a joint screening panel member, which the district court granted.
Again, for the same reason, on June 1, 2004, Dr. Regehr filed a second motion for extension of time. The plaintiffs also filed a motion for extension to file their contentions with the panel. On July 1, 2004, the district court granted both motions and extended both deadlines as requested.
Despite the fact that neither of the screening panels had yet issued an opinion, the court set a jury trial for June 14, 2005. The district court also ordered that witnesses and exhibits listed by one party could be called by any other party. Dr. Regehr listed the “Screening Panel decision” as one of his exhibits and “[a]U screening panel physicians” as possible witnesses.
Sometime later, all of the people picked by the plaintiffs for the screening panels disqualified themselves from participating in the screening process. When their replacements were not immediately forthcoming, Dr. Regehr asked to delay the trial. The plaintiffs asked to dissolve the panels because the date for the jury trial was fast approaching. The court then set the trial over to October 11, 2005, and ordered the plaintiffs to designate new members for both panels. Still with no reports from either panel, the court once again set the trial over, this time to May 30, 2006.
Finally, in January 2006, the anaesthesia screening panel issued its opinion. The panel found that Dr. Tabor did not depart from the standard of practice and that his actions did not cause the death of Sheena L. Walker. The findings of the anesthesia panel opinion were clear:
“(4) As to plaintiff s [sic] claims against defendant Regan Tabor, M.D., the panel finds that Dr. Tabor did not depart below the required standard of practice in this case and that no act of or omission by defendant caused or contributed to cause injury to and/or the death of Sheena L. Walker.”
At Dr. Tabors request, the report of the panel was listed as an exhibit and the members of the panel were listed as witnesses for the jury trial. The court overruled the plaintiffs’ objection to timeliness of the request.
The surgeon asked to disband the surgery screening panel, but the plaintiffs objected.
Dr. Regehr asked to withdraw his request for a surgeiy screening panel on April 28,2006, but the plaintiffs objected to Dr. Regehr’s motion. When this matter was considered by the court, the plaintiffs’ counsel argued that the panel’s report should come in:
“Dr. Regehr — who had been requesting multiple continuances — suddenly wants to withdraw the panel.
“And yes, Your Honor, we go 180, too, but we were asked to invest in this process, this panel process, and we had invested in it. We were forced to, over the course of a year, delays of the trial for over a year. We ought to be entitled to the payout now. We had to invest in this process and if we were the winners, gosh, we want that report. Yes, now we want the panel.”
After discussing this matter with the judge who made the initial rulings regarding the screening panels in this case, the district court ruled against Dr. Regehr’s request. The district judge stated:
‘Well, I took the liberty to talk to Judge Friedel again to see what, if anything, could be done to light a fire under [the chairperson of the surgery screening panel]. Judge Friedel assured me he has done everything in his power . . . [and] there is nothing that can be done to speed up the process.
“But the long and short of it is the panel that has the decision, the statute says it [, the anaesthesia panel opinion,] shall be admissible. I don’t think I can withdraw the one, and we have to wait to see if this other, however tardy the panel’s decision comes in, that when it does come in, it is admissible, as well, and it may be midstream in the trial. It may be by Tuesday. I don’t know. It is kind of a procedural quandary, but the statute says it shall be admissible. We have one that is finalized, signed off on, and that is clearly admissible. It would probably be error to withdraw that. And when this [surgeiy panel opinion] one comes in, however late or tardy, it shall be admissible and it may — so I guess, yes, you have made opening statements, started the trial, and this comes in. I guess you have to make your opening statements and present your evidence with the possibility that this panel’s decision is going to be finalized and will come in mid trial and everybody will learn about it for the first time. So I guess you need to kind of hedge your bets on how you make your opening and how you present your evidence.”
On May 30, 2006, the jury selection process started. On that day, Dr. Regehr s counsel revealed he had received an electronic version of the surgery panel’s draft opinion but that he had not yet reviewed it. The plaintiffs then asked the court for authority to issue subpoenas to the screening panel members, even though the members were located more than 100 miles away. Dr. Regehr’s counsel objected on jurisdictional grounds. Instead of ruling on the matter, the district court stated that it would do independent research into the subject. The record does not disclose whether a decision was ever made on that issue. After the surgeiy panel opinion was issued, however, it does not appear that the plaintiffs tried to issue subpoenas to the voting members of the screening panels.
On June 15, 2006, the surgery screening panel issued its opinion. The panel concluded that Dr. Regehr “did not depart from the standard of care in his pre-operative, surgical, and/or post-operative care and treatment of the patient Sheena Walker and that no improper act of or omission by Dr. Regehr caused or contributed to cause injury to and/or the death of the patient.”
After the admission of all of the evidence, including both screening panel reports, the jury entered a no fault verdict.
We dispose of any complaints about the surgery screening panel as invited error.
At first, the plaintiffs consistently resisted the appointment of a medical malpractice screening panel, let alone two. But as the case progressed, the record displays a change of mind. “ Where a party procures a court to proceed in a particular way thereby inviting a particular ruling, that party is precluded from assailing such proceeding and ruling on appellate review.’ [Citations omitted.]” In re Estate of Broderick, 34 Kan. App. 2d 695, 708, 125 P.3d 564 (2005).
Here, Dr. Regehr filed a pretrial motion to dismiss his request for a surgery screening panel. But, at the May 26, 2006, pretrial motions hearing, the plaintiffs argued against Dr. Regehr’s request. Admittedly changing positions, the plaintiffs stated the estate had invested in the process, was entitled to the “payout,” and now wanted that opinion. Later in that hearing, the district court ruled against Dr. Regehr’s request. However, once the parties received the surgery panel opinion disfavoring the plaintiffs, the plaintiffs again objected to the admission of that opinion on June 1, 2006. Relying upon the earlier rulings on this issue, the district judge stated he was unwilling to exclude such evidence from trial, reasoning: “I’m not going to go back and revisit the timing of the request. It’s been ruled upon by another judge and I’m not going to sit here in an appellate position and undo the law of the case established by a prior judge on that issue.”
We deem the circumstances of this case unusual with respect to the reception of the surgery panel report during trial. But, based on these facts, any error in admitting the surgery panel’s opinion into evidence was invited by the plaintiffs, precluding this court from reviewing the due process issue about the surgeiy panel on appeal. The plaintiffs led the district court into ruling that the surgeiy panel opinion would be admissible in trial. Thus, under the ruling in Estate of Broderick, the plaintiffs cannot argue on appeal that the surgery panel opinion should never have been accepted.
After discussing some principles of due process of law, we examine the law of medical malpractice screening panels.
In order to evaluate the plaintiffs’ due process arguments, it is important to review some fundamental points of law. Due process is embodied in § 18 of the Kansas Constitution Bill of Rights and reads: “Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” The due process provision of the United States Constitution is found in the Fourteenth Amendment, which provides in pertinent part that no state shall “deprive any person of life, liberty, or property, without due process of law.” See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 853-54, 942 P.2d 591 (1997). We primarily review the due process contentions because the plaintiffs, as far as we can tell, never asked for the report of the anesthesia panel to be admitted but maintained their objection to the panel.
Moving on to the general concept of screening panels, it is clear that the purposes and procedures of the Kansas Medical Malpractice Screening Panels Act, K.S.A. 65-4901 et. seq., are straightforward and not complicated. “[The Act] was enacted to provide for the early resolution of many medical malpractice claims without the expense and delay of actual litigation. [Citation omitted.]” Smith v. Graham, 282 Kan. 651, 657, 147 P.3d 859 (2006). Importantly, a medical malpractice screening panel is not an administrative body created by law to administer, interpret, or enforce the law. Rather, the Medical Malpractice Screening Panels Act provides a procedure where individuals trained in the field of medicine confer and furnish an impartial determination of whether the health care provider departed from the standard of care in a way which caused the claimant damages. Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1071, 850 P.2d 795 (1993).
K.S.A. 65-4901 authorizes a screening panel to be convened when a medical malpractice petition is filed in district court and one of the parties to the action makes such a request by filing a memorandum. Smith, 282 Kan. at 658. “If the plaintiff and the defendant . . . are unable to jointly select a health care provider within 10 days after receipt of notice that a screening panel has been convened, the judge of the district court or . . . the chief judge of such court shall select such health care provider.” K.S.A. 65-4902. ‘Within 90 days [now 180 days] after the screening panel is commenced, the panel shall make written recommendations on the issue of whether the health care provider departed from the standard of care in a way which caused the plaintiff or claimant damage.” K.S.A. 65-4904(a); see K.S.A. 2008 Supp. 65-4904(a) (amended L. 2008, ch. 80, sec. 7).
Details on how the law is implemented are found in Supreme Court Rule 142 (2008 Kan. Ct. R. Annot. 227). Relevant here is Rule 142(d)(10), describing the information the screening panel shall include in its written opinion.
“(10)The screening panel shall prepare a written report of its findings. . . . The opinion . . . shall:
“B. state whether there was a departure from the standard practice of the health care provider specialty or profession involved and the facts in support of a finding of a departure, if any is found;
“C. if a departure is found, state whether a causal relationship exists between the claimed injury sustained by the plaintiff and such departure. If a causal relationship is found, state the facts in support of such causal relationship; or
“D. if the screening panel is unable to make a finding of either no departure or no causal relationship or hoth, so state giving the reasons therefor.” Rule 142(d)(10) (2008 Kan. Ct. R. Annot. 230-31).
Using this information as our foundation, we will now address the plaintiffs’ due process arguments.
The plaintiffs complain about undue delay of the trial, an unfair hearing, and the prejudicial findings of no “causation ” by the panels.
Highly summarized, the plaintiffs offer three due process arguments. The plaintiffs claim violations under the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights by (1) the admission of the surgery panel’s opinion caused undue delay of the trial; (2) the hearing was unfair because the members of the panel were not present in the courtroom and available for cross-examination; and (3) both screening panels went beyond their statutorily authorized findings by also determining that there was no causation. We will address those contentions in that order.
Delay
Obviously, the screening panels took far longer to do their work than the 90-day time frame outlined in K.S.A. 65-4904(a). One case from our court has addressed this period. White v. VinZant, 13 Kan. App. 2d 467, 473-74, 773 P.2d 1169 (1989), interpreted the 90-day time provision in this statute to be directory and not mandatory.
“[W]e conclude that a screening panel is not prohibited from taking more than 90 days from the date of its commencement to make its written recommendations. K.S.A. 1988 Supp. 65-4904(a) uses the word ‘shall’ in referring to the panel’s issuance of recommendations within 90 days. The word ‘shall’ can be directory rather than mandatory when it is (1) not accompanied by negative words indicating the specific acts can be done in no other manner; or (2) no consequences of noncompliance are included. [Citation omitted.]. K.S.A. 1988 Supp. 65-4904(a) contains neither negative words nor the consequences of noncompliance. Thus, the legislature has directed screening panels to issue their recommendations within the 90-day period but has not totally prohibited a panel from issuing its recommendations outside of this time period.” White, 13 Kan. App. 2d at 473-74 (finding that the 90-day provision of K.S.A. 1988 Supp. 65-4904[a] should not be incorporated into the tolling provision of K.S.A. 65-4908 [Ensley 1985]).
The plaintiffs, admitting the ruling in White weighs against their argument, turn to Martindale v. Tenny, 250 Kan. 621, 829 P.2d 561 (1992), and Roy v. Young, 278 Kan. 244, 93 P.3d 712 (2004), as support. But those two cases offer scant help.
In Martindale, 250 Kan. at 630-31, which Roy upheld, the court found that K.S.A. 65-4905 stays the civil proceedings until the screening panel procedure has been exhausted. See Martindale, 250 Kan. 621, Syl. ¶ 7 (finding that “the filing of a request for medical malpractice screening panel to consider a claim for malpractice” under the provisions of the Medical Malpractice Screening Panels Act “constitutes a ‘claim filed’ as contemplated by K.S.A. 40-3403[h]”); Roy, 278 Kan. at 250-51.
“With regard to the interplay of K.S.A. 65-4905 and K.S.A. 65-4908, the court stated in Martindale:
‘K.S.A. 65-4905 contemplates there will be no formal court action once a screening panel has been requested and K.S.A. 65-4908 tolls any applicable statute of limitations “until thirty (30) days after the screening panel has issued its written recommendations.” Thus the act contemplates that no formal court action should be filed, or if an action has been filed that it be held in abeyance, until the parties have exhausted the screening panel procedure.’ 250 Kan. at 630-31.” Roy, 278 Kan. at 250-51 (upholding this statement in Martindale even though it was dicta).
The facts of this case distinguish it from Martindale and Roy. Here, the district court’s February 4,2004, minutes order indicates that the discovery in the case .continued and was not stayed. Nothing about the delay kept the plaintiffs from taking whatever steps were needed to discover the facts, investigate, preserve testimony, and conduct research. Also it is clear the district court had authority to continue the case rather than stay the proceedings under Su preme Court Rule 142(d)(1): “The judge may enter an order partially or completely staying discovery pending the report of the screening panel.” (Emphasis added.) (2008 Kan. Ct. R. Annot. 228.) Therefore, the law permitted the district court to do what it did. By following the law, the court did not violate due process.
What the plaintiffs really complain about is the continuances of the jury trial. Under K.S.A. 60-240(b), “[t]he court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just.” The granting of a motion for continuance rests within the sound discretion of the trial court, and it will not be disturbed on appeal in the absence of a clear showing of abuse. Security National Bank v. City of Olathe, 225 Kan. 220, 222, 589 P.2d 589 (1979).
In this case, the district court continued the trial for two reasons. First, the plaintiffs’ designees for each of the screening panels had disqualified themselves. Second, once the panels were designated and working, the screening panels’ opinions remained unissued. K.S.A. 65-4904(a) at that time directed screening panels to issue their recommendations within a 90-day period. But the law does not prohibit panels from issuing their recommendations outside this time period. Therefore, we can see this as a legitimate reason for a trial court to delay a trial.
Therefore, in light of the fact that discovery was ongoing and all normal pretrial preparations were not stayed, we hold the district court did not abuse its discretion by continuing the trial for the purpose of receiving the screening panels’ opinions. Since there was no abuse of discretion, we see no due process of law violation by the delay.
Unfair Hearing
The plaintiffs next claim that the hearing was unfair because they were unable to fully cross-examine the members of the screening panels at trial. Specifically, the plaintiffs claim that the “unsigned panel report purporting to contain statements and opinions of the panel members was double hearsay.” Therefore, because none of the members were present in the courtroom for cross-examination, the plaintiffs argue that the screening panels’ opinions were hear say and, thus, wrongly admitted, violating their due process rights to a fair hearing.
This criticism rings hollow under the facts of this case. The plaintiffs never attempted to subpoena the members of the screening panels for trial. Furthermore, we find nothing in the record that shows the district court prohibited such an action. Instead, the record reveals that the plaintiffs tried only to subpoena the chairperson of the screening panels for the purpose of motivating the chairperson to issue the surgery panel opinion. Going further, the plaintiffs failed to base their objections at trial to the admission of these opinions as hearsay. Since the plaintiffs do not show that they were denied the opportunity to subpoena the anesthesia panel members for trial, the plaintiffs have failed to demonstrate that they did not receive, a fair hearing, in contrast with Adams v. St Francis Regional Med. Center, 264 Kan. 144, 168-69, 955 P.2d 1169 (1998), which discussed Linder v. Smith, 193 Mont. 20, 629 P.2d 1187 (1981). In both of those cases, the plaintiff was unable to cross-examine panel members. Here, the plaintiffs had the ability but failed to use it. Failure to follow a procedure cannot be considered a due process violation.
Finding Causation
Finally, the plaintiffs argue that the screening panels’ findings of “no causation” were prejudicial. But, at the March 16, 2004, hearing where the district court directed the panel opinions to include a finding of causation, the plaintiffs did not object to the court’s ruling. Accordingly, because issues not raised before the trial court cannot be raised on appeal, the plaintiffs have failed to preserve this issue for review. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
Via Christi is not affected by the claims of the appellants.
We agree with Via Christi when it argues that the plaintiffs’ arguments on appeal only pertain to Drs. Regehr and Tabor. The screening panels’ reports had nothing to do with the claims against the medical center. The admission of the reports did not benefit Via Christi’s defense or harm the plaintiffs’ case against it. Any judgment made in favor of Via Christi is affirmed.
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Malone, J.:
Cornell Golston appeals his conviction of one count of felony possession of marijuana. Golston claims the district court erred by denying his motion to suppress the evidence. Golston was the passenger in a vehicle initially stopped for a traffic infraction, and the police detained the driver and Golston while they waited for a drug dog to arrive. Golston argues that his rights under the Fourth Amendment to the United States Constitution were violated because the officers lacked reasonable suspicion specific to Golston to justify the length of his detention. Golston further ar gues that he was subjected to an illegal patdown for officer safety, which led to the discovery of marijuana in his shoe.
Some background information is necessary to understand the facts. Over a 2-year period, Wichita Police Officer Brad Elmore had received information from several citizens complaining about drug activity at the Amoco gas station located at 2001 E. 21st Street North in Wichita. Elmore had arrested several persons who either worked at that Amoco or who were frequently seen at that Amoco. One of the persons Elmore had arrested was Umana Smith. Smith was an Amoco cashier and Blood gang member whom Elmore had arrested for possession of cocaine and marijuana.
On July 30, 2003, Elmore recognized Smith’s car in the Amoco parking lot and he began conducting surveillance of the station for possible drug activity. At about 10:30 p.m., Elmore noticed a vehicle pull into the station driven by a man wearing Blood gang member colors, who was later identified as Billy Anderson. Elmore recognized the passenger of the vehicle, Samuel Cobos, as a documented gang member. Elmore ran a check on the license plate of the vehicle and discovered it was a rental car, which he considered a possible indicator of drug-related activity. The two men entered the Amoco for about 5 minutes and left without purchasing gas.
Elmore followed Anderson and Cobos to an apartment complex where Cobos exited the vehicle and contacted four or five individuals who appeared to be waiting for him in the parking lot. From past experience, Elmore knew that drug dealers often completed deals in parking lots. Shortly thereafter, Anderson left the apartment complex without Cobos, and Elmore followed Anderson back to the Amoco. Anderson briefly entered the Amoco and then returned to the vehicle with another man later identified as Golston. Anderson and Golston left the Amoco, again without purchasing gas.
Elmore followed Anderson and Golston as they left the Amoco. He observed Anderson’s vehicle rapidly pick up speed to approximately 50 m.p.h. in a 35-m.p.h. zone, and the vehicle also crossed the center line for approximately 200 feet. Elmore then radioed uniformed officer Eduardo Padrón to stop the vehicle for the traf fic infractions. Elmore advised Padrón of his observations that evening and his suspicion of possible drug activity.
When Padrón stopped the vehicle, he recognized Golston from prior dealings and he knew Golston was a documented gang member. Padrón approached Anderson and obtained his driver s license. Another officer arrived at the scene and recognized Anderson from a prior stop involving drugs within the last 2 weeks. Padrón ran Anderson’s and Golston’s names through the Wichita Police Department’s Special Police Information Data Entry Retrieval (SPIDER) system, which confirmed that both men were documented gang members and that Anderson was on supervised release from prison. Before returning to the vehicle with the citation for the traffic infractions, Padrón called for a drug dog. Padrón approached Anderson and asked for consent to search the vehicle, but Anderson refused. Padrón informed Anderson that he had already called for a drug dog and he would have to wait.
Before the drug dog arrived, Padrón asked Anderson and Golston to step out of the vehicle. Padrón was concerned that Anderson or Golston, as known gang members, might have weapons to protect any drugs or money they might be carrying. Padrón informed Golston that he was going to pat him down for officer safety. Golston responded, “Go ahead and check my pockets; I ain’t got nothing on me.” While performing the patdown, Padrón noticed something in Golston’s pants pocket. Padrón requested permission to go into Golston’s pocket, and Golston consented. Padrón retrieved a large wad of money, which he immediately returned to Golston’s pocket. As he continued with the patdown, Padrón observed a plastic baggie sticking out of Golston’s shoe. Padrón asked Golston what was in his shoe, and Golston responded he had “a little weed.” Padrón pulled the baggie out of Golston’s shoe and arrested him.
The State charged Golston with felony possession of marijuana after a prior conviction. Golston subsequently file a motion to suppress the evidence. The district court held an evidentiary hearing on the motion, combined with a bench trial. Elmore, Padrón, and Golston testified. Golston testified that the stop lasted for 20 to 30 minutes before Padrón asked him to exit the vehicle. Golston also testified that Padrón had stuck his finger into Golston’s shoe while patting him down without Golston’s permission. According to Golston, only after Padrón pulled the plastic baggie out of his shoe did Golston make the statement that it contained weed.
The district court found the initial stop was justified by the traffic infractions. To the extent that Golston’s testimony differed from Padron’s, the district court found Padrón more credible. The district .court determined that the officers had reasonable suspicion to continue the stop based on the totality of the circumstances, including Amoco’s reputation as a place where illegal drug activity occurs, the movement of the individuals in the vehicle to several different locations in a short period of time, and the additional information gained after the stop. The district court further found that Padrón legally conducted a patdown of Golston for officer safety and that Padrón discovered the baggie because it was in plain view. Accordingly, the district court denied Golston’s motion to suppress the evidence. The district court found Golston guilty as charged and imposed a presumptive sentence. Golston appeals.
Golston claims the district court erred by denying his motion to suppress the evidence. Specifically, Golston argues that his Fourth Amendment rights were violated because the officers lacked reasonable suspicion specific to Golston to justify the- length of his detention. Golston also claims that he was subjected to an illegal patdown for officer safety because: (1) Padrón did not reasonably fear for his safety; (2) Golston’s consent to the patdown was invalid; and (3) Padron’s patdown exceeded the scope of a patdown for weapons.
An appellate court reviews the district court’s decision on a suppression motion using a bifurcated standard. Without reweighing the evidence, the appellate court reviews the district court’s findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Was Golston lawfully detainedP
Golston argues that he was unlawfully detained while die police waited for a drug, dog to arrive. Padrón did not testify how long the traffic stop lasted, but Golston testified the stop lasted for 20 to 30 minutes before Padrón asked him to exit the vehicle. Golston does not claim that he ever requested to leave the scene of the traffic stop. However, the State does not dispute that both Anderson and Golston were being detained until a drug dog could arrive to investigate for drugs.
Before we analyze Golston’s specific claims, we note that the Kansas Supreme Court has already addressed the facts of this case regarding the driver, Anderson, in State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006). In Anderson, the court concluded that Padrón properly stopped the car for the traffic infractions and had reasonable suspicion to continue the stop after returning Anderson’s driver’s license and issuing the citation:
“The State asserts that the officers had ample information to support a reasonable suspicion that Anderson was engaged in illegal drug activity; thus they were permitted to extend Anderson’s detention beyond the conclusion of the traffic stop to allow time for the drug dog sniff of the truck. We agree. As stated by the Court of Appeals:
“ ‘In the instant case, at the conclusion of the traffic stop, the officers had the following information: Anderson, along with documented gang member Cobos, had been at the Amoco station where there was suspected drug activity and there had been numerous arrests of individuals leaving the station; the Amoco station’s cashier was a documented Bloods gang member and had been convicted the previous year for possession of drugs; after leaving the Amoco station, Anderson went momentarily to the parking lot of an apartment complex where his truck was immediately surrounded by four Hispanic men . . .; Anderson was wearing Bloods gang colors and was a documented gang member; Anderson was on parole; [one officer] had observed Anderson speeding and driving left of the center fine; during a previous stop, [another officer] had learned that Anderson was carrying $4,000 on his person; and [that officer] previously received information that narcotics detectives were looking into Anderson’s activities relating to narcotics trafficking.
“ We believe that the combination of the above factors would cause an officer to be reasonably suspicious of drug activity in this case and would warrant further detaining Anderson. Importantly, an officer “does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.” State v. Finley, 17 Kan. App. 2d 246, 251, 838 P.2d 904, rev. denied 251 Kan. 940 (1992). Although the officers had not observed any unlawful conduct [other than the traffic infractions] by Anderson, they were able to point to several facts which would cause a reasonable person to suspect that possible drug activity was taking place. Therefore, the officers were justified in detaining Anderson after the conclusion of the traffic stop.’ [State v.] Anderson, 34 Kan. App.2d [375] at 386-87[, 119 P.3d 1171 (2006)].” Anderson, 281 Kan. at 903-04.
Golston concedes that the Kansas Supreme Court has already determined that the officers acted lawfully in stopping Anderson, the driver, and detaining him until the drug dog arrived. However, Golston attempts to distinguish Anderson by arguing that the Supreme Court in that case did not expressly address reasonable suspicion as to the passenger of the vehicle. Golston contends that even if the officers had reasonable suspicion to extend the duration of the stop as to Anderson, the officers lacked reasonable suspicion specific to Golston to justify the length of his detention. Golston asserts that the officers’ knowledge of his gang membership was insufficient to establish reasonable suspicion of criminal activity.
We begin our analysis by examining the applicable Constitutional provisions. The Fourth Amendment to the United States Constitution guarantees that “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment. State v. Morris, 276 Kan. 11, Syl. ¶ 3, 72 P.3d 570 (2003).
A traffic stop is a seizure within the meaning of the Fourth Amendment. State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999). A traffic infraction provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual. Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). When a law enforcement officer makes a traffic stop, the driver and any passengers in the car are seized within the meaning of the Fourth Amendment. A passenger, therefore, has standing to challenge the constitutionality of a stop. Brendlin v. California, 551 U.S. 249, 255, 168 L. Ed. 2d 132, 127 S. Ct. 2400 (2007).
Once an officer lawfully detains a vehicle for a traffic violation, the officer may order the driver out of the vehicle without any reasonable suspicion that’ the driver poses a safety risk. Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977). In Maryland v. Wilson, 519 U.S. 408, 414-15, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997), the Supreme Court applied the same rule to passengers. However, an officer may conduct a safety patdown for firearms or other dangerous weapons, sometimes called a frisk, only when the officer reasonably suspects that the person stopped is-armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); see K.S.A. 22-2402.
Kansas law is clear that a traffic stop, like any investigative detention, must be reasonably related in scope to the circumstances which justified the interference in the first place. State v. Mitchell, 265 Kan. 238, Syl. ¶ 3, 960 P.2d 200 (1998). A law-enforcement officer conducting a routine traffic stop may request a driver’s licence and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. 265 Kan. 238, Syl. ¶ 4. However, if an officer has a reasonable and articulable suspicion of illegal activity, such as drug possession or trafficking, the officer may detain the driver for further questioning or investigation. State v. DeMarco, 268 Kan. 727, 734, 952 P.2d 1276 (1998). The officer may also extend the duration of the traffic stop if the driver consents to the continuation. State v. Thompson, 284 Kan. 763, 774-76, 166 P.3d 1015 (2007).
In Arizona v. Johnson, 555 U.S. 323, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009), the United States Supreme Court addressed the detention and patdown of a passenger during a routine traffic stop under facts similar to Golston’s case. In Johnson, three officers from Arizona’s gang task force were on patrol in a neighborhood associated with the Crips gang. At approximately 9 p.m., the officers stopped a vehicle after a license plate check revealed the vehicle’s registration was suspended for an insurance-related violation. The officers did not have reasonable suspicion of any other criminal activity. One of the officers ordered the driver out of the vehicle and ordered all the passengers to keep their hands visible. A female officer noted the defendant, who was the back-seat passenger, kept his eyes on the officers, was wearing clothing she considered consistent with Crips membership, and had a police scanner in his pocket. In response to the officer s questions, the defendant provided his name and date of birth but said he had no identification with him. The defendant further indicated that he was from Eloy, Arizona, a place the officer knew was a home to the Crips gang, and that he had served time in prison.
Although not related to the scope of the stop for the registration violation, the officer decided she wanted to question the defendant further about his gang membership. She asked the defendant to step out of the car, and he complied. Based on her observations and the defendant’s answers to her prior questions, the officer suspected the defendant might have a weapon. Accordingly, she frisked him for officer safety. During the frisk, she felt a gun near the defendant’s waist. The defendant began to struggle, but the officer handcuffed him.
As a result of the incident, the State of Arizona charged the defendant with illegal possession of a weapon. The defendant moved to suppress the evidence as the fruit of an unlawful search. The trial court denied the motion, concluding that the stop was lawful and the officer had cause to suspect the defendant was armed and dangerous. A jury convicted the defendant of the gun-possession charge.
A divided panel of the Arizona Court of Appeals reversed the defendant’s conviction. State v. Johnson, 217 Ariz. 58, 170 P.3d 667 (Ariz. App. 2007). The majority recognized that the defendant was lawfully seized when the officers stopped the car. However, the majority reasoned that prior to the frisk the detention had evolved into a consensual encounter. Absent reason to believe the defendant was involved in criminal activity, the court held that the officer had no right to pat the defendant down for weapons, even if the officer had reason to suspect the deféndant was armed and dangerous. The Arizona Supreme Court denied review.
In a unanimous opinion, the United States Supreme Court reversed the judgment of the Arizona Court of Appeals. 555 U.S. at 334. The Supreme Court held that, in a traffic-stop setting, “it is lawful for police to detain an automobile and its occupants pending inquiiy into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.” 555 U.S. at 327. The Court recognized that traffic stops are fraught with dangers to police officers. However, if officers routinely exercise unquestioned command of the situation, the risk of harm for officers, drivers, and passengers is reduced. 555 U.S. at 330. After reviewing its prior decisions in Mimms, Wilson, and Brendlin, the Court determined that in a routine traffic stop, the driver and all passengers are seized from the time the officers initiate the stop until the stop has concluded. The Court stated:
“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation'. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. [Citation omitted.] An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. [Citation omitted.] (Emphasis added.) 555 U.S. at 333.
As for the patdown, the Supreme Court determined that to justify a patdown of the driver or a passenger during a traffic stop, the officer must have reasonable suspicion that the person subjected to the frisk is armed and dangerous. The Court held that under the circumstances the officer s patdown of the defendant did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures, and the Court remanded the case for further proceedings. 555 U.S. at 332-34.
Johnson is distinguishable from Golston’s case in one important way. Johnson involved a routine traffic stop for a registration violation. Without engaging in any significant analysis, the Supreme Court apparently determined that an officer asking a passenger for his name, birth date, and identification, questioning him about his gang membership, ordering him out of the vehicle, and patting him down for officer safety did not “measurably extend the duration of the stop.” See 555 U.S. at 333. Here, the evidence is un disputed that Golston s detention was extended beyond the conclusion of the traffic stop. After Padrón issued the citation to Anderson and he refused consent to search the vehicle, Padrón informed Anderson that he would have to wait for a drug dog to arrive. Golston testified that the stop lasted for 20 to 30 minutes before Padrón asked him to exit the vehicle. Because the State does not dispute that both Anderson and Golston were detained beyond the duration of the traffic stop, Padrón needed reasonable suspicion to justify the length of the stop as to both suspects.
The State argues that under the totality of the circumstances, there was reasonable suspicion specific to Golston to justify the length of his detention. We agree. Although Golston had been in the car for only a brief period of time before the stop, Padrón still had reason to suspect that Golston was engaged in drug activity, based largely on the information Elmore had gathered. At the time the duration of the car stop was extended, Padrón knew the following information about Golston: (1) He had just come from an Amoco known for drug activity and where several arrests for drug-related crimes had occurred over the past 2 years, (2) he was in the SPIDER database as a documented gang member, (3) he was with Anderson who was on supervised release from prison and had been involved in a prior stop involving drugs within the last 2 weeks, and (4) Anderson had just driven Cobos from the Amoco to a suspected drug deal and it now appeared that Anderson was driving Golston from the Amoco to another possible drug deal.
As the court stated in Anderson, an officer “does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.” 281 Kan. at 904. Under the totality of the circumstances, Padrón could point to several facts which would cause a reasonable person to suspect that Golston was involved in drug activity along with Anderson. Thus, we conclude that Golston was lawfully detained by Padrón for the duration of the stop.
Was the patdoum lawful?
Golston argues that he was subjected to an illegal patdown for three reasons. First, Golston argues that Padrón did not reasonably fear for his safety. As we have stated, once a law enforcement officer has lawfully stopped a person, the officer may conduct a patdown for firearms or other dangerous weapons when the officer reasonably suspects that his or her personal safety requires it. K.S.A. 22-2402(2); Terry, 392 U.S. at 30. Thus, in order for Padrón to pat down Golston for officer safety, Padrón needed reasonable suspicion under the totality of the circumstances that Golston posed a possible threat to officer safety.
Here, at the time Padrón conducted the officer-safety patdown, he knew the following facts about Golston: (1) He was in the SPIDER database as a documented gang member, (2) he was with a known gang member who was on supervised release from prison and had been involved in a prior stop involving drugs within the last 2 weeks, (3) he had just come from an Amoco known for drug activity and where several arrests for drug-related crimes had occurred over the past 2 years. Padrón had several articulable reasons to be concerned that Golston, as a known gang member, might have a weapon to protect any drugs or money he might be carrying. Considering all the evidence, we have no difficulty concluding that Padrón reasonably feared for his safety when he patted down Golston for weapons.
Second, Golston argues that his consent to the patdown was not voluntary. However, Golston’s argument is misplaced. Consent is not a necessary prerequisite to an officer-safety patdown for weapons. As long as the officer reasonably suspects that his or her personal safety requires it, the officer may conduct a patdown without the consent of the suspect. K.S.A. 22-2402(2). An officer-safety patdown is not the same as a search of the suspect, which requires either probable cause to search or consent.
