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The opinion of the court was delivered by
Valentine, J.:
The sole question presented for consideration in this case is, whether the district court erred in dismissing the appeal. The judgment of the justice of the peace was rendered on November 27,1885. An appeal bond was properly drawn up, signed, and inclosed in a letter, and this letter was properly registered and deposited in the post office at Ellin wood on December 2, 1885, and addressed to John Van Patten, the justice of the peace, at Sterling, Kansas, where he received his mail, and the letter was received at that post office on the same day, but the justice did not call for it, or receive it, or even know that it was there, until December 14, 1885, when he received it, and on the next day he approved the bond and filed the same in the case. We do not think that this constitutes a good appeal. In order to effect a valid appeal, the appeal bond must be filed with the justice “ within ten days from the rendition of the judgment.” (Justices Code, §§121, 122.) It is the duty of the party attempting to appeal, to see that the appeal bond is placed in the hands of the justice, or in his office, within the time required by law, and if it is not, no valid appeal is taken.
It is claimed, however, that in this case the appellee waived the irregularity in the taking of the appeal, by making a general appearance in the case in the district court. We do not think, however, that any such appearance was made. No appearance at all was made to the merits of the action, and no appearance was made admitting the jurisdiction of the court generally in the action; but the appearances that were made were clearly made for the purpose of questioning the jurisdiction of the court to finally hear and determine the case. The first appearance was to file a motion and affidavit showing that in fact no legal appeal had been taken, and therefore that the district court did not have jurisdiction to hear and determine the case, and asking for a complete transcript showing affirmatively such want of jurisdiction. The next appearance was to file a motion to dismiss the appeal, for the reason that no legal appeal had been taken, and therefore that no jurisdiction to hear and determine the case had been obtained. Clearly there was no intended waiver in this case of the defects in taking the appeal; and we do not think that any of the appearances that were made constituted any waiver of' such defects.
We do not think that the court below committed any error in dismissing the appeal, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The first question to be determined is, whether the note sued on was a negotiable promissory note. It reads as follows:
“$141.34. Hillsboro, Kansas, Nov. 20, 1884.
“Six months after date, I promise to pay to the order of Lockwood, Paddock & Co. one hundred and forty-one and y3j^ dollars, at the office of Lockwood, Paddock & Co., Hillsboro, Kansas, with interest at ten per cent, per annum until due; and if not paid at maturity, to draw 12 per cent, on the amount then due. The conditions of this sale of book accounts for which this note is given, are such that the title and ownership or right of possession does not pass from the said Lockwood, Paddock & Co. until this note and interest is paid in full. The said Lockwood, Paddock & Co. have full power to declare this note due, and take possession of said-at any time they may deem themselves insecure, even before the maturity of the note; and if said Lockwood, Paddock & Co. from any cause retake into their own possession the property for which this note is given, then it is expressly agreed that the makers and indorsers of this note shall pay to the said Lockwood, Paddock & Co., a sum of money equal to the dif ference in value of said property at the time of its sale, and the time of its return to the said Lockwood, Paddock & Co.
Joseph Sylvester.”
The court held that this note is a non-negotiable note. We think this ruling is correct, and comes directly within the rule laid down in Killam v. Schoeps, 26 Kas. 310. At the trial below the defendants were permitted, over the objection of the plaintiff, to show that at the time of the dissolution of the firm of Lockwood, Paddock & Co. there was an oral agreement between said firms of Lockwood, Paddock & Co. and W. C. Lockwood & Co. that on all the notes turned over by the former to the latter, the defendants A. W. and H. P. Paddock were not to be held liable; and that on the notes and accounts retained by A. W. and H. P. Paddock at said dissolution, said Lockwood, Paddock & Co. were not to be responsible. At the time of this agreement the note in question was the property of W. C. Lockwood & Co. Plaintiff insists that the ruling of the court was erroneous, for the reason that it received this note before maturity from W. C. Lockwood & Co., without notice of this agreement, and that the note when so received bore the indorsement of Lockwood, Paddock & Co. At the time plaintiff received this note, the firm of Lockwood, Paddock & Co. had been dissolved, and of this dissolution the plaintiff must take knowledge. Plaintiff then had knowledge that the firm that purported to have indorsed this note was out of existence. This was notice sufficient to put plaintiff upon inquiry.
The law presumes that the indorsement made upon this note was made at the time it was delivered to the plaintiff, and it stood in no better position than W. C. Lockwood & Co., but took the note subject to whatever notice or knowledge W. C. Lockwood & Co. had in regard to it. Daniel, in his work on Negotiable Instruments, § 371, says:
“As a note takes effect by delivery, it has been held that a note signed in the partnership name before the dissolution, and delivered to the payee after the dissolution, without the consent of other members of the firm, would not bind them. And in like manner, if the paper was indorsed before dissolu tion of the firm and not put into circulation until afterward, unless all the partners united in doing so they would not, according to high authorities, be bound by it.” (Glasscock v. Smith, 25 Ala. 474.)
If this be the true doctrine, then the indorsement made upon this note, but made without the authority of all the partners, although made while the partnership was in existence, and not placed in circulation and delivered to the plaintiff until after the partnership was dissolved, could not bind the partners of the firm of Lockwood, Paddock & Co. without their consent and knowledge. There was some conflict in the evidence as to their knowledge of this indorsement, but the jury found in favor of the defendants. The defendants insist that even if this note had been regularly indorsed by Lockwood, Paddock & Co., and transferred by said indorsement to W. C. Lockwood & Co., said note, being non-negotiable, would be subject in the hands of any person to any defense that the maker or subsequent indorsers might have to it. This is not a settled question in this country. In a number of states it has been decided that by an indorsement of a non-negotiable instrument, as between indorsers, it must be considered a negotiable instrument, and the holder is only bound by whatever equities the maker may have, and none other, without notice. While on the other hand, Iowa, Wisconsin, Michigan, Missouri, and many other states, have held the reverse of this rule. In Iowa the court held:
“ That such an indorsement on a note not negotiable, or any other instrument of writing except negotiable paper, without proof, oral or written, of an undertaking to become responsible in some manner for a good consideration, means nothing, and an indorsér incurs no liability.” (Fear v. Dunlap, 1 G. Greene, Iowa, 334.)
Daniel on Negotiable Instruments, § 709, says:
“If the note be not negotiable, it is plain that such party cannot be regarded as an indorser, for the simple reason that there is no such thing as an ‘indorsement/ in its strict and. proper commercial sense, of any other than negotiable paper.”
(See also Graham v. Wilson, 6 Kas. 490.)
We are inclined to the latter view, that the indorsement of a name upon a non-negotiable note simply transfers the title of a party, and does not make him liable as if said note were a negotiable instrument. (Story v. Lamb, 52 Mich. 525; National Bank v. Gay, 71 Mo. 627.) Such party guarantees the note to be genuine, and that it is what it purports to be; nothing more. He does not guarantee its payment, though he might do this, but to do so would take a contract either expressed in the indorsement or by an independent contract .between the parties. (Kline v. Keiser, 87 Pa. St. 485.) This being true, W. C. Lockwood & Co. accepted this note without any contract, either expressed or implied, that the Paddocks should become indorsers in a commercial sense; and when this note was transferred to the plaintiff it obtained no greater rights than W. C. Lockwood & Co. (Edwards on Bills, § 351, and authorities cited.)
Defendants also insist that this note was not indorsed by Lockwood, Paddock & Co., and plaintiff wholly failed to establish that fact, which it was bound to do under the pleadings. It was admitted that W. C. Lockwood did make the indorsement, but he made it after it became the property of W. C. Lockwood & Co. He made it, not for Lockwood, Paddock & Co., nor for their benefit, or with their knowledge, but made it for the benefit of W. C. Lockwood & Co. They were seeking to raise money upon this note, and for that purpose they indorsed it. This was not the indorsement of Lockwood, Paddock & Co. It is true that one member of a firm, while the firm is in existence, may indorse and transfer firm paper without the knowledge of all the members of the firm, but that is not this case. The act must be done for the firm, when done by any member of the partnership, to bind the firm. This transaction was had for the benefit of the firm which then held the paper. We think that defendants are correct, and that there was an entire failure of evidence to establish the'fact that this indorsement was made by Lockwood, Paddock & Co. The instructions given by the court to the jury, and objected to by the plaintiff, fairly state the law as herein interpreted, and we fincf no error in said instructions.
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.:
This is an original proceeding upon mandamus, to compel the issuance of an execution upon a judgment by a justice of the peace of Cowley county. From the alternative writ, and the answer, we learn that the judgment was rendered on June 12, 1886, by W. D. Kreamer, a justice of the peace, in an action of replevin, wherein C. M. Scott was plaintiff and P. S. Burress was defendant. The trial was had with a jury, and a verdict rendered in favor of Scott for the possession of a horse, valued at $75; and judgment in accordance with the verdict was immediately entered by the justice of the peace. On June 14,1886, Burress filed a motion asking for a new trial, on several grounds, and at the same time served a notice on the opposing party that the motion would' be heard on the 16th day of June, 1886, at 8 o’clock p. M. At .that time both parties were present, and the motion was heard and taken under advisement by the justice of the peace; and on the 19th day of June, 1886, he sustained the motion, and granted a new trial. The case was then set down for trial on the 1st day of July, 1886, when, upon the written stipulation of both parties, it was continued until July 12,1886. When that time arrived both parties again appeared, and joined in a written agreement for a continuance, and that the case should be tried at a certain hour on the 28th day of July, 1886. A trial was had at that time, in accordance with the agreement, and judgment was given in favor of Burress and against Scott. Three days afterward, Scott appealed from the judgment entered, by filing an undertaking, which was approved by the justice of the peace, who in due time filed the transcript of his proceedings, the undertaking, and all the papers in the case, with the clerk of the district court of Cowley county, in which court the case is now pending. On July 16,1886, Scott demanded of the justice of the peace that he issue an execution upon the judgment rendered on June 12,1886, notwithstanding the granting of a new trial, and the subsequent proceedings in the case. This demand being refused, the plaintiff seeks to compel the issuance of the execution by this proceeding. The plaintiff claims that the action of the justice of the peace, on June 19, 1886, in granting a new trial, was a nullity, because more than five days elapsed from the return of the verdict and the rendition of judgment before the action was taken. The claim is based on the following provision:
“The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the decision or verdict, shall vacate the decision or verdict and grant a new trial for the same reasons and upon the same terms and conditions as provided in the code of civil procedure in like causes; and he shall set a time for a new trial, of which the opposite party shall have at least three days’ notice.” (Laws of 1885, eh. 152, §3.)
Under this statute, the motion for a new trial should have been decided within five days after the rendition of the judgment on June 12, 1886; but although it was not determined until the seventh day after the rendition of the judgment, we think that the decision of the motion at that time was not void; and further, that it is too late for the plaintiff to raise the question of jurisdiction. Burress moved promptly and properly to obtain the new trial. Within two days after the judgment was rendered, the motion was made. Proper notice was given, and a hearing had on the motion within four days after the rendition of the judgment. He complied with every requirement of the statute and of the court, and did all that he could, and ought not to be deprived of his right under the motion on account of the delay of the officer. He had a right to expect that the' decision would be made within five days; and before the expiration of that time no action could be begun or maintained to compel the justice to determine the motion. When the full five days had passed without a decision, a proceeding to compel action could have been instituted and maintained ; and if the decision might then have been made under the order of a court, a voluntary decision by the justice granting the motion for a new trial upon the seventh day, and which has been consented to, cannot be regarded as void.
Stewart v. Waite, 19 Kas. 218, is quite analogous to the present case. There a new trial was had before a justice of the peace, and the case taken under advisement and judgment rendered more than four days after the case had been tried. Section 115 of the justices code requires that in such cases the justice should enter the judgment on or by the fourth day after the close of the trial; and it was held that the entry of the judgment was erroneous and reversible for irregularity in failing to comply with the statute, but that it was not void. (See also Albright v. Warkentin, 31 Kas. 442.)
However faulty the action of the justice may have been, it. is now too late for the plaintiff to make objection. Since the new trial was allowed he has acquiesced in the decision, and submitted his cause and person to the jurisdiction of the justice, and also to the district court. The cause was twice continued, and twice the time for the second trial was agreed on by the plaintiff. He made no objection to the jurisdiction at either time, nor when the second trial was had; and when the judgment was given against him on that trial, he transferred the cause to the district court by appeal. After this action the plaintiff is not in a position, and cannot be heard, to allege that the court had no jurisdiction to make the order. (Haas v. Lees, 18 Kas. 449; Shuster v. Finan, 19 id. 114; Miller v. Bogart, 19 id. 117.)
The peremptory writ will be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Jared Cone against the Atchison, Topeka & Santa Fé Railroad Company, for alleged personal injuries. The alleged injuries were received on December 5, 1883; the action was commenced on September 26,1884; the case was tried at the July term, 1885, and was brought to this court on January 16, 1886. The de fendant in error, plaintiff below, moves to dismiss the action from this court, upon the ground that it has been brought to this court only upon a supposed case made for the supreme court, and that such case has not been properly settled, nor properly authenticated. The settlement of the case is shown by the certificate and attestation of the judge and the clerk of the court below, which reads as follows:
“The above and foregoing case-made contains a full and complete transcript of all the evidence, papers, motions and proceedings in the above-entitled cause; is now presented to the judge of said court for his allowance and signature, which is accordingly done this 6th day of January, 1886; and the clerk of said court is hereby ordered to attest the same and attach the seal of said court.
[Signed] W. R. Wagstaff,
Judge Tenth Judicial District for the State of Kansas.
[Seal.] [Signed] Attest: L. C. Trickey,
Clerk District Court, Wyandotte County, Kansas.
Filed January 6, 1886.
[Signed] L. C. Trickey, Clerk.”
The principal objection urged against the foregoing case is, that in the certificate of the judge the word “allowance” is used, instead of the word “settlement,” or some cognate word, like “settle,” “settling,” “settled,” etc. Section 548 of the civil code, however, uses both the words “settle” and “allowed,” and uses them in a way to indicate that with reference to settling cases for the supreme court, they are nearly synonymous. The time for making a case for the supreme court and for settling the same, may be extended by the court or judge, even beyond the term of the court; and after the case has been made, and such amendments suggested as are desired by the adverse party, then it is provided by said section that “the case and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached; ” and “the exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken.” (Civil Code, § 548.)
We think that the case is properly authenticated, and we think that it is sufficiently shown by the certificate of the judge aud the attestation of the clerk, that the case was properly settled. Whether much or little of the pleadings, much or little of the evidence, or much or little of the instructions are contained in the case, is not a matter for dismissal. If the cáse has been properly settled, signed, attested, filed, authenticated, and brought to this court, this court must consider it upon its merits, and cannot dismiss it.
“ Where a case for the supreme court is made and served upon the defendant within proper time, and is settled and signed by the judge of the district court, and properly attested and filed by the clerk, it will be presumed, in the absence of anything to the contrary, that the case was settled in accordance with the requirements of the law.” (Douglass v. Parker, 32 Kas. 593. See also Fearns v. A. T. & S. F. Rld. Co., 33 Kas. 275.)
We cannot dismiss the case from this court because of the alleged irregularities, but will have to determine the case upon its merits.
The plaintiff’s home was and is at Burrton, in Harvey county, Kansas. The injuries were received at Newton, in the same county; the plaintiff’s attorneys reside in Shawnee and Leavenworth counties; and this action was commenced and tried in the district court of Wyandotte county. Before any trial was had, however, the defendant asked for a change of venue,, claiming, and filing an affidavit in support of the claim, that the defendant could not have a fair and impartial trial in that county; but the plaintiff resisted, and the court below overruled the application. The injuries complained of resulted from a fall from one of the defendant’s railroad trains, but how the fall happened, whether from the negligence of the plaintiff, or the defendant, or both, or from pure accident, is a disputed question, and a doubtful one. This train was a passenger train operated between Kansas City and Nickerson, and was called train “No. 4” when it was going eastwardly, and train “No. 3” when it was going westwardly. James E. Corcoran was the conductor of this train, Charles W. Chapin and the plaintiff were the brakemen, Edmund Reynard was the locomotive engineer, and Thomas O. Jones was the fireman. The plaintiff had worked for the defendant as brakeman on this train, or these trains, numbers 3 and 4, and under this conductor, for more than nine months before the accident occurred. On the evening of the accident, the train, No. 4, arrived from the west at Newton at 8:05 o’clock in the evening, and left on the same evening at 8:38 o’clock or later. At Newton, as was usual, another car, which had arrived from Wichita, was put into this train, near the rear end, and between the sleeping-car and the other cars. There were nine cars in all in this train. Just as the train left, or shortly afterward, the plaintiff fell from the train, and received the injuries of which he now complains. The alleged negligence was, the alleged starting of the train before the bell-cord was tested, without notice or signal to the plaintiff, and with a sudden jerk. It was the duty of the plaintiff to couple the bell-cord before the train was started, and it was the duty of the conductor to know from some source that the same was done before starting the train. In the present case the train was not started for about a quarter of an hour, and perhaps a half an hour, after the regular time for it to be started. The train was at Newton more than a half-hour, and perhaps nearly an hour. The plaintiff claims that just before the train was started, he went between the Wichita car and the sleeping-car and stood upon the guard-rails with a lantern in his right hand or on his right arm, and coupled the bell-rope, and was then stooping to get down, when the train started with a sudden jerk which caused him to fall; and in falling he was caught somewhere by some portion of the cars, and was carried or dragged about one thousand feet from where he fell, when he was released from the cars and left lying on the ground. Both the facts and the law with regard to all these matters, and as contended for by the plaintiff, are disputed by the railroad company.
The plaintiff was a large man, weighing at the time of the accident about 240 pounds. He weighed still more at the time of the trial. After the accident, the plaintiff was found lying on the ground within about one thousand feet from the place where the train was started, and the lantern was found within about ten or fifteen feet from him. These trains, numbers 3 and 4, were usually started from Newton without the conductor or any other of the trainmen, except the plaintiff, knowing whether the bell-cord was coupled or not, and generally before the bell-cord was coupled; and the plaintiff, although he knew this, never complained of this to anyone, or suggested that the same was unsafe. The injuries received were the tearing of the plaintiff's clothes, the laceration of his skin on his left side, injuries to his right hand and wrist requiring the amputation of his little finger, injuries to his right leg so that it had to be amputated about four inches below the knee, and the fracture of his skull on the right side, and also loss of time and wages. His wages at the time of the accident were $55 per month. It does not appear that he was at any expense for medical aid, or assistance, or for nursing. The plaintiff in his petition claimed $50,000 damages. The jury rendered a verdict for that amount in his favor, and this,.as they stated, was for “actual damages'' only. The court below gave the plaintiff the option of taking a judgment for $25,000, or a new trial, and the plaintiff took the former, and judgment was rendered accordingly in his favor for $25,000 and costs. The other passenger trains of the defendant, operated between Kansas City and Nickerson, were numbered “ 1'' and “ 2.'' Number “ 1 ” came into Newton from the east just before number “4” departed.
Numerous errors are assigned by the plaintiff in error, among which are the giving of the following instruction, and the ruling of the trial court with regard to the following special questions of fact submitted to the jury, and their answers thereto. The instruction is as follows:
“The jury are not required to answer any special question, unless they can make such answer upon the testimony they have heard; and if any question is submitted, and no sufficient evidence appears upon which to answer, the jury can say, ‘ Don't know,' or, ‘ Cannot answer on the evidence.'''
One hundred and thirty-six special questions of fact were submitted to the jury for their consideration and findings thereon, and under the foregoing instruction the jury answered the following portion of the same, in the following manner:
“14. Immediately prior to train No. 4 starting for the east on December 5th, 1883, how far was the east end of the sleeper on that train from the east end of the platform which lay between the two tracks ? Answei': Don’t know.”
“18. What are the depth and width of the platforms on passenger cars on defendant’s road? A. Don’t know.
“19. What are the depth and width of the platforms of the Pullman sleepers? A. Don’t know.
“20. When two passenger cars, or a passenger and a Pullman, with Miller couplings and platforms, are coupled together, how far apart are the two platforms from each other at the closest point, and how far apart are they at the widest point, when the slack is takeu up?. A. Don’t know.”
“24. When plaintiff fell, if he did fall, at the time of his injury, how far was he dragged by the cars before reaching the point where he was found ? A. Don’t know.”
“26. How could plaintiff have been caught by either of the cars on train No. 4, at the time of his injury, so as to have been dragged from the point where the east end of the sleeper started to the point where plaintiff was found ? A. Cannot say.
“27. As the sleeper on train No. 4, on the night of plaintiff’s injury, stood by the platform between the two tracks at Newton, was there room between the north side of it and the south side of such platform to have permitted plaintiff in falling from such sleeper, or the car ahead of it, to have rolled from said platform under such sleeper? A. Don’t know.
“28. At the time of plaintiff’s injury, could he have fallen from any car on train No. 4, while the same was running along the platform between the two tracks, so as to have fallen under such car? A. Don’t know.
“29. At the time of plaintiff’s injury, could he have been dragged by any car on train No. 4 so as to have been dragged along the platform between the two tracks ? A. Don’t know.
“30. At the time of plaintiff’s injury, could he have fallen so as to have been dragged along between any of the cars on train No. 4 and the platform between the two tracks ? A. Don’t know.”
“37. On the night of plaintiff’s injury, and prior thereto, did not the plaintiff have from ten to twenty minutes in which to do that which he was required to do, more than lie usually had at that station ? A. He may have had.”
“ 39. Was not train No. 4, on the night of plaiutiff’s injury, and prior thereto, moved west across Main street, at Newton, and then pulled onto the old main track, so that the sleeper, or a portion of it, was in the street ? A. Don’t know.”
“43. If the jury answer the last question [No. 42] in the affirmative, they may state if the fireman did not, upon receiving such signal, ring the engine bell, in compliance with rule No. 17 of the company’s rules, before the engine started. A. Don’t know.
“44. Did not the fireman communicate the signal to start to the engineer, and did he not start the engine after the bell was rung from the engine? A. He did communicate the signals; don’t know whether he rang the bell before the train started, or not.”
“65. At the time of the plaintiff’s injury, and immediately prior thereto, and prior to the starting of No. 4 on its journey east, was not the usual and customary warning signal that the train was about to start given before it was actually started ? A. Don’t know.
“66. If the jury answer the last question in the negative, they may state what signal was not given which it is usual and customary to give at that station before starting such train. A. Don’t know.”
“ 68. Did not the plaintiff at the time of, and for four months prior to his injury, know that the conductor of his train, and under whom he was working, frequently left Newton station with his train before he (said conductor) knew that the bell-cord of such train was coupled ? A. Don’t know.
“ 69. About how long did it take plaintiff, on the arrival of train No. 4 at Newton, on December 5, 1883, to do that part of his duty which consisted in helping passengers off from the train ? A. Don’t know.
“70. Upon the evening of December 5, 1883, after the arrival of train No. 4 at Newton, how long did it take plaintiff to help load and unload baggage, if he did help load and unload baggage ? A. Don’t know.”
“72. If the jury answer the preceding question [No. 71] in the affirmative, they may state how long it took plaintiff' to eat his supper at Newton on that evening. A. Don’t know.”
“75. Previous to the plaintiff’s injury, and during the time plaintiff was working under Conductor Corcoran, had not Conductor Corcoran frequently started his train from Newton without first ascertaining from the plaintiff as to whether or not the bell-cord was coúpled ? A. He may have.
“76. During the time plaintiff was working as brakeman under Conductor Corcoran, had not Conductor Corcoran frequently started his train from Newton without first ascertaining from plaintiff whether the train was ready to go or not ? A. He may have.”
“79. If the jury answer the last question [No. 78] in the affirmative, they may state if the plaintiff did not, previous to his injury, know that the conductor had frequently violated such rule in the way in which he had violated it. A. Don’t know.”
“82. If the jury answer the last question [No. 81] in the affirmative, they may state which foot was on the guard-rail of the "Wichita car, and which foot was on the guard-rail of the sleeper. A. Cannot say.”
“87. If the jury answer the last question [No. 86] in the affirmative, they may state whether a jerk toward the east of the cars upon the guard-rails of which the plaintiff was standing, while he was standing there or while he was stooping to get down, would have thrown plaintiff’s head toward the east or toward the west. A. Don’t know.”
“ 93. What reason, if any, was there for not putting the Wichita car in train No. 4 at least ten minutes before train No. 4 left Newton on the evening of plaintiff’s injury, if it was not placed in said train such length of time before the train left ? A. Don’t know.”
“95. What was there to prevent train No. 4 from being all ready to leave Newton within twenty minutes after it arrived there on the evening of plaintiff’s injury? State fully. A. Don’t know.”
“97. If the jury answer the last question [No. 96] in the affirmative, they may state what fact, if any, prevented the Wichita car from being set into train No. 4 while it stood on the new track within the usual time and in the usual manner that it had been coupled into that train theretofore. A. Don’t know.”
“99. Wasn’t the Wichita car coupled into train No. 4, on the evening of plaintiff’s injury, before Mr. McAdams and his son got upon that train ? A. Don’t know.
“100. Just at the time of, and immediately prior to, Mr. McAdams’s leaving the car at Newton upon which he and his son were, on the evening of plaintiff’s injury, didn’t Mr. McAdams know that the train was starting, or was just about to start, by feeling the movement of the car, or by hearing the bell ring on the engine ? A. Don’t know.”
“102. Previous to plaintiff’s injury, had he ever complained to Conductor Corcoran, or to any person, about Conductor Corcoran’s leaving Newton station without first ascertaining from him the fact whether the bell-cord was coupled or not, or the train in readiness to go ? A. Don’t know.
“103. Previous to plaintiff’s injury, had he made any protest to Conductor Corcoran, or to the defendant company, or any of its officers, against Conductor Corcoran’s violating any duty that he may have violated in leaving Newton station at times previous thereto ? A. Don’t know.
“104. Prior to the night of the accident, was it not a frequent and usual occurrence for the train No. 4 to leave Newton without the signal-bell on the engine being rung from the rear coach of the train ? A. Don’t know.
“105. Was it not the custom at the time plaintiff was injured, and had it not been the custom for a long time prior thereto, for the trainmen to omit to ring the engine signal-bell from the rear end of the train before leaving Newton station ? A. Don’t know.
“106. If the jury answer the last question in the negative, they may state how often the signal-bell on the engine was rung from the rear end of the train before leaving Newton, and by whom it was so rung. A. Don’t know.”
“112. How long would it ordinarily take for the rear brakeman on train No. 4 to perform the duty of coupling the bell-cord between the cars at Newton ? A. Don’t know.”
“114. After the Wichita coach was placed in the train No. 4, how long would it ordinarily take the rear brakeman to get the train in readiness to proceed on its journey? A. Don’t know.”
“118. Isn’t it a fact that previous to plaintiff’s injury, and during the time he was acting as brakeman under Conductor Corcoran in the year 1883, that Conductor Corcoran sometimes started train No. 4 from Newton east before the bell-cord of the train was coupled, after the Wichita car had been set into the train ? A. Don’t know.
“119. If the jury answer the last question in the affirmative, they may state if prior to plaintiff’s injury he did not know that Conductor Corcoran sometimes started train No. 4 from Newton east before the bell-cord was coupled, after the Wichita car had been taken into the train. A. Don’t know.”
“122. If the jury answer the last question [No. 121] in the negative, they may state from the evidence what conductor running a passenger train on defendant’s road ever complied with the requirements of rule No. 16 at Newton station. A. Don’t know.”
“ 132. About how long did it take train No. 1, on entering the Newton yards, to reach the station at Newton, on December 5, 1883 ? A. Don’t know.
“133. About how far did train No. 1, on the evening of December 5, 1883, have to run after it entered the east end of Newton yards, before it reached the depot? A. Don’t know.
“134. When Cone first went into the Wichita car, after it was coupled into train No. 4, was not the bell-cord of the Wichita car hanging out of the west end of the Wichita car several feet? A. Don’t know.
“135. At the time mentioned in the preceding question, was not the bell-cord of the sleeper, on the east end of it, just pulled through over the door, and tied there? A. Don’t know.”
When the jury returned their verdict and their answers to the special questions of fact, the defendant requested the court to require the jury to return to their room for the further consideration of those questions which the jury had not answered properly, and also requested the court to require the jury to answer such questions properly, which request the court refused and discharged the jury. Of course the court committed error in instructing the jury that they might answer the special questions by simply saying “Don’t know,” or, “Cannot answer.” (K. P. Rly. Co. v. Peavey, 34 Kas. 474, 486; U. P. Rly. Co. v. Fray, 35 id. 700, 708. See also Clark v. Wier, ante, p. 98; same case, 14 Pac. Rep. 534.)
Many of the foregoing questions were, and are, material in the case, and with respect to many of them there was ample evidence upon which the jury might have made proper findings. Under the foregoing instruction the jury evidently con sideréd that they were at liberty to answer the questions or not, as they chose; and while the jury did not answer the foregoing questions properly, there were several other questions to which they gave answers, where their answers were clearly against the evidence. Evidently the jury acted either under a misconception of their duties, or under the influence of passion or prejudice; and probably under both. As to many questions, they did not give proper answers; as to many others, they made findings against the evidence, and they rendered a general verdict for a vastly excessive amount, and in a case where it is at least doubtful whether they should have found in favor of the plaintiff at all. Evidently when the court below required the plaintiff either to remit $25,000 of the damages found in his favor, or to take a new trial, the court must have found that the verdict of the jury was rendered under the influence of passion or prejudice. And certainly if one-half of the verdict was rendered under the influence of passion or prejudice, the other half must also have been rendered under the influence of passion or prejudice, and, as it is doubtful whether the jury should have rendered any verdict in favor of the plaintiff, it may be that this passion or prejudice affected the entire verdict and also the special findings, and caused the jury to find in favor of the plaintiff, where, except for the passion or prejudice, they would not have found in his favor at all. For the foregoing errors of the court and the jury, we think a new trial should have been granted to the defendant upon its application.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
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Pierron, J.:
Daniel S. Ulrey appeals from his convictions of possession of anhydrous ammonia with the intent to manufacture a controlled substance and possession of drug paraphernalia with the intent to manufacture a controlled substance. Ulrey contends the evidence used against him was seized by an unlawful search of the vehicle in which he was riding. Ulrey also contends the trial court improperly admitted hearsay laboratory test results at trial. We affirm.
On September 22, 2004, Deputy Matt Tatro of the Reno County Sheriff s Department was on routine patrol. At approximately 9 a.m., he saw a vehicle pass him driven by Barbara Jordan. He knew Jordan from two recent arrests for driving on a revoked license. Deputy Tatro confirmed with the dispatcher that Jordan’s driver’s license was still revoked. He activated his emergency lights, but Jordan continued driving for approximately Vz mile and pulled into the driveway of her home.
Jordan exited her car immediately and made contact with Deputy Tatro in front of the patrol car. Immediately thereafter, two male passengers exited Jordan’s vehicle as well. Deputy Tatro asked the men, who were walking towards him, to stand at the front of Jordan’s vehicle. Jordan admitted right away that she knew she was not supposed to be driving. Because he was outnumbered, Deputy Tatro placed Jordan in the back seat of the patrol car and then contacted the two men. The men were identified as Jason Wright and Daniel Ulrey. Wright had been sitting in the front passenger seat and Ulrey had been in the back seat on the driver’s side. Neither man had any outstanding warrants. Because both men also had suspended driver’s licenses, Deputy Tatro, after consulting with Jordan, advised the men they could stay at Jordan’s house or use her home phone to call for a ride.
After releasing the two men, Deputy Tatro went to Jordan’s vehicle to retrieve her purse so it could be taken to the detention center per police department policy. Deputy Tatro testified that he previously told Jordan he would retrieve her purse from the car and she agreed that he could do that. Later, Deputy Tatro testified he did not remember whether he asked Jordan for consent to retrieve her purse, or whether he simply told her he was going to get it from the car.
Looking in the driver’s window, Deputy Tatro saw the purse on the floorboard on the passenger side of the car. He walked around the car to the passenger side to get it. Before opening the door, he noticed an odor of anhydrous ammonia, which he had dealt with in the past, coming from the car. Without opening the car door, Deputy Tatro also saw a jug on the floor in the back seat, and the top of a box of salt and a kitchen strainer in a crate in the back seat. He opened the passenger door, at which time the odor of anhydrous ammonia became overwhelming. Deputy Tatro and his back-up officer immediately put Wright and Ulrey in handcuffs. They were apparently still at the vehicle. The officer found a baggie of a white powdery substance on Wright after a pat-down search.
Deputy Tatro returned to Jordan’s vehicle and removed a red and white 1-gallon water jug. Inside the jug was a substance that smelled like anhydrous ammonia. He found a red milk crate in the back passenger seat containing various items, including a box of Morton salt, a baggie with peeled lithium batteries, and an ice cream tub with coffee filters containing residue. Inside another bag, he found a glass jar which contained a dark liquid. The crate also contained a wooden mixing spoon with residue. A search of the vehicle’s trunk resulted in the discovery of an 18-quart cooler with camping fuel, two Mason jars with a purple and bluish liquids, and another mixing spoon. All of these items are commonly used in the manufacture of methamphetamine.
Deputy Tatro Mirandized Ulrey, who agreed to cooperate. Ulrey indicated he did not know what items were in the vehicle other than his guitar, and he had caught a ride to go fishing and drink beer. There was no beer or fishing equipment in the vehicle. At the jail, other baggies were found on Wright’s person, which field-tested positive for methamphetamine. Nothing was found on Ulrey’s person when he was searched at the jail.
In October 2004, Ulrey was charged with one count of manufacture of methamphetamine, in violation of K.S.A. 65-4159 or, in the alternative, one count of attempted manufacture of methamphetamine, in violation of K.S.A. 65-4159 and K.S.A. 21-3301; one count of possession of ephedrine with the intent to manufacture a controlled substance, in violation of K.S.A. 65-7006; one count of possession of lithium with the intent to manufacture a controlled substance, in violation of K.S.A. 65-7006; one count of possession of anhydrous ammonia with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006; felony possession of drug paraphernalia with the intent to manufacture a controlled substance, in violation of K.S.A. 65-4152(a)(3); and one count of possession of methamphetamine, in violation of K.S.A. 2004 Supp. 65-4160.
At the preliminary hearing, Deputy Tatro testified as set forth above. He testified that based on his training and experience, the items he found in the vehicle were consistent with the manufacture of methamphetamine. He also testified that the residue on the coffee filters in the back seat contained a finished product of methamphetamine and hthium. The only objection made during this testimony was an objection based on foundation.
Ulrey was bound over for trial on all charges. He filed a motion to suppress the physical evidence found in Jordan’s vehicle and any statements he made to officers. Ulrey asserted he was unlawfully detained as a passenger of the car for a prolonged period for what was originally a traffic infraction. Ulrey also claimed that Deputy Tatro unlawfully entered Jordan’s vehicle without consent or a search warrant. Finally, Ulrey claims he was not properly Mirandized and, therefore, any statements he made were inadmissible as he did not voluntarily waive his Miranda rights.
Deputy Tatro testified again at a June 2006 suppression hearing. His testimony largely mirrored that which he gave at the preliminary hearing. He testified that he briefly detained Ulrey and Wright after arresting Jordan. Once he had confirmed they had no outstanding warrants, he told them they were released and could go into Jordan’s house. Deputy Tatro did not recall how long this took.
Deputy Tatro testified he walked to the car to retrieve Jordan’s purse, saw it on the passenger side floorboard, and walked around to the passenger side of the vehicle. The windows of the vehicle were down and he smelled what he recognized to be anhydrous ammonia. From outside the car, he saw a red milk crate in the back seat with a kitchen strainer and a box of Morton salt and a water jug. At this point Deputy Tatro and another officer handcuffed Ulrey and Wright based on the officers’ belief that Ulrey and Wright were involved in the manufacture of methampheta mine. Ulrey was read his Miranda rights. Deputy Tatro then searched the car based on probable cause and the additional items were found.
After hearing the evidence, the district court denied the motion to suppress, finding the initial stop was lawful and Deputy Tatro had done nothing improper.
The case proceeded to a jury trial on August 23 and 24, 2006. The arresting and crime scene officers testified regarding the traffic stop and ultimate search of the vehicle. In addition, Chris Riddle, a forensic chemist for the Kansas Bureau of Investigation (KBI), testified for the State. Riddle, without objection, presented a PowerPoint presentation about the process of manufacturing methamphetamine. Riddle also testified that each report prepared by a KBI chemist is reviewed by another scientist in the KBI laboratory. The items in this case were tested by KBI scientist Krista Rankin, and Riddle reviewed her findings and reports. Riddle testified that the notes and reports were kept in the ordinary course of business at the KBI.
As Riddle began testifying about Rankin’s report, Ulrey objected on grounds of hearsay and foundation. The objection was denied. Ulrey also lodged a continuing objection to Riddle’s testimony about the actual items tested “pursuant to [the] pretrial motion.” This continuing objection also related to the subsequent testimony of the law enforcement officers. Riddle identified various items collected, including salt; lithium; methamphetamine, pseudoephedrine, and lithium in a condition consistent with completion of a partial state of the manufacturing process; sulfuric acid; bottles of solvents typically used in the manufacturing process; and various exhibits containing methamphetamine, pseudoephedrine, and other manufacturing components consistent with the gassing stage of manufacture of methamphetamine.
The jury ultimately acquitted Ulrey of all charges except possession of anhydrous ammonia and possession of drug paraphernalia, both with the intent to manufacture methamphetamine. His subsequent motions for judgment of acquittal and for new trial were denied. Based upon Ulrey’s criminal history score of I, he was sentenced to 12 months’ probation, with an underlying prison term of 11 months on each count to run concurrently.
Within 5 months of his original sentencing, the State filed a motion to revoke Ulrey’s probation on the grounds he had tested positive for methamphetamine use several times during his probation. Ulrey’s probation ultimátely was revoked and he was ordered to serve his 11-month prison sentence.
On appeal, Ulrey contends that Deputy Tatro’s search of Jordan’s vehicle after she was arrested and he was detained was illegal, warranting the suppression of all the evidence seized from the vehicle. Ulrey contends he has standing to object to the search of Jordan’s vehicle.
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).
In claiming he has standing to challenge the search of Jordan’s vehicle, Ulrey relies on Brendlin v. California, 551 U.S. 249, 168 L. Ed. 2d 132, 127 S. Ct. 2400 (2007). However, Ulrey’s argument extends Brendlin beyond its facts. In Brendlin, police pulled over a vehicle with a proper temporary tag for the sole purpose of seeing if the tag matched the vehicle. Brendlin was a passenger in the car, which the court found was illegally stopped without reasonable suspicion. The officer recognized Brendlin and confirmed there was an outstanding warrant for him for a parole violation. After seeing Brendlin open and then close his car door, officers ordered Brendlin out of the car at gunpoint and arrested him. Brendlin was searched incident to arrest as was the driver, and both were found to have contraband on their persons; the car was then searched incident to arrest.
The United States Supreme Court held that a passenger in a vehicle is “seized” for Fourth Amendment purposes whenever the vehicle is stopped by police. Because the State conceded the stop of the vehicle was unlawful, the court found the vehicle passengers had standing to challenge their detention and the fruits of that illegal detention. 551 U.S. at 259.
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. Likewise, in Brendlin, the Supreme Court recognized that Mimms and Wilson were focused on officer safety. This justified the officer to exercise “ ‘unquestioned command of the situation.’ [Citation omitted.] Brendlin, 551 U.S. at 258.
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. The Supreme Court held that in a traffic-stop setting, “it is lawful for police to detain an automobile and its occupants pending inquiry 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 Supreme Court continued, noting:
“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.
In Johnson, the officer stopped the vehicle for a registration violation and began questioning the passenger about his gang membership. The court found this questioning was legal because it did not measurably extend the duration of the stop. 555 U.S. at 332-34. In this case, Deputy Tatro lawfully could control the situation by ordering Ulrey and Wright to wait at the front of Jordan’s car while he met with and confirmed Jordan’s identity and arrested her for driving while license suspended.
However, by thereafter checking the identification of Ulrey and Wright and running a warrant check on the passengers, Deputy Tatro did measurably extend the duration of the stop. See Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 185, 159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004); INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984). However, even in these cases the encounter must be either voluntary or reasonable suspicion must exist. See State v. Pollman, 286 Kan. 881, 889, 190 P.3d 234 (2008).
The continued detention of Ulrey and Wright after Jordan’s arrest was not voluntary and Deputy Tatro took Wright’s identification and otherwise made it clear that the men were not free to leave. See Pollman, 286 Kan. at 889.
Once, however, the warrant check came back negative on the two men, Deputy Tatro advised them they were free to leave and obtained permission from Jordan for them to stay at her house and/or use her telephone. Neither man was searched at this time and Deputy Tatro no longer exerted any show of authority. At this point, no reasonable person would have felt compelled to stay and the detention had ended.
The question then becomes whether there is any causal connection between Ulrey’s brief illegal detention and Deputy Tatro’s subsequent discovery of evidence in plain view in Jordan’s car. As a panel of this court recently noted:
“The Kansas Supreme Court states that ‘a court may find that the poisonous taint of an unlawful search or seizure has dissipated because the connection between the unlawful law enforcement conduct and the challenged evidence became attenuated.’ State v. Martin, 285 Kan. 994, Syl. ¶ 3, 179 P.3d 457 (2008). We examine ‘the causal chain between unlawful conduct and the acquisition of evidence.’ 285 Kan. 994, Syl. ¶ 4. Three factors are commonly used to judge attenuation: (1) the time elapsed between the illegal conduct and acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the ‘purpose and flagrancy of the official misconduct. [Citation omitted.]” State v. Morlock, 40 Kan. App. 2d 216, 265, 190 P.3d 1002 (2008), rev. granted 287 Kan. 768 (2009).
Here, Ulrey was no longer a passenger in the car and had been advised after a records check that he was free to leave. He was even told he could enter Jordan’s home and call for a ride if he wished. Because his detention had terminated without the finding of any incriminating evidence, there were intervening circumstances to purge any taint of the brief, illegal detention, even though Deputy Tatro’s return to Jordan’s car occurred immediately after Ulrey’s release. At this point, Ulrey was free to depart and probably lost any standing to object to the search of Jordan’s car. See Rakas v. Illinois, 439 U.S. 128, 134, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978) (a passenger normally does not have standing to object to the search of a vehicle in which he or she had no ownership or possessory interest). Thus, if there is no legitimate basis for the passenger to challenge the initial detention of the vehicle, he or she likely has no standing to object to the search of a vehicle lawfully detained. See United States v. Diaz-Castaneda, 494 F.3d 1146, 1150 (9th Cir.), cert. denied 552 U.S. 1031 (2007); see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007), cert. denied 552 U.S. 1123 (2008) (although the passenger can challenge the initial detention and the search of his or her person, Brendlin is unclear concerning the degree to which the passenger can challenge a search of the vehicle); United States v. Martinez, 537 F. Supp. 2d 1153 (D. Kan. 2008) (Rakas standard that passenger normally has no standing to the search of another person’s vehicle is still valid law after Brendlin if there is no challenge to the initial detention of the vehicle in which the passenger is riding).
Finally, Ulrey’s claim fails because Deputy Tatro’s visual inspection of Jordan’s vehicle was lawful under the plain view exception. When officers are in a place they have a right to be, even within a home, they may seize any evidence in plain view. State v. Horn, 278 Kan. 24, 36-37, 91 P.3d 517 (2004). Plain view is an exception to the search warrant requirement of the Fourth Amendment. State v. Canaan, 265 Kan. 835, 840, 843, 964 P.2d 681 (1998). Under this exception, “a law enforcement official can seize evidence of a crime if (1) the initial intrusion which afforded authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.” 265 Kan. 835, Syl. ¶ 9.
Ulrey attempts to argue that Deputy Tatro had no right to return to Jordan’s vehicle to retrieve her purse based upon “departmental policy.” However, the argument ignores the fact that the vehicle was lawfully stopped by Deputy Tatro and, regardless of his subjective motives to retrieve the purse, the mere visual inspection of the vehicle, without opening any doors or windows, was not an unlawful act. Deputy Tatro was lawfully on Jordan’s real property because Jordan chose to stop her vehicle in her driveway. The mere visual inspection of the items in plain view of the vehicle during the stop was not illegal. We need not reach the issue of whether the regulation requiring the seizure of the purse was lawful.
Certainly if “ ‘a motorist has “no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers,” ’ [Citation omitted]” United States v. Campbell, 549 F.3d 364, 373 (6th Cir. 2008), a former passenger of the vehicle has no grounds to complain. See also United States v. DeLuca, 269 F.3d 1128, 1133 (10th Cir. 2001) (defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government’s unconstitutional conduct directed toward that complaining defendant and that the contraband would never have been found but for the defendant’s, and only the defendant’s, unlawful detention).
Assuming he has standing to object, Ulrey contends that even with Deputy Tatro’s detection of anhydrous ammonia coming from the car, there was no probable cause to arrest him or search Jordan’s vehicle. Our Supreme Court has held that the strong odor of ether alone emanating from a vehicle, even without a legitimate explanation, does not constitute probable cause to search the vehicle. See State v. Ibarra, 282 Kan. 530, Syl. ¶ 3, 147 P.3d 842 (2006). “Although the smell of ether alone cannot establish probable cause, it may be considered with other evidence in the totality of circumstances for determining whether probable cause exists.” State v. Fisher, 283 Kan. 272, Syl. ¶ 13, 154 P.3d 455 (2007).
However, Deputy Tatro had more than just the odor of anhydrous ammonia to justify his search. He also saw in plain view a jug with some land of liquid, a crate containing rock salt, and coffee filters. Possession of a combination of items known for use in manufacturing methamphetamine can constitute probable cause to search a vehicle. See State v. Schoonover, 281 Kan. 453, 515, 133 P.3d 48 (2006) (The odor of anhydrous ammonia in an automobile may create probable cause to believe that anhydrous ammonia is not being stored in a legal container as required by law. Also, observation of coffee filters and Coleman fuel together with the odor of anhydrous ammonia is sufficient to establish probable cause.); State v. Moore, 39 Kan. App. 2d 568, 580, 181 P.3d 1258, rev. denied 286 Kan. 1184 (2008) (odor of anhydrous ammonia from vehicle, coupled with observation of a can of Coleman fuel, two cans of lighter fluid, and an open package of lithium batteries established probable cause to search the vehicle).
Based upon the record, it appears Ulrey lost standing to challenge the search of Jordans vehicle when he was released from his detention by Deputy Tatro. Even if he still had standing to object, Deputy Tatro had developed probable cause of criminal activity based on evidence he smelled and viewed in plain view in Jordan’s car. Thus, the search of the vehicle was lawful.
Ulrey also contends that admission of KBI scientist Chris Riddle’s testimony about a report prepared by another KBI scientist violated his right to confrontation under the Sixth Amendment to the United States Constitution and was contrary to K.S.A. 22-3437. K.S.A. 22-3437(1) states: “In any hearing or trial, a report concerning forensic examinations and certificate of forensic examination executed pursuant to this section shall be admissible in evidence if the report and certificate are prepared and attested by a criminalist or other employee of the Kansas bureau of investigation, [or] Kansas highway patrol . . . .” Ulrey only objected to the report and testimony on hearsay and foundation grounds.
In its brief, the State only addresses the Confrontation Clause issue. The State simply asserts that Riddle’s testimony was primarily about the process of manufacturing methamphetamine and that Ulrey was acquitted of the manufacturing and attempted manu facturing charges and other charges relevant to Riddle’s testimony. Thus, the State argues, any error in admitting the evidence was harmless error.
No error impheating constitutional rights, including the right to confrontation, can be found to be harmless unless the court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. State v. Hughes, 286 Kan. 1010, 1015, 191 P.3d 268 (2008).
In this case, Ulrey was only convicted of possession of anhydrous ammonia and possession of drug paraphernalia, both with the intent to manufacture methamphetamine. The 1-gallon water jug smelling of anhydrous ammonia — which Deputy Tatro testified he recognized- — was found on the floor of the back seat near where Ulrey had been sitting. Neither the charging document nor the instructions identified what “paraphernalia” Ulrey was alleged to possess. Even without Riddle’s testimony, Deputy Tatro had testified he found a crate in the back passenger seat containing various items, including a box of Morton salt and an ice cream tub with coffee filters containing residue. The coffee filters, in the context of the other evidence, clearly support a finding of possession of paraphernalia. The intent factor — possession with the intent to manufacture — was supported by Riddle’s testimony on the manufacturing process, to which Ulrey did not object, and probably could not have successfully objected to.
Since the jury acquitted Ulrey on the charges for which the evidence objected to was presented, the evidence obviously did not change the result of the trial to Ulrey’s detriment. The charges he was convicted of were overwhelmingly supported by the properly admitted evidence.
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Malone, J.:
Mr. Cinnamon of Kansas, Inc. (Mr. Cinnamon), appeals the district court’s decision to dismiss a civil lawsuit against David G. Hall d/b/a A & H Tobacco of Kentucky. The sole issue is whether the district court erred by determining that it lacked personal jurisdiction over Hall. We agree with the district court that Hall had insufficient personal contacts with the state of Kansas to expose him to the jurisdiction of the Kansas courts. Accordingly, we affirm the district court’s decision granting Hall’s motion to dismiss.
Hall has been a continuous and permanent resident of Kentucky since 1991. He was formerly an officer and shareholder of a Kentucky corporation known as A & H Tobacco, Inc. (A & H Tobacco). A & H Tobacco was in the business of purchasing tobacco products from various suppliers for resale in Kentucky. The corporation was active and in good standing in Kentucky until it was administratively dissolved on November 1, 2003.
In the spring of 2003, Chris Meade, an employee of A & H Tobacco, attended a trade show in Las Vegas, Nevada. Either at the trade show in Las Vegas or by telephone from Kentucky shortly after the trade show, Meade spoke with Tony Biyant, an employee or representative of Tobacco Center, Inc. (Tobacco Center), of Miami, Florida. A & H Tobacco had dealt with Bryant before and had previously purchased cigarettes from Tobacco Center for resale in Kentucky. Biyant asked Meade whether A & H Tobacco would be interested in purchasing some Marlboro cigarettes. However, Bryant did not disclose the name of the seller or the location of the cigarettes. Meade contacted Hall and informed him that Biyant had Marlboro cigarettes for sale. On behalf of A & H Tobacco, Hall authorized Meade to purchase the Marlboro cigarettes from Tobacco Center. The parties did not enter into a written contract.
James J. Aboud is the president of Mr. Cinnamon, a distributor of tobacco products located in Wichita, Kansas. According to Aboud’s affidavit, in the spring of 2003, while in his Wichita office, he talked with Biyant concerning the possible sale of a large quantity of Marlboro cigarettes owned by Mr. Cinnamon that were stored in a warehouse in Kansas City, Missouri. According to Aboud, Bryant told him that A & H Tobacco of Kentucky would purchase the cigarettes.
On April 11, 2003, the cigarettes were shipped from Kansas City, Missouri, to “A & H Tobacco/Chris Meade” in Kentucky according to the shipping documents associated with the cigarettes. The invoice for the cigarettes, dated April 7, 2003, however, originated from “Mr. Cinnamon Tobacco Dist.” of Wichita, Kansas. When A & H Tobacco received the shipment of cigarettes, it determined that many of the packages were counterfeit and most of the products were substantially damaged and unsuitable for resale.
A & H Tobacco contacted Biyant about the shipment. Biyant instructed A & H Tobacco to remit payment to Mr. Cinnamon for the cigarettes that could be sold and to return the damaged and counterfeit cigarettes to Mr. Cinnamon. A & H Tobacco remitted a check in the amount of $30,000 to “Mr. Cinnamon of Kansas” for the portion of the undamaged and noncounterfeit cigarettes. The check had the name “A & H Tobacco” printed at the top, and Hall signed the check on the line designated authorized signature. On the check stub attached to the payment, the name “A & H Tobacco” was printed at the top, and the name “A & H Tobacco, In” was printed at the bottom. A & H Tobacco returned the damaged and counterfeit cigarettes to Mr. Cinnamon. However, Mr. Cinnamon refused delivery and the cigarettes were returned to A & H Tobacco.
On February 26, 2007, Mr. Cinnamon filed a petition in the Sedgwick County District Court against David G. Hall d/b/a A & H Tobacco. By that time, the corporate entity of A & H Tobacco had been dissolved. In the petition, Mr. Cinnamon alleged Hall purchased tobacco products from Mr. Cinnamon for the agreed price of $196,350, but that Hall only paid $30,000. Therefore, Mr. Cinnamon requested judgment against Hall in the amount of $166,350, plus prejudgment and postjudgment interest.
Hall filed a motion to dismiss on the ground that the district court lacked personal jurisdiction over him. Both parties filed briefs, including affidavits from Aboud, Hall, Meade, and Bryant. Following a hearing, the district court granted Hall’s motion to dismiss, finding Hall had insufficient personal contacts with the state of Kansas to expose him to the jurisdiction of the Kansas courts. Mr. Cinnamon timely appeals.
On appeal, Mr. Cinnamon claims the district court erred by granting Hall’s motion to dismiss. Specifically, Mr. Cinnamon maintains that Hall had sufficient personal contacts with the state of Kansas to expose him to the jurisdiction of the Kansas courts.
The determination of whether a Kansas court has personal jurisdiction over a party involves a two-step analysis. First, the court decides if there is jurisdiction under the Kansas long arm statute, K.S.A. 2008 Supp. 60-308(b). The Kansas long arm statute is liberally construed to assert personal jurisdiction over nonresident defendants. Second, if the Kansas long arm statute is satisfied, the court inquires if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 894, 56 P.3d 829 (2002).
Since the Kansas long arm statute has generally been interpreted as broadly as possible to the limit of due process requirements, most of the cases focus on the second step of the analysis regarding due process. In some states, courts have explicitly reduced their analysis to a one-step approach: Is the exercise of jurisdiction constitutional? Kansas has not formally adopted such an approach. Leben and Hinderks, Long-Arm Jurisdiction in Kansas, 62 J.K.B.A. 27 (May 1993).
There are two broad types of personal jurisdiction which a state can exercise: specific and general. Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant’s actions within a foreign state. The Kansas long arm statute, K.S.A. 60-308(b), defines when Kansas exercises specific jurisdiction over a nonresident defendant. General jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose. Merriman v. Crompton Corp., 282 Kan. 433, Syl. ¶ 5, 146 P.3d 162 (2006).
Jurisdiction under the Kansas long arm statute
K.S.A. 2008 Supp. 60-308(b)(1) provides in relevant part:
“Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
(A) Transaction of any business within this state;
(E) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.”
Mr. Cinnamon argues that jurisdiction was proper under either of the above two subsections.
Before we can analyze Mr. Cinnamon’s claims under the long arm statute, it is necessary to clarify Hall’s relationship with A & H Tobacco and to determine whether Hall should be treated separately from A & H Tobacco, a corporate entity. For the most part, Mr. Cinnamon’s arguments in district court and on appeal assume that Hall and A & H Tobacco are one and the same. However, A & H Tobacco was an active corporation in good standing in Kentucky at the time of the business transaction in question in the spring of 2003. The corporation was subsequently dissolved and Mr. Cinnamon brings this lawsuit against Hall in his individual capacity. This distinction is significant as it relates to the question of personal jurisdiction.
The doctrine of alter ego is used to impose liability on an individual who uses a corporation merely as an instrumentality to conduct his or her own personal business. Such liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under the alter ego doctrine, the court may disregard the corporate entity and hold the individual responsible for his or her acts knowingly and intentionally done in the name of the corporation. The court should consider the following factors in determining whether it is justified to disregard the corporate entity:
" '(1) Undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud.’ ” Sampson v. Hunt, 233 Kan. 572, 579, 665 P.2d 743 (1983).
The sole ownership of a corporation by an individual is not sufficient in itself to treat the corporation as an alter ego of the owner and to justify a disregard of the corporate veil. Each case must rest upon its special facts. However, a court’s power to pierce the corporate veil is to be exercised reluctantly and cautiously. 233 Kan. at 579.
Here, Mr. Cinnamon has not articulated a piercing the corporate veil argument on appeal. Generally, issues not briefed by the appellant are deemed waived or abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Furthermore, the record on appeal contains information that Hall was the sole officer, registered agent, and incorporating director of A & H Tobacco, but it provides no other evidence relevant to any of the factors identified in Sampson. Given the reluctance of the courts to pierce the corporate veil, we conclude the activities of A & H Tobacco must be regarded as distinct from the activities of Hall for the purposes of determining personal jurisdiction over Hall in Kansas. Stated differently, whether A & H Tobacco submitted to the jurisdiction of the Kansas courts is not the issue in this case. The question we must resolve is whether Hall individually had sufficient personal contacts with the state of Kansas to expose him to the jurisdiction of the Kansas courts.