Third, Golston argues that Padron’s patdown exceeded the scope of a patdown for weapons. Generally, a patdown maneuver only allows an officer to pat down a person’s outer clothing without placing the officer’s hands inside any pockets or under the outer surface of any garment, unless or until a weapon is found. See Terry, 392 U.S. at 30. Golston argues that when Padrón found the baggie in Golston’s shoe, he was acting beyond the limited scope of an officer-safety patdown.
Here, Padrón testified that while he was conducting the patdown he observed a plastic bag sticking out of Golston’s shoe. Padrón asked Golston what was in his shoe, and Golston responded he had a little weed. Padrón then pulled the baggie out of Golston’s shoe and arrested him. Although Golston testified that Padrón stuck his finger into Golston’s shoe as part of the patdown without Golston’s permission, the district court found Padron’s testimony more credible. This court does not reweigh the evidence, and Padron’s testimony provides substantial competent evidence that Padrón observed the baggie in plain view while conducting the patdown. See Woolverton, 284 Kan. at 70.
Finally, Golston maintains that Padron’s question about what was in Golston’s shoe constituted a custodial interrogation in violation of Miranda. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). However, Golston admits that he failed to raise this argument before the district court. Generally, issues not raised to the district court will not be addressed for the first time on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Accordingly, we will not consider Golston’s argument that his rights under Miranda were violated.
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Malone, J.:
Travis Gunner Long appeals the district court’s determination of his criminal history following his conviction of one count of possession of methamphetamine. Specifically, Long claims the district court erred by including three prior uncounseled misdemeanor convictions in his criminal history. Long also claims his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt.
On December 29, 2003, the State charged Long in Finney County District Court with one count of possession of methamphetamine and one count of driving with a suspended license. Long failed to appear at a hearing on July 12,2004, and the district court forfeited his bond and issued a bench warrant for his arrest. Long was subsequently apprehended, and on February 22,2007, he pled no contest to possession of methamphetamine. In exchange, the State agreed to dismiss the count of driving with a suspended license, and the State agreed not to file charges against Long for his aggravated failure to appear. As part of the plea agreement, the State agreed to recommend a durational departure of half the standard range of Long’s presumptive sentence.
The district court ordered a presentence investigation (PSI) report. Long’s criminal history worksheet included convictions of two counts of battery in Garden City Municipal Court case No. 96 MCR 0061 and one count of battery in case No. 96 MCR 1386. The three person misdemeanor convictions were rated as one person felony conviction for criminal history purposes. Long filed an objection to his criminal history and he put the State on strict proof as to the validity of his prior misdemeanor convictions. Long argued that he did not have appointed counsel for the misdemeanor convictions and he served jail time for the uncounseled misdemeanors. Therefore, according to Long, the misdemeanor convictions could not be included in his criminal history.
The district court conducted a hearing, and the records from the Garden City Municipal Court were admitted into evidence. The records showed that Long was convicted of one count of battery in case No. 95 MCR 1386, rather than case No. 96 MCR 1386 as listed in the PSI report. According to the records, Long’s sentence in case No. 95 MCR 1386 was 1 year of probation, alcohol evaluation and counseling for a minimum of 1 year at an area mental health facility, a fine of $1,000 suspended to $200 and to be paid at $100 per month, and court costs to be paid in 30 days. Long was convicted of two counts of battery in case No. 96 MCR 0061, and the municipal court imposed a sentence of 1 year of probation, alcohol evaluation and counseling at an area mental health facility for a minimum of 1 year, court costs to be paid in 30 days, and a fine of $1,000 on each count suspended to $200 as long as probation was completed. The municipal court records clerk testified there was no indication that Long was ordered to serve any jail time as a result of the battery convictions.
However, the municipal court records further showed that on July 24, 1998, Long was found guilty of indirect contempt for failure to pay his fines and court costs in three cases, including 95 MCR 1386 and 96 MCR 0061. Long was represented by counsel at the contempt hearing. The municipal court judge sentenced Long to 6 months in jail, but the court suspended the sentence and gave Long the opportunity to “purge himself of contempt by making payment of not less than $100 per month beginning July 10, 1998.” The records did not reflect whether Long actually served time in jail on the contempt sentence or whether he purged himself of contempt by making payment on the fines.
After considering the evidence and reviewing the applicable case law presented by the parties, the district court judge stated:
“Well, as I understand the objection to the Defendant’s criminal history, the issue is whether or not these municipal court battery convictions were counselled or uncounselled and if they were uncounselled, whether or not there was a waiver of counsel. In that regard, the State of Kansas has failed to establish and cannot establish whether or not the misdemeanor battery convictions were counselled or uncounselled or whether there was a waiver of counsel.
“What I think the State of Kansas has been able to establish by a preponderance of the evidence, that in each of these cases, no jail sentence was imposed.
“By virtue of that determination, these battery convictions are properly a part of and should be counted in connection with Mr. Long’s criminal history.”
Accordingly, the district court included the misdemeanor convictions in Long’s criminal history and determined that he had a criminal history score of C. The district court granted Long a durational departure and sentenced him to 15 months in prison. Long timely appeals.
On appeal, Long claims the district court erred by.overruling his objection to his criminal history. Because Long was ordered to serve jail time for contempt, based on his failure to pay fines and court costs, Long asserts his uncounseled misdemeanor convictions resulted in incarceration and should not have been included iu his criminal history. Long also claims his constitutional rights- were violated because his criminal history was not proven to a jury beyond a reasonable doubt.
Proof of criminal history
Long first claims the district court erred by overruling his.objection to his criminal history. The parties agree this issue involves interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
We begin our analysis by reviewing the applicable statutes governing the determination of criminal history. All prior convictions must be included in a defendant’s criminal history unless they are an element of the present crime, enhance the severity level or applicable penalties, or elevate the classification of the present crime from a misdemeanor to a felony. K.S.A. 21-4710(d)(11). The criminal history worksheet satisfies the State’s burden to prove a defendant’s criminal history unless the defendant contests the worksheet. K.S.A. 21-4715(b) and (c). If the defendant files a specific and timely objection to the criminal history, the State is required to produce further evidence to establish the disputed portion of the criminal history by a preponderance of the evidence. K.S.A. 21-4715(c).
When determining a defendant’s criminal history score, three person misdemeanor convictions constitute one adult person felony conviction:
“Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.” K.S.A. 21-4711(a).
The issue here is whether Long’s prior person misdemeanor convictions may be considered in the calculation of his criminal history score even though he was not represented by counsel when he was convicted of the misdemeanors.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant’s right to state-appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). For a misdemeanor, the right to counsel attaches in any case that actually leads to imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 33-37, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). In this context, imprisonment includes incarceration in a county jail.
In Kansas, a defendant also has a statutory right to counsel in a prosecution in municipal court:
“If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.” K.S.A. 12-4405.
Long’s argument focuses entirely on his constitutional right to counsel and not on the statutory right. An issue not briefed by the appellant is deemed waived or abandoned. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
In Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), the Court held that a defendant has no right to appointed counsel in a misdemeanor case when the defendant receives a fine instead of a jail term at sentencing, even if the governing statute authorizes a jail sentence. According to the Court, whether actual imprisonment occurred defines the constitutional right to appointment of counsel in misdemeanor cases. 440 U.S. at 373-74. Thus, under Scott and Argersinger, the Court articulated an “actual imprisonment” rule for the necessity of appointed counsel in misdemeanor cases.
In Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994), the defendant was convicted of conspiracy to distribute cocaine and his sentence was enhanced based on a prior uncounseled misdemeanor conviction for which no prison term had been imposed. The Court held that, consistent with the Sixth and Fourteenth Amendments, if an uncounseled misdemeanor conviction is valid under Scott because no prison term was imposed, then the conviction also may be used to enhance a later sentence. 511 U.S. at 748-49.
In State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), the Kansas Supreme Court embraced the actual imprisonment rule for uncounseled misdemeanors used to establish a defendant’s criminal history under the KSGA. In Delacruz, the defendant pled guilty to a felony, and his criminal history worksheet included three prior misdemeanor battery convictions. For two of the misdemeanor convictions, the court imposed a fine and no jail sentence. On the third misdemeanor conviction, however, the court imposed a fine and a sentence of 90 days in jail. 258 Kan. at 130-31.
Noting that two of the misdemeanor convictions were valid under Scott because the defendant did not serve any prison time, the court held that those convictions could be used to determine the defendant’s criminal history under the sentencing guidelines. 258 Kan. at 135. For the misdemeanor conviction that resulted in jail time, the Supreme Court remanded for the district court to determine whether the defendant had counsel or waived his right to counsel. The court held that unless the State could produce evidence that the defendant was either represented by counsel or waived counsel, the conviction was unconstitutional under Scott and could not be used in the defendant’s criminal histoiy. 258 Kan. at 136.
In State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001), the defendant claimed he had received ineffective assistance of counsel at sentencing. To resolve this issue, the court analyzed whether three prior misdemeanor batteiy convictions were properly in- eluded in the defendant’s criminal history. In one of the prior convictions, the defendant had been ordered to and did serve jail time. In the other two prior convictions, the defendant had received a suspended sentence or probation and did not serve jail time. The court concluded that the prior conviction that resulted in jail time could not be counted for enhancement because the record did not show that the defendant was represented by counsel or waived his right to counsel. 28 Kan. App. 2d at 789-91. As for the other two convictions, the court held that an uncounseled misdemeanor conviction involving a suspended sentence or probation that does not result in incarceration may be included in a defendant’s criminal history under the KSGA, even though the conviction has the effect of enhancing the defendant’s sentence under the guidelines. 28 Kan. App. 2d at 789.
Following these cases, the United States Supreme Court decided Alabama v. Shelton, 535 U.S. 654, 152 L. Ed. 2d 888, 122 S. Ct. 1764 (2002). In Shelton, the defendant was convicted of a misdemeanor and sentenced to serve 30 days in the county jail. However, the court suspended the sentence and placed the defendant on 2 years’ unsupervised probation conditioned on his payment of court costs, a fine, reparations, and restitution. The defendant appealed his conviction and sentence, claiming a violation of his Sixth Amendment rights and arguing that his suspended sentence triggered his right to appointed counsel even though he remained on probation and had not been deprived of his liberty. The Alabama Supreme Court agreed and reasoned that a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. The Alabama court affirmed the defendant’s conviction and the monetary portion of his punishment but invalidated that aspect of the defendant’s sentence imposing suspended jail time. 535 U.S. at 659-60.
The United States Supreme Court affirmed the decision of the Alabama Supreme Court and held that a suspended sentence that may result in the actual deprivation of a person’s liberty may not be imposed unless the defendant was accorded “ ‘the guiding hand of counsel’ ” in the prosecution for the crime. 535 U.S. at 658. The Court reaffirmed the controlling rule that absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless that person was represented by counsel at trial. Applying this “actual imprisonment” rule, the Court determined that failure to appoint counsel to represent an indigent defendant barred the imposition of a suspended or probationary sentence upon conviction of a misdemeanor. 535 U.S. at 674.
The Tenth Circuit Court of Appeals applied Shelton in United States v. Jackson, 493 F.3d 1179 (10th Cir. 2007). In Jackson, the defendant was convicted of felony drug charges, and his sentence was enhanced based on prior uncounseled misdemeanor convictions. In the misdemeanor convictions, the defendant had been ordered to pay a fine and sentenced to 90 days in custody, all of which was suspended. The Tenth Circuit held that under Shelton, a federal sentencing court may take into account a defendant’s previous uncounseled misdemeanor convictions, together with any sentence that does not impose imprisonment, notwithstanding the fact that the sentencing court is constrained to disregard the portion of the sentence imposing suspended jad time:
“As defined at least so far by Argersinger and Scott, and recently reaffirmed by Shelton, the Sixth Amendment right at issue protects individuals against being sentenced to a deprivation of liberty without the benefit of counsel; accordingly, we held, the proper remedy was to vacate that portion of the sentence offensive to the Sixth Amendment without doing harm to the defendant’s conviction or the remaining, constitutionally inoffensive, portions of his sentence. To go further, to hold tire conviction and fine portion of a sentence infirm, would be to reheve the defendant from any consequence of his or her actions despite guidance from Scott and Nichols and now Shelton that uncounseled misdemeanor convictions and non-prison sentences may be given respect and effect consistent with the Sixth Amendment’s remedial purposes.” 493 F.3d at 1183.
Therefore, in light of Shelton and Jackson, the Kansas precedents found in Delacruz and Allen regarding the use of prior uncounseled misdemeanors to enhance a defendant’s sentence under the KSGA still apply. In the case of a prior uncounseled misdemeanor conviction for which the defendant received a suspended sentence or probation that does not result in incarceration, the conviction remains valid and may be included in the defendant’s criminal history even though the suspended sentence or probation is invalid.
Returning to our facts, Long’s municipal court sentences for his battery convictions are somewhat difficult to understand. Long was fined for each of his convictions, and the fines were suspended or reduced provided that payments were made in a timely manner. The municipal court did not impose a jail sentence upon Long for any of his convictions. However, Long’s sentence in each case referred to a 1-year probation, which was more akin to a suspended sentence since the court never imposed jail time. Under Shelton, Long’s misdemeanor convictions and his fines remain valid even though the probation aspect of Long’s sentence is invalid.
We must still resolve the question of whether Long was incarcerated as a result of his misdemeanor convictions. Long was fined for each of his misdemeanor convictions on May 29,1996. On June 24, 1998, Long was found in contempt of the municipal court for failure to pay his fines and court costs. Long was represented by counsel at the contempt hearing. It appears from the hearing dates that Long was no longer serving his 1-year probation at the time of the contempt hearing. The municipal court judge sentenced Long to 6 months in jail for contempt, but suspended the sentence and gave Long the opportunity to purge himself of the contempt by making payments on his fines. We do not know whether Long served jail time for the contempt sentence or whether he purged himself of the contempt by paying his fines.
K.S.A. 12-4510 provides that when a municipal court levies a fine as punishment, the defendant’s failure to pay the fine in the manner specified may constitute contempt of court. K.S.A. 12-4106(a) further provides that a municipal judge has the same power as a district judge to imprison a defendant for contempt. Here, whether Long served jail time for the contempt does not impact our analysis of his criminal history. An indirect contempt proceeding is governed by K.S.A. 20-1204a and is separate and distinct from a criminal prosecution. See K.S.A. 21-3102(3) (“This code does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.”). Moreover, Long was represented by counsel at the contempt hearing.
The municipal court never revoked Long’s probation and ordered him to serve jail time for his battery convictions. Instead, the municipal court found Long in indirect contempt of court for failure to pay his fines and court costs. Under these circumstances, Long’s prior misdemeanor convictions could still be included in his criminal history even if Long served jail time for contempt of court. See United States v. Haymer, 995 F.2d 550 (5th Cir. 1993) (defendant’s prior uncounseled misdemeanor conviction was properly included in criminal history score although defendant had later been jailed for contempt of court for failure to pay misdemeanor fines).
Although the record on appeal is sparse, it appears that Long was sentenced to jail based on his willful failure to pay his fines and court costs. As the records clerk testified, there was no indication from the municipal court records that Long was ordered to serve any jail time as a result of his battery convictions. In fact, the municipal court never imposed a jail sentence upon Long for any of his convictions. It is true that Long would have never faced a contempt charge had he not been initially convicted of battery. But this does not mean that Long’s battery convictions caused him to serve time in jail. If Long served any time in jail in either of his municipal court cases, the jail time was for being in contempt of court and not for the battery convictions.
After considering the evidence, the district found that the State had established by a preponderance of the evidence that no jail sentence was imposed on Long for his uncounseled misdemeanor convictions. The records from the municipal court as well as the testimony of the records clerk support the district court’s findings. We conclude the district court correctly included Long’s prior uncounseled misdemeanor convictions in his criminal history score. Accordingly, the district court did not err in overruling Long’s objection to his criminal history.
Apprendi issue
Finally, Long claims that his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), were violated because his criminal history was not proven to a jury beyond a reasonable doubt. This argument was rejected in State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. Noone v. Chalet of Wichita, 32 Kan. App. 2d 1230, 1236, 96 P.3d 674, rev. denied 278 Kan. 846 (2004). Moreover, our Supreme Court has recently affirmed Ivory. See, e.g., State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008). Therefore, Ivory controls, and Long’s argument fails.
Affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Andrew J. Mayberry brought this action against John A. Perrine, and Emeline, his wife, to compel them to specifically perform an alleged contract for the sale of a tract of land. The petition recites, among other things:
“That heretofore, to wit, on or about the 14th day of September, 1871, said defendant John A. Perrine, then being married to the defendant Emeline Perrine, entered into a written contract with the Atchison, Topeka & Santa Eé Railroad Company, a corporation duly organized under the laws of the state of Kansas, by the terms of which contract said John A. Perrine agreed to purchase of said railroad company a certain piece and parcel of land lying and being in the county of Harvey and state of Kansas, and described as follows, to wit: The southeast quarter of section number one, in township number twenty-four south, of range number one, east of the sixth principal meridian, containing one hundred and sixty acres, more or less, according to the United States surveys; that said written contract is not in the possession or within the coutrol or reach of this plaintiff, and it is impossible for him to procure the same or a copy thereof; that by the terms and conditions of said contract the said John A. Perrine was to pay for said laud the sum of $-in annual installments, the last payment to be made upon the 14th day of September, 1882; and that upon the full payment of said sum and amount of money, with the interest and charges thereon, said railroad company agreed to execute and deliver to said John A. Perrine a deed of general warranty, with the usual covenants therein for said land.; that on or about the 28th day of January, 1874, the said John A. Perrine and Emeline Perrine, having ascertained that they would not be able to meet the payments as they would become due by virtue of said contract, proposed to this plaintiff that if he would pay the said John A. Perrine the sum of one hundred and seventy-five dollars, and afterward pay one-half of all subsequent payments falling due to said railroad company for the purchase-money of said premises, that the said plaintiff should be considered and held to be the owner of the west one-half of said quarter-section of land, and that when such payments were all made,, and said railroad company should, in pursuance of its contract with said John A. Perrine, execute to him a deed conveying to him the legal title to said premises, the said defendants should immediately convey to this plaintiff, by a deed of general warranty with the usual covenants, the said west one-half of said premises; that this plaintiff, accepted said proposition, and thereupon paid to said John A. Perrine the sum of one hundi’ed and seventy-five dollars; . . . that in pursuance of said contract, the plaintiff, in the month of September, in the years 1874, 1875, and 1876, duly paid to said defendant John A. Perrine one-half of all the money falling due to said railroad company under said Perrine’s contract of purchase from said company; that on or about the-day of September, 1877, at the instance and request of the said defendants, this plaintiff made a full settlement for the west one-half of said quarter-section of land by then paying to said Perrine the sum of three hundred and twenty-five dollars, or thereabouts, as nearly as plaintiff can recollect, the same so paid being the full amount of one-half of all the payments yet to become due to said railroad company upon said contract of purchase from said railroad company to said Perrine, and that in consideration of said payment so made, and the payments made prior thereto by this plaintiff to said defendant, the defendants then verbally agreed with this - plaintiff that they would make punctual payments of all sums yet to fall due to said railroad company at the' time the same should become due, and that they would, when said railroad company should deed said land to said John A. Perrine, make to this plaintiff a good and sufficient warranty deed with the usual covenants therein.”
At the trial, a jury was impaneled to answer certain questions of fact at issue in the case. Among other things, the jury found specially, that Mayberry entered into an agreement with John A. Perrine, and Emeline, his wife, jointly, by the terms of which the defendants agreed to convey to Mayberry the land in controversy, for the sum of six hundred and eighty-one dollars and eighty-eight cents; that Emeline Perrine made the proposition to Mayberry to sell him this land, at his first visit to Kansas, when at Perrine’s house, in January, 1874; that Mayberry, after making such agreement, and in pursuance thereof, went into the immediate, actual, and exclusive posses sion of the land, with the knowledge and consent of the defendants; that Mayberry paid the defendants the money required under the agreement, and also performed all of its conditions; that Mayberry has been in the continuous and undisturbed possession and occupation of the land, with the knowledge and consent of the defendants, ever since the making of the agreement; that Mayberry has made valuable and lasting improvements upon the land, consisting of buildings, orchards, trees, hedges, etc., of the value of fourteen hundred dollars, with the knowledge and consent of the defendants; that John A. Perrine, and Emeline, his wife, abandoned the use and occupancy of the land in controversy, after the making of the agreement above stated, and in pursuance thereto; that Mayberry paid the defendants — to be used by them in the purchase of the land from the railroad compa'ny — the sum of six hundred and eighty-four dollars and eighty cents.
These findings were approved and adopted by the trial court, and upon the evidence that court also made the following special findings of fact:
“That the defendants jointly consented to the alienation of the premises in question; and jointly put plaintiff into possession thereof; and themselves ceased to occupy the premises as a homestead; and have not so occupied the same, or asserted any right to the possession thereof adverse to the claim and occupancy of plaintiff, since putting him into possession.”
Prom the foregoing findings, and the evidence upon which they are based, it is very clear that there was such a joint consent of husband and wife at the time the contract for the land was made, and during the time that the plaintiff below was holding possession thereof, and making lasting and valuable improvements thereon under his contract, and during the time that he was paying for the same, that the defendants thereby so alienated the land in equity that a court of equity has the power to, and will enforce, a completion of the alienation, by enforcing a specific performance of the coutract. (Edwards v. Fry, 9 Kas. 417.) It is claimed, however, that the verbal agreements entered into between Mayberry and the Perrines were all merged into a written contract, executed January 8, 1884, and signed by Andrew J. Mayberry and John A. Perrine; and that as Emetine, the wife of John A. Perrine, never signed the written contract, the contract was, and is, absolutely void, as the same concerns the homestead of the Perrines.
The defense was, that Andrew J. Mayberry and John A. Perrine were the sole parties to the contract about the land. The writing of January 8, 1884, was attached to one of .the answers, and was before the trial court, as evidence that Erneline Perrine was not a contracting party. On the other hand, the evidence of Mayberry was to the effect that Emeline Perrine joined with her husband in selling the land; that she did not sign the written agreement of January 8, 1884, because of advice given at the office of the scrivener that it was not necessary for her to do so. In substance, the evidence of Mayberry established that the writing of January 8,1884, did not embrace the contract between himself and the Perrines. The jury adopted the evidence of Mayberry, and the trial court found the issue upon this point against the Perrines.
Again, neither the statutes nor the constitution requires that the alienation of a homestead with the joint consent of the husband and wife must be in writing. Of course, the joint consent must exist before any voluntary alienation of the homestead. In this case, there was the express joint consent of the husband and wife. (Const., art. 15, §9; Comp. Laws of 1879, ch. 38, § 1.) Upon that joint consent, the purchase-money was paid, possession was taken, lasting and valuable improvements were made. Mayberry cannot now be robbed of the fruit of his toil and outlays by the refusal of Mrs. Perrine to sign the deed. (See Overman v. Hathaway, 29 Kas. 434; Newkirk v. Marshall, 35 id. 77; Harkness v. Burton, 39 Iowa, 101.)
We have examined the other questions presented, but the allegations of error stated are not sufficient to reverse or modify the judgment. Therefore 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
Johnston, J.:
Seymour L. Byington brought an action, before a justice of the peace, against the board of county commissioners of Saline county, alleging that on the 2Sth of June, 1868, the county treasurer of Saline county erroneously sold a forty-acre tract of land for taxes, and that on November 27, 1872, the county sold and assigned a certificate of the sale to him on payment of $21.58, and that afterward he demanded, and the county clerk refused to make, a deed on the certificate, basing his refusal on the ground that the sale was illegal. He then alleged that—
“He offered to return said certificate to the county treasurer of said county, and demanded a return of said purchase-money with statutory interest, and said treasurer refused to make said restitution, (said money, as it was alleged, not then being in the treasury of the county, but having been, by the acts and order of the board of county commissioners and county treasurer, appropriated and paid out and expended by and for said county of Saline;) whereupon said plaintiff went before said board of county commissioners and asked said board for an order for the payment of said sum of money and interest, which last request was refused.”
He obtained a judgment against the county board before the justice of the peace, and an appeal was taken by the board to the district court. There Byington, upon an order of the court, amended his bill of particulars, and made a more specific statement in relation to the time when he demanded a deed from the county clerk, and of the time he demanded of the county treasurer that the money be refunded; and it is alleged that the treasurer based his refusal on the ground that he had orders to that effect from the county board. A general demurrer was filed against the amended bill of particulars, which was sustained. Byington then applied for leave to amend the bill of particulars, and to make a new party defendant, which application was refused; and he comes here asking a reversal for several reasons.
I. The first ground is, that the court permitted the defendants to demur to the bill of particulars without withdrawing their answer, and also in determining the demurrer while the answer remained on file. The point is raised here for the first time, aud cannot be considered. The case is brought here to review and correct alleged errors committed by the district court, aud not to decide questions which were not considered by that court. Again, it does not appear from the record that an answer was filed by the board of county commissioners, either before the justice of the peace, or in the district court.
II. The next point raised by plaintiff is, that the court erred in sustaining the defendants’ motion requiring the plaintiff to make a more specific statement of facts; first, because it was made after answer; and second, because the statements demanded were immaterial and frivolous. In respect to this point we need only say that no answer was filed, and that if the statements required were immaterial, no prejudice could result to the plaintiff.
III. The sustaining of the demurrer to the plaintiff’s bill of particulars is the next ground assigned for a reversal. Within the authority of Comm’rs of Saline County v. Geis, 22 Kas. 387, the averments of the petition did not state a cause of action against the board of county commissioners. Here, as there, no allegation was made that the county treasurer was unable to refund the moneys demanded because of a want of funds in his hands; nor was there any allegation that the county board interfered to prevent the refunding of the money; and without these averments no cause of action was stated against the county board. He did aver parenthetically that—
“Said money, as it was alleged, not then being in the treasury of the county, but having been by the acts and order of the board of county commissioners and county treasurer, appropriated and paid out and expended by and for said county of Saline.”
By whom it was alleged, or whether the allegation was a fact, is not stated. It devolved on the plaintiff to state facts, and not a matter of hearsay which some one else may have regarded as a fact. It may have been alleged by one who had no knowledge on the question, or it may have been alleged by an officer who had the funds, but did not want to pay them out. These essential facts should have been plainly and unequivocally stated by the pleader; but as the averments were made, the pleading was clearly insufficient. (Comm’rs of Saline Co. v. Geis, supra; Comm’rs of Lincoln Co. v. Faulkner, 27 Kas. 165.)
IV. The final contention is, that there was error in the refusal to allow the plaintiff to amend “generally, and to make a new party defendant so as to avoid circuity of action.” The only showing made upon this application was embodied in the following affidavit:
“Legrand Byington, of lawful age, says he is the authorized agent of the plaintiff (who resides in Iowa) in respect to the subject-matter of the above-named action, and that from information that has come to his knowledge since this suit was brought before the justice of the peace, he deems it necessary (to avoid circuity of action and to promote speedy justice) for plaintiff to make an additional party defendant.”
The filing of an amended pleading is a matter within the sound discretion of the trial court. After a demurrer is sustained to the pleading, the court may allow an amendment to be made if the defect can be remedied by way of amendment. (Civil Code, § 141.) There is no showing in the record that the defect can be so remedied, nor does it appear whom the plaintiff desired to have made a new party defendant. It may have been a wholly unnecessary party. To secure a reversal, there must an affirmative showing that the amendments refused were material and proper to be made, and that their refusal was a clear abuse of judicial discretion. (Krouse v. Pratt, just decided.)
We cannot say that the district court committed any error, and we must therefore affirm its judgment.
All the Justices concurring. | [
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Elliott, J.:
The Kansas Department of Labor (KDL) appeals the trial court’s ruling that the heating unit in the Graham County Courthouse was not subject to state regulation under the Kansas Boiler Safety Act (KBSA), K.S.A. 44-913 et seq. (Furse 1993). We reverse and remand with directions.
In the fall of 1997, four water heaters were installed in the Graham County Courthouse by Elliott Plumbing, Heating, Air Conditioning, and Electrical, Inc. (Elliott Plumbing). The parties agree the water heaters are used to provide comfort heat in the courthouse. The parties also agree that sometime between 1997 and 2004, the four water heaters were configured into a single unit in which water is circulated and returned to the heaters.
From 1999 through 2003, the unit was inspected and approved by the County’s insurance carriers as allowed under the KBSA. But after an inspection in July 2004, the KDL informed the County that because the heaters were being used to provide comfort heat in the courthouse, the water heaters, as configured, were subjected to the requirements of the KBSA, which the unit did not meet.
The inspector also noted that previous agreements between the County and the KDL regarding replacing the heaters had not occurred and gave the County 90 days to replace the unit. About a year later, the County requested additional time to raise money to replace the unit. KDL gave the County a temporary variance, but the County continued to request a permanent variance from the KDL.
Eventually, the matter was scheduled for a telephone conference with a KDL hearing officer. The KDL officer dismissed the County’s request for a variance, finding the KDL lacked subject matter jurisdiction because the water heaters were not boilers as defined in the KBSA.
KDL timely sought review of the officer’s order by the Secretary of the KDL. The Secretary reversed the KDL officer’s order and ruled the KDL had jurisdiction to consider the County’s request for a variance.
The Secretary also found that while the water heaters were used individually for the purpose of heating water for external, potable use, they would not be subjected to regulation under the KBSA. But the current configuration of the four water heaters tied together for the sole purpose of providing comfort heat in the courthouse, transformed the configured unit into a boiler, bringing the unit under KBSA regulation.
Further, the Secretary found the configured unit was not in compliance with the KBSA; granted the County a variance for about 6 months; and required the configured unit to be replaced before the expiration of the variance.
The County filed a petition for review with the trial court, seeking reversal of the Secretary's final order. The trial court did reverse the Secretary, finding the water heaters as configured were not boilers under the KBSA and further found the KDL lacked subject matter jurisdiction over the water heaters as configured.
The trial court specifically found that the water heaters as configured did not heat water under pressure or vacuum which was required to meet the statutory definition of a boiler under the KBSA.
KDL has timely appealed the trial court’s rulings.
The parties’ positions may be simply stated as thus: KDL contends that when the County connected four water heaters for the purpose of providing comfort heat in the courthouse as opposed to providing potable water for use in the courthouse, it converted the water heaters into a hot water heating boiler, thus giving the KDL jurisdiction to regulate the situation.
The County, on the other hand, contends the water heaters remain water heaters despite their configuration and despite the purpose for which they were being used — thus depriving the KDL of jurisdiction over the situation.
In reviewing a trial court’s decision reviewing an administrative agency action, we first determine whether the trial court followed the requirements and restrictions placed upon it, and then we undertake the same review of the agency’s action as does the trial court. Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
And while statutory interpretation is a question of law, special rules apply when we review an agency’s interpretation or application of a law which it is charged with administering. See Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629, 154 P.3d 1080 (2007).
Accordingly, the doctrine of operative construction of a statute
“provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative agency’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. [Citation omitted.]” Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 70, 150 P.3d 892 (2007).
Here, the parties acknowledge this case revolves around a disagreement over the definition of a boiler under the KBSA and whether the configured unit used in the county courthouse constitutes a boiler.
The KBSA regulates “all boilers in this state.” K.S.A. 44-913 (Furse 1993). The KBSA defines “boiler” as
“a closed vessel in which water or other liquid is heated, steam or vapor is generated or steam is superheated, or in which any combination of these functions is accomplished, under pressure or vacuum, for use external to itself, by the direct application of energy from the combustion of fuels or electric, solar or nuclear energy. The term boiler shall include fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and are complete within themselves.” K.S.A. 44-914(a) (Furse 1993).
Further, the KBSA specifically states the act does not apply to
“hot water supply boilers which are directly fired with oil, gas or electricity and are equipped with safety relief valves approved by the national board of the American society of mechanical engineers, if none of the following limitations is exceeded:
(A) Heat input of two hundred thousand (200,000) BTU per hour,
(B) water temperature of two hundred degrees (200) Fahrenheit, and
(C) nominal water capacity of one hundred twenty (120) gallons.” K.S.A. 44-915(a)(5) (Furse 1993).
Additionally, the KBSA authorizes the Secretary to adopt rules and regulations regarding the inspection and certification of boilers in Kansas. K.S.A. 44-916 (Furse 1993). Those rules and regulations are found in Article 45, Chapter 49 of the Kansas Administrative Regulations and adopt the definition developed by the American Society of Mechanical Engineers (ASME) and the National Board of Boiler and Pressure Vessel Manufacturers. See K.A.R. 49-45-1 to 9 (1997); K.A.R. 49-45-20 (1997).
Administrative regulations have the force and effect of statutes and will be construed to operate prospectively unless a contrary intent is clearly indicated. See Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980).
In the regulations, a hot water supply boiler is defined as a “boiler completely filled with water that furnishes hot water, to be used externally, at pressures not exceeding 160 psig [pounds per square inch, gauge] or at temperatures not exceeding 250F (120C) at or near the boiler outlet.” K.A.R. 49-45a-4 (1997). This is the same definition as found in the ASME Boiler and Pressure Vessel Code, § IV, Appendix E, p. 187 (1986).