Transaction of any business
Under the long arm statute, Kansas courts have jurisdiction over any party who has engaged in the “[t]ransaction of any business” in Kansas. K.S.A. 2008 Supp. 60-308(b)(1)(A). The phrase “transaction of any business” is all encompassing and was used by the legislature in its broadest legal sense with the intent to authorize the personal service of summons upon a nonresident corporate or individual defendant to the full extent of the Due Process Clause. Woodring v. Hall, 200 Kan. 597, 606, 438 P.2d 135 (1968).
In White v. Goldthwaite, 204 Kan. 83, 88, 460 P.2d 578 (1969), the Kansas Supreme Court stated that when combined, the long arm statute and constitutional due process require three basic factors to coincide if jurisdiction is to be based on the transaction of business in Kansas:
“These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, tire benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation . . . .”
See also St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 264, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990) (citing and applying these three factors).
Here, the only two alleged acts that tie Hall to Kansas in terms of transacting business are (1) he sent a check to Kansas in partial payment for the goods and (2) he shipped goods that he did not want back to Kansas. The second act of shipping the goods back to Kansas may have been purposeful but it did not further Hall’s economic interests. In regard to the first act, Hall may have signed the check on behalf of A & H Tobacco, but any oral agreement in this case involved A & H Tobacco, not Hall personally.
In his sworn affidavit, Aboud alleged that “[o]n behalf of Mr. Cinnamon of Kansas, Inc., I agreed to sell to A & H Tobacco 11,220 cartons of Marlboro cigarettes at a price of $17.50 per carton.” Aboud further alleged that the transaction was arranged entirely through Biyant and the cigarettes were stored in a warehouse in Kansas City, Missouri. Aboud’s affidavit does not state that he ever dealt with or entered into a contract with Hall. Aboud’s affidavit does not even allege any contact with Meade. In an unsworn declaration, Aboud claims that he contacted Meade and that Meade, on behalf of A & H Tobacco, agreed to purchase cigarettes from Mr. Cinnamon. However, this language is not included in Aboud’s sworn affidavit.
Mr. Cinnamon shipped goods to A & H Tobacco in Kentucky, and Hall sent a check from A & H Tobacco for some of those goods to Kansas. If the partial payment constituted the transaction of any business, it was a transaction between Mr. Cinnamon and A & H Tobacco, not between Mr. Cinnamon and Hall. This could possibly be enough to grant Kansas jurisdiction over A & H Tobacco under the transacting any business subsection of the long arm statute when construed liberally. However, this does not render Hall subject to the Kansas long arm statute personally.
Partial performance of a contract
Mr. Cinnamon’s argument that Hall partially performed a contract in Kansas somewhat overlaps the argument that Hall transacted business in Kansas. In regard to K.S.A. 2008 Supp. 60-308(b)(1)(E), Mr. Cinnamon argues that Bryant acted as Hall’s agent to enter into an implied contract with Mr. Cinnamon for the purchase of the cigarettes. Mr. Cinnamon argues that the contract was partially performed in Kansas when Hall accepted the goods shipped from Kansas and sent a partial payment to Kansas for those goods.
Mr. Cinnamon cites Aspen Products, Inc. v. Global Distributors, Inc., 24 Kan. App. 2d 475, 947 P.2d 49 (1997). That case involved an oral agreement between the parties, wherein plaintiff agreed to sell and defendant agreed to buy a certain quantity of paper plates. The paper plates were to be manufactured in Kansas and delivered by plaintiff to defendant at its offices in Chicago. These same two parties had engaged in at least four separate contracts involving paper plates in past years. The plates were shipped from Kansas and defendant responded by sending a partial payment to plaintiff s home office in Kansas. Plaintiff sued defendant for the unpaid balance and the district court dismissed, concluding that plaintiff had not established long arm jurisdiction over the nonresident corporate defendant. 24 Kan. App. 2d at 475-76.
On appeal, this court reversed and held that the Kansas courts had jurisdiction over the nonresident corporate defendant based on partial performance of a contract for two reasons: (1) The paper plates ordered by defendant were manufactured in Kansas for delivery to defendant on the contract in question and (2) defendant made a partial payment on the agreement between the parties for the purchase of the paper plates. 24 Kan. App. 2d at 478.
Aspen Products, Inc. is distinguishable from the case at bar. In Aspen Products, Inc., the paper plates were manufactured in Kansas. Here, the cigarettes were stored in Kansas City, Missouri. Aspen Products, Inc. does not support Mr. Cinnamon’s contention that a partial payment to Kansas is sufficient by itself to establish jurisdiction pursuant to K.S.A. 2008 Supp. 60-308(b)(1)(E).
Federal courts have found that the nonresident’s payment of funds to the Kansas resident’s office can constitute partial performance of a contract within Kansas when payment in Kansas is a term of the contract. Slawson v. Hair, 716 F. Supp. 1373, 1376 (D. Kan. 1989); see also Continental American Corp. v. Camera Controls Corp., 692 F.2d 1309, 1312 (10th Cir. 1982) (finding jurisdiction where partial payments were sent to Kansas and goods were manufactured in Kansas); Rusty Eck Ford-Mercury Corp. of Leavenworth v. Am. Custom Coachworks, Ltd., 184 F. Supp. 2d 1138, 1141 (D. Kan. 2002) (long arm jurisdiction for partial performance of a contract where plaintiff resided in Kansas and contract required that defendants make payments to plaintiff s offices in Kansas); Carrothers Const. Co., Inc. v. Quality Service and Supply, Inc., 586 F. Supp. 134, 136 (D. Kan. 1984) (finding jurisdiction where terms of the contract required invoice be sent to Kansas for payment and nonresident defendant corresponded with Kansas office at least 19 times).
These federal cases are all distinguishable from the case at bar. In each federal case, the goods were either manufactured in Kansas or payment in Kansas was a term of the contract. Here, there was no evidence that the goods were manufactured in Kansas; instead, the goods were stored in Missouri. There was no written contract between the parties and no evidence that payment in Kansas was a term of the agreement. Upon receipt of the goods, Hall inquired of Bryant where he should send payment and the cigarettes that he did not want. Bryant responded that he should send the payment and the unused goods to Mr. Cinnamon in Kansas. The partial payment was in the form of a check with the name “A & H Tobacco” printed at the top, and the funds were not drawn from any personal account owned by Hall. We conclude Hall’s partial payment for the cigarettes on behalf of A & H Tobacco does not render him subject to Kansas jurisdiction under subsection (b)(1)(E) of the long arm statute.
Due process
Even if Hall’s contacts with Kansas satisfied one of the subsections of the Kansas long arm statute, Mr. Cinnamon would still have to make a prima facie showing that Hall’s contacts satisfied the International Shoe Co. due process test. See Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945). The Kansas Supreme Court summarized the International Shoe Co. test in Merriman, 282 Kan. 433, Syl. ¶ 15:
“When specific jurisdiction is asserted under the Kansas long arm statute, K.S.A. 60-308(b), due process requires that the nonresident defendant have certain minimum contacts with the forum in order for the exercise of jurisdiction to be constitutional. In considering whether the corporation’s minimum contacts meet this standard, courts should consider the quality and nature of the defendant’s activity in determining whether it is reasonable and fair to require defense in the forum, rendering jurisdiction consistent with traditional notions of fair play and substantial justice. Due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.”
A plaintiff s unilateral activities in the forum state cannot be used to create jurisdiction over the defendant. Instead, it is essential that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state thereby invoking the benefits and protections of its laws. The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. 282 Kan. 433, Syl. ¶ 18.
Here, there was no evidence that Hall personally negotiated with Mr. Cinnamon. Hall made no contact with Kansas either in person or through telephone, e-mail, or fax. He did not purposefully avail himself of the benefits and protections of Kansas laws sufficient to subject himself to personal jurisdiction under the minimum contacts test set forth in International Shoe Co. Therefore, even if Mr. Cinnamon could make a prima facie showing that Hall’s contacts with Kansas satisfied one of the subsections of the long arm statute, he-would not be able to show that Hall had sufficient contacts with Kansas to pass the second step of the test and satisfy the due process requirements.
We conclude the district court did not err in determining that Hall had insufficient personal contacts with the state of Kansas to expose him to the jurisdiction of the Kansas courts. Accordingly, the district court did not err in granting Hall’s motion to dismiss for lack of personal jurisdiction.
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Opinion by
Simpson, C.:
The question of practice, presented by the record, first claims our attention. It affirmatively appears that, at the conclusion of the trial, the plaintiffs in error were allowed until the 1st day of April, 1885, within which to make and serve a case for the supreme court, and the defendant in error to have ten days thereafter to serve suggestion of amendments thereto. The case-made was served and acknowledgment of service -indorsed on the 3d day of March. The case-made with amendments suggested was presented to the judge of the district court, and settled and signed by him on the 7th day of May, in presence of the attorneys of record on both sides. On the 9th day of May the plaintiffs in error served notice on the attorneys of the defendant in error that application would be made on the 12th day of May to have corrected the certificate of the judge to the case-made. On that day both sides appeared before the judge, and the defendant in error objected to the correction of the certificate, for the reasons: (1) That said case-made, having already been settled and signed, and ordered to be attested by the clerk as a case-made for the supreme court, the said judge has no jurisdiction to correct, alter and amend the same; (2) because it is not true that said case-made contains all the evidence. At the same time the defendant in error demanded in writing of the attorneys of the plaintiffs in error that the case-made be immediately filed with the clerk, and that he attest the same, and attach the seal of the court thereto. The judge granted the request of the plaintiffs in error, and found that the case-made does contain all the evidence in said case, and certified accordingly; to all of which the defendant in error duly excepted.
I. It is claimed by the defendant in error that the additional certificate of the judge attached to the case-made on the 12th day of May is without authority of law; that all control over the record, and all power to alter, amend and correct it ceased on the 7th day of May, when he settled and signed the case-made. Numerous decisions of this court, commencing with the case of Bartlett v. Feeney, 11 Kas. 593, 602, and ending with that of Wilson v. Janes, 29 Kas. 233, 245, are cited to sustain this position. The theory of these cases is, that after the judge has certified the case-made, it passes beyond his control and cannot thereafter x J be amended, altered or changed by any order of-his. In this case, some days subsequent to the certification of the case-made, a supplemental statement was added to the certificate, to the effect that the case-made contains all the evidence. This statement should appear affirmatively in the record in every instance. In all cases in which this court is asked to determine whether there is sufficient evidence to sustain a verdict, or a finding, and all kindred questions, the record should show by an affirmative statement, or by such recitals as to make it apparent, that all the evidence is preserved in the record. It is better that this should be done in the body of the record, than in the certificate of the judge. The judge had no power to make the supplemental certificate of the 12th of May, and yet his action in that respect does no material injury to the defendant in error, from the fact that it is apparent from the recitals of the record that it does contain all the evidence given on the trial of the case. The record shows that the plaintiff introduced certain testimony and then rested. “ The defendant then offered testimony,” and, after the recitation of the evidence of several witnesses, comes the expression, “Defense rests.”
Plaintiff then has "Win. H. "Webster sworn, etc.: “Plaintiff rests.”
Defendant then offers in evidence, “and rests.” Plaintiff here desires to recall one witness: “the court refuses to open the case;” “plaintiff rests.” All these entries in the record, showing the regularity of the trial proceedings, are sufficient to indicate to our mind that the evidence is all contained in the record before us. (Dewey v. Linscott, 20 Kas. 684.)
II. Under our very liberal provisions respecting the amendment of pleadings, the district court had an undoubted right to make the amendment complained of. It was one that could not in its nature be very prejudicial to the rights of the plaintiffs in error. It was an almost immaterial question to them, whether Linseott owned the Bohart judgment absolutely, or whether it was assigned to him for the purpose of collection; in either case he could maintain the suit in his own name. It is not prejudicial to the rights of Lowell and Walker; they are not only purchasers pendente lite, but by reason of their relations to the plaintiffs in error they had knowledge of the circumstances under which these conveyances were made, and are not entitled to the favor and partiality which a court of equity always shows to an innocent purchaser.
III. This brings to us the real question of the case: What is the legal effect of the memorandum made on the 17th day of January, 1884, by Lewis and his wife and his children, and the bill of sale made on the 18th day of January, taking them all together, and construing them in the light of the evidence and surrounding circumstances ? The exact facts are that N. D. Lewis, a man sixty-three years of age, owning property which according to his own showing was in excess of his indebtedness, called his children together, made a statement to them of his financial condition, and then, in consideration of a promise by them to pay what he denominated his just debts, conveyed to them all his property, including his homestead, personal property and the sum of fifteen hundred dollars in money; and he did this at a time when suits were pending against him, that resulted in the rendition of these judgments represented by the defendant in error, there being no promise to pay these judgments in the obligation of the children, but these judgment creditors being carefully excluded in all these transactions.
We are called upon by the plaintiffs in error, the father and the children, to legalize the attempt to avoid the payment of these judgments. It matters not what may the legal characteristics of these transactions, whether the conveyances are assignments for the benefit of creditors, and void as to the defendant in error because not in compliance with our statutes, or whether they created a trust in favor of the creditors whose debts were scheduled, or whether they are void as against creditors upon their face, and without the aid of any extrinsic evidence showing that the transaction was fraudulent per se: their legal effect, if permitted to stand, would be that the acts and conduct of the debtor would necessarily result in defrauding the creditor who instituted this action. No view can be taken nor any construction given the memorandum and conveyances, with the accompanying acts and deeds of the father and children, consistent with the rights of the creditors, and with the duty and obligation of Lewis to pay his just debts. The property of the father was a fund out of which all his just-debts must be first paid, before gifts, advancements or good bargains could result to the advantage of his children. The knowledge of the children, who are the grantees in the conveyances, and are to be the recipients]of valuable property rightfully subjected to the payment of the grantor’s debts, is abundantly shown in the record. In fact, taking all the circumstances together with the evidence, it is impossible to avoid the conclusion that the children willingly aided the father in the attempt to so cover the property that it could not be subjected to the payment of the judgments sought to be enforced against it.
IV. It is said that the eighth finding of fact by the trial court is not sustained by the evidence, and will not support the first conclusion of law. In the first place, the written memorandum and the conveyances, being in evidence, what their legal effect is, was a question for the court. The plaintiffs in error having reduced their transactions to writing, and signed the memorandum, and having executed and received the conveyances, their part of the transaction was evidenced by the writing; and the court had the right, and discharged only its duty, by determining the legal effect of these writings; and as we have practically stated heretofore in this opinion, these of themselves are sufficient to authorize the finding of fact, and compel the conclusion of law. We do not believe that any disinterested person can read the testimony of the plaintiffs in error without being irresistibly led to the conclusion of fact as stated in the eighth finding. We are not disposed to consider in a technical spirit any of the questions arising on this record; we gather the facts from the whole record, and try, consistently with the rules governing such actions, to determine the abstract right in every suit. As a matter of fact, the record does not show a request for the separate findings of fact and conclusions of law. But we are bound to conclude that the trial court made such findings as appeared to be material to support the view taken. We have already said that the whole case is here; so that we can determine what was proven on the trial.
There are enough facts established by the testimony that all the children of N. D. Lewis, prior to and at the time of the making of the memorandum, and at the time of the execution and delivery of the conveyance's of the homestead and other real estate, and at the time of the transfer of the personal property of Lewis to his children, and at the time he placed in the hands of Locke, his son-in-law, the sum of fifteen him 'dred dollars, knew that the primary object of all these trans•actions was to prevent the payment by Lewis of the claims of • Linscott and Bohart. There ought to have been a finding of ■these facts — they were necessarily embraced in the judgment; but because there is no special finding to this effect, this case should not be reversed and greater injustice done. There are findings enough to support the judgment, and these findings of themselves are sufficient to justify the legal conclusions as stated in the record. It is true that a debtor can prefer his creditor, and pay him to the exclusion of other creditors ; but it is not true, and never was, that under the pretense of a sale a debtor can convey all his property to his children, who are not creditors, and thus prevent the application of the proceeds of a judicial sale of his property to the payment of his debts. When a man largely indebted conveys all his real and personal property to his children, and adds to this a large sum of money, it requires very strong proof to disabuse the mind of a natural inclination to conclude that the transaction was intended to defraud creditors. In this case all the inferences from the facts and every presumption of the law are against the plaintiffs in error, because the transaction in all its parts and bearings is an unusual one. It is rare indeed that a man of the age of N. D. Lewis would voluntarily give to his children all his available property and ready money at a time of life when more than at any other he needed it most, and when according to their own showing they were all reasonably well started in life. There can in the nature of things bo but one explanation for such a transaction, and that is his desire to avoid the payment of the Linscott and Bohart judgments.
V. One other matter: We do not think there was any material error committed by the court below in refusing to permit Locke and others to answer the questions asked by the counsel for the plaintiffs in error respecting the memorandum and conveyances. The effort of counsel seems to have been to have the witnesses give their construction of this transaction. Locke identified the memorandum, said that he signed it, and that the others signed it. The defendants offered it in evidence; and then began a series of questions, the object of which was to have the witnesses state the reasons why this property was conveyed to the children by N. L. Lewis. They were asked if it was not intended as a gift, and other questions, the answers to which would indicate how they regarded the transaction. The court sustained objections to all such questions, because it appeared that the transaction was reduced to writing, signed by all the parties, and was offered by them as the primary proof of the facts attending the conveyances. The legal effect of the memorandum and conveyances, viewed as parts of one entire transaction, was a question for the court, and not one about which interested parties could be permitted to express opinions as to what they believed them to be, or how they regarded them. We are bound by every consideration to recommend that the judgment of the district court be affirmed.
By the Court; It is so ordered.
All the Justices concurring. | [
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Rees, J.;
Upon appeal from a Division of Vehicles driver’s license suspension order, the Shawnee County District Court affirmed the Division’s 120-day suspension of plaintiff Bruce W. Gonzales’ driver’s license for unreasonable refusal, on October 7, 1983, to submit to a chemical breath test. Gonzales appeals from the district court judgment.
At the threshold, the record reveals that upon Gonzales’ application the suspension of his driver’s license ordered by the Division was stayed pending the de novo hearing on appeal to the district court for which he petitioned. However, the record also reveals that the suspension affirmed by the district court was not stayed pending this appeal to us; that Gonzales lodged no motion for a stay of the suspension order following the district court adjudication; and that the 120-day suspension period has run. Thus, there is raised the question whether this appeal should be dismissed as moot.
Mootness is a rule of policy under which a court will not render opinions in matters where judgment could have no practical effect on a then existing controversy. State, ex rel., v. Engler, 181 Kan. 1040, 1042, 317 P.2d 432 (1957). The rule operates even in cases involving questions of great public interest. Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113 (1941). However, since mootness does not affect the court’s jurisdiction, the court will proceed to judgment whenever dismissal of an appeal adversely affects rights vital to the parties, even where its judgment will not be enforceable because of lapse of time or other changed circumstances. State, ex rel., v. Engler, 181 Kan. at 1042. See, e.g., Moore v. Smith, 160 Kan. 167, 160 P.2d 675 (1945). See also City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981).
Gonzales argues this appeal should not be dismissed because there now is of record the suspension of his driver’s license for unreasonable refusal to submit to a chemical breath test. We do not find that fact in and of itself prevents dismissal. Gonzales has not shown us, nor are we aware, of any situations in which a driver’s license suspension — unlike a DUI conviction or license revocation — on a driver’s record enhances or otherwise affects later rights, penalties, convictions or proceedings. We see no rights vital to the driver or any other interested party that may be adversely affected by dismissal. Cf. State v. Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976). Accordingly, we hold this appeal is moot and should be dismissed. See Graves v. State Board of Pharmacy, 188 Kan. 194, 362 P.2d 66 (1961).
Appeal dismissed. | [
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Rees, J.:
Petitioner Samuel Turner appeals the denial of his petition for a writ of habeas corpus (K.S.A. 60-1501), in which he alleged that the conditions surrounding his incarceration constitute cruel and unusual punishment. Specifically, petitioner contends that because of his segregated confinement in the Administrative Treatment and Segregation Unit (A&T), his opportunities for education, group religious services, employment services and vocational training and exercise are impermissibly restricted. We affirm.
The infliction of “cruel and unusual punishment” is constitutionally prohibited by both the United States Constitution and the Kansas Constitution. U. S. Const. amend. VIII; Kansas Const. Bill of Rights, § 9; Levier v. State, 209 Kan. 442, 445, 497 P.2d 265 (1972). This phrase has been interpreted as being punishment which “either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of crimes warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 348, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). Kansas has defined cruel and unusual punishment as involving a deprivation which is inhumane, barbarous, or shocking to the conscience. State v. Rouse, 229 Kan. 600, 605, 629 P.2d 167 (1981).
Segregated confinement, in itself, does not constitute cruel and unusual punishment. See Levier v. State, 209 Kan. 442; Annot., 51 A.L.R.3d 163. Further, prison officials are vested with wide discretion and before courts will interfere with the administration of prisons, the treatment must be “of such a nature as to clearly infringe upon constitutional rights, be of such character or consequence as to shock general conscience or be intolerable in fundamental fairness.” 209 Kan. at 451. See also Wright v. Raines, 1 Kan. App. 2d 494, 499, 571 P.2d 26, rev. denied 222 Kan. 749 (1977), cert. denied 435 U.S. 933 (1978).
Petitioner argues that his confinement in a building without windows constitutes cruel and unusual punishment. It has been held that the rights of an inmate “include entitlement to adequate food, light, clothing, medical care and treatment., sanitary facilities, reasonable opportunity for physical exercise and protection against physical or psychological abuse or unnecessary indignity.” (Emphasis added.) Levier v. State, 209 Kan. at 448. Adequate light is not, however, synonymous with outside light, or windows. The denial of a light bulb in an inmate’s cell has been held not to constitute cruel and unusual punishment. State v. Rouse, 229 Kan. at 605.
We therefore hold that petitioner’s confinement in a building which lacks windows is not of the character which would shock the general conscience or be intolerable in fundamental fairness under the standard set out in Levier v. State, 209 Kan. at 451.
Petitioner next complains that he has been denied group religious services. Relying on LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir. 1972), cert. denied 414 U.S. 878 (1973), petitioner argues that substantial justification must be given to prohibit him from participating in group religious services.
In LaReau v. MacDougall, the court held that denying unruly prisoners access to the chapel for Sunday Mass was not a violation of their First Amendment rights and that security reasons were substantial justification for denying group religious services. While it appears no Kansas case has addressed the question of whether such a preclusion constitutes cruel and unusual punishment, several other jurisdictions have held generally that it is not improper to preclude an inmate from group religious services. See Otey v. Best, 680 F.2d 1231 (8th Cir. 1982); Mawhinney v. Henderson, 542 F.2d 1 (2nd Cir. 1976); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. 1975). Petitioner has not been denied individual religious activity.
Further, in referring to a prisoner’s First Amendment protections while incarcerated, the United States Supreme Court repeated the familiar proposition that “ ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ ” Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974), quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948), and citing Cruz v. Beto, 405 U.S. 319, 321, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). In the present case, given petitioner’s conviction for an assault and battery on a staff member at the penitentiary, the trial court was correct in finding that the prison administration did not act arbitrarily in precluding petitioner from group religious services.
As for petitioner’s complaint about restricted vocational opportunities, under Levier v. State, 209 Kan. 442, courts will not review the prison administration’s decision to place petitioner in the A&T building as a result of assault and battery convictions. It is not intolerable to fundamental fairness, nor does it shock the general conscience, for the administration to preclude petitioner from vocational programs which are available only outside the A&T building. Likewise it is not cruel and unusual punishment to preclude petitioner from obtaining employment within the A&T building, given his conviction.
Further, K.S.A. 75-5211 provides the secretary of corrections with discretion in providing employment opportunities. Foster v. Maynard, 222 Kan. 506, 514, 565 P.2d 285 (1977). K.S.A. 75-5211 provides in relevant part: “(a) The secretary of corrections shall provide employment opportunities, work experiences, educational or vocational training for all inmates capable of benefiting therefrom.” (Emphasis added.) Such discretion is consistent “with the legislative intent to leave the internal management and operation of the state correctional system to the sound discretion of the Secretary.” Foster v. Maynard, 222 Kan. at 514. Petitioner’s complaint fails.
Petitioner contends next that his petition for a writ of habeas corpus should have been granted because he was denied educa tional and self-help programs. The State, however, presented uncontradicted evidence that petitioner had never requested such services or benefits and that, if he had, they would have been provided to him. We see no error in the trial court’s holding that the failure to provide unrequested educational services was not improper.
In conclusion, there is substantial competent evidence to uphold the district court’s decision. The conditions under which petitioner is incarcerated do not constitute cruel and unusual punishment when considered individually or when considered in the aggregate.
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Abbott, C.J.:
This is a direct appeal by the defendant, Larry Joe Fondren, from a felony conviction of aggravated burglary (K.S.A. 21-3716) and a misdemeanor conviction of theft (K.S.A. 1985 Supp. 21-3701[a]).
The charges against this 20-year-old defendant stem from a purse-snatching incident at the Washington Elementary School in Junction City on September 13, 1984, while school was in session.
The alleged theft occurred in an annex building of the school. The annex consists solely of classrooms and was occupied by approximately sixty students. The purse stolen was taken from the closet of a classroom in the annex building.
The defendant fled with the purse when he was confronted in the classroom by a teacher at the school. Several witnesses identified the defendant as the individual who ran from the school grounds. The purse and its contents were retrieved from an alley in the vicinity of the school where defendant had fled. The defendant was apprehended at a nearby residence and his clothing matched the description given by several witnesses. Defendant was positively identified at the scene by school personnel who had pursued him.
Defense counsel requested an instruction on simple burglary as a lesser included offense of aggravated burglary, the crime charged. The trial court refused the requested instruction.
After deliberating about 20 minutes, the jury returned guilty verdicts for misdemeanor theft and aggravated burglary.
The defendant’s first point on appeal is that the court erred in not instructing the jury on burglary. The defendant’s sole argument for an instruction on simple burglary is that the only unauthorized entry was of the classroom itself, and that room was not occupied by a human being. This evidence, defendant contends, entitles him to an instruction on simple burglary.
The trial court’s duty to instruct on lesser crimes was recently recited in State v. Galloway, 238 Kan. 415, Syl. ¶ 1, 710 P. 2d 1320 (1985): “The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. Following State v. Royal, 234 Kan. 218, Syl. ¶ 4, 670 P.2d 1337 (1983).”
The only distinction between the crime of burglary and the crime of aggravated burglary is the presence of a human being in the structure. Aggravated burglary contains the requirement that the place of the burglary be occupied by a human being at some point during the course of the burglary. See K.S.A. 21-3716 and K.S.A. 21-3715; State v. Reed, 8 Kan. App. 2d 615, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983).
The occupancy requirement of aggravated burglary has been considered in previous decisions of the Kansas courts. In State v. Lora, 213 Kan. 184, 195, 515 P.2d 1086 (1973), an aggravated burglary conviction was upheld despite the fact that the house was unoccupied when the defendant entered. The owners of the house returned while defendant was in the residence. The occupancy requirement is satisfied so long as there are human beings present when the ulterior felony or theft is committed. See also State v. Reed, 8 Kan. App. 2d 615, which held that the crime of aggravated burglary occurs whenever a human being is present in the building during the course of the burglary. It is irrelevant at what point in time the human being is present so long as the presence is sometime during the course of the burglary. And as observed in the notes to PIK Crim 2d 59.18: “When a person enters the premises after the burglary has commenced but before the defendant has left the premises, the offense constitutes aggravated burglary.”
Moreover, it has been held that the burglar need not know that someone else is present in the structure entered, nor must he intend to enter an occupied structure to be guilty of aggravated burglary. Knowledge by the accused of the presence of a human being is not required in order to be guilty of the crime of aggravated burglary. State v. Price, 215 Kan. 718, 721, 529 P.2d 85 (1974). In fact, a burglar may enter and leave the structure without ever realizing human beings were present. See State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976) (owners of burglarized house were asleep upstairs when defendant burglarized the house).
None of the foregoing authorities suggest that the presence of the human being must be confined to that area of the structure where the burglar is committing the theft.
In addition, the evidence is undisputed that a teacher at the school interrupted and confronted defendant during the crime. The teacher’s subsequent presence in the classroom, which was previously unoccupied, standing alone, established the presence of a human being and elevated the offense to aggravated burglary.
The unexpected confrontational situation between the de fendant and the teacher is precisely what the more serious offense of aggravated burglary is designed to protect against. This court noted in State v. Reed, 8 Kan. App. 2d at 616-17:
“The purpose behind the aggravated burglary statute is to describe a more serious offense than simple burglary where there is the possibility of contact between the victim and the burglar and the accompanying potential for a crime against the person to occur. This danger is just as great regardless of when during the burglary the victim comes to be in the building. . . . Thus, neither the knowledge nor the conduct of the burglar elevates his offense to aggravated burglary; rather, the severity of the crime depends upon the mere presence or absence of any human being in the same structure.”
In sum, the evidence is undisputed that a human being was present in the building. Hence, the evidence would only indicate the offense of aggravated burglary. There being no evidence upon which defendant could reasonably be convicted of simple burglary, he was not entitled to the requested instruction. The trial court did not err in refusing defendant’s request.
The defendant next challenges the use of the preliminary hearing transcript of the testimony of Alvin Ferguson, the school principal and a prosecution witness. He contends use of the absent witness’s prior testimony violates his right of confrontation under the Sixth Amendment.
The State moved to use the preliminary hearing transcript of Ferguson’s testimony on the day of trial due to Ferguson’s illness. Ferguson, who had been subpoenaed, suffered a heart attack the week before trial. Defense counsel does not contend otherwise. The trial court admitted the prior testimony of Ferguson over defendant’s objection. The defendant was present at the preliminary hearing on October 5, 1984, and his counsel cross-examined Ferguson. Kansas appellate courts have permitted the use of an absent witness’s prior testimony from a preliminary hearing wherein the defendant was afforded the opportunity to cross-examine the witness in the prior proceeding. See, e.g., State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979); State v. Watie, Heard and Heard, 223 Kan. 337, 574 P.2d 1368 (1978); State v. Alderdice, 221 Kan. 684, 561 P.2d 845 (1977).
For purposes of the Sixth Amendment’s Confrontation Clause the test for “unavailability” is the “reasonable diligence” rule. The rule was stated in State v. Davis, 2 Kan. App. 2d 10, 12, 573 P.2d 1124 (1978):
“ ‘Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a “good faith effort” to obtain the witness’s presence at trial (Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177, Also, see K.S.A. 60-459[g]).’ ”
Finally, it should be noted that the finding of “unavailability” by the trial courtis a discretionary determination. State v. Watie, Heard and Heard, 223 Kan. at 341; State v. Steward, 219 Kan. 256, 264, 547 P.2d 773 (1976).
In the instant case, the defendant’s sole objection to admissibility of the preliminary hearing transcript is that it denied defendant’s right to confront the witness, Ferguson, at trial. Defendant essentially asserts that the cross-examination afforded at the preliminary hearing was insufficient. According to defendant’s view, the prosecution should have requested a continuance until the witness was available in lieu of using the transcript, and the failure to do so was not the exercise of “reasonable diligence” to procure Ferguson’s attendance at trial.
The continuance argument is without merit. The State was not required to request a continuance. See State v. Watie, Heard and Heard, 223 Kan. at 341-42. Moreover, the granting of a continuance is a matter within the trial court’s discretion. A pertinent consideration in granting a continuance is the materiality and importance of the probable testimony. In light of the numerous State witnesses who consistently described the defendant and identified him at the time of his apprehension, Ferguson’s testimony is not that critical on a single point. Moreover, the defendant did not object in the trial court that the State had not satisfactorily established Ferguson’s illness. By admitting the preliminary hearing testimony, the trial court found Ferguson to be an unavailable witness. See State v. Staab, 230 Kan. 329, 333-336, 635 P.2d 257 (1981).
Finally, the defendant maintains that the cross-examination of the absent witness afforded at preliminary hearing was insufficient to satisfy his right to confront witnesses because the incentive to cross-examine at preliminary hearing differs from that at trial. Defendant, however, was not significantly limited in any way in the scope or nature of cross-examination. In Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the United States Supreme Court recognized that in addition to unavailability of the witness, the hearsay offered (preliminary hearing testimony) must bear “indicia of reliability.” The court indicated that “reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” And, drawing from California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970), the court noted guarantees of trustworthiness exist in the accouterments of the preliminary hearing itself. Ohio v. Roberts, 448 U.S. at 73. The confrontation clause does not require an inquiry into the “effectiveness” of defense counsel’s cross-examination of the witness at the preliminary hearing. Ohio v Roberts, 448 U.S. at 73 n.12.
It would have been preferable, and the trial court should have required that the State call the witness’s physician to give sworn testimony of the witness’s ability to participate in a trial. The record contains only the assertions of the prosecutor. However, defense counsel did not contest the witness’s physical condition. For all practical purposes, the witness’s illness and unavailability was conceded. Thus, the question of the witness’s unavailability was waived for purposes of appeal. See State v. Staab, 230 Kan. at 336. Defendant’s sole contention pertains to the State’s failure to request a continuance until the witness was well enough to appear at trial. As discussed previously, there was no error in this regard. The preliminary hearing testimony of Ferguson, an unavailable witness, was properly admitted into evidence.
The defendant next argues the element of an “unauthorized entry” into the school building has not been established by the evidence. Defendant’s argument that he did not lack authority to enter the school is premised on the public character of the building. In short, defendant contends that one cannot commit a burglary or aggravated burglary by entering a public building during its regular hours, because such an entry is not unauthorized. No authority is cited by defendant to support this position.
Kansas’ burglary statutes make no distinction based on the character of the premises. State v. Reed, 8 Kan. App. 2d at 617. Both burglary and aggravated burglary may be committed in “any building,” provided the other elements of the crime are present. See K.S.A. 21-3715, K.S.A. 21-3716.
In the instant case, the State presented evidence in the form of the school principal’s testimony, which was uncontradicted by the defendant, that the defendant had no authority or business in the school. Neither defendant nor any of his family members were currently enrolled at the school. Moreover, the defendant, as a former student at the school, was aware of the policy of reporting to the office upon entering the building. In short, the State’s witness directly testified that defendant did not have authority, express or implied, to enter the school.
The defendant’s argument, distinguished upon the character of the building entered, compels the conclusion that any entry into a public building is lawful, regardless of the purpose for which an individual enters. This would particularly be the case where the entry occurs during normal business hours when the building, wholly or in part, is open to the public. This contention is premised upon the rationale that buildings open to the public impliedly authorize, invite or give consent to the public to enter.
The view taken in some jurisdictions links the authority to enter a public building with the purpose or business for which the public building is held open. That is, an entry is impliedly authorized only to the extent it is consistent with the purpose of or business transacted in the building. See, e.g., People v. Bozeman, 624 P.2d 916 (Colo. App. 1980); State v. Adams, 94 Nev. 503, 581 P.2d 868 (1978). Accord People v. Deptula, 58 Cal. 2d 225, 373 P.2d 430 (1962); State v. Embree, 130 Ariz. 64, 633 P.2d 1057 (Ariz. App. 1981). We believe this approach is more sound.
While the Kansas burglary statutes maké no distinction between private and public buildings, the defendant’s public building argument must fail for other reasons. It is true that school buildings have been held to be public buildings. However, those interpretations have not arisen in the context of the applicability of a criminal statute. A New York decision is instructive. In People v. Martinez, 43 Misc. 2d 94, 250 N.Y.S.2d 28 (1964), four defendants were prosecuted for unlawful intrusion upon real property (criminal trespass). The defendants had entered the police headquarters building to see the commissioner regarding allegations of police brutality. They sat down on the floor of a public corridor and refused to leave after being ordered to do so. The four defended the criminal trespass charge by contending that the police headquarters was a public building and therefore they could not commit an unlawful intrusion. The court first acknowledged that the penal statute made no distinction between private and public lands. In any event, the court stated that a “so-called public building .... may not be used in a manner which suits the whim or caprice of every citizen.” 43 Misc. 2d at 97. There is no blanket right to every citizen in his use of this type of property. Thus, the defendants could be charged with criminal trespass.
Finally, the characteristics of a school building, if it is considered a public building, are clearly distinguishable from other public buildings, such as a department store, the capitol, or an airline terminal. The general public is not invited onto the school premises for nonspecific, unrelated-to-school purposes. The only persons with reason or authorization to enter the school are school district personnel, students, teachers, perhaps a student’s family members, and others having implied or express authority to enter to carry out legitimate activities. There is no evidence in the record nor any contention by defendant that he was any of these individuals. See People v. Bozeman, 624 P.2d at 918-19. The school policy of obtaining permission to be on the school premises by reporting to the office upon entering a school is a common one, as testified to by the school principal.
In sum, there is ample evidence to establish the element of an entry without authority and support the aggravated burglary conviction. We would caution that the key to this case is the defendant’s knowingly entering the school without express or implied authority, with intent to commit a theft.
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Miller, J.:
This case involves an appeal by Charles W. Parker, Administrator of the Estate of Melvin Douglas, deceased, from a ruling by the district court that appellee Farmway Credit Union had the right to exhaust its security interest in certain personal property owned by the decedent at his death without the necessity of either filing a claim in the estate proceeding or filing an action to foreclose its security interest in the district court.
The facts giving rise to this appeal are not complicated. Prior to his death Melvin Douglas was indebted to the appellee, Farm-way Credit Union (Farmway). To secure the indebtedness, decedent and his wife, Virginia, executed financing statements, security agreements and mortgages on farm machinery and equipment, growing crops and livestock, and real estate. As has happened to many Kansas farmers, the Douglas operation fell upon hard times and decedent was in default on or before May 1, 1984, on all of his obligations to Farm way. A balance of $111,290.17 was outstanding at that time. Pursuant to its security agreement, Farmway had the right to effect peaceful self-help repossession of those items of personal property which served as collateral for the indebtedness.
Mr. and Mrs. Douglas realized they were unable to pay for their indebtedness and entered into an oral agreement with Farmway whereby the personal property collateral would be sold at public sale. Prior to the sale, Melvin died and his heirs thereafter followed through with the preexisting agreement with Farmway. The collateral was assembled by Farmway and a public sale was held on May 26, 1984. Written notice was given by Farm way ten (10) days in advance of the sale to the heirs of Melvin Douglas and to most of his creditors. Sales proceeds were applied to Melvin’s outstanding balance at Farmway.
On May 17, 1984, appellant Charles W. Parker (hereafter the administrator) filed a petition for administration of the Melvin Douglas estate and subsequently was named administrator.
Farmway also caused Melvin’s 1984 wheat crop to be harvested after notice to the administrator and caused certain cattle to be sold at the Beloit Livestock Auction. The proceeds of the sale of cattle were paid jointly to Farmway and another creditor.
After his appointment and prior to filing the instant declaratory judgment action on July 5, 1984, the administrator took no steps to halt the equipment sale, the wheat harvest, or the sale of cattle. No application was made for the appointment of a special administrator at the time of the filing of the May 17 petition for appointment. No injunctive relief was sought.
The case giving rise to this appeal was filed on July 5, 1984. The administrator sought a declaratory judgment that he had the sole right to the property of Melvin Douglas after the latter’s death. He further sought an order allowing the recovery of possession of the collateral which had been sold. His additional claim against the Secretary of Revenue, brought in the original action, was dismissed by the district court and does not make up part of this appeal.
Farmway filed a motion for summary judgment on July 17, 1984. On August 6,1984, the administrator filed his response and the district court sustained Farm way’s motion and granted summary judgment on August 14, 1984. In its ruling the trial court found that under the facts of this case Farmway had the right to exhaust its security in the manner that it did. The court found no conflict between the administrator’s right to possession of the decedent’s property under K.S.A. 1985 Supp. 59-1401 and Farmway’s right to self-help repossession.
The trial court’s ruling gives rise to the two issues raised by the administrator on appeal: (1) whether in light of the rights and duties imposed upon an administrator under 59-1401 a secured creditor has the right to take possession of and sell the property of a debtor after the death of the debtor, and (2) whether the motion for summary judgment was prematurely sustained by the trial court.
As to the first issue raised by the administrator, it is clear that, under ordinary circumstances, the administrator has the duty to marshal the assets of a decedent and the right to possession thereof. K.S.A. 1985 Supp. 59-1401 states in' pertinent part:
“The executor or administrator shall: (a) Have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children; (b) marshal all tangible personal property owned by a resident decedent located in the state of Kansas and all intangible personal property owned by a resident decedent wherever located, either directly or by ancillary administration; (c) take possession, within six months from the date of appointment, of all tangible personal property located in this state and, all intangible property wherever located . . . .”
It is also clear that under K.S.A. 84-9-503 a secured creditor has the right to peaceable self-help repossession upon default of a debtor. This may be done without the necessity of any judicial proceeding.
The administrator argues that self-help repossession as utilized by Farmway should not be allowed after the death of the debtor. He argues that the Probate Code controls what happens to a debtor’s property after his death and that under K.S.A. 59-1303 a creditor is required either to file a claim in the probate court or to foreclose its security interest in a district court proceeding. Farmway, on the other hand, argues that its self-help repossession of the collateral and the ultimate sale thereof is allowed by K.S.A. 59-1303, which gives a creditor the option of surrendering the security and filing a claim against the estate or exhausting its security.
In answering the question presented, it should be noted that the right of the administrator to the property of a decedent is not absolute. Rather, that right is affected by what the decedent provided for his property during his lifetime. In Hampson v. Stanfield, 152 Kan. 333, Syl., 103 P.2d 910 (1940), the court held that an administrator could not recover possession of property which had been contractually conveyed by a decedent during his lifetime. In In re Estate of Dahn, 204 Kan. 535, 540-41, 464 P.2d 238 (1970), a secured creditor took possession of a decedent debtor’s trailer and sold it after his death. The creditor was entitled to take possession upon default. The court held that the sale of the trailer in accordance with the contract was wholly within the purview of K.S.A. 59-1303 permitting a secured claimant to exhaust his security. The clear implication of Dahn is that a secured creditor need not foreclose its security interest in the district court in order to exhaust it.
In the case at bar, it is uncontroverted that Farm way had the right to possession of the collateral upon default by virtue of its security agreement with Melvin Douglas. It is further uncontroverted that Melvin and his wife and other heirs had agreed prior to his death that Farmway could take possession of and sell the collateral, and it is uncontroverted that the heirs continued to cooperate with Farm way after Melvin’s death in order to give effect to the oral agreement. Thus, we believe the trial court was correct in finding that Farm way had the contractual right to exhaust the security in the manner it did. In so finding, we do not answer the broader question of whether a creditor may use self-help repossession under the statute in a situation where there is no specific agreement allowing the secured party possession upon default.
The administrator also complains that the trial court erred in prematurely sustaining Farm way’s motion for summary judgment. He cites Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964 (1965), as support for the proposition that a motion for summary judgment should not be considered by a trial court until pretrial discovery has been completed. At oral argument we were advised that the administrator had not even begun discovery when the court granted summary judgment and that the administrator had never even had the opportunity to review the documents relating to decedent’s debt with Farmway including the security agreement.
We have no quarrel with the holding of Brick that ordinarily a motion for summary judgment should not be considered while pretrial discovery remains unfinished. The fact remains, however, that it was uncontroverted that Farm way had a security agreement with Melvin Douglas and, further, it was uncontroverted that there was an agreement prior to Melvin’s death whereby Farmway was allowed to dispose of the collateral in the manner that it did. Thus, there were no facts pertinent to the issue remaining to be discovered. Facts which remain uncontroverted after a response to a motion for summary judgment has been filed are deemed to be admitted. Rule 141, 235 Kan. cx. Farmway cites us to Gray v. Ray Gill, Frontier Industries Inc., 208 Kan. 95, Syl. ¶ 1, 490 P.2d 615 (1971), wherein it was held:
“When a party makes no suggestion to the trial court of any additional facts tending to support his position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case.”
In view of the uncontroverted facts, we have no hesitation in concluding that the trial court was faced with a question of law to determine, and that it promptly and properly made that determination.
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Benson, J.:
Chester W. Anderson appeals from a jury verdict assessing $12,239.94 in damages as a result of injuries sustained when his dog bit Douglas B. Miller.
On January 2, 1985, Miller, an investigator with the McPherson Police Department, responded to a report of an injured dog in front of a local convenience store. The dog, a large black Labrador retriever, had been hit by a vehicle but appeared to be calm. Miller placed the dog in the trunk of his police car, drove the dog to a veterinary clinic, and carried it into the examination room. As Miller lifted the dog onto the examination table, the dog’s left rear leg caught on the table. The dog, which had suffered a broken pelvis, reacted to the resulting pain by biting Miller’s nose, almost severing it from his face. The dog died the following day as a result of his injuries. Subsequently, Anderson was charged and pled guilty to allowing his dog to run at large in violation of a city ordinance.
On March 21,1985, Miller filed suit against Anderson, alleging that he suffered damages as a result of Anderson’s negligence in allowing his dog to run at large. At trial, the parties agreed that the dog did not have dangerous propensities. The jury assessed seventy percent of the fault to defendant, fourteen percent to plaintiff and sixteen percent to the City of McPherson. Plaintiff s damages were found to be $17,485.63, which left him a judgment of $12,239.94. Defendant appeals.
Defendant first contends that plaintiff did not state a claim upon which relief could be granted because he failed to demonstrate that the dog had vicious propensities which were known to its owner. This position is not inconsistent with Kansas law. In Henkel v. Jordan, 7 Kan. App. 2d 561, 644 P.2d 1348, rev. denied 231 Kan. 800 (1982), the court noted:
“Liability in animal cases, as in all negligence cases, is based on the ‘fault’ of the animal owner. If the animal is not vicious, or is not known to be vicious, its owner cannot reasonably be found blameworthy if the animal unexpectedly injures someone. Foreseeability of injury is an essential ingredient of negligence.” 7 Kan. App. 2d at 563.
However, the general rule was stated somewhat differently in Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961). “The defendants rely on the general rule of law that the owner of a domestic animal not naturally vicious is not liable for injury done by it when it is in a place where it has a right to be, unless it is known by the owner to be vicious. (McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 [1941].)” (Emphasis added.) 188 Kan. at 136. In the present case, the city ordinance made it clear that defendant’s dog had no “right” to be running loose in the streets. The fact that plaintiff s injury took place in the veterinary clinic and not on a city street does not seem sufficient to alter defendant’s liability.
The Gardner court’s recognition that even ordinarily gentle animals are likely to be dangerous under certain circumstances is particularly applicable to the case at hand. It is not unreasonable to assume that a dog allowed to wander in a city could become vicious with strangers or could be injured and become vicious in response to pain. We, therefore, conclude that an owner should realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and, since negligence is a question of fact for the jury, the trial court did not err in denying defendant’s motions and allowing the case to proceed to the jury.
Defendant next contends that violation of the city ordinance was not the proximate cause of plaintiff s injuries as a matter of law and that plaintiff s actions were an intervening and superseding cause which broke the chain of causation.
In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), the court noted that “negligence, contributory negligence and proximate cause are all issues to be determined by the jury. Popejoy Construction Co. v. Crist, 214 Kan. 704, Syl. ¶ 1, 522 P.2d 180 (1974); Portwood v. City of Leavenworth, 6 Kan. App. 2d 498, 502, 630 P.2d 162 (1981).” 232 Kan. at 27. The trial court properly instructed the jury regarding negligence, violation of duty, and intervening cause.
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Parks, J.:
Defendant Robert D. Ward appeals his bench trial conviction of making a false writing. K.S.A. 21-3711.
This case has been submitted to the court upon an agreed statement pursuant to Supreme Court Rule 3.05 (235 Kan. lxiv). The only issue raised in the agreed statement is: “Whether or not the statute Making a False Writing, K.S.A. 21-3711, is unconstitutional as being vague and indefinite and violates the defendant’s due process under Section 10 of the Kansas Bill of Rights and the 14th Amendment of the United States Constitution.” The constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, that should be done. State v. Rose, 234 Kan. 1044, 1045, 677 P.2d 1011 (1984). The test to determine whether a criminal statute is unconstitutionally vague is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by “common understanding and practice.” If a statute requires or forbids the doing of an act in terms so vague that persons of common intelligence must guess at its meaning, it is unconstitutional. State v. Rose, 234 Kan. at 1045.
K.S.A. 21-3711 provides:
“Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.”
Defendant argues that this statute fails to convey a sufficiently definite warning as to the conduct proscribed because the term “instrument” is so vague and ambiguous that persons of common intelligence must guess at its meaning. We disagree.
K.S.A. 21-3711 is one of three statutes which describe offenses in the handling of a “written instrument.” K.S.A. 1985 Supp. 21-3710 prohibits the forgery of a written instrument and K.S.A. 21-3712 proscribes the destruction of a written instrument with the intent to defraud. All three statutory provisions are supplemented by the general definitions stated in K.S.A. 21-3110, which includes the following definition of “written instrument”:
“ ‘Written instrument’ means any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.” K.S.A. 21-3110(25).
In light of this definition, we cannot say that the term “instrument” is vague. Moreover, we believe the entirety of the provision proscribing the making of a false writing to be clear and well within the understanding of persons of common intelligence. We note that in State v. Norris, 226 Kan. 90, 91-93, 595 P.2d 1110 (1979), the Supreme Court was faced with a challenge to the constitutionality of the forgery statute, K.S.A. 21-3710. Although this statute is considerably more complicated than K.S.A. 21-3711, it shares some common terminology with the false writing statute. The Court found the forgery statute to be sufficiently definite and we believe the logic of that opinion applies equally here. See also State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985).
Defendant also contends in his brief that the evidence is insufficient to support his conviction. However, the only issue raised by the agreed statement of facts is that of the constitutionality of K.S.A. 21-3711. Defendant is bound by his stipulation. Defendant is also responsible for furnishing a record showing reversible error. State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 (1981). The stipulation does not provide a basis for determining the sufficiency of the evidence.
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Meyer, J.
This is a divorce action brought by the appellee against the appellant, wherein the trial court ordered appellant, a retired member of the United States Marine Corps, to obtain and maintain in force his survivor benefit plan and make the annuity payable to appellee upon appellant’s death. This decision was not appealed, but appellant filed a 60-260(b) motion to set aside the court’s judgment as void. The district court denied appellant’s motion to set aside and he now appeals.
Appellee filed for divorce on January 23, 1983. Seeking an amicable resolution of the division of their property, the parties entered into a written property settlement agreement on June 27, 1983, the day of the final divorce hearing.
As part of the property settlement agreement, appellant agreed to pay appellee 50% of his armed forces retirement income. The evidence in the record is conflicting from this point on.
Appellee testified that the parties orally agreed the day of the final hearing that appellant would elect to receive his armed forces survivor benefit option and file the necessary documents so that appellee would receive the annuity therefrom should appellant predecease her.
Appellant denied ever having agreed to allow appellee to receive the annuity. However, the journal entry of divorce provides:
“That as part of the Property Settlement Agreement, the parties have agreed that each shall receive 50% of defendant’s Marine Corps Retirement pay, including 50% of any increases or decreases therein, for a period of twenty years, and that defendant will, if necessary, again elect the survivor benefit option so that plaintiff will continue to receive benefits in the event of defendants [sic] death.”
The journal entry reflects that the parties agreed that appellant would provide appellee with the annuity. However, the journal entry is the only writing evidencing the agreement.
On October 26, 1984, appellant filed a motion to void that part of the divorce decree requiring appellant to elect to provide appellee with the annuity. The district court denied the motion, but allowed appellant to file a motion for an evidentiary hearing on the matter. At this hearing, the district court again denied appellant’s motion to set aside the judgment.
Appellant contends the district court erred in refusing to set aside that part of the divorce decree requiring him to elect to provide his former spouse with a survivor benefit annuity. We believe the trial court incorrectly interpreted the federal legislation governing the matter and erred in refusing to set aside the judgment under K.S.A. 60-260(b)(4).
The grounds for relief of judgment are listed in K.S.A. 60-260(b). That statute provides, in part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.”
A judgment is void if the court that rendered it lacked personal or subject matter jurisdiction. Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976). A motion to set aside a void judgment may be made at any time. Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124, rev. denied 231 Kan. 799 (1982). Therefore, if the court lacked jurisdiction to require appellant to elect to provide his former spouse with an armed forces survivor benefit annuity, that part of the judgment should have been set aside. See, e.g., Barkley, 7 Kan. App. 2d at 627-28; Perry v. Perry, 5 Kan. App. 2d 636, 639, 623 P.2d 513 (1981).
The issue presented by this appeal is whether the trial court had the power, or subject matter jurisdiction, to order the appellant to elect to provide his former spouse with the survivor’s benefit annuity in the absence of a separate written agreement to that effect. Before discussing this issue, it is first appropriate to note that this issue is different from that presented by cases such as Grant v. Grant, 9 Kan. App. 2d 671, 685 P.2d 327 (1984), dealing with the division of military retirement pay at divorce. This case involves the election of the payee of annuities under the survivor benefit plan.
The treatment of the survivor benefit plan (SBP) annuities at divorce is governed by 10 U.S.C. § 1447 et seq. (1982). The applicable provisions of the statutory scheme include 10 U.S.C. § 1450(f)(3) (1982), which provides:
“Nothing in this chapter authorizes any court to order any person to elect under section 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such election.”
Additionally, 10 U.S.C. § 1448(b)(4) (1982) provides:
“Any person who elects under paragraph (1) or (2) to provide an annuity to a former spouse shall, at the time of making such election, provide the Secretary concerned with a written statement . . . setting forth whether the election is being made pursuant to a voluntary written agreement previously entered into by such person as a part of or incident to a proceeding of divorce, dissolution, annulment, or legal separation, and if so, whether such voluntary written agreement has been incorporated in or ratified or approved by a court order.”
Before a court has the authority to order a military retiree to elect to provide a former spouse with the survivor’s benefit annuity, the person must have voluntarily agreed in writing to make such an election. 10 U.S.C. § 1450(f)(3). The question thus arises whether there existed in this case a writing sufficient to comply with the provisions of 10 U.S.C. §§ 1448 and 1450.
The only writing evidencing the appellant’s agreement to provide his former spouse with the SBP annuity was the journal entry of divorce. In the journal entry, the court specifically found that “the parties have agreed that . . . defendant will, if necessary, again elect the survivor benefit option so that plaintiff will continue to receive benefits in the event of defendants [sic] death.” Was this writing the type of writing intended by Congress to satisfy the provisions of 10 U.S.C. §§ 1448 and 1450? This court does not believe so.
The federal scheme requires that a person’s election to provide an SBP annuity to a former spouse must be evidenced by a written agreement entered into voluntarily by the person as part of or incident to a divorce action. Further, the written agreement must be incorporated in, or ratified or approved by, a court order. 10 U.S.C. § 1448(b)(4). We believe the federal legislation requires a written agreement separate and apart from the journal entry of divorce. Our conclusion is based upon a plain reading of the applicable statutes. 10 U.S.C. § 1448(b)(4) details the procedure a retiree follows in electing to provide an SBP annuity to a former spouse. In the written statement presented to the secretary of the appropriate branch of the armed services, the retiree must state if the election is being made pursuant to a written agreement entered into voluntarily by the retiree. In addition, the retiree must state that if there is such a voluntary written agreement, whether that voluntary written agreement has been incorporated in, or ratified or approved by, a court order. The statute thus contemplates two writings: the voluntary written agreement in which the retiree elects to provide his or her former spouse with an SBP annuity and the divorce decree which incorporates or approves that agreement. We note further that this statute requires the agreement to be “previously entered into” by the parties. Also, it is apparent from 10 U.S.C. § 1450(f)(3) that the existence of a written voluntary agreement is a condition precedent to the court order requiring a person to elect to provide a former spouse with the annuity; the court cannot so order a person “unless such person has voluntarily agreed in writing to make such election.” 10 U.S.C. § 1450(f)(3). The appellant did not enter into any written agreement evidencing his consent to provide appellee with the annuity. He signed nothing that would indicate an intentional and voluntary relinquishment of his personal right to elect the beneficiary of the annuity. He testified that he never agreed in court to provide appellee with the annuity, although appellee disputes this assertion. The federal statute, in any event, requires a retiree to enter into a voluntary written agreement before a court may order the retiree to provide a former spouse with an annuity. Appellant never entered into such a written agreement, and the judge in the divorce action erred in ordering appellant to elect to provide appellee with the annuity in the absence of the written agreement.
Appellee argues that property settlement agreements need not be in writing for a court to find the existence of an agreement and divide the property accordingly. The appellee’s contention is correct insofar as it applies to the typical divorce action; there is no statutory requirement that a property settlement agreement be in writing. See K.S.A. 60-1610(b)(3); Rice v. Rice, 213 Kan. 800, Syl. ¶ 4, 518 P.2d 477 (1974); Alley v. Alley, 4 Kan. App. 2d 109, 111, 603 P.2d 215 (1979), rev. denied 227 Kan. 927 (1980). However, the above-mentioned federal statutes control the election of military annuities, not Kansas statutory or common law. If a former spouse is to receive the SBP annuity, it must be based upon an election made in compliance with the federal code. See Marriage of Williams, 39 Wash. App. 2d 224, 227, 692 P.2d 885 (1984). Congress appropriates the money for the annuity program and directs where the monies go. We are precluded from requiring election of a retiree’s SBP annuity unless, as provided by federal statute, the retiree has voluntarily entered into a written agreement separate and apart from a journal entry of divorce. No such written agreement existed here.
Because appellant did not voluntarily agree in writing to elect to provide appellee with the SBP annuity, the lower court acted outside its authority, or subject matter jurisdiction, by ordering appellant to elect to provide such an annuity to appellee. Therefore, that part of its decree ordering defendant to provide the SBP annuity is void and should have been set aside. K.S.A. 60-260(b)(4); Barkley, 7 Kan. App. 2d at 627-28.
Reversed and remanded with instructions to the district court to set aside that part of its order requiring appellant to elect to provide appellee with the survivor benefit plan annuity. | [
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Buchele, J.:
This action arises out of a claim against the estate of William B. Moe filed by Ida E. Turner, former housekeeper of the decedent.
Decedent died intestate on August 19, 1983. A petition for administration of his estate under the Kansas Simplified Estates Act (K.S.A. 59-3201 et seq.) was filed, and William W. Moe, son of the decedent and his only heir-at-law, was appointed as administrator of the estate.
Subsequent to the opening of this estate, Ida E. Turner filed a petition for allowance of claim against the estate seeking the sum of $225,978.17 as consideration “due and owing as of January 1, 1984 for services performed by said Ida E. Turner for William B. Moe for the period July, 1969 through May of 1983.” Additionally, she sought to recover the sum of $809.50 for the sale of certain items of personal property allegedly owned by her but sold by decedent in a farm sale held in July 1980, and for the return of some specific items of personal property.
Turner s claim was originally tried before the district magistrate. The district magistrate heard the testimony of twenty-three witnesses and received numerous exhibits into evidence. The magistrate denied Turner’s claim in its entirety. This decision was appealed to the district court. The only evidence presented to the district court was the trial transcript and exhibits from the hearing before the magistrate. The district court reversed the magistrate and found that the decedent orally promised to will certain property to Turner, and ordered specific performance of the contract by way of conveyance to Turner of a tract of land known as the “pig pen” and a sum of money equal to the sale price of another tract of land known as the “home place” to Turner. The administrator appeals this decision.
When a case is submitted to the district court on appeal from a district magistrate on the printed record, without oral testimony, it is the duty of the district court to reexamine that record and make its own findings of fact and conclusions of law. K.S.A. 59-2408. See generally In re Estate of Neis, 170 Kan. 254, 260, 225 P.2d 110 (1950).
On appeal from a decision of the district court on written and documentary evidence, the appellate court has the same opportunity to examine and consider the evidence as the trial court. Stith v. Williams, 227 Kan. 32, 605 P.2d 86 (1980); In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289 (1972). The facts of this case are as follows.
In September of 1969, Ida E. Turner, the appellee, was employed by one Albert “Cap” Moe, father of the decedent herein, to perform live-in housekeeping services. These services were performed at the home of Cap Moe, which was situated on an 80-acre farm known as the “home place."’
For performing the household services for Cap Moe, Turner received $20 per week. In September of 1969, Cap Moe died. Following his death, William B. Moe, the decedent herein, retained Turner to perform similar housekeeping chores at the same rate of pay.
From the period September 1969 through July 1980, Turner continued to perform housekeeping services at the home place for William B. Moe. Turner’s brother, Bud Herda, moved into the home place after Cap Moe’s death.
At the inception of Turner’s care for the decedent, he was 67 years of age and in fairly good physical and mental health. Between 1969 and July 1980, the physical condition of the decedent deteriorated. During this time he incurred several hospitalizations as a result of ulcers, strokes, an amputation of part of a foot and other medical ailments. As a result of the decedent’s worsening health he eventually became confined to a wheelchair.
Due to the decedent’s deteriorating health, he required more care and became unable to perform the necessary and daily chores associated with the operation of the home place, which were assumed by Turner and her brother. These chores included looking after and caring for cattle, pigs and fowl, mending fences, hauling grain and livestock to market, tending a garden, helping put up hay, and running errands. Neither Turner nor Herda were compensated for the farm duties. However, the decedent and Turner did share the profits from the hog-feeding operation from which Turner earned $1,000 to $1,500 per year.
Prior to November of 1976, Turner claims the decedent promised that if she would continue to perform the household duties and in addition take care of the farm, he would leave her the “home place” and an additional tract of land known as the “pig pen,” and see that she was “taken care of.” The decedent made this statement on more than one occasion prior to November of 1976.
In November of 1976, the decedent executed a Last Will and Testament which left to Turner the “home place,” the “pig pen,” and various other real and personal property, including the residue of the decedent’s estate. Turner was shown a copy of this will.
On February 6, 1978, the decedent executed a second will, which was almost identical to the first will with the exception of one small piece of property not relevant here. Turner was given a copy of this will. This second will was apparently destroyed sometime after January 8, 1980, when decedent obtained delivery of it from the scrivener.
On June 5, 1979, an altercation occurred between Turner and William W. Moe (Billy Moe), son of the decedent, relative to the care, or lack thereof, being rendered by Turner to the decedent. The parties’ versions of what actually happened are disparate. However, as a result of this confrontation, Turner and her brother left the home place at Billy Moe’s insistence. Turner went to Wichita to stay with her daughter, and remained there for about one week. She then returned to decedent’s home, after several requests from the decedent, and resumed her duties at the home place until it was sold in July 1980.
The June 1979 altercation between Turner and Billy Moe had to do with Turner’s drinking. On Thanksgiving Day, 1979, Turner burned the turkey and decedent was not fed dinner due to Turner’s drinking with her daughter and her brother. By January 1980, the decedent was so disenchanted with Turner’s drinking that he told at least two disinterested persons that he had asked Turner to straighten up her drinking, and that she wouldn’t do it, so he decided to sell the home place. Billy Moe felt Turner neglected caring for his father at least in part due to her drinking. Decedent’s dissatisfaction with Turner’s drinking and care was the impetus for his decision to sell the home place and move to town.
Before July 1,1980, decedent purchased a house for $6,000 for Turner to live in and placed the title in her name. Decedent moved into a house he previously owned about three blocks away. After the move to town in July 1980, decedent continued to pay Turner about $20 per week. Turner no longer provided continuous and total care for the decedent, but did assist him by daily .visits, taking him for rides, and doing laundry and miscellaneous household chores. She, of course, performed no work on the farm as it had been sold, and by this time the hog-feeding operation had ceased. After the move to town, Billy Moe assumed a greater role in his father’s care. He took him out for meals twice each day and assumed full responsibility for administering his father’s medications.
Appellant claims that Turner failed to produce evidence which is clear and convincing. The burden of proving a claim against a decedent’s estate rests with the claimant and must be established by clear and convincing evidence, whether the claimant seeks specific performance of an oral contract or recovery under a theory of quantum meruit. Jones v. Estate of Cooper, 216 Kan. 764, 533 P.2d 1273 (1975); In re Estate of Winters, 192 Kan. 518, 389 P.2d 818 (1964).
Speaking to the standard of proof when the basis for the claim is an oral contract with a person since deceased, the court in In re Estate of Shirk, 194 Kan 424, Syl. ¶ 2, 399 P.2d 850 (1965), said:
“The term ‘clear and convincing evidence’ means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.”
The courts have recognized that claims such as these are “inherently dangerous” because they offer a great temptation to set up fraudulent claims against the estates of deceased persons, and thus they have required clear and convincing evidence to establish the claim. See In re Estate of Shirk, 194 Kan. at 429. See also In re Estate of Billinger, 208 Kan. 327, 332, 491 P.2d 924 (1971). Although proof beyond a mere preponderance of the evidence is required .to establish the claim, every fact need not be proven beyond a reasonable doubt. Billinger, 208 Kan at 332; In re Estate of Wert, 165 Kan. 49, Syl. ¶ 3, 193 P.2d 253 (1948).
We have reviewed the record in this case and conclude that there is clear and convincing evidence to establish that the decedent did promise to will Turner the pig pen and the home place, in addition to paying her for housekeeping, if Turner would care for him and the farm until his death. This agreement is confirmed by the testimony of Turner, Bud Herda, and Mary Riley, Turner’s daughter. The existence of this agreement is further confirmed by the terms of the 1976 and 1978 wills, the testimony of Keith Allen, purchaser of the farm, and the testimony of Sam Sanderson, a neighbor.
Turner clearly expected more than her stipend as compensation. She did not return to the farm after the June 1979 altercation until after she had checked with an attorney, who confirmed with decedent’s lawyer that Turner would be taken care of. She was never told that decedent had destroyed his will. This evidence is sufficient to establish that Turner performed her services in reliance on the agreement. See Jones v. Estate of Cooper, 216 Kan. 764.
Appellant contends that it was error for the district court to grant specific performance of the oral contract when the petition for allowance of a claim, the arguments and briefs of Turner’s counsel show that the claim was being made under the theory of quantum meruit.
A review of the petition for allowance of a claim in this case shows the appellant was given notice of the facts giving rise to an action based on the theory of an oral contract to will. This pleading clearly gives notice that the claim was based on the promises of the decedent to leave Turner specific property.
Under the Kansas Code of Civil Procedure, the pleading of a precise cause of action is not required. The real function of pleading is to give notice, and in line with the concept of notice pleading, pleadings are given liberal construction under the code. K.S.A. 60-208; see 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-208 (1979). And it has long been held that a petition for allowance of demand in probate proceedings is to be liberally construed. See In re Estate of Ray, 180 Kan. 634, 306 P.2d 190 (1957). It was not error for the district court to render equitable relief that it deemed justified from the evidence. See Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862 (1977).
Turner filed her petition for allowance of demand on January 18,1984. Appellant contends that since the claim was filed more than three years after the home place was sold and Turner moved to town and ceased caring for the farm and the decedent, her claim is time barred by K.S.A. 60-512.
Generally, a cause of action accrues as soon as the right to maintain the action arises, i.e., when the plaintiff could have first filed and successfully prosecuted the action. Clark Jewelers v. Satterthwaite, 8 Kan. App. 2d 569, 662 P.2d 1301 (1983). It is the general rule applicable to oral personal services contracts that when a decedent promises to leave certain property at death to the claimant, but prior to death repudiates the contract or conveys the property to another, the promisee may elect to continue performance or be available for performance of the contract until the time of promisor’s death; and the statute of limitations runs not from the time of the anticipatory breach, but from the time fixed for performance by the defaulting party. In re Estate of Ray, 180 Kan. at 636; Heery v. Reed, 80 Kan. 380, 102 Pac. 846 (1909). See also Annot., 94 A.L.R. 455.
The Supreme Court has made exceptions to this rule. In Engelbrecht v. Herrington, 101 Kan. 720, 172 Pac. 715 (1917), the court found the statute of limitations had run on a claim by a son seeking to enforce an oral agreement with his father in which the father agreed to leave the son one-half of the property if the son would stay and work on the farm and help pay off the mortgage. The son fully performed his part of the agreement, but brought no action when his father sold the land. Instead, the son sought damages at the time of his father’s death. The court reasoned as follows:
“The contract being fully executed on the part of the plaintiff and performance on the part of his father being a legal impossibility, the contract was at an end and the rights of the plaintiff then fully accrued. The action of the father was more than a renunciation which the plaintiff at his option might or might not elect to treat as a breach of the contract .... There was no occasion or excuse to await the death of the plaintiff s father and mother, as performance was beyond the power of the father, and nothing that the plaintiff could do thereafter would revitalize the contract or enable him to obtain a share of the land that had been conveyed to a stranger. Whether he sought damages in lieu of the land or the value of his services on the quantum meruit, his cause of action had accrued when the conveyance was made, and from that time the statute of limitations was running against him.” 101 Kan. at 724.
In the case at bar, due to the sale of the farm the decedent could not perform his part of the contract to will the home place, and Turner could not perform her part of the contract to care for the farm and continue providing live-in housekeeping services for the defendant.
In continuous services contracts, the courts do not permit the promisor to force a renunciation on the promisee and set up a circumstance which renders full performance impossible. Heery, 80 Kan. at 385. On the other hand, claimant must carry the burden to show by clear and convincing evidence that she is entitled to recover under the contract. In order to meet this burden, persons claiming against a decedent’s estate must prove by clear and convincing evidence that, after the anticipatory breach by the decedent, they fully performed or continuously stood ready, willing, and able to perform their part of the contract. When neither party is capable of performing his or her part of a continuous services contract, it is at an end and the statute of limitations begins to run on claims arising out of the contract at that time.
After July 1, 1980, the parties lived separately and Turner was no longer primarily responsible for continuous and total care of the decedent. A significant amount of the responsibility for meals, medicine and general supervision was assumed by Billy Moe. Decedent’s decision to sell the farm was due to his dissatisfaction with Turner’s drinking and its interference with the care he received. This sale was not precipitated unilaterally, but in response to Turner’s voluntary actions. As a result of the move to town after the home place was sold, Turner was no longer needed to do the farm work which was an integral part of the parties’ agreement. The record does not show by clear and convincing evidence that Turner stood ready or was able to perform the services requested of her under the contract after July 1, 1980.
The record does not reflect a new agreement of the parties or that Turner made any objection when these circumstances were changed. Turner was continued on the salary which she had received in the past attributable to household work. In addition, she was provided a house of her own in which to live. These are substantial changes in the circumstances of both parties which indicate to us that this contract ended upon the sale of the farm.
We find no reason to extend the time for beginning the running of the statute of limitations beyond July 1,1980, under these facts. Any claim or cause of action Turner had could have been brought as of that date. Since Turner’s claims for specific performance of the oral contract or for value of services rendered arose on or before July 1, 1980, and were not filed until more than three years after the statute began to run, they are time barred.
The district magistrate correctly determined that the statute of limitations had barred Turner’s claim for personal property sold at the farm sale.
Finally, as to the three-year period preceding the filing of this claim, we find that Turner has not established a contract to receive more than she was paid, or that her services had a value greater than what she had been compensated.
The final issue raised in this appeal was whether the testimony of the rebuttal witnesses should have been considered. The district magistrate excluded testimony of four townspeople who testified Turner continued to provide services after July 1, 1980. The rule to be applied to rebuttal evidence is found in State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984), as follows:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony.”
In her case in chief, Turner testified that she continued to perform services for the decedent after July 1980 until July 1983. At that point the testimony of various townspeople to corroborate her assertion would have been cumulative. However, Billy Moe’s testimony was almost totally opposite. The testimony of witnesses who corroborated Turner’s version of the facts then became necessary to rebut or contradict Billy Moe’s testimony.
Since our review and that of the district court is made de novo, we need not concern ourselves with whether or not the magistrate abused his discretion in not admitting the evidence. We believe the proffered rebuttal testimony is admissible and have considered it in making this decision.
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Hill, J.:
In Kansas, the law allows a worker injured from repetitive use or cumulative trauma, to designate the date of his or her accident as the date on which the employee gives written notice to the employer of the injuiy. In this appeal, the employer, Westar Energy, Inc., argues that it should not have to pay benefits to its employee, Cory Saylor, because on the date of the accident in his case, Saylor was home recuperating from knee surgery and not working. Our Workers Compensation Act directs the elements of an accident are not to be construed in a strict or literal sense but rather in a manner designed to effectuate the purpose of the Act which is that an employer bears the expense of accidental injuiy. Therefore, we hold the Workers Compensation Board did not err by ruling the date of the accident was the day Saylor gave notice of injury to Westar. We affirm.
The case history reveals a chronic degenerative knee condition, which was aggravated by work.
Cory Saylor suffered from a degenerative condition in his left knee, which was aggravated by his job duties at Westar. In February 2006, Saylor s condition worsened to the point that he needed knee replacement surgery. After telling his supervisor that his knee injury was work-related, Saylor took leave from Westar under the Family Medical Leave Act. His last day at work was February 6, 2006. He had surgery the next day. While recovering from surgery, Saylor became aware that his injury could qualify under the Workers Compensation Act as an “accident.” Following up on that information, Saylor issued his notice of intent to file a workers compensation claim to Westar, which Westar received on March 28, 2006.
The administrative law judge (ALJ) found that Saylor’s knee injury qualified as an accident under the Workers Compensation Act. Based on the stipulation of the parties, the ALJ further found that Saylor’s date of injury for assessing compensation was March 28, 2006. Finally, the ALJ ruled that Westar was liable for all medical costs associated with Saylor’s knee replacement treatment. Westar appealed.
In a 3-2 concurring decision, the Workers Compensation Board upheld the ALJ’s rulings. Three of the Board members ruled the date of the accident was the day Saylor gave notice to Westar, March 28, 2006. Two of the Board members thought the date of Saylor’s accident should be his last day of work, February 6, 2006. The minority thought Saylor’s notice was timely because it fell within the 75-day time limit since Saylor had just cause to delay reporting the accident due to his ignorance of the workers compensation procedures. All of the Board concurred in the substantive result.
To us, Westar argues that Saylor could not have been injured on the job since he was actually at home recuperating from knee surgery on the date of the accident. The employer also contends Saylor did not give timely notice in order to preserve his workers compensation claim. Finally, Westar states that it should not be re sponsible for the medical bills associated with the knee replacement surgery since the procedure was not authorized. We will deal with the issues in that order.
We conclude Saylors injury arose in the course of his employment.
We note first that Westar does not challenge the Board’s factual findings that Saylor’s duties as a groundsman, truck driver, and cable splicer caused him to suffer a repetitive use injury to his left knee. Instead, Westar questions only die Board’s interpretation of K.S.A. 2008 Supp. 44-508(d). Because it was uncontroverted that Saylor was at home recovering from knee surgery on March 28, 2006, Westar claims Saylor could not have sustained an injury “in the course of’ his employment on that date. Therefore, Westar requests this court to adopt the interpretation of the Board’s minority that concluded Saylor’s date of accident was Saylor’s last day at work.
We pause to mention our standard of review. Interpretations of statutory provisions in the Workers Compensation Act are questions of law. Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference.. If there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. Casco v. Armour Swift-Eckrich, 283 Kan 508, 521, 154 P.3d 494 (2007). The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004). Obviously, Westar bears that burden here.
The pertinent statute here is K.S.A. 2008 Supp. 44-508(d). We examine three portions of that law. The first section provides that an accident “means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force.” K.S.A. 2008 Supp. 44-508(d). We note that in the next provision, the legislature has given guidance about the interpretation of this rule. The statute provides the “elements of an accident, as stated herein are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the Workers Compensation Act that the employer bear the expense of accidental injury to a worker caused by the employment.” K.S.A. 2008 Supp. 44-508(d).
The next provision of K.S.A. 2008 Supp. 44-508(d) sets out the rule concerning repetitive injuries:
“In cases where the accident occurs as a result of a series of events, repetitive use, cumulative traumas or microtraumas, the date of accident shall be the date the authorized physician taires the employee off work due to the condition or restricts the employee from performing the work which is the cause of the condition. In the event the worker is not taken off work or restricted as above described, then tire date of injury shall be the earliest of the following dates: (1) The date upon which the employee gives written notice to the employer of the injury; or (2) the date the condition is diagnosed as work related, provided such fact is communicated in writing to the injured worker. In cases where none of the above criteria are met, then the date of accident shall be determined by the administrative law judge based on all the evidence and circumstances; and in no event shall the date of accident be the date of, or the day before the regular hearing. Nothing in this subsection shall be construed to preclude a worker’s right to make a claim for aggravation of injuries under the workers compensation act.”
A review of the facts is useful here. On January 4,2006, referred by his family physician, Saylor visited Dr. Schurman who recommended that he undergo knee replacement surgery. Saylor alleged he then informed his new supervisor, Raymond Lara, of the surgery and of his belief that his job duties were causing his knee pain. Saylor, however, did not complete any paperwork indicating that fact. Instead, Saylor continued to work up through February 6, 2006.
On February 7, 2006, Saylor underwent knee replacement surgery. At the time of that surgery, Saylor was 53 years old. After his knee replacement, on February 24,2006, Saylor filled out the Family Medical Leave Application form requesting leave until April 3, 2006. On his Family Medical Leave Application form, Saylor marked that his knee replacement was not a work-related injury. At the time he marked this statement, Saylor later alleged he believed his injury to be work-related but was unaware of the process involving workers compensation claims. Due to this alleged unawareness, Saylor submitted all the medical bills related to his sur geiy and treatment of his left knee to his own health insurance carrier.
While at the hospital recovering, a journeyman from Westar informed Saylor that a fellow worker wanted to talk to Saylor. Saylor talked with the worker and discovered he could claim workers compensation benefits for his knee injuiy. Consequently, Saylor hired an attorney and in a letter dated March 27, 2006, Saylor provided written notice of intent to Westar, claiming:
“1) Payment of temporary total disability benefits through the time claimant is released by the physician.
"2) Authorized medical treatment.
“3) Payment of bills from treating physicians and referrals.”
On March 28, 2006, Westar received Saylor’s notice of intent. That same day, Saylor filed a claim under the Kansas Workers Compensation Act. In his application, Saylor asserted that (1) the date of his accident/disease was a “[sjeries through 2/6/06”; (2) the source of his accident/disease was “[rjepetitive use”; and (3) his injuiy involved his “[ljeft knee.” Westar is a self-insured employer. On April 4, 2006, Saylor’s attorney certified that “[sjeven (7) days have passed since the request for benefits and notice of intent were submitted, and benefits have either been denied or there has been no response to the request for benefits.” Therefore, Saylor filed his application for prehminary hearing accompanied with a copy of the notice of intent and his certification that the notice of intent was served on Westar.
On April 10, 2006, Saylor returned to light-duty work at Westar. On September 27, 2006, Dr. Schurman released Saylor to his previous job duties.
We give our view of the Act.
In order to address repetitive use injuries, the legislature in 2005 modified the definition of “accident” in the Workers Compensation Act. The old provision did not provide language dictating the date of injury for an “accident.” Instead, case law established a bright-line rule for identifying the date of injuiy in repetitive use cases as the last day worked prior to the hearing date. See, e.g., Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855, 857, 79 P.3d 1289 (2003).
When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006). Furthermore, “[w]hen a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be.” Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695 (2007); Casco, 283 Kan. 508, Syl. ¶ 6.
In this case, the 2005 addition to K.S.A. 2008 Supp. 44-508(d) creates the presumption that the legislature intended to change the date of injury for an “accident” from the bright-line rule of the last day worked. Therefore, giving effect to the express language in K.S.A. 2008 Supp. 44-508(d), which is plain and unambiguous, we find Saylor s date of injury to be March 28, 2006.
As the Board noted, the date of injury is “necessary in order to set the appropriate compensation rate and determine such issues as whether there was timely notice and timely written claim.” Westar argues that the majority’s view of the statute is illogical and absurd. We disagree. It appears the majority’s interpretation is reasonable and complies with the legislature’s caution that the elements of accident are not to be interpreted in a strict and literal sense. The Board’s interpretation promotes the purpose of the Workers Compensation Act and should be given deference.
The notice given by Saylor was timely.
The law states that to preserve a claimant’s claim under the Act, K.S.A. 44-520 requires notice to be given within 10 days after the date of the accident unless just cause exists to extend the reporting time to 75 days. Because we agree with the majority’s holding we hold that Saylor’s notice was given in a timely manner. Saylor gave notice on the day of the accident.
Westar is responsible for the medical expenses as the Board ruled.
Here, the Board relied upon K.S.A. 44-510j(h) in finding that Westar was responsible for medical costs associated with Saylor’s left knee replacement, even though Dr. Schurman was not authorized by Westar to perform the surgery. Westar disputes this ruling, arguing that it did not authorize Saylor s medical treatment prior to March 28, 2006. They make two arguments.
First, Westar alleges the evidence showed that Saylor did not notify Westar that his knee condition was work-related before his sjirgeiy. Second, Westar asserts that Saylor failed to make a request for Westar to pay his medical bills in accordance with K.S.A. 44-534a(a). Therefore, Westar claims it should only be responsible for $500 in unauthorized medical costs in accordance with K.S.A. 2008 Supp. 44-510h(b)(2).
.An.appellate court’s 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 evidence, which is a question of law. Casco, 283 Kan. at 514 (relying on K.S.A. 77-621[c]).
The statute, K.S.A. 2008 Supp. 44-510h(a) requires “the employer to provide the services of.a health care provider, and such medical, surgical and hospital treatment ... as may be reasonably necessary to cure and reheve the employee from the effects of the injury.” ‘Without application or approval, an employee may consult a, health care provider of the employee’s choice for the purpose of . . . treatment, but the employer shall only be hable for-the fees and charges of such health care provider up to a total amount of $500.” See K.S A. 2008 Supp. 44-510h(b)(2). But, if the employer has knowledge of the injury and refuses or neglects to reasonably provide the services of a health care provider, the employee may obtain medical treatment and the employer is hable for such expenses. K.S.A. 44-510j(h).
“When an employer’s insurance carrier or a self-insured employer disputes all or a portion of a bill for services rendered for the care and treatment of an employee under this act, the following provisions apply:
“(h) ... If the employer has knowledge of the injury and refuses or neglects to reasonably provide the services of a health care provider required by this act, the employee may provide the same for such employee, and the employer shall be hable for such expenses subject to the regulations adopted by the director.” (Emphasis added.) K.S.A. 44-510j(h).
Saylor testified that he informed his supervisor, Raymond Lara, that he needed a knee replacement surgery and that his knee injury was related to his job duties. Raymond Lara disputed Saylors testimony, stating that Saylor only informed him that he needed leave for knee surgery. Nevertheless, Saylor contradicted his own testimony when on his Family Medical Leave Application, Saylor asserted his knee injury was not work-related. However, Saylor justified this action, claiming that he lacked the knowledge on the process of reporting work-related injuries. Regardless, evidence was presented that Westar had provided Saylor with training about reporting work-related injuries. Based on this evidence, the Board found Saylor s testimony more credible than Raymond Lara and applied K.S.A. 44-510j(h), holding that Westar had knowledge of Saylor’s left knee injury and Saylor’s need for medical treatment but neglected to provide him with a health care provider.
Substantial evidence in a workers compensation case is evidence that possesses something of substance and relevant consequence' that induces the conclusion that the award is proper. It furnishes a basis of fact from which the issue raised can be reasonably resolved. Appellate courts review the evidence in the light most favorable to the prevailing party and do not reweigh competing evidence or assess credibility of the witnesses. Thus, even though other evidence in the record would have supported contrary findings, if supported by substantial evidence, the Board’s findings will be upheld. Graham, 284 Kan. at 553-54.
Viewing the evidence presented in the light most favorable to the prevailing party and declining to reweigh competing evidence or assess credibility of witnesses, this court should uphold the Board’s findings. Substantial competent evidence exists to show that prior to his surgery on February 7, 2006, Saylor notified Westar through his supervisor that his knee condition was work-related. After receiving this information, Raymond Lara did not follow up on this issue by reporting the injury, even though it can be assumed that he also attended the same work-related training as Saylor. Thus, by not following up on Saylor’s comments, which armed it with the knowledge of Saylor’s work-related injury to his left knee, Westar neglected to provide Saylor with medical treatment.
Westar’s second argument is also unpersuasive. K.S.A. 44-534a(a)(1) permits an employer or employee to seek a preliminary hearing regarding medical treatment and the payment of temporary total disability compensation before the issuance of a final award. Quandt v. IBP, 38 Kan. App. 2d 874, Syl. ¶ 1, 173 P.3d 1149 (2008). But, the record indicates that from Saylor’s date of injury of March 28, 2006, Saylor fully complied with K.S.A. 44-534a(a)(1). Thus, it appears that Westar is disputing the medical treatment that Saylor received prior to. his date of injury on the basis that Saylor “could . . . have easily delayed surgery until the workers compensation procedure was followed and a decision was made by the ALJ.” But Westar had knowledge of Saylor’s knee injury in Februaiy but neglected to provide him with medical treatment. Consequently, because K.S.A. 44-510j(h) applies, we uphold the Board’s findings on this matter.
Affirmed. | [
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Opinion by
Holt, C.:
Plaintiff in error, plaintiff below, filed his petition in the Barton district court, of which the following is a copy, (court and title omitted :)
“The plaintiff, Jacob Stauffer, complains of the defendants, Joseph Remick, James S. Dalziel, and Joshua Clayton and James Clayton, partners as Clayton & Clayton, saying: That on the 15th day of May, 1884, there was tried in the above court a cause entitled Joseph Remick v. Jacob Stauffer, and a verdict was found by the jury against said Jacob Stauffer for the sum of $88.75 and costs; that on the 16th day of May, 1884, an execution was issued out of said court upon a judgment rendered in favor of H. M. Kline and against said Joseph Remick, and that the sheriff, James S. Dalziel, in whose hands said execution was placed, not being able to find any property upon which to levy, presented said execution in favor of H. M. Kline and against said Joseph Remick to said Jacob Stauffer, who thereupon obtained by order of said execution creditor and owner of said judgment an indorsement on said execution, crediting the said sum. of $88.75; that after the said payment to the sheriff, the court entered judgment upon said verdict as found against said Jacob Stauffer and in favor of Joseph Remick for $88.75 and costs; that said Jacob Stauffer immediately paid said costs; that immediately after the entry of judgment.by said court, and after the said payment to the sheriff', the defendants, Joshua Clayton and James Clayton, entered an attorney’s lien upon said judgment, and procured from said Remick an assignment of said judgment to themselves; that said defendants have caused an execution to be issued and placed in the hands of the defendant, James S. Dalziel, sheriff of Barton county, Kansas, who will levy said.execution on the property of the said Jacob Stauffer, unless restrained by the order of this court. Plaintiff says that said judgment has been fully paid, and satisfied in the manner aforesaid. Therefore plaintiff prays this court to issue its order restraining the collection of said judgment and proceeding under said execution until the further order of this court, and that upon a final hearing of this cause a perpetual injunction be granted forever restraining the collection of said judgment and execution; and for such other and further relief as equity may require.”
The defendants below demurred to the petition because it did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer. Plaintiff excepted, and presents such ruling to this court for review. Plaintiff contends that the payment by Stauffer to the sheriff is authorized by § 486 of the civil code. That section reads as follows:
“After the issuing of execution against the property, any person indebted to a judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; the sheriff’s receipt shall be a sufficient discharge for the amount so paid, or directed to be credited by the judgment creditor on the execution.”
The first question which arises in this case is, whether Stauffer was indebted to Remick at the time the indorsement was made on the execution issued in the action of Kline v. Remick. It is not alleged in plaintiff’s petition that he was so indebted. It states a jury had found a verdict in Remick’s favor against him, but it is silent as to the cause of action upon which it was found. If it was upon a contract for liquidated damages, it would be a debt, not because of the verdict of the jury, but because of the liability on the contract. If the verdict was found in an action in tort, the verdict would not be a debt. A verdict on a cause of action resting in tort, does not convert the tort into a debt. It- must be merged into a judgment before it becomes a debt. (Freeman on Judgments, §167; Thayer v. Southwick, 8 Gray, 229.)
Where a petition is attacked by demurrer, for the reason that it does not state facts sufficient to constitute a cause of action, the rule is to construe the pleading against the pleader, on the ground that as he himself selects the language, he should make his meaning clear. (Draper v. Cowles, 27 Kas. 484.) The plaintiff does not state in his petition that Remick was indebted to him at the time of the indorsement; the simple statement is there was a verdict found against him. We cannot say whether it was in an action arising oh contract, or in tort. To hold it to be sufficient, we would be compelled to infer that the action was founded upon a contract. Under the rule of pleading above stated, we.are not justified in making such an inference.
Immediate^ after the rendition of the judgment, Clayton & Clayton filed their attorney’s lien upon said judgment, and procured an assignment from Remick. We think under the pleadings in this case, that they obtained a right to the judgment rendered against Stauffer. Of course if Remick in person had directed this payment of his judgment against Stauffer upon execution in favor of Kline against him, an entirely different question would have been presented from that we are now considering, but this indorsement was not made at his suggestion or by his consent. It may be fairly inferred that it was made without his knowledge, and that if he had known of it he would have protested. , .,
We think the ruling of the court was correct, and therefore recommend the affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Bukaty, J.:
Paul L. Davison appeals his conviction for the crime of removal of a theft detection device, in violation of K.S.A. 21-3764(d). He argues the district court clearly erred in instructing the jury on the elements of the offense. We agree.
The district court instructed the jury based on the recommended language in PIK Crim. 3d 59.67-B that was in effect at the time of trial. After the trial, that instruction was modified with some additional language. We conclude that the instruction given by the court, even though in line with the recommended PIK instruction at the time, was an improper statement of the law and erroneous. We further conclude there was a real possibility the jury would have returned a different verdict had the instruction been a correct statement of the law. We reverse and remand with instructions.
Before considering the merits of the appeal, we first must address the significance of the fact that Davison died shortly after filing the notice of appeal. The State argues that Davison s death has rendered his appeal moot and deprived this court of jurisdiction. Specifically, it argues that Davison’s death has rendered a retrial impossible and that addressing the merits of his challenge on appeal would not serve the public interest.
Whether this court has jurisdiction is a question of law. Our scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Kansas courts have repeatedly held that the death of a defendant does not abate his or her direct appeal as it is in the interest of the public that the issues raised on appeal be adjudicated on the merits. State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990); State v. Jones, 220 Kan. 136, Syl. ¶¶ 1-2, 551 P.2d 801 (1976); State v. Escalante, 35 Kan. App. 2d 381, 387-88, 130 P.3d 1111, rev. denied 282 Kan. 793 (2006). This is true despite the fact that a defendant’s death moots his or her sentence and renders impossible a new trial. Burnison, 247 Kan. at 32; Escalante, 35 Kan. App. 2d at 388. We have jurisdiction to address this appeal and will proceed to the merits of it.
We begin with the facts. The charges arose out of an incident at a Wal-Mart store when Steve Luken, an asset protection associate, observed Davison and Óshpuk Higgins placing a large quantity of DVDs into their cart. Luken began focusing on the two when he noticed they were selecting large quantities of DVDs without picking out specific titles, a common shoplifting tactic. Eventually, he observed Davison remove DVD discs from their packages and then put the discs in his pocket. The packages contained theft detection devices. Davison then left the empty DVD packages with the detection devices still in them on a shelf in another aisle.
The evidence conflicts as to exactly where Luken first confronted Davison. In any event, Luken approached him, identified himself as a Wal-Mart security employee, and took him to an office in the store. While there, Luken retrieved the stolen DVDs from Davison and calculated their value at $174.34.
The State charged Davison with one count of removal of a theft detection device, pursuant to K.S.A. 21-3764(d), and one count of theft under $1000, pursuant to K.S.A. 21-3701.
The case proceeded to trial, and Davison testified in his own defense. He admitted to stealing the DVDs and to removing the discs from their cases in order to facilitate an easier theft from the store. However, he denied knowledge that the DVD cases contained theft detection devices or that he intentionally removed the theft detection devices.
The jury found Davison guilty of both charges. Removal of a theft detection device is a severity level 9 nonperson felony, and misdemeanor theft is a class A nonperson misdemeanor. Davison received sentences of 12 months’ incarceration in the custody of the Secretary of Corrections for removal of a theft detection device and 12 months in the Shawnee County jail for misdemeanor theft. The district court ordered the sentences to run concurrently and granted probation for 12 months.
On appeal, Davison does not challenge the conviction of misdemeanor theft. He appeals only the conviction of removing the theft detection device and argues that the instruction given by the district court on the elements of the charge did not contain a reference to the specific intent required to establish a crime under K.S.A. 21-3764(d). That statute provides: “Unlawful removal of a theft detection device is intentionally removing the device from the merchandise prior to purchase.” In interpreting the provision, our Supreme Court defined “removal” as impairment or damage that causes “a loss of physical contact between the theft detection device and the merchandise” or a change in the position of the device “from a place on the merchandise to a place not on it.” State v. Armstrong, 276 Kan. 819, 824, 80 P.3d 378 (2003).
The instruction given by the district court on the elements of the charge read:
“The defendant is charged in Count No. 1 of the complaint with the crime of removal of a theft detection shielding device. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Wal-Mart owned merchandise equipped with a theft detection device;
“2. That the defendant, Paul L. Davison without the permission of the WalMart removed the theft detection prior to purchase; and
“3. That this act occurred on or about the 5th day of September, 2006, in Shawnee County, Kansas.”
As we stated, this instruction followed, with relevant factual insertions, the recommended instruction found in PIK Crim. 3d 59.67-B that was in effect at the time of trial.
The State responds that the trial court did not err in giving this instruction because it followed the PIK recommended instruction. Alternatively, the State argues that even if it was an incorrect statement of the law, it was not clearly erroneous and does not warrant a reversal.
Davison did not object to the instruction as given by the trial court or request a specific intent instruction. In such an instance, we apply a clearly erroneous standard in our review of the instructions. See K.S.A. 22-3413(3); State v. Copperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Instructions'are clearly erroneous only if the reviewing court “ ‘is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Before determining if the instruction in question here was “clearly erroneous,” we will first examine whether the instruction was erroneous at all. In other words, was it a correct statement of the law? We answer the question: No, it was not a correct statement of law and was erroneous.
The instruction contained no mention of any required intent on the part of the defendant. In essence, it informed the jury it need only find Davison removed the device and nothing more in order to find him guilty. It renders the crime one of strict liability even if Davison did not know of the device.
As we noted, the recommended instruction in PIK Crim. 3d 59.67-B from which the trial court instructed the jury was revised after Davison’s trial. It now reads, with the added amendments italicized:
“The defendant is charged with removal of a theft detection device. To establish this charge each of the following claims must be proved:
“1. That (name of owner) owned merchandise equipped with a theft detection device;
“2. That defendant, without the permission of (name of owner) intentionally removed the theft detection device prior to purchase;
“3. That the defendant removed the theft detection device with the intention of making theft of the merchandise easier; and
“4. That this act occurred on or about the_day of_,_in_ County, Kansas.” (Emphasis added.) PIK Crim. 3d 59.67-B (2007 Supp.).
Following this revised instruction is this comment: “In State v. Armstrong, 276 Kan. 819, 825-828, 80 P.3d 378 (2003), the court upheld the constitutionality of K.S.A. 21-3764(d) by adding a specific intent element.” Apparently, this revision of the PIK instruction came into being in response to Armstrong.
In Armstrong, our Supreme Court considered four consolidated appeals that challenged K.S.A. 21-3764(d) as being unconstitutionally vague. In order to uphold the statute, the court read into it an element of specific intent. 276 Kan. at 825-26. However, “[t]he use of the lone word "intentionally’ before the word "remove’ in subsection (d) requires only that the actor must commit a volitional act rather than an accidental one. [Citation omitted.]” 276 Kan. at 826. The defendant must commit the volitional act with criminal intent, a specific intent to facilitate a theft. 276 Kan. at 827-28.
The Armstrong court did not face precisely the same issue that is before us here. However, it does provide guidance in our resolution of the issue Davison raises. In Armstrong, the facts in each of four consolidated cases were that the defendants were each observed actually removing the detection devices from the merchandise as opposed to the situation here where Davison removed merchandise from packages having the devices in them. Armstrong is silent as to whether any of the defendants raised the defense that they did not know of the existence of the devices. Nor did Armstrong address whether a defendant’s knowledge of the device was a required element of the crime. Instead, the issue involved the vagueness of the statute defining the crime. What Armstrong did do was to read into the elements of the crime the requirement that a defendant must have removed the detection device with intent to facilitate a theft.
What renders Armstrong pertinent here is its rationale for this holding:
“First, the statute itself explicitly states that it shall be part of and supplemental to the Kansas criminal code.’ (Emphasis added.) K.S.A. 2002 Supp. 21-3764(f). We have recognized that criminal statutes imply the necessity of proving a criminal purpose. ‘In common law, it was the general rule that acts are criminal only when they are accompanied by a blameworthy state of mind.’ State v. Thompson, 237 Kan. 562, 566-67, 701 P.2d 694 (1985). In State v. Hart, 200 Kan. 153, 157, 434 P.2d 999 (1967) (quoting State v. Shedoudy, 45 N.M. 516, 524, 118 P.2d 280 [1941]), we said: ‘[W]hen an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it.’ An exception would arise only if it clearly appeared the legislature intended to malee an act criminal without regard to the actor’s purpose. Hart, 200 Kan. at 157; see Thompson, 237 Kan. at 567; accord State v. JC Sports Bar, Inc., 253 Kan. 815, 821-23, 861 P.2d 1334 (1993) (legislature has power to create absolute liability offenses, must clearly indicate intention).” Armstrong, 276 Kan. at 827.
This same rationale compels us to conclude that the term “intentionally” found in K.S.A. 21-3764(d) requires that for a defendant who removes merchandise from a package to be guilty of vio lating the statute, he or she must have knowledge of the theft detection device, in addition to having the specific intent to facilitate a theft, as interpreted in Armstrong. It is difficult to imagine that one could be guilty of “intentionally removing the device” from merchandise if one does not know the device is on the merchandise or in the package that contains it.
Because the trial court’s elements instruction in this case contained no reference to the elements of knowledge and specific intent required by K.S.A. 21-3764(d), Armstrong, and our conclusion above, it was not a correct statement of the law and was erroneous. While not binding on this panel, we note that another panel of this court also found the same unrevised PIK instruction to be erroneous, and we find its reasoning persuasive. See State v. Quinn, No. 98,195, unpublished opinion filed August 15, 2008.
We now turn to the question of whether the instruction was clearly erroneous such that we are convinced there is a real possibility the jury would have rendered a different verdict had the instruction been a correct statement of the law. See State v. Hunt, 285 Kan. 855, 862-64, 176 P.3d 183 (2008); State v. Cherry, 279 Kan. 535, 541-44, 112 P.3d 224 (2005); Quinn, slip op. at 8-9.
The trial record establishes that Luken saw Davison remove the DVDs from their packages. Within the packages were the theft detection devices. Luken described the devices:
“Q. [Prosecutor:] Okay. What are theft detection devices?
“A. They’re basically stickers that are placed inside of merchandise to activate our alarms if they are not deactivated.
“Q. And did you see Mr. Davison remove the disks from these packages?
“A. Yes I did.
“Q. You actually saw him remove the theft detection devices?
“A. I saw him remove the disk from the package that contained the theft detection device.
“Q. So he removed those from the disk?
“A. Yes.”
Davison testified in part as follows:
“Q. [Defense counsel:] Do you have anything you want to add to [what happened]?
“A. Yeah, I know it was wrong. And a felony — because all I did was take some [DVDs], which was wrong, but I didn’t remove a theft device.
“Q. Okay. And why do you not think you removed a theft detection device?
“A. Because I left the theft device on the case. All I did was remove the [DVDs]. I didn’t remove the device, itself, even though I know it could be the same thing, but to me it’s a little bit different. It’s just two different charges; charging me with theft for taking the [DVDs], and trying to charge me with removing the device, itself.”
On cross-examination, Davison further testified:
“Q. [Prosecutor:] Did you know there were theft detection devices on the DVDs?
“A. No, I didn’t.
“Q. Why did you remove them from the packages?
“A. It’s just easier.
“Q. Easier to do what?
“A. To get them.
“Q. Easier to get them out of the store?
“A. Yes.”
Davison testified he did not know there were theft detection devices on the DVDs. There is no clear definitive evidence that establishes otherwise in this record on appeal. Luken testified only that he saw Davison remove the DVDs from the packages they were in. He provided no direct evidence of Davison’s knowledge of the detection devices. The trial court then instructed only that Davison “without permission of the Wal-Mart store removed the theft detection prior to purchase.” Apparently, there is no question this happened. However, had the juiy been instructed that the State had to prove Davison “intentionally removed the theft detection device,” as required by K.S.A. 21-3764(d), there is a real possibility that it would have rendered a different verdict based on this evidence.
Had there been evidence that Davison should have known the theft detection devices were in the packages, such as clearly marked tags that could be seen from the outside of the packages, or that he removed the devices themselves (as in Quinn) and not just the packages, the instruction given perhaps would have amounted to harmless error and not required reversal. But under the evidence presented, this was not the situation.
Reversed and remanded with instructions to vacate the conviction for removal of a theft detection device. | [
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Greene, J.:
Craig Alan Fischer appeals the district court’s denial of his K.S.A. 60-1507 motion, arguing that he was prejudiced by not being present for an evidentiary hearing on his motion. We agree, vacate the district court’s order, and remand for an evidentiary hearing with Fischer present.
Factual and Procedural Background
In March 2001, Fischer was convicted after a jury trial of attempted first-degree murder, aggravated kidnapping, attempted rape, and criminal possession of a firearm. On direct appeal of his convictions, he challenged the sufficiency of the evidence to sup port his conviction of attempted rape, and he argued the trial court erred in rejecting his challenge to the jury under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). A panel of our court affirmed his convictions. State v. Fischer, case No. 87,740, unpublished opinion filed July 16, 2004, rev. denied 278 Kan. 848 (2004).
In September 2005, Fischer filed his K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. He alleged his trial counsel was ineffective in five regards: (1) He failed to investigate and interview alibi witnesses Robert Steen, Sally Steen, Barry Steen, Antolin Corona, Enrique Romero, Miguel Delgado, Horencia Garcia, and two coworkers — Corona and Romero, (2) he failed to object to judicial misconduct when the district court made reference to the Court of Appeals, (3) he failed to present evidence that would have established a Batson claim, (4) he failed to present key alibi witnesses in his defense, and (5) he failed to object to the use of a photo lineup.
The district court determined that an evidentiary hearing was in order but denied Fischer’s request to be present. Over his objection, Fischer was permitted to participate in the hearing by phone. Based on this hearing, the district court denied Fischer’s motion, concluding that Fischer was not entitled to relief. Fischer appeals.
Did the District Court Err in Conducting the Evidentiary Hearing Without Fischer Being Present?
Fischer argues that the district court erred in permitting him to participate in the evidentiary hearing by telephone rather than in person, relying on Bellamy v. State, 285 Kan. 346, 357, 172 P.3d 10 (2007), and Lujan v. State, 270 Kan. 163, 170, 14 P.3d 424 (2000). The parties suggest that the question framed is one of due process rights based on statutory or constitutional interpretation and application, thus framing questions of law over which we have unlimited review. State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008); State v. Gary, 282 Kan. 232, Syl. ¶ 1, 144 P.3d 634 (2006).
We note at the outset that the district court denied Fischer’s request to be present “due to his two previous convictions for mur der and the conviction in the underlying case of attempted murder.” Nothing further is reflected in the record as to the basis for the ruling. We also note the record reflects substantial difficulty with Fischer s telephonic participation, including episodes where Fischer complained that he could not hear the proceedings, and Fischer’s inability to answer questions about one of the prior witnesses because he claimed that he was unable to hear that witness. These difficulties may have been compounded by the need for a translator for two of the witnesses. The State argues this difficulty “falls remarkably short of establishing a level of prejudice which would require reversal.”
K.S.A. 60-1507(b) does not require the production of the movant at a hearing on the motion.
“Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice drereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” (Emphasis added.)
Supreme Court Rule 183(h) provides, however, that the movant should be produced at a hearing' where substantial issues of fact involving die movant are to be explored:
“The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which the prisoner participated.” (Emphasis added.) 2008 Kan. Ct. R. Annot. at 248.
In Bellamy, our Supreme Court outlined the options available to the district court in addressing a motion under 60-1507. Although the case did not frame the precise issue before us here, the court’s explanation of the option of a full evidentiary hearing clearly contemplates that the hearing be conducted “ ‘with the presence of the petitioner.’ ” 285 Kan. at 353. Moreover, the court ruled that “[bjecause the factual issues involve events in which Bellamy participated, he must be present at the hearing.” 285 Kan. at 357.
In Lujan, our Supreme Court similarly outlined the option of a full evidentiary hearing “with the presence of the petitioner” but held that “presence” was not a question subject to the court’s discretion, but rather a matter of legal entitlement.
“[I]t is clear that where such a hearing is conducted and substantial issues of fact exist as to events in which the petitioner had participated, the petitioner must be allowed to be present. Prior to the hearing, Lujan asked to be present. The district court-denied his motion. However, this denial was not based on the district court’s conclusion that no substantial factual issues had been raised regarding events in which Lujan had participated. Rather, the district court decided that Lujan’s presence was unnecessary because an affidavit regarding his testimony would suffice. Under the circumstances of this case, the presence of the petitioner was not a question subject to the court’s discretion. The petitioner was entitled to be present under the law of this state.’’ (Emphasis added). 270 Kan. at 171.
Although the State suggests there is no constitutional right to be physically present at postconviction proceedings in federal court, we need not explore this question because the right to be present at such proceedings in Kansas is based in Kansas law and has been clearly articulated by our Supreme Court. We are obligated to follow controlling precedent from our Supreme Court. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005).
We conclude that “presence” of a 60-1507 movant at a full evidentiary hearing does not include mere telephonic participation where: (1) the record fails to cite any basis for denial of physical presence other than the nature of the movant’s conviction; and (2) the record reflects substantial difficulty in the movant’s ability to hear the proceedings. First, we note that Rule 183(h) does not contemplate mere telephonic participation; the Rule states that the movant “should be produced.” Production of the movant clearly means physical presence.
Second, we do not believe the term “presence” includes mere telephonic participation. “Presence” is “the fact or condition of being present.” Webster’s Third New International Dictionary 1793 (1993). Black’s Law Dictionary defines “presence” as “the state or fact of being in a particular place and time.” Black’s Law Dictionary 1221 (8th ed. 2004). Although telephonic participation has been deemed sufficient in other proceedings, we believe that the movant’s due process interest in an evidentiary hearing in a habeas corpus proceeding to determine whether he or she has been subject to a constitutional deprivation is too significant to justify an appearance by telephone. See, e.g., In re Adoption of J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27, 36 (2009).
We are persuaded that mere telephonic participation in an evidentiary hearing does not enable the movant to hear and observe witnesses, attorneys, or the judge, and certainly does not enable the manner of assistance to his or her own counsel that could be critical to such a hearing. We acknowledge that Fischer was consulted by his attorney on several occasions during the hearing, but the record seems to reflect that these consultations were made with his attorney s side of the conversation spoken in open court. If the movant is entitled to be present at such a hearing, telephonic participation is a poor substitute.
Although the parties have not cited Rule 145, we believe it consistent with our analysis in this case. The Rule provides:
“The court, in its discretion, may use a telephone or other electronic conference to conduct any hearing or conference, other than a trial on the merits. The court may require the parties to malee reimbursement for any charges incurred by the court.” 2008 Kan. Ct. R. Annot. 233.
Obviously, an evidentiary hearing on a 60-1507 motion is the trial on the merits in that proceeding. In conducting Fischers hearing by telephonic participation, the district court violated the spirit if not the letter of this Rule. By negative implication, the Rule does not permit the substitution of telephonic participation for presence in a trial on the merits. The policy underpinning for excluding trials on the merits from permissible telephone hearings is identical to the reasons cited above that make telephonic participation in such a hearing a poor substitute for physical presence.
This leaves only the question whether “substantial issues had been raised regarding events in which Fischer had participated,” thus entitling him to be present. We examine the issues raised by Fischer s motion and conclude that they included events in which he participated, thus requiring his presence. Specifically, at least two of the issues raised regarded such events: (1) failure of trial counsel to investigate, interview, and present a host of alibi witnesses, all of whom had allegedly been identified by Fischer to his trial counsel; (2) failure of trial counsel to object to use of a photo taken after Fischer was charged with the offenses. The extent to which alibi witnesses known to Fischer could have been helpful to Fischer s defense was clearly an issue involving Fischer’s direct participation and knowledge. The photo issue was apparently rather confusing, and we note that there was uncertainty regarding the precise photo at issue and how it was used; clearly, this was an issue that had Fischer been present, he might have clarified. As noted by our Supreme Court in Lujan, the presence of the movant might have been helpful in cross-examining or rebutting his trial counsel’s testimony on these issues, and his telephonic participation was not a proper substitute under these circumstances. 270 Kan. at 172.
Our decision here is based in part on the lack of any stated basis for denying Fischer’s physical presence other than the nature of his convictions. We decline to speculate as to any such basis, and specifically we refuse to assume from the nature of Fischer’s convictions that he is either “dangerous” or “an escape risk.” We also decline to make assumptions regarding the cost of Fischer’s presence or the difficulty in his transportation to a suitable venue, because we believe such considerations are not relevant to our analysis where they did not play any apparent role in the district court’s decision. We decline to criticize the applicable rule suggesting that a movant “should” be present at such hearing, and we respect and apply our Supreme Court’s decision to honor a movant’s right to be present at a hearing of this nature. We decline to observe how we might have handled the matter if we were the district court; our function is to review the decision of the district court, not to compare how we might have handled the matter if we were district judges. And, finally, we decline to defer a decision in this case to a legislative committee; to the extent policy is implicit in the Lujan ruling, our Supreme Court has spoken, and we must honor and apply that controlling precedent.
The State urges us to conclude that telephonic participation was sufficient under these circumstances, but we fear that our embrace of this position would likely result in terminating the right of 60-1507 movants to be physically present at evidentiary hearings. Clearly, the statute and the rule do not contemplate that movants can be routinely denied presence through telephonic substitute. In fact, the applicable rule provides to the contrary in stating that the movant “should” be produced under these circumstances. Rule 183(h) (2008 Kan. Ct. R. Annot. 248).
We express no opinion on the merits of Fischer s motion. We limit our holding to his entitlement to be present at any evidentiary hearing on his motion, and we remand with directions that the district court conduct a full evidentiary hearing on his motion with Fischer physically present for the proceeding.
Reversed and remanded with directions. | [
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Malone, J.:
The State appeals the district court’s decision to acquit Kristin Marie Toler of criminal possession of a firearm on school property. The State appeals upon a question reserved and asks whether school must be in session or whether children must be present on the school property in order to find a person guilty of criminal possession of a firearm in violation of K.S.A. 21-4204(a)(5). We hold that a person may be found guilty of criminal possession of a firearm on school property in violation of K.S.A. 21-4204(a)(5) even when school is not in session or children are not present on the school property at the time the offense is committed.
On August 21, 2006, at approximately 4:25 a.m., Toler was on the property of Shawnee Mission West High School in Overland Park. Toler had parked her car in the school parking lot, and her dog was running loose on the school grounds. Toler was placing items into the trunk of her car and into an athletic bag on the ground next to her car when Officer Heavin, of the Overland Park Police Department, approached Toler about the fact that her dog was not on a leash. Heavin looked down into the athletic bag next to Toler’s car and observed a dark blue case that he recognized as a handgun case. When Heavin asked Toler what was in the case, she stated that it contained a handgun.
Heavin recovered a Beretta 9 mm handgun from Toler and informed her it was illegal to have a firearm on school property. The gun was not loaded, the magazine clip was empty, and Toler did not have any ammunition in her possession. Toler told Heavin she intended to put the gun in the trunk of her car while she went for a run with her dog, and she did not know it was against the law to possess a firearm on school property. Heavin issued Toler a citation for the handgun violation and released her. At the time of the incident, classes were not in session and there was no school-sponsored activity on the property.
On September 8, 2006, the State charged Toler with one count of criminal possession of a firearm on school property in violation of K.S.A. 21-4204(a)(5), a class B misdemeanor. The parties sub mitted the case to the district court on stipulated facts, which stated in part:
“1. On Monday, August 21, 2006, at approximately 4:25 am, Overland Park, Kansas police officers contacted the defendant, Kristin Marie Toler, on the property of Shawnee Mission West High School, 8500 Antioch Road, Overland Park, Johnson County, Kansas.