On the other hand, a hot water heating boiler is defined as a “boiler in which no steam is generated, from which hot water is circulated for heating purposes and then returned to the boiler, and which operates at a pressure not exceeding 160 psig or a temperature of 250F (120C) or near the boiler outlet.” K.A.R. 49-45a-3 (1997). This refers to delivery of comfort heat and is the same definition as provided in the ASME Code, § IV, Appendix E, p. 187 (1986).
And finally, the ASME Code defines a water heater as a “closed vessel in which water is heated and withdrawn for use external to the system at pressures not exceeding 160 psig and temperatures not exceeding 210F.” ASME Code, § IV, Part HWL, p. 139.
In the present case, the trial court held in favor of the County because the configured unit did not heat water under pressure or vacuum as required definitionally by the KBS A. We can find no evidentiary support for that holding in the record on appeal.
In fact, the only evidence in the record is an affidavit from Sheldon Elliott, the owner of Elliott Plumbing, which states the heaters are 199,000 BTU units, that the normal procedure is for the courthouse to use only two heaters at a time unless the outside temperatures are extremely low, and that the unit was set for 8 pounds of pressure and the emergency values were set at 30 pounds of pressure.
Since there is no evidence in the record to support the trial court’s finding the Secretary erroneously applied the law, it follows that the trial court erred by granting the County relief under K.S.A. 77-621.
The Secretary’s decision was not erroneous. Under the definitions set forth in the KBSA, the administrative regulations, and the ASME, the Secretary properly determined the configured unit in the Graham County Courthouse was a boiler.
Here, the hot water produced in the configured unit is not used externally — it is circulated among the network of water heaters. The County acknowledges the configured unit is used solely to provide comfort heat for the courthouse. The hot water produced is not used externally to the system and, thus, the configured unit is not eligible for exemption from the KBSA as a hot water supply boiler. See K.S.A. 44-915(a)(5) (Furse 1993) and K.A.R. 49-45a-4 (1997).
Here, the configured unit is a hot water heating boiler as determined by the Secretary. The hot water produced is circulated for heating purposes and returned to the boiler. See K.A.R. 49-45a-3 (1997). And the parties agree the hot water in the configured unit is used solely for comfort heating purposes.
In other words, the configured unit in the present case does not fall under the statutory and regulatory definition of a water heater because it does not provide potable water external to itself and because the KBSA, the regulations, and the ASME Code clearly distinguished between water heaters used for space heating/providing comfort heating — hot water heating boilers — and water heaters used to supply potable water — hot water supply boilers.
We hold there is a rational basis here for the Secretary’s interpretation of the statutes and regulations. Under the doctrine of operative construction, we therefore uphold the Secretary’s interpretation of the statutory and regulatory scheme here involved. See Winnebago Tribe, 283 Kan. at 70.
Further, by passing the KBSA and promulgating the regulations, the legislature and the Secretary both intended to protect public safety. See Leroy v. Harford Steam Boiler Inspec. and Ins. Co., 695 F. Supp. 1120, 1132 (D. Kan. 1988).
The legislature has clothed the KDL with discretion in enforcing the statutory scheme. See K.S.A. 44-917(a) (Furse 1993). Given the complexities in this area, it is hardly surprising the legislature has authorized the KDL to use its discretion in carrying out the statutory purpose of the KBSA. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 277-78, 75 P.3d 226 (2003).
The County also argues the KDL should be prevented from requiring it to replace the configured unit because the KDL previously approved the use of the configured unit. The County contends the configured unit of water heaters has been used solely to provide comfort heat to the courthouse since 1997.
But the County has not argued to this or any other court that previous actions of the KDL prevent the KDL from now requiring compliance with the KBSA. In an appeal from a decision by an administrative agency, a party is limited to the issues raised at the administrative hearing. In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, 1235, 39 P.3d 21 (2002). There is nothing in the record to show the County made this argument at the administrative hearing.
Finally, a rebuttable presumption of validity attaches to the actions of an administrative agency, and the burden of estabhshing arbitrary and capricious conduct lies with the party challenging the agency action. See Jones, 279 Kan. at 140.
Here, the County has not shown how the KDL’s actions were arbitrary and capricious.
Reversed and remanded with directions to reinstate the order of the Secretary of KDL. | [
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The opinion of the court was delivered by
Johnston, J.:
The decision of this case depends upon the validity of a tax deed executed on May 26, 1875, by P. I. Bonebrake, who was then county clerk of Shawnee county, to J. B. Webber, who subsequently conveyed the land to the plaintiff in error. According to the stipulation of the parties, the plaintiff in error is entitled to recover, unless the tax deed is void on its face, in which event the judgment should be in favor of the defendant in error, who claims title under the original patentee of the land. The tax deed purports to have been issued under chapter 196 of the Laws of 1872, which provides that where lands or town lots that have been sold for any taxes due thereon are bid in by the county, and have remained unredeemed for five years after such sale without anyone offering to purchase the same for the taxes, penalties and costs, it becomes the duty of the county treasurer to sell such lands or town lots at public auction to the highest bidder for cash. A prerequisite to the sale is stated in § 1 of this act, where it is said that the treasurer may sell —
“After having first given at least four weeks’ notice of such sale and of the property to be sold, with a statement of the taxes, penalties and costs due on such lands or town lots up to the date of such sale, in some newspaper of general circulation in such county, or if there be no such newspaper in such county, then by written or printed handbills put up in one or more public places in each township in such county.”
In § 2 authority is given for the making of the tax deed, and some of the acts precedent to its execution are stated as follows:
“On payment by the purchaser of the price bid for any such laud or lot, the treasurer shall make to such purchaser a certificate in writing of such sale, on presentation of which to the clerk of the county commissioners of such county it shall be the duty of such clerk to execute to such purchaser a deed under the seal of said county, conveying such land or lot to such purchaser,” etc.
The validity of the deed before us is challenged because it fails to show that the required notice was given, that the payment was made by the purchaser of the price bid for such laud, that the certificate in writing of such sale by the treasurer had been made to the purchaser, and the presentation of the certificate to the county clerk of the county in which the land is situate. We regard these omissions to be fatal to the tax deed. It should show upon its face that the requirements of the statute had been substantially complied with. No sale could be made until the statutory notice had been given. The county clerk had no authority to execute a deed until payment had been made by the purchaser of the amount of his bid, nor until the treasurer had made a certificate to the purchaser of such sale and payment; and not then until the certificate had been presented to him for that purpose.
Douglass v. Wilson, 31 Kas. 565, is quite analogous to the present case. It arose under chapter 43 of the Laws of 1879, which was enacted for substantially the same purpose as the act of 1872. It was there provided that where lands or town lots have been sold for taxes and bought in by the county, and shall be unredeemed for three years from the date of the sale, and no person shall offer to purchase the lands or lots for the taxes, penalties, and costs due thereon, that the county commissioners of the county where the lands or lots are located may permit the owner, his agent or attorney, to redeem the same, or may authorize the county treasurer to execute and the county clerk to assign tax-sale certificates for such lands or town lots, for any sum less than the legal tax and interest thereon, as in their judgment shall be for the best interest of the county. The court held that in order that a tax deed executed under that law shall be valid, the lands or lots sold must have remained in the hands of the county unredeemed for at least three years after the date of the sale, before any authority can be given by the county commissioners to the county treasurer to execute, or to the county clerk to assign a tax-sale certificate; and also held that a deed which failed to show that no person offered to pay the whole amount of such taxes, penalties, and costs, and that the county commissioners had authorized the county treasurer to receive a less amount than the amount of the taxes, penalties, and costs, and that the county commissioners had authorized the county treasurer to execute and the county clerk to assign the tax-sale certificate, and that the same was done in pursuance of such authority, is void upon its face. The omitted recitals thus held to be fatal to that deed, are no more important or essential than those which are lacking in the present one, and therefore that decision practically disposes of this case.
The plaintiff in error claims that the defects in the deed are remedied by the general recital therein, that the sale was begun and publicly held in conformity with the provisions of the act of 1872. It is to be observed that this recital refers only to the commencement and holding of the sale, and has no reference to the necessary steps to be taken before and after the sale. Nor does it state that the sale itself conformed to the requirement of the statute. However, if it were applicable to all the acts and proceedings of the officers, we think it would still be insufficient to accomplish the purpose claimed for it. The officer exercised a naked statutory power, and he should recite in the deed all facts essential to the sale and conveyance of the land. It is not enough for the officer to state his mere conclusion that he has complied with the law in exercising the power conferred by the statute. The deed should state facts, and not opinions, and should recite all prerequisite facts, leaving to the proper tribunal the determination as to whether those facts show a sufficient compliance with the law. We must hold the deed to be void upon its face; and in support of our conclusion we refer to the well-considered opinion of the judge of the superior court in delivering the judgment iu the case. (3 Kas. Law Journal, 56. See also Spurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 id. 302; Large v. Fisher, 49 id. 307; Cooley on Taxation, 353.)
The judgment of the superior court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an action of replevin, brought by the defendant in error, to recover possession of certain goods seized by J. C. Service, constable, on an execution issued to him by a justice of the peace in the city of Ottawa, on a judgment in favor of Beckham, Mercer & Co. against J. C. Watson, husband of the defendant in error. De fendant in error claims the goods in question under a mortgage given to her by her husband, November 25, 1885, on his entire stock of goods, to secure a debt of $708 evidenced by his note to her of the same date. The case was tried by a jury at the January term, 1886, of the Franklin county district court, and there was a verdict and judgment for the defendant in error that she was the owner and entitled to the possession of the property; that it was wrongfully detained by the plaintiffs in error; that its value was $261, and damages for the wrongful detention were $3.04. A motion for a new trial was overruled, and exceptions were taken; no special findings. The court was not requested to instruct in writing, and there is nothing in the record but the pleadings, evidence, verdict and judgment, and motion for a new trial.
Two causes of reversal are insisted upon here: The first is, that there is not sufficient evidence to authorize the jury to find that the defendant in error was the owner of the goods. The general verdict of the jury, and the judgment of the court rendered thereon, necessarily include a finding that the transaction detailed by Mrs. Watson and her father was a gift by him to her of goods to the extent of $400, in May, 1874; of the sale of her interest to Watson; of his agreement to pay; of his subsequent purchase of the interest of Moore; of the execution of the note and chattel mortgage by Watson to the defendant in error; of its good faith; and of every other material fact to sustain the verdict. We are not called upon to weigh the testimony, and to pass upon the credibility of the witnesses. The jury have done so, and their verdict is approved by the trial judge. There is evidence tending to support all the necessary elements of the verdict rendered, and we cannot disturb it. This has been so often declared by the court in this class of cases, that citation of authority is not necessary.
The second proposition of counsel for plaintiff in error is, that at the time Mrs. Watson sold the $400 worth of goods given her by her father to her husband there was no precise time fixed for payment, and no specified rate of interest, and as from the time she took possession of the goods under her chattel piortgage up until they were seized by the constable she had sold goods to the amount o£ $412, her chattel mortgage was paid and satisfied, and she was not entitled to interest, and therefore that the recovery was too large, and the judgment should, be reversed. The facts are that she sold to her husband on.the 28th day of May, 1874, and she says it was an understanding that she was to have seven per cent, interest; but be that as it may, they had a settlement on the 28th of November, 1885, .and he then executed this note for $708,- and agreed that this was the amount then due her, and they had the right to make such an agreement, he to pay -and she to receive this sum for the use of the $400 of goods for all this time. .This settlement on the 25th of November, 1885, is an acknowledgment on the part of Watson that he,- at-the time he purchased the goods and agreed to pay for them, was to pay interest on the money until such time as he could pay her back. The verdict of the jury accepted as to the good faith of the original transaction, there can be no other construction or solution of the acts and agreements of the Watsons. There is no cause made out to authorize a reversal, and we are compelled to recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Malone, J.:
Guadalupe G. Rivera appeals the district court’s decision granting the Kansas Department of Revenue’s (KDR) motion to dismiss his petition for judicial review of an administrative order suspending his driver’s license for a breath test failure. Based on Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 204 P.3d 562 (2009), we remand Rivera’s case to district court for further proceedings.
On January 29, 2007, Officer David Gordon of the Dodge City Police Department filed a certification and notice of suspension of Rivera’s driver’s license based on his breath test failure. The certification stated that Gordon had reasonable grounds to believe that Rivera was operating a vehicle while under the influence of alcohol on January 25, 2007, in Ford County, Kansas. The certification further stated that Rivera’s breath alcohol concentration tested at .08 or greater, that he was caught backing out of a driveway, he smelled of alcohol, failed field sobriety tests, slurred his speech, had bloodshot eyes, had poor balance or coordination, failed a preliminary breath test, and admitted consuming alcohol.
On February 5, 2007, the KDR received Rivera’s request for an administrative hearing regarding the suspension of his driver’s license. An administrative hearing was held on April 17, 2007, and the hearing officer issued an order on May 10, 2007, affirming the administrative action suspending Rivera’s driving privileges.
On May 21, 2007, Rivera filed a petition for judicial review in the Ford County District Court. In his petition, Rivera requested relief from the administrative action suspending his driving privileges based on the following facts and issues set forth in paragraph 4:
“A. Petitioner was arrested and charged with a violation of K.S.A. [8-1567a] on or about January 25, 2007, in Ford County, Kansas.
“B. There were no reasonable grounds to stop the petitioner’s vehicle based upon the fact that petitioner was not upon public property, nor was he upon private property while driving the vehicle. The petitioner’s vehicle was located in his home (i.e., garage) at the time of the vehicle operation and therefore the respondent has no grounds upon which to suspend nor restrict the petitioner’s driving privileges.
“C. There was no probable cause upon which to arrest the petitioner based upon the fact that the officer administered one field sobriety test which is not admissible pursuant to State v. Witte, and the other field sobriety tests administered to the petitioner he passed. Further, there was a flaw in the administration of the preliminary breath test issued against the petitioner and it is apparent from the videotape that petitioner must not have failed the first test administered to him since the officer claimed he did not get a ‘good sample.’
“D. Officer Gordon gave the petitioner incorrect advisories as specifically set out on the videotape from approximately 10:12 through 10:15.
“E. There is also an issue regarding jurisdiction and whether or not the petitioner’s home is located within the city limits of Dodge City, since the officer who arrested the petitioner for the DUI offense was an officer who had no jurisdiction outside the city limits
“F. In addition, the testing procedures by the officer did not substantially comply with the procedures set out by the Kansas Department of Health and Environment as evidenced by the officer’s actions on the videotape. The machine malfunctioned and printed a breath test card. According to the officer’s testimony at the time of the administrative hearing, he did not even remember the machine malfunctioned. The officer also testified that he did not have the card printout from the first test verifying the machine malfunction. The officer was oblivious to the fact that the machine was not operating correctly and still continued to administer the breath test to petitioner. This shows obvious and substantial noncompliance with the procedures as set out by the Kansas Department of Health and Environment.”
On November 28, 2007, the KDR filed a motion to dismiss Rivera’s petition for lack of subject matter jurisdiction, alleging that Rivera’s petition failed to comply with the pleading requirements of K.S.A. 77-614(b)(5) and (b)(6), and the petition failed to state a claim within the limited issues set forth in K.S.A. 8-1020(h)(2).
On January 9, 2008, the district court held a hearing on the KDR’s motion to dismiss. After hearing arguments of counsel, the district court found that Rivera’s petition for judicial review failed to comply with the pleading requirements set forth in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006). More specifically, the district court found that (1) the allegations in paragraphs 4(B) and 4(C) of Rivera’s petition were not issues for the court’s consideration in a driver’s license suspension case; (2) the allegation in paragraph 4(D) was not pled with sufficient specificity; (3) the allegation in paragraph 4(E) was not raised at the administrative hearing as required to confer jurisdiction; and (4) tihe allegation in paragraph 4(F) was generic, contained no explanation as to what Rivera claimed was not compliant with the Kansas Department of Health and Environment (KDHE) testing procedures, and was not pled with sufficient specificity. Accordingly, the district court affirmed the administrative order suspending Rivera’s driving privileges. Rivera timely appeals.
On appeal, Rivera claims the district court erred in dismissing his petition for judicial review for failure to comply with the requirements set forth in Bruch, 282 Kan. 764. Rivera further claims the district court erred in not providing sufficient findings of fact and conclusions of law. The KDR argues that the district court lacked subject matter jurisdiction .to consider Rivera’s petition for judicial review because the petition failed to comply with the pleading requirements of K.S.A. 77-614(b)(5) and (b)(6), and the petition failed to state a claim within the limited issues set forth in K.S.A. 8-1020(h)(2).
Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. “Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, nor can parties convey jurisdiction on a court by failing to object to its lack of jurisdiction. [Citation omitted.]” Bruch, 282 Kan. at 773-74. Interpretation of a statute is also a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
In Kingsley, the Kansas Supreme Court clarified its decision in Bruch concerning the pleading requirements for petitions for judicial review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). The Supreme Court reiterated its holding in Bruch that to confer appellate jurisdiction, an appellant must strictly comply with the pleading requirements set forth in K.S.A. 77-614(b). 288 Kan. at 397-401. The court then addressed as a matter of subject matter jurisdiction (1) whether the petitioner’s petition for judicial review strictly complied with the KJRA’s pleading requirements, specifically K.S.A. 77-614(b)(5) and (b)(6); and (2) whether the petitioner exhausted administrative remedies by presenting evidence at the administrative hearing to support his claims. 288 Kan. at 401-11.
In Kingsley, the petition for judicial review contained the following two critical paragraphs:
“ ‘6. That plaintiff seeks review of all issues raised by plaintiff in the hearing before tire administrative hearing officer, in Hays, Kansas.
“ ‘7. The order suspending plaintiff s driving privileges should be vacated by this Court because plaintiff was subjected to an illegal and improper preliminary breath test was subjected that [sic] plaintiffs due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing; the officer conducted an illegal search of plaintiffs vehicle; that plaintiff also seeks review of all issues raised before the administrative hearing officer at the March 8, 2006, hearing.’ ” 288 Kan. at 393.
The Supreme Court first examined the pleading requirements under K.S.A. 77-614(b) and determined that subsections (b)(5) and (b)(6) should be examined separately. Subsection (b)(5) requires the petitioner to set forth “facts to demonstrate that the petitioner is entitled to obtain judicial review.” 288 Kan. at 404. To strictly comply with this subsection, the petitioner must plead specific facts establishing that (1) the petitioner has standing to file the petition pursuant to K.S.A. 77-611; (2) the petitioner has exhausted all available administrative remedies pursuant to K.S.A. 77-612; and (3) the petition has been timely filed pursuant to K.S.A. 77-613. Failure to demonstrate these three requirements divests the district court or any subsequent appellate court of jurisdiction to consider the petition for judicial review. 288 Kan. at 403-04.
The Supreme Court stated that although the better practice is for a petitioner to specifically and separately state facts in the petition establishing standing, exhaustion of remedies, and timeliness, a petition for judicial review will not be dismissed on its face if the petition as a whole demonstrates those required facts. 288 Kan. at 404. Under the facts in Kingsley, the Supreme Court determined that when read as a whole, the petition for judicial review demonstrated sufficient facts to strictly comply with K.S.A. 77-614(b)(5) by establishing the petitioner’s standing, exhaustion of administrative remedies, and timeliness of the petition. 288 Kan. at 404.
Next, the Supreme Court considered the pleading requirements of K.S.A. 77-614(b)(6). Subsection (b)(6) requires the petitioner to set forth “the petitioner’s reasons for believing that relief should be granted.” 288 Kan. at 405. According to the court in Kingsley, a petition for judicial review strictly complies with this subsection when the petitioner has set forth reasons for relief so that the court and agency can ascertain the issues that will be raised before the district court. If the district court later determines that the petitioner’s case consists only of issues that were not specifically pleaded in the petition for judicial review, the court may dismiss it for lack of jurisdiction. The court stated that although it is not necessary for jurisdiction, the better practice is for the language in the petition for judicial review to mirror the statutory basis for the specific relief sought. 288 Kan. at 406-07.
Under the facts in Kingsley, the Supreme Court determined that the petitioner had sufficiently set forth reasons for believing that relief should be granted, namely, that he was subjected to an illegal and improper prehminary breath test, that his due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing, and that the officer conducted an illegal search of his vehicle. In making its decision, the Supreme Court emphasized that it was not commenting on the merits of the petitioners issues. The court stated it was hmiting its holding to whether the petitioner had strictly complied with the statutes in order to confer jurisdiction upon the district court. 288 Kan. at 407.
Regarding the second issue before the court in Kingsley, the KDR argued that the petitioner failed to exhaust his administrative remedies by not presenting evidence at the administrative hearing to support his claims. The KDR characterized this issue as jurisdictional. 288 Kan. at 408. Contrary to the KDR’s characterization of the issue, the Supreme Court held that KJRA’s exhaustion of remedies requirement applies to administrative procedures, not to the individual issues to be reviewed. 288 Kan. at 409. Because the petitioner in Kingsley filed a timely request for an administrative hearing and filed a timely petition for judicial review, the court concluded the petitioner had exhausted the entire administrative procedure available to him regarding the suspension of his driver’s license. 288 Kan. at 411.
As for the KDR’s argument that the district court should not consider issues not raised by a petitioner at the administrative hearing, the Supreme Court stated that this is more correctly characterized as a claim that issues must be preserved for judicial review, rather than a claim of subject matter jurisdiction. 288 Kan. at 410-11. The court agreed with the KDR that in an appeal from a decision by an administrative agency, a party may only argue the issues raised at the administrative hearing. 288 Kan. at 411. However, based on the record in Kingsley, the court found that the administrative hearing notes demonstrated that the petitioner had argued the issues at the administrative hearing for which he sought review in district court. Therefore, the court concluded that die issues were preserved for judicial review. 288 Kan. at 412-13.
Returning to the facts of our case and Rivera’s petition for judicial review, the district court generally dismissed Rivera’s petition because it failed to comply with the pleading requirements set forth in Bruch. Pursuant to the Supreme Court’s clarification in Kingsley of the pleading requirements of a petition for judicial review, we conclude that Rivera’s petition satisfied the pleading requirements of K.S.A. 77-614(b)(5) and (b)(6) sufficiently to confer subject matter jurisdiction upon the district court. We further conclude that Rivera exhausted his administrative remedies sufficiently to confer subject matter jurisdiction by filing a timely request for an administrative hearing and by filing a timely petition for review. Thus, to the extent the district court dismissed Rivera’s petition for lack of subject matter jurisdiction, we conclude the district court erred.
However, we also note that the district court made specific findings as to each of the subparagraphs set forth in paragraph 4 of Rivera’s petition, and in doing so the district court addressed the merits of some of Rivera’s claims. Thus, we will review each of Rivera’s claims in his petition for judicial review to determine if the district court properly dismissed the claim without a hearing.
Paragraph 4(B) of Rivera’s petition for judicial review challenged whether Gordon had reasonable suspicion to initially stop Rivera’s vehicle because Rivera was only backing the vehicle out of his garage at the time of the stop. The district court found that the allegation in paragraph 4(B) of Rivera’s petition was not an issue for the court’s consideration in a driver’s license suspension case. In making this finding, tire district court relied on the Kansas Court of Appeals decision in Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561, 142 P.3d 735 (2007). In this decision, the Court of Appeals ruled that a petitioner may not challenge the reasonable suspicion for a vehicle stop in a driver’s license suspension case because this issue is not delineated as one of the limited issues within the scope of an administrative hearing under K.S.A. 8-1020(h)(2).
The Court of Appeals decision was affirmed by the Kansas Supreme Court in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008), but the Supreme Court applied a different rationale. According to the Supreme Court’s decision in Martin, a licensee in a driver’s license suspension proceeding is not precluded from raising the constitutional issue of whether the arresting officer lacked reasonable suspicion to stop a vehicle. 285 Kan. 625, Syl. ¶ 5. However, the Supreme Court concluded that the exclusionary rule will not be applied in a driver s license suspension case to bar evidence obtained as a result of an unlawful stop. 285 Kan. at 639-46.
Based upon the Supreme Court’s decision in Martin, the exclusionary rule will not be applied in Rivera’s case to bar evidence obtained as a result of an unlawful stop. Although Rivera is not precluded from raising this issue in his petition for judicial review, Rivera is essentially not entitled to any relief as a result of this claim based on the Supreme Court’s decision in Martin. Because the district court addressed the merits of the allegations in paragraph 4(B) of Rivera’s petition, rather than dismissing this claim for lack of subject matter jurisdiction, we conclude the district court did not err in dismissing the allegations in paragraph 4(B) of Rivera’s petition. On appeal, the district court’s decision will be upheld if it is correct for any reason. In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006).
The district court also found that the allegation in paragraph 4(C) of Rivera’s petition was not an issue for the court’s consideration in a driver’s license suspension case. Although paragraph 4(C) begins by alleging there was “no probable cause upon which to arrest” Rivera, the paragraph further alleges that Rivera passed his field sobriety tests and there was a flaw in the administration of the preliminary breath test. We interpret the allegation in paragraph 4(C) of Rivera’s petition as raising the issue that Gordon lacked reasonable grounds to believe Rivera was operating a vehicle while under the influence of alcohol or drugs. Because this issue is specifically delineated in K.S.A. 8-1020(h)(2) as an issue that can be raised in a driver’s license suspension case, we conclude the district court erred in dismissing the allegation in paragraph 4(C) of Rivera’s petition.
Paragraph 4(D) of Rivera’s petition alleged that Gordon “gave the petitioner incorrect advisories,” as shown in the videotape of the investigation. The district court found that the allegation in paragraph 4(D) of Rivera’s petition was not pled with sufficient specificity. Pursuant to Kingsley, we conclude the district court erred in dismissing the allegation in paragraph 4(D) of Rivera’s petition.
The district court found that the allegation in paragraph 4(E) of Rivera’s petition was not raised at the administrative hearing as required to confer jurisdiction. This allegation concerned Rivera’s claim that his home was not located within the city limits of Dodge City. However, the top of the first page of the hearing officer’s notes reads: “Case address inside city limits.” In Kingsley, the court referenced the administrative hearing notes to determine whether the issues in that case had been argued at the administrative hearing. 288 Kan. at 412. Here, because the administrative hearing notes make some reference to whether Rivera’s address was inside the city Hmits, we conclude this is sufficient evidence to demonstrate that Rivera argued this issue at the administrative hearing, thereby preserving the issue for judicial review. Thus, the district court erred in dismissing the allegation in paragraph 4(E) of Rivera’s petition.
Finally, paragraph 4(F) of Rivera’s petition alleged that the testing procedures did not substantially comply with the procedures set out by the KDHE and the breathalyzer was not operating correctly. The district court found that the allegation in paragraph 4(F) of Rivera’s petition was generic, contained no explanation as to what Rivera claimed was not compHant with the KDHE testing procedures, and was not pled with sufficient specificity. Pursuant to Kingsley, we conclude the district court erred in dismissing the allegation in paragraph 4(F) of Rivera’s petition.
We hasten to add that we make no comment as to the merits of any of the allegations contained in paragraphs 4(C) through 4(F) of Rivera’s petition for judicial review. We hold only that the district court erred in dismissing these claims without conducting an evidentiaiy hearing. Rivera’s case is remanded to district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. | [
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Greene, J.:
We granted an interlocutory appeal by the Board of Lyon County Commissioners (County) of the district court’s conclusion that a notice of claim substantially complied with K.S.A. 2008 Supp. 12-105b(d), even though the notice listed the claimant as AT&T and the subsequent suit was filed by Southwestern Bell Telephone Company (SWBTC). We agree with the district court that there was substantial compliance with the statute and affirm.
Factual and Procedural Background
SWBTC alleges that in August 2005, a Lyon County employee struck and damaged certain telephone facilities while operating lawn mowing equipment near Burlingame Road in Emporia. On December 30, 2005, the County received a “bill for damages” on AT&T letterhead for $2,031.33 to “SBC Southwest Region Facilities” designating “claim # SWBT-05-200508-06-0041-BKJ.” The bill stated the damages occurred on August 3, 2005, near Burlingame Road in Emporia; the damages occurred when a “county mower ran over [a telephone] pedestal.” The bill requested payment to “AT&T” at “One SBC Center” in St. Louis, Missouri.
Apparently, the County failed or refused to honor the bill, so on September 6, 2006, Robert A. Kumin’s law office sent a “Notice of Claim Pursuant to KSA 12-105B” to the Lyon County Highway Department designating the claimant as AT&T and specifying all other information identical to the prior bill for damages, including the claim number. Lyon County denied the claim.
On July 23, 2007, SWBTC filed suit against the County for the damages previously specified in the bill and the notice, based on negligence. The County then moved for judgment on the pleadings based on lack of notice as required by K.S.A. 2008 Supp. 12-105b(d). Concluding there had been substantial compliance with the statute, the district court denied this motion, and upon proper application by the County, we then granted an interlocutory appeal.
Did the District Court Err in Concluding There Was Substantial Compliance With K.S.A. 2008 Supp. 12-105b(d)?
The County argues exclusively on appeal there was no substantial compliance with the statute because the formal notice of claim specified the claimant as AT&T rather than SWBTC, the plaintiff in the subsequent lawsuit. It suggests that the misidentification of the claimant caused confusion as to the true identity of the claimant, with potential exposure to multiple claims or payment to the wrong corporate entity. It also argues that separate corporate entities have separate legal identities and that the district court’s finding of substantial compliance has done “significant damage to the policy goals” of the statute.
We begin by acknowledging that one of the statutory prerequisites for a notice of claim against a municipality is “the name and address of the claimant.” K.S.A. 2008 Supp. 12-105b(d)(1). That statute, however, provides that substantial compliance with its provisions shall constitute valid filing of a claim. The question framed in this appeal is whether the district court erred in finding that the formal notice of claim here substantially complied with this aspect of the statute.
To the extent the district court made findings of fact, we review them for support by substantial competent evidence in the record. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). Interpretation and application of statutory law is subject to de novo review. Cummings v. City of Lakin, 276 Kan. 858, 861, 80 P.3d 356 (2003).
The district judge explained his ruling from the bench as follows:
“[W]hat I’m going to do in this particular case when I look at the purpose of 12-105b is to give adequate notice and put the company on notice that there is a claim being made against them. I really would be surprised if Southwestern Bell or AT&T [sic], whichever was named initially, didn’t have that notice in this case. So, I guess, the ruling I’m making is that when I consider Tucking [v. Board of Jefferson Comm'rs, 14 Kan. App. 2d 442, 796 P.2d 1055, rev. denied 246 Kan. 770 (1990),] and the discussion it has about substantial compliance noting that substantial compliance means compliance and respect to the essential matters necessary to assure every reasonable objective of the statute, that’s a quote from page 448 of that decision. I find that there has been substantial compliance in this case . . . .”
The purpose of the statutory notice requirement is to sufficiently advise the proper municipality of the time and place of the injury and give the municipality an opportunity to ascertain the character and extent of the injury sustained. Bell v. Kansas City, Kansas, Housing Authority, 268 Kan. 208, 210, 992 P.2d 1233 (1999). “Substantial compliance” under Kansas law means compliance in respect to the essential matters necessary to assure every reasonable objective of the statute. Bell, 268 Kan. at 218 (quoting City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 [1983]). Where the claimant has given to' the respondent a clear indication of the claim that would be raised against it, along with information that would allow the respondent to adequately investigate the basis for that claim, the claimant has clearly fulfilled the purpose of the státute. See Tank v. Chronister, 941 F. Supp. 969, 975 (D. Kan. 1996) (quoted in Bell, 268 Kan. at 218).
The County suggests that substantial compliance should not be measured by determining whether the purpose of the statute has been fulfilled. We disagree. Our Supreme Court has consistently determined substantial compliance by discerning whether there has been “compliance in respect to the essential-matters necessary to assure every reasonable objective of the statute.” See, e.g., Myers v. Board of Jackson County Comm’rs, 280 Kan. 869, 874, 127 P.3d 319 (2006); Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 (2000). We apply this criteria in addressing the issue framed here; in other words, we must determine whether there was enough information provided to the County to enable it to understand the claim being asserted and to allow adequate investigation of its basis.
First, we examine the record evidence as to the relationship between AT&T and SWBTC. According to an affidavit submitted in opposition to defendant’s motion, SWBTC “is commonly referred to as ‘AT&T’ and does business under the trade name of ‘AT&T’, with underlying services provided by the applicable AT&T affiliate.” We find no record evidence disputing this assertion, but note that tire County persists in suggesting that AT&T, Inc. is a different entity; this appears to be true, but the latter was never listed or identified as having any involvement in this claim. Bottom fine: The record corroborates that the entity identified in the formal notice of claim is the same company which ultimately brought suit against the County. There was no danger of multiple claimants or exposure to erroneous payment.
Second, we consider the district court’s express finding that 7 months before the formal notice was served, the County received the bill for damages to “SBC Southwest Region Facilities.” This finding is not challenged on appeal, and we find record evidence to support it. Of material significance is that any reasonable comparison between this bill and the subsequent formal notice would clearly reveal that they were related to the same incident. There is a complete match of claim numbers, date, location, description, and amount claimed. And most importantly, the bill demonstrated that there was no difference between the corporate nomenclatures; the bill is printed on AT&T letterhead and asks for remittance to AT&T, but lists the claim number with a predicate of SWBT, the damaged property as “SBC Southwest Region Facilities,” and the address for remittance as “One SBC Center.”
Finally, the County has not challenged any other aspect of the formal notice. From our review of the notice, we conclude that it appears to comply with all other statutory prerequisites. In fact, had there been any question about the identity of the claimant, the notice provided no fewer than six different contacts, including phone numbers, e-mail addresses, and postal addresses.
The record fails to suggest that the County was unable to understand this claim or to investigate its basis. After having received both the bill for damages and the formal notice, there can be no question that the purpose of the statute was served by the notice, despite its identification of the claimant as AT&T, the trade name of the corporate claimant.
For all these reasons, we conclude and hold that the district court did not err in refusing to dismiss the action. There was sub stantial compliance with K.S.A. 2008 Supp. 12-105b(d), and the action should proceed.
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Greene, J.:
The State appeals from the district court’s order granting Shea Moll’s motion pursuant to K.S.A. 60-1507, arguing the court’s fact findings were unsupported and its conclusions of law were insufficient to support a vacatur of Moll’s convictions and a new trial. Initially, we examine our jurisdiction to review the court’s order for a new trial and conclude that our jurisdiction is proper because the civil proceedings under K.S.A. 60-1507 were final upon the district court’s order reassigning the case to the criminal trial docket. We then examine the district court’s journal entry in the 60-1507 proceeding and conclude that it fails to support the relief granted, thus requiring that we reverse and remand for further proceedings.
Factual and Procedural Background
In Sedgwick County Case No. 04 CR 831, the State charged Moll with aggravated escape from custody, in violation of K.S.A. 21-3810(a)(l), arising from Moll’s failure to return to residential community corrections following work release on February 11, 2004. Before the State located him, Moll became intoxicated and caused a vehicle collision, which severely injured the occupants of the other vehicle. Consequently, in Sedgwick County Case No. 04 CR 3254, the State charged Moll with two counts of aggravated batteiy, in violation of K.S.A. 21-3414(a)(2)(A), and driving under the influence of alcohol (DUI), in violation of K.S.A. 2004 Supp. 8-1567(a)(2). The second count of aggravated battery was subsequently amended to K.S.A. 21-3414(a)(2)(B), a severity level 8 felony. Because Moll had been on probation for another offense, the State also moved to revoke his probation in Sedgwick County Case No. 02 CR 611.
Moll’s retained counsel, Danny Saville, entered plea negotiations with the State. Initially, the State was unwilling to offer any substantial incentive for Moll’s plea. Ultimately, the State offered a sentencing recommendation of the mitigated sentence within the appropriate grid box for the aggravated escape charge in 04 CR 831 but warned Saville that the State planned to seek the aggravated sentence within the appropriate grid box for aggravated battery charges in 04 CR 3254 and planned to seek consecutive sentencing on all counts.
Moll rejected the State’s proposal for 04 CR 3254 but accepted the offer for 04 CR 831, and he subsequently signed plea forms in both cases, admitting responsibility for all charged offenses. At the plea hearing, the district court specifically noted that Moll had entered an agreement in 04 CR 831 but was pleading without an agreement in 04 CR 3254. Saville affirmed the State’s recitation of the plea agreement, and Moll indicated that he understood the plea agreement as articulated by the State.
When the district court questioned Moll about his understanding of his rights and the consequences of entering guilty pleas, Moll specifically acknowledged that Saville had fully discussed the charges and the rights contained in the plea form, that he was satisfied with Saville’s representation, and that he had no complaints about Saville’s representation or the court’s treatment of him. Moll asserted that he had read the plea form, discussed the form with Saville, believed the pleas were in his best interests, and voluntarily made the decision to enter the pleas. Moll also stated that he understood that the court was not bound by any agreements entered by the parties and that he could receive as severe a penalty as he would receive if he were convicted after a trial, including consecutive sentencing. The court asked Moll for an account of the events for which he was entering a plea, and Moll admitted that he had driven while intoxicated to the extent that he possessed a breath-alcohol concentration of .224 and that he had been involved in an automobile accident which recklessly caused severe bodily injuries to the victims. The court accepted the pleas, finding them voluntarily and knowingly entered.
Moll filed motions for downward durational and dispositional sentencing departures, which were subsequently denied. At sentencing, the district court revoked Moll’s probation in 02 CR 611 and ordered Moll to serve 11 months in prison. In 04 CR 831, the court imposed a 19-month sentence, the mitigated sentence within the appropriate grid box, and ordered the sentence to be served consecutive to the sentence in 02 CR 611. In 04 CR 3254, the court imposed a 114-month prison term for the severity level 5 aggravated battery conviction, a 7-month prison term for the severity level 8 aggravated battery conviction, and 6 months in jail for the misdemeanor DUI conviction. The court ordered the three sentences to be served concurrent to one another but consecutive to the sentence imposed in 04 CR 831.
Almost a year after sentencing, Moll filed the present action, seeking to withdraw his pleas because of ineffective assistance of counsel. Moll alleged that his counsel was ineffective for failing to conduct any meaningful investigation into the charged offenses, failing to file any pretrial motions, and failing to conduct a meaningful defense. The motion attached an affidavit of Jay Greeno, who opined that Saville’s representation of Moll had deprived Moll of his constitutional right to effective assistance of counsel.
After a preliminary hearing, the district court concluded that Moll’s motion presented substantial claims warranting an evidentiary hearing. The district court held an evidentiary hearing on April 12, 2007. At the conclusion of the hearing, the district court directed the parties to submit findings of fact and conclusions of law. Ultimately, the district court adopted the findings of fact and conclusions of law presented by Moll and ordered Moll’s convictions in 04 CR 831 and 04 CR 3254 vacated and reassigned the cases to the criminal docket for trial.
When the State objected to the journal entry pursuant to Kansas Supreme Court Rule 170 (2008 Kan. Ct. R. Annot. 241), the district court held a hearing to settle the journal entry. At the hearing, the State argued that the journal entry failed to accurately reflect the testimony presented during the evidentiary hearing and that the journal entry did not enable the State to ascertain the basis for the court’s ruling. Without addressing the State’s concerns, the district court affirmed its adoption of Moll’s proposed findings of fact and conclusions of law.
Is the District Court’s Order Granting Relief Under K.S.A. 60-1507 Subject to Appeal by the State?
After initial briefing in this appeal, we questioned jurisdiction on our own motion and ordered the parties to submit supplemental briefs on the question whether the district court’s order granting relief under K.S.A. 60-1507 was subject to appeal by the State. Our order noted that the State may appeal only in situations specifically enumerated within K.S.A. 22-3602(b) and that the only appeal al lowed the State from an order granting a new trial is limited to off-grid or indeterminate A or B felonies. K.S.A. 22-3602(b)(4). Here, the crimes do not qualify for such an appeal. Moreover, we noted that a K.S.A. 60-1507 action is civil in nature and is governed by the Kansas Code of Civil Procedure, which limits appeals of right to final decisions. K.S.A. 60-2102(a)(4). The order appealed from by the State is not final in the sense that it reassigns the matter to the criminal docket for a new trial. An order granting a new trial in a civil case is not a final order from which a party may appeal as a matter of right. Oertel v. Phillips, 197 Kan. 113, 117, 415 P.2d 223 (1966).
The State argues that the district court’s order granting relief to Moll under 60-1507 is a final decision “as it terminates the civil case at the district court level.” We agree. Viewing a habeas corpus action under K.S.A. 60-1507 as an independent and original civil proceeding, such an action is terminated by the district court’s order either granting or denying relief to the movant. Drach v. Bruce, 281 Kan. 1058, 1080, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007) (finding the law of the case doctrine inapplicable in an appeal from a K.S.A. 60-1507 proceeding because the proceeding was a separate action from Drach’s direct criminal proceedings); State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986) (citing Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 [1959], for the proposition that a motion under K.S.A. 60-1507 created a new, civil proceeding independent of the criminal case); State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980) (“[H]abeas corpus proceedings and motions under 60-1507 are civil in nature and not controlled by the constitutional or statutory requirements applicable in criminal cases.”). Once a district court has ruled on the relief requested, the civil proceeding has ended, except for any appeal of the decision.
Our conclusion is consistent with aspects of statutory language contained in K.S.A. 60-1507. K.S.A. 60-1507(d) provides: “An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.” Moreover, Supreme Court Rule 183(k) (2008 Kan. Ct. R. Annot. 249) provides that “[a]n appeal may be taken to the Court of Appeals from the order entered on the motion as in a civil case.”
We are also persuaded by the State that if we held otherwise, the State would have no vehicle to seek meaningful appellate review of a district court order granting relief under 60-1507. Once a new trial has been granted to the movant, there would be no effective route thereafter to review the propriety of the new trial.
We hold that the State may appeal an unfavorable disposition of a 60-1507 motion in the same manner as a final judgment in a civil proceeding. Our holding is consistent with the outcome of two other panels of our court that have addressed this jurisdictional question. See McHenry v. State, 39 Kan. App. 2d 117, 119, 177 P.3d 981 (2008); Hilson v. State, No. 99,421, unpublished opinion filed February 6, 2009, pet. for rev. on other grounds filed March 9, 2009.
Is the District Court’s Journal Entry Sufficient to Support the Relief Granted and to Enable Meaningful Appellate Review?
In its first issue on appeal, the State challenges the district court’s factual findings and legal conclusions related to Moll’s claim for ineffective assistance of counsel. Where the district court has held an evidentiary hearing on a K.S.A. 60-1507 motion and has made findings of fact and conclusions of law in compliance with Kansas Supreme Court Rule 183(j) (2008 Kan. Ct. R. Annot. 247), an appellate court reviews the district court’s decision under a mixed standard of review. The reviewing court accepts as true any findings of the district court that are supported by the evidence and any reasonable inferences that might be drawn from the evidence. If such findings are sufficient to support the court’s conclusions of law, the reviewing court will affirm the district court’s decision. However, the district court’s conclusions of law are subject to unlimited review. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007); see also McHenry, 39 Kan. App. 2d at 120 (applying the same standard to an appeal by the State).
In Harris v. State, 31 Kan. App. 2d 237, 238-39, 62 P.3d 672 (2003), this court applied the requirements of Rule 183(j), as interpreted by State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000). First, the court noted that “ ‘Moncla counsels us to monitor district. court compliance with Rule 183(j) more strictly than we may have in the past,'” 31 Kan. App. 2d at 239, and then stated:
“As Moncla explained, the purpose of requiring stricter compliance with Rule 183(j) is to ensure an opportunity for meaningful review. 269 Kan. at 65. Without explicit district court findings and conclusions on the specific issues raised by the movant, it is difficult if not impossible for this court or the Supreme Court to evaluate whether the motion should have been granted or denied.
“In this case, the oral findings and conclusions reflected in the hearing transcript also are deficient. They address neither the two-part standard for evaluation of ineffective assistance of counsel claims, [citation omitted], nor the two-part standard for evaluation of newly discovered evidence claims, [citation omitted]. They do not specifically respond to any of Harris’ claims about his counsel’s alleged errors. They must, in order for us to have meaningful opportunity for appellate review.” 31 Kan. App. 2d at 239.
Rule 183(j) has remained unchanged since Harris and makes no distinction between a journal entry denying relief and a journal entry granting relief in a K.S.A. 60-1507 proceeding. Therefore, the reasoning of Monda and Harris is equally applicable to the State’s appeal of the district court’s decision in a K.S.A. 60-1507 proceeding.
A prisoner seeking relief under K.S.A. 60-1507 bears the burden of estabhshing both parts of the ineffective assistance of counsel test to a preponderance of the evidence. See Rule 183(g). Recently, in Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008), the Kansas Supreme Court emphasized the specificity required in a K.S.A. 60-1507 motion:
“[O]ur rule governing the sufficiency of a 60-1507 motion appears to require more specificity. Supreme Court Rule 183(e) dictates that ‘[a] motion to vacate a sentence shah be deemed sufficient if in substantial compliance with the form’ set forth by Judicial Council. 2007 Kan. Ct. R. Annot. 244. In paragraph 10 of that form, movant is directed to ‘[s]tate concisely ah the grounds on which you base your allegation that you are being held in custody unlawfully.’ In the next paragraph, movant is directed to concisely state the facts which support each of the grounds. That language calls for specificity in the manner in which the movant claims ineffective assistance of counsel. Further, when a movant submits the form, he or she ‘is presumed to have listed all of the grounds upon which he is relying.’ Smith v. State, 195 Kan. 745, 747, 408 P.2d 647 (1965).”
Because such specificity is required in a K.S.A. 60-1507 motion, Rule 183(j) demands, at a minimum, that the journal entry designate which of the movant’s allegations, if any, entitle the movant to relief in order to permit meaningful review. The journal entry in the present case fails to designate the ground or grounds alleged that constituted ineffective assistance of counsel.
Here, the district court’s journal entry falls short in several regards. First, it contains no findings of fact but, instead, merely summarizes the evidence presented at the 60-1507 hearing. In three separately numbered paragraphs, there is set forth a brief summary of the testimony of two local attorneys who testified as expert witnesses, a brief summary of the testimony of Moll, and a summary of the testimony of Moll’s counsel. A summary of the testimony received is not equivalent to findings of fact; findings are a determination by the court of the facts supported by the evidence in die record, not merely a summary of the evidence. Black’s Law Dictionary 684 (8th ed. 2004).
Here, there was no finding by the court with regard to any of the testimony summarized, whether and to what extent it was found credible, and how the court weighed that testimony to the extent the witnesses may have been inconsistent. Without factual findings, adopting one version of the facts or another, it is impossible to determine whether the district court believed that Saville provided no defense advice to Moll, that the advice was insufficient to fully apprise Moll of the consequences of a plea, or that Saville provided adequate communication but'the ineffective assistance counsel claim was supported by odier allegations.
Second, the court’s conclusions of law set forth the standard to set aside a plea on the ground of ineffective assistance and the standards for determining the general validity of a guilty plea, but missing is the key conclusion that, but for counsel’s errors, the defendant would not have entered the pleas and would have insisted on going to trial. See State v. Muriithi, 273 Kan. 952, Syl. ¶ 1, 46 P.3d 1145 (2002).
Third, the entirety of the journal entry seems to have confused ineffective assistance claims in connection with Moll’s pleas with ineffective assistance claims in connection with Moll’s sentencing. Obviously, it was improper for the district court to have vacated Moll’s convictions and reassigned the case to the trial docket based on ineffective assistance of counsel at his sentencing. Some recognition and distinction between these claims must be drawn before we can provide meaningful review.
In summary, the journal entry fails to demonstrate adoption of the facts that would support the allegation that Moll would not have entered a plea and would have elected to go to trial had he received effective assistance of counsel. Due to the lack of factual findings and the lack of application of the two-part test for ineffective assistance of counsel to such findings, appellate review of the judgment is substantially hampered, if not rendered impossible. Because this court cannot ascertain the specific reasoning utilized by the district court, we cannot determine whether the court’s order was based on the proper application of the two-part test to facts that were not specifically articulated in the journal entry or whether the court’s order was the result of a misapplication of the law.
Findings and conclusions of this nature are required in order that we can provide meaningful appellate review. Where the district court “fails to state the controlling facts and its reasons for the decision, neither the litigants nor the appellate courts can determine the genuine basis upon which the trial court entered its judgment.” Miller, Bench Decisions and Opinion Writing, 47 J.K.B.A. 247, 250 (Winter 1978). The policy underpinning for Rule 183(j) is precisely that for K.S.A. 60-252. Our Supreme Court elaborated on the policy in Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 664-65, 538 P.2d 713 (1975), in this manner:
“[T]he district court should state what it considers to be controlling facts and the legal principles upon which [its decision] was [based]. Otherwise, [the appellate] court upon . . . review will be required to explore and consider every possible legal theory which may be said to be involved .... Judges of a court of record, unlike a jury which may render an unreasoned decision in a general verdict, must, under our statute and rule ... ‘go on the line,’ so to speak, and render a ‘reasoned decision’ — that is, assign reasons for the decisions rendered.”
It is not appropriate for us to provide the missing pieces here. We decline to make credibility assumptions in a contested matter; we decline to make findings of fact based solely on the district court’s summary of the evidence; we decline to apply legal standards to a mere evidence summary; and we decline to speculate as to the precise basis for a ruling where the basis has not been provided by the district court. The district court did not consider this an easy case; at the close of evidence, the court referenced “the toughest prong of [the] test” and characterized its task as “the challenge.” It is not our function to complete the district court’s task that is required by the rules; in fact, we believe our Supreme Court has made it clear that we are to monitor district court compliance with the rule, and remands of this nature have been legion since that mandate. See, e.g., Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007); State v. Hoge, 283 Kan. 219, 221-22, 150 P.3d 905 (2007); Gaudina v. State, 278 Kan. 103, 108, 92 P.3d 574 (2004); Swenson v. State, 35 Kan. App. 2d 709, 717, 135 P.3d 157 (2006), aff'd in part and revd in part on other grounds 284 Kan. 931, 169 P.3d 298 (2007); Harris, 31 Kan. App. 2d 237, Syl.; Gilkey v. State, 31 Kan. App. 2d 84, 87-88, 60 P.3d 347 (2003); Littrice v. State, 30 Kan. App. 2d 800, Syl., 48 P.3d 690 (2002); Stewart v. State, 30 Kan. App. 2d 380, 381-82, 42 P.3d 205 (2002); State v. Bolden, 28 Kan. App. 2d 879, 883-84, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001).
We have no alternative but to remand for specific factual findings and legal conclusions as required by Rule 183(j). See Harris, 31 Kan. App. 2d at 240. We believe there is no need for any further evidentiary proceedings, but the district court is directed to conduct whatever proceedings it deems necessary for full compliance with Rule 183(j).
Did the District Court Abuse Its Discretion in Admitting Moll’s Expert Witness Testimony?
The State next contends that the district court improperly overruled the State’s objections to Moll’s expert witnesses and allowed the witnesses to testify, even though Moll had not provided notice to the State under K.S.A. 60-226(b)(6).
At the hearing on the K.S.A. 60-1507 motion, the State objected to the testimony of Greeno and Schoenhofer for lack of notice by the defense. The State acknowledged that Moll had attached Greeno’s affidavit to the motion and that the affidavit had previously been used in the nonevidentiaiy hearing but argued that Moll had not notified the State that Greeno would be testifying at the evidentiary hearing. The State further alleged that Moll had not provided notice of Schoenhofer until the morning of the hearing.
Moll’s counsel conceded that he had not provided notice to the State. He explained that Greeno had originally been retained as an expert, but, when Moll’s hearing was continued, Greeno believed he had a conflict with a jury trial he was handling. Moll’s counsel then asked Schoenhofer to review the case. Later, Greeno’s case concluded, making him available to testify. Moll’s counsel indicated that he sent the State no reports because neither expert prepared a report.
The district court provided no direct ruling on the objection but permitted Greeno and Schoenhofer to testify. After Schoenhofer testified on direct examination, the State renewed its objection to his testimony. This time, the district court specifically overruled the objection. Prior to Greeno’s testimony, the State again objected because of the lack of notice and because the testimony was purportedly duplicative of Schoenhofer’s testimony, based upon the representation of Moll’s counsel. Again, the district court overruled the objection.
Citing Warren v. Heartland Automotive Services, Inc., 36 Kan. App. 2d 758, 760-761, 144 P.3d 73 (2006), the State contends that the failure to disclose expert testimony according to the requirements of K.S.A. 60-226(b)(6) causes the expert testimony to become inadmissible. K.S.A. 60-226(b)(6) is a civil discovery provision and provides in material part:
“(B) Except as otherwise stipulated or directed by the court, this disclosure, with respect to a witness (i) whose sole connection with the case is that the witness is retained or specially employed to provide expert testimony in the case or (ii) whose duties as an employee of the party regularly involve giving expert testimony, shall state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
As noted in the State’s brief, K.S.A. 60-237(c)(1) provides sanctions against a party who fails to comply with the discovery requirements of K.S.A. 60-226(b)(6) and states, in pertinent part:
“(c) Failure to disclose; false or misleading disclosure; refusal to admit. (1) A party that without substantial justification fails to disclose information required by subsection (b)(6) or (e)(1) of K.S.A. 60-226, and amendments thereto, shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.”
Essentially, the State’s argument for the inadmissibility of Moll’s expert witnesses involves a sanction for a purported discovery violation, not a challenge to the relevance or foundation of the expert testimony. In fact, the State stipulated to the witnesses’ qualifications. The State has cited no authority for applying the civil discovery rules to a proceeding under K.S.A. 60-1507, and independent research has revealed no Kansas case applying K.S.A. 60-226(b)(6) or K.S.A. 60-237(c)(1) to such a proceeding.
Our Supreme Court has acknowledged that aspects of the Code of Civil Procedure are not necessarily applicable to K.S.A. 60-1507 proceedings. In Pabst, 287 Kan. at 23-25, the Kansas Supreme Court recently considered whether the relation-back provisions of the Code of Civil Procedure applied in the context of a K.S.A. 60-1507 proceeding. Initially, the court noted that the Code of Civil Procedure governs K.S.A. 60-1507 proceedings “ ‘insofar as applicable.’ ” 287 Kan. at 23 (quoting Supreme Court Rule 183[a] [2007 Kan. Ct. R. Annot. 243]). The Pabst Court further reasoned that K.S.A. 60-1507 motions required specificity in alleging the factual and legal bases for the claims being made. Therefore, where an additional motion raised allegations that differed in the factual basis from a claim alleged in the original motion, e.g., ineffective assistance of counsel, the allegations did not relate back to the original motion. 287 Kan. at 25.
Similarly, the expert disclosure requirements of K.S.A. 60-226(b) are not applicable here. The discovery provisions of K.S.A. 60-226 are designed to define the factual and legal arguments in a civil proceeding initiated by notice pleading. See Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001) (noting that motions to dismiss are not favored because the Code of Civil Procedure provides for notice pleading and the ultimate determination of legal theories and issues is unsettled until after discovery has been completed). In the context of notice pleading cases, discovery rules are designed to prevent a party from surprising an opposing party at trial. See Warren, 36 Kan. App. 2d at 760.
In contrast, the procedure authorized for the disposition of a motion under K.S.A. 60-1507 does not specifically authorize extensive discovery. Under the specific pleading requirements of K.S.A. 60-1507, the policy rationale behind the discovery rules is diminished. In a motion under K.S.A. 60-1507, a prisoner is required to allege the grounds for relief with factual and legal specificity. See Pabst, 287 Kan. at 25. As a result, the State should be able to determine the factual and legal nature of the movant’s claim from the motion without resort to discovery. Significantly, none of the other discovery provisions of K.S.A. 60-226 were followed in this case.
We note that our conclusion is consistent with federal practice. In discussing federal habeas corpus proceedings under 28 U.S.C. § 2254 (1994) (Rule 6a), the United States Supreme Court noted: “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997). The Bracy Court then noted that Congress under the direction of the Supreme Court had adopted rules governing federal habeas corpus that created a limited right to discovery. 520 U.S. at 904. In contrast, neither the Kansas Legislature nor the Kansas Supreme Court has adopted a rule similar to the rule discussed in Bracy.
Accordingly, we hold the discovery rules of K.S.A. 60-226(b)(6) are not applicable in the context of a K.S.A. 60-1507 proceeding.
Furthermore, even if the civil discovery rules are applicable to K.S.A. 60-1507 proceedings and the district court erred in refusing to exclude Moll’s expert testimony, tire district court’s error is subject to the harmless error standard of review.
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” K.S.A. 60-261.
Although the State objected to the admission of the evidence, it did not seek a continuance to prepare for the testimony or to obtain its own expert witness but acknowledged that it was ready to proceed with cross-examination of the experts. The State also stipulated to the witnesses’ qualifications to testify as experts. The witnesses both relied exclusively on Saville’s case file and the court documents to formulate their opinions regarding Saville’s representation. Neither witness provided any information that was not either produced at the hearing in some other form of evidence or reasonably inferred therefrom. Consequently, the State has failed to establish that the error prejudiced any substantial right.
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Caplinger, J.:
Petsmart, Inc., and Travelers Property Casualty Company of America appeal the decision of the Workers Compensation Board (Board) claiming the Board erred in determining the date of accident for Mitchell’s repetitive trauma injuries and assessing joint and several liability between Travelers and Royal & Sun Alliance Insurance Company for those injuries. Claimant Todd Mitchell cross-appeals, alleging the Board erred in combining the functional impairment ratings for his right and left arm injuries into one functional impairment rating and one scheduled injury for each arm. Mitchell also claims the Board erred in deducting his temporary total disability (TTD) benefits from the permanent partial disability (PPD) award for his right arm injury.
We conclude substantial competent evidence supports the Board’s determination that Mitchell’s subsequent repetitive trauma injuries resulted from a combination of overcompensation for his initial thumb injury and repetitive use of his upper extremities. Therefore, the Board did not err in determining the dates of accident for each of Mitchell’s repetitive trauma injuries were separate and distinct from the date of accident for his initial thumb injury.
Further, on Mitchell’s cross-appeal, we conclude the Board did not err in interpreting K.S.A. 44-510d to permit compensation at the highest level of injury when multiple injuries within a single extremity occur. And finally, we affirm the Board’s deduction of the number of weeks of Mitchell’s TTD from the maximum number of scheduled weeks of PPD in arriving at the total number of weeks of compensation under K.S.A. 44-510d.
Factual history
Mitchell worked for Petsmart from July 2002 until July 19,2005. His duties included building store displays, assisting customers, and stocking merchandise, including 20-50 pound bags of dog food.
On December 31, 2003, Mitchell fell at work and broke his left thumb. He had surgery on January 7, 2004, and immediately returned to work with a cast on his left arm and restrictions against using his left thumb. Mitchell wore the cast for about 13 weeks but continued his regular duties at Petsmart, lifting primarily with his right arm.
Mitchell was released from all medical restrictions on April 5, 2004. Nevertheless, according to Mitchell, he continued to lift pri manly with his right arm because of continued swelling and stiffness in his left arm. At Mitchell’s attorney’s request, Mitchell was examined by Dr. Pedro Murati in May 2004. Dr. Murati determined Mitchell sustained a 32% permanent impairment to his left hand.
By July 18,2004, Mitchell began experiencing numbness in both hands and sharp pain in his right shoulder. At Petsmart’s direction, Mitchell was seen by Dr. Mark Dobyns, who treated him with ibuprofen and cortisone shots, referred him for physical therapy, and restricted Mitchell’s use of his right arm. Mitchell continued his regular duties at Petsmart, hiring primarily with his left arm.
Dr. Murati again examined Mitchell on October 18, 2004, and diagnosed probable right carpal tunnel syndrome, with pain into the right shoúlder, and a right shoulder rotator cuff sprain or tear.
On October 20, 2004, Mitchell notified Petsmart of pain in his left arm and shoulder. In November 2004, Petsmart transferred Mitchell’s treatment to Dr. Bernard Hearon, who diagnosed a superior labrum anterior to posterior (SLAP) lesion to Mitchell’s right shoulder. Mitchell had surgery on his right shoulder on January 3, 2005, and remained off work for a few weeks thereafter. When Mitchell returned to work with restricted use of his right arm, he continued his regular duties primarily using his left arm and continued to experience pain in his left arm and shoulder.
In February 2005, Dr. Hearon diagnosed a SLAP lesion in Mitchell’s left shoulder. In July 2005, Dr. Hearon diagnosed bilateral carpal tunnel syndrome, possible bilateral cubital tunnel syndrome, and probable right cubital tunnel syndrome.
Petsmart terminated Mitchell’s employment for poor attendance on July 19, 2005. The last day Mitchell performed work at Petsmart was July 15, 2005.
Mitchell underwent right carpal tunnel release surgery on August 15, 2005, and was given a full medical release by Dr. Hearon on September 27, 2005.
Dr. Murati again examined Mitchell on December 21,2005, and assigned the following permanent impairment ratings: Right upper extremity — 36%; Left upper extremity —15%; and whole person — 29%. According to Dr. Murati, Mitchell also had an 86% job task loss.
Procedural history
At the time of Mitchell’s left thumb injury on December 31, 2003, Petsmart was insured by Royal & Sun Alliance Company (Royal). However, Travelers began insuring Petsmart on February 1, 2004. Mitchell filed a timely workers compensation claim against Petsmart and Royal in March 2004, listing December 31, 2003, as the date of accident and seeking recovery for injuries to his “hand, thumb, arm and all parts affected thereby.” On October 25, 2004, Mitchell amended his original claim against Royal to indicate that the date of accident was December 31, 2003, “and aggravated thereafter,” seeking recovery for injuries to his “thumb, bilateral hands, bilateral shoulders, arms and all body parts affected.”
Mitchell also filed a separate claim against Royal on October 25, 2004, seeking recovery for injuries from “overuse at work” to his “bilateral hands, shoulders and all parts affected.” Mitchell indicated these injuries occurred on July 18, 2004, and each day worked thereafter. Travelers was later named as the insurance carrier on this second claim, and the two claims were consolidated for litigation.
Dr. Pat Do, who was appointed by the administrative law judge (ALJ) to perform an independent medical examination, testified that Mitchell’s repetitive trauma injuries “arose out of his left thumb injury” and assigned the following permanent impairment ratings: Left thumb — 9%; Left hand — 4%; Left upper extremity ■ — ■ 5%; Right upper extremity — 13%; and whole person —10%.
Rased on his May 2004 examination of Mitchell, Dr. Murati testified that Mitchell’s left thumb and hand pain resulted from the thumb injury Mitchell sustained on December 31, 2003. However, based upon his October 2004 and December 2005 examinations, Dr. Murati testified Mitchell’s repetitive trauma injuries resulted from a work-related injury occurring in July 2004.
The ALJ concluded: (1) Mitchell sustained a single, work-related injury on December 31, 2003, when he broke his left thumb; (2) Mitchell’s subsequent repetitive trauma injuries were the natural and probable consequences of the thumb injury; (3) Travelers and Royal were jointly and severally hable for all of Mitchell’s injuries; (4) Mitchell made a good faith effort to find other employment after Petsmart terminated his employment; and (5) Mitchell experienced a 20% whole body impairment, a 25% wage loss, and an 86% job task loss, resulting in a 55% work disability. The ALJ awarded Mitchell 228.25 weeks of PPD compensation at the rate of $373.95 per week for a total award of $85,354.09.
On review, the Board concluded Royal was solely responsible for costs and compensation for Mitchell’s 44.5% impairment to his left thumb and that compensation was to be paid for his thumb as a scheduled injury under K.S.A. 44-510d. Regarding Mitchell’s repetitive trauma injuries, however, the Board concluded that “the combination of claimant’s work activities and his initial thumb injury resulted in claimant developing bilateral carpal tunnel syndrome, right elbow symptoms, and bilateral shoulder injuries.” Therefore, the Board found Royal and Travelers joindy and severally hable for the medical treatment and the disability compensation relative to those injuries. Finally, the Board designated Mitchell’s last day of work, July 15, 2005, as the date of accident for the repetitive trauma injuries.
A majority of the Board determined the repetitive injuries should be compensated as scheduled injuries under K.S.A. 44-510d and that Mitchell suffered a 24.5% impairment to the right upper extremity at the shoulder level and an 8% impairment to the left upper extremity at the shoulder level. Two board members dissented, concluding that “[b]ecause the fingers, hand, forearm, arm and shoulder are each contained within the schedule of K.S.A. 44-510d(a), claimant’s disabilities must each be compensated according to the schedule at the level that corresponds to that injury, regardless of whether the injuries occurred separately, simultaneously or as a result of a natural progression.”
Travelers appeals the Board’s determination, arguing the Board erred in calculating the date of the accident for the repetitive trauma injuries to be July 15, 2005, and imposing joint and several liability for those injuries between Travelers and Royal based upon that error.
Mitchell cross-appeals, arguing the Board erred in-combining the functional impairment ratings for his right and left arm injuries into one functional impairment rating and one scheduled injury for each arm. Mitchell also claims the Board erred in deducting his TTD benefits from the PPD award for his right arm injury.
No party contests the Board’s determination that Petsmart was insured by Royal on December 31, 2003, and that Royal is solely responsible for costs and compensation for the injury to Mitchell’s left thumb on December 31, 2003.
Did the Board Err in Failing to Apply the Secondary Injury Buie?
Travelers argues the secondary injury rule, as discussed and applied in Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d 494 (2007), required the Board to find that Mitchell’s repetitive trauma injuries were a natural and probable consequence of his thumb injury. Consequently, Travelers contends the Board should have found the single date of accident for all of Mitchell’s injuries was December 31, 2003, and that Royal was solely responsible for all costs and compensation for these injuries.
In its brief responding to Travelers’ appeal, Royal argues substantial -competent evidence supports the Board’s determination that Mitchell sustained injuries in three separate accidents. Nevertheless, Royal suggests this court should find Travelers solely responsible for the two injuries that occurred during Travelers’ period of coverage and reverse tire Board’s determination of joint and several liability between Royal and Travelers for Mitchell’s repetitive trauma injuries. However, Royal did not cross-appeal the Board’s assessment of joint and several liability, and we lack jurisdiction to consider this argument. See K.S.A. 60-2103(h) (appellee must file notice of cross-appeal from adverse rulings in order to obtain appellate review of those issues).
A. Standard of review
Appellate courts have statutory authority to review any action of the Board taken pursuant to the Workers Compensation Act in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Such review is limited to questions of law. K.S.A. 2008 Supp. 44-556(a). We may grant relief if we determine the Board erroneously interpreted or applied the law or if the Board’s factual findings are not supported by substantial competent evidence. K.S.A. 77-621(c)(4) and (c)(7).