“2. Shawnee Mission West High School is a building and grounds used by unified school district of Shawnee Mission (Shawnee Mission School District), for student instruction and attendance, and extracurricular activities of pupils enrolled in grades 9 through 12.
“3. Kristin Marie Toler is not a law enforcement officer and she does not qualify for any of the exceptions listed in K.S.A. 21-4204(b).
“4. Toler had her dog running loose on the school property and she had her car parked in the school parking lot, which is also school property.
“6. Officer Heavin approached Toler to discuss several municipal ordinance violations pertaining to her dog. Officer Heavin looked down into the open athletic bag [in which] Toler had been placing items and observed a dark blue case that Officer Heavin recognized from his training and experience as a handgun case.
“8. Officer Heavin recovered from Toler a Beretta 9 mm firearm, model 92FS, serial number BER427588. The gun was not loaded, the magazine was empty and Toler did not have any ammunition in her possession.
“9. Toler stated that she was planning on putting the gun into the trunk of her car and then go for a run with her dog. Toler was cited and released. Toler stated that she did not know it was against thelawtopossessa firearm on school property.
“11. Classes were not in session for student instruction or attendance or extra curricular activities of pupils enrolled in kindergarten or any grades 1 through 12 or any regularly scheduled school sponsored activity or event on the school property when Toler was present with the firearm.”
Toler filed a brief in support of acquittal and the State filed a response. Toler argued that she did not violate K.S.A. 21-4204(a)(5) because the statute requires that classes be in session at the time of the offense. She compared the language of K.S.A. 21-4204(a)(5), which is silent as to whether school must be in session, to the language of K.S.A. 2008 Supp. 65-4161 and K.S.A. 2008 Supp. 65-4163, which expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property. Toler maintained that the legislature’s decision not to use the same language in the criminal possession of a firearm statute manifested the legislature’s intent that school must be in session in order to violate K.S.A. 21-4204(a)(5). Alternatively, Toler contended that the statute was unconstitutionally vague.
The district court held a hearing on August 1, 2007, and heard arguments of counsel. Following the hearing, the district court acquitted Toler of criminal possession of a firearm on school property, finding that because school was not in session at the time of the alleged offense, she had not violated the statute. Specifically, the district court concluded: “The Court further finds that the Legislative intent of K.S.A. 21-4204(a)(5), requires that school be in session or classes [are] actually being held at the time of the offense or that children must be present within the building or on the property during the time of the alleged offense.” Because the district court decided the issue based on statutoiy interpretation, the court did not reach Toler’s constitutional argument. The State reserved the question for appeal and timely filed a notice of appeal.
Jurisdiction
The State has filed this appeal upon a question reserved by the prosecution pursuant to K.S.A. 22-3602(b)(3). An appeal on a question reserved by the prosecution will not be entertained unless it involves a question of statewide interest and is vital to a correct and uniform administration of the criminal law. No formal procedural steps are required by K.S.A. 22-3602(b)(3) for the State to appeal on a question reserved. All that is necessaiy for the State to reserve a question for appeal is to make a proper objection or exception at die time a judgment is entered by the district court, laying the same foundation for appeal that a defendant is required to lay. State v. Tremble, 279 Kan. 391, 393-94, 109 P.3d 1188 (2005).
Here, the State reserved the question when the district court granted Toler’s motion for acquittal. The State argues that resolution of this issue would provide helpful precedent, given the number of school districts in Kansas and the legislature’s intent to regulate the presence of firearms on school property. As the State noted in its brief, during the 2006-07 school year, the Kansas Department of Education reported that more than 460,000 children in grades kindergarten through 12 attended public schools in Kansas. There are approximately 300 school districts across Kansas’ 105 counties.
This court has previously recognized that the legislature has acknowledged a greater need to deter individuals from carrying guns onto school property than in other public places. State v. Bennett, 20 Kan. App. 2d 767, 776, 892 P.2d 522 (1995). Because the State is correct that the answer to the question reserved would provide helpful precedent to the bench, bar, and law enforcement personnel throughout this state, we will entertain the State’s appeal. See State v. Skolaut, 286 Kan. 219, 224-26, 182 P.3d 1231 (2008) (discussing questions reserved).
Interpretation of K.S.A. 21-4204(a)(5)
The State claims the district court erroneously added an element to the crime of criminal possession of a firearm that is not contained in the statute by finding that school must be in session for a violation of the statute to occur. According to the State, the language of K.S.A. 21-4204(a)(5) is clear and unambiguous. Thus, the State claims the district court should not have resorted to the principles of statutory construction by comparing the language of K.S.A. 21-4204(a)(5) regarding criminal possession of a firearm on school property to the language of K.S.A. 2008 Supp. 65-4161 and K.S.A. 2008 Supp. 65-4163 regarding the possession of drugs within 1,000 feet of school property. Toler did not file a brief on appeal.
Interpretation of a statute is a question of law over which an appellate court has unlimited review. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
Pursuant to K.S.A. 21-4204(a)(5), criminal possession of a firearm is
“possession of any firearm by any person, other than a law enforcement officer, in or on any school property or grounds upon which is located a building or structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades 1 through 12 or at any regularly scheduled school sponsored activity or event.”
Pursuant to K.S.A. 21-4204(b), subsection (a)(5) shall not apply to:
“(1) Possession of any firearm in connection with a firearms safely course of instruction or firearms education course approved and authorized by the school;
“(2) any possession of any firearm specifically authorized in writing by the superintendent of any unified school district or the chief administrator of any accredited nonpublic school;
“(3) possession of a firearm secured in a motor vehicle by a parent, guardian, custodian or someone authorized to act in such person’s behalf who is delivering or collecting a student; or
“(4) possession of a firearm secured in a motor vehicle by a registered voter who is on the school grounds, which contain a polling place for the purpose of voting during polling hours on an election day.” K.S.A. 21-4204(b).
K.S.A. 2008 Supp. 65-4161 and K.S.A. 2008 Supp. 65-4163, unlike the criminal possession of a firearm statute, expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property:
“Nothing in this subsection shall be construed as requiring that school be in session or that classes are actually being held at the time of the offense or that children must be present within the structure or on the property during the time of any alleged criminal act. If the structure or property meets the description above, the actual use of that structure or property at the time alleged shall not be a defense to the crime charged or the sentence imposed.” K.S.A. 2008 Supp. 65-4161(d); K.S.A. 2008 Supp. 65-4163(b).
We agree with the State that the language of K.S.A. 21-4204(a)(5) is clear and unambiguous and we need not resort to principles of statutory construction to ascertain the legislative intent. Whether school is in session is irrelevant to the commission of the crime of criminal possession of a firearm on school property. By ruling that school must be in session or that children must be present on the school property for a violation of K.S.A. 21-4204(a)(5) to occur, the district court added language to the statute not readily found therein.
K.S.A. 21-4204(b) provides express exceptions to the prohibition against firearms on school property. Those exceptions do not provide for a defense based upon the fact that school is not in session or that children are not present on the school property at the time of the offense. While the legislature could have included language requiring that school be in session as an element of the offense, the legislature did not do so, probably for good reason. As the State points out in its brief, under the district court’s interpretation of K.S.A. 21-4204(b)(5), a sniper arriving on school grounds to initiate a school shooting would not actually violate the statute until a student arrived on the property or until classes were in session.
We also agree with the State that the district court placed too much weight on the fact that K.S.A. 2008 Supp. 65-4161 and K.S.A. 2008 Supp. 65-4163 expressly provide that school need not be in session for an offender to commit the crime of possession of drugs within 1,000 feet of school property. The absence of this language from K.S.A. 21-4204(a)(5) does not establish a legislative intent that school must be in session to violate the criminal possession of a firearm statute.
In summary, K.S.A. 21-4204(a)(5) is clear and unambiguous. The possession of any firearm on school property upon which a building is located that is used for the instruction of students is sufficient to trigger a violation of the statute. See PIK Crim. 3d 64.07. Here, the district court resorted to unnecessary statutory construction and added language to the statute not readily found therein. Under the plain language of K.S.A. 21-4204(a)(5), a person may be found guilty of criminal ¡possession of a firearm on school property, even whenschool is not in session or children are not present on the school property at the time the offense is committed.
Appeal sustained. | [
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Pierron, J.:
Sidney White, Jr., appeals imposition of his underlying prison sentence upon the revocation of his probation. We reverse and remand.
White entered no contest pleas to one count each of identity theft, forgeiy, and attempted theft in case No. 06 CR 382. On January 5, 2007, the trial court granted a downward dispositional departure and placed White on 18 months’ probation after he served 60 days in jail, with an underlying prison term of 32 months. Conditions of White’s probation included an order that he not violate any laws and that he pay various costs totaling $813.
On March 9, 2007, the district court ordered White to show cause why his probation should not be revoked for both his failure to remain crime free and his failure to make payments toward his court costs.
At the outset of a hearing conducted on April 13,2007, the State noted the trial court had already revoked White’s probation on March 29. No transcript of that proceeding appears in the record on appeal. However, the State indicated at the April 13 hearing that White had stipulated to failure to make payments in this case but would not stipulate to failure to remain law-abiding. The State further reminded the court that it had suspended any disposition of the case, apparently based on the State’s request to wait to see what happened in another show cause proceeding pending against White before a different judge in a different case for which White was also on probation. The district court questioned — ‘Well, how long are we going to wait?” — to which the State responded that tire “new case is set for May 4” and “the other case is set next week.” The court then asked, “So what do we want to do? What needs to happen?”
White’s counsel argued that White should be reinstated on probation because the State, had prematurely filed to revoke probation for White’s failure to remain law-abiding before any case was filed or convictions obtained. With regard to the allegation of nonpayment of costs, counsel noted that White had only just been placed on probation and ordered to pay his costs, which he was currently unable to afford due to being in jail, not having a job, and the recent death of his grandmother, who was helping White financially.
The State responded by noting its confidence that it would prove White’s failure to remain law-abiding, for which he would be sen tenced in the other show cause proceeding. The State also highlighted its allegations surrounding the pending charges in the new case and admitted that it had mistakenly not subpoenaed the officers. Therefore, it could not put on evidence in that regard.
After noting only that it “ordinarily . . . would not revoke and commit on failure to pay costs and fees only, but there is more going on in this case than that,” the district court ordered White to serve his 32-month prison sentence. Upon inquiry by White’s counsel at the close of tire hearing, the court clarified that it was revoking White’s probation solely for failure to pay costs. The journal entry of probation revocation reflects this holding.
White’s sole contention on appeal is that the district court erred by revoking his probation for failure to pay costs. He requests that the appellate court reverse and remand with instructions to reinstate Ms probation. Before responding to this issue, the State’s claim that White’s appeal should be dismissed as moot must be addressed.
As a general rule, this court does not decide moot questions or render advisory opinions. See Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
“The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” 259 Kan. at 504.
However, this court will not dismiss an appeal as moot unless it is clearly and convincingly established that the actual controversy now before this court has ended “ ‘ “ ‘and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.’ [Citations omitted.]” ’ [Citation omitted.]” In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002).
In support of its mootness claim, the State points out that subsequent to his probation revocation in this case, White was convicted in a separate case and sentenced to a 40-month prison term concurrent to his 32-month prison term in this case. The State maintains that even if this court were to reverse the district court’s revocation of White’s probation in this case and grant White’s request to reinstate probation, White’s controlling sentence would not be altered. The State then summarily argues “White’s legal rights are not impacted,” so the issue is moot.
White has not filed a reply brief to suggest how his rights will be affected if we dismiss this appeal as moot. Arguably, because the probation revocation will remain on his record, it could affect his rights in the long run. For example, if he should become eligible for probation at anytime in the future, the trial court could refuse probation based on a finding that this revocation showed White was not amenable to probation. Accordingly, this court finds the issue is not moot because potential relief (via reversal of the probation revocation) would not be an idle act insofar as White’s rights are concerned.
Moreover, the State only argues in passing that this issue is moot, without any supporting authority for its summary claim that White’s legal rights are not affected. Not only does the State fail to clearly and convincingly establish the issue is moot, but our courts have held that an issue raised in passing on appeal, with no argument or citation to relevant authority, is waived. See State v. Earned, 281 Kan. 1023, 1048, 135 P.3d 1169 (2006).
We will, therefore, address the underlying issue.
A probationer may not have his or her probation revoked unless the probationer has failed to comply with the conditions of probation. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). Once there has been evidence of a probation violation, revocation is in the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). This court will conclude the district court abused its discretion only if it acted arbitrarily, fancifully, or unreasonably. State v. Hobbs, 276 Kan. 44, 48, 71 P.3d 1140 (2003).
White suggests his argument on appeal is based on his substantive due process rights. He notes that our courts recognize that the conditional liberty interest created by probation cannot be taken away without consideration of the circumstances surrounding a violation of the conditions of probation. Walker, 260 Kan. at 808 (citing Black v. Romano, 471 U.S. 606, 85 L. Ed. 2d 636, 105 S. Ct. 2254 [1985]). Our appellate courts also recognize that under the holding of Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), it is constitutionally impermissible to automatically revoke an indigent defendant’s probation and imprison him or her merely because he or she cannot pay the fine or make restitution in accordance with the conditions of probation. See State v. Ferguson, 271 Kan. 613, 618, 23 P.3d 891 (2001); Walker, 260 Kan. at 809; State v. Duke, 10 Kan. App. 2d 392, 394-95, 699 P.2d 576 (1985). Rather, a defendant’s substantive due process rights as recognized in Bearden require:
“[A] sentencing court must make two determinations to constitutionally revoke a defendant’s probation. First, the probationer’s conduct in failing to comply with the financial conditions of his probation must be considered. It must be determined whether the probationer willfully refused or was responsible for the failure to pay or whether the probationer made a bona fide effort to acquire the resources to pay. Imprisonment may be used as a means to enforce collection of fines or court costs or restitution when the probationer willfully refuses to pay, although he has the means to pay, or he does not make a bona fide effort to acquire the resources to pay. [Citations omitted.] If, however, the sentencing court determines that the probationer made a bona fide effort or is not at fault in failing to pay, the court should then consider alternative measures of punishment to imprisonment. Only if the alternative measures are inadequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer despite his bona fide effort to pay. Alternatives to imprisonment that have been suggested include reduction of the fine imposed, extension of time to pay, and performance of public service tasks in lieu thereof.” Duke, 10 Kan. App. 2d at 395.
This is not to say that probation can never be revoked and a prison sentence imposed based on the failure to pay court costs. As the Supreme Court noted in Bearden:
“We do not suggest by our analysis of the present record that the State may not place the petitioner in prison. If, upon remand, the Georgia courts determine that petitioner did not make sufficient bona fide efforts to pay his fine, or determine that alternate punishment is not adequate to meet the State’s interests in punishment and deterrence, imprisonment would be a permissible sentence. Unless such determinations are made, however, fundamental fairness requires that the petitioner remain on probation.” 461 U.S. at 674.
The State seems to suggest that the trial court’s comment concerning the fact that there was “more going on in this case” other than White’s failure to pay court costs and fees demonstrates that the court did not, as White claims, revoke his probation simply because he did not have the resources to pay the costs. The State also suggests that White’s probation was not automatically revoked for failure to pay costs because the revocation “was triggered by his arrest on new charges.” These arguments are contrary to the district court’s clarification at the end of the hearing that it was revoking probation based only on White’s failure to pay costs.
The State’s arguments also seem to refer to the revocation of White’s probation in another case (No. 05 CR 428). For example, the State notes that Judge Parrish found White had violated probation for failing to remain law-abiding after a hearing that included the testimony of the arresting officer. The hearing to which the State refers occurred more than a month after the probation revocation by Judge Dowd in the case now before us. This court dismissed White’s appeal in case No. 05 CR 428 for lack of jurisdiction based on an untimely notice of appeal, and our Supreme Court denied White’s petition for review of that dismissal. State v. White, No. 99,811, rev. denied July 3, 2008. That case is not now before this court and cannot be considered.
Based on the record properly before this court for consideration, it does not appear that the district court made any of the necessary determinations to imprison White for his failure to pay court costs — the only basis upon which it revoked White’s probation. Thus, the case must be reversed and remanded to the trial court.
Reversed and remanded with directions. | [
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Opinion by
Simpson, C.:
I. The first complaint made by counsel for plaintiff error in their brief is, that the verdict of the jury is an illogical one. The line of reasoning by which they arrive at such conclusion is about this: The plaintiff below sought to hold the railroad company liable for the act of its agent, William Higgins, under the doctrine of respondeat superior. Higgins was joined with the railroad company as defendant in the action, both for this purpose and the additional reason that he was personally liable for the wrong committed. The liability of the railroad company is predicated upon that of its agent, for whose act it was responsible. Now as the jury found a verdict in favor of Higgins, thus saying that he committed no wrong, there is no liability of the agent to predicate that of the superior upon. If the major premise of this proposition is true, there seems to be no escape from the conclusion. The first inquiry then involves the construction of the pleadings in the case, to determine whether or not it is sought to hold the company liable solely for the act of its agent under the doctrine of respondeat superior. Before judgment the most unfavorable construction is to be given the pleadings, but after judgment that construction must be given them which will best harmonize with the whole record.
The allegations of the petition in this respect are as follows:
“That the defendants procured the arrest of the plaintiff by said William Higgins as the agent, and at the instance and request of the defendant company, making and filing with L. J. Webb, a justice of the peace, an affidavit,” etc.
In the answer of the railroad company it is alleged:
“Second, that on September 17, 1883, it did, through and by its proper officer, notify the board of railroad commissioners of the facts with reference to the plaintiff throwing a certain switch on the railroad of the defendant, and for which said plaintiff was subsequently arrested, at the time mentioned in the plaintiff’s amended petition, and that said defendant requested instructions from said board of commissioners; that on the 21st day of September, 1883, said board did, in writing, request and direct this defendant to proceed to capture the plaintiff' herein, and turn him over to the proper authori ties to be held accountable for his conduct, and in pursuance of such authority and direction of the board of railroad commissioners aforesaid, this defendant caused the complaint mentioned in plaintiff’s amended petition to be made and filed; and the defendant says that said arrest was made so as aforesaid solely at the suggestion and request of the said board of railroad commissioners.”
Higgins’s answer is in substance the same as the railroad company’s, with the additional averment “'that he filed the complaint and caused the warrant to issue at the instance and request of the company.”
' In this state of the pleadings, there can be no successful contention against the primary liability of the railroad company. The petition charges that the criminal prosecution was instituted at the instance and request of the defendant company. The defendant company states in its answer, “this defendant caused the complaint mentioned in plaintiff’s amended petition to be made and filed.” Higgins the agent says in his answer that he filed the complaint and caused the warrant to issue at the instance and request of the company. The fact that the prosecution was begun at the instance and request of the railroad company, and that the company caused it to be instituted, is admitted by the pleadings. A tort which one directs or advises another to commit he is always responsible •for. (Cooley on Torts, p. 534.)
The liability of the railroad company for the wrong in this case, if any wrong there was, is based upon its direct connection with the prosecution, not only as adviser, but because it directed the institution of it, caused it to be begun, and set it in motion. There is no question here of dependency of liability upon the subordination of the agent, because the agent acted under the express direction and in strict obedience to the orders of the company. The agent may be responsible for his participation in the wrong committed by the orders of the principal, but this is an independent question for the jury, and does not necessarily involve the liability of the principal. If in this case the railroad company had been the only defendant, and the petition and answer had contained the same allegations, could there be any doubt about the liability of the company for the commencement of the prosecution? Then the case does not fall within the ordinary doctrine of respondeat superior in the sense in which it is assumed to fall by counsel for the plaintiff in error. The verdict is not illogical or absurd, for a jury could consistently say on the facts admitted by the pleadings that the railroad company having caused the institution of these proceedings, and its agent having done only as he was expressly directed to do by his superior, the consequences shall rest on the company alone. Probably the strict view of this question is, that as a railroad corporation can only act by its agents, when the head of a department directs one of its subordinates to do an act from the performance of which injury is done a third party, abstract justice requires that the corporation shall suffer the consequences that follow the obedience of the subordinate to his superior.
II. The question of probable cause was left to the jury, and counsel for plaintiff in error claim that the evidence in this cáse was undisputed, and it was therefore for the court to determine whether probable cause existed or not. This involves an examination and determination as to what the facts are, and what are the reasonable deductions from them. If the facts are not in dispute, the question is for the court; if they are disputed, the jury must be left ^ pagg Upon the existence or want of probable cause. Now, in the determination of this question, two propositions must constantly be kept in view: The first is, that the burden of proving the want of probable cause in this action was upon the plaintiff who alleged it; the second is, that the conduct of Foulks, the claim agent of the railroad, and the officer who ordered a criminal prosecution against Watson, “must be weighed in view of what then appeared to him to be the acts and declarations of Watson, and not in the light of subsequently appearing facts.” (Stewart v. Sonneborn, 98 U. S. 194.) The very many things introduced for the purpose of establishing actual malice, and other issues, must not be taken into con sideration or allowed to have any bearing on the question of the existence or want of probable cause. The belief of Foulks as to the existence of probable cause, is to be determined by the state of facts existing before and up to the time of the arrest, and is not to be influenced by the other evidence in the case, or the state of facts developed subsequent to the arrest. Out of considerations of this character has grown an unbroken line of authorities establishing one of the most important and beneficial rules that govern in actions for malicious prosecutions. The rule is that in a case where there is a substantial dispute about facts, constituting the existence or want of probable cause, it is for the jury to determine what facts are proved, and for the court to say whether or not they amount Pr°bable cause. It is therefore generally the duty of the court in such a case, when evidence is given tending to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not. The court should group the facts in the instructions, which the evidence tends to prove, and then instruct the jury that if they find such facts have been established, they must find that there was or was not probable cause. (Johnson v. Miller, [Iowa,] 17 N. W. Rep. 34; Owen v. Owen, 22 Iowa, 271; Shaul v. Brown, 28 id. 37; Gee v. Culver, [Ore.] 6 Pac. Rep. 775; Hadrick v. Bishop, 12 O. B. 275; Castro v. De Uriarte, 16 Fed. Rep. 93; Stewart v. Sonneborn, 98 U. S. 187; Heyne v. Blair, 62 N. Y. 19; Sutton v. Johnson, 1 Term Repts. 493.) This rule must not be made a pretext by which a question primarily for the court, is transferred to the jury. There must be a substantial dispute about the existence of probable cause before it can properly go to the jury, and if about the facts that are claimed to prove or disprove probable cause, there can fairly be said to be a dispute, a conflict of testimony; irreconcilable statements of witnesses; a strong flavor of improbability, then the jury are the sole judges of these, as of every other material fact in the ease; but if the evidence on this question, fairly considered and impartially weighed, produces in the mind of the court a reasonable conviction of the existence or want of probable cause, then it is the clear duty of the court to instruct the jury accordingly. The dispute must be of such character as to compel the court to weigh evidence, and determine the credibility of witnesses, before it ceases to be a question of law for the court and becomes an issue of fact for the jury. Whenever the evidence of the existence or want of probable cause produces in the mind of the court a reasonable doubt as to its proper determination, then it should be submitted to the jury. It is said in the case of Stewart v. Sonneborn, 98 U. S. 187, that in all cases in which the question of the defendant’s belief of the facts relied on to prove want of probable cause is involved, what that belief was, is always for the jury to determine.
Proceeding to ascertain from the record whether or not there was such a substantial dispute about the facts tending to prove a want of probable cause, we shall first state what the evidence shows to be .the material facts in the whole case, and then examine such facts as are alleged to have produced in the mind of Foulks an honest belief of the guilt of Watson of willfully and maliciously throwing the switch. The main facts are, that on the first day of September, 1883, at Osage City, on the line of the Atchison, Topeka & Santa Fé Railroad, and about two o’clock in the morning of that day, a passenger train going west on the main track left that track and ran into and collided with an extra freight train that was standing on a side track and headed to the east, severely injuring several of the employés of the company, and destroying some of the property. While the general.course of the line of railroad is from the east to the west, at the depot and yards at Osage City, the course of the main track was from the northeast to the southwest, parallel with the main track for quite a distance, and on both sides of it were side tracks, one to the northwest called the north siding, and one to the southwest called the south siding. The main track and each of the side tracks were connected about midway of the side tracks by a cross or spur track running diagonally across the main track from the side tracks, and connected with the main track by switches. This spur track was located some distance east of the depot. The general course of the line being east and west, trains going over the road were called “east-bound” and “west-bound” trains.. The extra freight train to whose crew Watson belonged was running from Emporia to Topeka. It had left Emporia with orders to side track at Osage City to let three extra freight trains pass, and to get orders about the passenger train. Arriving, it had stopped on the north siding, close to the spur or cross track, awaiting signals from the conductor to go ahead. Watson was the head brakeman on this train, and one of his duties was to throw switches ahead of it. He stated that—
“As soon as the three extras had passed on the main line, he went up to the switch and unlocked it, and took the pin out of the lever and sat down on the switch-block, facing the depot.”
The depot was located some distance west of the switch-block upon which he was sitting, and hence when he sat down on the switch-block facing the depot he was facing west. This switch is located on the south side of the main track, and the freight train being on the north siding he could plainly see the depot, or at least that train would not obstruct his view. He sat down there on the switch-block facing the depot, waiting for his conductor to give the signal to the engineer of the freight train to move ahead, and to do- this the train would have to leave the north siding, go onto the spur track, and from that onto the main track. He states that—
“While sitting there I went to sleep and must have turned over, for I was leaning back this way; I must have turned clear over; the first thing I heard, I never heard no train whistle; I don’t know whether the train whistled or not; I heard a noise, and looked up and saw a headlight coming; Well, I jumped up — I thought it was our train pulling out— and throwed the switch. Well, after I did it, I could see the lights of the passenger train, and knew what I did, and tried my best to throw the switch under the baggage car, so that they would go on to the ties and stop. I was dazed and frightened.”
Throwing the switch let the passenger train from the main track onto the spur, and from there onto the north siding, when it collided with the freight train and did great damage and severely wounded the fireman on the passenger train, and hurt some other persons. The distance from the switch to the north siding where the freight train stood headed to the east, was about three car-lengths. Immediately after the collision occurred Watson ran toward the.wreck and told both the engineer of the passenger and the conductor of the freight that he had thrown the switch under the supposition that the approaching train was the freight. He assisted to carry the wounded man to the station house, hunted up a surgeon to attend him, and then disappeared. Martin Myers, the engineer on the passenger train, says:
“Approaching Osage City yards, I saw the switch lights were all right for the main track; they were all burning all right for the main track. As I neared the middle of the north siding there was a train standing on the siding, and about there is a spur or cross-track. The engine of the freight train was standing near the spur, and as I approached the engine I saw that gentleman [Watson] there start from the engine and run directly across the track in front of me, about one or two car-lengths in front of me, and he grabbed the switch and threw it around and ran me right directly into the freight train that was standing on the siding. I was unable to hold the train in such a short distance. I applied the air and reversed the engine, but I was too close to the freight on the siding and went into them. He was not at the switch as I approached. He ran across the track from the opposite side of the switch, from the same side his train was standing on; he ran across the track with a lamp in his hand. There was a rule in force then, and is now, and is on all roads that I am acquainted with in the United States, instructing brakemen that when the approaching train is expected, to keep entirely away from the switches and not unlock them until after the approaching train has passed.”
Perdue, the conductor of the freight train, says:
“ I had been to the office to get the orders for my train. I got the order, and started out to take it to my engineer, when this passenger train came in sight in the Osage City yards. I got opposite my way car, when I saw this brakeman give this passenger train signals to stop. When he did that, I stopped too; I knew there was something wrong; but I could not any more than say ‘ Jack Robinson ’ before they struck. It did not seem more than two seconds to me — just as quick as could be done. I did not see anybody throw a switch there that night, just before the passenger train came in. I saw the signal to stop. It looked to me like the light had left about the front of my engine or train. It looked like it had left my engine, but it was on the main track when signal was given. I was back of the engine about twenty cars.”
This was all of the material evidence of the circumstances connected with the immediate cause of the wreck.
C. M. Foulks was the claim agent of the defendant railway company. It was a part of his duty as such claim agent to investigate the cause of all wrecks, look after the wounded, take charge of the damaged property, and report to the company how they occurred, their cause and results. He made an investigation in the case, and found this state of facts:
First: That Leon Watson was the employé who misplaced the switch.
Second: That a day or two prior to the wreck Watson had called for his time.
Third: That immediately after the wreck Watson had disappeared, and could not be found, although he caused a search to be instituted and caused inquiries to be made of other roads “if such a man was in their employ?”
Fourth: Myers, the engineer of the passenger train, had given to Foulks his version of the circumstances attending the misplacement of the switch, substantially as he testified.
Fifth: Perdue, the conductor of the freight train, had made a report about the wreck, and the cause of it, substantially as he testified.
Sixth: The witness, Frank Brown, had made a statement in presence of Foulks of the declaration of Watson on the street that “he had done the company up at Osage City, and would do it again,” as Brown testified at the trial.
Seventh: Foulks had investigated the train sheets at division headquarters, and alleged to have found by these that the claim of Watson that the cause of falling asleep on the switch-block was by reason of continuous work which gave him no time to rest and sleep, was not supported by the reports.
Foulks, on the witness stand, swore that at the time he ordered Higgins to file a complaint and have Watson arrested, he had an honest belief of the guilt of Watson, produced by the facts above stated. On the other hand, it is in evidence that before the arrest, Watson’s deposition had been taken in the case of Amick against the railroad company, in which action Amick, who was a fireman on the passenger train, sued the company for damages for an injury he received at the time the collision occurred at Osage City, and in that deposition he had given his version of the cause of the wreck in substance the same as his testimony on this trial.
The theory of the counsel for Watson was, in the pleadings and at the trial, that the search and arrest of Watson was to prevent him from testifying in the case of Amick v. A. T. & S. F. Rld. Co., and not belief in his guilt. The correspondence between the railroad company and the board of railroad commissioners, shortly after the occurrence, is relied upon by both parties. The counsel for Watson claim that it presents a strong indication of the belief in the mind of Foulks at the time he addressed the letter to the board, as to the circumstances that caused Watson to misplace the switch, because in that written communication Foulks says, “An accident occurred caused by a brakeman by the name of Watson carelessly and negligently throwing a switch.” The counsel for the railroad company claim that, as the correspondence stated that “Watson had escaped,” and that “the railroad company would endeavor to effect a capture and turn him over to the board of railroad commissioners, to be dealt with according to law,” and as the railroad commissioners advised “that the absconding brakeman be captured and turned over to the proper authorities of Osage county, to be held accountable for his conduct,” the fair construction of the correspondence is, that while Foulks had not technically described a criminal offense as having been committed by Watson, that was his evident meaning. There are perhaps other facts and deductions, relied upon by both parties, to prove the want and the existence of probable cause; but these are sufficient to show that there was such a substantial dispute about it that, under the rule hereinbefore cited, the question as to what facts were established by the evidence was for the jury to determine. But the facts were nowhere in the instructions grouped, and the jury were not told what facts they should consider in the determination of the question of probable cause. They were not instructed that the conduct of Eoulks in this respect must be weighed by the facts that came to his knowledge from responsible and reliable sources before arrest, and not in the light of all the facts subsequently developed on the trial of the case; and hence we think that the question of the want or existence of probable cause was not fairly submitted to the jury, with the limitations and restrictions imposed by the rule, and that was material error to the prejudice of the plaintiff in error. The trial judge gives an admirable definition of probable cause, but fails to segregate the evidence on that question from the other evidence in the case, and leaves the jury to determine it in the light oí the facts and circumstances subsequent to the arrest. This is error; and because of it, we recommend that the case be reversed, and remanded to the district court for a new trial.
By the Court: It is so ordered.
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Brazil, J.:
Lori D. Wilson appeals two convictions of abuse of a child in violation of K.S.A. 21-3609. She argues the evidence was not sufficient to convict; evidence of prior acts was erroneously admitted; the trial court erred in denying her motion for a bill of particulars and her motion for a new trial; and finally, she alleges prosecutorial misconduct. We disagree and affirm.
During a 2-week trial, the jury heard from 38 witnesses and considered 70 exhibits regarding the family life of the minor victims, G.J.W., bom February 17,1990, and M.M.W., bom May 18, 1992. The evidence ranged from the lives of their parents before the victims were born to events in the lives of the entire family before, during, and after the crimes charged. The wide-range questioning by both counsel prompted almost no objections, and none under K.S.A. 60-455.
In comparison to the evidence at trial, the criminal charges were relatively focused. Lori was charged with a single count of abuse of a child for each of the victims “on or about the 11th day of May, 2003, through the 12th day of April, 2005.” The State’s evidence showed that during the crimes period, the victims lived with Rodney W., their natural father, and Lori, who brought three children of her own to the marriage. Rodney and Lori and Lori’s children had bedrooms on the second floor of the home.
In contrast, the victims were kept in makeshift enclosures on the first floor even though two upstairs bedrooms were being used for storage. The victims’ enclosures were built of unfinished particle board. One measured 11 x 7; the other was 10 x 4. We will further discuss the sordid evidence in our analysis of the issues.
Trial was held May 8-19, 2006. The trial court instructed the jury to decide whether Lori had “intentionally tortured or inflicted cruel and inhuman bodily punishment upon” each of the victims between May 11, 2003, and April 12, 2005. At Lori’s request, the trial court defined “torture” as “to inflict intense pain to body or mind for purposes of punishment.” The trial court also gave an aiding and abetting instruction, with the principal being Lori’s husband, Rodney. Rodney was separately charged and tried, but some pretrial and posttrial hearings were conducted jointly.
The jury returned guilty verdicts on both counts. After sentencing, Lori moved for a new trial or dismissal based on the State’s failure to produce all of G.J.W.’s medical records. The trial court held an evidentiaiy hearing, taking the testimony of 6 witnesses and receiving 24 exhibits. After considering the parties’ proposed findings of fact and conclusions of law, the trial court filed a 26-page memorandum decision denying Lori’s motion. Lori appeals.
Sufficiency of the evidence
Lori argues that “(1) the behavior complained of does not fall under the statute, [and] (2) assuming that it did, the evidence was insufficient to convict her of the offense charged.” Lori did not object below to the elements instructions, which generally followed the language of the charging statute, K.S.A. 21-3609. She also requested the instruction given on the meaning of “torture,” which she fails to acknowledge on appeal while arguing for other definí-' Hons of torture. In any event, Lori does not suggest on appeal that any of the instructions were erroneous. There are, therefore, no issues regarding the instructions given. See K.S.A. 22-3414(3) (parties must object to instructions below); State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (issues not briefed are deemed waived or abandoned); State v. McCoy, 34 Kan. App. 2d 185, 189-90, 116 P.3d 48, rev. denied 280 Kan. 988 (2005) (collecting cases refusing to review juiy instructions requested by defendant).
Hence, Lori’s assertion that “the behavior complained of does not fall under the statute” is only another way of saying that the evidence was insufficient to convict under the charging statute.
‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
As applied here, abuse of a child is “intentionally torturing . . . or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3609.
On appeal, as at trial, Lori attempts to mitigate the horror of the victims’ hves by arguing they deserved it. She contends the victims exhibited aberrant sexual behavior, lied, stole, and destroyed property. “There was no evidence that the actions taken by [Lori] and her husband were seen as an end in themselves; rather, the evidence was quite clear that both children were deeply troubled and that the measures taken were disciplinary in nature.”
Lori’s descriptions of the victims’ behavior was thoroughly controverted at trial. But that is beside the point. By arguing the “measures . . . were disciplinary,” Lori concedes that they were intended as punishment. See Black’s Law Dictionary 478 (7th ed. 1999) (“discipline”: “Punishment intended to correct or instruct.”). The punishment was obviously “corporal” as the statute puts it or “bodily” as the jury was instructed at trial following PIK Crim. 3d 58.11. The remaining question is whether the punishment was cruel and inhuman.
The Kansas Supreme Court has defined “cruel” in another context as “pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the suffering of others.” State v. Lessley, 271 Kan. 780, Syl. ¶ 4, 26 P.3d 620 (2001) (aggravating circumstances under K.S.A. 21-4636[f]). “Inhuman” may be defined as “not worthy of or conforming to the needs of human beings.” Webster’s Third New International Dictionary 1163 (1986). Considering these definitions or any conceivable ordinary meaning of the terms, a rational factfinder could have concluded beyond a reasonable doubt that the punishment was cruel and inhuman.
The victims were intentionally deprived of adequate space, heat, ventilation, light, recreation, socialization, bedding, sanitation, food, and clothing for prolonged periods. It is pitiless to intention ally deprive children of the necessities of life, and continuing to do so indicates indifference to or enjoyment of their suffering. Beyond all doubt, the conditions under which the victims lived were not worthy of or conforming to the needs of human beings. Lori argues there was no intent “to inflict any bodily harm,” but abuse of a child does not require a specific intent to injure. See State v. Carr, 265 Kan. 608, 614-15, 963 P.2d 421 (1998), disapproved on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006); State v. Bruce, 255 Kan. 388, Syl. ¶ 3, 874 P.2d 1165 (1994).
A rational factfinder could also have concluded beyond a reasonable doubt that Lori intentionally tortured the victims. Her actions were gratuitous, even malevolent. The victims were kept in makeshift enclosures while two bedrooms remained unoccupied. They had mattresses but could not use them. They were forced to wait in anxious uncertainty to use the restroom, knowing they would bear the stench if permission never came. They were punished if they reported infractions but punished more if they did not. Their requests to take a shower were not always granted, but if they failed to ask, they took cold showers. Lori sent them to school in ill-fitting, worn, and dirty clothing, while her own children were well clothed. G.J.W. testified that Lori sent him to school twice in a girl’s shirt. M.M.W. testified and photographs showed that Lori would “chop . . . off’ her hair such that the other children would ask M. M. W. if she “was a boy and would be just making fun of me.” The victims nearly starved, knowing that Lori’s children had their fill.
Lori urges this court to consider her evidence, but “an appellate court does not reweigh the evidence, determine the credibility of witnesses, or substitute its view of the evidence.” State v. Henderson, 284 Kan. 267, 297-98, 160 P.3d 776 (2007). Viewing the evidence in the light most favorable to the prosecution, it was sufficient to convict Lori of abusing G.J.W. and M.M.W.
Evidence of prior acts
Lori next argues that the trial court erred in admitting evidence of her “prior acts.” She claims: “The information was clearly more prejudicial than probative. The juiy was presented with a contin uing course of conduct spanning some 8 years prior to [Lori’s] arrest. It was not material to proving the State’s case and its admission by the [trial court] was an abuse of discretion.”
Lori states on appeal that “[o]n November 5, 2005, [her] Counsel filed a motion objecting to tire potential admission of evidence regarding [her] actions prior to 2005.” Given that the charged period extended into 2003, perhaps the reference to “actions prior to 2005” is a typographical error. In any event, the trial court’s appearance docket shows no filing on November 5, 2005. The filing Lori cites is her bill of particulars, not her motion in limine. Lori filed a motion in limine on January 24, 2006, but it involved the proposed testimony of a detective as to the severity of the crimes, not Lori’s prior acts.
Lori also quotes from a transcript of a pretrial hearing held on November 10, 2005. Lori’s trial counsel, Alice Osburn, was present at this hearing, but she did not formally join in the motion in limine discussed at that hearing, which had been filed by Rodney’s counsel, Timothy O’Keefe. In the course of argument over K.S.A. GO-455 between O’Keefe and the prosecutor, Keith Schroeder, the trial judge stated, “Perhaps, since it appears to me based upon the puzzled look on Ms. Osburn and Mr. O’Keefe, and that that would appear to be a hotly contested issue, that perhaps the parties could write written briefs on that issue.”
On December 2, 2005, Lori filed a brief challenging “evidence from [G.J.W.] that he was locked in his room prior to the events alleged in the [amended complaint].” On appeal from nearly 1,200 pages of trial testimony, Lori disputes only the 5 pages in which G.J.W. described being locked in the basement before he was moved to the enclosure. Any other evidence of Lori’s “bad acts” was not raised in Lori’s brief below, and it has not been argued on appeal. Lori, therefore, has waived or abandoned those issues. See Walker, 283 Kan. at 594; State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
A review of the five pages of testimony from G.J.W. regarding his confinement in the basement shows that Lori did not then object at trial. It is well established that failure to object to evidence of prior bad acts bars appellate review. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006); Wentland v. Uhlarik, 37 Kan. App. 2d 734, 740, 159 P.3d 1035 (2007).
Lori’s failure to object is not surprising given her trial strategy of placing the history of her family and each person in it before the jury. Testifying on her own behalf, Lori began with her upbringing which she said was “very strict.” She moved on to the early lives of the victims, testifying for example that G.J.W. would portray sexual acts with dolls when he was 6 or 7 years old and that he attempted to perform oral sex on her own son at about the same age. According to Lori, this prompted the initial move of G.J.W. from the second-floor bedrooms.
Lori claimed that she was advised by a therapist never to leave G.J.W. and M.M.W. alone together. She described the treatment her own daughter with bipolar disorder had received, including a “seclusion room” in which “[tjhey locked her ... for behavior that got out of control.” Lori used these and other facts to explain the construction of the enclosures which she said were used to keep the victims apart and control their behavior. The lack of furnishings and other items were explained along similar lines. As the prosecutor pointed out in closing, “How does one justify what happened to these kids? One way is they’re monsters. They have to be locked up. They have to be treated this way.”
Lori’s trial strategy was impossible without evidence of her “prior acts.” She attempted to portray her actions during the crimes period as the end result of her increasingly desperate attempts to control the victims’ behaviors. Having invited the admission of her prior acts at trial, she may not now complain on appeal. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407 (2008); State v. Anthony, 282 Kan. 201, 214-15, 145 P.3d 1 (2006).
Motion for hill of particulars
Lori next argues the trial court erred by denying her motion for a bill of particulars. The motion was filed November 7, 2005, and heard on November 10, 2005. After hearing arguments, the trial court announced it would “issue a ruling on the bill of particulars.” As Lori and the State agree, it never did so.
On January 10, 2006, the State filed its amended complaint/ information. Lori did not renew her motion for a bill of particulars, and she did not object at trial. The January 27, 2006, hearing Lori cites on appeal concerned her motion for psychological testing, not her motion for a bill of particulars.
In an analogous case, State v. Webber, 260 Kan. 263, 283-84, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997), a defendant challenged the adequacy of a bill of particulars. The Kansas Supreme Court found the issue “without merit” in part because the defendant had failed to object below. 260 Kan. at 285.
“The State’s failure to timely and meaningfully comply with an order for a bill of particulars should be met with either a timely objection or a request for a continuance by die offended party and consideration by the trial court whether sanctions are merited, not a request for a new trial on appeal. [Citation omitted.] By failing to avail herself of the opportunity to request a continuance or objecting to the detail provided by the State and by proceeding to trial, [defendant] waived any right she may have had to require a more definite bill of particulars. [Citations omitted.]” 260 Kan. at 284-85.
The same rationale applies here. As in Webber, Lori moved for a bill of particulars. She now complains she did not receive one, even though she failed to object to the lack of a ruling, failed to renew her motion upon filing of the amended complaint/information, and failed to ask for a continuance of the trial. Lori has, therefore, waived the issue. See 260 Kan. at 285; see also State v. Cory, 211 Kan. 528, 533, 506 P.2d 1115 (1973) (where no motion for bill of particulars is filed, defendant “waived any right he may have had to require the state ... to file a bill of particulars” by “proceeding to trial on the information”).
Motion for new trial
Lori next argues the trial court erred in denying her motion for a new trial. She seeks a new trial on two grounds — the evidence in question is newly discovered under K.S.A. 22-3501 and the evidence was suppressed in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and K.S.A. 22-3212.
The evidence itself is of two iypes. The first is medical records showing G.J.W. was given growth hormones after being removed .from the home. The second is medical records stating Lori’s belief that the victims may have been sexually abused while in the care of their natural mother. The evidence is discussed first, followed by the analysis.
Records of growth hormones
By all appearances, Lori attempts to avoid a direct claim on appeal that she was actually ignorant before the trial of G.J.W.’s growth hormone treatments. She generally focuses on the State’s failure to provide her with records of his treatments. She does go further when summarizing an affidavit filed by Osburn. In the affidavit, Osbum had sworn: “It was not until the direct examination of the State’s expert witness, Dr. Unsderfer, by the State that it was revealed to the defense that [G.J.W.] was receiving growth hormones.”
This statement in Osbum’s affidavit was not necessarily a claim of personal ignorance regarding the growth hormone treatments. If read narrowly, it could mean that the direct examination of Dr. Unsderfer was the first time the State had revealed the fact of growth hormone treatments to the defense. Read so narrowly, the statement is true.
Evidence at the new trial hearing showed that the State never possessed medical records of G.J.W.’s growth hormone treatments. The State’s medical records stopped at June 1, 2005, and the growth hormone treatments did not start until about August 25, 2005. The State did receive updated growth charts from Dr. Unsderfer, apparently as an exhibit for trial, but these did not show the growth hormone treatments. At Lori’s trial, therefore, the evidence of growth hormone treatments came in through Dr. Unsderfer’s testimony, not medical records.
According to testimony at the new trial hearing, prosecutor Schroeder learned about the growth hormones during a conversation with Dr. Unsderfer. The conversation occurred after Rodney’s trial in January 2006 but before Lori’s trial in May 2006. Dr. Unsderfer asked Schroeder why neither party in Rodney’s trial had asked about growth hormones. Dr. Unsderfer testified that Schroeder was “veiy surprised” and asked if G.J.W. “was on growth hor mone.” Dr. Unsderfer testified he told Schroeder that G.J.W. was taking growth hormones and that Schroeder then asked for an opinion on the growth hormone treatments. Dr. Unsderfer testified he told Schroeder “it wouldn’t make that much difference” because M.M.W., who had not been treated with the growth hormones, had grown about the same amount as G.J.W. and G.J.W.’s growth spurt had begun before administration of the hormones.
It does not appear that the State took any steps to inform defense counsel Osburn of this conversation. However, Rodney filed a motion for new trial based on the growth hormone issue 5 days before Lori’s trial. Then, when Dr. Unsderfer testified regarding the growth hormones at Lori’s trial, Osburn only objected based on the lack of medical records.
During argument on the objection outside the hearing of the jury, Osburn clearly indicated her prior knowledge of the growth hormone treatments: “I’ve never been provided knowledge . . . except Rodney [W.] found out about it because ordered restitution for it [he] has to pay $3,000 a pop for them.” Later, she stated, “I am aware that Rodney [W.] has a Motion for New Trial based on newly discovered evidence on this same issue.” Lori’s objection at trial, therefore, was limited to the State’s failure to produce any records of the treatment, not to her ignorance of the treatments.
She obscures this distinction on appeal by summarizing Osbum’s affidavit as follows: “[0]nly upon direct examination of Dr. Unsderfer was she made aware of the use of the growth hormone.” That is not necessarily what Osbum swore to in the affidavit, and it does not reflect Osburn’s actual knowledge. Osbum knew of the treatments before trial.
Lori makes other statements on appeal which are less than accurate. She asserts that Dr. Unsderfer mentioned tire growth hormone treatments “[hjalfway through the trial,” but the doctor was only the third of the State’s 16 witnesses. Lori also hints that the medical records Dr. Unsderfer gave the State on June 1, 2005, contained the information about the growth hormones, which was impossible because the treatment had not yet started. She then hints more darkly, “[T]hose records were not provided to anyone else.” That is also not tme because the State provided Lori with discovery on the records in the State’s possession, meaning records up to June 1,2005. The records simply did not mention the growth hormones.
Upon Osburn’s objection, the State then bifurcated Dr. Unsderfer’s testimony, calling him again at the end of its case-in-chief to provide Osburn time to prepare for cross-examination. The trial judge also ordered the medical records of the growth hormone treatments to be provided to Osburn for review by Lori’s medical expert.
This expert, Richard Charles Gilmartin, M.D., testified in Lori’s case-in-chief that he had reviewed the medical records. He was not asked if he needed more time for review, however, or whether the delay in obtaining the medical records had affected his opinion in any way. Dr. Gilmartin merely testified to the function of growth hormones generally, and he offered opinions that although G.J.W. did not need treatment, it “played a role” in his weight gain. The doctor’s main concern was that both victims “are being overfed” and were “on their way” to being obese. He never examined the victims.
Lori asserts on appeal that “given time and opportunity, defense counsel would have been provided an opportunity to retain an expert witness in pediatric endocrinology.” The hearing on the motion for new trial was held on August 31, 2006, and October 2, 2006, several months after Lori’s trial. She did not proffer any such evidence.
On appeal, she relies on tire following characterization of Dr. Unsderfer’s testimony: “Dr. Unsderfer opined at the hearing that a pediatric endocrinologist, given the complete and accurate medical charts, could very well have found that the growth experienced by G.J.W. after being taken into custody, and particularly after August 2005, could have been attributed solely to [human growth hormones.]” This is perhaps a too broad reading of the transcript from the joint new trial hearing, although tire testimony was admittedly not crystal clear.
Rodney’s counsel twice asked Dr. Unsderfer whether a pediatric endocrinologist could have found that G.J.W.’s growth was attributable solely to growth hormones. Each time the State objected as to speculation, and the objection was sustained. The trial judge then told Rodney s counsel, “I think you could rephrase it properly if you’re going to deal with not whether another physician, but dealing with accepted medical literature.” Rodney’s counsel and Dr. Unsderfer next had the following exchange:
“Q. (By Mr. Rathbun): Within accepted medical research and literature on human growth hormone, is it not correct that opinions contrary to yours, that is that the entire growth height and weight was due to the growth hormone administration, could be legitimately found?
“A. That’s true. That statement is true; could be a legitimate finding.”
Records of sexual abuse
Lori states that medical records in a “separate file referred to possible sexual abuse of [M.M.W.] at age 4.” This is the file designated “34-18,” which was kept by one of the victims’ prior physicians, James Lynn Casey, M.D. Lori fails to mention that file 34-18 simply recorded suspicions Lori had herself voiced to Dr. Casey’s physician assistant in 1996 regarding sexual abuse of the victims. At trial, Lori extensively developed her theory that the victims had been sexually abused while in the care of their natural mother.
Lori claims these medical records were nevertheless crucial. She argues as follows: “Had Dr. Unsderfer known of the possible sexual abuse his opinion regarding the cause of [the victims’] condition would have been different because he would not have made a diagnosis of malnourishment at the hands of the parents.” That is not entirely true.
Dr. Unsderfer acknowledged at the hearing on the motion for new trial that he had not considered eating disorders such as bulimia and anorexia. He acknowledged that he eliminated these causes of the victims’ wasting because he “had no information that these children had any of the underlying psychological disorders that would indicate those conditions could be present.” He acknowledged further that sexual abuse is a psychologically traumatic event for children and that “[i]t’s a possibility” such trauma could produce eating disorders.
He nevertheless refused to agree with defense counsel that had he known about the allegations of sexual abuse, he “could not have proceeded to [the] diagnosis and opinion, the one [he] gave in court.” Dr. Unsderfer pointed out that “if we’re considering anorexia nervosa, bulimia, anything like that, first foremost, in males it’s very rare.” With regard to M.M.W., the doctor emphasized:
“[T]he growth pattern that she exhibited once she was out of the home . . . that’s very atypical and is not consistent with anorexia nervosa because anorexia nervosa is a long-term diagnosis and it takes literally months to years to rehabilitate these kids. But not to make them grow like this.”
The doctor did admit to telling defense counsel some weeks before the new trial hearing that he would have not necessarily diagnosed malnutrition for G.J.W. had he known of the diagnosis the victim received after being removed from the home, i.e., reactive attachment disorder (RAD). This had nothing to do with file 34-18, however, and Dr. Unsderfer stated at the hearing that he had since changed his opinion regarding RAD based on further research.
Lori further attributes to Dr. Unsderfer the opinion that “psychological dwarfism, rather than malnutrition, could have explained the failure to grow.” Dr. Unsderfer stated that some children who are not nurtured “actually can manifest a growth hormone deficiency which is reversible once the nurturing is given.” He stated that in such a case, “[i]t’s not the lack of nutrition, it’s the lack of nurturing.” He said it was impossible to diagnose psychological dwarfism in the case of G.J.W., bowever, because he had already received the growth hormone treatments. The diagnosis is also linked to RAD, not simply to sexual abuse as alleged in file 34-18.
Lori further claims that the RAD diagnosis was “kept from [Dr.] Unsderfer,” but she makes no effort to explain how it was kept from her. That is the issue here. And although she lumps this discussion in with the rest of her arguments, she clearly bases her allegation of error only on “the omission of file 34-18 and the [growth hormones] therapy.”
Newly discovered evidence
A new trial may be granted “in the interest of justice” upon “newly discovered evidence.” K.S.A. 22-3501. Lori bore the bur den to establish that the evidence in question could not have been produced at trial with reasonable diligence and that a reasonable probability exists of a different result upon retrial. See State v. Cook, 281 Kan. 961, 992, 135 P.3d 1147 (2006). The trial court’s decision is reviewed for abuse of discretion. See State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006). “The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” State v. Stevens, 285 Kan. 307, Syl. ¶ 6, 172 P.3d 570 (2007).
Of the evidence identified by Lori in this appeal, only file 34-18 was discovered after trial. The rest, being not only known but actually produced at trial, cannot be considered “newly discovered.” See Taylor v. State, 251 Kan. 272, 288, 834 P.2d 1325 (1992) (“The evidence must be new.”).
Moreover, given Lori knew of the growth hormone therapy before trial, she could have obtained the relevant medical records with reasonable diligence. Reasonable diligence would have revealed the growth hormone therapy even earlier. In fact, as discussed below, any error caused by the delay until trial was cured when the State bifurcated Dr. Unsderfer’s testimony and the trial court ordered the medical records of the growdr hormone treatments be provided to Lori’s medical expert. Dr. Unsderfer’s testimony at the new trial hearing was not sufficient to establish that testimony from a pediatric endocrinologist would have made a material difference. Lori, therefore, does not show a reasonable possibility of a different result upon retrial regarding any of the evidence actually produced at trial.
Turning to file 34-18, it only recorded Lori’s concerns, stated numerous times throughout trial by her and others with whom she had shared them, that the victims had been sexually abused while in the care of their natural mother. The substance of the file was not new, and the file itself could not possibly produce a different result upon retrial. The point is meritless.
Discovery violation
Whether a Brady violation requires a new trial is reviewed for abuse of discretion. See State v. Adams, 280 Kan. 494, 503, 124 P.3d 19 (2005). “The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Stevens, 285 Kan. 307, Syl. ¶ 6.
“Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. But evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant had personal knowledge thereof, or if the facts become available to the defendant during trial and if he or she is not prejudiced in defending against those new facts.” 285 Kan. 307, Syl. ¶ 9.
“There are three scenarios in which Brady applies,” forming a “sliding scale” as “the level of intent supporting the State’s conduct decreases.” Adams, 280 Kan. at 501. Here, however, the question is resolved on the nature of the State’s conduct, not its intent. Of the evidence in question, the State actually possessed only the knowledge that G.J.W. was taking growth hormone. The medical records themselves were never in the State’s possession.
While Schroeder failed to convey the substance of his conversation with Dr. Unsderfer to Osbum, Osbum independently obtained knowledge of the growth hormone treatments before trial. Lori obtained this information later than the State, but she never moved for a continuance, never sought production of medical records before trial, and on appeal does not otherwise show prejudice. The knowledge was, therefore, “not suppressed or withheld by the State” in a way which triggers further inquiry into the State’s intent. Stevens, 285 Kan. 307, Syl. ¶ 9; see also United States v. Barker, 467 F.3d 625, 629 (7th Cir. 2006) (“ ‘[Ejvidence for Brady purposes is deemed “suppressed” if (1) the prosecution failed to disclose the evidence before it was too late for the defendant to make use of the evidence, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.’ ”).
As the trial court correctly noted, Lori “had equal access as the State to the records of the Medical Center and Dr. Unsderfer.” This access was clearly demonstrated at the hearing on the motion for new trial. One of the witnesses at that hearing was Karen Lyons, an investigator for Rodney s counsel. When she interviewed Dr. Unsderfer on December 1, 2005, he brought three files of the victims’ medical records to the interview. Lyons did not copy any of the medical records, however. She claimed at the hearing that she was relying on the State to provide relevant medical records to her.