Generally, questions regarding the date of the accident, causation of injuries, and insurance coverage on the date of the accident are fact questions. See, e.g., Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 195, 820 P.2d 719, rev. denied 250 Kan. 808 (1991) (whether an. injury is a natural and probable result of a previous injury is generally a fact question). Our review of questions of fact in a workers compensation case is limited to whether, when reviewing the record as a whole, the Board’s findings of fact are supported by substantial competent evidence, which is a question of law. Casco, 283 Kan. at 514.
B. The Secondary Injury Rule
The secondary injury rule provides “that when a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972).
Travelers argues the Board erred in finding that Mitchell’s repetitive trauma injuries resulted from “the combination of claimant’s work activities and his initial thumb injury” and in designating Mitchell’s last day worked, July 15, 2005, as the date of accident for the repetitive trauma injuries. Travelers contends the secondary injury rule required the Board to find that Mitchell’s repetitive trauma injuries were a direct and natural result of his thumb injury and, consequently, the Board erred in finding Royal and Travelers jointly and severally hable for costs and compensation related to the repetitive trauma injuries. According to Travelers, the facts of this case are indistinguishable from those in Casco, where the court applied the secondary injury rule.
In Casco, the claimant suffered a work-related, repetitive-use injury to his left shoulder. Because of the injury and the restrictions associated with his subsequent surgery and treatment, the claimant used his right arm to perform his duties upon his return to work, which included repetitive tying, lifting, and carrying. After several months, the claimant began to experience pain in his right shoulder and was diagnosed with a possible rotator cuff tear in his right shoulder. The Board concluded the claimant suffered a new and separate injury to his right shoulder due to repetitive use and modified the award based on the schedule in K.S.A. 44-510d.
A panel of this court reversed, finding the Board ignored undisputed medical testimony regarding causation of the claimant’s right shoulder injury. The panel concluded the right shoulder injury was a natural and probable consequence of the claimant’s left shoulder injury and further held the award should be based on injuries to parallel limbs. See 283 Kan. at 513 (citing Casco v. Armour Swift-Eckrich, 34 Kan. App. 2d 670, 682-83, 128 P.3d 401 [2005]).
On petition for review, the employer in Casco raised two issues: whether the claimant’s right shoulder injury was the natural and probable consequence of his left shoulder injuiy, and whether the claimant should receive compensation for a scheduled injury.
With respect to the first issue, our Supreme Court in Casco relied upon the Board’s factual finding that the claimant was performing repetitive tasks and lifting only with his right arm because of restrictions that limited the use of his left arm. The court determined that even though the Board’s factual findings were supported by substantial competent evidence, the Board placed undue emphasis on the claimant’s expert’s reference to Casco’s work activities rather than his opinion linking the causation of Casco’s right shoulder injuiy to his left shoulder injuiy. Thus, the court held the Board erroneously concluded the claimant’s right shoulder injury was caused by repetitive use. 283 Kan. at 516-18. Notably, the court also concluded that the Board failed “to consider the uncontroverted evidence that Casco was cariying 20-25 pound boxes with only his right arm because he could not use his left arm.” 283 Kan. at 520.
Ultimately, the Casco court applied the secondary injury rule and found the claimant’s right shoulder injuries and left shoulder injuries constituted a “single injury” for purposes of calculating the claimant’s compensation award. 283 Kan. at 528.
In addressing the second issue, the Casco court overruled the parallel injury rule established in Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931), which permitted a claimant to “receive compensation based on a permanent partial general disability rather than scheduled injuries if the claimant simultaneously injures parallel members.” Casco, 283 Kan. at 523, 527. The court then adopted the analytical model established in Pruter v. Larned State Hospital, 271 Kan. 865, 26 P.3d 666 (2001), to calculate the claimant’s compensation when the claimant suffers a loss of both eyes, both hands, both arms, both feet, both legs, or any combination thereof. Casco, 283 Kan. at 525.
Travelers argues that here, as in Casco, the evidence was undisputed that Mitchell’s subsequent injuries were a natural and probable result of the initial thumb injury and that application of the secondary injury rule required the Board to find only one date of accident—i.e., December 31, 2003.
While we see clear similarities between the facts here and those in Casco, we cannot ignore the appreciable factual distinctions. For instance, it was undisputed in Casco that the plaintiff overcompensated because of his injury and the restrictions associated with the claimant’s treatment for that injury. Here, Mitchell was deemed at maximum medical improvement and released to full duty on April 5, 2004, with no further restrictions. In fact, Mitchell’s treating physician, Dr. Prince Chan, instructed him to use his left hand as a therapeutic measure.
Further, the Casco court concluded the Board ignored undisputed testimony that tire claimant’s secondary injury resulted from overcompensation. 283 Kan. at 517-20. Here, while Dr. Do opined that Mitchell’s repetitive trauma injuries arose out of his initial left thumb injury, Dr. Do’s testimony was not undisputed.
In fact, Dr. Do’s conclusion arguably was compromised by his own inconsistent statements. Dr. Do was asked in cross-examination whether his causation opinion would be impacted if Mitchell had experienced a period of relief from his thumb injury before his shoulder pain started. Dr. Do testified:
“A. If he had — if there was a period of time that he had no pain at all, and I have no guidelines on time, like three months. That’s pulhng it out of the air. That’s a guess. But if at tire time he was using his right shoulder he was still in pain or still recovering from his left shoulder — I mean from his left thumb, then his right shoulder may have been aggravated from overuse of his left.
“Q. Do you recall getting any information from him in that regard? In other words, how his thumb was doing between April of 2004 and July of 2004?
“A. I think from his patient — from his report of what he told us, he was having shoulder pain while still in the cast or still recovering from the left thumb, so what — can I go beyond to clarify—
“Q. Sure.
“A, —this difficult situation?
“Q. Sure.
“A. So I suppose if he really was still in a cast — I guess what’s key to this, if I can help you guys figure it out, if he was still in a cast, trying to go back to work with restrictions while still in the cast, using his right arm, I suppose that can aggravate a right shoulder complaint, but if his right shoulder started hurting a lot when he’s out of the cast, already at [maximum medical improvement] and no restrictions for the left thumb, then all of a sudden he staris having right shoulder pain, then it may be harder to say it was from the left thumb; but by his report to me, he was using his right shoulder while still in a cast, I believe, for his left hand.” (Emphasis added.)
Thus, Dr. Do’s opinion was conditioned upon his assumption that Mitchell began experiencing right arm pain while his left arm was still in a cast and Mitchell was working under restrictions. However, although Mitchell returned to work and primarily used his right arm while his left arm was in a cast, by April 5, 2004, he was no longer in a cast and was deemed to be at maximum medical improvement with no restrictions. Several months later, Mitchell complained of right shoulder injury.
Moreover) even the claimant questioned Dr. Do’s conclusions, pointing out that he saw Dr. Do only briefly and “you know, I don’t even know how he could come to any conclusion really within five minutes.” And, as Royal points out, although Dr. Do’s initial report of April 12, 2006, addressed causation, it did not conclude that any or all of Mitchell’s repetitive injuries were caused by his initial thumb injury.
Further, unlike in Casco, other expert testimony supported the Board’s finding that Mitchell suffered separate injuries. Claimant’s physician, Dr. Murati, testified that Mitchell’s repetitive trauma injuries resulted from a work-related injury occurring in July 2004 when Mitchell began experiencing right shoulder pain. Dr. Murati also testified that repetitive trauma injuries, such as those sustained by Mitchell, “continue [d] to cause the claimant to sustain mini traumas each day he engage[d] in work activities.”
Additionally, contraiy to Travelers’ suggestion, the Board did not ignore evidence establishing that Mitchell’s repetitive trauma injuries were the natural and probable consequence of the initial thumb injury. Instead, the Board found that repetitive work and overcompensation contributed equally to cause Mitchell’s injuries.
We must emphasize that the question of whether a second injury is compensable as a natural and probable consequence of the primary injury is dependent upon the facts of each case, and we are not permitted to substitute our judgment for that of the Board, even though some evidence may support a contrary finding. See Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695 (2007).
We conclude substantial competent evidence supports the Board’s determination that Mitchell’s subsequent repetitive trauma injuries resulted from a combination of overcompensation for his initial thumb injury and repetitive use. Further, we note that the Board’s decision to assign Mitchell’s last day worked as the date of accident for his repetitive trauma injuries is consistent with established case law. See, e.g., Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855-57, 79 P.3d 1289 (2003) (discussing and applying the last-day-worked rule).
Cross-Appeal: Did the Board Err in Calculating Mitchell’s Compensation Award?
In his cross-appeal, Mitchell argues the Board erred in combining the functional impairment ratings for his right and left arm injuries into one functional impairment rating and one scheduled injuiy for each arm. Mitchell also claims the Board erred in deducting his TTD benefits from the PPD award for his right arm injury.
Resolution of these issues requires interpretation of statutory provisions, case law, and administrative regulations, all of which involve questions of law. Under the doctrine of operative construction, if a rational basis exists for the Board’s interpretation of the law, the Board’s interpretation is entitled to judicial deference and should be upheld on review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. Casco, 283 Kan. at 521.
A. Did the Board err in combining Mitchell’s multiple scheduled injuries into one injury for each arm?
Under the Workers Compensation Act, compensation is calculated differently depending upon the nature of the disability. Temporary and permanent total disabilities are compensated under K.S.A. 44-510c; permanent partial scheduled disabilities are compensated under K.S.A. 44-510d; and permanent partial general disabilities are compensated under K.S.A. 44-510e. If an injury is included in the schedule of K.S.A. 44-510d, the amount of compensation in the schedule includes compensation for the permanent loss of the member or the partial loss of the member. K.S.A. 44-510d(a)(21).
K.S.A. 44-510d(a) provides, in part, that PPD compensation “is to be paid for not to exceed the number of weeks allowed in the following schedule:
“(1) For the loss of a thumb, 60 weeks.
“(11) For the loss of a hand, 150 weeks.
“(12) For the loss of a forearm, 200 weeks.
“(13) For the loss of an arm, excluding the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 210 weeks, and for the loss of an arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.”
In Casco, the court adopted the following analytical model for calculating compensation awards in multiple scheduled injury cases where a claimant suffers the loss of both eyes, both hands, both arms, both feet, both legs, or any combination thereof:
“The analysis begins with a determination of whether the claimant has suffered a permanent total disability. K.S.A. 44-510c(a)(2) establishes a rebuttable presumption in favor of permanent total disability when the claimant experiences a loss of both eyes, both hands, both arms, both feet, both legs, or any combination thereof. If the presumption is not rebutted, the claimant’s compensation must be calculated as a permanent total disability in accordance with K.S.A. 44-510c. Pruter, 271 Kan. at 875-76.
“If the presumption of permanent total disability is rebutted with evidence that the claimant is capable of engaging in any type of substantial and gainful employment, the claimant’s award must be calculated as a permanent partial disability. See K.S.A. 44-510c(a)(2); Pruter, 271 Kan. at 875-76. Although both K.S.A. 44-510d and K.S.A. 44-510e apply to permanent partial disability, we note that eyes, hands, arms, feet, and legs are all included in the schedule. See K.S.A. 44-510d(a)(11)-(17). Because the legislature has made the schedule of injuries the general rule and permanent partial general disability the exception to the rule, the claimant’s compensation must be calculated in accordance with the K.S.A. 44-510d for scheduled injuries. [Citation omitted.]” Casco, 283 Kan. at 527-28.
Here, a majority of the Board relied upon Casco to find that Mitchell’s injuries should be compensated as separate scheduled injuries under K.S.A. 44-510d rather than a whole body injury under K.S.A. 44-510e. The parties do not dispute this determination. Nor do the parties dispute the Board’s determination that Mitchell suffered a 44.5% impairment to his left thumb. Rather, in this cross-appeal, Mitchell challenges the Board’s conclusion that he suffered a 24.5% impairment to the right upper extremity at the shoulder level and an 8% impairment to the left upper extremity at the shoulder level.
The Board calculated Mitchell’s right upper extremity rating by averaging the functional impairment ratings of Dr. Do and Dr. Murati for the right arm other than shoulder and the right arm at shoulder level. Similarly, the Board calculated Mitchell’s left arm upper extremity rating by averaging the ratings of Dr. Do and Dr. Murati for his left arm other than shoulder and his left arm at shoulder level. Thus, the Board combined the impairments in each of the claimant’s right and left upper extremities into a single percentage of impairment for each upper extremity and then compensated the resulting impairment at the highest (shoulder) level.
Two dissenting members of the Board concluded that “[b]ecause the fingers, hand, forearm, arm and shoulder are each contained within the schedule of K.S.A. 44-510d(a), claimant’s disabilities must each be compensated according to the schedule at the level that corresponds to that injury, regardless of whether the injuries occurred separately, simultaneously or as a result of a natural progression.”
Ultimately, the Board awarded Mitchell for three separate scheduled injuries, under K.S.A. 44-510d, as follows:
Left thumb injury: 26.70 weeks of PPD compensation at $373.'95 per week based on a 44.5% impairment;
Left arm injury: 18.00 weeks of PPD compensation (2.29 weeks at $384.23 per week plus 15.71 weeks at $426.89 per week) based on an 8% impairment for injuries to his left arm;
Right arm injury: 18.00 weeks of TTD compensation (2.29 weeks at $384.23 per week plus 15.71 weeks at $426.89 per week) and 50.72 weeks of PPD at 426.89 per week based on a 24.5 % impairment.
In arguing the Board erred in combining his multiple left arm and right arm injuries into one scheduled injury for each arm at the shoulder level, Mitchell relies upon three cases: Pruter, 271 Kan. 865; Mathena v. IBP, Inc., 33 Kan. App. 2d 956, 111 P.3d 1060 (2005), and Casco v. Armour Swift-Eckrich, 283 Kan. 508, 515, 154 P.3d 494 (2007).
In Pruter, the claimant injured her right leg and right arm and the Board combined the two scheduled injuries into a whole body impairment, awarding the claimant partial general disability compensation under K.S.A. 44-510e. In reversing the Board, our Supreme Court held that in multiple scheduled extremity injury cases, claimants are to receive compensation for each permanent impairment to each body part according to the schedule in K.S.A. 44-510d(a). See 271 Kan. 865, Syl. ¶ 4.
In Mathena, the claimant injured her left shoulder, right hand, and right elbow. Relying on Pruter, the Mathena panel reversed the Board’s award of work disability and remanded for a scheduled injury award based upon K.S.A. 44-510d. 33 Kan. App. 2d at 963.
Finally, in Casco, the claimant suffered injuries to his left and right shoulder. Relying on Pruter, the Casco court held that unless the ALJ found that the claimant was permanently and totally disabled, his injuries must be calculated as two scheduled injuries under K.S.A. 44-510d. 283 Kan. at 529.
Pruter, Mathena and Casco each concerned the more general issue of whether a claimant who is not permanently and totally disabled may nevertheless combine multiple impairments to extremities to create a whole body impairment. Those cases did not specifically address, however, the more narrow question presented here, i.e., whether multiple impairments within the same extremity can be combined and compensated at the highest level for the scheduled impairments under K.S.A. 44-510d.
The fundamental rule of statutory construction is that the intent of the legislature governs if that intent cari be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). When interpreting a statute, an appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
Significantly, the schedule of injuries in K.S.A. 44-510d is progressive. For example, a claimant is entitled to 200 weeks for the loss of a forearm; 210 weeks for the loss of an arm, excluding the shoulder joint; and 225 weeks for the loss of an arm including the shoulder joint. K.S.A. 44-510d(a)(12)-(13); see, e.g., Landry v. Graphic Technology, Inc., 268 Kan. 359, Syl. ¶ 2, 2 P.3d 758 (2000) (correct measure of compensation for total loss of little finger and partial loss of bone extending from finger into the hand was based upon percentage of partial loss to the hand, which encompassed amputation of little finger); McKinney v. Rodney Milling Co., 177 Kan. 401, 279 P.2d 221 (1955) (affirming award based upon loss of lower leg, including loss of foot and toes, where claimant’s leg amputated at knee).
And while this case does not involve an amputation, we agree with Travelers’ suggestion that the same principle applies to partial losses. As the court in Casco held: “If an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member.” 283 Kan. at 522. Where only partial loss occurs, the number of weeks is reduced by the percentage of the loss. Thus, the principle of compensating an extremity at the highest level affected applies regardless of whether the loss is total or partial.
K.S.A. 44-510d(a)(13), which sets forth the number of weeks to be awarded for upper extremity injuries, demonstrates the application of this principle here. That statute provides:
“For the loss of use of an arm, excluding the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 210 weeks, and for loss of an arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures, 225 weeks.” K.S.A. 44-510d(a)(13).
Here, because Mitchell sustained injury to his right arm, including the shoulder joint, the Board compensated him for 225 weeks pursuant to K.S.A. 44-510d(a)(13), less 18 weeks of TTD, as discussed below.
The Board’s interpretation of K.S.A. 44-510d to permit compensation at the highest level of injury when multiple injuries within a single extremity occur is supported by a rational basis, and we affirm the award.
B. Did the Board err in deducting Mitchell’s TTD award from the PPD award allowed under K.S.A. 44-510d?
The Board determined Mitchell was entided to 18 weeks of TTD compensation for the combined injury to his right upper extremity, followed by 50.72 weeks of PPD. The Board arrived a this figure by deducting the number of weeks of TTD received by Mitchell (18) from the number of weeks provided for an arm injury at the shoulder level (225) pursuant to K.S.A. 44-510d(a)(13). This total, 207 weeks, was then multiplied by the percentage of disability, 24.5%, to determine that Mitchell was entitled to 50.72 weeks of PPD.
In his cross-appeal, Mitchell contends the Board erred in deducting the number of weeks of TTD from PPD. Although it is not entirely clear from his brief, claimant apparently would have the Board arrive at the number of weeks of PPD by multiplying 225 weeks by 24.5%. Mitchell claims the Board’s deduction of the number of weeks of TTD compensation has no statutory or legal support. We disagree.
K.A.R. 51-7-8 clearly provides authority for this computation:
“(b) If a healing period of 10% of the schedule or partial schedule is granted, not exceeding 15 weeks, it shall be added to the weeks on the schedule or partial schedule before the following computations are made.
“(1) If a loss of use occurs to a scheduled member of the body, compensation shall be computed as follows:
(A) deduct the number of weeks of temporary total compensation from the schedule;
(B) multiply the difference by the percent of loss or use to the member; and
(C) multiply the result by the applicable weekly temporary total compensation rate.” (Emphasis added.)
Administrative regulations have the force and effect of law. K.S.A. 77-425. In interpreting administrative regulations, we grant considerable deference to an agency’s interpretation of its own regulation, which should not be disturbed unless that interpretation is clearly erroneous or inconsistent with the regulation. Tonge v. Werholtz, 279 Kan. 481, 484, 109 P.3d 1140 (2005).
The agency’s interpretation of this regulation is also supported by case law. For instance in Cowan v. Josten's American Yearbook Co., 8 Kan. App. 2d 423, 427, 660 P.2d 78 (1983), a panel of this court held:
“K.S.A. 44-510d(b) clearly directs that compensation paid for a specific injury under the schedule shall be exclusive of all other compensation except the benefits (medical compensation) provided in K.S.A. 44-510. In addition, K.S.A. 44-510d(a) specifies the types of compensation which may be awarded as including medical benefits provided in K.S.A. 44-510, temporary total compensation for loss of use and compensation for any permanent disability which finally results. The disability dates from immediately after injury and a maximum number of weeks of compensation is set. Thus, any weeks of temporary total benefits count against the total number of iveeks of benefits allowed. [Citation omitted.]” (Emphasis added.)
Further, in Rhea v. Kansas City Power & Light Co., 176 Kan. 674, 678, 272 P.2d 741 (1954), our Supreme Court agreed that the proper method of calculating PPD was to deduct the number of weeks of TTD from the maximum number of weeks of PPD fixed by the schedule and then multiply the percentage of disability by the remaining number of weeks.
Here, the Board’s deduction of the number of weeks of Mitchell’s TTD from the maximum number of scheduled weeks of PPD is supported by K.A.R. 51-7-8(b)(1)(A) and the case law interpreting K.S.A. 44-510d, and we will not disturb the Board’s finding on appeal.
Affirmed. | [
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Macnish, J.:
U.S.D. 252 (Board) appeals a judgment finding that the South Lyon County Teachers Association’s (SLCTA) notice of intent to negotiate was sufficient notice under the provisions of K.S.A. 72-5423(a).
The Board contends that SLCTA’s notice of intent to negotiate was not legally sufficient.
K.S.A. 72-5423(a) provides:
“(a) Nothing in this act, or the act of which this section is amendatory, shall be construed to change or affect any right or duty conferred or imposed by law upon any board of education, except that boards of education are required to comply with this act, and the act of which this section is amendatory, in recognizing professional employees’ organizations, when such an organization is recognized, the board of education and the professional employees’ organization shall enter into professional negotiations on request of either party at any time during the school year prior to issuance or renewal of the annual teachers’ contracts. Notices to negotiate on new items or to amend an existing contract must be filed on or before February 1 in any school year by either party, such notices shall be in writing and delivered to the superintendent of schools or to the representative of the bargaining unit and shall contain in reasonable and understandable detail the purpose of the new or amended items desired.” (Emphasis added.)
On January 31, 1985, Jeanette Schmidt, president of the SLCTA, sent a letter to Thomas Heiman, superintendent of U.S.D. 252, which stated:
“Mr. Heiman,
This letter will serve as notification that the SLCTA intends to meet with the Board of Education of District #252 for the purpose of negotiating a contract for the certified personnel of this district.
Since the contract now in effect is not one agreed upon by this bargaining agent, it is our intent to notice on each and every article in the unilateral contract now in effect in District #252.”
K.S.A. 72-5423(a) contains two requisites. First, it requires the parties to enter into negotiations at the request of either party at any time before new contracts are issued. In addition, it requires that written notice to negotiate on new items or to amend an existing contract be given to the opposite party on or before February 1. Unlike the “request” in the previous part of the statute, the “notice” . . . “shall contain in reasonable and understandable detail the purpose of the new and amended items desired.” K.S.A. 72-5423(a).
Interpretation of a statute is a question of law. The function of the court is to interpret a statute to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984); State, ex rel., v. Unified School District, 218 Kan. 47, 49, 542 P.2d 664 (1975). In construing a statute, the fundamental rule of statutory construction to which all others are subordinate is that the intent of the legislature governs when that intent can be ascertained. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. at 455.
The purpose and intent of the legislature in the Professional Negotiations Act in general, and specifically in K.S.A. 72-5423(a), is to require boards of education and properly recognized teacher associations to enter into professional negotiations on employment contracts. The statute clearly imposes a duty to negotiate whenever a timely request is made for negotiations. The Board argues that the duty to negotiate is discharged, however, if the notice to negotiate is not sufficiently detailed.
By its language, the notice provision of K.S.A. 72-5423(a) appears to be mandatory. Where strict compliance with the provision is essential to the preservation of the rights of the parties affected and to the validity of the proceeding, the provision is generally interpreted to be mandatory. Griffin v. Rogers, 232 Kan. 168, 174, 653 P.2d 463 (1982); Paul v. City of Manhattan, 212 Kan 381, Syl. ¶ 1, 511 P.2d 244 (1973); Board of Lincoln County Comm'rs v. Berner, 5 Kan. App. 2d 104, 111, 613 P.2d 676, rev. denied 228 Kan. 806 (1980).
In this case, compliance with the notice provision is essential to the preservation of the rights of the parties. The professional negotiation process is facilitated when the notice fully details the purpose behind the proposed additions or amendments to an existing contract. The notice in this case, at best, informed the Board of the general topics to be discussed — each article of the then existing contract — but it fell far short of indicating the purpose of any contemplated new or amended items in reasonable and understandable detail. The statute clearly requires particularity and it is equally clear that particularity is lacking in the notice furnished by SLCTA to the Board. The notice wholly fails to state, in any fashion, the purpose of new or amended items. The notice, thus, does not comply with the dictates of the statute and is therefore insufficient to fulfill the legislative intent; i.e., a reasonably and understandably detailed notice of the puipose of new or amended items desired to be negotiated. A notice such as was given here, which does not fairly apprise a party of the action proposed to be taken, is no notice at all. State v. Buckle, 4 Kan. App. 2d 250, 255, 604 P.2d 743 (1979). We must then conclude that the Board was never served with a timely sufficient notice and is, therefore, under no duty to enter into professional negotiations. The lower court erred in its finding of sufficiency and the case must be reversed on this point.
In light of our decision to reverse the district court, we need not consider the Board’s arguments concerning the court’s evidentiary rulings.
Reversed. | [
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Briscoe, J.:
Respondents, American Drywall and its insurance carrier, initiated this action by seeking review and modification of a workers’ compensation award previously awarded to claimant, Eugene Asay. The administrative law judge, as affirmed by the director, only reduced the prior award and rejected respondents’ argument that claimant’s earning more now than at the time of the injury entitled them to cancellation of the award. Upon review, the district court cancelled claimant’s award and also assessed the costs of the proceedings against claimant. Claimant appeals both rulings.
As support for the cancellation of claimant’s award, respondents rely upon the language of K.S.A. 44-528(b) which provides in pertinent part:
“If the director shall find that the employee has returned to work for the same employer in whose employ the employee was injured or for another employer and is capable of earning the same or higher wages than the employee did at the time of the accident, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages the employee was earning at the time of the accident . . . the director may cancel the award and end the compensation.” (Emphasis added.)
The parties agree that claimant is earning more now than at the time of his injury. It is also agreed that claimant was employed as a residential drywall hanger when he was injured and is now employed by a different employer as a commercial drywall hanger. Commercial buildings frequently use suspended ceilings and, therefore, a commercial drywall hanger is rarely required to install drywall ceilings. Claimant testified that he would experience difficulty in his neck and shoulder should he have to install a drywall ceiling.
The administrative law judge rejected respondents’ argument that claimant’s award should be cancelled pursuant to K.S.A. 44-528(b), concluding the statute applies only to occupational disease cases. The judge found sufficient evidence of decreased disability and, on that basis, reduced claimant’s award pursuant to K.S.A. 44-528(a):
“Based upon the additional record made in this matter, the respondent and insurance carrier have proved by a preponderance of credible evidence that the claimant’s disability has decreased subsequent to the entry of the Award on August 7, 1981, and that the claimant now possesses 25% permanent partial disability to the body as a whole from a work related standpoint, and that the respondent and insurance carrier are therefore entitled to an Award of Modification based upon such decrease in the claimant’s disability, and pursuant to K.S.A. 44-528(a).”
The district court in its journal entry found K.S.A. 44-528(b) is not applicable only to occupational disease cases and concluded the statute was applicable to this case. Then the court stated:
“That based upon the findings made by the Administrative Law Judge and the finding by this Court that K.S.A. 44-528(b) is applicable, the Court finds that claimant’s earnings exceed his earnings on September 19, 1978, and that the award hereinbefore entered should be cancelled and compensation ended.” (Emphasis added.)
Therefore, although the district court cancelled claimant’s award because his earnings had increased, the court by its ruling did not dispute the administrative law judge’s determination that the claimant still has a 25 percent permanent partial general disability to the body as a whole. We find this ruling incongruous.
We must not lose sight of the test to determine whether claimant has suffered and continues to suffer permanent partial general disability.
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to-which the ability of the workman to engage in work of the same type and character that he was performing at the time of his injury, has been reduced.” K.S.A. 44-510e(a).
See Anderson v. Kinsley Sand and Gravel, Inc., 221 Kan. 191, 558 P.2d 146 (1976); Grounds v. Triple J. Constr. Co., 4 Kan. App. 2d 325, 330, 606 P.2d 484, rev. denied 227 Kan. 927 (1980). The pivotal question is what portion of claimant’s job requirements is he or she unable to perform because of the injury? Ploutz v. Ell-Kan Co., 234 Kan. 953, 955, 676 P.2d 753 (1984); Ploutz v. Ell-Kan Co., 9 Kan. App. 2d 9, 668 P.2d 196 (1983). See Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 611 P.2d 161, rev. denied 228 Kan. 807 (1980). Although claimant is earning more here, he remains unable to perform a portion of his initial job as a residential drywall hanger.
The review and modification statute, K.S.A. 44-528, does not alter the test for determining compensable permanent partial general disability under K.S.A. 44-510e. The purpose of K.S.A. 44-528 is set forth in Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 434, 436 P.2d 389 (1968), (overruled on other grounds, Ferrell v. Day & Zimmerman, Inc., 223 Kan. 421, 573 P.2d 1065 [1978]), quoting Hayes v. Garvey Drilling Co., 188 Kan. 179, 181, 360 P.2d 889 (1961), as follows:
“ ‘The reason for the statute is of course evident, for, in the very nature of things, the question of the extent of disability in the first instance is oftentimes conjectural. Human nature being what it is, and medical science not being perfect, it is conceivable that a claimant may not be as badly disabled a few weeks or months after the original hearing as he seemed to be at the time the award was made. On the other hand, his condition might have grown much worse. The statute was enacted to meet such a situation and its provisions safeguard the welfare of the workman as well as the employer.’ ”
In Gile v. Associated Co., 223 Kan. 739, 576 P.2d 663 (1978), our Supreme Court clarified what proof was required under 44-528 to modify a prior workers’ compensation award. The court held the award should not be reduced because there was no evidence introduced which compared claimant’s condition at the time of the award with his condition at the time modification was sought. The court stated: “The purpose of the [modification] proceeding was to determine if the claimant’s disability had changed.” 223 Kan. at 741.
Here, the claimant’s disability has decreased, but he still has a 25 percent permanent partial general disability which entitles him to compensation in spite of his increased earnings. Were we to invoke the diminution of earnings as a prerequisite to recovery, we would be reinserting diminution of earnings as a factor into the formula for computing a permanent partial general disability award. A 1974 amendment to K.S.A. 44-510e eliminated dimunition of earnings as a factor in computing permanent partial general disability. This legislative change, however, was never reflected in the review and modification statute, K.S.A. 44-528(b). Even when the amount of earnings was a factor, our Supreme Court relied on the underlying purpose of the workers’ compensation law and refused cancellation of an award in a case where the claimant had returned to work with full pay:
“ ‘Permanent partial disability of an injured workman based on substantial medical testimony is compensable notwithstanding he may earn as much or more after his injury in the same or other employment. The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market.’ ” Smith v. Jones, 185 Kan. 505, 509, 345 P.2d 640 (1959), quoting Daugherty v. National Gypsum Co., 182 Kan. 197, 203, 318 P.2d 1012 (1957).
We remain firmly committed to the rule of liberal construction of the workers’ compensation act in order to award compensation to the worker where it is reasonably possible to do so, and to make legislative intent effective and not to nullify it. Brinkmeyer v. City of Wichita, 223 Kan. 393, 396, 573 P.2d 1044 (1978). Further, where there is a conflict between two statutes which cannot be harmonized, the later legislative expression controls. Szoboszlay v. Glessner, 233 Kan. 475, 479, 644 P.2d 1327 (1983). We conclude then that a claimant is “capable of earning the same or higher wages” to justify cancellation of his award under K.S.A. 44-528(b) only if claimant has regained his “ability ... to engage in work of the same type and character that he was performing at the time of his injury.” K.S.A. 44-510e(a). Claimant’s remaining permanent partial general disability is compensable even though he is earning more now than at the time of his injury.
We reverse and remand the district court’s decision to cancel claimant’s award. The district court’s decision regarding costs is also reversed and remanded to afford the court the opportunity to reexamine assessment of costs in light of its further proceedings. | [
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Rees, J.:
Plaintiff appeals from an adverse final decision entered in this Chapter 61 action. A single issue is raised: Was it error for the trial judge to set aside the default judgment entered against defendant? On that question only we reverse; no other question has been raised or addressed by the parties.
Initially, we observe that the true defendant is Ms. Jimmie Hollyfield, d/b/a Wyandotte County Race Training Stables. We will refer to her as the defendant.
On September 26, 1985, the plaintiff filed a Chapter 61 petition for the recovery of $600 from defendant. On September 27, 1985, defendant was personally served in Wyandotte County, Kansas, with summons and a copy of the petition. The summons directed the defendant to answer or otherwise appear at or before 9:00 a.m. on October 21,1985. Defendant failed to answer or otherwise appear as directed. On October 21, 1985, the trial judge entered a default judgment for $600 in favor of plaintiff. Seventeen days after entry of the default judgment, on November 7, 1985, defendant filed and served a motion to set aside the default judgment under K.S.A. 61-1721. The essence of the asserted ground for relief was excusable neglect in that the failure to appear was solely by reason of defense counsel’s inaction. The trial court granted the motion. Defendant filed an answer and a counterclaim. The journal entry of judgment filed after trial held on January 6, 1986, recites that: “Judgment is entered for the defendant on its [counterclaim] in the amount of $120.00. The plaintiff s claim is denied . . . .”
Did the trial court err in setting aside the default judgment? K.S.A. 61-1721, which governs the granting of default judgments in Chapter 61 actions, provides:
“If any defendant in an action commenced pursuant to this chapter fails to file an answer or to appear, personally or by counsel, at the time specified in the summons, . . . the cause may proceed, upon proof of service as provided by law, at the request of the plaintiff without further notice, and judgment may be rendered against any such defendant. . . . For good cause shown, the court may set aside a judgment entered by default in accordance with the applicable provisions of subsection (b) of K.S.A. 60-260, except that a motion to set aside a default judgment shall be made not more than ten (10) days from the date of such judgment in an action where defendant was personally served within the state . . . .” (Emphasis added.)
A statute is to be interpreted so as to give it the effect intended by the legislature. The purpose and intent of the legislature governs when the intent can be ascertained from the statute. Words in common usage should be given their natural and ordinary meaning in arriving at a proper construction of the statute. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 634-35, 694 P.2d 462 (1985).
The word “shall” appearing in the quoted K.S.A. 61-1721 language is mandatory language. To read “shall” to mean “may” would render meaningless the explicit statutory words “except that a motion to set aside a default judgment shall be made not more than ten (10) days from the date of such judgment in an action where defendant was personally served within the state.”
The language of K.S.A. 61-1721 is analogous to K.S.A. 60-260(b). In the latter, a motion to set aside a judgment on any of the grounds enumerated in K.S.A. 60-260(b)(1), (2), and (3) “shall be made . . . not more than one year after the judgment, order, or proceeding was entered or taken.” In Jones v. Jones, 215 Kan. 102, 114-15, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974), it is held that motions to set aside judgments based on K.S.A. 60- 260(b)(1-3) must be filed within one year or the movant is precluded from attacking the decree on those grounds.
By clear legislative language, when a defendant is “personally served within the state” in a Chapter 61 action, he has only 10 days following entry of default judgment within which to make a motion to set aside such a judgment. If service other than “personal service within the state” is made, then the defendant is allowed 45 days within which to make a motion to set aside a default judgment. K.S.A. 61-1721.
“ ‘The term “personal service” has a fixed and definite meaning in law. It is service by delivery of the writ to the defendant personally. Other modes of service may be given the force of such service by legislative enactment, but the use of the words “personal service,” unqualifiedly, in a statute, means actual service by delivering to a person and not to a proxy.’ ” Thisler v. Little, 86 Kan. 787, 789, 121 Pac. 1123 (1912).
We conclude and hold that “personally served,” as those words are used in the K.S.A. 61-1721 language “a motion to set aside a default judgment shall be made not more than ten (10) days from the date of such judgment in an action where defendant was personally served within the state,” requires service as described in K.S.A. 1986 Supp. 61-1805(a)(1)(A) as distinguished from all other modes of service referred to in K.S.A. 1986 Supp. 61-1805 and K.S.A. 1986 Supp. 61-1806.
Defendant was personally served within the state. She had only ten days within which to make a motion to have the October 21, 1985, default judgment set aside under K.S.A. 61-1721. Defendant’s motion was not made until 17 days after entry of that judgment. The trial court had no power under K.S.A. 61-1721 to set aside the default judgment.
The trial court’s decision to set aside the October 21, 1985, default judgment in favor of the plaintiff is reversed and vacated. The case is remanded to the district court.
Meyer, J., concurring: I concur in the result. | [
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Meyer, J.:
This is a workers’ compensation case on its second appeal to this court. Claimant, Judy Jones Clouston, has been paid $7,333.34 in compensation benefits by the State Self-Insurance Fund (Fund). The Fund claims it is entitled to reimbursement for that amount from Millers Mutual Insurance Company (Millers Mutual), the insurer for Johnson County. From a decision by the Johnson County District Court holding that it had no jurisdiction to determine the dispute between the two insurance carriers, the Fund appeals.
On March 28,1978, claimant had an accident arising out of and in the course of her employment. The primary issue at the trial of the matter was whether or not claimant was an employee of the Board of County Commissioners of Johnson County, Kansas, or whether she was an employee of the State of Kansas. The Administrative Law Judge and the Director of Workers’ Compensation found claimant to be an employee of Johnson County. On appeal to the district court, it was determined that claimant was an employee of the State of Kansas. The State appealed the district court’s determination to this court.
During the pendency of the appeal by the State, the Fund, pursuant to the statutory requirements of K.S.A. 1985 Supp. 44-556, provided claimant with compensation.
The Kansas Court of Appeals reversed the decision of the district court and concluded that claimant was an employee of Johnson County. Liability for compensation owing claimant was thus indirectly imposed upon the county’s insurer, Millers Mutual.
Following the decision of the Court of Appeals, the Fund made demand upon Millers Mutual for reimbursement of the amounts it had paid claimant. Millers Mutual refused to make reimbursement.
The Fund filed a motion for reimbursement with the Administrative Law Judge on May 20, 1983. It was determined that, under principles of equity, restitution should be granted the Fund. On June 20, 1983, the Director of Workers’ Compensation sustained the Administrative Law Judge’s decision.
The matter was appealed to the Johnson County District Court. The district court reversed the decision of the Administrative Law Judge and the Director of Workers’ Compensation, concluding that workers’ compensation law did not borrow doctrines such as restitution from the common law and that, as K.S.A. 44-501 et seq. did not provide for “recovery back” of monies paid by an insurance carrier after an appeal has determined nonliability, it did not have jurisdiction, under the Act, to determine this dispute. The Fund appeals.
The Fund contends it has paid monies it did not owe and thus should be entitled to reimbursement. On appeal, the Fund acknowledges lack of authority under K.S.A. 44-501 et seq. for reimbursement in such a situation, but urges this court to find authority in “the general power and authorities of the adminis trative law judge and director . . . The Fund also acknowledges that disallowance of reimbursement under provisions of the Act does not foreclose avenues of recovery of such reimbursement through civil litigation outside the Act, but asserts that “[t]o require the insurance carriers to resort to another forum, i.e., another matter of civil litigation in the district court, to recover payments would be ludicrous and totally unnecessary based on the powers and authority granted to the director and administrative law judges to enter appropriate orders in the workmen’s compensation proceedings to cause benefits to be paid by the responsible parties.”
The Kansas Workmen’s Compensation Act, K.S.A. 44-501 et seq., establishes a complete and exclusive remedy provision covering every phase of the right to compensation and makes no provision for the maintenance of common-law actions. Tompkins v. Rinner Construction Co., 196 Kan. 244, 247, 409 P.2d 1001 (1966); Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 205, 695 P.2d 1293 (1985). Under K.S.A. 44-501 et seq, therefore, the Fund is not entitled to reimbursement for the simple reason that the Act contains no provision which would allow such recovery.
When the Kansas legislature has desired to provide reimbursement to insurance carriers, it has done so through specific statutory authority and has not left the matter within the “general power and authorities” of the administrative law judge. See K.S.A. 1985 Supp. 44-556(d); K.S.A. 44-528(a).
As noted by counsel for Millers Mutual, a situation analogous to that of the instant case was present in Tompkins v. Rinner Construction Co., 196 Kan. 244. In Tompkins, a workman was killed as a result of an injury in an automobile accident. The widow made claim for compensation. The district court upheld the findings and award of the Director and entered judgment in favor of the widow for the maximum death benefit. The employer and insurance carrier appealed and made various weekly payments during the pendency of the appeal. The decision of the district court was reversed on appeal with the court finding that there was no evidence that the injury arose out of the employment. The employer and its insurance carrier subsequently filed a motion in the district court for restitution of the weekly benefits paid during the pendency of the appeal. The district court sustained the motion for restitution. The claimant appealed contending that the district court had no jurisdiction pursuant to the Workmen’s Compensation Act to award restitution of the benefits.
The Kansas Supreme Court reversed the order of restitution holding that the Workmen’s Compensation Act did not provide any procedure for the “recovery back” of benefits paid during the pendency of an appeal. The court stated:
“We believe . . . that in view of the provisions of the compensation act general rules relating to ‘restitution’ have no application and that ‘recovery back’ is not to be permitted. Nowhere in the act is there any provision authorizing a ‘recovery back.’ If the anomalous situation presented here is to be corrected it is within the power of the legislature to do so.” Tompkins, 196 Kan. at 249.
Similar holdings have been enunciated in numerous cases since Tompkins. See Johnston v. Tony's Pizza Service, 232 Kan. 848, 658 P.2d 1047 (1983); Brown v. Goodyear Tire & Rubber Co., 211 Kan. 742, 508 P.2d 492 (1973); and Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P.2d 511 (1969). In none of these cases has our supreme court allowed “recovery back” of compensation benefits paid during the pendency of an appeal.
We realize the above cases involve situations which, had they been decided otherwise, would have required a claimant to pay back monies received, while the instant case is between insurance carriers. The instant case thus lacks the appeal found in the others of favoring a claimant. However, the above cases were decided upon general jurisdictional principles relative to the Workmen’s Compensation Act, and thus are applicable in the case at bar. Therefore, based upon the rules present in Tompkins, we conclude the district court in this case was correct in determining the administrative law judge was without jurisdiction to determine this dispute. Our supreme court has left the problem of “recovery back” to the legislature and has chosen not to allow the maintenance of common-law actions under the Workmen’s Compensation Act. The result in this case, although a harsh one, is correct.
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Walker, J.:
This is an appeal from the decision of the district court affirming the finding by a district magistrate court that T.K. was a juvenile offender. Also appealed is the district court’s denial of T.K.’s motion to dismiss on the basis that de novo review was not held in a timely manner.
T.K.’s adjudication as a juvenile offender arose out of two separate incidents at his home in Grant County. In the first incident on March 25, 1985, the testimony indicated that T.K.’s mother called him for school early one morning. When T.K. did not respond, his mother went to his room and called again. T.K. rebuffed his mother by telling her he would not get up for school until noon. Shortly afterward, T.K.’s mother once against attempted to rouse him, at which time T.K. leaped from his bed and went into his closet. The mother testified she knew T.K. had his shotgun in the closet and she heard him click the action on the gun as if he were loading a shell. T.K.’s mother then went back upstairs. She testified she decided not to push him any further because she was afraid of what he would do.
The second incident occurred some four months later, on July 30,1985, and involved T.K.’s father. T.K.’s father testified that he entered their rural residence one day and was informed by his wife that she and T.K. had been arguing. T.K.’s father confronted T.K. for the purpose of discussing this incident, which ultimately led to a wrestling match between father and son on the floor of the family dining room. The upshot was that T.K.’s father ordered T.K. to leave the house. T.K. complied and was followed outside by his father. T.K. then picked up a partially burned Christmas tree stump and came running toward the house with it. T.K.’s father testified that as T.K. was approaching the house he was uttering threats and warning his father that he could not be stopped from entering the house. Testimony also indicated that T.K. had the stump raised above his head and appeared to be in a mood to try to use it. T.K.’s father stepped back and let T.K. enter the house. Shortly thereafter, law enforcement authorities arrived and took T.K. into custody.
A detention hearing was held on the following day, July 31, 1985. The magistrate judge ordered T.K. detained and further ordered that a predisposition investigation occur. Detention was reviewed by the magistrate judge on September 9, 1985, and T.K. was further ordered held until the adjudication hearing.
On September 12, 1985, an adjudication hearing was held before the magistrate judge, which resulted in a finding that T.K. had committed two separate assaults based on the incidents on March 25 and July 30, 1985. T.K. was adjudicated a juvenile offender and placed in the temporary care and custody of SRS.
The next day, September 13, 1985, T.K.’s attorney filed a notice of appeal with the district court for a de novo review of the magistrate judge’s decision. On October 25, 1985, T.K.’s attorney filed a motion to dismiss for failure to hold the de novo hearing within 30 days of the appeal under K.S.A. 38-1683(a). Nothing further occurred in the case until February 5, 1986, when the district judge sent a letter to the parties affirming the adjudication of T.K. as a juvenile offender, affirming the disposition, and denying the motion to dismiss. A journal entry to that effect was filed March 5, 1986.
As his first issue on appeal, T.K. contends the district judge erred in denying his motion to dismiss for failure to provide a timely de novo hearing on his appeal from the order entered by the magistrate judge. Appeals in juvenile offender cases are generally governed by K.S.A. 38-1681 et seq. At issue here is the interpretation to be given K.S.A. 38-1683(a), which provides:
“An appeal from an order entered by a district magistrate judge shall be to a district judge. The appeal shall be heard de novo within 30 days from the date the notice of appeal was filed.”
In this case, the notice of appeal from the order entered by the magistrate judge was filed on September 13,1985, and there was no ruling by the district judge until either February 5 or March 5, 1986, depending on whether the judge’s letter or the journal entry of the hearing on the latter date is used as the final decision point. Apparently the district judge conducted his review by listening to the audio tapes of the adjudication hearing conducted by the magistrate judge.
The parties are in conflict as to the effect of this procedural violation. T.K. takes the position that the 30-day hearing requirement either creates a statutory right to a speedy trial, or codifies the constitutional right to a speedy trial equivalent of the speedy trial rights that are enjoyed by a criminal defendant. He therefore argues that failure to hold a timely review hearing requires dismissal of the charges.
This precise issue has not previously received appellate consideration in Kansas. However, in the case of Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984), the juvenile involved made a similar argument that he was constitutionally entitled to a jury trial. On that occasion our Supreme Court soundly rejected the proposition that district court proceedings in juvenile offender cases are essentially criminal trials. The Findlay court took particular notice of the portions of K.S.A. 38-1601 which provided:
“ ‘K.S.A. . . . 38-1601 through 38-1685 shall be known and may be cited as the Kansas juvenile offenders code and shall be liberally construed to the end that each juvenile coming' within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.’ (Emphasis supplied.)” 235 Kan. at 463.
Concluding there was no federal or state constitutional right to a trial by jury under the Kansas Juvenile Offenders Code, the Findlay court recognized the unique nature of juvenile proceedings:
“ ‘If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.’ ” Findlay, 235 Kan. at 463 (quoting McKeiver v. Pennsylvania, 403 U.S. 528, 551, 29 L. Ed. 2d 647, 91 S. Ct. 1976 [1971]).
Further buttressing this distinction between juvenile proceedings and criminal matters is the language of K.S.A. 38-1683(b), which provides that appeals are to be governed by the Kansas Code of Civil Procedure. This clearly indicates that the legislature intended juvenile matters to have a separate and distinct existence completely apart from criminal procedure. We conclude that juveniles do not have a constitutional right to a speedy trial in matters conducted under the Kansas Juvenile Offenders Code, and K.S.A. 38-1683(a) is not intended as a statutory codification of a right to speedy trial.
Though not specifically raised by appellant, this court has also considered the question of whether the 30-day time period under K.S.A. 38-1683(a) is directory or mandatory. If it is mandatory, the juvenile would be entitled to a dismissal of the cases against him on a completely independent basis from any constitutional concerns. If, on the other hand, the 30-day period is merely a directory provision, no such dismissal would be justified. Once again there are no Kansas cases explicitly on this point, but directory and mandatory statutes have been discussed at length in Wilcox v. Billings, 200 Kan. 654, 657-58, 438 P.2d 108 (1968):
“No absolute test exists by which it may be determined whether a statute is directory or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. Certain rules and aids to construction have been stated. The primary rule is to ascertain legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. It has been said that whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory. (82 C.J.S., Statutes, § 376.)”
Applying the benchmarks elaborated by the Supreme Court in Wilcox, it is apparent that the 30-day period given the district judge to hear an appeal from a magistrate judge in K.S.A. 38-1683(a) is directory rather than mandatory.
While the 30-day requirement is clear and unambiguous, its provisions must be read in concert with 38-1601, .the general legislative purpose section. To automatically throw out a case that was not heard de novo by a district judge on the 31st day following appeal would not be consistent with the legislative instructions that the Code be “liberally construed” for the énds enumerated.
In addition, a rigid and legalistic interpretation of the appeal provisions does little to further the parental interests of the State. While the clear purpose of 38-1683(a) is to provide a prompt review of the district magistrate judge’s decision, order and promptness are the general characteristics of a directory statute. The legislature itself has provided no remedy where the 30-day limit has been transgressed. The main legislative purposes articulated in K.S.A. 38-1601 are not defeated when the hearing is not promptly held.
We hold that failure to conduct the de novo review hearing within 30 days of the appeal does not entitle a juvenile to a dismissal of his case on speedy trial grounds and that the hearing time provision of K.S.A. 38-1683(a) is directory rather than mandatory.
T.K.’s second contention on appeal is that the evidence presented to the magistrate judge was insufficient to support the adjudication of T.K. as a juvenile offender. The Supreme Court in Findlay took note that K.S.A. 38-1654 provides the same burden of proof in juvenile cases as in criminal matters — proof beyond a reasonable doubt — and set forth the standard for our review:
“In State v. Pham, 234 Kan. 649, 675 P.2d 848 (1984), the applicable test on appellate review was stated as follows:
Tn a criminal action where defendants contend the evidence at trial was insufficient to support their convictions, the standard of appellate review is: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court a rational factfinder could have found defendants guilty beyond a reasonable doubt? [Citations omitted.] Moreover, appellate courts look only to the evidence in favor of the verdict, they do not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence, the conviction stands. [Citations omitted.] A conviction of even the gravest offense may be sustained by circumstantial evidence.’ 234 Kan. at 667-68. (Emphasis supplied.)” 235 Kan. at 466.
T.K. was charged with two counts of assault arising out of the separate incidents in March and July 1985 recounted above. K.S.A. 21-3408 defines the act of assault:
“An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
T.K.’s arguments on appeal have little merit. With respect to the March 25 incident, he contends that his mother did not immediately apprehend bodily harm; that what she observed was preparatory to an actual assault; and that he had no ability to commit an assault. After reviewing the record of the trial, however, we find sufficient evidence to support the magistrate and district courts in their findings. T.K.’s mother testified she was familiar with the sound of shells being loaded in a shotgun and knew that T.K. kept his shotgun in the closet. She knew from prior confrontations that T.K. had a volatile temper, and testified, “I was afraid and I hurried upstairs and I didn’t call him anymore.” T.K.’s mother later reiterated, “I was afraid of being bodily harmed.” Whether or not T.K. had the actual ability to threaten or attempt bodily harm to his mother is beside the point under 21-3408. The record clearly supports the conclusion that T.K. had the “apparent” ability necessary under the statute to complete the offense.
While T.K. did not testify concerning the March 25 events, he did offer his version of the July 30 incident at trial. On appeal he contends that his father was not placed in immediate apprehension of bodily harm and that his actions constituted justifiable self-defense. Once again we find there is sufficient evidence to prove all of the elements of the offense of assault. T.K. testified that the wrestling match between him and his father inside the house was accompanied by blows to T.K.’s face. T.K.’s father denied hitting T.K. Both agree that at the conclusion of the wrestling episode, T.K’s father ejected T.K. from the house. Even accepting T.K’s version of things, it is clear the interior scuffling had ended when T.K. picked up the three-foot-long stump and charged toward the house and his father. T.K. initiated a new confrontation by his actions and his father testified it was accompanied by verbal threats and the apparent readiness to use the stump to force entry into the house. When asked why he stood aside to allow T.K. to proceed past him and enter the house, T.K’s father responded, “Well, I figured that he was going to use it on me.” In short, the court could have properly concluded the testimony did not support T.K’s self-defense theory and that T.K’s father did experience a legitimate concern for his physical safety at the time.
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Meyer, J.:
On September 21,. 1982, David Thomas filed suit against Davis-Moore Datsun, Inc., (Davis-Moore) and Nissan Motor Corporation (Nissan), alleging violations of the Kansas Consumer Protection Act, breach of the implied warranty of merchantability, and fraud in connection with Thomas’ purchase of an automobile from Davis-Moore.
The district court awarded plaintiff damagés and attorney fees and ruled that the award “be borne equally by the defendants.” Nissan appealed the judgment, and a panel of this court reversed the trial judge’s determination that Nissan was liable to Thomas under the KCPA. The mandate was filed with the Cleric of the Sedgwick County District Court on April 30, 1985.
On December 21, 1983, while Nissan’s appeal was pending, Thomas filed a Partial Satisfaction of Judgment with the Clerk of the Sedgwick County District Court. According to the document, Davis-Moore had partially satisfied its obligation to Thomas. The document stated, “The only obligation that remains unsatisfied at this time is for further damages that may become the obligation of Davis-Moore due to the appeal of a portion of the judgment by the defendant Nissan Motor Corporation.”
On May 9, 1985, Thomas filed a motion for an order nunc pro tunc, attempting to correct the July 19, 1983, journal entry to reflect the defendants’ joint and several liability for the judg ment. In reply, Davis-Moore alleged that it withdrew from the Nissan appeal because it believed that its liability was limited to the amount reflected in the July 19, 1983, journal entry. The district court denied Thomas’ motion by letter decision July 25, 1985, and Thomas appeals.
Before we reach the merits of Thomas’ appeal, we must first determine if this court has jurisdiction to hear it.
On some unspecified day within ten days following the filing of the July 25, 1985, journal entry, Thomas made an oral motion for reconsideration.
Thomas contends, and Davis-Moore apparently agrees, that this oral motion for reconsideration was made. Thomas further contends that, since the motion for reconsideration was denied December 17,1985, and the notice of appeal was filed January 3, 1986, this court has jurisdiction over the instant appeal. We disagree.
K.S.A. 60-2103(a) provides in part:
“When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment .... The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.”
This court has ruled that, “A motion to reconsider is in substance, if not form, a motion to alter or amend under K.S.A. 60-259(f) and stays the time for appeal until ruled on by the court.” Caplinger v. Carter, 9 Kan. App. 2d 287, Syl. ¶ 1, 676 P.2d 1300, rev. denied 235 Kan. 1041 (1984).
K.S.A. 60-2103(a) does not specifically state that a post-trial motion which tolls the time for appeal must be in writing; rather, the statute refers to a “timely motion made pursuant to any of the rules hereinafter enumerated.”
However, a review of the statutory provisions, set out above indicates that, as a general rule, written post-trial motions are contemplated. Briefly, K.S.A. 60-250(b) and K.S.A. 60-252(b) require that a party merely make amotion. In turn, K.S.A. 60-207 requires written motions unless the motion is made during a hearing or trial. K.S.A. 60-259(b) and (f) require that the respective motions be served. In addition, a motion pursuant to K.S.A. 60-259(f) must be filed. The language in K.S.A. 60-205 discussing “service” and “filing” implies a written motion. For instance, it seems improbable that one could serve an oral motion by hand delivery, mail, or depositing the motion with the clerk of the court unless perhaps the oral motion was tape recorded. Finally, the statutory provisions concerning “filing” specifically refer to papers. K.S.A. 60-205(d) and (e). See also City of Overland Park v. Nikias, 209 Kan. 643, 647, 498 P.2d 56 (1972) (“The word Tile’ contemplates the deposit of a writing with the proper official.”).
Statutory construction aside, there are other reasons for requiring that a post-trial motion be in writing. The absence of a written motion filed pursuant to either K.S.A. 60-205(d) or (e) leaves this court without the ability to make an independent determination when the motion for reconsideration was made. Rather, this court is forced to rely on the trial court’s finding that the oral motion was timely. Since the timeliness of the motion for reconsideration is pivotal to the timeliness of the instant appeal, mere acceptance of the trial court’s finding is questionable in light of this court’s duty to raise the question of jurisdiction on its own motion. Dinkel v. Graves Truck Line, Inc., 10 Kan. App. 2d 604, Syl. ¶ 1, 706 P.2d 470 (1985).
We hold that a post-trial motion to alter or amend a judgment must be in writing. If the motion is not written, it is not effective to toll the time for appeal pursuant to K.S.A. 60-2103(a). Accordingly, Thomas’ oral motion for reconsideration was ineffective to toll the time for appeal. The record indicates that the journal entry denying the motion for an order nunc pro tunc was filed July 25, 1985, and that the notice of appeal was filed on January 3, 1986. As a result, this court is without jurisdiction to hear an appeal from the July 25, 1985, order. See generally Kittle v. Owen, 1 Kan. App. 2d 748, 573 P.2d 1115 (1977).
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Briscoe, J.:
This is an interlocutory appeal brought by the State of Kansas pursuant to K.S.A. 22-3603. The State appeals from an order of the district court suppressing evidence seized under two search warrants.
The State raises three issues which fall within the purview of the Fourth and Fourteenth Amendments: (1) Whether defendants’ allegations challenging Detective Listrom’s affidavit in support of his application for a search warrant were sufficient to trigger a hearing under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); (2) whether the warrant affidavit was sufficient to establish probable cause once the false statements were removed; and (3) whether, under the good faith exception set forth in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), the evidence was improperly suppressed. We note the State does not specifically challenge the trial court’s decision to excise the material it did. We affirm the trial court.
On March 12, 1985, District Court Judge James Macnish issued search warrants for two Topeka residences. The following affidavit was presented to Judge Macnish by Topeka Police Detective Randall Listrom and served as a basis for the issuance of both warrants. The bracketed portions were later determined to be false by District Judge Franklin Theis and were excised.
“I, Detective Randall K. Listrom, a narcotics officer with the Topeka, Kansas Police Department Vice-Narcotics Unit, being of lawful age and having been first duly sworn upon my oath, do depose and state:
“That I have a confidential informant, hereinafter referred to as Cl. [In the past this Cl has provided me with in excess of five pieces of information regarding criminal activity in the Topeka area. I have investigated this information and have found the information to be complete and accurate. This information was such that I would not suggest that a mere common member of the area’s population would have access to this information.]
[“I have shown to this Cl, in the past, vegetation which I subjected to a Narcotest Duquenois Reagent examination. On that examination I had noted color changes indicative for the presence of marijuana. Hence I feel that this Cl is familiar with the appearance of marijuana.]
[“Based upon the past performance of this Cl, I believe this Cl to be a reliable and trustworthy person. I have no reason to suspect that this Cl would ever provide me with information that the Cl knew to be false.]
“The Cl has advised me that a subject known to the Cl as Gary Olson has been, for several years, selling marijuana. The Cl knows that Olson resides at 1003 SE 26th in Topeka, Shawnee County, Kansas. The Cl advised that Olson has entered into a conspiracy with a subject named George to import marijuana into Kansas from the West coast. Olson has advised the Cl that Olson assists George by driving a pick up truck to the West coast, and bringing back marijuana in the vehicle. The vehicle used belongs to George. The Cl knows that George resides across the street from Olson.
“Within the last few weeks George confirmed that this conspiracy existed when George told Olson, in front of the Cl, that anytime Olson needed marijuana to sell Olson could get it from George. The Cl further advised that, according to Olson, the majority of the marijuana is kept at George’s residence, and that Olson gets the marijuana in fifteen pound increments.
“Within the last forty eight hours this Cl has been in the residence of 1003 SE 26th in Topeka, Shawnee County, Kansas. While in the residence the Cl was shown a quantity of vegetation which Olson represented as being marijuana. The Cl stated that the vegetation appeared to be that of marijuana. The amount of vegetation displayed to the Cl was, in the Cl’s estimation, at least one half pound. Olson told the Cl that he had at least one additional half pound at the residence.
“A check of the current phone book shows the address of Olson to be 1003 SE 26th in Topeka, Shawnee County, Kansas. Furthermore, on 12-March-1985 the Cl took Det. Sgt. KC Blodgett of the Topeka Police Department to the area of 26th and Virginia in Topeka, Shawnee County, Kansas. The Cl pointed out 1003 SE 26th as the residence at which Olson resides. The Cl also pointed out the residence on the North East corner of 26th and Virginia, said residence being the first residence North of 26th Street on the East side of Virginia. The Cl advised that George resides at this residence.
“Wherefore I believe that several offenses against the laws of the State of Kansas have been committed, to wit: conspiracy to sell marijuana and possession of marijuana with the intent to sell, both as provided for by K.S.A. 65-4101 et seq. I further believe that certain items, which are evidence to these crimes, are currently located at both 1003 SE 26th in Topeka, Shawnee County, Kansas AND the first residence North of 26th Street on the East side of Virginia in Topeka, Shawnee County, Kansas.
“I would, therefore, respectfully petition the Court for a warrant authorizing the search of both 1003 SE 26th and the first residence North of 26th on the East side of Virginia, both in Topeka, Shawnee County, Kansas, and the seizure therefrom of: marijuana, items for the sale and or use of marijuana as provided for by K.S.A. 65-4150, all papers and/or documents listing out past drug transactions between George and Gary Olson, any and all papers tending to establish a business relationship for the importation or distribution of drugs between Gary Olson and George, and items that would identify all persons residing at the residences including rent receipts and personal correspondence.”
One of the homes searched was the residence of Gary Olson; the other was the residence of George and Patricia Davidson. Numerous items were seized as a result of these searches, including marijuana, cocaine, and drug paraphernalia. Among the persons arrested were the four defendants: Gary Olson, George and Patricia Davidson, and Randall Blakely.
Defendants were charged with various drug related offenses and a single preliminary hearing was conducted on August 27, September 11, and September 12, 1985, before District Court Judge Matthew Dowd. During the course of this hearing, Detective Listrom was questioned by defense counsel who discovered information which defendants believed indicated Detective Listrom had included statements in his warrant application which were intended to mislead Judge Macnish into issuing a warrant. At the close of the preliminary hearing, defendants moved to suppress all of the evidence recovered under the search warrant. Although their motion was denied at this point, the defendants renewed their motion before District Judge Franklin Theis prior to trial. Judge Theis granted the motion to suppress and it is from that order that the State appeals.
Before proceeding to the merits of the constitutional issues raised, we note that “the scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen and the Fourth Amendment to the United States Constitution is usually considered to be identical.” State v. Fortune, 236 Kan. 248, 250, 689 P.2d 1196 (1984) (citing State v. Deskins, 234 Kan. 529, 673 P.2d 1174 [1983]). Accordingly, this court may look to decisions by the United States Supreme Court for guidance in resolving the constitutional issues raised. As another preliminary matter, we note that the State argues Judge Theis erred in considering defendants’ motion to suppress since it had been previously considered and rejected by Judge Dowd at the preliminary hearing. The Kansas Supreme Court rejected a similar argument in State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973). In Jackson, the Supreme Court concluded, under K.S.A. 22-3216, the trial court could reentertain an earlier motion to suppress which had been denied.
I. Franks v. Delaware.
In Franks, 438 U.S. at 155-56, the United States Supreme Court held:
“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”
In applying the decision, the Kansas Supreme Court has held that a defendant may challenge the legality of a search warrant if the challenge is supported by allegations and an offer of proof under oath.
“The challenger has a duty to point out specifically the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress.” State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861 (1978).
In the present case, the State maintains that defendants failed to satisfy their preliminary burden and therefore were not entitled to a hearing on their motion to suppress. We are not persuaded by this argument.
Defendants filed a written motion to suppress the evidence before the trial court which included specific allegations that Detective Listrom had included false and misleading statements in his warrant affidavit. These allegations were sworn to by defense counsel in an affidavit and offer of proof. Specifically, defense counsel challenged the length and quality of Detective Listrom’s relationship with the CL According to Detective Listrom’s affidavit, the Cl had provided Listrom with information “[i]n the past” and “[biased upon the past performance of this Cl, I believe this Cl to be a reliable and trustworthy person.” One would infer from these statements a longstanding working relationship between the informant and the detective. In fact, and according to Detective Listrom’s own testimony at the preliminary hearing, Detective Listrom had arrested the Cl six months before on a drug charge and had had no contact with the Cl until he was again arrested on the evening of March 12, some two to three hours prior to Detective Listrom’s preparation of the warrant affidavit. The marijuana that was shown to the Cl “in the past” was marijuana that was seized from the Cl when he was arrested and then tested in front of the Cl, all occurring three hours before the warrant affidavit was prepared. The true nature of Detective Listrom’s relationship with the Cl was not revealed to the judge who issued the warrants.
Defense counsel further challenged the nature of the informa tion the Cl had provided “in the past,” as well as Listrom’s basis for concluding the information was reliable. The extent of the information provided “in the past” by the Cl was five to six names of persons the Cl believed were involved in drugs. These names were supplied three hours prior to the preparation of the warrant affidavit. Listrom verified the reliability of this information and consequently the reliability of the Cl by checking the criminal intelligence computer to determine if these names appeared as persons involved in drugs. According to Detective Listrom’s testimony, this computer contains information from police files, as well as “any evidence or any conversations with informants, with known sources or unknown sources,” and past arrest records. After this computer check was completed and further verified by checking police files, Listrom took the Cl’s information concerning defendants Gary Olson and George (Davidson) and used that information as the basis for the warrants in question. The nature of the five pieces of information provided to Detective Listrom by the Cl, when it was provided, and how it was verified by Detective Listrom were also not disclosed to the judge who issued the warrants. Defendants satisfied their preliminary burden under Franks and the trial court was correct in ordering a hearing on defendants’ motion to suppress.
The State does not contend that defendants failed to show any statements in the affidavit were false. Instead, the State argues that all the statements in the warrant affidavit were literally true. While perhaps true in a literal and abstract context, the statements in the affidavit certainly conveyed a false meaning to the judge who issued the warrants.
II. Probable Cause.
According to the United States Supreme Court in Franks, once the defendant establishes by a preponderance of the evidence the falsity of statements in the warrant affidavit, these statements will be removed from the affidavit and the court will reexamine the remaining statements to determine whether probable cause existed to support the warrant. If the remaining statements are insufficient to establish probable cause, the evidence seized must be suppressed. 438 U.S. at 155-56. In the present case, the trial court removed the misleading statements from the affidavit and then concluded that what remained failed to establish prob able cause. The court excised the statements which we have shown in brackets in paragraphs 2, 3 and 4 of the warrant affidavit. The State maintains that, even with the false statements removed, the affidavit contains sufficient evidence to support a finding of probable cause. We do not agree.
The burden of proving that the search and seizure were lawful and based upon probable cause rests upon the prosecution. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984). In order to determine whether probable cause exists to support a search warrant, a court must view the affidavit under the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 230, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). This approach requires the court to make a simple, practical, commonsense decision. While an affiant seeking a warrant is no longer required to prove the informant’s reliability and credibility under the “two-pronged test” set out by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), and Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), the affiant must put forth some basis for the court to determine there is a fair probability that contraband or evidence will be found in a particular place. Gates, 462 U.S. at 238; State v. Roudybush, 235 Kan. 834, 846-47, 686 P.2d 100 (1984).