Although it appears that Rodney’s and Lori’s respective counsel were no longer cooperating by December 2005, Osbum took essentially the same stance at Lori’s trial. When arguing her objection to Dr. Unsderfer’s testimony, she contended, “[T]he State ... is required to give me all documentation, everything relied on by expert to reach his opinion,” and, “I think they have obligation to get it and to provide it to me if their expert is going to rely on records and they haven’t — .”
The State is required under K.S.A. 22-3212(a)(2) to “permit the defendant to inspect and copy or photograph” the “results or reports of physical or mental examinations.” Lori never asserts that the State prevented her inspection or copying of the victims’ medical records. She contends instead that the State bore a positive duty to search out medical records not already in its possession and forward them to her.
Lori does not identify the source of this supposed duty. No discovery orders required such a duty by the State. Lori cites Schroeder’s statements at a November 10,2005, hearing made in response to Lori’s motion for a bill of particulars. Schroeder defended by maintaining that the “[Sjtate has provided all of the reports in its file and continues to update those.” This was not a specific reference to medical records, and nothing suggests that Osbum might have been fooled by Schroeder’s general statement on her unrelated motion. This is established beyond doubt by Lori’s citation to her own proposed findings of fact filed by Osbum. Osbum stated that on April 20, 2006:
“The State assured counsel that I should have all of the records they had and allowed the defense to review their file. Their medical records were the same as the ones they provided to the defense at the beginning of the case. The last record the defense had was from Dr. Unsderfer’s first exam of the children.”
Osbum admitted in this proposed finding that she knew before trial that the State held no records of the victims’ ongoing medical care. She also admitted that she had everything the State had. If Osbum had actually expected the State affirmatively and continuously to update the victims’ medical records, the State’s failure to do so would have been evident to her on April 20, 2006.
Kansas case law also does not support Lori’s contentions regarding the State’s duly. In State v. Marks, 231 Kan. 645, 651-52, 647 P.2d 1292 (1982), for example, the State provided a defendant with the result of a rape kit. Defendant complained the State had not provided tire working notes of the laboratory technicians, which were not in the State’s possession. Constming K.S.A. 22-3212, the Kansas Supreme Court held the State had no such duty:
‘We hold this statute entitles a defendant to the working notes of the forensic chemist who examines a rape kit. It does not, however, require the prosecutor to obtain those notes for defense counsel unless they are in the State’s file. All the prosecutor must do is ‘permit the defendant to inspect or copy or photograph any relevant’ notes taken during the rape ldt examination. Here the State provided defense counsel with the actual laboratory report. The working notes were not contained in its file and were not seen by the prosecutor prior to trial. They were, however, available to defense counsel upon request from those who performed the experiments.” 231 Kan. at 652.
The Kansas Supreme Court reasoned similarly in State v. Dressel, 241 Kan. 426, 431-32, 738 P.2d 830, cert. denied 484 U.S. 968 (1987), where the dispute was over evidence gathered by a corporation. The evidence was not in the possession of the State, and our Supreme Court affirmed the trial court’s refusal to provide discovery under K.S.A. 22-3212. The defendant should instead have proceeded under K.S.A. 22-3214 “to subpoena witnesses and to compel the production of documents.” 241 Kan. at 432.
These authorities apply here. Moreover, to the extent there was any suppression, Lori does not show she was prejudiced. Given the extent of the State’s evidence, there is not a reasonable probability that the result would have been different if Lori had possessed before trial all the evidence she identifies here. See Haddock v. State, 282 Kan. 475, 507, 146 P.3d 187 (2006).
Prosecutorial misconduct
Lori finally argues “the prosecutor s conduct in deliberately withholding evidence of human growth hormone treatment also amounts to prosecutorial misconduct.” This issue is limited to Schroeder’s knowledge, obtained during his conversation with Dr. Unsderfer, that G.J.W. was taking human growth hormones. Lori does not argue based on the medical records.
Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), prosecutorial misconduct is not analyzed under the general prosecutorial misconduct standard set out in such cases as State v. Albright, 283 Kan. 418, Syl. ¶ 6, 153 P.3d 497 (2007). Instead,
“[t]he three components or essential elements of a Brady . . . prosecutorial misconduct claim are: The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Haddock, 282 Kan. 475, Syl. ¶ 13.
See Wilkins v. State, 286 Kan. 971, 190 P.3d 957 (2008).
Evidence that G.J.W. was taking growth hormone was arguably favorable to Lori. It was exculpatory to the degree it provided some explanation, beyond malnutrition, why G.J.W. grew so much after being removed from the home. The probative value was very limited, however. M.M.W. grew the same amount without growth hormones. There were numerous other signs of malnutrition. Lack of food was only one of the many deprivations suffered by the victims.
As for suppression, Dr. Unsderfer testified that he told Schroeder the growth hormone treatments would not make much difference. This mitigates Schroeder’s failure to tell Osbum. State v. Campbell, 29 Kan. App. 2d 50, 23 P.3d 176 (2001), cited by Lori, is easily distinguishable. In Campbell, the time of death, “[o]ne of the key issues,” was not listed in the treating physician’s medical records and the prosecutor incorrectly told the defense that the State had no time of death evidence. 29 Kan. App. 2d at 56-58. Here, the growth hormone treatments were not a key issue, and Lori could have learned of the treatments had she subpoenaed G.J.W.’s medical records and/or interviewed Dr. Unsderfer. Schroeder also made no representation regarding the treatments. The most critical fact remains that Osbum learned of the growth hormone treatments before trial. The State did not suppress the evidence in violation of Brady. See Stevens, 285 Kan. 307, Syl. ¶ 9; Barker, 467 F.3d at 629.
Finally and most clearly, there was no prejudice. Lori’s lack of response when she learned of the growth hormone treatments before trial suggests the discovery was not sufficient to alter her strategy. The State’s evidence was also overwhelming. Lori does not show a reasonable probability that had she learned of the growth hormone treatments earlier, the result of the proceeding would have been different. See Haddock, 282 Kan. at 507.
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McAnany, J.:
This case comes to us following the district court’s dismissal of plaintiff s amended petition for failure to state an actionable claim for either negligence or violation of the Kansas Consumer Protection Act. Resolution of the negligence claim turns on whether the defendants owed a duty to plaintiff under the facts alleged. Resolution of the Kansas Consumer Protection Act claim turns on whether plaintiff s claim is barred either because the action was not commenced within the period of the applicable statute of limitations or because plaintiff was not a party to any consumer transaction.
Kansas is a notice-pleading state. As a general rule, a petition need contain only “(1) [a] short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader’s self entitled.” K.S.A. 60-208(a). A legal theory for relief need not be detailed, so long as the petition apprises the defendant of the facts upon which the plaintiff claims to be entitled to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). In considering a motion to dismiss for failure to state a claim upon which relief can be granted, we must assume all factual allegations in the amended petition are true and draw all reasonable inferences in favor of the plaintiff to determine if it states an actionable claim on any possible theory. See Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007); Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). Plaintiff asserts the following which we assume to be true for the purpose of our analysis:
The plaintiff, Judith Berry, was a registered nurse licensed to practice her profession by the Kansas State Board of Nursing (Board). Berry admitted to the Board that she had a problem with alcohol dependency. Accordingly, in August 2003 she agreed to participate in the Board’s Kansas Nurses Assistance Program (KNAP) pursuant to which she agreed to refrain from consuming alcoholic beverages and to submit to random testing to confirm her abstinence.
The Board contracted with defendant Compass Vision, Inc. (Compass), to serve as the third-party administrator of KNAP’s alcohol testing program. In turn, Compass engaged’defendant National Medical Services, Inc. (NMS), to provide alcohol testing for nurses in KNAP and to report its test results to the Board.
Ethyl glucuronide (EtG) is a metabolite of alcohol. The presence of EtG in urine reportedly provides proof of prior alcohol consumption, even after the alcohol itself has been eliminated from the body. Compass and NMS were leading proponents of EtG testing and touted EtG testing as the “gold standard.” Compass and NMS established 250 ng/ml (nanograms per milliliter) as the threshold for a “positive” test result. In other words, the presence of more than 250 ng/ml of EtG in a urine sample was reported to the Board as positive for the test subject having consumed alcohol. Further, Compass claimed that any EtG test result over 500 ng/ml conclusively proved intentional consumption of an alcoholic beverage by the test subject.
Published scientific literature as early as March 2004 disclosed that many ordinary products, including hand sanitizers used in hospitals throughout the country, contain ethanol, the use of which could result in positive EtG test results. Notwithstanding this information, the defendants continued to promote as valid and reliable their EtG test with its 250 ng/ml threshold for a positive result.
In January 2005, and again in June 2005, Berry submitted to random urinalyses and provided samples that were collected by Compass and analyzed by NMS. The test results for both samples were positive for Berry having consumed alcohol in violation of her KNAP agreement. Berry denies having consumed any alcoholic beverage that would account for the positive test results. In August 2005, the Board revoked Berry’s nursing license.
In this action Berry claims Compass and NMS were negligent in a number of respects, including in designing, implementing, promoting, and managing their EtG testing protocol. Among the various specific grounds for negligence, she asserts that Compass and NMS were negligent in “[ejstabhshing cutoffs over which test results would be reported as positive’ that were arbitrary and scientifically unreliable and invalid.” Further, Compass and NMS knew that because Berry was a participant in KNAP, her license to practice nursing would be in jeopardy if she tested positive. Berry also claims the conduct of Compass and NMS constitutes deceptive acts and practices contrary to K.S.A. 50-626 of the Kansas Consumer Protection Act (Act).
The district court, without analysis or explanation, sustained the defendants’ motions to dismiss.
Negligence Claim
In her negligence claim Berry does not assert that EtG is an inaccurate indicator for alcohol or that the defendants mishandled or misanalyzed her urine sample. Neither does she claim that they misreported the presence of EtG in her sample. She maintains only that because alcohol is present in everyday products like the hand sanitizers she used at her job, the defendants owed her a duty to avoid reporting false-positive results by adopting a minimum threshold which accurately indicates alcohol consumption instead of incidental exposure to alcohol. Further, she does not allege that the defendants failed to warn her or the Board of alternative sources of EtG, as the defendants seek to characterize her claim. Her claim is simply that the defendants set the threshold for a positive test result at a level that is arbitrary and scientifically unreliable.
The fundamental basis for the defendants’ motion with respect to the negligence count was that they owed no duty to Berry. Whether a legal duty exists is an issue of law over which appellate courts have unlimited review. Roe v. Kansas Dept. of SRS, 278 Kan 584, 592, 102 P.3d 396 (2004). As expressed by our Supreme Court in Blackmore v. Auer, 187 Kan. 434, 441, 357 P.2d 765 (1960),
“[a]n act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. (Pfalsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253).”
Three elements must be satisfied before a legal duty arises in Kansas. First, the plaintiff must be a foreseeable plaintiff, i.e., “within the range of apprehension.” Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983), disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).
Second, the probability of harm must be foreseeable. OMI Holdings, Inc. v. Howell, 260 Kan. 305, 338, 918 P.2d 1274 (1996). “ ‘[T]he test of negligence ... is not whether the [defendant] should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result.’ [Citation omitted.]” 260 Kan. at 337-38; see Cerretti v. Flint Hills Rural Electric Co-op. Ass’n, 251 Kan. 347, 351, 837 P.2d 330 (1992). Foreseeability as referred to in these first two tests is
“ ‘ “a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. [Citation omitted.] An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.” ’ [Citation omitted.]” South v. McCarter, 280 Kan. 85, 103-04, 119 P.3d 1 (2005).
Third, there must be no public policy against imposing the claimed duty on the defendant. OMI Holdings, 260 Kan. at 338 (“A court may choose not to recognize the duty if the duty goes against public policy.”). But Kansas courts tread lightly on matters of public policy because the legislature is better equipped tó establish public policy. For example, in Ling v. Jans Liquors, 237 Kan. 629, 640, 703 P.2d 731 (1985), our Supreme Court deferred to the legislature and declined to impose liability on alcohol vendors for torts committed by inebriated patrons when the legislature had not enacted a dram shop act.
Berry easily satisfies the tests for a foreseeable plaintiff and foreseeable injury. Berry’s circumstances stand in stark contrast to the classic circumstances of Mrs. Pfalsgraf, who was standing on the railroad platform when a man carrying a package of fireworks attempted to jump onto a train which had started to move. A railroad employee, attempting to help the man, dislodged the package of fireworks, causing them to fall to the tracks and explode. The concussion caused scales on the platform many feet away to fall, striking Pfalsgraf. See Pfalsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928). Berry, on the other hand, was not a bystander but the direct and immediate object of the defendants’ conduct. Among those whom these defendants could foresee asserting a claim against them for negligent testing, Berry clearly stands at the front of the line.
The harm Berry alleges was equally foreseeable by the defendants. The testing services promoted and provided by these defendants could be used by private employers evaluating prospective employees, by licensing agencies such as the Board here, or by courts when dealing with criminal defendants. Errors in administering alcohol testing programs or reporting their findings could lead to a prospective employee being rejected by a private employer or, in circumstances such as those present here, a licensed professional being denied the opportunity to continue in his or her profession. In tire case of the courts, these errors could lead to the loss of personal freedom.
Here, the defendants solicited business from the Board to test nurses whose licenses were at risk because of claims of alcohol abuse. The defendants could clearly foresee that a positive test result could result in the loss of the test subject’s license. The exact harm Berry claims to have experienced here was a foreseeable consequence of negligence in the testing and reporting of the test results to the Board.
Finally, there is no public policy against imposing liability. We defer to our legislature in establishing public policy and find no expression by our legislature that urinanalysis providers are exempt from liability for their negligence in providing faulty results or interpretations. These defendants, as testing providers to the Board, do not argue that they are protected by sovereign immunity. We find no public policy that would immunize these defendants from the consequences of their actions. Therefore, the third element for establishing a duty has been satisfied.
In this regard we note the dissent’s public policy argument which is predicated upon the fact that this claim arose in the context of administrative proceedings to determine Beriy’s fitness to practice her profession. The dissent seems to confuse the wrongful conduct Berry complains of with the product of that wrongful conduct. The wrongful conduct in this action is the claimed negligence of Compass and NMS, not the action of the Board in revoking Berry’s nursing license. The consequence of this claimed negligence was the loss of Berry’s license and the damages that followed.
We conclude that under Kansas law Berry has alleged the breach of a recognizable duty, and she has pled a cause of action for which relief may be granted.
Appellate courts in other states have reached the same conclusion we reach today. See Stinson v. Physicians Immediate Care, 269 Ill. App. 3d 659, 646 N.E. 2d 930 (1995); Lewis v. Aluminum Co. of America, 588 So. 2d 167 (La. App. 1992); Duncan v. Afton, Inc., 991 P.2d 739 (Wyo. 1999).
Defendants, on the other hand, rely on Perez-Rocha v. Com., Bureau of Pro., 933 A.2d 1102 (Pa. Commw. 2007), as contraiy authority. There, the Pennsylvania Supreme Court affirmed the 3-year suspension of a medical doctor’s license. 933 A.2d at 1108. The issue before the court was the sufficiency of the evidence supporting the agency’s action, not whether the testing agency owed a duty to its test subject. Defendants rely on Perez-Rocha to establish the scientific reliability of EtG testing. The issue is not the reliability of the test itself, but the manner in which its results are reported. As we read Berry’s amended petition, she does not challenge the scientific basis for EtG testing, she merely claims that the defendants were negligent in establishing an arbitraiy and unreasonably low threshold for a positive test result. Perez-Rocha does not apply.
Defendants also rely on SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353-55 (Tex. 1995), which involved a preemployment drug screen which disclosed opiates in the applicant’s urine. The applicant claimed that she tested positive because she had eaten poppy seeds before the test. She alleged that the testing laboratory had a duty to inform her or her employer that poppy seed consumption could cause a false-positive test result. She also claimed that the lab should have asked her before the test whether she had eaten poppy seeds. In rejecting this claim, the Texas Supreme Court found that the duty the plaintiff advocated would require the testing lab to “inform each test subject not only of the possible effect of poppy seeds but of all possible causes of positive results other than using drugs.” 903 S.W.2d at 353. The court left open the question “whether a drug testing lab . . . has a duty to use reasonable care in performing tests and reporting the results.” 903 S.W.2d at 355.
SmithKline Beecham is not persuasive. Berry does not claim that the defendants had the duty to warn the Board of all the potential sources of EtG such as hand sanitizers. Rather, she alleges that the defendants were negligent in setting too low a threshold for a positive test result. The court in SmithKline Beecham was concerned that it was being asked to impose an unreasonable burden on testing entities by requiring them to inform each test subject of all possible sources and causes of positive test results. 903 S.W.2d at 353. The duty Beriy seeks us to declare here would have no such burdensome effect.
The defendants also rely on Willis v. Roche Biomedical Laboratories, 61 F.3d 313 (5th Cir. 1995), a case decided about a week after SmithKline Beecham, which was based on Texas substantive law. In Willis, Roche provided random drug testing for DuPont. Willis, a DuPont employee, tested positive for methamphetamine and was placed on restricted work duty and sent to a physician. Three months later Roche informed DuPont that the test had registered a false positive by confusing the presence of an over-the-counter cold medicine with illegal methamphetamine. Upon learning of the mistake, DuPont compensated the employee for lost time and for medical expenses. The Fifth Circuit Court of Appeals, without undertaking a foreseeability analysis, relied on SmithKline Beecham in affirming the district court’s entiy of summary judgment in favor of Roche on Willis’ negligence claim. 61 F.3d at 315-16. Since the holding in Willis is predicated entirely upon the decision in SmithKline Beecham, and since SmithKline Beecham is clearly distinguishable, we do not find Willis to be persuasive.
The other cases cited and discussed by the defendants, such as Caputo v. Compuchem Laboratories, Inc., 1994 WL 100084, at *3-4 (E.D. Pa. 1994) (unpublished opinion), and Vargo v. National Exchange, 376 N.J. Super. 364, 870 A.2d 679 (2005), also involved claims that the testing entity failed to inform the employer that the positive test result could be attributable to causes other than the presence of illegal drugs. As discussed earlier, these cases are dis tinguishable from the claims before us. Berry makes no claim that the defendants had the duty to inform the Board of all the possible sources for the metabolite found in her urine sample. She simply claims that the threshold for a positive test result was set in a negligent fashion.
Berry presents an actionable claim for negligence against these defendants. The district court erred in dismissing Berry’s amended petition for failure to state a claim.
Consumer Protection Claim
The defendants claim that Berry’s consumer protection claim is barred because it was not commenced within the period of applicable statute of limitations and because Berry’s claim does not involve a consumer transaction. We need only address the latter defense.
Berry claims in her amended petition that she was the victim of deceptive practices in a consumer transaction with the defendants. This claim calls for our de novo interpretation of the Act. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). In doing so, we give effect to the intent of the legislature as expressed through the language it employed. There is no need to speculate as to the legislature’s intent when confronted with a statute that is clear and unambiguous on its face. When considering such a statute, we will not read into it something not readily found there. See In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008).
The Act applies to “consumers” engaged in “consumer transactions” with “suppliers.” See K.S.A. 50-623(b); K.S.A. 50-624, comment (c); K.S.A. 50-626(a). A “consumer transaction” is the “sale, lease, assignment or other disposition for value of property or services . . . to a consumer.” K.S.A. 50-624(c). We assume arguendo that drug testing is a “service” contemplated by the Act. See Moore v. Bird Engineering Co., 273 Kan. 2, Syl. ¶ 4, 41 P.3d 755 (2002) (finding that an engineer who designed a bridge provided a service under the Act).
A close reading of Berry’s amended petition discloses the following allegations:
• Compass contracted with the Board to be the third-party administrator for the Board’s alcohol testing program for nurses.
• NMS contracted with the Board to do EtG testing of the nurses.
• NMS provided to the Board the results of alcohol testing.
• Nurses who abuse alcohol are required to submit to random urinalyses.
• Beriy agreed with the Board to submit to random testing.
• Berry submitted to random testing in January and June 2005.
In Count II of her amended petition Berry incorporates the foregoing facts and adds that she “purchased the defendants EtG test for allowable purposes under the act and is therefore entitled to an award of [damages].” This reference to a “purchase” seems to be a contradictory characterization of the transactions described in detail earlier in her amended petition. Her factual allegations disclose transactions between the Board and the defendants but not a consumer transaction between Berry and the defendants.
Nowhere in her amended petition does Berry allege facts one could characterize as her exchanging anything of value with the defendants to secure their services. The Act only applies to “consumer transactions,” which are “sales” or other “dispositions for value” of consumer goods or services. K.S.A. 50-624(c). Black’s Law Dictionary 1364 (8th ed. 2004), defines “sale” as the exchange of “a thing” for “a price in money paid or promised.” It defines “value” as the “money that something will command in an exchange.” Black’s Law Dictionary 1586.
While we liberally construe Berry’s amended petition in search of any viable theory of recovery, we cannot ignore the obvious import of her specific allegations and accept her mischaracterization of them in order to preserve a consumer protection claim that obviously does not arise from a consumer transaction. Accordingly, we conclude that the district court did not err in dismissing Berry’s consumer protection claim.
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Hill, J.:
This is a direct appeal by Bernard E. Preston from his drug convictions. Preston questions the legality of a car stop as well as the resulting searches of his person and car. In addition, Preston raises trial errors of admitting evidence of his refusal to consent to searching the car and allowing the State’s attorney in closing argument to comment about that refusal. Also, Preston complains about the trial court admitting evidence of his prior drug conviction. Finally, he contends the trial court improperly imposed a higher sentence from the grid box without a jury determination of any sentencing aggravating factors. After reviewing the record on appeal, we must affirm.
The facts reflect a car stop based on a suspicion raised by a dispatchers report.
While on patrol at 1:30 a.m. on September 3, 2005, Lenexa Police Detective Sergeant Dan Owsley received a radio report from the dispatcher that police had gone to the Overland Park Regional Medical Facility to look into an aggravated batteiy report. According to the report, the suspect had dropped the batteiy victim off at the hospital and then left the hospital on foot. Following up, Owsley drove to the area looking for a black male on foot.
Within a few minutes, the dispatcher told Det. Sgt. Owsley a person who might be heading to pick up the suspect was driving a Cadillac, Suburban, or Oldsmobile car. With this in mind, Owsley began looking for such cars. Within 5 minutes of hearing about die aggravated batteiy, Owsley saw a white Cadillac pull onto the street. A black male drove the Cadillac, and the officer noted a black female passenger. When the Cadillac passed Owsley, both occupants of the car stared at him. Suspicious, Owsley began to follow the Cadillac.
Knowing that a driver in Kansas must, by law, signal a turn at least 100 feet before making a turn, Owsley noticed the driver of the Cadillac failed to give such a turn signal before the car turned. Using that seeming traffic violation as a pretext, Owsley stopped the car.
Owsley did say later that from the time he first saw the Cadillac he thought the occupant could be either the aggravated battery suspect or the person picking up the suspect. According to the officer, his purpose for stopping the car was to discover any possible involvement of the people in the Cadillac with the aggravated battery as well as the traffic violation.
Not gaining consent to search the Cadillac, the detective searches the car and driver anyway.
After the Cadillac pulled over, Owsley got out, approached the driver s door, got the driving license from the driver, and asked the occupants where they were going. The driver, Preston, said they were going to pick up a relative, but he could not give the relative’s address and would not give the relative’s name.
Detective Sergeant Owsley discovered from the computer that Preston was on federal supervision for a narcotic violation for a conviction for conspiracy to sell crack cocaine. Owsley found this information significant because he believed there must be substantial illegal involvement to be placed on federal supervision.
Turning his attention to the passenger, Owsley met Demicka Johnson, who also owned the car. When he asked her for permission to search, Johnson told Owsley he would have to ask Preston.
Pursuing the matter, Owsley went back to speak with Preston. Preston’s phone was ringing “quite a bit.” Owsley asked Preston to place the phone on the trunk of the car. At this time, Owsley saw a box of cigarillos containing loose tobacco on the backseat of the car. To Owsley, this suggested marijuana involvement because “people oftentimes hollow out the cigar, fill it with marijuana, and smoke it as a marijuana blunt.”
Concerned for his safety, Owsley performed a pat-down search of Preston to make sure Preston did not have any weapons. Owsley did not feel any weapons on Preston’s person but did feel a lump in his pocket. He believed the lump was money and asked if he could search the pocket to make sure that was all it was. Preston said he could. The officer discovered $2,500 in $100, $50, $20, and $10 increments. Owsley thought the amount was significant because Preston had told him he had been unemployed for 6 months. Also, in his experience, Owsley said people associated with narcotics sales often fold their money in such increments and most people do not have $2,500 in their pocket.
Based on many factors, Owsley wanted to search the Cadillac to ensure there were no weapons in the car. These factors included the aggravated battery report; the battery suspect in the area tiying to find a ride; the report that a Cadillac was possibly picking up the suspect; Owsley’s belief about Preston’s involvement with the suspect; Owsley’s experience that aggravated batteries often involve drugs; and the large amount of money held by Preston, a man who said he had been unemployed for some time.
During this weapons search of the Cadillac, Owsley smelled the odor of burned marijuana. From this odor, he believed there was marijuana in the car and began searching throughout the car for the source of the odor. Owsley thought the odor was coming from an ashtray, but he found no marijuana there.
Owsley called for a K-9 officer, and the rest of the car was searched by a canine. The canine showed a strong interest along the side of the front passenger seat. The officer conducted a second search of the car. This time the officers found cocaine and marijuana in an ashtray on the right rear passenger’s door.
The State charged Preston with possession of cocaine with intent to sell contrary to K.S.A. 65-4107(b)(5), K.S.A. 65-4161(a), K.S.A. 21-4705, and K.S.A. 21-4708; possession of marijuana contrary to K.S.A. 65-4105(d)(16), K.S.A. 65-4162(a), and K.S.A. 21-4502(1)(a); and possession of more than 1 gram of cocaine with no Kansas drug stamp in violation of K.S.A. 79-5201 et seq., K.S.A. 79-5208, K.S.A. 21-4704, and K.S.A. 21-4707.
The defense fails to suppress evidence, and the jury convicts Preston.
Before trial, Preston moved to suppress all evidence seized from the car. In his suppression motion, Preston argued the stop was unfounded and lacked probable cause. Preston argued Owsley lacked probable cause to- continue questioning or searching him once he found out Preston was not the aggravated battery suspect.
In response, Owsley believed he had probable cause to search the Cadillac for nine reasons. First, the odor of burned marijuana in the car; second, in the early morning hours when there is little traffic, Preston was near where the aggravated battery suspect was thought to be; third, Owsley’s belief that aggravated batteries are often associated with narcotics; fourth, the Cadillac fit the description of a car possibly on the way to pick up the suspect; fifth, the box of cigarillos with loose tobacco, typical of marijuana use; sixth, the narcotics’ conviction on Preston’s record; seventh, Preston’s evasiveness about the relative he was picking up; eighth, Preston’s ringing celi phone; and, ninth, the cash, the amount, the way it was sorted by denomination, and the way it was folded.
The district court denied Preston’s motion, finding that Owsley saw Preston commit a traffic violation by failing to signal a turn as required by the statute. The court held that even though the traffic stop was a pretext, Owsley had reasonable suspicion for the stop. The court ruled Detective Sergeant Owsley had a basis to continue his investigation based on the appearance of narcotics activity. On the State’s motion to clarify, the district court noted that Owsley first noticed the marijuana smell when he placed his head inside the car to conduct a protective sweep for firearms. The court went on to hold the smell provided probable cause to search the car. The juiy convicted Preston on all charges.
We look first at the car stop.
Preston first argues the stop was an illegal seizure because there was no basis to believe he' committed, was committing, or was about to commit a crime. In reply, the State contends Preston failed to preserve this issue because no objection was made when Owsley testified about the stop.
Generally when the defendant does not object at trial to evidence resulting from an allegedly illegal traffic stop, the issue is not preserved for appeal. State v. Anderson, 33 Kan. App. 2d 607, 609-610, 106 P.3d 89 (2005); see State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001); K.S.A. 60-404. The defendant must object at trial even after a motion to suppress was made and denied. State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004).
Even though Preston did not object at trial to testimony regarding the stop, Preston did object to the evidence resulting from the stop when he lodged a continuing objection to the search of the Cadillac. When a continuing objection is made, failure to object when the evidence is later admitted does not bar the defendant from raising the issue on appeal. State v. Branning, 271 Kan. 877, 880, 26 P.3d 673 (2001). We hold Preston preserved a challenge to the stop by objecting to the evidence seized from the stop and search. Therefore, we will proceed with our inquiry.
Preston contends the State failed to prove he violated K.S.A. 8-1548(b), the turn signal violation. In State v. Greever, 286 Kan. 124, 138, 183 P.3d 788 (2008), our Supreme Court ruled that a violation of K.S.A. 8-1548 is an absolute liability offense. The court explained that the plain language of the statute- provides that a vehicle must signal a turn continuously for at least 100 feet before making a turn. The court held that where the deputy testified he believed Greever violated the turn-signal statute and evidence indicated the deputy observed the violation, the deputy had probable cause and reasonable suspicion to stop Greever for violating the statute. 286 Kan. at 141. That roughly matches the testimony here.
Similarly, in State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1990), the court held that an officer has probable cause for a traffic stop when he observes a driver violate K.S.A. 8-1548. The court explained that this outcome is not dependent on whether any other vehicles are in the vicinity, stating, “K.S.A. 8-1548 requires a lane change signal within 100 feet of the point where the vehicle makes the lane change, regardless of whether there is any traffic moving in front of or behind the vehicle.” 263 Kan. at 733.
Based upon Greever and DeMarco, evidence regarding when Preston made the decision to turn and evidence of whether his signal adequately warned others of his intention to turn was unnecessary. All that was required was testimony that Owsley believed Preston violated the statute and evidence indicating Preston indeed failed to signal 100 feet before making a turn.
As we previously noted, Owsley stated tire purpose of the stop was to determine involvement in the aggravated battery and due to an obvious traffic violation for not giving a turn signal 100 feet before making a turn. Owsley stated Preston turned his signal on just as he began the turn. Owsley therefore had a legitimate reason to stop Preston for violating K.S.A. 8-1548(b). The fact that Owsley admitted the turn-signal violation was a pretext is irrelevant. The court in Greever emphasized that when an officer articulates facts demonstrating probable cause to suspect a traffic violation, the seizure is valid even if pretextual. 286 Kan. at 140. We see no need to grant relief here.
Preston failed to object to the pat-down search at trial; therefore, the issue is not preserved for us to decide.
At trial, Owsley testified he conducted a pat-down search of Preston’s person. Owsley testified he found a bulge in Preston’s front pocket that was $2,500 in cash. Preston did not object to this testimony. Although Preston later raised a continuing objection when the State elicited testimony regarding the search of the vehicle, the evidence that Preston now complains about (i.e., the $2,500 cash) resulted from the pat-down search, not from the search of the vehicle. Because Preston failed to object when Owsley testified regarding the evidence he obtained as a result of the pat-down search, he did not properly preserve this matter for appeal and we will not address the issue. State v. Saenz, 271 Kan. at 349.
Besides, during a stop, an officer is allowed to frisk a person for weapons if the officer reasonably suspects his or her personal safety requires it. State v. Burton, 37 Kan. App. 2d 916, 919, 159 P.3d 209 (2007) (citing K.S.A. 22-2402[2]; State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 [2006]). Based on Owsley’s testimony, it appears he was justified in conducting a pat-down search for weapons. Owsley twice articulated a concern for his safety. The fact that Owsley believed Preston was involved in an aggravated battery alone supports the inference that Preston may have been armed or dangerous. Moreover, the fact that Owsley was aware Preston was on federal supervision for a narcotics violation supports the reasonable inference that Preston may have been armed.
Next, we examine the concept of standing and both searches of the car.
Preston argues that Owsley lacked probable cause to conduct the second search. At trial, Preston objected to the testimony regarding the initial search and was granted a continuing objection on this basis.
In response, the State contends that Preston cannot object to the search because he is not the owner of the Cadillac. The State reasons that since the actual owner, Johnson, was present, Preston has no standing. We note the State did not raise this issue before die district court. An issue of standing not raised before the district court is generally not considered for die first time on appeal. State v. Delgado, 36 Kan. App. 2d 653, 657, 143 P.3d 681 (2006).
Nonetheless, our Supreme Court in State v. Boster, 217 Kan. 618, 621, 539 P.2d 294 (1975), held that a driver who has actual possession and custody of a vehicle and apparent consent from the owner has a sufficient interest as possessor to justify a reasonable expectation of privacy and to assert his or her constitutional rights against unreasonable search and seizure. See also State v. Sanders, 5 Kan. App. 2d 189, 194-95, 614 P.2d 998 (1980) (held driver of vehicle operating with permission of owner has legitimate expectation of privacy in vehicle, which allows him to contest search).
It appears to us that the driver, Preston, was in control of the Cadillac, even though the car was registered to Johnson. Preston was the driver. Owsley testified he spoke to the passenger, Johnson, and asked her if he could search the vehicle; Johnson responded that it was her car but that Owsley would need to ask Preston if he could search. Preston did not give consent to search the vehicle. There is no evidence Johnson did not give Preston consent to drive her vehicle. In fact, Johnson essentially conferred standing upon Preston by telling Owsley he would need to ask Preston if he could search. We hold that Preston had a sufficient possessory interest in the car to have standing to now challenge the search of Johnson s vehicle. We examine both searches.
Weapons search
Preston first argues the initial search for weapons was illegal because Owsley did not have a reasonable and articulable suspicion that Preston was dangerous and could gain immediate control of weapons. The findings of the district court are unclear in this regard. It appears to us the district court upheld the initial search as a protective search for weapons and the second search was properly based on probable cause due to the burned marijuana smell.
A warrantless search is unreasonable unless it falls within one of nine exceptions recognized in Kansas, including consent and stop and frisk/investigatory stops. State v. Warren, 38 Kan. App. 2d 697, 698-99, 171 P.3d 656 (2007). Here, it is clear that Preston did not give consent to search the vehicle. A search for weapons is one of those exceptions.
We look then at the exception for a search for weapons. In Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), police officers stopped to investigate a car that had swerved into a ditch. The driver, Long, met the officers at the rear of the vehicle. When Long turned from the officers and walked toward an open door of the car, the officers followed him and saw a knife on the floor. The officers conducted a pat-down search of Long. While Long and an officer stood at the rear of the car, the other officer shined his flashlight into the car to search for weapons. The officer saw something under the armrest, knelt in the vehicle, lifted the armrest, and saw a pouch that contained marijuana. Long was then arrested and the vehicle was searched more thoroughly.
On appeal, the Court noted that investigative detentions involving vehicles are especially fraught with danger to officers. The Court held that a search of a vehicle’s passenger compartment, limited to areas in which a weapon may be placed or hidden, is permissible if an officer has a reasonable belief based on specific and articulable facts that the suspect is dangerous and may gain immediate control of weapons. The Court further noted that if the officer discovers contraband while conducting the search, he is not required to ignore it. 463 U.S. at 1050.
The Court in Long held the officers reasonably believed Long posed a danger under the facts of that case and rejected the lower court’s belief that it was unreasonable to suspect Long could injure the officers because he was under their control and could not gain access to weapons in the vehicle. The Court reasoned that a suspect may break away from officer control and retrieve a weapon from the vehicle. Moreover, if the suspect is not arrested, he or she may be permitted to reenter the vehicle and have access to weapons. In their view, the officer is particularly vulnerable because an arrest has not been made. 463 U.S. at 1052.
The application of Long in this case is not affected by the recent riding in Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009), which restricted searches for weapons in a car when the driver of the car has been handcuffed and placed in a police car. Here, Preston and his passenger at the time of the search were not arrested, not handcuffed, and both presumably would have been allowed to leave in the car had drugs not been found. Thus, officers still needed to make sure that neither Preston nor his passenger would have access to a weapon upon return to the car.
Turning to the facts of this case, we find several significant in deciding the reasonableness of this case. We note that Owsley stopped a car that matched the description of a vehicle that possibly contained persons involved in an aggravated batteiy. Owsley believed Preston was on federal supervision for a narcotics violation. Owsley conducted a pat-down search of Preston prior to the search of the vehicle to make sure everything was safe and that Preston did not have weapons on him. Just as Owsley was justified in conducting a pat-down search for weapons, Owsley was equally justified in conducting a protective search of the vehicle for weapons.
The specific and articulable facts caused Owsley to reasonably believe that Preston may have been dangerous or able to access weapons, especially since he wasn’t under arrest. Preston was not in handcuffs just prior to the search. As the court in Long reasoned, either Preston or Johnson could have broken free from the officers’ control and retrieved a weapon from the vehicle. We hold this search for weapons was reasonable.
Second search for contraband
Preston argues that because the illegal initial search provided probable cause for the second search, the cocaine and marijuana discovered as a result of the second search should be suppressed as “fruits of the poisonous tree.” We are not persuaded so.
Based on the reasoning set out above, the initial search was a proper protective search for weapons. Owsley was therefore in a legitimate position to detect the smell of burned marijuana. In Kansas, the smell of marijuana detected by an experienced officer creates probable cause to support a warrantless search. State v. MacDonald, 253 Kan. 320, 325, 856 P.3d 116 (1993). Thus, Owsley lawfully conducted the second search in which cocaine and marijuana were discovered. We hold that both the search and seizure were reasonable.
Preston’s failing to object prevents us from examining the claim of error concerning the State’s presentation of evidence.
Next, Preston argues that testimony and comments regarding his refusal to consent to a search of the car violated his Fourth Amendment right to be free from unreasonable searches and his Fifth Amendment right against self-incrimination. Preston raises three instances in which the State referred to his refusal to consent to a search. This question of whether an individual’s constitutional rights have been violated is a question of law over which this court has unlimited review. McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).
Responding, the State points out that Preston failed to object at trial to the evidence and comments he now complains about. Indeed, our review of the record reveals that Preston only objected to the first comment made during closing argument of the State’s attorney.
We list the three instances in which the State referred to Preston’s refusal to consent to a search. First, during direct examination of Owsley, the State asked, “During your investigation of this case that night, did anyone tell you, you could not search the car?” Owsley responded, “Just Mr. Preston.” Second, the State explained in its initial closing argument that when determining whether Preston possessed cocaine, it must be determined that Preston had knowledge of the presence of a controlled substance with intent to exercise control over it. Concerning control, the State noted that Preston “was the only person in that car that refused to grant consent to search.” When Preston objected to this statement, arguing it misstated the evidence, the district court responded that the jury would remember the evidence. Third, the State commented later in argument that Preston was in the right place at the right time to commit the crimes, noting he was the only person who did not want the officers to search the vehicle.
No published Kansas case appears to address whether there is a constitutional right to refuse consent to search such that the State may not elicit testimony or comment on the defendant’s refusal. In our view, this case is analogous with cases dealing with evidence of post-arrest silence of the accused being admitted to prove guilt in violation of the ruling in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In Doyle, the United States Supreme Court held that a prosecutor’s use of a defendant’s post-arrest silence to impeach that defendant’s credibility violates the Fifth and Fourteenth Amendments to the United States Constitution.
While dealing recently with an apparent Doyle violation, our Kansas Supreme Court in State v. King, 288 Kan. 333, Syl. ¶ 5, 204 P.3d 585 (2009), stated: “In accordance with the plain language of K.S.A. 60-404 [contemporaneous objection rule], evidentiary claims — including claims concerning questions posed by a prosecutor and responses to those questions during trial- — must be preserved by way of a contemporaneous objection before those claims may be reviewed on appeal.” The court explained:
“When a defendant raises an issue on appeal in the prosecutorial misconduct context that is truly an evidentiary question — that is, any claim relating to a prosecutor’s questions or answers during direct or cross-examination, or any other claim relating to the admission or exclusion of evidence — the defendant’s characterization of the issue cannot avoid the statutory requirement of K.S.A. 60-404 requiring a timely and specific objection at trial.” Without objection, such claims are not preserved for appellate review. Syl ¶ 6.
The court went on to rule: “Alleged Doyle violations that occur during a prosecutor s questioning of a witness involve the improper admission of impeachment evidence; thus, appellate review of such conduct is subject to the contemporaneous-objection rule in K.S.A. 60-404.” Syl. ¶ 7.
The contemporaneous-objection rule applies here. When the State asked the detective who said they could not search the car, the defendant did not object. We cannot then review the matter on appeal since the issue was not preserved by objection. The comments were mere repetition of these facts.
Going on, the two comments made in the prosecution’s closing do not amount to misconduct. Our standard of review for such matters involves answering two questions. First, did prosecutorial misconduct take place? Second, if so, does the plain error require reversal? See State v. Swinney, 280 Kan. 768, 127 P.3d 261 (2006). Here the statements did not appear to be made with ill will or made to defame the defendant by calling him a liar. They were the simple repetition of unobjected-to testimony.
We turn to the use of Prestons criminal record.
Preston next argues the district court erred in admitting evidence of his conviction for conspiracy to possess with intent to distribute 50 grams or more of crack cocaine. He contends this evidence was improperly used for propensity purposes in violation of K.S.A. 60-455.
Prior to trial, the State sought to admit a certified journal entry of Preston’s conviction. The State argued that whether Preston knowingly possessed cocaine and intended to sell or distribute it were central issues in the case. The court admitted the evidence because intent was at issue and there was another individual in the vehicle, making the question of possession relevant. The court noted that where intent is at issue and there are several individuals involved, the State may offer evidence of prior drug activity.
When considering such issues, jury instructions are crucial. Here, the jury was instructed, “Possession of a controlled substance requires that the defendant have control over the substance with the knowledge of and the intent to have such control. To possess a controlled substance, the defendant must have knowledge of the presence of the controlled substance with the intent to exercise control over it.” The jury was also instructed, '“When a defendant is in nonexclusive possession of an automobile in which a controlled substance is found, it cannot be inferred that the defendant knowingly possessed the controlled substance unless there are other circumstances linking the defendant to the controlled substance.” The court listed factors that could be considered in this regard, including the defendant’s previous participation in the sale of a controlled substance. The jury was tiren instructed that evidence admitted tending to prove Preston committed crimes other than the present crime “may be considered solely for the purpose of proving the defendant’s intent and knowledge.”
At the start of trial, defense counsel renewed its objection to the K.S.A. 60-455 evidence. During direct examination by defense counsel, Preston admitted he pled guilty to possession of crack cocaine with intent to sell in 1997.
A controlling case on this point is State v. Faulkner, 220 Kan. 153, 154-55, 551 P.2d 1247 (1976). In Faulkner, the defendant was a passenger in a vehicle in which drugs were discovered. Faulkner was charged with possession of a controlled substance with intent to sell. The court noted that whether Faulkner had the intent required to prove possession was a material fact at issue. The court went on to hold that evidence of a prior conviction for possession of a controlled substance raised the reasonable inference that Faulkner was familiar with controlled substances and had knowledge of and intended to exercise control over the controlled substances in the present case. 220 Kan. at 157-58. The rationale of Faulkner has since been adopted by this court. See State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989); State v. Hills, 24 Kan. App. 2d 1, 9, 941 P.2d 404 (1997), aff'd 264 Kan. 437, 957 P.2d 496 (1998).
The rule in Faulkner controls here. Evidence of Preston’s prior conviction was relevant to prove both knowledge and intent. The jury was properly instructed. We find no error in the court’s ruling on this point.
Because a guidelines sentence was imposed, we have no jurisdiction to inquire further.
Preston next argues the district court erred by sentencing him to the upper number in the sentencing guidelines box without proving the underlying aggravating facts to a jury. Preston relies on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), to support his claim.
The district court sentenced Preston to the aggravated number within the sentencing guidelines box on counts one and three. K.S.A. 21-4721(c)(1) expressly forbids this court from reviewing a presumptive sentence. Our Supreme Court in State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008), held that K.S.A. 21-4704(e)(1), which grants the judge discretion to sentence a defendant to any term within the presumptive grid block, is constitutional and does not violate either Apprendi or Cunningham. The court held that the appellate court is without jurisdiction to consider a challenge to a presumptive sentence even if the defendant is sentenced to the longest term in the presumptive grid block. 286 Kan. at 851-52. Thus, this court lacks jurisdiction to address Preston’s claim.
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McAnany, J.:
Jeffrey Litzinger was charged with various drug crimes and rapes. He was convicted on drug charges, but the rape charges were dismissed. Litzinger was sentenced to prison.
On December 6, 2004, the Kansas Department of Corrections (KDOC) approved a request to have Litzinger identified and managed as a sex offender. Litzinger requested an override, which the override panel denied on Februaiy 11, 2005.
On July 20, 2006, Litzinger filed a grievance with KDOC in which he challenged his classification as a sex offender. His grievance was denied at every administrative level, including the final denial by the Secretary of Corrections who, on August 16, 2006, mailed to Litzinger his decision upholding the sex-offender classification.
Litzinger brought the present district court action pursuant to K.S.A. 60-1501 on November 6, 2006. KDOC moved to dismiss, arguing that Litzinger had failed to exhaust his administrative remedies and had failed to file a timely complaint within 30 days of the final order. The district court sustained the motion, finding that Litzinger s cause of action arose on either December 6, 2004, or on February 11, 2005. K.A.R. 44-15-101b required that Litzinger file a grievance within 15 days from the date he discovered the event giving rise to the subject matter of the grievance. The court concluded that even if Litzinger were allowed to revive his claim by using the August 16, 2006, grievance denial as the triggering date, his suit was, nevertheless, untimely.
Litzinger appeals. He claims his petition was not untimely. He also claims the 30-day statutory time limitation does not apply to his claim.
We review the district court’s order to determine whether its findings of fact are supported by substantial, competent evidence and whether those findings are sufficient to support its conclusions of law. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). The jurisdictional issue decided by the district court is an issue of law over which our review is unlimited. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Likewise, the exhaustion of administrative remedies issue is one of law over which our review is unlimited. Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 353, 64 P.3d 395 (2003).
Litzinger was required to file his K.S.A. 60-1501 petition within 30 days from the date the administrative proceedings became final, but that time can be tolled during the pendency of timely efforts to exhaust his administrative remedies. See K.S.A. 60-1501(b); Battrick v. State, 267 Kan. 389, 390-91, 985 P.2d 707 (1999). Grievances must be filed within 15 days from the date of the discovery of the event giving rise to the grievance, but in no event later than 1 year after the event giving rise to the grievance. K.A.R. 44-15-101b. K.S.A. 75-52,138 required Litzinger to exhaust all administrative remedies “established by rules and regulations promulgated by the secretary of corrections” before filing his civil action. See Laubach v. Roberts, 32 Kan. App. 2d 863, 868-69, 90 P.3d 961 (2004). Litzinger was required to attach to his petition proof that his administrative remedies had been exhausted. See K.S.A. 75-52,138. We have demanded strict compliance with these exhaustion requirements. See, e.g., Laubach, 32 Kan. App. 2d at 869.
K.S.A. 75-5210(f) and K.S.A. 75-5251 authorize the Secretary of KDOC to develop rules and regulations for its correctional institutions, including the Internal Management Policies and Procedures (IMPP). See Collier v. Nelson, 25 Kan. App. 2d 582, 584-85, 966 P.2d 1117, rev. denied 266 Kan. 1107 (1998).
Litzinger failed to appeal the February 11, 2005, decision of the override panel to continue managing him as a sex offender. IMPP 11-115(I)(C)(4)(a) requires that once a request for override has been decided by the panel, any further appeal by an inmate must proceed in accordance with IMPP 11-106(V). IMPP 11-106(V)(A) provides that an inmate may request the warden’s review within 72 hours of receiving a classification decision. We find no evidence of such a request. Litzinger did not attach to his petition proof that he exhausted these remedies, as required by K.S.A. 75-52,138.
Furthermore, Litzinger failed to file his grievance within 15 days of the date of discovering the event for which he filed the grievance, as required by K.A.R. 44-15-101b. Litzinger’s request for an override was denied on February 11, 2005. He did not begin the grievance process until July 20, 2006.
The 30-day time limit for Litzinger to file suit in the district court could be tolled during the pendency of timely attempts to exhaust his administrative remedies. Litzinger had 15 days from the denial of his override request to initiate the grievance process. He failed to pursue a grievance within this period. Accordingly, the 30-day time limit for Litzinger to file his petition was not tolled, and the petition he eventually filed was untimely. Accordingly, the district court did not err in finding Litzinger’s petition to be untimely.
Litzinger contends, however, that the 30-day time limitation for filing his petition does not apply to him because his condition of treatment as a sex offender is ongoing. He relies on Tonge v. Simmons, 27 Kan. App. 2d 1048, 11 P.3d 77, rev. denied 270 Kan. 904 (2000), for support.
In Tonge, several inmates escaped and later were captured. They were charged with aggravated escape from custody. They eventually entered guilty pleas. The disciplinary board ordered each of them to pay restitution of almost $2,000. The inmates commenced their grievances from the restitution orders, and their grievances were denied as untimely. The inmates brought actions in the district court. They did not challenge the underlying disciplinary actions, but contended that payment of the restitution orders through periodic garnishments of their prison accounts deprived them of sufficient funds to obtain necessary personal hygiene and health products. The district court reduced the restitution orders to about $1,100 each, and KDOC appealed, claiming the district court lacked jurisdiction to do so. On appeal this court held that the nature of the inmates’ complaints related to the ongoing conditions of their confinement caused by the ongoing garnishments of their accounts by KDOC, and as a result their petitions were not time-barred.
We do not believe that Tonge applies. The court in Tonge noted:
“[T]he petitioners’ grievances did not contest their guilt in violating K.A.R. 44-12-1001 or the imposition of the penalties associated with that disciplinary violation. Rather, the petitioners challenge only the resulting conditions of their confinement caused by tire allegedly unreasonable execution of the penalty depriving them of the capacity to maintain personal hygiene.” 27 Kan. App. 3d at 1050.
Here, Litzinger challenges his initial classification as a sex offender, not the resulting conditions of his confinement. His classification occurred long before he initiated his untimely grievance efforts. The only references in his petition to possible constitutional claims are his references to double jeopardy, denial of equal protection of the law, the reckless disregard of some unspecified federal civil rights, and cruel and unusual punishment, all of which appear to relate to the initial decision to classify and manage Litzinger as a sex offender. Litzinger relates the following consequences of his classification as a sex offender:
“As a result of being labeled a sex predator, petitioner has been subjected to oblique threats and ridicule by other prisoners. Former friends and associates, thinking petitioner is a sex predator, have ostracized the petitioner. As a result of being falsely and maliciously accused of being a sex offender, petitioner has suffered excruciating mental pain and anguish.”
This raises the question whether the 30-day time for bringing suit commences when the discrete act of classifying Litzinger occurred, or when Litzinger experienced the collateral effects of that decision.
Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), provides some guidance. There, Ricks alleged that he was discharged because of race. He was denied academic tenure at the college but given a 1-year nonrenewable teaching contract for the academic year. Ricks claimed the denial of tenure was racially motivated. He argued that the time for asserting his discrimination claim began to run from the end of the academic year when he left the college, not from the date he was denied tenure. The Supreme Court ruled that the time for asserting his claim began to run with the denial of tenure, when the alleged intentional discrimination occurred, not from the date when the effects of the discrimination were felt. Similar holdings are found in United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), and most recently in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 167 L. Ed. 2d 982, 127 S. Ct. 2162 (2007).
The gravamen of Litzinger’s suit is that he was wrongfully classified as a sex offender. KDOC’s classification decision commenced the running of tire 30-day period for Litzinger to appeal. Litzinger failed to toll the running of that 30-day period by timely pursuit of the grievance process. Thus, Litzinger’s suit was untimely. Accordingly, the district court did not err in sustaining KDOC’s motion to dismiss.
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Greene, J.:
Rodolfo M. Gaona appeals his convictions for two counts of rape and two counts of aggravated criminal sodomy, arguing error in the admission of certain testimony and in the exclusion of certain documentary evidence, instruction error, cumulative error, and sentencing error. We agree with Gaona that the district court erred in failing to give an instruction for the lesser included offense of attempted rape as to one of the rape charges, and we must therefore reverse that conviction and remand for further proceedings. We reject the remaining claims of trial error and affirm all other convictions. We dismiss the sentencing challenge for lack of jurisdiction.
Factual and Procedural Background
Gaona regularly babysat his wife’s two children during her second shift work. On December 21, 2005, the 8-year-old son reported to his mom (Robbie) that Gaona and the 10-year-old daughter, M.L., “have a sick game.” When questioned by mom, the daughter broke down in tears and refused to discuss the allegation. Mom took the children to the police station where they were interviewed by law enforcement personnel before M.L. was transported to the local hospital for a sexual assault examination. Ultimately, M.L. told a nurse at the hospital that Gaona would show her sex movies and would often wait until her brother went to sleep before he tried to have sex with her. M.L. also told the nurse (Washburn) that Gaona “ ‘put his thing up my butt’ ” and “ ‘puts his doinkey in my yaya.’ ”
Gaona was subsequently charged with three counts of rape, contrary to K.S.A. 21-3502(a)(2), and four counts of aggravated criminal sodomy, contrary to K.S.A. 21-3506(a)(1).
At trial, the allegations were discusséd in more detail by both of the children, and a child abuse specialist testified about the patterns and dynamics observed in sexually abused children. Gaona testified in his own defense and denied any inappropriate touching of M.L. He also testified that he had problems getting or maintaining an erection due to erectile dysfunction. Ultimately the jury found Gaona guilty of two of the three rape charges and two of the four aggravated criminal sodomy charges. At sentencing, the district court imposed the aggravated number in the applicable grid box and sentenced Gaona to 330 months’ imprisonment. Gaona timely appeals.
Did the District Court Err in Admitting the Testimony of the Child Abuse Specialist?
Prior to trial; the State sought to endorse Kelly Robbins as an expert witness to testify about the typical behavior of sexually abused children. The district court determined that it was premature to rule on the motion, but ultimately allowed her to testify at trial over Gaona’s objection. On appeal, Gaona argues that Robbins was not qualified to testify as an expert witness in such matters because she did not have the training to understand or diagnose mental disorders, citing State v. McIntosh, 274 Kan. 939, 58 P.3d 716 (2002), and State v. Villanueva, 274 Kan. 20, 49 P.3d 481 (2002). We review a district court’s ruling on the qualifications of a witness as an expert and the admission of expert witness testimony for an abuse of discretion. McIntosh, 274 Kan. at 955.
Although Robbins was not a psychiatrist, psychologist, social worker, mental health technician, or family therapist, she had specific training in child interview techniques and a wealth of experience in the investigation of child sexual abuse. She has a bachelor of science degree in Administration of Justice with a major in investigation. She has been certified by the American Prosecutor’s Research Institute to teach “Finding Words” protocol, a methodology for interviewing child witnesses — especially those who may have suffered sexual abuse. Her training since 1999 has included a host of institutes addressing child abuse investigation and prosecution. Previously, she worked as a special agent for the Kansas Bureau of Investigation where her duties included the investigation of child abuse cases. At time of trial, she was the executive director of two nonprofit groups, the Western Kansas Child Advocacy Center (WKCAC) and “Finding Words” of Kansas. She testified that her work at WKCAC included the conducting of forensic interviews of children, and that she had interviewed more than 150 children who were purported to be victims of sexual abuse. “Finding Words” is a national program that teaches protocol to properly interview children, and Robbins was involved in bringing this program to Kansas and had taught the protocol to others.
Admissibility of expert testimony is governed by K.S.A. 60-456(b), which provides in part that the testimony of an expert witness
“in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) toithin the scope of the special knowledge, skill, experience or training possessed by the witness.” (Emphasis added.)
Although our Supreme Court has discussed issues surrounding expert testimony in the prosecution of sex crimes in both McIntosh and Villanueva, the court has not held — contrary to Gaona’s suggestion on appeal — that testimony as to common behaviors of sexually abused victims should be given only by an expert licensed or otherwise qualified to diagnose and treat mental disorders, such as a psychiatrist or licensed clinical social worker. A panel of this court held in Villanueva that it was error not to curtail an unlicensed social worker in giving diagnostic testimony concerning the symptoms of rape trauma syndrome and then relating them to a specific victim, and the Supreme Court reversed concluding this trial error was not harmless. The holdings of both courts, however, have no application here because Robbins was not asked to provide a medical diagnosis or to relate it to this specific victim, but rather was confined to a general discussion of common behavioral traits of sexually abused children.