In cases lacking evidence of the informant’s reliability or credibility, the United States Supreme Court has recognized the value of corroborating the informant’s tip by independent police investigation. Gates, 462 U.S. at 241. See Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960); Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959); State v. Roudybush, 235 Kan. at 847. In order to establish probable cause there must be some indication that the informant’s tip is accurate. In Gates, for example, the police received the following anonymous letter:
“ ‘This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
“ ‘They brag about the fact they never have to work, and make their entire living on pushers.
“ ‘I guarantee if you watch them carefully you will make a big catch. They are friends with some big drug dealers, who visit their house often.
“ ‘Lance & Susan Gates
‘Greenway
‘in Condominiums’ ” 462 U.S. at 225.
Before applying for a search warrant, however, the police conducted an extensive investigation to corroborate the information contained in the letter. The police verified the Gates lived where the informant said they lived and had made reservations to fly to Florida. Surveillance disclosed Mr. Gates stayed in a motel room registered in his wife’s name and that they left Florida in their own car and returned to Chicago. Based on the anonymous letter and the police investigation, a warrant was issued and Mr. and Mrs. Gates were arrested. The Illinois trial court suppressed the evidence and was affirmed by the Illinois Supreme Court. The United States Supreme Court, reversing the Illinois Supreme Court, held the subsequent police investigation provided a sufficient basis for concluding there was a fair probability that contraband or evidence would be discovered in the Gates’ home and car.
The facts in the present case do not support a similar conclusion. By the removal of the bracketed statements, any evidence of the informant’s reliability or credibility is likewise removed and, under Gates, we must look to independent police investigation for corroboration of the informant’s statements. The warrant affidavit with the bracketed statements removed contains no information upon which the trial court could conclude there was a fair probability that contraband or evidence would be found. The police made no effort to independently investigate or corroborate the informant’s statements. Here, the independent police investigation consisted of checking the phone book for the address of Gary Olson and having the informant point to the houses where he believed Gary Olson and George (Davidson) lived. The address of George’s house could not be verified from the street, so the only information supplied by the informant which was corroborated by the police was the fact that Gary Olson lived at 1003 S.E. 26th, Topeka, Kansas. The trial court was correct in concluding that under the totality of the circumstances there was not probable cause to support the warrant.
III. United States v. Leon.
The State argues application of the exclusionary rule in the present case is inappropriate. The State appears to suggest that this case is controlled by the United States Supreme Court’s decision in United States v. Leon, 468 U.S. 897. A brief review of the decision demonstrates this issue is without merit.
In Leon, the court held that the exclusionary rule should not be applied to suppress evidence in cases where a court issued a warrant without probable cause as long as the police acted in good faith and did not obtain the warrant by false statement. The court specifically held that suppression of the evidence remained the appropriate remedy if the warrant was issued based on misleading information contained in the warrant affidavit.
The State suggests that the present facts fall within this “good faith” exception because Detective Listrom’s statements were literally true. This argument is groundless. Any attempt by the State to suggest Detective Listrom did not intend to mislead the court into issuing a warrant is discredited by Detective Listrom’s own testimony. In addition, a review of the preliminary hearing transcript evidences a second attempt to obscure the truth and mislead the court. The record before us is adequate to sustain the trial court’s finding that Detective Listrom acted in bad faith by intentionally misleading the court in his warrant affidavit. The trial court was correct in its decision to suppress the evidence seized.
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Knudson, J.:
This is an appeal by a creditor from an order of the district court dismissing a claim filed against the decedent’s estate. The trial court ruled the claim was barred under the nonclaim statute, K.S.A. 59-2239.
The decedent, E.F. Madden, maintained a grain elevator and other structures upon the Union Pacific Railroad’s right-of-way under a written lease. The lease ended on June 30, 1984, and under its terms Madden was obligated to remove all structures within 30 days after termination. The lease further provided if Madden failed to remove the structures Union Pacific could do so within the next 90 days and obtain reimbursement from him for the cost.
Madden did not remove the structures. Union Pacific pro ceeded to do so at a cost of $18,400. The railroad entered into negotiations with Madden’s attorneys to recover the cost of removal. The dates arid material discussions between the parties may be summarized as follows:
(a) October 10, 1984. Madden’s attorneys acknowledged receipt of information from Union Pacific naming the low bidder for removal.
(b) November 1, 1984. Union Pacific sent by certified mail its formal demand for reimbursement to E.F. Madden with a copy of the demand letter to Madden’s attorneys. E.F. Madden, Jr., the elder Madden’s son, signed the receipt “E.F. Madden.”
(c) November 6, 1984. Madden’s attorneys informed Union Pacific the railroad had breached the lease agreement. (The letter was nonspecific as to the breach but, subsequently, the allegation was made Union Pacific failed to give Madden credit for salvage.) The letter indicated a copy was sent to E.F. Madden.
(d) March 19, 1985. Union Pacific’s attorney acknowledged to one of Madden’s attorneys that Madden was entitled to credit for salvage. Union Pacific subsequently requested salvage values from their contractor so the claim could finally be resolved.
(e) May 29, 1985. Madden’s attorney informed Union Pacific’s attorney that E.F. Madden had died on October 25, 1984, that administration of decedent’s estate had commenced November 8, 1984, and that notice to creditors was first published November 15, 1984.
(f) E.F. Madden, Jr. was appointed executor of his father’s estate.
(g) June 3, 1985. Union Pacific filed its petition for allowance of demand. The decedent’s estate filed its written defenses alleging the claim was not filed within six months from the first publication of notice to creditors as required under K.S.A. 59-2239 and the bar of the nonclaim statute cannot be waived. Based upon these defenses and the executor’s motion to dismiss made at pretrial conference, the district court dismissed the claim.
Because the trial court’s dismissal was entered as a matter of law without an evidentiary hearing, for purposes of review, all controverted facts and reasonable inferences will be construed in a light most favorable to the appellant’s assertions. Thus, we assume the following facts to be true:
1. The executor, E.F. Madden, Jr., was made aware of the railroad’s claim upon receipt of the demand letter dated November 1, 1984.
2. The decedent’s attorneys also represent the executor.
3. Madden’s attorneys were aware of the claim on or before October 10, 1984.
4. Neither the decedent’s son nor Madden’s attorneys informed Union Pacific of his death in spite of continuing negotiations.
5. The letter of November 6, 1984, by Madden’s attorney to Union Pacific indicated a copy sent to E.F. Madden despite his earlier death.
6. Constructive notice of Madden’s death was given by publication on November 15, 1984, pursuant to K.S.A. 59-2236.
7. The railroad did not have actual knowledge of Madden’s death until May 29, 1985, and thereafter promptly filed its claim in the estate.
Two issues are raised: (1) Whether a known creditor may constitutionally be barred by the nonclaim statute, K.S.A. 59-2239, when the only notice given of the appointment of the decedent’s personal representative is publication notice under K.S.A. 59-2236, and (2) whether the decedent’s estate should be estopped from asserting the nonclaim statute against this creditor.
Our discussion begins with Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506, 582 P.2d 742, rev. denied 225 Kan. 844 (1978). This opinion considered whether a creditor may be constitutionally barred from making a claim against a decedent’s estate when the only notice given of the appointment of a decedent’s personal representative is publication notice in accordance with K.S.A. 59-2236. The court recognized that when a state proposes to take judicial action which will deprive a person of a property right, it must give that person notice which is reasonably calculated to reach the attention of the person whose property will be affected. For this reason publication notice is not sufficient when the person’s whereabouts are known or reasonably ascertainable. Nevertheless, the court concluded the application of the nonclaim statute upon publication notice did not violate either the due process or the equal protection clauses. Union Pacific argues its case is factually distinguishable from Gano Farms because both the executor and attorneys for Madden’s estate knew of the railroad’s claim and intentionally failed to give actual notice. Under these circumstances, the railroad urges due process and equal protection require actual notice to a known creditor before the nonclaim statute may be applied.
Our reading of Gano Farms and the authorities cited therein leads us to a contrary conclusion. The rationale of the earlier Kansas case was that the precedents requiring more than publication notice did not apply to the nonclaim bar because the function of notice and the nature of the right affected are different. Cases in which publication notice has been found constitutionally inadequate all involve judicial action which operates directly on a person’s property. The person to be notified is effectively made a party to the court proceeding with the notice and some property interest is the specific subject of the court’s judgment. See, e.g., Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950) (publication notice inadequate to notify trust beneficiaries of action to settle their rights against trustee). By contrast, as aptly stated by Chief Judge Foth:
“The notice under the nonclaim statute, on the other hand, does not make a creditor a party to the proceeding, but merely notifies him that he may become one if he wishes. It does no more than put into operation a special statute of limitations. It is true that the creditor’s claim will be barred if not presented before the statute runs, but that is true of any statute of limitations. No order is entered which specifically bars the claim unless, as here, the creditor seeks to enforce the claim after the statute has run.” Gano Farms, 2 Kan. App. 2d at 508.
Because it is the passage of time rather than the judgment of a court which invokes the bar of K.S.A. 59-2239, there is no constitutional requirement that the operation of the nonclaim statute be preceded by more than publication notice. The knowledge and actions of the executor do not make the creditor a party to the probate matter nor do they convert the bar of the nonclaim statute from one which is invoked by the passage of time to one which results from action by the court. Therefore, even if there are factual distinctions between this case and Gano Farms, those distinctions do not provide this court with a basis upon which greater constitutional protection should be afforded a creditor. Known or unknown, a creditor is only entitled to the publication notice prescribed by K.S.A. 59-2236.
Union Pacific also asserts the holding in Gano Farms should be reconsidered because of recent decisions by the United States Supreme Court. In Continental Ins. Co. v. Moseley, 98 Nev. 476, 653 P.2d 158 (1982), the administrator of the decedent’s estate knew of the creditor’s claim but provided only the publication notice required by the Nevada nonclaim statute. The Nevada Supreme Court held publication notice satisfied the Mullane definition of due process notice without discussing whether application of this standard was mandated. The United States Supreme Court granted certiorari and, without hearing, vacated the ruling, and remanded the case for further consideration in light of its holdings in Mennonite Board of Missions v. Adams, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983). Continental Ins. Co. v. Moseley, 463 U.S. 1202, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983). Following remand, the Nevada Supreme Court reversed its earlier decision and held more than publication notice was necessary to comply with due process when a creditor is known to the estate administrator. Continental Ins. Co. v. Sister Moseley, 100 Nev. 337, 683 P.2d 20 (1984).
At first impression Moseley appears to support the appellant’s argument, but in fact the decision provides no basis to depart from our holding in Gano Farms. The case cited by the United States Supreme Court, Mennonite Board of Missions, involved the right of a mortgagee to receive more than publication notice prior to foreclosure for nonpayment of taxes. The Supreme Court concluded a mortgagee has a substantial property interest significantly and adversely affected by a tax sale and notice by publication was unconstitutional. This decision was consistent with the Supreme Court’s previous decisions we referred to in Gano Farms. In Mennonite Board of Missions, just as in Mullane, 339 U.S. at 314, the person to be noticed was, by the publication notice, made an actual party to the action and the judgment of the court operated directly on that person’s property. We believe the Supreme Court’s summary remand in Moseley was based upon the Nevada Supreme Court’s assumption the nonclaim statute effected a deprivation of property which necessarily had to comply with the Mullane notice requirements. Since Gano Farms held no such compliance necessary, the Supreme Court’s action does not impair the continued validity of its authority.
The Missouri Supreme Court in Estate of Busch v. Ferrell- Duncan Clinic, 700 S.W.2d 86 (Mo. 1985), agreed with the holding in Gano Farms and held due process does not require more than publication notice to a known creditor that the decedent’s estate is being administered. The opinion provides an excellent summary of applicable law and is especially pertinent because the creditor cited the remand of Moseley and the Missouri Supreme Court also found it to be unpersuasive authority.
We conclude the due process and equal protection clauses do not require more than publication notice to a known creditor that a decedent’s estate is being administered. Thus, the nonclaim statute was constitutionally applied in this case.
Union Pacific further contends decedent’s estate should be equitably estopped from asserting the bar of the nonclaim statute because the conduct of the estate’s executor and his attorneys led it to believe Madden was alive. However, the nonclaim statute is a special statute of limitations enacted for the benefit of the heirs. In In re Estate of Hill, 162 Kan. 385, 176 P.2d 515 (1947), the court held as follows:
“An executor or administrator is without power to waive the statute of limitations or nonclaim of the above statute [G.S. 1935 59-2239 (1945 Supp.)], and if, in an attempt to prove such a demand, it develops it is barred, it is the duty of the court to disallow it.” Syl. f 7.
We recognize waiver is not synonymous with equitable estoppel, but if an estate’s representative lacks the power to affirmatively waive the nonclaim statute, we do not see how a creditor could avoid the bar of the nonclaim statute by failing to file a timely claim and thereafter asserting reliance on representations by the executor or his attorneys as justification for that failure. It is the duty of the court to protect the heirs by disallowing claims filed outside the period of the special statute of limitations and equity would not be served by the application of estoppel to thwart this duty. We conclude the doctrine of equitable estoppel is inapplicable when a creditor fails to file a timely claim.
Affirmed. | [
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Abbott, C.J.:
This is a zoning appeal by an intervenor from the trial court’s decision granting the plaintiff landowner a change in zoning classification from single-family (AA) to mobile home (G) on property owned by plaintiff. The plaintiff cross-appeals, raising the timeliness of the intervention and challenging the jurisdiction of this court to entertain this appeal on its merits.
The dispositive facts are uncontroverted. The trial court entered a final judgment on August 31,1984. An unsigned notice of appeal was filed on October 1, 1984. The notice of appeal was timely filed, since the 30th day (September 30) was a Sunday.
The notice was filed on behalf of the Fifth District Homeowners Association (Association) by its attorney. The only sig nature on the notice of appeal is under the certificate of service and it is styled “Amicus Curiae.”
Several problems are presented. The Association was never incorporated; therefore, it is not a legal entity and can neither sue nor be sued in the name of the Association. Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P.2d 891 (1965). No argument is made that statutory authority exists which would permit the unincorporated Association to sue or be sued. Neither was the Association ever named a party in the lawsuit prior to its filing the notice of appeal, nor had it at any time attempted to intervene. The trial court, at a later date, permitted the Association to amend its notice of appeal so as to substitute an individual member to proceed on behalf of the Association.
On October 31, 1984, the Association filed a motion to intervene pursuant to K.S.A. 60-224(a)(2). A copy of that motion is not contained in the record on appeal. We do have the transcript of the hearing on the motion to intervene and the trial court’s order allowing intervention.
K.S.A. 60-224(a)(2) provides:
“Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant 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 may as a practical matter substantially impair oi impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
As the statute indicates and the Kansas case law holds, the right to intervene in an action is dependent on the concurrence of three factors: (1) timely application, (2) substantial interest in the subject matter, and (3) inadequate representation of the applicant-intervenor’s interest. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984); Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (1973). Only the first factor, timely application, is in issue here.
In a position somewhat contrary to the general authorities, Kansas liberally construes the provisions of K.S.A. 60-224(a) in favor of intervention, especially when intervention is necessary to protect some right that would otherwise be unprotected. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1; Campbell American Legion v. Wade, 210 Kan. 537, 502 P.2d 773 (1972). In addition to liberal construction, a motion to intervene is a matter addressed to the court’s discretion. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976).
It has been held that intervention is timely after a final decree in a case when necessary to perfect a zoning appeal that otherwise would not be taken. Wolpe v. Poretsky, 144 F.2d 505 (D.C. Cir.), cert. denied 323 U.S. 777 (1944); Hukle v. City of Kansas City, 212 Kan. 627; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261 (1966). Allowing intervention at this late stage of the proceedings can be explained by the meaning given to a “timely application.” Under K.S.A. 60-224(a)(2), “timely application” to intervene has no application until such time as adequate representation ceases. And the refusal of an existing party to take an appeal may be inadequate representation in some circumstances. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. at 11; Hukle v. City of Kansas City, 212 Kan. 627, Syl. ¶ 3; Moyer v. Board of County Commissioners, 197 Kan. at 27.
In a case involving post-judgment intervention for the purpose of appealing the denial of class certification, the United States Supreme Court held that a motion to intervene filed 18 days after the entry of judgment was timely. This was obviously within the 30-day period for an appeal. United Airlines, Inc. v. McDonald, 432 U.S. 385, 53 L. Ed. 2d 423, 97 S. Ct. 2464 (1977). It was stressed in McDonald that in all cases involving post-judgment intervention, the critical inquiry is whether in view of all the circumstances, the intervenor acted promptly after the entry of judgment. 432 U.S. at 395-96. At least implicitly, the Supreme Court hinted that a motion to intervene filed after the time period for taking an appeal would not be timely. One circuit court supports this position. Although the case involved permissive intervention rather than intervention by right, the court held as a matter of law that a motion to intervene is never timely if filed after all rights to appeal have expired. Burney v. City of Pawtucket, 728 F.2d 547, 549 (1st Cir. 1984). The First Circuit Court noted that to hold otherwise, a court could postpone finality at any time by adding a new party. See also Tp. of Hanover v. Town of Morristown, 121 N.J. Super. 536, 298 A.2d 89 (1972) (intervention after time to appeal has expired is untimely).
In examining the Kansas cases pertaining to post-judgment intervention, the factual circumstances of those cases can be distinguished from the present case. In Moyer v. Board of County Commissioners, 197 Kan. 23, our Kansas Supreme Court reversed the trial court’s refusal to allow adjoining landowners in a zoning action to intervene so as to appeal and challenge the reasonableness of the district court’s decision. The trial court apparently determined intervention was untimely because the motion was made after judgment. In Moyer, the district court’s judgment was entered on July 22, 1965. The attorney for the Board of County Commissioners informed the would-be intervenors that no appeal or motion for a new trial was going to be filed by the defendants. On July 27, 1965, the adjoining landowners filed a motion to intervene as defendants so that they could perfect an appeal of the zoning decision. Moyer is not factually on point with the instant case — there the intervention came within the appeal period. Moreover, after having been informed that no appeal was going to be taken, the intervenors were no longer adequately represented and promptly moved to intervene.
Hukle v. City of Kansas City, 212 Kan. 627, is also distinguishable on its facts. The landowner group which sought to intervene made two attempts. The first attempt came when the defendant City filed a motion for a new trial. Intervention at that point was properly denied because the City was adequately representing the group’s interest. After the City’s motion for a new trial was overruled, the City filed a timely notice of appeal from the trial court’s zoning decision. Approximately six months later, during pendency of the appeal, the City filed a motion to dismiss its appeal. The very next day the landowner group moved to intervene once again in the case to pursue the appeal. The trial court dismissed the appeal and denied the motion to intervene. Our Supreme Court held that the second denial of intervention was erroneous, concluding that intervention was timely because at the point the City moved to dismiss its appeal the intervenors were no longer adequately represented. They moved quickly (one day later) to intervene. In Hukle an appeal was already pending when intervention was sought. The City had timely filed a notice of appeal. Moreover, the court had not yet acted on the City’s dismissal motion when the landowner group moved to intervene. Thus, there was still a proceeding pending.
The stage of proceedings in the case before us is very different from Moyer and Hukle. The district court’s judgment on the merits of the zoning dispute was entered on August 31, 1984. The time period for appealing would expire on October 1, 1984. The Association moved to intervene on October 31, 1984, which was 61 days after judgment was entered and 30 days after the appeal period had expired. Unless the unsigned notice of appeal filed by the Association dictates otherwise, there was nothing pending at the time it attempted to intervene. The case was concluded upon the expiration of the 30-day appeal period, and the trial court was therefore without jurisdiction to entertain the intervention motion.
There is nothing in the record to indicate whether the City had informed anyone it intended to appeal, or if it did, when it did. However, the Association’s attorney admitted at the hearing on the intervention application that representatives of the Association informed him two days before the appeal period lapsed that they wanted to appeal. They felt that their interests were not adequately represented by the City. A motion to intervene thus could have been filed within the appeal time, but instead, the attorney for the Association attempted to file a notice of appeal.
What is the effect of the Association-intervenor’s notice of appeal filed October 1, 1984, on the last day for appealing the zoning decision of the district court? The trial court apparently concluded that this notice of appeal was effective to preserve the Association’s right of review. In essence, after granting the Association intervenor status, the district court permitted the Association to amend its notice of appeal. In short, the amended notice of appeal related back to the first filing in order to be timely within the 30-day limit. We believe this was erroneous.
The first notice of appeal was ineffective for two reasons. First, when the Association filed its notice of appeal, it was not yet a party to the action. Intervention is a means by which one becomes a party to an action. 59 Am. Jur. 2d, Parties § 130. At the point the appeal was filed, the Association had not sought nor had it been granted intervention by the court. Thus, the Association was not a party to the action. And those who are not parties to an action have no standing to take part in the proceedings — in this case, to take an appeal. 59 Am. Jur. 2d, Parties § 129. And as noted in Hukle, 212 Kan. at 632:
“ ‘Intervention is an action within an action and, being ancillary in nature, partakes of the character of the subject matter of the main action regardless of the character of its own subject matter. Jurisdiction of the intervention action is governed by jurisdiction of the main action . . . .’
“ ‘Intervention presupposes the pendency of a suit in a court of competent jurisdiction, and one who voluntarily becomes a party thereto, impliedly, if not expressly, accepts the proceedings as he finds them at the time of the intervention; the intervenor is, for all intents and purposes, an original party.’ ”
Second, the unincorporated Association cannot be a party to a lawsuit. The trial court apparently recognized this when it permitted the Association to amend its notice of appeal so as to substitute an individual member to proceed on behalf of the Association. An unincorporated association is not a legal entity and has no capacity to sue or be sued. Kansas Private Club Assn. v. Londerholm, 196 Kan. at 3, 4; 39 Am. Jur. 2d, Parties § 22. Those who are not legal entities cannot be parties. Therefore, the attempted appeal by the unincorporated Association was a nullity; thus, there was no case in court and nothing for the trial court to amend. See 59 Am. Jur. 2d, Parties §§ 20-21.
By our concluding that the notice of appeal filed October 1, 1984, was ineffective, the trial court no longer had a case pending before it when the motion to intervene was filed. The appeal time had since elapsed. Therefore, the trial court did not have jurisdiction to entertain the intervention motion which was not filed until some 30 days after the time to appeal had expired. If, however, the Association’s motion to intervene rather than its notice of appeal had been filed by October 1, 1984, the judgment of August 31, 1984, could not have become final because the rights of the intervenor would not yet have been adjudicated. The Association could have protected its right to appeal by filing its motion to intervene within the appeal period.
We conclude that we are without jurisdiction.
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Knudson, J.:
This action was brought to determine priority of security interests in farm equipment. The competing secured creditors are J.I. Case Credit Corporation (Case) and The Bazine State Bank (Bank). The debtor is Clarence Foos. The equipment consists of a Case tractor and a Noble undercutter.
Foos had been a regular customer of the Bank for years. As early as 1966, the Bank filed a UCC financing statement which provided for a security interest in after-acquired farm equipment. From time to time, appropriate UCC continuation statements were filed.
On May 30, 1980, Foos purchased the Case tractor and Noble undercutter from Rural Equipment, Inc., of LaCrosse, Kansas (Rural Equipment). This was a secured transaction. Rural Equipment filed a financing statement with the Ness County Register of Deeds on June 18, 1980. Rural Equipment subsequently assigned its rights in the transaction to Case.
In July 1981 Foos failed to make a full installment payment due Case. An extension was agreed upon with that payment to be included when the next annual installment was due. In July 1982 Foos was unable to meet his payment obligations under the purchase agreement or the extension. Case insisted that the account be brought current or that Foos surrender the collateral. Foos turned to the Bank for help. Its loan officer, Larry Stieben, conferred with a Case representative who explained the status of Foos’ account, including the balance owed and the number of annual installments remaining to be paid. In September 1982 the Bank loaned Foos sufficient funds to bring the account current.
When Case received the delinquent payment from Foos, its computerized billing and account system erroneously reported the entire contract was paid in full. The contract was stamped “paid” and mailed to Foos. Case also filed a UCC termination statement on November 24, 1982, terminating its security interest in the tractor and undercutter.
In December 1982 Foos met with Stieben to request a loan. Foos advised Stieben that Case no longer had a security interest in the purchased equipment as the contract had been paid. Stieben requested documentation and Foos produced the can-celled contract stamped “paid” with a letter from Case stating the promissory note had been paid in full and Case had terminated its security interest in the equipment. Stieben then verified with the Ness County Register of Deeds that Case had filed a termination statement. Thus informed, the Bank did enter into the loan transaction with Foos, taking a security interest in the tractor and undercutter. A UCC financing statement was filed.
In February 1983 Case discovered the incorrect entries to the Foos account and notified him the contract had not been paid in full. Case also filed a new financing statement with the register of deeds. The statement was not signed by Foos.
Foos failed to make any further payments and Case repossessed the equipment. Foos then filed an action against Case alleging unlawful repossession and criminal trespass. The instigation of that action caused Case to file this lawsuit against Foos and the Bank for judicial determination of the validity and priority of the competing security interests in the equipment.
The district court, upon written findings of fact and conclusions of law, entered judgment in favor of Case and against the Bank. It is from this judgment the Bank now appeals.
The Bank raises three issues in this appeal: (1) Whether Case has a perfected security interest in the farm equipment; (2) whether the Bank has a perfected security interest in the farm equipment; and (3) whether the trial court’s finding that the Bank did not exercise good faith is supported by substantial competent evidence.
It is noted that all of the above issues, if not issues of fact, are certainly mixed issues of fact and law. This would normally limit appellate review to deciding whether the trial court’s findings are supported by substantial evidence. Woods v. Midwest Conveyor Co., 236 Kan. 734, 697 P.2d 52 (1985). Under such circumstances the evidence must be reviewed in the light most favorable to the party prevailing below. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 624 P.2d 420 (1981). However, as will soon be evident, we are unable to proceed with appropriate review under the issues as presented. While review is ordinarily restricted to the issues presented by the litigants, an obvious exception is when plain error is evident or fundamental rights are at issue. The appellate court may then consider such unraised issues. Moreover, appellate review of conclusions of law is unlimited. Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 644 P.2d 1354, rev. denied 231 Kan. 799 (1982). With these principles in mind, we return to the factual record.
At the time Foos entered into the secured transaction with Rural Equipment, the seller failed to perfect its purchase money security interest under K.S.A. 84-9-312(4) as a financing statement was not filed within the required ten days. Rural Equipment did file a financing statement and thus perfected its security interest by filing on June 18, 1980. Conversely, the record is clear that at the time of Foos’ purchase and through June 18, 1980, the Bank had no underlying security interest supporting its previously filed financing statement. K.S.A. 84-9-303 contemplates the existence of a security agreement before a security interest is perfected. Based upon these circumstances, we conclude Case had a perfected security interest in the tractor and undercutter from June 18, 1980, until its termination statement was filed on November 24,1982, superior to any interest or claim asserted by the Bank.
What was the effect of Case’s improvident filing of a termination statement? In our opinion, under K.S.A. 84-9-404, Case’s security interest was at that moment no longer perfected. Case could, of course, continue to ¿nforce its security interest in the equipment as long as only its debtor Foos was involved. Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 563 P.2d 414 (1977). However, a secured creditor with a perfected security interest must be given priority under K.S.A. 84-9-312(5)(a), which states:
“Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.”
It would thus appear the Bank’s security interest perfected in December 1982 would be entitled to priority but for the trial court’s finding the Bank did not act in good faith. The trial court, with implicit agreement of the parties, reasoned that Foos held voidable title to the equipment when he gave the Bank a security interest in the equipment. The court further reasoned the Bank was a purchaser, that K.S.A. 84-2-403(1) applied, and our Supreme Court’s decision in Iola State Bank v. Bolan, 235 Kan. 175, 679 P.2d 720 (1984), was supportive authority.
First, we do not believe Foos held voidable title to the equipment. Rather, he held title subject to the unperfected security interest of Case. K.S.A. 84-2-401(2) states:
“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest . . . .”
We submit that full title passed to Foos at the time of sale in 1980.
In Iola State Bank, the sellers’ delivery of grain was conditioned upon payment. Obviously, the grain elevator at best had only voidable title. Clearly it is distinguishable from the case at bar. For another case illustrative of voidable title, see Dick Hatfield Chevrolet, Inc. v. Bob Watson Motors, Inc., 238 Kan. 41, 708 P.2d 494 (1985).
Secondly, the trial court’s application of K.S.A. 84-2-403(1) ignores the fact this is a priority dispute between competing security interests and therefore is to be resolved under article 9 of the Code, not article 2. This conclusion is supported by specific provisions in the Code. K.S.A. 84-9-113 states in material part: “A security interest arising solely under the article on sales (article 2) is subject to the provisions of this article.” K.S.A. 84-9-202 provides article 9 is applicable to secured transactions “whether title to collateral is in the secured party or in the debtor.”
Therefore, we conclude K.S.A. 84-9-312 sets forth the statutory rules that must be considered in determining the priority of competing security interests in collateral. In short, this statute was intended to be and is a “pure race” type statute. This means the secured creditor who wins the “race” to the appropriate filing office has priority without regard to the prevailing creditor’s state of mind and knowledge. The Bank, having perfected its security interest in the equipment, is entitled to priority irrespective of its knowledge of Case’s unperfected security interest in the same equipment. Any other conclusion would cause confusion and uncertainty in commercial transactions, undoing the clarity and preciseness intended under article 9 of the Code. An excellent opinion resolving this issue is Todsen v. Runge, 211 Neb. 226, 318 N.W. 2d 88 (1982). In Todsen, under their comparable statute, the Supreme Court of Nebraska came to the same conclusion we have reached. Also cited therein are decisions from several other jurisdictions, all concluding knowledge or good faith is irrelevant in determining priority of security interests under article 9 of the Code.
We need not and do not decide the effect of Case’s effort to again perfect its security interest with the 1983 filing of a financing statement to remedy its prior improvident termination. Based upon our previous analysis and conclusions, such filing could at best have had only prospective effect.
Accordingly, we find the trial court erred in the following particulars: (1) K.S.A. 84-2-403(1) should not have been applied; and (2) K.S.A. 84-9-312 is applicable but does not require good faith by the secured creditor as it is a “pure race” statute.
The judgment of the trial court is reversed and the case is remanded for entry of judgment consistent with this opinion. | [
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Davis, J.:
This appeal from termination of parental rights involves a question of an Indian tribe’s right of notification of involuntary proceedings involving Indian children. Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq. (1982). In this case, parental rights of both the natural mother and father were terminated by the district magistrate judge. Both parents appealed to the district court. On May 2, 1985, upon de novo review, the district judge ordered that parental rights of both parents be terminated. Both parents appealed to this court; the mother subsequently abandoned her appeal.
The mother is 15/32 degree Indian blood of the Cherokee Tribe. She applied for tribal membership prior to the severance hearing but did not become an enrolled member of the tribe until approximately six weeks after the magistrate severed parental rights. The State contends that because the father is not Indian he has no standing to argue the application of the Act and that the mother’s abandonment of her appeal renders this case moot. This contention is without merit. Under the Act, “ ‘parent’ means any biological parent or parents of an Indian child . . . .” 25 U.S.C. § 1903(9) (1982).
The father claims that the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., applied to the proceedings below and that the court’s failure to follow the provisions of the Act invalidates the termination order. Although we do not decide the question of the applicability of the Act, we agree that the court’s failure to direct that proper notice be served upon the tribe or Secretary of the Interior renders the termination order invalid.
K.S.A. 1985 Supp. 38-1503 sets forth the court’s jurisdiction over proceedings under the Kansas Code for Care of Children:
“Jurisdiction, (a) Proceedings concerning any child who appears to be a child in need of care shall be governed by this code, except in those instances when the Indian child welfare act of 1978 (25 USC §§ 1901 et seq.) applies.” (Emphasis added.)
The Indian Child Welfare Act (hereinafter Act) expressly declares congressional policy:
“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902 (1982).
See, e.g., In re Adoption of Baby Boy L., 231 Kan. 199, 205, 643 P.2d 168 (1982). The policy of the Act is further discussed in the Guidelines for State Courts in Indian Child Custody Proceedings:
“Congress through the Indian Child Welfare Act has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes. Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. The Indian Child Welfare Act, the federal regulations implementing the Act, the recommended guidelines and any state statutes, regulations or rules promulgated to implement the Act shall be liberally construed in favor of a result that is consistent with these preferences. Any ambiguities in any of such statutes, regulations, rules or guidelines shall be resolved in favor of the result that is most consistent with these preferences.” (Emphasis added.) 44 Fed. Reg. 67,585-86 (1979).
In order for the Act to apply, two prerequisites must exist: “(1) a ‘child custody proceeding’ (2) involving an ‘Indian child,’ as those terms are defined in the Act.” In re Adoption of Baby Boy L., 231 Kan. at 207.
The definitional section of the Act provides in part:
“For the purposes of this chapter . . . the term—
“(1) ‘child custody proceeding’ shall mean and include—
“(ii) ‘termination of parental rights’ which shall mean any action resulting in the termination of the parent-child relationship;
“(4) ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; . . .” 25 U.S.C. § 1903.
Clearly, this was a child custody proceeding within the meaning of the Act. The magistrate, however, rejected the parents’ claim that the children were Indian. Prior to the termination hearing before the magistrate, the parents filed a petition to transfer jurisdiction to the tribal court. The magistrate denied the petition “for the reason that the biological parents are not as yet enrolled as members of the Cherokee Indian Nations and therefore pursuant to 25 USC section 1903(4) the minor children do not meet the definition of Indian children at this time.”
The parents resubmitted the petition to transfer jurisdiction at the termination hearing and again raised the issue of the applicability of the Indian Child Welfare Act. The magistrate denied the petition a second time, reasoning that mother and children were not enrolled when the action commenced. The court concluded that the tribe had the opportunity “of being aware of these proceedings by way of the Indian Welfare Agency with whom the [parents] were working,” but expressed no interest in helping with enrollment or intervention.
Prior to de novo review by the district court, the mother became an enrolled member of the Cherokee Nations and the parents filed another motion to invoke the jurisdiction of the tribe pursuant to the Indian Child Welfare Act. The magistrate denied this third request on the ground that the mother was not an enrolled member of the tribe when the case was heard.
Both parents appealed to the district court. The district court terminated parental rights without mention of the Act.
Unlike the case of In re Adoption of Baby Boy L., 231 Kan. 199, we are not concerned with a determination of whether the Act applies. In this decision, we are concerned with the tribe’s right to notification of involuntary proceedings where the court has reasonable grounds to believe a child subject to the proceeding is or may be an Indian child. 25 U.S.C. § 1912(a) (1982). In Baby Boy L., the Supreme Court noted:
“On April 1, 1981, it was brought to the court’s attention that Perciado was an enrolled member of the Kiowa Tribe and that the federal Indian Child Welfare Act of 1978 might apply, and therefore the case was continued for thirty days to allow proper notice to be given to the Kiowa Tribe.” (Emphasis added.) 231 Kan. at 202.
The tribe was properly notified and given the opportunity to be heard on the issue of the applicability of the Act. Baby Boy L., 231 Kan. at 202.
In this case, however, the Cherokee Tribe was never notified of the pendency of state court proceedings. Consequently, the tribe was denied the opportunity to be heard on the issue of whether the Act applied to the state court proceedings.
When and under what circumstances is tribal notice and opportunity to be heard regarding the applicability of the Act required? The Guidelines for State Courts set forth pretrial requirements, which include verification by the court of the child’s Indian status:
“B.l. Determination That Child Is an Indian
“(a) When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child’s status from either the Bureau of Indian Affairs or the child’s tribe. . . .” (Emphasis added.) 44 Fed. Reg. 67,586.
The Guidelines set forth circumstances that trigger an inquiry by the court and petitioners regarding the child’s Indian status for purposes of the Act:
“(c) Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include but are not limited to the following:
“(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.
“(ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.
“(iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.
“(iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.
“(v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.” 44 Fed. Reg. 67,586.
The Commentary to the pretrial requirements further provides:
“This guideline makes clear that the best source of information on whether a particular child is Indian is the tribe itself. It is the tribe’s prerogative to determine membership criteria and to decide who meets those criteria. Cohen, Handbook of Federal Indian Law 133 (1942). Because of the Bureau of Indian Affairs’ long experience in determining who is an Indian for a variety of purposes, its determinations are also entitled to great deference. See, e.g., United States v. Sandoval [231 U.S. 28, 58 L. Ed. 107, 34 S. Ct. 1 (1913)].
“. . . The Act mandates a tribal right of notice and intervention in involuntary proceedings but not in voluntary ones. Cf. 25 U.S.C. § 1912 with 25 U.S.C. § 1913. . . .” (Emphasis added.) 44 Fed. Reg. 67,586.
The magistrate judge concluded that the Act did not apply based upon his finding the natural mother was not enrolled in the Cherokee Tribe at the time he terminated parental rights. We note that “[ejnrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979).” (Emphasis added.) 44 Fed. Reg. 67,586.
In this case, various circumstances, which existed throughout both the magistrate and district court proceedings, raised a reasonable question regarding the children’s Indian status. Those circumstances include the following:
1. The three girls were first placed in temporary custody of the Ford County Department of Social and Rehabilitation Services (SRS) in July 1982.
The July 1982 court report prepared by the licensed social worker of the Dodge City SRS office states:
“The recommendation of this agency is that the girls remain in SRS custody pending further investigation of the background of the parents. It has been learned that the girl’s [sic] natural mother is part Indian and the agency would recommend that the American Indian Law be further checked by the court.” (Emphasis added.)
2. In August 1982, the social worker received a phone call from the mother and a caseworker with the Indian child welfare agency in Tulsa, Oklahoma. The mother informed the Ford County social worker that she was of Cherokee descent.
3. In November 1982, Ford County SRS contacted the Indian Health Care Resource Center in Tulsa, Oklahoma, and requested that a home study be completed.
4. In October 1984, after the magistrate severed parental rights, SRS notified 4 Tribes Social Services Program in Horton, Kansas, and Cherokee Nations in Tahlequah, Oklahoma, that the three girls were in SRS custody.
5. In March 1985, the parties stipulated to the mother’s enrollment as a member of the Cherokee Nations.
SRS knew and informed the court very early in the pendency of these proceedings that these three children were of Indian descent.
Based upon the record and factors set forth above, we conclude that both the magistrate and district courts had reasonable grounds to believe the children involved in this proceeding are or may be Indian children.
In any involuntary proceeding conducted pursuant to the Code for Care of Children, K.S.A. 1985 Supp. 38-1501 et seq., when the court has reasonable grounds to believe a child involved in the proceeding is or may be an Indian child, the court must direct that proper notice be served upon the tribe or Secretary of the Interior. The tribe must be given the opportunity to be heard on the issue of the applicability of the Indian Child Welfare Act to the involuntary proceedings.
The Act sets forth the notice requirements:
“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.” (Emphasis added.) 25 U.S.C. § 1912(a).
The Code of Federal Regulations provides, in part:
“(a) If the identity or location of the parents, Indian custodians or the Indian child’s tribe cannot be determined, notice of the pendency of any involuntary child custody proceeding involving an Indian child in a state court shall be sent by registered mail with return receipt requested to the appropriate address listed in paragraph (b) of this section.
“(4) For proceedings in Kansas . . . notice should be sent to the following address: Anadarko Area Director, Bureau of Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 73005.
“(c) Notice shall include the following information if known:
“(1) Name of the Indian child, birthdate, birthplacé,
“(2) Indian child’s tribal affiliation,
“(3) Names of Indian child’s parents or Indian custodians, including birthdate, birthplace, and mother’s maiden name, and
“(4) A copy of the petition, complaint or other document by which the proceeding was initiated.
“(d) Upon receipt of the notice, the Bureau shall make a diligent effort to locate and notify the Indian child’s tribe and the Indian child’s parents or Indian custodians. Such notice may be by registered mail with return receipt requested or by personal service and shall include the information provided under paragraph (c) of this section in addition to the following:
“(1) A statement of the right of the biological parents, Indian custodians and the Indian tribe to intervene in the proceedings.
“(2) A statement that if the parent(s) or Indian custodian(s) is unable to afford counsel, counsel will be appointed to represent them.
“(3) A statement of the right of the parents, the Indian custodians and the child’s tribe to have, upon request, up to twenty additional days to prepare for the proceedings.
“(4) The location, mailing address and telephone number of the court.
“(5) A statement of the right of the parents, Indian custodians and the Indian child’s tribe to petition the court for transfer of the proceeding to the child’s tribal court, and their right to refuse to permit the case to be transferred.
“(6) A statement of the potential legal consequences of the proceedings on the future custodial and parental rights of the parents or Indian custodians.
“(7) A statement that, since child custody proceedings are usually conducted on a confidential basis, tribal officials should keep confidential the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe’s rights under the Act.
“(e) The Bureau shall have ten days, after receipt of the notice from the persons initiating the proceedings, to notify the child’s tribe and parents or Indian custodians and send a copy of the notice to the court. If within the ten-day time period the Bureau is unable to verify that the child is in fact an Indian, or meets the criteria of an Indian child as defined in section (4) of the Act, or is unable to locate the parents or Indian custodians, the Bureau shall so inform the court prior to initiation of the proceedings and state how much more time, if any, it will need to complete the search. The Bureau shall complete its search efforts even if those efforts cannot be completed before the child custody proceeding begins.
“(f) Upon request from a potential participant in an anticipated Indian child custody proceeding, the Bureau shall attempt to identify and locate the Indian child’s tribe, parents or Indian custodians for the person making the request.” (Emphasis added.) 25 C.F.R. § 23.11 (1986).
The record does not reveal any communication between the Ford County Attorney’s Office (on behalf of the court, K.S.A. 1985 Supp. 38-1510) and the Cherokee Nations of Oklahoma or the Secretary of the Interior.
Violation of the Indian Child Welfare Act notice provisions may be cause for invalidation of the proceedings:
“Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911,1912, and 1913 of this title.” 25 U.S.C. § 1914 (1982).
Under the facts of this case, we find the termination of parental rights invalid because the court had reasonable grounds to believe that the children subject to the severance proceeding are or may be Indian children and failed to direct notice to the tribe or Secretary of the Interior in accordance with the Act. 25 U.S.C. § 1912 (a).
We therefore reverse the decision of the district court and remand this case for further proceedings consistent with this opinion. | [
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Opinion by
Holt, C.:
This action "was tried in the Wilson district court, at the May term, 1885. Plaintiff in error, plaintiff below, filed a petition for ejectment in the ordinary form. The defendant answered by a general denial, and also claimed title under a tax deed. The first trial was had, and a second trial was granted under the statute. At the time of the second trial, plaintiff moved to strike out that part of defendant’s answer setting up a title in himself by a tax deed, which motion was overruled by the court. Plaintiff then demurred to that portion of defendant’s answer, which was overruled; whereupon he asked leave to dismiss his action without prejudice to a future action, which was allowed, but the court permitted the defendant to retain his answer for trial. Plaintiff then filed a general denial in reply, when the defendant asked leave to amend his answer by alleging that he had quieted his title to the land in question, by a judgment duly obtained by publication in the district court against the plaintiff. To this new cause of action plaintiff demurred, which demurrer was by the court overruled. A jury being waived, the issue was tried by the court, which rendered judgment for the defendant. This judgment plaintiff brings here for review.
Plaintiff assigns for error, first, that the second portion of defendant’s answer should have been stricken out, for the reason that everything which might have been proven under it might have been proven under the general denial. Under that portion of the answer which plaintiff calls a cross-bill, the defendant asks for affirmative relief. Our statute provides that a defendant may set up in his answer, in addition to a general denial, any new matter setting forth a defense, a counterclaim, set-off, or right of relief concerning the subject of the action. But the plaintiff says that when he dismissed his cause of action, that the defendant’s cause of action should have followed it, because the second part of defendant’s claim was not a counterclaim, and cites § 398 of the civil code to show that the defendant has a right to proceed to the trial of his cause only when he has filed a set-off or counterclaim, after the plaintiff has dismissed his cause of action. Plaintiff contends that the second portion of defendant’s answer is not, under our statutes, a counterclaim.- The ordinary meaning of counterclaim is a demand of something which of right belongs to. the defendant in opposition to the right of the plaintiff. It is also defined as a claim, which, if established, will defeat or in some way qualify a judgment to which plaintiff is otherwise entitled; it is the claim of a defendant to recover from a plaintiff by setting up and establishing any cross-demand, which may exist in his favor as against plaintiff. But the plaintiff, in an argument ingenious rather than sound, claims that there is a limited meaning of the word counterclaim given by our statute. By §95 of the civil code a counterclaim must be-one existing in favor of a defendant and against a plaintiff arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, or connected with the subject of the action.
The subject of plaintiff’s action is his title to the land, and the adverse possession of defendant. The defendant claims, that he is in possession lawfully as the owner thereof, by virtue of a judgment quieting his title against plaintiff. We think that the claim in the answer is connected with the subject of plaintiff’s action. (Jarvis v. Peck, 19 Wis. 84; Eastman v. Linn, 20 Minn. 433.)
In actions similar to the one we are now considering, where a plaintiff brought an action against a defendant in ejectment-, and claimed to be the owner in fee simple, and that defendant wrongfully kept him out of possessiou, and such cjefeildant alleged ownership in himself, and stated that the plaintiff made some claim to the land, and asked that his title be quieted against him, this court has repeatedly denominated such answer a counterclaim. (Allen v. Douglass, 29 Kas. 412; Sale v. Bugher, 24 id. 432.)
After plaintiff dismissed his cause of action, the defendant-under his answer seeking to quiet his title is virtually plaintiff in all things save in name; the facts alleged in his answer- must be sufficient to constitute a cause of action, and the re^e^ which he is entitled must be properly demanded; the burden of proof is upon him, and he must establish his cause of action by a preponderance of testimony before he is entitled to a judgment in his favor; being in the place of a plaintiff, and subject to his burdens, he also possesses his rights, and therefore it is within the discretion of the court to allow him to amend his pleading by adding another count. In this case the court properly allowed such an amendment. (Allen v. Douglass, Sale v. Bugher, supra; Pomeroy’s Remedies, §738.)
By far the gravest question arising in this case is, whether a judgment in favor of one in possession of real property, obtained upon service by publication only, is sufficient to divest a defendant in such action of his interest therein. If we consult our statute alone, we find ample authority for such procedure. Section 595 of the civil code provides that an action may be brought by any person in possession of real property against any person who claims an interest or estate therein adverse to him, for the purpose of determining such adverse estate or interest; and when the person who claims such adverse interest resides out of the state, and the relief prayed for consists wholly or partly in excluding him from any interest therein, such determination may be had after a service by publication alone. (Civil Code, § 72.) A sovereign state ought to have control over the real property within its limits, and its courts have the right to decide all questions relating to the titles to the same. By § 400 of the code it is provided that when a judgment is rendered for a conveyance, release, or acquittance, and the party against whom the judgment is rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect as though the defendant had complied with the judgment of the court. Generally, equity jurisdiction is exercised in personam, and upon that theory some of the states have provided by statute that if the defendant is not found within the state, or refuses to make or cancel a deed to land within the jurisdiction of the court, it can be done in his behalf by a trustee appointed by the court for that purpose. The last part of § 400 provides that the sheriff may perform such duties as such trustee, but the instrument so executed by him under the judgment of the court stands on no higher plane than a simple judgment, and is no more available as a conveyance, release or acquittance than such judgment. The appointment by the court of a trustee to execute or cancel a deed for defendant, when he has not been brought within the jurisdiction of the court, differs only in form from a judgment that is intended to accomplish the same object of itself. One is done directly, the other indirectly. Our statute attempts to do away with such mere formal distinctions.
Ordinarily it would be within the power of the state to substitute notice by publication or otherwise, for personal service against non-residents. It will be noticed that it is provided in § 72 of the civil code, for a notice by publication when the relief sought consists in excluding defendant from any interest in the land then in controversy. The notice does not specify that the defendant shall perform any act, execute any conveyance, acquittance, or release; it simply gives notice that a judgment will be rendered which shall exclude him from any interest in the land.
Service by publication, in conformity to our statutes, has been held sufficient by this court, and judgment and sales thereon have now become a settled rule of property in this state. (Gillespie v. Thomas, 23 Kas. 138; Rowe v. Palmer, 29 id. 337.) In Hart v. Sansom, 110 U. S. 151, Mr. Justice Gray, speaking for the court, says: “The courts of the state might perhaps feel bound to give effect to the service directed by its statutes.”
In this action we not only have the direction of the statutes, but also long-acquiesced-in decisions, which we would be compelled to disregard if we should hold the notice of publication insufficient in the former action of Dutch to quiet his title against Venable. In this action plaintiff in error came into a court of this state to seek relief, and he ought to be governed, and his claims to the land decided by the established rules of property of the court whose aid he invoked; he asks that we overthrow the long-established line of. decisions, and hold our statutes void, in order to render a judgment in his favor. We are unwilling to so decide.
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
Clogston, C.:
Upon this record the plaintiff in error raised but two questions, but as they are substantially one in fact we shall discuss them as one, and that is, did the injury occur by the contributory negligence of the defendant? The plaintiff in error now contends that on the facts found by the jury it was error not to direct the jury to return a verdict for the defendant, plaintiff in error. Upon this theory it requested the court to instruct the jury as follows:
“ I instruct you that if the plaintiff, before driving upon the track of the defendant at which the injury complained of occurred, could at any time have seen the approaching train in time to escape by looking to the south, it will be presumed as a matter of law, either that he did not look, or that if he did look that he did not heed what he saw, and concluded to take the risks of attempting to cross in front of the approaching train; in which case I instruct you that the plaintiff, if you so find the facts, was guilty of contributory negligence, contributing to his injury, and cannot recover in this case.”
This instruction the court refused to give. The rule, as contended for by the plaintiff in error, is, that if the plaintiff could have seen, by carefully looking, the approach of the train, then it was negligence for him to drive over the track ahead of the train, knowing that the train was coming; or, if he failed to look, or, if looking, failed to discover the train and drove upon the track and was injured, he cannot recover; or, in other words, that if one does look and fails to discover what it would be possible for others to see, or undert some circumstances might have been seen by the person so looking, then it is contributory negligence not to see. If this rule is the true one, then nothing short of the greatest care and caution will warrant a recovery for injuries received through negligence in the operation of trains. We do not understand the rule to be so far extended as to require the greatest care and caution, but only reasonable care, such as a man of ordinary prudence would exercise under similar circumstances. (Desmond v. Brown, 29 Iowa, 54; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) The rule seems to be well settled in this state, that before a person can recover for injuries received in crossing a railroad at a public road or street, he must, before attempting to cross, recognize the danger and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglect this duty and venture blindly upon the track, without making an effort to ascer tain whether a train is approaching, that he does so at his peril. (Clark v. Mo. Pac. Rly. Co., 35 Kas. 354.) The supreme court of Iowa, in speaking of this question, said:
“The instruction was properly refused. It requires too great a degree of care and circumspection. It makes no allowance for the ordinary imperfections of humanity. It requires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of: caution the law does not enjoin. It requires only the exercise of reasonable and ordinary care.” (Greenleaf v. Railroad Co., 33 Iowa, 57.)
The supreme court of the United States, referring to an instruction similar to that contended for by the defendant, said:
“ It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion of the attention to which the most prudent and careful are sometimes subject, and assuming in effect that the duty of avoiding a collision lies wholly or nearly so on one side.” (Improvement Co. v. Stead, 95 U. S. 168. See U. P. Rly. Co. v. Adams, 33 Kas. 427.)
But where the undisputed facts show that this rule has been disregarded, and no precaution has been taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side track, and looked to see whether an engine was behind them,' and saw none;' and the fact that the train was moving backward; are questions to go to the jury with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather and the character of the train, and he thought it to be on the side track. It was said in Barnard v. Railroad Co., 1 Abb. Ct. of Appeals, 131:
“If there is any conflict in the evideucé going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved — this involving, as it generally must, more or less conjecture — can only be settled by a jury.”
In Webber v. Railroad Co., 58 N. Y. 465, the court said :
“It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation ordinarily will lead to the employment of all the precaution which the situation suggests to an individual; and whether they are such as would occur to or be adopted by men of ordinary care and prudence, must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law.”
. ( K. P. Rly. Co. v. Richardson, 25 Kas. 391; U. P. Rly. Co. v. Young, 19 id. 488; K. P. Rly. Co. v. Pointer, 14 id. 37; Pa. Railroad Co. v. Weber, 76 Pa. St. 157; Carr v. Railroad Co., 60 N. Y. 633; Thurber v. Railroad Co., 60 id. 331; Lonck v. Railroad Co., 18 N.W. Rep. 657.)
While this question is a close one, yet we do not feel called upon to disturb the judgment where it is so conclusively shown that the employés of the defendant in charge of the train were so grossly negligent in its management. Although the plaintiff may have been somewhat negligent, yet it is not clearly shown that his negligence contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south,-he might with reasonable safety have crossed before it reached the crossing, provided .the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence the party may recover. (Pacific Rld. Co. v. Houts, 12 Kas. 328; K. P. Rly. Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, 10 id. 466.)
Under all the circumstances of this case, we do not find that the plaintiff was guilty of such contributory negligence as to prevent his recovery. It is therefore 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
Johnston, J.:
Charles Metsch was prosecuted in the district court of Ellsworth county, upon a charge of obtaining money under false pretenses from the State Savings Association of Ellsworth, and was convicted. The information charged that he obtained $246.80 from the association upon the security given by chattel mortgages upon one bay horse ten years old, three cows, one bay horse five years old, one bay gelding three years old, one bay gelding four years old, one bay horse seven years old, one bay horse nine years old, one sorrel mare eight years old, and one sorrel gelding six years old. It is alleged that in negotiating the loans he pretended that he was the owner of the horses and cows described, and that they were kept on the farm of one Boggs, about four and one-half miles from the city of Ellsworth, and that the mortgages executed by him as security for the loans were valid. It is alleged, however, that Metsch was not the owner of the horses or the cows, and that his representations regarding them were designedly and wholly false. At the trial it was disclosed that three mortgages were executed by Metsch to the State Savings Association, which were designated as “A,” “ B,” and “ C.” The state did not put in evidence the mortgages “B” and “C,” nor offer evidence of any false pretenses in obtaining the money secured by those mortgages. The prosecution relied only on the pretenses connected with the “A” mortgage, which was given on September 1, 1886, to secure the payment of $43.25, and the only property therein described was, “ one bay horse ten years old, weight about twelve hundred pounds, white in forehead, and named Jim,” and “three cows of different ages, sizes and colors, now kept on the T. B. Boggs farm, four and one-half miles southeast of Ellsworth city.”
We are of the opinion that the conviction should not stand. The testimony brought up in the record, (and there is a statement that it contains all that was given,) is clearly insufficient to sustain the verdict of the jury. There is no testimony that Metsch made any representations or pretenses in negotiating the mortgages which have been mentioned. Dolde, the secretary of the association, testified that he negotiated and. filled out the “B” and “C” mortgages, and loaned the defendant money on them. He also testified that he inquired of the defendant whether he owned the property, and whether there were any liens existing against it; but in no case does he state what reply, if any, was made by Metsch to these inquiries. No other witness undertook to testify in relation to obtaining the money. Then, again, there is no testimony that the $43.25, borrowed upon the security of the “A” mortgage, was obtained upon the strength of any repre sentations or pretenses made when it was borrowed. Indeed, it does not appear, except by the remotest inference, that Metsch obtained any money upon the “A” mortgage. The witness Dolde stated that he loaned him money upon chattel mortgages, but the transactions that he had with the defendant were loaning upon the security of the “B” and “C” mortgages, which are entirely out of the case. He stated that a Mr. Hale made out the “A” mortgage, but Mr. Hale did not testify in the case, nor did anyone else testify that the $43.25, which purported to have been secured by the “A” mortgage, was paid by reason of any representation or pretense made by the accused. To sustain the charge, it is essential not only to show that the false representations and pretenses were made, but ^ mus* aPPear that the association relied upon those pretenses, and that the money was obtained by reason thereof. Proof that they relied upon, and paid out money on the pretenses made to them in other transactions, will not supply the want of proof upon the individual transaction on which the verdict is based.
The testimony is singularly indefinite and incomplete in other respects. The only pretenses set out in the information were, that the mortgage was valid, that he was the owner of the horse and three cows, and that they were kept on the Boggs farm. In the “A” mortgage it was represented that he owned the property, and that there was no other mortgage or lien upon it; and the representation in relation to other liens seems to have been mostly relied upon by the prosecution. But the information does not charge that he claimed or pretended that the property was free from incumbrance when the mortgage in question was made, and the only pretenses upon which he could be tried or convicted were those charged in the information. But if the representation in the mortgage that the property was free from incumbrance should be treated as an alleged pretense, there would still be a failure of proof. It is conceded that Metsch was the owner of the horse described in the mortgage. The contention is that it was mortgaged to G. W. Clawson, on July 10, 1886, nearly two months before the execution of the mortgage in question. The only proof in support of this contention was that given by the register of deeds, who testified that a mortgage dated July 10, 1886, from Metsch to Clawson on “ one bay horse, eight years old, weight about eleven hundred and fifty pounds,” was filed in his office, and that no satisfaction of the mortgage had been entered of record. This description does not correspond with the description of the horse given in the mortgage we are considering. He was there described as “one bay horse, ten years old, weight about twelve hundred pounds, white in forehead, named Jim.” The horse mortgaged to Clawson appears to have been two years younger, with no white on its forehead, and fifty pounds lighter in weight.. This proof certainly fails to show that the “Jim” horse was the one which had been mortgaged to Clawson. The alleged pretense in regard to the cows was that they were owned by him and kept upon the Boggs farm. The proof regarding them is equally unsatisfactory and incomplete. The only witness who undertook to negative the alleged pretense, was one Loliker, who resided upon the Boggs farm from May until sometime in September, 1886. He stated that he did not think there were any cows kept there by Metsch at that time. He admitted, however, that along about the first of September he was away from there a week at a time, and that Metsch was in the habit of trading horses and cattle a great deal, and that he may have owned and had the cows there without his knowledge. While it appears that he was trading in cattle a great deal, there was no attempt to show that he did not own the cows and hold them in other parts of the county. Besides, the information does not specifically negative the pretense that the property was located upon the Boggs farm. After specially averring the pretenses, the information specifically negatives the representation that he was the owner of the horse and cows, but does not negative the alleged representation that ^ey were kept upon the Boggs farm. The false pretenses relied on to sustain the charge should be specif ically negatived in the information. (Keller v. The State, 51 Ind. 111; The State v. Bradley, 68 Mo. 140; 2 Wharton’s Crim. Law, §1224.) As there was no negation of the alleged pretense that the property was kept on the Boggs farm, the testimony of Loliker is rendered less important.
We think the testimony, viewed in the most favorable light for the prosecution, falls far short of justifying the conviction, and hence the judgment must be reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Shawee county by William Weir against Jonas D. Clark, Fleming Gear, and James Duncan, to recover damages for an alleged assault and battery. The case was afterward transferred to the superior court of said county, where it was tried before the court and a jury, and judgment rendered in favor of the plaintiff and against the defendants for $300 and costs. To reverse this judgment the defendants bring the case to this court.
The first alleged error is, the striking out of certain portions of the second defense of the defendants’ answer, and then sustaining a demurrer to such defense. The ground for such demurrer was, that the facts set forth did not constitute any defense. The facts were set forth in great detail, but briefly stated, they are in substance as follows: The defendants were the school board of School District No. 39, in Shawnee county, and the plaintiff was a school teacher in such district. The board went to the school house where the plaintiff was teaching, to visit the school, to examine the school register, and to perform such other duties as are prescribed by law. The defendants requested the plaintiff to permit them to see the register, but he refused and became greatly enraged, attempted to grab an iron poker, but was prevented, and then he made an assault upon the defendant Gear. When such assault was made, the defendants put him out of the house, but “at no time used more force or violence than was absolutely necessary to protect themselves from the violence and attacks of the plaintiff;” “and that plaintiff himself was all the time the aggressor, used all the violence, and through his own malicious and wicked motives created all the disturbance, and made the only assault that was made”
Section 27 of the act relating to school boards reads as follows:
“Sec. 27. The district board shall furnish each teacher with a suitable daily register, and shall visit, together or by one or two of their number, all the schools of their district, at least once a term, and at such other periods during the term as in their opinion the exigencies of each school may require; at which visits they shall examine the register of the teacher and see that it is properly kept, and inquire into other matters touching the school house, facilities for ventilation, furniture, apparatus, library, studies, discipline, modes of teaching, and improvement of the school; shall confer with the teacher in regard to condition and management, and make such suggestions as in their view would promote the interest and efficiency of the school, and the progress and good order of the pupils. The date and results of each visit shall be entered by the clerk of the board on their minutes.”
We shall decide this case upon the theory that the court below erred in disposing of this second defense as it did. We shall assume that the facts stated therein constitute a good defense to the plaintiff’s action. But under the other facts of the case is the error material? If the defendants had stood upon the sufficiency of this defense and not have participated in the trial that followed, the error would certainly have been material, and they could at once have brought the case to the supreme court and have had the error corrected. (Gilchrist v. Schmidling, 12 Kas. 263.) But they did not'stand upon the sufficiency of their second defense. They went to trial upon their first defense, upon which they had a right to prove, and they did in fact and without objection offer evidence to Prove, all that was alleged in their second defense, an(J ap they coupj haVe proved Under Such defense. This we think rendered the errors of the trial court with regard to the second defense immaterial. (Cannon v. Kreipe, 14 Kas. 324.)
It is claimed that the court below erred in giving and in refusing instructions. It may be that the instructions given were too verbose, and contained too much extraneous matter; and, indeed, it may be that such of the instructions given as were favorable to the plaintiff’s side of the case were unnecessarily profuse, while those given on the other side were correspondingly scanty; but still we cannot say that the court below committed any material error in either giving or refusing instructions. We are inclined to think that the instructions given state the law, and cover the entire case.
It is also claimed that the court below erred in directing the jury how to answer the special questions numbered 2 and 3. The record upon this subject shows and reads as follows:
“At the request of the defendants, the court then submitted to the jury the following questions to be answered by them, and returned as a part of their verdict in this cause, to wit:
“1. Did Gear and Clark, or either of them, have anything to do with spitting in plaintiff’s face?
“2. What amount of actual damages did the plaintiff sustain, if any?
“ 3. What items, and what is the amount of each item that plaintiff sustained in actual damages, if he sustained any?
“The jury then retired with their bailiff, and, after consultation, returned into court with the following verdict, to wit:
“We, the jury impaneled and sworn to try this cause, find generally in favor of the plaintiff and against all the defendants; and we assess the plaintiff’s damages at the sum of $300. H. D. Caer, Foreman. And in addition to our general verdict herein, we, the jury, make answer to particular questions of fact as follows:
“ 1st. Did Gear and Clark, or either of them, have anything to do with spitting in plaintiff’s face? Ans.: No.
“ 2d. What amount of actual damage did the plaintiff sustain, if any? A.-.
“3d. What items, and what is the amount of each item that plaintiff sustained in actual damage, if he sustained any? A.-.
“The attention of the court was then called to the fact that the second and third interrogatories had not been answered by the jury. The court then asked the foreman of the jury why the questions had not all been answered, and the foreman replied that the jury could not agree upon answers to said second and third questions. The court then instructed the foreman of the jury to write as answers to the second and third questions the following: ‘Jury do not agree.’ The foreman then, and without retiring to their jury room, wrote at the end of the questions the words, ‘Jury do not agree/ and signed his name, ‘H. D. Carr, Foreman;’ so that, as returned to the court, the second and third questions and their answers as returned, are as follows, to wit:
“'2d. What amount of actual damages did the plaintiff sustain, if any? Ans.: Jury do not agree.
“3d. What items, and what is the amount of each item that plaintiff sustained in actual damage, if he sustained any ? A. Jury do not agree. H. I). Carr, Foreman.
“And thereupon the said questions numbered two and three, with said answers thereto, were read to the jury, and the jury were asked if said answers were their answers, and the answer of all the jurors to said questions, and the jury responded in the affirmative; to all of which action of the court the defendants then and there objected; and their objection being overruled, they at the time excepted. Defendants then moved the court that the jury be returned to the jury room to make answer to questions 2 and 3, which motion was by the court overruled; to which action of the court the defendants then and there excepted. Defendants then moved the court for a judgment upon the verdict of the jury, which said motion was by the court overruled, and to which action of the court defendants excepted. Defendants then filed their motion for a new trial, which motion is in words and figures as follows, to wit.”
Here is set out the motion in full, which sets forth as grounds for the new trial not only the rulings of the court with regard to these special questions, but also eleven other grounds for a new trial. This motion was overruled by the court, and the defendants excepted, and judgment was then rendered in favor of the plaintiff and against the defendants, as aforesaid. We think the court below erred in directing the jury to answer the special questions numbered 2 and 3 by simply saying, “ J ury do not agree.” The court ought to have required the jury to give proper answers to these questions, or at least to the one numbered 2. (K. P. Rly. Co. v. Peavey, 34 Kas. 474; U. P. Rly. Co. v. Fray, 35 id. 700; W. & W. Rld. Co. v. Fechheimer, 36 id. 45.) This question, numbered 2, is a material one, and the defendants had a right to have it answered properly. The court instructed the jury that they might award to the plaintiff both actual damages and exemplary damages; and this question was submitted to the jury for the purpose of ascertaining what amount of actual damages, if any, the plaintiff sustained; and then, by deducting the actual damages awarded from the whole amount of the damages awarded, the amount of the exemplary damages would be shown. But from the answer to the question as given by the jury, no one can tell what amount of actual damages was awarded, or what amount of exemplary damages was awarded; indeed, the jury as a body never agreed upon any amount of actual damages or any amount of exemplary damages. Their verdict was simply a compromise verdict for $300 damages in the aggregate. Some of the jurors may have been in favor of awarding the whole amount as exemplary damages, while other jurors may have been in favor of awarding the whole amount as actual damages, and still other members of the jury may have been in favor of awarding a portion of this amount as exemplary damages and a portion as actual damages; and no two of the jurors may have agreed with regard to the damages. Certainly, the jury, as a jury, never agreed upon any verdict as to actual damages, or as to exemplary damages. They should have been required to agree, or have been discharged because they could not agree.
For the error of the court below in permitting and requiring this question to be answered in the manner in which it was answered, its judgment must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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