In McIntosh, our Supreme Court agreed that “ ‘qualified expert witness testimony on the common patterns of behavior of a sexually abused child was admissible to corroborate the complaining witness’ allegations.’ ” 274 Kan. at 957. Although the expert witness in McIntosh was a licensed social worker and therefore may have been more qualified than Robbins, the court did not establish any bright-line prerequisites for the qualifications to give such testimony. The court noted that the expert in McIntosh did not testify that the victim was abused; he provided only “circumstantial support in favor of [the victim’s] credibility by demonstrating that her behavior was not inconsistent with someone who had been sexually abused.” 274 Kan. at 959.
Absent clear prerequisites from our Supreme Court for the qualifications to give the testimony contemplated by McIntosh, we look to the applicable statute. Based on the criteria provided in K.S.A. 60-456(b), the question is whether Robbins’ testimony as to the behavioral traits of sexually abused children was “within the scope of the special knowledge, skill, experience or training” that she possessed. Reviewing this for an abuse of discretion, we are unable to conclude that the district court was arbitrary, fanciful, or otherwise unreasonable in allowing the testimony. Robbins clearly possessed a degree of “training,” “special knowledge,” and “experience” in the interviewing of sexually abused children. We reit erate that Robbins confined her testimony to the common behaviorial traits without relating them to the specific victim, that she did not provide diagnostic testimony beyond her credentials, that she did not state or imply that M.L. had been sexually abused, that she did not opine on whether the victim was truthful or credible, that she did not suggest in any manner that Gaona had any involvement, and that the totality of her testimony appears to have been within the permissible scope of such testimony endorsed by our Supreme Court in McIntosh.
For these reasons, we conclude there was no abuse of discretion in allowing Robbins to testify as she did, and we reject Gaona s challenge to her credentials.
Did the District Court Err in Failing to Instruct the Jury on the Lesser Included Offense of Attempted Rape?
Gaona was charged with rape in Counts I, III, and V but was convicted only of Counts I and III. Count I was based on acts alleged to have occurred on December 20, 2005, while Count III was based on acts alleged to have occurred on December 19,2005. The district court instructed the jury on the lesser included offense of attempted rape with respect to Count I, but declined to issue this same instruction for Count III despite Gaona’s request that it be given. Gaona argues the court’s failure to so instruct the jury on Count III constitutes reversible error.
With the exception of a felony-murder case, a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial as long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. If, however, from the evidence the jury could not reasonably convict the accused of the lesser offense, then an instruction on a lesser included offense is not proper. State v. Simmons, 282 Kan. 728, 741-42, 148 P.3d 525 (2006).
“ ‘In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.’ [Citation omitted.]” State v. Hayden, 281 Kan. 112, 131-32, 130 P.3d 24 (2006).
Rape, as charged in this case, is defined as sexual intercourse with a child who is under 14 years of age. See K.S.A. 21-3502(a)(2). Sexual intercourse is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” See K.S.A. 21-3501(1). To establish the crime of attempted rape, the State would have been required to present evidence that Gaona performed an overt act with the intent to commit a rape but failed to complete the crime. See K.S.A. 21-3301; K.S.A. 21-3502(a)(2).
At the instructions conference, defense counsel asked for an attempted rape instruction on Count III. Defense counsel noted Nurse Washburn’s testimony that M.L. stated Gaona “ ‘tried to have sex’ ” with her and “ ‘[t]hat’s what he always does . . . puts his doinkey in my yaya.’ ” Defense counsel claimed that this testimony failed to establish that Gaona actually committed the crime of rape on December 19, 2005, the date specified in Count III, supporting an instruction on attempted rape. In response, the State argued the evidence that Gaona tried to have sex with M.L. was in reference to Count I, not Count III. The district court agreed with the State’s recollection of the evidence and denied Gaona’s request for the attempted rape instruction on Count III.
On appeal, the parties renew these same arguments. Gaona argues the evidence supported an instruction on attempted rape because M.L. told Washburn with respect to the December 19 incident that Gaona “tried” to have sex with her, and that the court’s refusal to give this instruction violated his constitutional right to present a defense. Again, the State claims that M.L.’s statements about Gaona trying to have sex with her referenced only the rape charge in Count I.
A review of the record supports Gaona’s argument. Washburn testified that M.L. stated: “ ‘He put his thing up my butt and, um, he tried to have sex with me,’ ” and, “ ‘That’s what he always does . . . puts his doinkey in my yaya.’ ” M.L. also told Wash-bum, “ ‘A lot of times he waits till [her brother] goes to sleep and then he tries to have sex with me.’ ” When the prosecutor asked Washburn if M.L. had been able to identify specific dates these acts occurred, Washburn stated that M.L. told her that she watched “sex movies” with Gaona on December 20, 2005, and M.L. “also disclosed on 12-19-05 on Monday, um, ‘That, uh, he’d tried to have sex with me, um/ and — and that was when they were waiting for [her brother] to go to sleep.” (Emphasis added.) Clearly, the prosecutor and the district court’s recollection of the evidence was incorrect, as the evidence presented with respect to December 19, 2005 — the date alleged in Count III — did not definitively state that the act of rape was completed on that date. When viewing the evidence in the light most favorable to Gaona, there is a possibility that the jury could have convicted Gaona of the lesser included offense of attempted rape. Therefore, Gaona’s conviction of rape on Count III must be reversed and the case remanded for further proceedings.
Was the District Court’s Failure to Instruct the Jury on the Lesser Included Offense of Attempted Aggravated Criminal Sodomy Clearly Erroneous?
Gaona also claims the district court erred in failing to instruct the juiy on the lesser included offense of attempted aggravated sodomy on Counts II and VII.
Gaona did not request this instruction at trial; therefore, the district court’s failure to so instruct the jury only constitutes reversible error if the failure to give the instruction was clearly erroneous. State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 (2005). Failure to give an instruction “is clearly erroneous only if the appellate court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. [Citation omitted.]” Simmons, 282 Kan. at 741.
As charged in Counts II and VII, aggravated criminal sodomy is sodomy with a child who is under 14 years of age. K.S.A. 21-3506(a)(1). Sodomy is defined in part as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object . . . .” K.S.A. 21-3501(2). The State alleged in Count II that Gaona committed this crime on December 20,2005, and alleged in Count VII that he had done so between March 23, 2005, and December 19, 2005.
To establish the crime of attempted aggravated criminal sodomy, the State was required to present evidence that Gaona performed an overt act with the intent to commit aggravated criminal sodomy but failed to complete the crime. K.S.A. 21-3301; K.S.A. 21-3506(a)(1). Gaona claims that the jury should have been instructed on the lesser included offense of attempt based on M.L.’s inconsistent testimony that Gaona would often try to have sex with her, that she forgot where Gaona’s penis touched her, and that he touched her butt with his finger but could not remember if it went inside. Gaona argues that this testimony, combined with the fact that no seminal fluid was found on the swabs in the sexual assault kit, supports an inference of attempted, but unsuccessful, anal penetration.
At trial, Washburn testified that M.L. stated, “ ‘He put his thing up my butt and, um, he tried to have sex with me.’ ” M.L. testified that Gaona put his doinkey in her mouth and touched her butt with his doinkey. Unlike the statement that Gaona “ ‘tried to have sex with [M.L.],’ ” however, there is no similar evidence found in the record that Gaona at any time unsuccessfully attempted to commit the crime of aggravated sodomy.
Although M.L.’s testimony was inconsistent at times, the jury was simply not presented with evidence that Gaona tried but failed to complete the crime of aggravated criminal sodomy. “Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.” State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995). Moreover, Gaona’s theory of defense at trial was that none of these acts occurred, not that he unsuccessfully attempted these acts. Because there was no real possibility the jury would have returned a different verdict had it been presented with the attempt instruction, we conclude the district court’s failure to provide such an instruction was not error.
Did the District Court Violate Gaona’s Right to Present a Defense By Excluding His Medical Records from Evidence?
Gaona next alleges that the district court erred in excluding his medical records from evidence. Specifically, Gaona claims he was denied the opportunity to present “crucial evidence essential to his claim of erectile dysfunction,” thereby substantially impairing his ability to present a defense.
When reviewing a district court’s decision to admit evidence, an appellate court first determines whether the evidence is relevant. Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Thus, the evidence, to be relevant, must also be material. State v. Reid, 286 Kan. 494, 504, 186 P.3d 713 (2008). The standard of review for a materiality finding is de novo. 286 Kan. at 505. The standard of review for a finding that evidence is probative in the particular case is the abuse of discretion standard. 286 Kan. at 509. Finally, even if evidence is material and probative, the district court must determine whether the evidence is unduly prejudicial. The appellate court reviews the determination whether evidence is unduly prejudicial under the abuse of discretion standard. 286 Kan. at 512.
After the State had rested its case and after the defense had already begun presenting evidence, Gaona attempted to have his entire medical record introduced into evidence. The prosecutor objected to the admission of the records, arguing that they had only been provided to her that day. The prosecutor further stated:
“It’s my understanding that [defense counsel] is planning on just entering these pieces of evidence in with no doctor testifying about them, no nurse testifying about them, strictly that they’re medical records.
“There is no doctor on the jury. I don’t know how they could possibly decipher all of this stuff. There’s things in here as minor as a spider bite. I don’t know why that would be relevant to this proceeding. So I’m going to object to any admission of these or any — I don’t — I don’t even want them brought up before the — the jury when there’s not going to be anybody that testifies about them.”
In response, defense counsel admitted that he had provided the records to the State “just a couple of hours ago” but explained that he had only made a final decision that day to introduce the records. Defense counsel explained that Gaona was aware of the risk that the jury may not understand the records without doctor testimony, but asked that the juiy be given the opportunity to determine their weight and credibility. The district court denied admission of the records, stating that the State would not have an opportunity to cross-examine anyone in connection with the records. The court did note that Gaona was scheduled to testify and that any medical matters could be introduced through his testimony.
The State filed a discovery request prior to trial, requesting, inter alia, any medical records Gaona intended to produce at trial, yet Gaona failed to provide the State with the records until the day of trial. K.S.A. 22-3212(g) gives the district court authority to prohibit a party from introducing evidence when discovery rules have been violated. Additionally, Gaona has failed to show that the medical records were relevant, material, or probative. As noted by the State, the records were not all restricted to Gaona’s claims of erectile dysfunction, but rather included a host of irrelevant information. Further, Gaona cannot establish that he was prejudiced by the district court’s refusal to admit the records. Gaona testified about his medical history at trial, including his claims of erectile dysfunction, and any reference to -these claims within the records would have been cumulative. The district court did not err in refusing admission of Gaona’s medical records into evidence.
Did the District Court Admit Evidence in Violation of K.S.A. 60-455?
Gaona also claims the distxict court erred in admitting evidence that he watched pornographic movies with M.L. without first making a determination whether such evidence was admissible under K.S.A. 60-455.
K.S.A, 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion, but subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Gaona argues the evidence that he watched pornographic movies with M.L. clearly showed a propensity to commit the type of acts alleged against him in the complaint and should have been barred by this statute.
Prior to trial, Gaona filed (1) a pretrial motion in limine in which he sought to prevent evidence of prior crimes from being introduced at trial, and (2) a motion to prevent introduction “of other crime evidence or other bad acts” pursuant to K.S.A. 60-420, K.S.A. 60-421, and K.S.A. 60-422. Neither motion specifically mentioned the pornographic movies, and Gaona did not object to the admission of or testimony about the movies at trial. In fact, defense counsel asked Robbie and M.L. about the movies during cross-examination. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence to preserve a claim of error in its admission. See State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). Our Supreme Court has recently clarified that a failure to make a timely and specific objection to evidence at trial bars any consideration of its admission on appeal. State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009). For this reason, we reject Gaona’s challenge to this evidence on appeal.
Did the District Court Err in Admitting Prior Consistent Statements of the Victim Prior to the Victim’s Own Testimony?
Gaona next argues that he was denied a fair trial because Robbie and Nurse Washburn were permitted to testify about M.L.’s story before M.L. testified, thus improperly bolstering M.L.’s testimony and denying him a fair trial.
Gaona’s argument on this point is confusing, as Robbie only testified that M.L. told her that she had watched a pornographic movie and did not actually testify about any statements made by M.L. as to what Gaona had allegedly done. Robbie testified that her son told her that Gaona and M.L. “ ’have a sick game.’ ” When asked what this meant, M.L. refused to tell Robbie anything. The remainder of Robbie’s testimony was mainly about the events of that day, including testimony about taking the children to the police station and taking M.L. to the hospital for the sexual assault exam. Additionally, Gaona’s claim that Washburn testified prior to M.L. is incorrect. Washburn was actually called to testify after M.L. had already taken the stand and been impeached.
Gaona did not raise this argument below with respect to Robbie or Washburn’s testimony; therefore, he did not preserve this issue for appeal. See K.S.A. 60-404; Anthony, 282 Kan. at 206. Due to the very explicit recent ruling of our Supreme Court, we decline to address claims of evidentiary error on appeal absent a timely and specific objection at trial. King, 288 Kan. at 348-49.
Did Cumulative Error Deprive Gaona of a Fair Trial?
Gaona claims the cumulative effect of multiple trial errors caused substantial prejudice and denied him a fair trial.
“ ‘Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendánt a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant.’ [Citation omitted.]” State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Jones, 283 Kan. 186, 218, 151 P.3d 22 (2007). Although it was previously determined that the district court committed reversible error in failing to instruct the juiy on attempted rape for Count III, one error is insufficient to support reversal under the cumulative effect rule. Nguyen, 285 Kan. at 437. Therefore, we conclude Gaona is not entitled to further relief.
Did the District Court Err in Sentencing Gaona to the Aggravated Sentence in the Grid Block Without Having the Aggravating Factors Put to a Jury and Proven Beyond a Beasonable Doubt?
The district court sentenced Gaona to a guidelines sentence that was in the aggravated range for rape and aggravated criminal sodomy. He contends on appeal that imposition of the high end of the sentencing grid without submitting the grounds for an aggravated sentence to the jury implicates his constitutional right to a trial by jury.
Interpretation of a sentencing statute is a question of law, and the appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). The constitutionality of a sentencing statute is a question of law over which this court has unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007).
Our Supreme Court has recently decided this issue adversely to Gaona’s position: “A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).” State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008); see State v. Gallegos, 286 Kan. 869, 879, 190 P.3d 226 (2008). Gaona’s sentencing challenge is dismissed.
Affirmed in part, reversed in part, dismissed in part, and remanded for further proceedings not inconsistent with this opinion. | [
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Rees, J.:
In this driver’s license suspension case, plaintiff Michael D. Dewey appeals a district court judgment, entered upon a directed verdict, affirming the Division of Vehicles’ suspension of Dewey’s driver’s license for 120 days for refusal to submit to a chemical test for alcohol. We find the dispositive issue on appeal is whether the district court erred in finding that the chemical test refusal report was properly “verified on oath” as required by K.S.A. 8-1001(c). We reverse.
The pertinent facts may be briefly stated. The Division of Vehicles ordered suspension of Dewey’s driving privileges for his failure on October 13, 1984, to submit to a chemical test for alcohol. Dewey timely appealed to the district court, raising, among other questions, the issue whether the arresting officer’s chemical test refusal report was “verified on oath.”
Prior to commencement of the district court hearing, Dewey moved to dismiss. Outside the presence of the jury, the arresting officer and the notary public testified that the officer signed the refusal report in the presence of the notary, who then affixed her signature to the report form. The notary did not require the officer to swear to the statements in the report; the officer made no verbal statement swearing to the truth of the written statements in the report. The officer did not know that words on the refusal report form recited that he swore to the truthfulness of his statements. Even though the officer understood he was obligated to tell the truth, there was no evidence to show the officer intended himself to be under oath in making and subscribing to the statements in the report. The district court found the refusal form “was sufficiently and appropriately notarized and satisfies the requirements.” It thus overruled Dewey’s motion to dismiss.
The Kansas implied consent statute, K.S.A. 8-1001(c), provides that if a person fails to submit to a requested chemical test for the detection of alcohol, “[t]he arresting officer shall make a report verified on oath to the division of vehicles of the refusal.” (Emphasis added.)
The parties concede that two Kansas cases have addressed the issue under earlier and, for our purposes, substantially similar versions of K.S.A. 8-1001 and have held that the requirement of a sworn refusal report is mandatory and jurisdictional as to the entirety of an individual’s driver’s license suspension proceeding. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 244-45, 671 P.2d 547 (1983); Wilcox v. Billings, 200 Kan. 654, 658-59, 438 P.2d 108 (1968). See also Carson v. Division of Vehicles, 237 Kan. 166, 167, 699 P.2d 447 (1985).
Where the parties differ is in the form of the swearing or oath that is required. Dewey argues that the notary public was required to administer to the arresting officer the oath as dictated in K.S.A. 54-101 et seq.; that is, by laying the right hand upon the Bible or by uplifting the right hand (K.S.A. 54-102) or by affirming (K.S.A. 54-103). The Division, on the other hand, relying on a line of criminal cases, argues the mere signing of the form affidavit in the presence of a notary or other official authorized to administer an oath is sufficient, absent clear proof that the ceremony, or lack of ceremony, was designed by the participants to leave the arresting party unsworn. State v. Seven Slot Machines, 203 Kan. 833, 840, 457 P.2d 97 (1969), cert. denied 396 U.S. 1037 (1970); State v. Anderson, 178 Kan. 322, 327-28, 285 P.2d 1073 (1955); State v. Kemp, 137 Kan. 290, 292-93, 20 P.2d 499 (1933). The Division further argues that the sworn statements of an arresting officer given at the administrative hearing may adequately substitute for a sworn refusal report and that Dewey, having failed to raise the issue before the hearing officer, is precluded from later raising it by application of the doctrine of exhaustion of administrative remedies.
In Wilcox v. Billings, 200 Kan. at 658-59, it is said:
“Certainly one purpose of 8-1001 is to provide a fair and reliable method for determining whether a license to drive should be revoked. Essential to that purpose, the legislature must have deemed it important that a report which could become the sole basis of a revocation of a driver’s license be sworn to. We doubt if the legislature ever intended such drastic action should be taken on an unsworn averment alone. The very nature of the proceedings emphasizes this conclusion.”
We are convinced that the import of Carson, Wulfkuhle and Wilcox is that the arresting officer must actually swear to the chemical test refusal report according to the statutory ceremony set forth in K.S.A. 54-101 et seq. We have no quarrel with the authorities cited by the Division; they do not, however, involve chemical test refusal reports serving as the basis of driver’s license suspension proceedings. Moreover, the plain language of K.S.A. 8-1001 requires that proceedings for the suspension of an individual’s driver’s license be based upon a chemical test refusal report verified on oath; sworn testimonial statements at the administrative hearing or district court trial do therefore not suffice. Nor do we believe that Dewey is barred from judicial relief because of a failure to exhaust available administrative remedies; to the contrary, the issue Dewey raises is a question of jurisdiction which may be raised at any time. Dick v. Drainage District No. 2, 187 Kan. 520, 524-25, 358 P.2d 744 (1961).
Our decision to reverse is bolstered by our observation that the 1985 Legislature revised K.S.A. 8-1001 and K.S.A. 8-1002. L. 1985, ch. 48, §§ 3-4; L. 1985, ch. 50, §§ 1-2. L. 1985, ch. 50, § 2 requires only that the law enforcement officer’s certification be signed and the revised statutory language explains that:
“[C]ertification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. Any copy or photostatic reproduction of a law enforcement officer’s signed certification shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such copy or reproduction shall accord the department authority to proceed as set forth herein.” (Emphasis added.)
L. 1985, ch. 48, § 4 has added that:
“Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B misdemeanor.”
When the Legislature revises a prior existing law, it is presumed that the Legislature intended to make some change in the law as it existed prior to the amendment. Curless v. Board of County Commissioners, 197 Kan. 580, 587, 419 P.2d 876 (1966). We believe the 1985 Legislature obviously intended to address the law as it stood after Wilcox, Wulfkuhle and Carson, and which, as it applies to this plaintiff, is that the report must be verified by oath — sworn to according to K.S.A. 54-101 et seq.
We note that our decision does not automatically render invalid chemical test refusal reports not in fact sworn to according to K.S.A. 54-101 et seq. Where the validity of the verification is not challenged, a report which states on its face that it is sworn to is to be considered valid and creates the presumption that the refusal to submit to the chemical test was unreasonable. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. at 245.
In this case, since the uncontroverted evidence established the refusal report was not in fact sworn to, the district court erred in failing to rule that the Division had no jurisdiction to suspend Dewey’s privileges granted by the issuance of his driver’s license.
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Parks, J.:
Plaintiff, Home Life Insurance Company (Home Life), filed this action against its former employee, Dean C. Clay, and his bank, First National Bank of Howard (Bank). Home Life alleged that Clay forged endorsements on checks belonging to it and deposited them in his account in the Bank. Recovery was sought from the Bank for conversion premised on K.S.A. 84-3-419. The Bank filed a third-party claim against Reliance Insurance Company (Reliance), its bonding company at the time the checks were deposited, and Kansas Bankers Surety Company (KBS), its bonding company when the suit was filed. Summary judgment was granted to Reliance and KBS and this partial resolution of the case was certified for appeal under K.S.A. 60-254(b). The Bank appeals from the summary judgment granted on the third-party claim. No other issue is raised in this appeal.
The underlying lawsuit initiated by Home Life against the Bank alleged that its agent Clay forged the insurance company’s endorsement on some $121,000 in checks and deposited them into his personal account at the Bank. The checks were deposited between October 1979 and April 1980 and the forgeries were discovered by Home Life in the latter part of May. On June 5,1980, counsel for Home Life, Thomas Coughlin, and one of its managers, Fred Liebau, met with the Bank president, Bert Blackard. There is conflicting testimony concerning the discussion which took place at this meeting which will be set out more fully later. Blackard contacted the Bank’s attorney about the handling of future transactions with Clay. However, neither Blackard nor the Bank heard anything further about the forged transactions until January 14, 1982, when an attorney for Home Life called and advised Blackard that the Bank was going to be sued.
Upon service of Home Life’s petition against the Bank, notice was given to both of the Bank’s bonding companies, Reliance and KBS. Each insurer denied coverage and refused to defend the lawsuit against the Bank. The Bank then filed its third-party petition against Reliance and KBS. The Bank now appeals from the partial summary judgment granted in favor of its bond carriers.
Initially, the rules regarding the grant of summary judgment should be recalled:
“We have stated many times the standards governing the entry of summary judgment. In Barnhart v. McKinney, 235 Kan. 511, 516, 682 P.2d 112 (1984), we said:
‘Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 1, 662 P.2d 1203 (1983). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister, 233 Kan. 252, Syl. ¶ 4.’
“In Peoples Nat'l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985), we said:
‘Summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’
“Summary judgment is particularly appropriate where the facts are not disputed and the only questions presented are questions of law. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341, 624 P.2d 971 (1981).” Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985).
I. Propriety of Summary Judgment for KBS
The district court granted summary judgment to KBS because it concluded that KBS’ bond did not apply to the Bank’s potential loss. The bond states that it applies to loss “discovered” by the insured during the bond period and the period of the bond began in November 1981. Since the court found that the loss was discovered on June 5, 1980, it concluded that KBS’ bond was inapplicable. However, the Bank contends that the court erred in reaching its conclusion because the issue of when the loss was discovered by the insured is a disputed question of fact which could not be resolved as a matter of law. The Bank admits that discovery must have taken place either June 5, 1980, when Blackard met with Home Life representatives or January 14, 1982, when Blackard learned that suit against the Bank was being filed. Nevertheless, it contends that the choice of one date rather than the other requires a factual determination which could not be made on a summary judgment motion.
KBS contends and the district court found that the circumstances of Blackard’s meeting with Coughlin and Liebau on June 5, 1980, made the Bank aware of facts which constituted discovery of the loss and that a reasonable person could not reach any other conclusion but that summary judgment was proper. However, there is some disagreement between the parties concerning the substance of that meeting. Coughlin testified that it was implicit in his remarks to Blackard that Home Life believed the Bank to be liable for its loss. By contrast, Blackard stated that Coughlin indicated that the Bank might be liable but that Home Life did not intend to file suit. Since the evidence must be viewed in the light most favorable to the Bank, it contends that the testimony that Home Life represented that it would not sue must be accepted as true. In light of this testimony, the Bank contends reasonable minds could differ on whether the loss was “discovered” at the June 5 meeting.
We agree that the controversy concerning the date the loss was discovered could only be resolved by making a factual resolution of disputed testimony. Blackard testified that the Home Life representatives indicated that the company would not be bringing suit against the Bank for fear of adverse publicity. Blackard’s characterization of these remarks was not that Home Life was not going to immediately sue or that it would look to the Bank only after it exhausted its remedy against Clay. He testified that Home Life indicated it was not going to sue and this testimony must be believed when considering summary judgment. If Home Life promised not to sue the Bank for its negligence in accepting the forged checks, the Bank would not sustain a loss and it would not have received notice of a potential claim of liability. Thus, it is possible for a reasonable person to find that the Bank did not discover its loss on June 5. Since the parties agreed that discovery took place either June 5 or January 14, 1982, and KBS could be responsible for a loss discovered on the later date, the factual uncertainty about the discovery date should have foreclosed summary judgment in favor of KBS.
II. Propriety of Summary Judgment for Reliance
The summary judgment granted to Reliance was premised on a different set of ultimate facts than that which underlays the summary judgment for KBS. If the loss was discovered on January 14, 1982, then the Reliance bond would not apply since it expired in November 1981. However, if the timing of the discovery of the loss did implicate application of the Reliance bond, summary judgment could still be possible if coverage by the bond were otherwise legally precluded. The district court concluded that assuming that the loss was discovered on June 5, so that the Reliance bond would apply on its face, summary judgment was appropriate because the Bank failed to comply with its obligation under the bond to give notice of its loss as soon as practicable after the loss occurred.
The Bank disputes the conclusion of the court contending first that whether timely notice was given, assuming the loss was discovered on June 5, is a question of fact which could not be resolved as a matter of law. Second, the Bank argues that even if notice could have been found untimely, a second factual issue remains unresolved because there was no evidence that the failure of notice was prejudicial to Reliance.
A. Untimely Notice
If we assume that the loss was discovered on June 5, 1980, so that Reliance’s bond would potentially apply, then according to the terms of the bond, notice should have been given to Reliance “[a]t the earliest practicable moment after discovery of any loss.” In this case, notice was not given to Reliance until suit was filed, eighteen months after the June 5 meeting between Blackard and the Home Life representatives. Thus, Reliance argues and the district court held that no reasonable person could find that notice given eighteen months after discovery of a loss was notice at the earliest practicable moment. However, the Bank contends that the finding of untimely notice could not be reached as a matter of law because the test of timeliness is a test of reasonableness which requires a weighing of various facts and circumstances. The Bank contends that circumstances exist in this case which foreclose the conclusion that no reasonable person could find that notice was timely.
The requirements in the banker’s blanket bonds that notice be given to the underwriter “as soon as practicable,” “as soon as possible” or “at the earliest practicable moment” have all been construed to essentially mean that notice must be reasonably given. 13A Couch on Insurance 2d §§ 49:221-49:223 (rev. ed. 1982). Such an objective test of timeliness necessarily implies that all of the facts and circumstances surrounding the delay must be taken into account and that the issue of timeliness is a factual one. Travelers Ins. Co. v. Feld Car & Truck Leasing Corp., 517 F. Supp. 1132, 1134 (D. Kan. 1981). However, if the circumstances explaining the delay are undisputed and reasonable persons still could not help but conclude that notice was untimely, summary judgment could be properly granted.
In this case, the Bank seeks to justify the eighteen-month delay between June 5 and the notice to Reliance by pointing to (1) the status of the Bank as a small town bank with less experience and expertise than most; (2) the nature of the loss as one which would have to arise as the result of subsequent action by a third party; and (3) the nature of the statements made by Home Life which led to “discovery” of the loss. When these circumstances are considered, the Bank contends that the eighteen-month delay which may alone appear to be unreasonable may be viewed as excusable by a reasonable person.
Without belaboring this issue, we agree with the Bank. There is certainly evidence present to support the conclusion that the Bank’s delay in notification was unreasonable; however, such a finding should not be made as a matter of law on a motion for summary judgment. The inferences to be drawn from the circumstances in this case are open to dispute. The eighteen-month delay is certainly lengthy but, according to his testimony, Blackard had been assured that the Bank would not be sued. No money had been lost by the Bank and no prediction could be made that money would be lost until a claim of liability was asserted. Since the existence of a loss depended upon the likelihood that a third party would successfully establish a legal claim against the Bank, it was not immediately ascertainable on the date of discovery. Thus, the timeliness of the notice of loss is not so clearly resolved by undisputed evidence as to justify summary judgment.
B. Prejudice
The Bank also contends that even if the court could have properly concluded that its notice of loss was not given in conformance with the policy, this failing should not relieve Reliance of coverage on its bond since there was no evidence that prejudice resulted from the delayed notice. Reliance counters by arguing that Kansas law does not clearly require such proof of prejudice and that the parties should be held to their contract. Reliance contends that timely notice of loss is a condition precedent to an insured’s right to indemnification.
The effect which should be given a failure to provide timely notice of a loss to an insurer or compensated surety is a matter open to considerable disagreement. Annot., 23 A.L.R.2d 1065. Some courts have held that such notice requirements are conditions precedent to the insurer’s duty to satisfy a covered loss. Cf. Union Planters Corp. v. Harwell, 578 S.W.2d 87 (Tenn. App. 1978) (not condition precedent if not so stated in policy) and State Bank of Viroqua v. Capitol Indemnity, 61 Wis. 2d 699, 709, 214 N.W.2d 42 (1974) (condition precedent even if not stated as such in policy). Other courts have held that failure to comply with a notice provision in a fidelity type insurance policy is only fatal to recovery on the policy if the contract expressly provides for forfeiture in the absence of timely notice. American Nat. Bank & T. Co. v. United States Fid. & G. Co., 7 F. Supp. 578 (S.D. Ala. 1934). However, in what is termed the modem trend, a number of jurisdictions have held that an unreasonable delay in giving notice or a failure to give notice will not excuse an insurer’s liability unless it can show that it was prejudiced by the delay. Annot., 32 A.L.R.4th 141,157-67. This latter group of cases appears to assume that the notice requirement is a condition precedent but to conclude that in the context of insurance, failure to satisfy the condition should not automatically excuse performance by the insurer. Kansas is generally cited by the authorities as one of the states following the modern trend largely on the basis of an opinion by Judge Kelly in Travelers Ins. Co., 517 F. Supp. at 1134-36, and the old Kansas case, School District v. McCurley, 92 Kan. 53, 142 Pac. 1077 (1914). See Annot., 32 A.L.R.4th 141, 161; 13A Couch on Insurance 2d § 49:238.
In Travelers Ins. Co., the court was concerned with a claim of contribution by one insurer against another for liability assumed under an automobile liability policy. The defendant insurer sought to deny liability on the grounds that it did not receive notice after the accident giving rise to liability as soon as practicable. The defendant’s policy specifically provided that no action would lie against the company unless, as a condition precedent to liability, the insured complied with provisions of the policy which included the notice provision. Nevertheless, the federal district court after extensively reviewing the authority from other jurisdictions concluded that the Kansas Supreme Court would adopt a rule requiring the defendant insurer to prove prejudice resulting from tardy notice before liability could be avoided.
In a subsequent federal court decision by Judge O’Connor, it was held that notice given an insurer was untimely and that the untimeliness was prejudicial so that the surety was relieved of its obligation on the bond. Sec. Nat. Bank of Kansas City v. Continental Ins., 586 F. Supp. 139, 148-50 (D. Kan. 1982). However, the court also reviewed the Kansas law and concluded that Kansas accepts the view that prejudice is not presumed by a delay in notice and that the insurer must demonstrate substantial prejudice before it may be relieved of liability.
Reliance contends that these two federal cases merely seek to predict the Kansas law and that the state authority is ambiguous. However, in School District v. McCurley, 92 Kan. 53, the court considered the requirement in a contractor’s bond that notice of default be given the surety. The court viewed the notice provision as a condition precedent but concluded that the insurer would not be relieved of liability on the bond unless the breach of the condition contributed to the loss or resulted in prejudice. McCurley was followed a year later in Republic County v. Guaranty Co., 96 Kan. 255, 258, 150 Pac. 590 (1915), where the court stated as follows:
“The legal status of a surety company like the defendant is well defined in this state. It is an insurer for pay and does not occupy the position of the ordinary surety, who voluntarily undertakes to make good the default of his principal. The bonds which it dictates to those in need of them are to be interpreted to accomplish indemnity against loss sustained. Notice of default and notice of final payment are not cast-iron conditions precedent to liability, but are reasonable reservations made to afford the insurer an opportunity to protect itself against loss should it need and should it be able to do so. If no notice be given but no loss result as a direct consequence, liability is not affected. Actual damage resulting from failure to give notice must be pleaded and proved as a defense.” 96 Kan. at 258.
More recently, McCurley was relied on in Local No. 1179 v. Merchants Mutual Bonding Co., 228 Kan. 226, 230, 613 P.2d 944 (1980). In Local No. 1179, an employee union sought to collect on a surety bond arranged by an employer association for the purpose of securing the payment of wages by its member employers. One of the employer members of the association defaulted on its obligation to pay its employees and the union filed a claim with the surety six months later. The surety sought to escape liability on the ground that notice did not comply with the policy provision which stated that the obligee (the union) on the bond would give notice within 30 days after obtaining knowledge of the default. The court noted that the bond did not provide a penalty for failure to give prompt notice and concluded that the surety was not entitled to discharge on its bond. Although the court stated that it agreed with the district court’s conclusion that there was substantial compliance with the notice requirement, the notice was characterized as having been given six months after the date knowledge of the default was obtained. The court could not have concluded that notice was timely. Therefore, the significance of Local No. 1179 is that despite a failure to comply with a notice provision, the court refused to excuse the surety when there was no evidence that the surety was prejudiced by the untimely notice.
There are a number of other older cases cited by Reliance in which the effect of untimely notice is touched upon. However, the cases in which untimely notice was permitted to defeat a claim for liability involve situations in which prejudice could be assumed from the type of insurance and notice required (Mayse v. Insurance Co., 117 Kan 662, 232 Pac. 865 [1925] [hail damage to crop must be immediately assessed because likelihood other causes can result in same damage; delay presumed prejudicial]), or in which the issue of prejudice was not discussed in the opinion. La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P.2d 354 (1932). For example, in La Harpe, the court held that a provision in a bank’s fidelity bond requiring notice of loss as soon as possible was a valid provision. However, the court went on to hold that there were insufficient averments in the petition to bring the loss within the coverage provided by the bond in the first place. Thus, disposal of the case by demurrer was upheld without consideration of whether the absence of timely notice was alone sufficient to defeat liability. Finally, it might also be noted that the situation in La Harpe was one in which the loss was occasioned by the dishonesty of a bank employee. By failing to give timely notice to the surety after discovery of the loss, the surety’s recourse against the dishonest employee might have presumptively been prejudiced. This is a different situation than that which arises when the insurer will be in the position of defending against the claim of a third party instead of that of its own insured. When the insured sustains a direct loss, the insurer’s only recourse is against the thief. However, when the loss will result from liability owed a third party, the insurer is only prejudiced if its ability to defend against that imposition of liability is diminished by the delay.
In this case, like Local No. 1179, the bond does not indicate a penalty for late notice or specifically state that the insurer’s liability is conditioned on timely notice. However, even if such notice is presumed to be a condition precedent, McCurley and Travelers Ins. Co. indicate that a failure to satisfy the condition does not bar coverage unless the insurer can show prejudice. Therefore, bearing in mind the precedent represented by McCurley and the reasoning expressed in Travelers Ins. Co., we conclude that a failure to provide a compensated surety with timely notice of loss will not relieve the surety from liability on its bond unless the surety can show that it was prejudiced by the untimeliness.
Since the issue of prejudice was not addressed by the facts agreed to by tire parties, summary judgment could not be entered. In light of our conclusion that material factual issues remained unresolved on issues relating to both KBS’ and Reliance’s bonds, summary judgment was erroneously granted to both third-party defendants.
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Parks, J.:
This action arose out of a petition for writ of habeas corpus filed by petitioner, Jewell Mahan, an inmate at the Kansas State Penitentiary >(KSP). The district court granted the relief sought by the petition and respondent prison officials appeal.
Petitioner started a subscription to the magazine “High Times” in the fall of 1983. He received the first three issues of the monthly magazine but no other issues were delivered through the prison mail room. Petitioner wrote the subscription department of the magazine about the missing issues and was assured that the magazine was being sent. Eventually, petitioner discovered that the magazine’s delivery was prohibited by prison authorities because the periodical is concerned with drugs and drug use. Petitioner filed a petition for writ of habeas corpus requesting the court order KSP to stop interfering with delivery of the magazine.
The district court held an evidentiary hearing to hear testimony in support of respondent’s contention that the censorship of the magazine was justified. A copy of the magazine was entered into evidence and two KSP employees testified concerning the magazine’s content and its possible impact on the prison community. After taking the case under advisement, an order was prepared reflecting the conclusion of the district judge that petitioner was entitled to receive “High Times” without any interference or censorship by KSP. The respondents then filed their appeal from this order. At oral argument, petitioner waived argument and conceded that the appeal was timely filed.
A prisoner may use a petition for writ of habeas corpus to challenge the legality of the conditions of his confinement and to seek equitable relief from those conditions. Foster v. Maynard, 222 Kan. 506, 512, 565 P.2d 285 (1977). While ordinarily conditions of confinement relate to mistreatment in the context of living conditions and disciplinary measures, alleged violations of First Amendment rights have been found to fall within the scope of conditions which may be challenged by habeas corpus. Wright v. Raines, 1 Kan. App. 2d 494, 499, 571 P.2d 26, rev. denied 222 Kan. 749 (1977), cert. denied 435 U.S. 933 (1978). Moreover, it has been held that, even though imprisoned, inmates are still guaranteed the right to free speech. This right may only be infringed as an incident of imprisonment when it is demonstrated that the infringement will further the substantial governmental interests of security, order or rehabilitation of inmates and that the infringement is no greater than necessary. Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974). In short, despite the exigencies of confinement, an inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). Therefore, while prison authorities are ordinarily given wide discretion in the internal management of prison matters, the censorship or restriction of inmate mail must be able to pass constitutional muster.
Both Pell and Martinez involved some type of direct, personal correspondence with inmates rather than the right of inmates to receive the more general communications of a periodical. However, subsequent federal cases have held that the same type of constitutional scrutiny must be applied to the censorship of magazines as is applied to limitations on correspondence. Guajardo v. Estelle, 580 F.2d 748, 760 (5th Cir. 1978); Aikens v. Jenkins, 534 F.2d 751, 755 (7th Cir. 1976). Guajardo stated as follows:
“There is also some question whether the Martinez rule is also applicable to the censorship of publications. See Blue v. Hogan, 553 F.2d 960, 963 n.4 (5 Cir. 1977). The Court in Martinez stated that its rule was dependent upon the first amendment rights of persons wishing to engage in direct, personal correspondence with inmates rather than the first amendment rights of the inmates themselves. Later Court opinions have indicated, however, that prisoners do retain those first amendment rights that are not inconsistent with their status as a prisoner or with the legitimate penological objectives of the correctional system. Pell v. Procunier, supra, 94 S.Ct. at 2804. Challenges to prison restrictions that are asserted to inhibit first amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system. Id. We think that Martinez and Pell, taken together, establish a rule that prisoners retain those first amendment rights not inconsistent with prison security, order or rehabilitation. Cf. Jones v. North Carolina Prisoner's Labor Union, supra.” Guajardo, 580 F.2d at 760.
Therefore, assuming that the Martinez test does apply, the burden is upon the prison officials to prove that any restrictions on the right of an inmate to receive a certain magazine are in furtherance of substantial governmental interests of security, order or rehabilitation and are no more restrictive than necessary to secure those interests.
Here, the specific issues of “High Times” which were censored by the prison authorities were not introduced into evidence. Instead, a single issue of the magazine (August 1984 issue) was obtained by counsel and proffered as representative of the magazine. Thus, KSP did not simply seek to justify the censorship of the particular issues withheld from petitioner but to justify a general ban on the publication’s receipt by any prisoner. In Pepperling v. Crist, 678 F.2d 787, 791 (9th Cir. 1982), a case involving a general ban of “High Times,” the case was remanded because a copy of the magazine had not even been put into evidence. However, the court noted that the blanket prohibition against receipt of a publication by any prisoner carries a heavy presumption of unconstitutionality. This is true because Martinez requires that any censorship measures taken be no more restrictive than necessary to preserve legitimate penological concerns. Since the wholesale banning of issues of a magazine not yet published would appear unlikely to be as least restrictive as possible, an even greater burden of proof is cast on the officials failing to carry out the censorship in a limited fashion.
The issue of “High Times” offered into evidence includes a variety of features and articles. There is an article on military involvement in drug law enforcement, a printing of the discussion which took place at a criminal law seminar about the ethics of undercover surveillance, and a report of the experiences of users of psychedelic drugs, both positive and negative. The magazine also includes tips on cultivating marijuana plants, short fiction and news items related to drug enforcement. The advertisements carried by the magazine are generally for products which may be used in cultivating and harvesting plants as well as seeds for growing hallucinogenic substances and literature on drug-related topics. Some of the letters to the magazine and shorter items reflect a reverential attitude toward various drugs but the articles and longer features do not advocate or encourage drug use. Many entries are fairly straightforward news reports or informational pieces.
The respondent’s expert witness on prison security stated his general opinion that the magazine could cause security problems but he could not tie his conclusion to the specific contents of the issue in evidence. He testified that he had seen other issues which included smuggling tips which could be attempted in prison, but no such information was included in the issue in evidence. The other witness for the respondent gave his expert opinion that the contents of the issues of the magazine he had seen could have a negative effect on the rehabilitation efforts of an inmate who had a drug use problem. He did not state that petitioner had such a problem and acknowledged that petitioner had successfully completed the prison drug rehabilitation and information program despite the fact that he had previously received three issues of the magazine. The witness did not object to the informational aspects of the magazine but felt that the positive comments about drugs in the publication could serve to reinforce drug using conduct.
Although the expert opinion of prison authorities concerning the demands of prison security, order and rehabilitation must be given proper deference, the testimony presented does not justify a blanket ban on the receipt of “High Times.” Certain portions of the issue placed in evidence or subsequent issues might be adjudged to lead to security or rehabilitation problems but the majority of the magazine in evidence is innocuous, even banal. Accordingly, we agree with the conclusion of the trial court that the respondent failed to overcome the heavy presumption of unconstitutionality which accompanies its blanket ban on petitioner’s receipt of all issues of “High Times.”
Although the parties have argued this case with reference solely to the constitutional standards of inmate free speech recognized by our courts, Kansas, like most other states, has promulgated regulations and procedures to govern the censorship of inmate mail in accordance with the Martinez and Pell decisions. K.A.R. 44-12-601 distinguishes among legal mail, official mail, privileged mail and all other types of communication which may be received through the mail. Legal, official and privileged mail may not be read or censored and may only be opened in the inmate’s presence for the purpose of removing contraband. Publications such as periodicals are subject to censorship according to the following provisions:
“(p) Publications.
(1) Inmates may receive books, newspapers, and periodicals except that inmates at the reception center for evaluation purposes may receive newspaper publications only.
(2) The procedures for censorship of mail listed in subsection (j) of this regulation shall be used for censorship of publications.
(3) Inmates shall have the option of mailing censored publications out of the facility at their own expense, or discarding them.
(4) Publications which are obscene or otherwise illegal, or which meet the test for censorship of mail in subsection (i) of this regulation, shall not be allowed into the facility.
(5) On transfer between institutions or facilities, the inmate shall arrange change of address for newspapers and periodicals.”
K.A.R. 44-12-601(p).
Subsections (i) and (j) state as follows:
“(i) All incoming or outgoing mail, other than legal, official or privileged mail, may be inspected at any time. Such mail may be read and censored only when there is a reasonable belief that there is a threat to institutional safety, order or security, or to the safety and security of public officials or the general public, or when there is reasonable belief the mail is being used in furtherance of illegal activities. Such mail may also be censored if it is obscene and the addressee, or the responsible parent or guardian of an addressee who is a minor, has filed with the principal administrator a written complaint regarding previous correspondence and a request that future correspondence be stopped.
(j) In the event of any censorship of a communication to or from an inmate, the following procedures shall be conducted:
(1) The inmate shall be given a written notice of the censorship and the reason therefor without disclosing the censored material.
(2) The inmate shall be given the name and address of the sender of incoming mail or the addressee of outgoing mail and the date the item was received in the mail room.
(3) The author'of that letter shall be given a reasonable opportunity to protest that decision.
(4) Complaints shall be referred to a prison official other than the person who originally disapproved the correspondence.”
K.A.R. 44-12-60I(i) and-(j).
A number of federal cases considering the constitutionality of censorship regulations such as these have found the provisions permissible if the regulations provide for (1) appropriate notice to the inmate and sender of the publication, (2) a reasonable opportunity to challenge the initial determination that the publication should be censored, and (3) an ultimate decision by a disinterested party who was not part of the initial censorship determination. Hopkins v. Collins, 548 F.2d 503, 504 (4th Cir. 1977); Aikens, 534 F.2d at 755-57. While it appears that the Kansas regulations satisfy these procedural safeguards, no issue has been raised regarding their constitutionality since the evidence indicates that the KSP officials failed to follow their own regulatory procedure. According to the evidence, it was discovered that petitioner was receiving “High Times” after he had received three issues of the magazine. A decision was then made by some unidentified party to prevent further delivery of the magazine. The inmate was not given notice of the censorship decision nor was he permitted the opportunity to seek a review of the initial determination by some neutral party. Petitioner attempted to elicit a reason for the censorship from the prison authorities and was given a note stating that the magazine “is unauthorized at KSP — has to do with drugs.” In short, there is no record from which it could be concluded that the KSP officials engaged in the type of review or secured to petitioner the procedural protections specified by the regulations.
This failure to abide by the regulatory process does little to advance KSP’s claim that its censorship decision was proper. Nevertheless, while we agree with the district court that KSP failed to carry its burden of showing that its censorship decision was constitutionally permissible and we further note that the prison officials failed to follow the procedures set out by regulation, we believe that the scope of the relief ordered by the court is overbroad. The district court ordered the KSP officials to refrain from any interference in the receipt of “High Times” by petitioner. However, there may well be future issues or portions of the magazine which may be censored without a violation of either the First Amendment or the prison regulations. Respondents should not be prohibited from taking future censorship measures which are both lawful and justified.
Finally, it should also be noted that the substantive test stated in K.A.R. 44-12-601 appears to place a greater burden on prison officials than is required by the Supreme Court’s application of the First Amendment. According to the rule, censorship is only allowed if there is “a reasonable belief that there is a threat to institutional safety, order or security . . . .” This wording suggests the need for evidence of a present threat of harm and the likelihood that such harm would occur without the censorship. By contrast, Martinez indicated that no proof of a present threat of harm was necessary. Martinez, 416 U.S. at 414; Blue v. Hogan, 553 F.2d 960, 963 (5th Cir. 1977). Therefore, the future censorship decisions of prison officials should satisfy not only the dictates of the Constitution, but also the apparently stricter standard of the regulations. Accordingly, the trial court is directed to modify its order to allow the petitioner to receive the magazine uncensored unless the respondents find, after following the procedure and applying the test set out in the regulations, that complete or partial censorship of a particular issue of the magazine is merited.
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Parks, J.:
Plaintiff Grainland Farms, Inc. (Grainland) filed this action in trespass against defendants, Arkansas Louisiana Gas Company (Arkla) and Three Star Construction Company, Inc. (Three Star), seeking both actual and punitive damages. The trial court granted defendants’ motion for summary judgment concluding that plaintiffs action was precluded in light of the admitted facts and Arkla’s exercise of its power of eminent domain. Plaintiff appeals.
Grainland is the owner of some farm land in Cowley County, Kansas. In the autumn of 1982, defendant Three Star was employed as an independent contractor by defendant Arkla to lay a four and one-half inch gas pipeline. In performing this task, Three Star unwittingly strayed from Arkla’s right-of-way and installed both the pipeline and a tie-in valve on plaintiff s property. Arkla was first advised of the intrusion of its pipe onto plaintiffs land in a March 1, 1983, letter from Grainland. An Arkla representative inspected the site where the pipe and valve extended onto plaintiff s property and began negotiations with plaintiff concerning a settlement of damages. These negotiations were fruitless.
On June 8,1983, Arkla initiated a condemnation proceeding in order to condemn the property upon which its pipeline had been mistakenly installed. Plaintiff appeared and was represented by counsel in the condemnation proceeding. Appraisers were appointed by the district court and a public hearing concerning the value of the property taken was held followed by its physical viewing. The appraisers were instructed on their duties and each received a copy of the court’s written instructions containing the provisions of K.S.A. 26-513. The appraisers awarded a damage sum of $500 to the plaintiff to be paid by Arkla. Plaintiff did not appeal from this award and accepted its payment.
On July 28, 1983, Grainland commenced this action against Three Star and Arkla claiming actual damages of $500 and punitive damages in excess of $10,000 on a theory of trespass. The district court granted defendants’ motion for summary judgment holding that, by virtue of Arkla’s power of eminent domain, the defendants’ intrusion on plaintiff s land was not a trespass but a de facto taking which could only be remedied by a condemnation proceeding. Plaintiff appeals contending that an independent action for damages arising out of a trespass is not precluded as a matter of law and that the condemnation award did not, in fact, include damages for defendants’ intrusion onto its property eight months prior to commencement of the condemnation proceeding.
Eminent domain is the right or power to take private property for public use; the right of the sovereign, or of those to whom the power has been delegated, to condemn private property for public use, and to appropriate the ownership and possession thereof for such use upon paying the owner a due compensation. Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶ 6, 674 P.2d 1054 (1983). The exercise of the power of eminent domain is referred to as condemnation and it is a special statutory proceeding and not a civil action governed by the code of civil procedure. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 225, 523 P.2d 755 (1974). When property has been in fact taken for public use without formal condemnation proceedings and it appears that the taker has no intention to initiate condemnation proceedings, the property owner may invoke proceedings to obtain just compensation by filing what is referred to as an inverse condemnation action. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 124, 671 P.2d 511 (1983). Inverse condemnation actions are in the nature of a suit on implied contract because our law implies an obligation to compensate an owner whose property is taken for public use. Ventures in Property I v. City of Wichita, 225 Kan. 698, 705-06, 594 P.2d 671 (1979).
Defendants argue that the availability of the remedy of inverse condemnation for landowners whose property is taken without the benefit of condemnation proceedings precludes resort to the common-law remedy of trespass. Compare Tuffley v. City of Syracuse, 82 App. Div. 2d 110, 442 N.Y.S.2d 326 (1981) and St. Catherine v. Mountaintop A.J.S.A., 58 Pa. Commw. 181, 427 A.2d 726 (1981) (property owner limited to inverse condemnation), with Ostrem v. Alyeska Pipeline Service Co., 648 P.2d 986 (Alaska 1982) (property owner may elect between action in trespass or inverse condemnation). However, in this case, there was never any need for plaintiff to institute an inverse condemnation action because, once discovered, Arkla acknowledged its taking and initiated a condemnation proceeding. Thus, the more particular issue raised by this case is whether the condemnation award accepted by plaintiff precluded its action for actual and punitive trespass damages.
Cases from other jurisdictions on this issue are collected in Annot., 33 A.L.R.3d 1132. The majority of these decisions conclude that the condemnation award does not necessarily include damages arising from the prior trespass so that an independent suit may be maintained. See, e.g., Application of Bubb v. Christensen, 200 Colo. 21, 26, 610 P.2d 1343 (1980); Dept. of Transportation v. McGovern, 103 Ill. App. 3d 461, 431 N.E.2d 437 (1982); and Seattle v. Loutsis Investment, 16 Wash. App. 158, 173-74, 554 P.2d 379 (1976). These decisions reason that the condemnation proceeding is limited to compensating the landowner for the taking and does not include damages which are not directly related to a diminution in the fair market value of the property such as may result from a tortious trespass. McGovern, 103 Ill. App. 3d at 464. In Silva v. Arkansas Louisiana Gas Co., 602 P.2d 631, 633 (Okla. 1979), the court held that the landowner was precluded from maintaining an action for negligence and trespass when there had been a prior condemnation award, but the court’s decision was based on the conclusion that the landowner had waived all damages which were or could have been claimed in the condemnation proceeding. Thus, the opinion turned on whether the damages claimed in the trespass were the type of damages which were remediable in the condemnation.
The other cases where an action for trespass damages was held precluded by a previous condemnation award have similarly concluded that the damages sought were the type which could have been claimed in the condemnation. While most of these cases adopt a theory of waiver (see, e.g., Brown v. Davis County, 196 Iowa 1341, 195 N.W. 363 [1923]), res judicata has also been relied upon. Leber v. Minneapolis & Northwestern Ry. Co., 29 Minn. 256, 13 N.W. 31 (1882). However, only a few of the cases in which the common-law action was forestalled were decided in this century.
Kansas is not without ancient precedent on the issue. In Fitzgerald v. C.K. & W. Rld. Co., 48 Kan. 537, 29 Pac. 703 (1892), the railroad initiated proceedings to condemn lands for construction of railroad tracks. The right-of-way commissioners filed their report awarding compensation to the property owner and the owner appealed to the district court. The law provided that once the commissioners entered an award, the railroad was to post a bond for the amount of that award and title would then pass to the condemnor. The railroad failed to give the bond to secure the eventual judgment but went ahead and entered the land and graded a roadbed. The railroad subsequently reached an agreement with the property owner for the amount of his damages, and the district court in which the appeal rested entered judgment for the amount of the agreed damages. The railroad tendered payment and the landowner accepted it. The landowner then filed suit seeking damages for the entry on the land made by the railroad without posting the bond and prior to reaching an agreement on the condemnation award.
The court affirmed the judgment for the railroad concluding that the prior condemnation proceedings fully compensated plaintiff for any damages which may have arisen from the trespass. The opinion stated as follows:
“The first contention of the plaintiff in error is, that the defendant in error was a trespasser, and liable for damages to the plaintiff in error, for the reason that it had no right to go upon the land of the plaintiff in error at the time it did to commence its grading, because it had not executed and filed the bond to indemnify the plaintiff, as required by statute. This was probably true. But the matter was adjudicated and settled in the appeal case. In that case the plaintiff claimed damages for the land appropriated by the company for its right-of-way, and the company tendered a judgment for such damages, among others, which the plaintiff accepted, and judgment was entered accordingly. This judgment was subsequently paid by the company and receipted by the plaintiff, and constituted a full payment for all damages for any trespass committed by entering upon said premises for purposes of grading the road-bed of said railway, as well as for the land appropriated. The bond, which it is alleged was not given until after the company had entered upon the lands of plaintiff for grading purposes, is only provided by the statute as a security for the payment of any judgment that may be obtained against the company on the appeal from the award of the commissioners, and is of no consequence after the judgment is paid. And if the company goes ahead and appropriates the right-of-way, and grades its road-bed without giving any bond at all, but subsequently actually pays whatever judgment is obtained against it, and the plaintiff in the judgment receives the same, such payment is complete satisfaction for any damages growing out of the former entry and appropriation of the land. The owner of the land need not permit the company to enter upon the premises for the purpose of grading the right-of-way until it has given the bond required on an appeal from the award of damages by the condemnation commissioners. Until such bond is given, he can enjoin the company from entering thereon.” Fitzgerald, 48 Kan. at 538-39.
While Fitzgerald held that the trespass action was precluded, it did so based on the particular circumstances of the case. The plaintiff landowner only sought damages arising out of the entry on the land for grading the roadbed and the court concluded that these damages were included in the condemnation award. The court did not say that any action for trespass was precluded or that all trespass damages are subsumed in a condemnation proceeding.
The purpose of the condemnation proceeding is to provide just compensation to the landowner when his property is appropriated for a public use. The measure of damages for the taking is based on the value of the property immediately before and immediately after the taking. K.S.A. 26-513(b) and (c). By contrast, in an action for trespass, the plaintiff may be awarded any damages which are the immediate consequence of the trespass. Ultimate Chem. Co. v. Surface Transp. Int'l, Inc., 232 Kan. 727, 729, 658 P.2d 1008 (1983). The injured landowner is entitled to receive at least nominal damages (Belluomo v. KAKE TV & Radio, Inc., 3 Kan. App. 2d 461, Syl. ¶ 1, 596 P.2d 832, rev. denied 226 Kan. 792 [1979]), and exemplary or punitive damages may be recovered in an action for trespass when the trespasser has been guilty of malice, wantonness, or oppression. Ultimate, 232 Kan. at 730. It is certainly possible that a landowner may suffer damages from a trespass which would not be compensable as part of a taking. See Ancarrow v. City of Richmond, 600 F.2d 443, 445 (4th Cir. 1979); Wehrum v. Village of Lincolnwood, 91 Ill. App. 2d 418, 235 N.E.2d 343 (1968). Therefore, we conclude that the district court erred in holding that the condemnation award precluded the bringing of any trespass action. However, we agree with the ultimate decision of the court that summary judgment was proper in this case because the uncontested record failed to support a claim for any damages which would not have been included in the condemnation award.
The undisputed evidence on the motion for summary judgment was that, prior to defendants’ intrusion on plaintiffs land, plaintiff had been involved in a soil conservation project which necessitated the shaping and diverting of existing waterways into a single new waterway. The construction of Arkla’s pipe on the property disrupted plaintiff s new waterway and the trespass petition sought $500 in actual damages for this interference. Plaintiff also contended that the laying and presence of the pipeline disturbed the natural beauty of the property. However, included in the factors which must be considered by the condemnation appraisers is damage to the appearance of the property, the cost of new drains, and diminution in value of the property from the loss of existing drainage, as well as damage to passageways and the damage to property abutting on a right-of-way due to a change in grade. K.S.A. 26-513(d). Thus, all of the particular items of damage allegedly arising out of the trespass are matters which should have been taken into account in the appraisers’ condemnation award. Indeed, it is interesting to note that the award was for $500; the same sum as that claimed in actual damages for the trespass.
Plaintiff contends that the condemnation award compensates plaintiff for its loss after the condemnation proceeding but that it sustained trespass damages between the date of the first intrusion and the point when condemnation was begun. This contention ignores the basis for “just compensation.” A taking occurs when property is appropriated to a public use regardless of whether the appropriation has been preceded by condemnation or whether the landowner is compelled to bring an inverse condemnation action to obtain compensation. See Herman v. City of Wichita, 228 Kan. 63, 612 P.2d 588 (1980). Therefore, the condemnation award encompassed any damages which may fairly be considered a part of just compensation dating from the point of defendants’ initial intrusion on the land. There may well be cases in which trespass damages could be sustained which are not compensated in a subsequent condemnation but plaintiff s pleading and the undisputed facts presented to the trial court disclose that is not the case here.
Plaintiff did allege that defendants engaged in some sort of oppressive or malicious conduct which would not have been addressed in the condemnation proceeding but which would have entitled it to punitive damages in a trespass action. However, the record of undisputed evidence does not support an inference of malicious conduct on the part of either defendant. Plaintiff conceded that the initial entry on the land by Three Star was, at best, negligent. In addition, once Arkla confirmed that its pipe was intruding on plaintiff s land, it sought to negotiate a settlement of the damages. When those efforts failed, Arkla exercised its eminent domain authority in order to establish a just amount of compensation. Plaintiff never alleged that Arkla engaged in any fraudulent conduct and the substance of its claim of maliciousness was that Arkla refused to pay the damages plaintiff sought in the parties’ negotiations but, instead, Arkla initiated the condemnation proceeding. Plaintiff did not contend that the condemnation was unnecessary or in excess of Arkla’s authority, or that the scope of the condemnation itself was excessive — all matters which cannot be considered in the condemnation proceeding but must be the subject of an independent suit. In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, 679-80, 683 P.2d 1247 (1984). Instead, plaintiff alleged that Arkla’s exercise of a power which it clearly had the legal authority to use was itself a malicious act. We disagree and conclude that based on the undisputed record, no reasonable person could conclude that Arkla’s conduct was wanton, oppressive, or malicious.
In sum, although we hold that a condemnation proceeding and award does not necessarily preclude the maintenance of an action for damages arising out of a prior trespass, the record on the motion for summary judgment, read in the light most favorable to plaintiff, failed to establish an inference of any damages beyond those compensated in the condemnation proceeding. Since the district court’s summary judgment in favor of defendants must be affirmed if correct for any reason (Strehlow v. Kansas State Board of Agriculture, 232 Kan. 589, 592, 659 P.2d 785 [1983]), plaintiff's prior acceptance of the condemnation award precludes the maintenance of this suit.
Plaintiff also raises an issue concerning the trial court’s orders regarding discovery. Plaintiff sought to compel the appearance of an out-of-state witness in Wichita or Arkansas City for deposition. Defendants opposed the action on the ground that the witness was in poor health but stated they would agree to a telephone deposition. The trial court refused to compel the appearance of the witness, stating that plaintiff could submit written interrogatories to the witness.
The control of the discovery process rests in the discretion of the trial court. Lone Star Industries, Inc., 234 Kan. at 131-32. Plaintiff was not denied access to the witness by the trial court’s ruling and no abuse of discretion has been demonstrated.
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JOHNSTON, J.
J. A. Lewis appeals from a conviction upon a charge of stealing six hogs, and the punishment imposed was imprisonment in the penitentiary for a term of twa years. A number of errors are assigned upon rulings made at the trial, but some of them are not of sufficient importance to require notice or comment.
The refusal of a continuance because of an absent witness is strongly urged as a ground for reversal. The testimony which it is said the witness would give was undoubtedly material, but we are not convinced that sufficient diligence to obtain it was shown. For several months after his arrest, and before the trial, the defendant knew that the witness intended to remove to another state, to which her husband had preceded her, but no effort was made to take her deposition. He states that she had promised to postpone going until after the trial, but she left the state sometime before the trial, and the defendant knew she went away, as well as the place to which she went, but no steps were taken by him to procure her testimony.
Complaint is also made of the production before the jury of meat found by the sheriff with the aid of a search warrant, in the possession of the defendant. There was testimony tending to show that the hogs alleged to have been stolen were driven a short distance from the place where they were kept, where some of them were killed and loaded into a wagon, and that those in search found tracks of the wagon as well as drops of blood on the grass and the ground. The tracks were found to continue until they came .to the premises of the defendant, and near his granary and stable door blood and other traces of their presence were found. The tracks were followed beyond the defendant’s place for a distance of about two miles. One witness testified that on that day he was at the granary, and found it locked, but in looking through a crack he discovered a pile of meat partly covered over in the granary, and that, shortly after the searching party went past the defendant’s place, the defendant and another loaded the meat into a wagon and drove away with it About a month after the commission of the alleged offense, a search warrant was procured authorizing a search of the defendant’s premises, and at that time the sheriff found some meat which was produced and admitted in evidence. The testimony was not strong, nor very important; but in view of the other testimony it was competent to give to the jury for what it was worth.
Complaint is made of the following instruction : “Evidenes has been offered for the purpose of showing that meat wa& seen, on the morning after the loss of the hogs, as claimed, at the place of the defendant, J. A. Lewis, and that the same was soon thereafter removed therefrom, and after Joseph Mahurin and others are claimed to have been there. This evidence you may take into consideration for the purpose of determining whether or not the pork so seen was probably a part of the-hogs claimed to have been lost from the premises of the witness Mahurin, as charged.” There was no testimony to show that the meat alleged to have been seen in the granary of the-defendant was pork, and the only witness who testified that he saw the meat in the granary was unable to state, from the view he had, whether it was beef, pork or mutton. By this instruction the court, against the evidence of the defendant, assumés that meat was actually seen in the granary, and the error is emphasized by the assumption that that which was seen was pork. The testimony referred to was the most important offered in behalf of the prosecution, and the unwarranted assumption by the court may have had great influence with the jury in determining that the defendant was guilty. At any rate, we are unable to say that no prejudice resulted from the error.
There is also cause to complain of the ruling of the court in- compelling Lewis to take the witness stand and testify in behalf of the state. He had previously testified in his own behalf, and it is contended that the matter on which he was recalled was only a continuation of the evidence given by him when he first took the witness stand. The state was entitled to recall him for the purpose of a further cross-examination, but the record does not show this to have been the purpose. The statement is that he was recalled in behalf of the state in rebuttal, and examined in chief by the attorney representing the state. The examination appears to have been extended, too, beyond what would have been legitimate cross-examination, if he had been called for that purpose.
Objections were made to other rulings, but none of them are deemed to be material. For the errors pointed out the judgment must 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
Brewer, J.:
This was an action brought by defendant in error, plaintiff below, to recover of the railroad company damages for the destruction of some hay, fencing and trees by fire, caused by the negligence of the company in operating one of its trains. The company answered, first, by a general denial; and second, an allegation of contributory negligence. The plaintiff claimed $211. The case was tried before a jury, which returned a verdict of $118. Upon this verdict judgment was entered, and of it plaintiff in error now complains.
We see little in the record calling for extended comment. Nearly every question presented by counsel has been fully covered by prior decisions of this court. That the property was destroyed by fire, and that the fire started close to the railroad track immediately after the passage of one of the defendant’s trains, is beyond dispute. The real questions were, whether there was any negligence on the part of the defendant, and if so, any contributory negligence on the part of the plaintiff. These are of course mainly questions of fact.But one engine was in use on that part of the road which crossed the plaintiff’s farm, which engine made four trips every day — two each way. On the part of the plaintiff, in addition to the fire which destroyed his property, it was shown that two or three fires were started along the track at different times within two or three days thereafter, and immediately after the passage of this engine, and this under such circumstances that the jury might justly-conclude that they were caused by the engine. In addition, one witness testified that he saw fires thereafter, but without indicating when, or under what circumstances.
On the other hand, the defendant offered the testimony of the engineer and fireman, who testified that the engine was properly constructed, with all ordinary appliances for preventing the escape of fire, in good order, and properly handled and managed. They also testified that no other fires than the one in controversy occurred along the road. It may be added that the engineer showed himself to be a man of limited experience in that business, apd was unable to tell how fine was the mesh crossing the smokestack.
The testimony, as it appears in the record, is limited, and not very satisfactory; and still under the prior decisions we do not feel warranted in disturbing the verdict after its approval by the district court. (Railroad Company v. Stanford, 12 Kas. 354; Railroad Company v. Campbell, 16 Kas. 200; Railroad Company v. Bales, 16 Kas. 252.)
Again, the jury in answer to specific questions submitted by the railroad company, answered that in their opinion the engine was not in good condition, but could not say wherein the defect lay. Their, failure to render a more specific answer is complained of, but we think under the testimony a more exact answer was impossible, and that the one returned was sufficient. (Railroad Company v. Campbell, supra.)
Again, the court charged the jury that this single fire did not of itself prove negligence, but that from the occurrence of a series of fires of a similar nature at or about the same time, when an engine in good order and properly handled does not ordinarily start such fires, the jury might be justified in inferring negligence, although there was no direct evidence as to wherein the negligence consisted, and that it was unreasonable to expect of the plaintiff direct evidence of the specific defect in the engine or its management, as these were matters peculiarly within the knowledge of the defendant. The latter part of this instruction is complained of, but it is almost the very language of this court in case of The Railroad Company v. Stanford, supra. So far as the question' of contributory negligence is concerned, the plaintiff’s hay was stacked some twenty to forty rods from the track, and whether he was guilty of contributory negligence in not suitably protecting it as against fire, was properly submitted as a question of fact to the. jury. (Railroad Company v. Brady, 17 Kas. 380; Railroad Company v. Hotham, 22 Kas. 52; Railroad Company v. Henigh, 23 Kas. 359; Railroad Company v. Owen, 25 Kas. 419.)
These are all the matters we deem of moment; and in them appearing no error, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on an attachment bond, to recover damages for a wrongful attachment. Two questions are presented:
First, It was alleged in the petition that the property attached was a mare named “Jane.” This name appears twice in the petition: first, where it alleges ownership of the property of the plaintiff; and second, where it alleges seizure by the deputy constable. On the trial it appeared that the name of the animal was “Iona” instead of “Jane,” and on application of the plaintiff, leave was given to amend the petition by changing the name from “Jane” to “"Iona.” In the first of the two places in which it appeared, the amendment was so made, and upon the amendment the petition remains as alleging the ownership of a mare named “Iona,” and the seizure of one named “Jane.” Upon this apparent contradiction defendant claims that the judgment against him should not be permitted to stand. This is altogether too technical. But a single animal was referred to in the testimony ; but a single animal was attached; and while the name of the animal was given originally in the petition as “Jane,” yet the testimony showed that its name was “Iona.” This mere matter of name is trifling, and while of course there was an omission of counsel in failing to notice the fact that the name was twice used, yet such omission ought not to prejudice the rights of the plaintiff. The error is not one which goes to substantial rights. When it appeared that the name of the animal attached was “Iona” instead of “Jane,” and leave was given to amend, the amendment should be considered as running to every place in the petition in which the name of “Jane” appeared. A failure to make the change in any particular instance must be regarded as a mere clerical omission on the part of the counsel.
Second, The only other question is, as to the measure of damages. The court charged this to be the expense incurred and the value of the time and' trouble expended in obtaining a release of the property from the attachment, as well as any injury done to the property by means of the wrongful seizure. This is the mere actual damage, and that which is recoverable. (Drake on Attachment, §175; Campbell v. Chamberlain, 10 Iowa, 337.) The instruction was right.
There being no other question, the'judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by '
Brewer, J.:
The principal question in this case is this: A single information was filed, charging the defendant and one Conrad Kreipe with the sale of intoxicating liquors contrary to law. When the case was called for trial they demanded separate trials, which demand was refused. A jury being called, each defendant demanded four peremptory challenges, the number he would be entitled to if tried separately. The court refused this demand. The jury found appellant guilty, and disagreed as to his co-defendant. Now the error complained of is the ruling of the court refusing to allow to each defendant four peremptory challenges. Counsel for the state object that the record does not fairly present this question, or show any error in the ruling of the court. The bill of exceptions does not purport to set out all the details of the impaneling of a jury. It simply states in general terms what was done. After reciting the plea of not guilty, it reads as follows:
• “That thereupon a jury of twelve men were called and sworn to try the case; that upon the selection of the jury the defendant' and the said Kreipe each demanded of the court that they each be allowed and given four peremptory challenges; that they each be allowed and given four peremptory challenges for each offense charged in the information; all and every part of which demands the court refused and would not allow, and restricted and set the number of peremptory challenges to which the defendant and the said Kreipe were both entitled in the aggregate at four, and no more; and to all which refusals and rulings of the court, and every part thereof, the defendant and the said Kreipe each then and there excepted. That in the selection of the said jury the defendant and the said Kreipe used four peremptory challenges.”
Nothing further appears in the record in respect to the matter. Now upon this, two questions arise: 1. Is a defendant in a criminal action, when tried jointly with others, entitled to the same number of peremptory challenges he would be entitled to if tried separately, or must he share his right of challenge with his co-defendant? 2. If personally and separately entitled to the full number of challenges, does the record show that such right was infringed upon?
The statute, (Comp. Laws 1879, p.755, §198,) reads: “The defendant in every indictment or information shall be entitled to a peremptory challenge,” etc. Now does this mean that each defendant is so entitled, or that all the defendants as a body are so entitled? Whatever doubts might arise from a mere reading of this language, we think it is well settled by abundant authority and in accord with the dictates of natural justice, that this right of challenge shall be regarded and enforced as a personal right of the individual. Blackstone, in his Commentaries, book 4, page 353, thus states the foundation and ground of peremptory challenges:
“But in criminal cases, or at least in capital ones, there is in favorem vilce, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on'two reasons: (1) As everyone must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such, his dislike; (2) because upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill-consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.”
Now in order to give full scope and effect to these reasons, it is essential that the right of challenge be regarded and enforced as the personal right of each individual defendant. In 3 Wharton on Criminal Law, §3136* the author says:
“The right to challenge a juror, as has been observed, is a right to reject — not to select; and therefore neither of two defendants in an indictment on a joint trial has cause to complain of a challenge by the other.”
In the case of The United States v. Marchant, 12 Wheat. 480, in the opinion of the supreme court, pronounced by Mr. Justice Story, it is said:
■ “Upon a joint trial, each prisoner may challenge his'full number, and every juror challenged as to one is withdrawn from the panel as to all the prisoners on the trial; and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid down by Lord Coke, Lord Hale, and Serjeant Hawkins, and indeed by all the elementary writers.”
In the case of The State v. Stoughton, 51 Vt. 362, it was held, that one, indicted with others, does not waive his right to the statutory number of peremptory challenges by consenting to be tried with them. If one consenting to a joint trial does not waive this right, a fortiori, one who is compelled against his will to a joint trial ought not to be deprived of it. In the case of Cruce v. The State, 59 Ga. 83, it was held by a majority of the court that each of two defendants jointly tried was entitled to the full number of peremptory challenges. (See also Smith v. The State, 57 Miss. 822; Bixbee v. The State, 6 Ohio, 86; Mahan v. The State, 10 Ohio, 233; 1 Bishop Cr. Pro., § 967.) In the case of Stroh v. Hineliman, 37 Mich. 490, it was held under a statute such as Mich. Comp. Laws, 6027, that in all civil cases each party may challenge peremptorily two jurors; and when several defendants unite in one plea and defense,- and appear by the same counsel, two challenges to all the defendants are all that need be allowed. But where two defendants sever in pleas, and appear by different counsel to litigate antagonistic defenses, each must be'deemed a “party” within the enactment, and entitled to two challenges. (See also, as bearing somewhat on the question, the following authorities: Sodousky v. McGee, 4 J. J. Marsh. 267; Reynolds v. Rowley, 2 La. An. 890; Stone v. Segur, 11 Allen, 568; Hill v. State, 2 Yerg. 246; Blackburn v. Hays, 4 Coldw. 227; Wiggins v. State, 1 Lea, [Tenn.,] 738.) So that, whatever would be the rule in civil eases, (and probably the construction placed by the Michigan court upon its statute would be a fair interpretation of our own,) we think that in criminal cases a defendant, though jointly tried, is not thereby deprived of his individual right to make the full number of peremptory challenges.
Does the record show that this right was infringed upon? Counsel for the state contends that it is not affirmatively shown that either defendant desired peremptorily to challenge .any other juror, or was not fully satisfied with the jury as it was finally sworn; and further, that it does not appear that all of the four challenges actually made were not made by and at the instance of this defendant; and that if he had all that he was entitled to, it matters not to him whether his co-defendant was deprived of all right of challenge, or not.
The writer of this opinion is inclined to think this claim of counsel is correct; that as error is not to.be presumed, but must be shown, it should affirmatively appear that this defendant, the only one complaining, offered or desired to challenge another juror, or that all the four challenges actually made were not made by him, or at his separate instance. For aught that appears, every one of these challenges may have been made by appellant, and Kreipe may be in fact the only one prejudiced by the ruling of the court. Hence the writer thinks the judgment should be affirmed. But his associates are of a different opinion. They hold that-there was one distinct'ruling-of the court denying the claim of four peremptory challenges by each defendant, a ruling duly excepted to; that after such ruling it was unnecessary, and would have been discourteous, for either defendant to go through the form of insisting upon a further challenge, the four allowed by the court having been exhausted; and that the statement that they used four challenges implies that each defendant, separately as well as jointly, desired and insisted upon the exclusion from the panel of the challenged jurors. Hence they hold that the rule of law discussed in the former part of this opinion was disregarded, and that for this error the judgment should be reversed, and the case remanded for a new trial. It is so ordered.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in the district court of Clay county, but grows out of proceedings had before a justice of the peace of the same county. The defendants in error move to dismiss the petition in error and case from this court, on the ground that the plaintiff in error has filed only a oopy of .the original case-made with his petition in error, and has not filed the original case-made, nor any transcript of the proceedings of the court below. The plaintiff in error, however, has, since the motion was made, and with leave of the court, filed the original case-made with his petition in error. The motion of the defendants in error will therefore be overruled. Such a motion is generally not entitled to very much favor.
The facts of this case are substantially as follows: On December 18,1880, J. M. Shaw and George Farrell commenced an action before a justice of the peace of Clay county, against A. Rowland.' A summons and an order of attachment were duly issued in the case. The order of attachment was issued upon the grounds “that the said A. Rowland had absconded with the intent to defraud his creditors, and had assigned, removed and' disposed of his property with the intent tó defraud his creditors.” The summons was returned by the •constable with the following indorsement thereon : “December 18,1880, received this writ. ' December 20,1880, served the same by delivering a copy thereof with indorsements thereon duly certified, at the within-named defendant’s place of residence. — S. Langworthy, Constable, by O. F. Miller, Deputy.” The order of attachment was, by the direction of Shaw and Farrell, duly levied by Deputy Constable Miller upon one wagon, one plow, one cultivator, and forty acres of growing wheat. Rowland made no appearance in the case. On the return day of the summons, which was December 23, 1880, the justice of the peace rendered judgment in favor of •the plaintiffs and against the defendant Rowland for $27.50, and costs taxed at $16.55. On January 1, 1881, the attached property was sold at the instance of Shaw and Farrell, by Constable Langworthy, for $92. Twenty-seven dollars and fifty cents of that amount was paid to Shaw and Farrell in satisfaction of their judgment. Just what became of the balance of the money is not definitely shown. There was no service of the above-mentioned summons, except as above stated. Rowland was not in th'e state at the time, and had no actual notice of the commencement of the action, and knew nothing concerning the same until after the property above mentioned had been sold. On August 17, 1881, Rowland commenced this.present action in the district court of Clay county, against J. M. Shaw, George Farrell, and Samuel Langworthy, the plaintiffs and constable in the above-mentioned action, alleging among other things that the return indorsed on said summons was false; that no summons or notice was left at his (Rowland’s) usual place of residence as stated in the return; and that he had no notice of the pendency of the action, and made no appearance therein. A trial was had in the district court before the court and a jury, and the plaintiff introduced evidence tending to sustain all the allegations of his petition, and tending, as we think, to prove a good and valid cause of action. When the plaintiff closed his evidence the defendants demurred to the same, on the ground that it did not prove any cause of action against the defendants. The court below sustained the demurrer, and the plaintiff excepted. The plaintiff then moved for .a new trial upon various grounds, which motion was overruled; and the plaintiff again excepted.
We think the court below erred in sustaining the defendants’ demurrer to the plaintiff’s evidence; for while the evidence was such that the jury might veryproperly have found against the plaintiff and in favor of the defendants, yet we do not think the evidence was such that the court could say as a matter of law that it did not prove or tend to prove any cause of action in favor- of the plaintiff and against the defendants. We think it did tend to prove a cause of action in favor of the plaintiff and against the defendants. It tended to prove in fact that the summons issued in the original case by the justice of the peace was not served by leaving a copy of the summons with the indorsements thereon, at the usual place of residence of the defendant in that action, plaintiff in this; and if the summons was not served by leaving a copy thereof with the indorsements thereon at the usual place of residence of the present plaintiff, it is admitted that no service of any kind was made of the summons. A copy of the summons with the indorsements thereon was in fact left at a house in Blaine township, in Clay county; but at least a portion of the evidence tended to prove that this house was not and never had been the usual place of residence of-the pres ent plaintiff, Rowland. Upon this question the evidence was conflicting.
We do not think that it is necessary to discuss the evidence; and we do not think that it is necessary to discuss the question as to what the measure of damages may be, provided the plaintiff may ultimately recover in this action; and we refrain from discussing these questions, for various reasons. The evidence is conflicting, and it is not our province to determine upon which side the preponderance exists — that belongs to the jury; and it is not improbable that the jury will determine when the case is finally submitted to a jury, that the copy of the summons in the original case was left at the usual residence of Rowland; and will therefore decide that Rowland cannot recover in this action. Indeed it is very probable that if the court below had not sustained the defendants’ demurrer to the plaintiff’s evidence, the jury would have so decided at the trial heretofore had;, but the evidence was not such as to compel them to so decide. They might have decided in favor of the plaintiff if they had in fact under all the evidence believed that no service of summons had in fact been made upon him when he was the ostensible defendant in the ease before the justice of the peace.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by '
Valentine, J.:
This action was brought originally in the district court of Lyon county, by Mrs. E. S. Manning against Geo. W. Brown, administrator of the estate of Robert K. Manning, deceased, Josie A. Manning, N. E. Weaver, and H. B. Lowe, to recover on a replevin bond. Brown executed the bond as principal, and Manning, Weaver and Lowe executed the same as sureties. The principal question involved in both the replevin .action and in this action, was with reference to the ownership of certain cattle. It appears that after Brown obtained possession of the cattle, by virtue of his replevin action, he then dismissed the action and did not prosecute the same any further. Mrs. E. S. Manning, one of the defendants in the replevin .action and one of the obligees of the replevin bond, then commenced this action against Brown, Josie A. Manning and Weaver and Lowe, the obligors in the replevin bond as aforesaid, to recover damages sustained by reason of the taking of said cattle, including the value thereof.
We have once before had this case before us, and we then decided that the action might be maintained. (Manning v. Manning, 26 Kas. 98.) Since said decision, the action has been tried in the district court before the court and a jury, which trial resulted in a verdict and judgment in favor of the plaintiff, Mrs. E. S. Manning, and against the defendants, George W. Brown, et al. The jury found a general verdict, and also made special findings. The verdict and findings read as follows:
General Verdict. — “We, the jury in the above-entitled c'ase, do find for the plaintiff.”
Special Findings of Fact Requested by Defendants, and the Jury’s Answers Thereto. — “1. Was Robert K. Manning, deceased, in his lifetime the owner of the cattle in plaintiff’s petition described ? A. No.
“2. If the jury answer the last question in the negative, they may then answer the following question : Was Robert K. Manning, deceased, in his lifetime a partner in any partnership which owned the cattle described in plaintiff’s petition? A. No.
“3. If the jury answer the first question in the negative, they may then answer this question : Were not the cattle described in the plaintiff’s petition the property of a partnership at the time of the death of Robert K. Manning? A. No.
“4. Did not Robert K. Manning at the time of his decease own some interest in the cattle described in the plaintiff’s petition ? A. Yes.”
Special Findings of Fact Requested by the Plaintiff, and Answered by the Jury. — “If the jury shall answer the fourth special finding asked by defendants in the affirmative, was not such interest simply a share of profits as a compensation for the labor he had bestowed or was to bestow? A. Yes.
“When were the cattle, mentioned in plaintiff’s petition, taken by the writ of replevin in the case of Brown v. Manning, et al.f A. September 11, 1879.”
Special Finding of Fact and Answer of the Jury Thereto, Submitted by the Court. — “What was the value of the four head of steers, and four head of heifers, and one bull, of which the administrator of Robert K. Manning obtained possession ? A. ($232.) Two hundred and thirty-two dollars.”
The court below rendered judgment in favor of the plaintiff and against the defendants, in accordance with the general verdict and special findings of the jury, and in accordance with certain stipulations before that time entered into between the plaintiff and the defendants. The defendants now, as plaintiffs in error in this court, claim that the verdict and findings are not sustained by sufficient evidence, and are contrary to law, and that the court below gave an instruction to the jury which was misleading. The supposed misleading instruction reads as follows:
“A sharing of profits of a venture does not necessarily make the parties sharing, partners. Where a party, without any interest íd the property, is by agreement to receive as compensation for his services, and only as compensation therefor, a certain portion of the profits, he does not thereby become a partner in such property.”
We cannot say that the verdict and findings are not sustained by sufficient evidence, or are contrary to law, or even that they do not do exact justice between the parties; nor can we say that the instruction above quoted is misleading. Un tier the verdict and findings of the jury and the judgment of the court below, we must consider that portion of the evidence as true which tends to support the verdict and findings and judgment, although it may be contradicted by other evidence; and considering the case in this light, the facts of the case are substantially as follows: In 1878, Mrs. E. S. Manning borrowed $500 and gave it to her two sons, Robert K. and Ed. Manning, to invest in cattle. The cattle were to belong to Mrs. Manning, but the sons were to take care of and feed them, and she was to pay her sons for their services. She had the right to sell any portion of the cattle at any time, and the proceeds of any such sales were, at the option of the parties, either to be divided, or again be invested in cattle in the same manner as the first $500 were. This arrangement between Mrs. Manning and her sons was to continue for five years from the time when they first entered into the arrangement. At the end of the five years the cattle on hand, and any money on hand arising from previous sales of cattle, were to be divided. There was no agreement as to how the cattle or the money should be divided, or how much the sons should receive of either, or what the compensation of the sons should be; but evidently the cattle and the money were to belong to Mrs. Manning until the division; and when the division was madé, the sons were evidently to receive only a sufficient amount to compensate them for their time, trouble and expenses in purchasing the cattle, and in taking care of and feeding them; that is, the sons were simply to receive compensation for their time, trouble and expenses out of the cattle and the proceeds of the sales of cattle, and were not to be paid in any other manner, and were not to have any other or different interest in the cattle than the mere right to receive compensation out of the cattle themselves, or the proceeds thereof, or both. If the mother had sold all the cattle, as she had a right to do, they would have had a right only to some portion of the proceeds thereof. They certainly had no title in the cattle, and no absolute right to possession, for the mother, by a sale if not otherwise, could deprive them of the possession at any time. Their only right was compensation.
Taking this view of the case, we think the plaintiff had the right to recover in this action. The evidence, however, was conflicting. Even the testimony of the plaintiff herself was vague, unsatisfactory, and in some particulars contradictory; but the jury saw all the witnesses and heard all their testimony, and. they could form a much more correct judgment of the real facts of the case than we can. As to replevin for the recovery of joint property in the hands of a tenant-in-common, see Blaker v. Sands, ante, p. 551.
Perhaps it would be well enough here to state that when the arrangement was originally made betwen Mrs. Manning and her two sons, the two sons were living at home as a part of her family. They had no means of their own, and had never done business for themselves before that time. Robert K. was only twenty-two years of age, and Ed. was 'still younger. The cattle which they afterward bought were taken care of not only by Robert K. and Ed., but also by the other members of the family, and the family consisted of several members. This arrangement, as before stated, was made in the spring of 1878, and in 1879 Robert K. went to Colorado, and there died. Afterward, Ed. went to work on the railroad, l?ut just when is not shown. The cattle were received from Mrs. Manning on September 11, 1879, by George W. Brown, the administrator of the estate of Robert K., as before stated. We do not think that it is necessary to mention any of' the other facts. Perhaps it was not necessary to mention even those we have ju3t stated; but we have .done so in order.that a more correct knowledge of the case may be had.
We have often had occasion to say that we will not retry a ease in this court upon conflicting and contradictory evidence; and it will probably be proper to reiterate the same thing in this case. In all such cases we must take the facts of the case as they are found by the court and jury, and simply apply the law to such facts, and determine from such facts whether the proper judgmént was rendered in the case, or not. Undoubtedly the plaintiffs in error, defendants below, believe that the verdict is erroneous, and that great injustice has been done; but this is nearly always the case where the evidence is conflicting, or uncertain and pretty evenly balanced. After a careful consideration of the evidence in this case, and taking it just as it is — vague, uncertain, unsatisfactory, and in some particulars contradictory— we have come to the conclusion that we cannot say that an erroneous or unjust verdict was rendered.
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 an action in the nature of a suit in equity, brought by Enos A. Hiatt against David M. Parker, Olive C. Parkei? and Alexander P. Martin, for the purpose of having certain instruments in writing set aside and canceled, and of reinvesting the plaintiff with the title to certain land which he had formerly owned; or, if that could not be done, then of having one of the instruments considered as a mortgage, and having the same foreclosed. The facts of the case as set forth in the plaintiff’s petition are briefly as follows: On January 31, 1876, the plaintiff Enos A. Hiatt owned the real estate hereinafter described. On that day the plaintiff and the defendants, the Parkers, entered into a contract in pursuance of which the plaintiff conveyed said real estate by an absolute deed of conveyance to David M. Parker, and in consideration therefor, and as a part of the same transaction, David M. Parker and his wife Olive C. Parker executed the following instrument, to wit:
“This indenture, made this 31st day of January, 1876, by David M. Parker and Olive C. Parker, parties, of the first part, and Enos Hiatt, party of the second part, w'itnesseth:
“That whereas the party of the second part this day deeded to said David M. Parker the following-described real estate in Lyon county, Kansas, to wit, the west half of the northwest quarter of section twenty (20), township nineteen (19), range eleven (11), under the following agreement: That the said David M. Parker take, keep and care for said Enos Hiatt during his natural life, and shall do this well, furnishing him with necessary rooms, bedding, board, clothing and washing, and in case of sickness, medicine and medical attendance, and at death give him a decent burial:
“Now this instrument hereby reconveys to the said Enos Hiatt the above-described real estate as security for the performance of said contract; and the said David M. Parker and his wife, the said Olive C. Parker, do hereby mortgage to the said Hiatt the said described tract of land.
“But should the said agreement be faithfully fulfilled by said David M. Parker, then this instrument shall be of no effect and void; otherwise, to be in full force and effect.
“Witness our hands, this 31st day of January, 1876.
D. M. Parker.
Olive C. Parker.”
This instrument was duly acknowledged and recorded. This property was at the time highly cultivated, and contained a good house, a well, an orchard, barns, sheds, was well fenced, and was of the value of over $2,500. Parker and wife immediately took possession of the property j,nd have been in the possession of the same ever since, enjoying all the rents, issues and profits thereof, which were of the value of more than $250 per year. The Parkers have utterly.failed and refused to perform their part of the contract, or any portion thereof, as embodied in the foregoing instrument. §ome time after exe-. cuting this instrument, Parker and wife executed a mortgage of the premises to the defendant, Alexander P. Martin. This mortgage the plaintiff prays may be adjudged to.be inferior to and void as against the plaintiff’s rights.
The plaintiff further prays, as follows:
“ Plaintiff therefore prays the court to decree the said contract rescinded, broken, null, void, and of no effect, and that the title conveyed by said deed may be adjudged reinvested in this plaintiff, free and clear from any and all claims of the defendants, or any or either of them. . . .
“ Or, if the court shall consider said instrument a mortgage, that it will order an accounting of what plaintiff'ought to’ have received in the premises, and adjudge the same a first lien on the premises, and decree a foreclosure thereof, directing sale if amount not paid when required as decreed, and for costs, and for such other and further relief as may be equitable.”
The defendants, the Parkers, moved the court to require the plaintiff to elect as to which relief asked for in the plaintiff’s petition he would take, which motion the court overruled, and the Parkers duly excepted. The Parkers also moved the court to require the plaintiff to separately .state and number the different causes of action set forth in his petition, which motion the court overruled, to which ruling the Parkers duly excepted. The defendants, the Parkers and Martin, then demurred to the plaintiff’s petition, on the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer the court sustained, to which ruling the'plaintiff duly excepted. The plaintiff now brings the case to this court, and asks that the order and judgment of the district court, sustaining the defendant’s demurrer to his petition, be reversed. The plaintiff, of course, does not complain of the rulings of the court below upon the motions made by the Parkers, for such rulings were in his favor, and not against him. And the defendants are not in a condition to complain of such rulings, for the final order and judgment rendered in the court below were in their favor, and not against them; and neither have they filed any petition in error, or cross-petition in error, in this court, nor have they, under the circumstances, any right to ask that we shall consider such rulings, unless they suppose the rulings are in some manner connected with or might affect the decision on the demurrer.
We think it will appear, however, in the discussion of the main question in the case, that each of the rulings is independent of the others, and that the rulings on the motions can have no possible effect upon the rulings on the demurrer. The principal grounds of complaint on the part of the defendants are with reference to the prayer of the petition, and not with reference to the specific facts stated, which are supposed to constitute the plaintiff’s cause of action. We do not understand the defendants to claim that the specific facts which are set forth in the plaintiff’s petition as the foundation for his cause of action are not in and of themselves “well pleaded,” but it is claimed merely that the plaintiff asked in the prayer of his petition for different kinds of relief, and for relief which can never be granted in one single action, but can only be granted, if ever granted, in separate and distinct actions. Now it must be remembered that the defendants do not demur to the plaintiff’s prayer for relief, but only to his cause of action, and that the prayer for relief and the cause of action are entirely separate and distinct things. Section 87 of the civil code provides that “the petition must contain: First, The name of the court and the county in which the action is brought, and the names of the parties plaintiff and defendant, followed by the word ‘ petition; ’ second, a statement of the. facts constituting the cause of action in ordinary and concise language, and without repetition; third, a demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time from which interest is to be computed shall also be stated.” Section 89 of the civil code provides, among other things, that “the deféndant may demur to the petition only when it appears on its face either: . . Sixth, That the petition does not state facts sufficient to' constitute a cause of action.” No authority is anywhere given to demur to the relief prayed for in the plaintiff’s petition; nor do the statutes in this case provide, as the statutes of some of the other states do, that the defendants may demur to the plaintiff’s petition or complaint, when the facts alleged thérein show that the plaintiff is not entitled to the relief demanded; nor have the defendants in this case demurred to the relief prayed for, but have demurred only to the facts alleged as constituting the plaintiff’s cause of action. It would seem then that the only question to be considered in this case is, whether the facts set forth and alleged in plaintiff’s petition, and supposed by him to constitute a cause of action, do in fact constitute a cause of action; for, as before stated, we do not understand that the defendants claim that the facts as alleged in the plaintiff’s petition, and aside from the prayer for relief, are not “ well pleaded.”
We might say further, that we do not think the question presented in this case is merely whether the petition states facts sufficient to constitute a cause of action in ejectment, or to quiet the plaintiff’s title, or to -set aside a deed, or for any other specific relief; but it is simply whether the petition states facts sufficient to constitute a cause of action of any kind. We think the petition states facts sufficient to constitute a cause of action. It is probably true that the petition does not state facts sufficient to authorize the relief asked for in the first portion of the plaintiff’s prayer for relief, but we think it states facts sufficient to authorize the relief asked for in the last portion of such prayer — that is, we think the facts set forth in the petition will authorize a judgment declaring the instrument executed by the Parkers to be a mortgage, and that such mortgage shall be considered as a first lien upon the property in controversy, and that the Parkers have committed a breach of their mortgage, and that the same shall be foreclosed, etc. The fact that the plaintiff asked for more relief than he was entitled to, and asked for more relief in the alternative, we think does not render the petition insufficient as stating a cause of action. Parties generally ask for more relief than they are entitled to, and often ask for relief in the alternative. This is generally permissible in equity, where the plaintiff has doubts as to how much relief or what kind of relief he is entitled to. (1 Daniell’s Chancery, 384.) The plaintiff’s prayer for relief is defective, however, in one particular: he asks in part for a money judgment, but does not state the amount for which he asks judgment. To this extent the prayer for'relief is defective, and should be amended. But we do not think that this defect in the prayer for relief would render that portion of the petition which sets forth the facts constituting the plaintiff’s cause of action so defective that we could say that no cause of action is stated in the petition.
As before stated, the prayer for relief is no portion of the cause of actiqn. With reference to this matter, see not only §§87 and 89 of the civil code, but also Pomeroy’s Remedies and Remedial Rights, §§454 to 461, especially §§454, 457, 461, and §580. Also, with reference to this same matter, and as to what constitutes a cause of action, see Scarborough v. Smith, 18 Kas. 405-407; with reference to what constitutes a mortgage, see Moore v. Wade, 8 Kas. 381, 388, et seq., and cases there cited. The failure on the part of the plaintiff to state an amount for which he claims judgment might become material, if he should not amend his petition in this respect. (Green v. Dunn, 5 Kas. 254; Shepard v. Pratt, 16 Kas. 210.
The case of Stewart v. Balderston, 10 Kas. 131, has no application to this case, for in that it was held that the facts stated in the plaintiffs’ petition as constituting their various causes'of action were not “well pleaded.” It cannot be so held in this case. In this there was no attempt to state more than one cause of action, and that was properly stated, and the facts set forth as constituting the same were “well pleaded,” and the only defect or informality was in the relief prayed for.
The judgment of the court below 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.:
This case grows out of the same transactions as were presented to this court in the case of Blair v. Shew, 24 Kas. 280. The facts briefly stated are as follows: Morris and Wolfley held a claim against defendant in error. John Garvin also held a claim against him. On August 2, 1879, suits were commenced before a justice of the peace on each of these claims, and in each suit a writ of attachment was issued. August 2d was Saturday. On Sunday, August 3d, the writ in one case was served by seizure of a span of horses ánd a wagon. Under this seizure the property was held until Monday, August 4th. On that day the writ levied upon the property was returned, and an alias writ issued. This alias writ, as well as the original writ in the other case, was on that day levied upon the property, and thereafter it was sold and the proceeds applied in satisfaction of these two claims. After the second seizure, (that on Monday, August 4th,) plaintiff commenced two actions, one in replevin to recover the property itself, and thé other to recover damages for the wrongful seizure and detention on Sunday and thereafter. The replevin case was tried, and judgment rendered in favor of the plaintiff, which judgment was reversed (24 Kas., supra), this court holding that whatever might be said as to the seizure upon Sunday, the levy upon Monday was only voidable, and could be challenged only by direct proceedings to set aside the service. This second case came on for trial, and the jury, in answer to special questions, found the usable value of the property from Sunday to Monday was two dollars. They also allowed $50 as exemplary damages for the seizure and holding from Sunday to Monday, and still further found the damages for the wrongful detention from Monday to the time of trial to be $330. The court declined to enter judgment in favor of the plaintiff for the $330, but sustained the verdict as to the $52, and the plaintiff electing to take judgment for that sum, rendered judgment therefor. Both parties allege error.
The defendants object to the judgment of $52 against them, and the plaintiff insists that he should have judgment for the $330 additional. Considering first the questions raised by the defendants, now plaintiffs in error, we remark that the service of the attachment process upon Sunday was void. In the case in 24th Kansas, supra, we assumed, but did not decide, that such levy was void. We now hold that it was void. It is unnecessary to consider what conduct on the part of defendant would have been equivalent to a waiver of the defect, for in this case nothing was done by him which in any manner tended to recognize its validity. On the contrary, all his actions were in direct challenge of its validity. In such case we have no hesitation in holding that the service was void; that the seizure of the property under the writ on that day was a trespass for which the plaintiff was entitled to recover damages, in the usable value of the property up to the time of the service of the other writ of attachment on Monday. At common law, service of civil process on Sunday was void. (Broom’s Legal Maxims, 21; Swan v. Broome, 3 Burr. 1595; Taylor v. Phillips, 3 East, 155; Sayles v. Smith, 27 Am. Dec. 117; Coleman v. Henderson, Litt. [Ky.] Sel. Cas. 171; Butter v. Kelsey, 15 Johns. 177; Strong v. Elliott, 8 Cow. 27; Shaw v. Dodge, 5 N. H. 462; Stern’s Appeal, 64 Pa. St. 447.) Our statutes may not, in terms, prohibit service on Sunday, yet they prohibit labor generally, (Comp. Laws 1879, p. 363, §255,) and , at least impliedly recognize the invalidity of such service. By §681, code of civil procedure, the writ of habeas corpus is authorized to be served in case of emergency on Sunday-. By § 2, ch. 90, Comp. Laws 1879, any person who knowingly serves any process issued from a justice’s court in a civil suit on Saturday, or returnable on Saturday, upon a person whose religious faith is to keep Saturday as the Sabbath of rest, is declared guilty of a misdemeanor. These .provisions impliedly recognize the continuance of the common-law rule of the invalidity of the service upon Sunday of ordinary civil process. (Johnson v. Brown, 13 Kas. 529; Stone v. Bird, 16 Kas. 488; Birks v. French, 21 Kas. 238.) The service of the attachment on Sunday being invalid, the seizure and the detention were wrongful, and the plaintiff is entitled to recover damages therefor. The court charged the jury that if they found that the levy thus made on Sunday was malicious, or for the purposes of oppression, that the jury were at liberty to allow exemplary damages. We think- the law thus stated is correct, and the facts, as developed in the testimony, justified the instruction. Obviously the 'parties knowingly and deliberately caused the attachment to be illegally served upon Sunday, for the purpose of holding the property within the jurisdiction of the court until, as they supposed, a perfectly legal process could be served on Monday. Parties who thus knowingly abuse the process of the court, and desecrate the day set apart for the day of rest, are justly liable to be mulcted in exemplary damages. The desecration of the Sabbath comes easy enough and often enough without prostituting the process of the court to that end; and we see no reason in this case to doubt the correctness of the law laid down by the court, or the justice of the verdict returned by the jury. There is no conflict in the decision of this case with the 24th Kansas, supra. The service of attachment on Monday, whether good or bad, void or voidable, did not affect the illegality of the seizure on Sunday, and though after Monday the plaintiff might not maintain replevin, the seizure on Monday being only voidable, as we held iu that case, he was not estopped from recovering damages for the prior illegal seizure on Sunday.
This disposes of the case so far as the plaintiffs in error are concerned. So far as respects the cross-petition filed by the defendant in error, we may remark that having elected to take the judgment for $52, he is hardly in a position to complain of the refusal of the court to give him judgment for $330 more.
Again, his right to recover the $330 depended upon whether he was a resident of the state of Kansas upon Monday, and we think such residence under the testimony' is so doubtful that notwithstanding the findings of the jury, we do not feel warranted in disturbing the ruling of the court thereon. It would be in effect reversing an order granting a new trial, which for reasons often stated is rarely done. Furthermore, there may be a question as to how far the decision of the replevin action is conclusive in this respect. We do not care, however, to pursue this iriquiry. It is enough for us to say that the evidence of a residence acquired on Monday is SO’ uncertain and unsatisfactory, that we do not feel warranted in disturbing the action of the court in refusing to sustain the finding of the jury thereon.
There being no other question, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the plaintiffs against the defendants, to recover a quarter-section of land situate in Miami county. The defendants, Wilson Palmer and Martha Ann Palmer, defended for a portion thereof. The second or final trial' was had before the court without the intervention of a jury. Upon the trial it was established that Joseph Shafer was the pátentee from the United States of the land in controversy, and that the plaintiffs are the heirs of said Shafer. The defendants, Wilson Palmer and Martha Ann Palmer, introduced evidence of title to the part of the land claimed by them, based upon a judgment of the district court of Miami county, rendered November 18,1875, wherein Sarah A. Williams was plaintiff, and Joseph Shaker defendant. By this judgment, title to the land was quieted in Sarah A. Williams, and after said judgment, and on the 25th day of August, 1876, Sarah A. Williams and Joseph A. Williams her husband conveyed by deed the premises to the defendant Wilson Palmer, subject to a mortgage to one A. C. Jacobs, for $200. The court found that the judgment in the case of Sarah A. Williams, v. Joseph Shaker, estopped the plaintiffs from recovering the real estate therein described. This ruling is complained of. The service in the case of Sarah A. Williams v. Joseph Shaker was by publication, and it is alleged that the judgment is without force, because the action was against Joseph Shaker, andnotagainst JosephSha/fer, theances tor of the plaintiffs; second, that the affidavit upon which the service by publication was founded, was insufficient; and further, that the petition filed by Sarah A. Williams stated no cause of action, and therefore was not the foundation for the decree.
I. Within the doctrine of idem sonans the variance between Shaker and Sha/er is not sufficient to render the judgment of the 18th of November, 1875, a nullity. The question of variance of sound in the different spelling of names has frequently been a matter of discussion before the courts, and our conclusion is supported by Case v. Bartholow, 21 Kas. 300, and Cochran v. Atchison, 27 Kas. 728. See also the following list of names, where the Variance in pronunciation has been held immaterial: Josiah and Josier, 1 Litt. 216; Japheth and Japhath, 22 111. 257; Belton and Benton, 44 111. 32; Penryn and Pennyrine, 14 Md. 121; Corn and'Conn, 8 Ind. 18; Charleston and Charlestown, 10 Ind. 366; Hudson and Hutson, 7 Mo. 142; Wooley and Wolley, 21 Ark. 462; Susan H. and Susannah H., 4 Blackf. 435; Pillsby and Pillsbury, 9 Ohio, 120'; Steven and- Stevens, 3 Scam. 25.
II. The affidavit for service by publication, which is alleged to be fatally defective, reads as follows, (omitting court and title:)
“J. F. Chandler, being duly sworn, says that he is the agent of plaintiff in this action; that defendant is a nonresident of Kansas; and that service of summons cannot be had upon him within this state; and that the above action relates to and the subject- of it is real property, situated in Miami county, Kansas, in which defendant has an interest, from which the plaintiff seeks to exclude-him.”
As this affidavit was drawn in substantial compliance with ■ §72 of the code,’it was sufficient foundation for service by publication. At least, the service made- thereon cannot be attacked collaterally. (Ogden v. Walters, 12 Kas. 282.)
III. The petition filed by Sarah A. Williams alleges:
“That on December 2, 1873, the sheriff of Miami county, Kansas, by virtue of an execution issued on a judgment legally rendered in favor-of J. A. Williams against Joseph Shaffer, levied upon all the real estate belonging to Shaffer, in the N.E. J of 11-19-23, in Miami county, Kansas, and the same day, on actual view, caused the same to be duly appraised, giving the names of the appraisers, etc., etc., and after causing the same to be advertised according to law, on the 6th day of January, 1874, at a public sale, duly and legally held, sold the said real estate to S. A. Williams for $367; and afterwards, on the 10th day of January, 1874, executed a deed to S. A. Williams for said lands, described as being a part of the northeast quarter of section 11, township 19, range 23, .containing 100 acres more or less, situated in Miami county, state of Kansas.”
Then follows an averment that said description is defective and indefinite, because it does not describe what portion of said quarter-section it was intended to convey.
Then follows what plaintiff says is an accurate description-of said land, and about which there is no dispute; and then that by reason of said indefinite description of said land, Shaffer claims some interest in the same. Then follows a prayer, asking that defendant be ordered to execute and deliver to plaintiff a deed conveying to plaintiff all of defendant’s right, title and interest in and to said real estate as accurately described, and that in case said defendant shall fail to execute and deliver to plaintiff said deed, the court may order that defendant be excluded from any interest in said real estate, and that said judgment operate as a deed of said lands from defendant to plaintiff, and for such other and further relief as plaintiff may be entitled to.
It is not necessary for us to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon is not void. From the petition and notice by publication the court acquired jurisdiction; thereafter it had the right to decide every question that occurred in the cause, and whether its decisions be correct or not, its judgment until reversed must be regarded as binding. Therefore the objections made to the judgment in the collateral way in which plaintiffs sought to do upon the trial of the case were properly overruled. (Paine v. Spratley, 5 Kas. 525; Entreken v. Howard, 16 Kas. 551; Burke v. Wheat, 22 Kas. 722; Bryan v. Bauder, 23 Kas. 95.) The judgment of the trial court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, plaintiff below, contested the election of defendant in error to the office of county treasurer of Harper county. The contest court decided against the plaintiff, who sought to take the case to the district court. He attempted to do this in three ways — by a bill of exceptions, by a case-made, and by a- transcript from the record of the contest court. The district court decided against him, and now' he alleges error. We think the ruling of the district court was correct, and must be sustained. The case-made was worthless, for the following reasons: The contest court adjourned February 10th, giving plaintiff in error thirty days in which to prepare a bill of exceptions. No time was given to make a case. On March 11th, the case-made was served. Hence the case-made fails for two reasons: First, it was served out of time; second, a contest court had no authority to settle and sign a case-made. (Estate of Baker v. Hentig, 22 Kas. 323.)
The bill of exceptions was also worthless, because it does not appear to have been signed before the final adjournment of the contest court, and was signed by only one of the three judges of that court. (Gallaher v. Southwood, 1 Kas. 143; Brown v. Rhodes, 1 Kas. 359.)
The transcript from the records of that court was insufficient, first, because evidence does not become a part of the record save by bill of exceptions. (McArthur v. Mitchell, 7 Kas. 173; Kshinka v. Cawker, 16 Kas. 63.) Second, because the grounds of contest do not appear in such transcript, and it therefore is not shown that the testimony narrated therein was pertinent to the issues presented in the contest; hence, any error of the court, if error there was, was immaterial. (Whitney v. Harris, 21 Kas. 96.) And third, if the voter Rice had been shown to be an illegal elector, that fact would not, in view of the other findings made by the contest court, have changed the result of the election. The ruling of the district court was therefore right, and must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John P. Moore against the Atchison, Topeka & Santa Eé railroad company, for damages alleged to have been caused by the negligence of the defendant railroad company and its officers, servants, and employés. The accident occurred at about five or six o’clock in the forenoon, on August 2, 1881, and at a place in the state of Texas situated about one-half mile north of Montoya, a station on the Atchison, Topeka & Santa Fé railroad, in the state of Texas. Montoya is situated about ten miles north of El Paso, Texas, and about thirty-four miles south of Las Cruces, New Mexico. The accident was caused by the engine, on which the plaintiff was riding, and the tender and the front part of the water car, of a train of cars, running into a “ wash-out” on the defendant’s road, which “wash-out” was about forty feet wide, and situated at the north end of a bridge about two hundred feet long. The train was a freight train, consisting of an engine, a tender, a water car, forty-eight box cars, and one caboose car. It started that morning at about four or five o’clock from El Paso, Texas, to go to San Marcial, New Mexico. The plaintiff was the front brakeman on the train, A. G. Dougan was the hind brakeman, William Kessler was the conductor, John M. Buckley was the engineer, and Leonard Chrystal was the fireman, and there were two passengers in the caboose car. At the time of the accident, the plaintiff was riding on the engine, and when he saw the “wash-out” he attempted to jump from the engine, but his left foot was caught between the engine and the tender, and was cut off by the “apron,” an iron platform hung on hinges, to cover the space between the engine and the tender. The rules of the company required that' the front brakeman should ride on the top of one of the box cars, and on the third or fourth car back from the engine, and not on the engine; but it was the universal custom, nevertheless, for the front brakeman on that road to ride between stations on the engine, and this was especially true in bad weather; and it also appears in this case that the plaintiff had been on the engine only a few minutes when the accident occurred, and had gone there for the purpose of 'obtaining information from the engineer concerning the running of the train. None of the persons on that train had any knowledge of the “wash-out.” Neither did any other agent or servant of the railroad company have any knowledge of such “wash-out,” though some of them knew a short time beforehand that there was danger of a “wash-out” occurring; and whether this ignorance on the part of some of the servants of the railroad company constitutes any culpable negligence on the part of the railroad company itself, or not, is one of the principal questions involved in this case.
The other circumstances of the case tending to show negligence are as follows: In the afternoon and night of August 1, 1881, there was a heavy rain all along the line of the Atchison, Topeka & Santa Fé railroad near where this accident occurred. This rain extended from El Paso to Las Cruces. Late in the afternoon of August 1, a passenger train passed over the road from El Paso to Las Cruces, and further north. At that time the road was “all right.” The conductor, however, on that train, H. P. Allen, and other employés of the railroad company, observed the rain, and noticed that in "two or three places there was danger of the embankments being washed away. There was no telegraph office at Montoya, but there was at Las Cruces; and as soon as the train arrived at Las Cruces, which was about 8 o’clock in the evening, the conductor informed E. J. Guild, the road-master at that place and of that division of the road, what he had seen, though he did not state the particulars thereof or the places where he thought there was danger of the embankments being washed away. The conductor also left a dispatch with the telegraph operator at that place, J. W. Dudley, to be sent to the superintendent of that division, at Las Vegas; and the conductor immediately passed on with his train northward without knowing whether the dispatch was sent, or not, or whether it could be sent, or not. Also, at about the same time — 8 o’clock p. M.— E. J. Guild, the road-master, left a dispatch with Dudley, the telegraph operator, to be sent to Frank B. Gilbert, the train dispatcher for that portion of the road, informing him of the condition of the road, as communicated to him by the conductor, Allen, and asking that no trains should be allowed to pass over the road between El Paso and Las Cruces until the repair train had passed over the same, and the road been placed in good condition. These dispatches from Conductor Allen to the superintendent at Las Vegas, and from Road-master Guild to the train dispatcher, Gilbert, were never sent, and could not be sent. The operator remained at his office until after 12 o’clock that night trying to send the dispatches, but could not do so, for the reason that the wires were either down or crossed. He could not send dispatches in any direction. The roadmaster, Guild, would have had time, with a handcar, to pass Over the road from Las Cruces to Montoya before the train from El Paso arrived at the place where the accident occurred, if he had started immediately after receiving the said information from Conductor Allen; but he would not have had time to do so after midnight, and after it was definitely settled that the dispatches left with the operator could not be sent that night. The section boss of that portion of the road, a man by the name of Husley, lived at El Paso, and spent his nights at that place. His hours for work were from 7 o’clock in the morning to 6 o’clock in the afternoon of each day. At the time the passenger train of which Allen was conductor passed over the road from El Paso to Las Cruces, the road was in good condition. There was some water, however, running in the ravine where the accident occurred; and at two or three places, as before stated, the embankments of the road were being washed away. Allen’s .train passed the place where the accident occurred, at about 6 o’clock in the evening. At some time during the night, but when is not definitely known, this “wash-out” occurred which caused the injury; for at 6 o’clock the evening before, the road was “all right,” and .at 5 or 6 the next morning, when the train on which the plaintiff rode arrived, the “wash-out” was about forty feet wide. No such “washout” had ever before occurred in that vicinity; and no /‘wash-out” of any consequence had ever before occurred on any portion of the road between El Paso and Las Cruces. The road, however, was new, and not much time had elapsed within which “wash-outs” might have occurred. The defendant claims that the present “wash-out” was caused by a sudden, violent and extraordinary rain-storm, which, in the shortest possible space of time, produced a local flood unprecedented in its character; and some of the evidence tended to support such claim. The rain may, however, have continued at that place for several hours. The railroad company depended upon the section bosses, with .their men, and the roadmaster, to keep the road in good condition, and to give notice to the train dispatcher and the superintendent when the road was not in good condition; and it did not employ any watchmen, or track-walkers, or flagmen, to keep continual watch of the road during, the night. The plaintiff had been in the employ of the railroad company at San Marcial for several months, and had been a brakeman on the road between El Paso and San Marcial for about one month, and consequently knew the general condition of the road at that place, and also the general condition of the climate and weather in that country; and he must have known of the rain along the line of the road at some time during the afternoon and the night next preceding the accident.
Now if there was any negligence in this case, in what did the negligence consist? and who was guilty of such negligence— the plaintiff, or the defendant, or both?
The plaintiff, in his petition, alleges that the negligence was that of the “defendant and its officers, servants and employés,” without designating which of the company’s officers, servants or employés committed the negligence; while the instructions of the court below to the jury would seem to authorize the finding against the defendant, if any negligence was committed by either “the defendant or its servants, as charged in the petition,” without designating which of its servants.
This accident, as before stated, occurred in Texas; and the evidence shows that in Texas the rule of the common law reference to the liability, or rather the non-liability, of a master to one of his servants or employés, for the negligence of a fellow-servant or eoemployé, prevails; and therefore that where a master exercises due care and diligence in employing and retaining only competent and trustworthy servants and employés, and in obtaining and keeping in a reasonably safe condition all necessary and proper machinery, implements and appliances for the particular work, he is not liable for the negligence of one of such servants or employés which causes injury to another of such servants or employés when they are all fellow-servants or coemployés together; but is liable only for his own negligence, or for the negligence of some officer, agent or servant of his, who amounts in dignity and grade to a vice-principal or a substitute for the master.
The petition of the plaintiff alleges, among other things, as follows:
“That said train was thrown from the track as aforesaid solely through and by reason of the gross and wanton negli- • gence of the said defendant and its officers, servants and em ployés having charge of said road and the running operation of the same, in this, to wit: in permitting the roadway where said train was thrown from the track to be and remain in such a dangerous and defective condition as to'necessarily cause said train to be thrown from the track, by permitting the embankment at said place to be washed from beneath the rails of the track, and by failing to see that the same was repaired in time for the passage of the train as aforesaid, and by failing to warn those in charge of said train in time to prevent the event aforesaid; that said defendant,-its superintendent and employés in charge of that portion of the roadway, had full knowledge of the condition of said roadway, and ample time before the happening of the said injury to know the condition of and to repair said road, and full time to notify the persons in charge of said train of the condition of said road so as to enable them to avoid the injuries aforesaid.”
The defendant asked the court below to give the following instructions to the jury, to wit:
“ 6. I instruct you that under the law of the state of Texas, in which state plaintiff’s injuries were received, the defendant is not liable to plaintiff for any injuries occasioned by the neglect of a coémployé and fellow-servant.”
The court refused to give this instruction, and the defendant excepted; and the court gave the following among other instructions, to wit:
“2. The jury are instructed that, in determining the question of negligence in this case, they should take into consideration the situation and conduct of both parties at the time of the alleged injury, as disclosed by the evidence, and if the jury believe from the evidence that the injury complained of was caused by the negligence of the defendant’s servants, as charged in the petition, and without any greater want of care and skill on the part of plaintiff than was reasonably to be expected from a person of ordinary care and skill in the situation in which he found himself placed, then the plaintiff is entitled to recover. ...
“4. The court instructs the jury that, to enable the plaintiff to recover in this suit, it must appear from the evidence that the injury complained of was occasioned by the want of attention, carelessness and negligence on the part of the defendant or its servants, as charged in the petition, and was not simply the result of an accident; and if the jury believe from the evidence that the injury resulted from, an accident that could not have been foreseen or guarded against by the exercise of ordinary and reasonable care and prudence on the part of the defendant, then the plaintiff cannot recover, and the jury should find for the defendant.”
The defendant duly excepted to these instructions.
If there was any negligence in this case on the part of the railroad company, in what did the negligence consist, and who was the servant of the railroad company, who was guilty of such negligence? Did the negligence consist in the original construction of the road, or was it merely in failing to repair the “wash-out” after the same had occurred? And in either case, which one of the company’s servants was it who committed the negligence? Which one of them was negligent in “failing to see that the road was repaired”? Was it Allen, the conductor of the train that passed along the road the evening before the accident occurred? He, in part, had charge of the “running” and the “operation” of the road; and so had all the other servants of the railroad company on that train; and indeed so had all the servants of the railroad company upon all things; and such, also, was the case with reference to many of the servants of the railroad company, stationed along the line of the road at particular places, and whose business for the railroad company did not require them to leave their stations. Even the plaintiff, and those in charge of the train on which he rode, had charge in part, of the “running” and the “operation” of the railroad; and were they, or any one of them, guilty of negligence in “failing to see that the road was repaired” ? From the allegations of the petition and the instructions of the court, it would seem that the jury were left at liberty to find in favor of the plaintiff and against the defendant, if the defendant or any of its servants having charge of the road, or charge of the running of the same, or the operation thereof, were guilty of negligence in permitting the road to be and remain in bad condition, or in failing to see that the road was repaired, or in failing to warn the plaintiff' and his coemployés in charge of his train, that the road was not in good condition. Now which of the servants of the defendant was it that was guilty of negligence in failing to warn those in charge of the plaintiff’s train that the road was in bad condition? Was it Allen, the conductor of the train that passed along the road the evening before the accident occurred? or was it some other servant of the railroad company who was also in charge of Allen’s train? or was it some agent or servant of the company at El Paso? or was it some agent or servant of the company at Montoya? or was it some agent, servant or employé of the railroad company on the plaintiff’s own train? They all failed to know of the “ wash-out,” or to inform any person concerning the same. Were these employés of the railroad company, and indeed were all other employés of the railroad company culpably negligent? Why did not some one on the plaintiff’s train suspect that there might be a “wash-out” at the place where the accident occurred, and send a man ahead of the train to examine the condition of the road ? They all evidently had knowledge that it had been raining hard at some time during the previous night. Why did not the engineer, or the fireman, or even the plaintiff himself, who was then riding on the engine, look ahead and see the “wash-out?” Was the engineer negligent? or was some one else on that train negligent?
Under the statutes of Kansas the plaintiff would be allowed to recover damages from the railroad company for injuries caused by the. negligence of its engineer, or of any other one of its servants or employés; and. the foregoing instructions of the court below would seem to indicate that such statutes would be applicable and would govern in the present case. Such, however, is not the case: such statutes are not the laws of Texas, and such statutes do not govern in the present case. In Texas, a railroad company is not liable to a brakeman for injuries caused by the negligence of an engineer on the same train; nor indeed for the negligence of any fellow-servant or coémployé, provided of course that the railroad company has exercised reasonable and proper diligence in their employment and retention.
It is not claimed, however, that any of the servants or employés of the defendant were unskillful or incompetent; but only that they were negligent and careless for the time being. There was no evidence introduced tending to show that any negligence existed in the original construction of the road. From anything appearing in the case, the road was originally in good condition, and was in good condition up to the very night before the morning on which the accident in this case occurred; hence the only room for charging negligence against any servant, agent or employé of the railroad company was the failure on the part of the railroad company or its servants, to repair the road in proper time, or the failure to give proper notice to the persons who were in charge of the plaintiff’s train. There was no evidence tending to show that the section boss was.negligent. There was no evidence tending to show that either the train dispatcher or the superintendent of the road was negligent; nor indeed was there any evidence tending to show negligence on the part of any officer, agent, servant or employé of the railroad company, except, possibly, on the part of the roadmaster, and the persons in charge of the train on which the plaintiff himself was riding when the accident occurred; and as before stated, the negligence of the persons in charge of the train on which the plaintiff was riding would not, under the laws of Texas, which govern as to liability in this case, render the defendant liable. Allen, and the persons in charge of his train, were certainly not negligent: they performed their whole duty.
It is possible, however, that the jury believed under the instructions of the court below that Allen should have gone back to Montoya and to El Paso, and informed the employés of the railroad company at those places and along the line of road, that the railroad track was in danger. Allen was a “servant” of the railroad company, and if he had done these things, he certainly would have prevented the- injury com plained of in the present case; and therefore was not his negligence one of the causes of the injury? and therefore is not the railroad company liable under the instructions of the court below for such injury? It does not seem to be claimed that the telegraph operator was negligent, or even that he was a general agent or servant of the railroad company. Probably he was an agent or servant of a telegraph company, and the telegraph company was the agent or servant of the railroad company for this particular matter, and for other special matters. But even if the telegraph operator was the general agent or servant of the railroad company, still this difficult question would arise: Was he not a coemployé or fellow-servant with the plaintiff in the operation of the defendant’s railroad? We do not think that it is necessary, however, to discuss or decide this question; for as we understand it, it is not claimed that the telegraph operator was negligent. He attempted until midnight • to send the dispatches, but could not do so; nor could he send dispatches in any direction. This was sufficient to convince him, or any one else, that dispatches could not be sent that night, nor until the telegraph was put in proper order the next day. In all probability the telegraph was not put in proper order or in proper condition to send dispatches until after the accident occurred on the morning of the next day. Hence we do not think that it was shown that the telegraph operator was negligent.
The real question, then, in the present case, aside from the plaintiff’s contributory negligence and with reference to the defendant’s negligence, is, whether the road-master was culpably negligent or not. The case, however, does not seem to have been tried upon that theory in the corirt below. The court below undoubtedly understood the law of the case correctly, but it inadvertently instructed the jury as above stated, and inadvertently left it open for the jury to find in favor of the plaintiff and against the defendant, if they found that any officer, servant or employé of the railroad company was guilty of negligence causing the injury, whether such officer, servant or employé was a substitute for the master, a vice-principal, or was merely a fellow-servant or coemployé of the plaintiff. Of course it was the duty of the railroad company to see that its road was in good condition and in good repair at all times, and was liable for injuries caused by the negligence of any servant, agent or employé of the company, high or low, whose duty it was to keep the road in good condition and good repair, and who failed to do so. But the company was not an insurer of the perfect condition of its road. It was simply bound, through certain of its employés — the road-master and section boss, for instance — to use reasonable and ordinary care and diligence to keep its road in proper condition; and such employés, with respect to those who operate the road, represent the company, and indeed are the same as the company. In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and dili- . _ gence provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow-servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coémployés. And at common law, whenever the master delegates to any officer, servant, agent, or employé, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent or employé stands in the place of the master and becomes a substitute for the master, a vice-principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence. But at common law, where the master himself has performed his duty the master is not liable to any one of his servants for the acts or negligence of any mere fellow-servant or coemployé of such servant, where the fellow-servant or coemployé does not sustain this representative relation to the master; nor is he liable for the failure of still other servants to perform certain acts, where the performance of such acts does not come within the proper line of their duties.
Applying these principles to railroad companies and to the present case, we would think that a railroad company would be liable to any one of its servants operating its road for the negligence of any other one of its servants whose duty it was to keep the road in good condition, and who culpably failed to perform such duty or to give proper warning; for in such a case the two classes of servants .would not be fellow-servants or coemployés, but the latter class would really be the representative of the master, the representative of the railroad company, and the failure of the servant would be within the line of his duty; but a railroad company at common law, and in Texas, if it has in other respects performed its duty, is not liable to its servants for the negligence of their coemployés or fellow-servants, or for the failure of still other servants to perform certain acts, where the performance of such acts does not come within the proper line of their duties. Now the court below, in its instructions to the jury, does not seem to have properly kept these distinctions in view, but instructed the jury, as the statute law of Kansas is, that the defendant is liable for all the acts and omissions of all its servants or einployés contributing to the injury of the plaintiff. We think the jury were probably misled by these instructions. It may be that they should not have been misled by them; but from the manner in which they answered several of the questions submitted to them, we would think that they were in a frame of mind that rendered them very susceptible to the slightest influence favoring the plaintiff, and that all they needed to cause them to go astray in favor of the plaintiff was a very slight intimation from the court. It' must also be remembered that the question whether the defendant is liable at all, or not, is a-very close question. It probably depends entirely upon the question, whether the road-master was guilty of any culpable negligence, or not; and as before stated, it is certainly very questionable whether the road-master was guilty of any such negligence. We would therefore think that as the question whether the defendant was liable at all, or not, was a very close question, no opportunity should have been given to the jury for them to misunderstand the law, or to be misled, or to go astray. The jurors might have been misled from the fact that the laws of Texas with reference to the liability of railroad companies for the negligence of their servants, as between coemployés, differ from the laws of Kansas in similar cases. If the accident had occurred in Kansas, instead of in Texas, the instructions above quoted would be perfectly correct; for in Kansas, a railroad company is liable to each of its servants and employes for the negligence of all its other servants and employes. But such is not the law in Texas. In Texas, a railroad company is liable to one of its employés for the negligence of such only of its other employés as represent the corporation itself in its entirety for the particular work; such as might for the particular work be fairly denominated vice-principals, or substituted masters; such, for instance as the road-master or section boss, in the present casé. But from these instructions the jury may not have been able to see very clearly the distinction between the laws of Kansas and the laws of Texas, and may have really found that the defendant was liable under the laws of Kansas, instead of under the laws of Texas. They may have considered Kansas laws only, and not Texas laws at all.
Counsel for defendant in error says in his brief that “ there is no claim made, in the brief of plaintiff [in error] of error, other than those alleged to exist in the instructions given and refused.” This is nearly true; so true, in fact, that if it were held that the instructions of the court below were not misleading, then it would follow that the judgment of the court below should be affirmed. We cannot say that the court below committed any material error, except in instructing the jury, and the consequent error in overruling the defendant’s motion for a new trial. We cannot say from the evidence in the case that, as a matter of law, no culpable negligence for which the defendant is liable, was committed.
We think the court below erred in its instructions to the jury, and erred in refusing to grant the defendant a new trial; and for these errors 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
Valentine, J.:
This was an action brought by the Kansas City, Fort Scott & Gulf railroad company against John Tontz, the county treasurer, and James McMurray, the sheriff of Crawford county, to perpetually enjoin the collection of an alleged illegal township road tax. The case was tried by the court below without a jury, upon the following agreed statement of facts, to wit:
“ It is agreed by the parties that the following are and may be treated and considered as the facts in this action:
“1. The plaintiff is a corporation, authorized to operate and liable to pay taxes on the lines of railroad described in the petition herein.
“2. The defendant McMurray was sheriff of Crawford county, Kansas, during the years 1881 and 1882, and the defendant Tontz was treasurer of said county during said years.
“3. Taxes for the year 1881 were charged on the tax rolls of said Crawford county against the property of the plaintiff, aggregating the sum $10,206.46, of which amount the plaintiff has paid $9,808.70, and holds proper receipts therefor. The amount in dispute in this action was charged and levied as a ’township road tax, and-aggregates the sum of $397.76.
“4. In the amount of taxes ’paid by the plaintiff is included a road tax levied under § 21, ch. 89, [108,] Laws 1874, (§5052, Dassler’s [Comp. Laws] 1879,) and worked out and paid by the plaintiff in compliance with succeeding sections of said law. The disputed tax was levied under § 22, ch. 110, Laws 1868, (Dassler’s [Comp. Laws] 1879, § 5988,) and it is under this law that the county claims the tax as valid. Plaintiff claims the disputed tax was levied under § 42, ch. 89, Comp. Laws 1879.
“5. The disputed tax -was levied July 9,1881, and a copy of the record of such proceedings, as subsequently made, is hereto attached, marked ‘ Exhibit A,’ and made a part hereof. The disputed tax was'levied at the July meeting of the county commissioners in 1881, by the township trustees, with the advice and concurrence of the county commissioners, but no written note or memorandum of the proceedings about said tax was made or signed by any of the county commissioners or officers until January 7, 1882, when the record was made which is appended hereto.
“6. At the proper time the plaintiff paid all taxes levied against its property, excepting that in dispute in this action.
“7.- Because of the failure of plaintiff to pay the disputed tax, the defendant treasurer at the proper time, to wit, January 16, 1882, issued a warrant for its collection to the de fendant sheriff for collection by distraint. On January 24, 1882, the plaintiff commenced this action, and obtained a temporary order of injunction restraining the collection of such disputed tax.”
We do not think that it is necessary to give a copy of “Exhibit A” above referred to, as the agreed statement of facts above quoted sufficiently sets forth the substance of the same. Upon this agreed statement of facts the court below made a general finding in favor of the defendants and against the plaintiff', and rendered judgment accordingly; and the plaintiff, as plaintiff in error, now brings the case to this court for review. ’
It appears that there are three statutes now in force (provided they are all valid) which authorize the levy of road taxes: First, § 22 of ch. 110 of the General Statutes o^ 1868, being §22 of the act relating to townships and township officers, (Comp. Laws of 1879, ch. 110, §22;) second, §1 of eh. 174 of the Laws of 1872, being §1 of an act entitled “An act in relation to road districts,” (Comp. Laws of 1879, ch. 89, ¶ 5073, §42;) third, § 21 of ch. 108 of the laws of 1874, being § 21 of the act relating to roads and highways, (Comp. Laws of 1879, ch. 89, ¶ 5052.)
The plaintiff claims that the tax in dispute was levied under § 1 of ch. 174 of the Laws of 1872; and further claims that this section has no force or effect at the present time, for two reasons: First, that it is unconstitutional, being1 in contravention of that portion of §13, art. 2 of the constitution of Kansas, which provides that “ No bill shall contain more than one subject, which shall be clearly expressed in its title; ” second, that it was repealed by implication by said § 21 of ch. 108 of the Laws of 1874.
Now for the purposes of this case it may be admitted that said §1, ch. 174 of the laws of 1872, is void and of no effect, for it is admitted by the defendants in this case that the tax was not levied under that section ; but as to whether the section is in fact unconstitutional or not, or as to whether it has in fact no force or effect, we shall express no opinion.
It is further claimed by the plaintiff that even if the tax in dispute was levied under § 22 of chapter 110 of the General Statutes of 1868, still that the tax is void for the following reasons: First, that said §22 was repealed by implication by §1 of chapter 174 of the Laws of 1872; second, but if it was not repealed by that section, then that it was repealed by implication by § 21 of chapter 108 of the Laws of J874; third, if it was not repealed by these sections or by any subsequent statute, then that no tax was legally levied under it, for the reason that no record was made of the levy at the time of the levy, nor for about six months afterward, nor until after the plaintiff had paid all its other taxes, nor until after the time had arrived and passed .as provided by law for adding a penalty for the non-payment of one-half of all unpaid taxes. There is no pretense that § 22 of chapter 110 of the General Statutes of 1868 has been expressly repealed by any statute; and although it is claimed that the section has been repealed by implication because in conflict with later and subsequent statutes, yet no conflict has been pointed out. , We suppose that .it will not be claimed that a valid law can be impliedly repealed by a subsequent act unless the prior, law is irreconcilably in conflict with the later enactment; for repeals by implication are never favored, and all acts of the legislature are so construed as to make them harmonize with each other if possible to do so, and all are to be held valid if it is possible to so hold; but if there were really any irreconcilable conflict between § 22 of chapter 110 of the General Statutes of 1868 and some subsequent statute, then we would think that the able counsel who represent the plaintiff in this case would be able to specifically, point out the conflict. They have failed to do so, however. It is claimed that said § 22 is repealed by implication by § 1 of chapter 174 of the Laws of 1872. Now there is no conflict between these two sections so far as they authorize the levying of a township road tax. To this extent they are in substance identical, and their language is almost precisely the same, and evidently they are intended to authorize the levy of only one and the same tax; hence the plaintiff in the present case labors under this difficulty: if §1 of chapter 174 of the Laws of 1872 is valid, then the present tax is valid, (unless the failure of the county clerk and county, commissioners to enter the levy on the county commissioners’ record renders it void,) for it was levied precisely within the terms of this section; but if this section is not vjplid, if it is unconstitutional and void, as the plaintiff claims that it is, then it cannot have the force or effect by implication or otherwise to repeal § 22 of chapter 110 of the General Statutes of 1868, for no void enactment can repeal by implication any valid law. (Stephens v. Ballou, 27 Kas. 595, 602, and cases there cited.) And if said § 22 has not been repealed, but was still in force at the time the present levy was made, then it is admitted that the present tax is valid, unless said failure of the county clerk and county commissioners to enter the levy on the commissioners’ record rendered it void. It is also claimed that said §22 of chapter 110 of the General Statutes of 1868 is repealed by implication, by § 21 of chapter 108 of the Laws of 1874. Now this cannot be so, for there is not the slightest conflict between the two sections. Section 22 provides for the levy of a township road tax, to be collected in money as other taxes are; while said section 21 provides for the levying of a county road tax, to be paid in work, under the direction of the road overseers of the various road districts in the county. However, if this tax is not paid in work it may be collected as other taxes are. One of these taxes applies to the separate townships and may apply to only a single township, while the other must be levied upon all the taxable property of the county. These two taxes differ from each other in still other particulars, and are undoubtedly intended to be two separate taxes, and both of them may, in the township where the township tax is levied, be levied on the same property for the same year. These two sections have existed together for many years. Section 21 is almost a literal copy of § 21 of chapter 89 of the General Statutes of 1868; and the last-mentioned section was passed only two days after the other; and the two sections .were undoubtedly intended to have contemporaneous force and effect. We think that said § 22 has never been repealed by implication or otherwise, but is still in force.
We now come to the last question in the case, which is, whether the neglect of the county clerk and county commissioners to make any entry on the commissioners’ record of the action of the county board and of the township trustee in levying the tax, renders the tax utterly null and void. No other irregularity than this is claimed. It would seem that the tax was properly levied, and was properly reported to the county clerk, and was properly entered on the tax roll of the county, and that the tax roll was properly placed in the hands of the county treasurer, and that the county treasurer attempted in a proper manner to collect the same. It would seem that this tax was regularly on the county tax roll at the time when the plaintiff paid its other taxes; but that, for the irregularity above mentioned and the other matters above mentioned, the plaintiff refused to pay the tax. Now although no record of the levy had yet been made, yet the plaintiff might have ascertained that a levy had in fact been made, if it had made any inquiry; and the facts that the county clerk had entered the tax upon the tax roll of the county and placed the tax roll in the hands of the county treasurer for collection, and that the county treasurer was then endeavoring to collect all the taxes entered thereon, were sufficient to put the plaintiff upon inquiry.
We think that the tax was at all times valid, after the tax roll was placed in the hands, of the county treasurer for collection ; that the mere fact that no entry of the levy of the tax had yet been made is not sufficient to invalidate the tax; and we also think that the county commissioners .and the county clerk had the right to make an-entry of the levy six months after the time when the levy was made, as they did in this case, and that the record o’f the levy as thus made would be evidence of the levy. Entries of public proceedings are often made some considerable time after the proceedings have in fact taken place. Sometimes days, sometimes months, and sometimes even years, elapse before the entry of the proceedings is in fact made; but where.any considerable time has elapsed before the entry is made, it is always better to make the entry in the form of an entry nuno pro tune,.- As applicable to some extent to these views, see Goodrich v. Conrad, 28 Iowa, 298; 301; Gillett v. Comm’rs of Lyon Co., 18 Kas. 410, 413; Cushenberry v. McMurray, 27 Kas. 328, 332. The entry in the present case was in the form of an entry nune pro tune.
Of course no entry, nune pro tune or otherwise, can be made of a proceeding that never took place. It is only where the proceeding actually occurred that an entry can be made. Now in the present case it is admitted that the levy of the tax in dispute was actually made, and that the only irregularity connected with the levy was the mere failure to enter the levy at the time it was made. We think, however, that the making of the entry six months afterward cured this irregularity.
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 case is a branch of the same litigation which furnished the case of Noble v. Butler, 25 Kas. 645. In this case it appears that on February 1, 1875, Janet Butler recovered a judgment in'the district court of Shawnee county against Samuel F. Craig and George M. Noble, for the sum of $1,423, with interest at 12 per cent, per annum. Afterward, the real estate of Craig was sold at judicial sale, on an order of sale, issued out of said court, to satisfy said judgment. Said real estate was sold for $1,053.60, leaving an unpaid balance of $369.40 on said judgment. This levy and sale exhausted all of Craig’s property subject to judicial sale. In the meantime, the defendant George M. Noble was the owner in fee of lots Nos. 385 and 387, Taylor street, Topeka. In October, 1878, Noble sold and conveyed these lots to Harvey M. Rounsaville, who thereby became the owner thereof in fee, subject however to the lien of the plaintiff Butler’s judgment. At the time when said lots were levied on and sold, and at the time when said sale was confirmed, Rounsaville was in the actual possession of the lots under his deed from Noble. The lots were sold for $1,334, which, after paying off the balance of the Butler judgment and interest and costs, left a balance of $369.40 in the sheriff’s hands. This balance the sheriff delivered to the clerk of the district court at the time when he returned the writ.
The question now presented to this court by counsel is this: Who is entitled to receive this balance? Section 466 of the civil code provides, among other things, as follows: “The sheriff or other officer shall, on demand, pay the balance to the defendant in execution, of his legal representatives.” The district court made the following order with reference to this balance: “ That the clerk of this court retain said ^balance, so that the said Harvey M. Rounsaville and the said George M. Noble may interplead for the same; and if the said Harvey M. Rounsaville fails to interplead for said balance within thirty days from this date, that the same be paid to the said George M. Noble.” We think that Rounsaville, as Noble’s representative, is entitled to receive this balance. (Code, §•466; Herman on Executions, 457.) This balance stands in the place, so far as it goes, of the estate which Rounsaville has lost; and it belongs to him, as the owner of the property sold. (Bitting and Waterman’s Appeal, 17 Pa. St. 211, 215; Siter, James & Co.’s Appeal, 26 Pa. St. 178, 181; Matthews v. Duryee, 45 Barb. 69; same case, 4 Keyes, 525; Tabele v. Tabele, 1 Johns. Ch. 45; Vartie v. Underwood, 18 Barb. 561.) If § 466 of the civil code is to control the disposition of this balance, then it certainly belongs to Rounsaville, and should be kept until he demands it and then paid over to him; and whether it controls absolutely or not, it should certainly have great weight in the determination ás to whom the balance belongs. The balance should always go to the person to whom in law and equity it more properly belongs.
Where lands are sold under a judgment, and surplus money accrues, which is brought into court, the other creditors have the same,liens upon the surplus money which they held upon the lands before the sale. (Averill v. Loucks, 6 Barb. 470; Douglass’s Appeal, 48 Pa. St. 223. See also Jones Stationery and Paper Co. v. Hentig, ante, p. 75.)
It is also suggested that Rounsaville is not in court asserting any right to this surplus fund. . This is true, and therefore he is not bound by the order of the court requiring him to interplead, with Noble, for such fund. A judgment or order, without notice, is void. (Mastin v. Gray, 19 Kas. 458, 461, et seq., and cases there cited.) One, not a party or privy, is not bound to take notice of proceedings in court; nor does he lose any right; nor is he bound to attend to his interest in the surplus money,- arising at a sale of which he is not presumed to have notice, so as to protect himself. (Mills v. VanVoorhis, 23 Barb. 136.) Jurisdiction of the person is essential to the validity of a judgment or order aifecting a party personally. See also, with reference to Rounsaville’s rights, Wolf v. Payne, 35 Pa. St. 97, 99.
The order and judgment of the court below 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-
Valentine, J.:
This action was originally commenced on June 24, 1875, in the district court of Leavenworth county, by H. T. Green, as administrator of the estate of Theodore Jones, deceased, against Jacob McMurtry, to recover $1,200, claimed to have been due from McMurtry to Jones at the time of the death of Jones. Judgment was rendered in the district court in favor of McMurtry and against Green, and Green took the case to the supreme court on petition in error. While the case was pending in the supreme court McMurtry died, and the action was revived against James E. Williams, as administrator of McMurtry’s estate. The supreme court reversed the judgment of the district court, and remanded the case to that court for a new trial. (Green v. Williams, 21 Kas. 64 — 73.) After the return of the case to the district court, that court ordered the plaintiff to give security for costs, which the plaintiff did by causing the execution and the filing of the following bond, to wit:
“Henry T. Green, as Administrator of the Estate of Theodore Jones, deceased, Plaintiff, v. James E. Williams, as Administrator of the Estate of Jacob McMurtry, deceased, Defendant: — I, Matthew Ryan, a resident of Leavenworth county, in Kansas, hereby bind and obligate myself that the plaintiff above named shall pay all costs that may accrue in the above-entitled action, in case he shall be adjudged to pay the same; and I further bind and obligate myself that he will pay all costs made by him in said action, in case judgment be obtained against the defendant herein, and the same cannot be'collected from the defendant, as ordered by the court herein.
“Given under my hand at Leavenworth city, Kansas, this 12th day of February, 1879. Matthew Ryan.”
On September 29,1879, Green resigned as administrator of the estate of Theodore Jones, deceased, and Robert Adams was duly appointed and qualified as his successor; and on October 28, 1879, the action was revived in the name of Robert Adams, as administrator of the estate of Theodore Jones, deceased, and the action was afterward carried on in his name. On April 24, 1880, a trial was had in the case, which resulted in a judgment in favor of the defendant Williams, as administrator, etc., and against the plaintiff Adams, as administrator, etc., for the costs of the action. These costs have never been paid. On May 1,1882, the defendant Williams, as administrator, etc., after giving due and proper notice, filed a motion in accordance with the provisions of § 585 of the civil code, asking that judgment be rendered in favor of the defendant and against Matthew Ryan, the surety on the above-mentioned cost bond, for the amount of said costs, aggregating the sum of $436.55. Afterward, and on May 20, 1882, this motiofi was heard by the court, and the court made the following findings, to wit:
“That said Matthew Ryan has been duly and legally served with said notice of said motion, and that the costs herein for which said Matthew Ryan is liable as surety amount to the sum of four hundred and thirty-six dollars and fifty-five cents ($436.55); and the court finds that said sum of $436.55 is composed of the following unpaid costs as follows, to wit: From commencement of action, June 24, 1875, to September 4, 1876, on which last date the death of the defendant was suggested and the action revived in the name of James E. Williams, administrator, &c., as aforesaid, the costs amounted to the sum of $64.85, unpaid; from September 4, 1876, to Sept. 29, 1879, on which last-named date H. T. Green resigned as administrator and Robert Adams applied to be substituted as party plaintiff herein, and was on the 28th day of October, 1879, substituted as party plaintiff herein, the costs from said 4th day of September, 1876; to said 29th day of September, 1879, remaining unpaid, amounted to the sum of $252.55; from September 29, 1879, to and including the 2d day of May, 1882, on which last-named date the notice and motion of said defendant for judgment against said Matthew Ryan as surety was of record, the costs amount to the sum of $119.15, unpaid, making in all said sum of $436.55.
“To all of which findings and decision of the court said Matthew Ryan excepted, and presented and filed his motion for a new trial hereof.”
The court below overruled Ryan’s motion for a new trial, and then, upon the foregoing findings, sustained the motion of the defendant Williams, and rendered judgment in favor of the defendant Wiliams and against the surety Ryan, for the said sum of $436.55, to which ruling and judgment the plaintiff duly excepted • and he now brings the case to this court for review.
Did the court below err in sustaining the motion of the defendant Williams for judgment against the surety Ryan, and in rendering such judgment? This question depends wholly and entirely upon the interpretation that may be given to the surety bond executed by Ryan; and it depends wholly and entirely upon the true signification and meaning of that portion of such bond which reads as follows: “I, Matthew Ryan, . . . hereby bind and obligate myself that the plaintiff above named shall pay all costs that may accrue in the above-entitled action, in case he shall be adjudged to pay the same.” The words “plaintiff above named,” and “he,” as used in the foregoing extract, undoubtedly mean “Henry T. Green, as administrator of the estate of Theodore Jones, deceased;” for Henry T. Green, as such administrator, and as described by these words, was the plaintiff in the action, and the only plaintiff, and the title to the bond itself so shows. Therefore, if we fill out the above-quoted extract as it should be read, it will read as follows :
“I, Matthew Ryan, . . . hereby bind and obligate myself that the plaintiff above named [Henry T. Green, as administrator of the estate of Theodore Jones, deceased ] shall pay all costs that may accrue in the above-entitled action, in case he [Henry T. Green, as administrator of the estate of Theodore Jones, deceased] shall be adjudged to pay the same.”
The plaintiff in error, Ryan, claimed in the court below, and now claims, that he is liable on said bond to pay only such a judgment as might be rendered for costs strictly and literally against “Henry T..Green, as administrator of the estate of Theodore Jones, deceased,” and that he is not liable for the payment of the present judgment, which was not so rendered, but was rendered in fact against Robert Adams, as adminis trator of such estate — against Robert Adams, who was in fact an administrator de bonis non; and Ryan further claims that he cannot be held liable on such bond for any other judgment that might be rendered against any other successor of Green. He claims that the bond was not given as a security for the satisfaction of any judgment that might be rendered against any successor of Green as well as against Green himself; but that the bond'was really given as a security only for the satisfaction of such a judgment as might be rendered against Green alone as administrator, etc. He says in substance, that as the bond was given as a security insuring performance by something that could be designated by the word “plaintiff,” and could be represented by the personal pronoun “he,” such security cannot at all be considered as a security on the part of the mere lifeless estate of Theodore Jones, deceased, for the reason that an estate of a deceased person is not a thing that can perform any act, or can be designated by either the word “plaintiff,” or the word “he;” that it is not a person, or a corporation, or a partnership, or anything else that is capable of suing or being sued; but that such estate is merely the goods, chattels, and real estate: the property, the assets of such deceased person which belonged to him during his lifetime, and which at his death passed to his legal representatives. He says that the estate of a deceased person cannot be a party to a suit, and cannot be represented in any suit except by some living, breathing, moving being, who acts as the representative of the deceased person, such as an executor, administrator, heir, devisee, or-legatee; and that the giving of a bond by any person as the surety for any one of such representatives, is not at all the giving of a bond as the surety for any other of such representatives. For the purpose of showing the independent character of separate administrators, even where they all represent the same estate at the same time, the plaintiff in error cites Rizer v. Gillpatrick, 16 Kas. 564. The plaintiff in error also cites, among other cases, Parsons v. Williams, 9 Conn. 236; Myres v. Parker, 6 Ohio St. 501; Phillips v. Wells, 2 Sneed (Tenn.), 154. The plain tiff in error also claims that as he was a surety for Green alone as administrator, that Green alone was his principal, and that Adams never was his principal in any manner or in any capacity. He further claims that a surety, on paying the debt of his principal, has a right to be subrogated to all the rights of the creditors; but he says that in this case, that as Adams, the party against whom the judgment was rendered, never was his principal, he (Ryan), even if he should pay the present judgment, could not be subrogated to the rights of Williams, the judgment creditor, and the obligee of his (Ryan’s) principal.
On the other hand, the defendant in error claims that this litigation is really a contest between two estates — the estate of Theodore Jones on the one side, and the estate of Jacob McMurtry on the other side; and that the administrators of such estates are mere figure-heads in the litigation. He claims that no personal judgment could be rendered in favor of or against either of them; but that any judgment rendered in favor of or against either of them must be a judgment in favor of and against them respectively in their representative capacities only. He says that these administrators have no personal interest in the contest; that whatever they may do, or whatever judgment may be rendered in the case either for them or against them, the loss or gain will not be a loss or gain to either of them personally, but will be a loss or gain only to the estate which they respectively represent. He says that one administrator may resign and that another administrator for the same estate may be appointed in his place, and the contest will go on just the same as though no change had been made with respect to administrators. Hence he claims that whenever security for costs is given by the administrator of an estate, the security must be given so as to bind the estate and not merely to bind the administrator, though perhaps in form it may bind only the administrator; and that it will make no difference who may afterward become the administrator for such estate, or how many changes may be made with respect to administrators, for in any case the security will still bind the estate and the surety on the bond will still be responsible. He claims that in the present cas.e the bond was given as a security on the part of the estate ■of Theodore Jones, deceased, and not merely as a security on the part of Henry T. Green as administrator of such estate. He claims that the word “he” in the bond was incorrectly used, and that instead thereof the word “it,” or the words “the estate,” or some other equivalent word or words, should have been used; but yet he claims that the incorrect use of the word “ he” will not make any difference in the case. He admits that an estate cannot in form be a party to an action, but he claims that it may be such in reality. He admits that an estate must have some one to represent it in any litigation which may in any manner affect the estate, but he claims that ' the representative of the estate is a mere figure-head, and that the estate itself is the real entity, the real party in interest ; and hence he claims that Ryan’s bond obligated him to pay any judgment for costs that might be rendered in favor of any administrator of McMurtry’s estate, and therefore that the judgment rendered against Ryan in the present case was right.
We think the judgment in the present case is erroneous. Many courts hold that a surety on a bond is liable only within the strict letter of his bond; and no court holds that a surety is liable beyond the reasonable implications of his bond. The bond in all cases must speak for itself; and sureties may always stand upon its literal terms, or upon its literal terms and its reasonable implications; and if these do not make the surety liable, nothing else can. No far-fetched equities nor overstrained constructions are allowable as against sureties. Their bond expresses their contract, sets forth their obligation, ánd defines their liability; and we are not at liberty to resort to extraneous matters to enlarge their liability. In the present case Ryan did not bind himself to pay any costs except such as might be included in a judgment rendered against Henry T. Green as administrator of the estate of Theodore Jones, deceased. If it be said that the bond should have been more comprehensive, that it should have been a security for any judgment for costs that might be rendered against either Green or any successor of Green, then it may be asked: why was not’-such bond taken? Possibly, however, Mr. Ryan would not have given such a bond. Possibly he would have refused to become a surety for any person or any administrator except Green. Possibly he might have said: “I know Green, and am willing to be surety for the payment of any judgment for costs that may be rendered against him; but if he should die, or resign, or be removed-, I might not be willing to be a surety for the payment of any judgment that might be rendered against his successor.” 'His successor might wrongfully or carelessly allow an immense amount of costs to accumulate in the case; and then might wrongfully or carelessly allow a judgment to be rendered against him for the same. Possibly Mr. Ryan would not, under any circumstances, have been willing to become a surety for Robert Adams, who was the successor of Mr. Green; and certainly Ryan should not be .held to be a surety for Adams unless the bond, by a fair interpretation of its literal terms, shows that he intended to become such a surety — that is, a surety not only for Green, but also a surety for any successor of Green. Green’s successor might have been an enemy both of Green and Ryan. It is said that the estate of a deceased person is the real entity, the real party in interest, and that the administrator is only a figure-head. Now supposing that this is true-; then the-bond in the present case was taken in express term.s, in the name of the figur.e-head. There is not only nothing in the bond to show that Ryan intended to become a surety for Adams, or for any one of Green’s successors, or for the estate generally, but the bond clearly and explicitly shows that he intended to become a surety for only H. T. Green as the administrator of such estate. As has been said by counsel for plaintiff in error, an estate of a deceased person is not a person, or a corporation, or a partnership, or anything else that Can sue or be sued, or contract or be contracted with, or that can perform any other act or thing; but’it is simply the property, the assets of such deceased person. It is true that we sometimes, by a kind of fiction or figure of speech, clothe an estate with a kind .of personality. We speak of it as though it were something that could sue and be sued, and could contract and be contracted with; but in fact, as all lawyers know, it is no such thing, and has no such powers. But this use of language with regard to estates will not in the least help the defendant in error in the present case, for such figurative language was not used in the bond in controversy. The bond was not given as security for the estate, nor did it mention the estate as a thing that could be a principal on a bond, or that could sue or be sued, or contract or be contracted with, or perform any other act; but the bond was given, strictly and literally, as a security for the payment of only such a judgment for costs as might be rendered against Henry T. Green as administrator of the estate. There is not the slightest room in the present case for resorting to figures of speech, for the bond itself does not use them. If the bond had provided that Ryan should pay all costs in the case that the estate might be adjudged to-pay, then it might very plausibly be claimed that Ryan should pay all costs that Adams was in fact adjudged to pay, for Adams is the representative and the administrator of such estate. But the bond does not so provide. It does not use the words “the estate” in any such connection. It simply says that Ryan shall pay all costs which “he (‘Henry T. Green,’ etc.) shall be adjudged to pay.” It is true,-that a contract generally binds both the party to the contract and his legal representatives; and it is sometimes true that a surety for a party is not only a surety for the party himself, but is also a surety for the legal representatives of such party. And, applying these principles, we would think that it would generally follow that an ordinary cost bond would bind the surety to satisfy not only any judgment for costs which might be rendered in the case against the plaintiff (the surety’s principal), but that it would also generally bind the surety to satisfy any judgment for costs which might be rendered in the case against any legal representative of the plaintiff; for in such a case the plaintiff and his legal representative would be considered as one in identity1 — one and the same party. The legal representative in such a case would be considered, both in law and in fact, as actually a representative of his principal, and all the rights of the parties and their sureties would be determined accordingly. But such a principle can have no application in the present case. Adams is not a legal representative of Green; indeed, he is not the representative of Green at all, in any respect, in any manner, or for any purpose. He is merely a successor of Green — a successor in about the same manner as one public officer is the successor of his predecessor, and is not in any sense his representative. Their interests might be antagonistic. Adams as administrator might sue Green for acts done or omitted as administrator. Surely there is no identity of interest between them. Adams does not represent Green’s personal interest, nor the interest of Green as administrator; but he simply represents the interests of the estate of Theodore Jones, deceased. A representative of Green would be an agent of his or some person succeeding to his estate after his death.
■ We would refer to the authorities cited by counsel. See also the case of Riddel v. School District, 15 Kas. 168, 170, where it was held in favor of a surety on a school-district officer’s bond, that the surety was not liable. This is a very strong case against the liability of sureties on bonds, except where they are unmistakably made liable by the terms of their bonds.
The judgment and order of the court below, holding Matthew Ryan liable on the bond in controversy, will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by Daniel Armel and Thomas Jones, partners as Armel & Jones, against John J. Layton, John Doe and Richard Doe, whose real names are unknown, to recover one hundred and nineteen head of cattle. The cattle were replevied — sixteen head thereof being taken from the possession of Layton, and the other one hundred and three head being taken from the possession of Butler Wood. Wood afterward appeared in, the case in the place of John Doe. Both Layton and Wood answered, each answering separately, and each filing a general denial. • The issues in the case were therefore as follows: (1) Were the plaintiffs Armel & Jones the owners of the property in controversy at the time of the commencement of this action? (2) Had they the right to the immediate possession of the property at that time? (3) Were the defendants Lay-ton and Wood, or either of them, wrongfully detaining the cattle from the plaintiffs at the time they were replevied? The burden of proof with respect to each of these issues rested upon the plaintiffs, and unless they could affirmatively maintain each and all of these issues, they would necessarily fail in their action.
A trial was had before the court and a jury. A vast amount of conflicting testimony was introduced, and upon the pleadings and the evidence the jury found in favor of the defendants and against the plaintiffs, and judgment was rendered accordingly. The plaintiffs now seek to reverse this judgment, by bringing petition in error and a “case-made” to this court.
The plaintiffs claim as a principal ground for error, that the verdict of the jury is against the law and the evidence; but they also claim incidentally, that the court below misdirected the jury in one of its instructions; and they further claim that the judgment rendered is erroneous and “intensifies the errors of the verdict.” These are about the only alleged errors presented for our consideration.
The facts of the case are substantially as follows: The plaintiffs originally owned the cattle in controversy. In October, 1877, while the plaintiffs still owned the cattle, a contract was made between the plaintiffs and Layton, by virtue of which the latter was to keep and feed the cattle in controversy, together with other cattle belonging to the plaintiffs, for the periods of time hereafter mentioned. One lot of these cattle, which was afterward spoken of in the evidence as the “ big steers,” was to be kept two years; at the end of which time there was to be a division, Layton to receive two-fifths thereof as his own, and the plaintiffs the other three-fifths. Another lot, which includes that portion of the cattle now in controversy which was replevied from Wood, was to be kept three years; at which time there was to be a division, Layton to receive and own one-half, and the plaintiffs the other half. There was also a lot of cows, which Layton was to keep three years; at which time the increase was to be divided, and the cows returned to ithe plaintiffs. These cows had six calves at the time when the action of replevin was commenced, which cows and calves are the cattle which were, replevied from Layton. Under said contract the title to the cattle was to remain in the plaintiffs until the division thereof, and the plaintiffs in the meantime were to have a lien on Layton’s interest therein for the faithful performance of the contract, as well as for advances that might be made by the plaintiffs. The contract was duly filed as a chattel mortgage, and kept alive as such by affidavit, as provided by statute. About the first of November, 1878, the “big steers,” fifty-five in number, were returned to the plaintiffs in pursuance of an agreement then entered into between the plaintiffs and Layton. As to what this agreement was the parties do not agree, and the evidence introduced, by the parties respecting it is irreconcilably conflicting. The agreement was made between Armel, on the part of Armel & Jones, and Layton for himself. Layton contends, in substance, that the agreement between himself and Armel was substantially that Armel might take the “big steers” away, and keep them until sometime in the spring of 1879, and then return them to Layton; but that if Armel should not return them within .that time, then that the transaction should be considered as a division of the cattle, Armel to keep and own the “big steers,” and Layton to keep and own the other cattle still remaining in his possession; while Armel, on the other side, claims that he was to take, and did take, the “big steers” from Layton for no other reason than that Layton did not have feed to winter them; and that not one word was said by either of the parties, nor one thought entertained by himself, as to whether the “big steers” should ever be returned again to Layton, or not; and that there was no arrangement or agreement made between the parties at that time with respect to the cattle which still remained in Lay-ton’s possession, and nothing said that could possibly change or modify the original contract in the slighest degree with respect to the cattle still remaining in Layton’s possession. Both Layton and Armel testified in the case, and both testified with regard to this subsequent agreement. Layton was corroborated by three other witnesses, while Armel was corroborated by only one, if indeed he was corroborated by any. Upon the terms of this agreement the decision of the entire case depends. If Layton is correct, the decision of the court below was rightfully rendered in favor of the defendants; but if Armel is correct, the decision should be rendered in favor of the plaintiffs. The next spring came and passed, and Armel failed and refused, even upon request, to return the “ big steers,” as Layton claims he agreed to do; and Layton then, about the first of June, 1879, sold the second lot of cattle, 103 head, to Butler Wood for $1,948, and Wood immediately took possession of them. Afterward, but within a few days, the plaintiffs replevied these cattle from Wood, and replevied the cows and calves from Layton. The replevin suit in which these cattle were replevied from Wood and Layton was a joint suit, brought against Wood and Layton jointly.
We think it will now appear that the decision of this case depends entirely upon the character of the parol contract entered into between Armel and Layton, about November 1, 1878; and with reference to this contract, we think the instructions of the court below were at least as fair toward the plaintiffs as they had any right to demand. The court below instructed the jury in substance that the plaintiffs were, entitled to recover, unless this subsequent parol agreement made in the fall of 1878 between Armel and Layton was substantially what Layton claimed it to be; and the court charged specifically that the burden of proving this subsequent parol agreement rested wholly upon the defendants. The court also instructed the jury in substance that if the defendant Layton did not fully comply with all the terms and requirements of the original written contract made between Layton and the plaintiffs in the fall of 1877, up to the time Layton claims that the “big steers” were to be returned to.him, or if the subsequent parol contract did not by its terms make Layton the absolute owner .of the cattle remaining in his possession at the time when Layton claims that the “big steers” should have been returned to him, the plaintiffs should recover. The court also instructed the jury that if the subsequent parol agreement merely gave the cattle to Layton to hold as a security or pledge, then that the plaintiffs were entitled to recover. We think this was as favorable to the plaintiffs as they could reasonably ask. The instructions which have been specially pointed out to us by the plaintiffs, and with regard to which a claim of error is made, read as follows:
“But it is claimed by the defendants that since the execution of the written contract entered into by Armel & Jones and Layton, and since the parties entered upon the execution. of the same, a subsequent agreement was made between them, by which the plaintiffs were to take away a portion of the contract cattle designated during the trial as the ‘ big cattle/ for the purpose of feeding during the winter and returning to Layton in the next spring to herd and care for under the original contract. And the defendant Layton further claims that by the terms of this subsequent agreement, upon a failure of the plaintiffs to return the big steers at the time agreed upon, the failure gave to him, Layton, the absolute ownership or right to retain as his own all cattle remaining with him at the time the big cattle were taken away from him under this subsequent agreement.
“If such agreement was made, it is valid and binding upon the parties to this action; and if not complied with by the plaintiffs, the defendants are entitled to a verdict, as I shall now explain. ... If you find from the evidence that the parties by their talks or agreements had or made subsequent to the execution of the written contract intended that the defendant Layton- should not be considered the absolute owner of the cattle left with him, even if the big steers were not returned according to such talks of agreements, and that he should only hold or possess them as security or as a pledge that the big cattle would be returned, and that their respective interests should remain as under the original or written contract, then you should find for the plaintiffs.”
The 103. head of cattle taken from the possession of Wood on the writ of replevin were allowed to remain in the possession of the plaintiffs. The ten cows and six calves taken from the possession of Layton were returned to-him on a redelivery bond. The verdict of the jury reads as follows:
“We, the jury, find for the defendants, that at the time of the commencement of this action they were the owners and entitled to the immediate possession of the property in controversy; that the same (except the.ten cowhand six calves) is now wrongfully detained from them by the plaintiffs; and that it is of the value of $1,948.”
The word “it” in the last part of the verdict undoubtedly means “the property in controversy” “wrongfully detained from them [the defendants] by the plaintiffs; ” that is, “ the property in controversy,” “except the ten cows and six calves.” This property was sold by Layton to Wood for $1,948, just what the jury found it to be worth. We do not think that the value of the property as found by the jury was intended to include the value of the ten cows and six calves.
We think the judgment substantially follows the verdict. At least we think a fair and reasonable construction of both the verdict and the judgment makes the two harmonize. The defendants already have the ten cows and six calves in their possession; and these they are entitled to retain; and, accord ing to the verdict, they are entitled to recover the possession of the 103 head of cattle, now in the possession of the plaintiffs, or their value as fixed by the jury at $1,948. The judgment is a joint judgment, being rendered in favor of the defendants jointly and against the plaintiffs jointly. The plaintiffs now claim that this is erroneous, forgetting of course that they jointly prosecuted the defendants jointly for a joint wrong, and that they did not raise any question in the court below with respect to the several rights or several liabilities of the defendants. But if the plaintiffs themselves have no right to recover as against the defendants, or either of them, then what right have they to dictate as to how the judgment should be rendered as between the defendants, or to say how the cattle or their value should be divided as between the defendants ?
■ With respect to the facts of this case, the jury found in favor of the defendants and against the plaintiffs, upon conflicting and contradictory parol testimony, and there was sufficient testimony to sustain the verdict. This we think ends the case with respect to the facts. But there is still one phase of the case, principally legal, which we think requires a few words. Suppose that Layton’s title to the cattle in his possession at the time that Armel failed to return the “big steers” was that of a mortgagee, and not that of an absolute and unconditional owner: then had Layton the power, as against the plaintiffs, to sell a portion of them and to keep the remaining portion, as he did in this case? We think this question must be answered in the affirmative. If Layton was a mortgagee, he must account, however, to his mortgagor for the surplus over and above what it requires to make him whole; while if he was an absolute and unconditional owner of the cattle, he will not be required to render any account to any person. That he was not a mere pledgee without title, the jury have certainly found by their verdict, and so found upon sufficient evidence. See last paragraph quoted above of the instructions of the court. The least that Layton could possibly be, under the verdict, would be a mortgagee, with power, after default on the part of Armel to return the “big steers,” to dispose of the property as his own until he had made good his loss occasioned by Armel’s default. Of course the said parol agreement between Armel and Layton was not a' statutory chattel mortgage, for such a mortgage should be in writing; but if it was not a contract of a higher nature than a chattel mortgage, if it was not such a contract as would transfer to Layton an absolute and unconditional title to the property on default of Armel, then we think it was such a contract as would create and constitute a good chattel mortgage at common law; and in either case, under the facts as found by the jury, we think the defendants were entitled to recover. The jury probably believed that Layton, by virtue of the' contract and default of Armel, became the absolute and unconditional owner of the cattle; that the contract and the default taken together constituted a final division of the cattle — - the plaintiffs becoming the absolute owners of the “ big steers,” and Layton becoming the absolute owner of the remaining cattle. They probably believed that the contract amounted to a sale or barter upon condition, the condition being the election of Armel at the next spring to retain the “big steers,” and that when the condition was fulfilled by Armel electing to keep the “big steers,” the sale or barter became absolute;, and that the contract did not at any time, either before or after Armel’s election, or Armel’s default, as we have generally called it, amount to a mere security of any kind. It must be remembered, however, that even if the contract amounted to only a security, still the plaintiffs are in default, and have never offered to redeem the property in controversy by performing their part of the contract; and hence, if the supposed security amounts to a chattel mortgage, they have no right to recover the possession of the property in this-action. They háve no right, to a return of the mortgaged cattle while they are in default.
After a careful consideration of all the questions involved in this case, and of all the questions presented to us by coun sel, we have come to the conclusion that no substantial error was committed by the court below as against the plaintiffs; therefore, 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
Hokton, C. J.:
There was commenced on January 22, 1883, in the district court of Marion county, an action wherein Emma J. Dent was plaintiff and the appellant was defendant, in which plaintiff sought to obtain a divorce and alimony. On said January 22, the judge of the district court of the ninth judicial district, upon the application of the plaintiff, issued an order restraining appellant from making any conveyance, sale, assignment or other disposition of any of his property, and requiring him to pay immediately to the clerk of the court for plaintiff’s counsel the sum of $50, and the sum of $200 for plaintiff, or give bond for the payment of the said $200 within ten days, with security to be approved by the clerk. Appellant failed to make 'payment of the sums directed, or give security for the payment thereof, and on January 24, 1883, he was attached, and brought before the district judge to show cause why he should not be adjudged guilty and punished for contempt in refusing to obey his orders. Upon the hearing, the judge decided that appellant had failed and neglected to comply with his orders without any just excuse, and ordered as a penalty for his contempt that he be committed to the jail of Marion county until the previous orders made by him were complied with, and that in addition thereto he pay the expenses of that proceeding, taxed at $-, as the clerk of the court might ascertain, and that he also pay the plaintiff’s counsel the further sum of $25. The confinement in the jail was to continue also, until these latter sums were satisfied. This appeal is now prosecuted to review and set aside the order of the district judge adjudging appellant guilty of contempt and committing him to the jail of Marion county until he shall make payment of the sums directed.
Counsel representing the state objects to the consideration of the case on its merits, upon the ground that every court and judge has the sole power to determine whether as a matter of fact a contempt has occurred; and further, that the contempt committed is not a criminal offense, and the appellant has no right of appeal. Although the authorities are somewhat conflicting upon these questions, in our opinion, under the provisions of our statute, both objections are untenable. Proceedings for contempt are in the nature of criminal prosecutions. (Hawkins’s Pleas of the Crown, Attachment; Comyn’s Digest, Attachment, A, 2; 4 Bl. Com. 283, 284; Passmore Williams’s Case, 26 Pa. St. 19; State v. Matthews, 37 N. H. 450; Whittem v. State, 36 Ind. 196, and cases cited.) In Peyton’s Appeal, 12 Kas. 398, it was said in the opinion that: “The whole proceeding, as it appears from the record brought to this court, would seem to be merely a proceeding for contempt.” This court assumed jurisdiction of that case, disposed of it upon its merits, and ordered the judgment of the district court to be reversed. The authority for the district judge to imprison for contempt, on the failure of a party to obey his order to pay temporary alimony and suit-money, is based upon the ground that the refusal is willful disobedience; and where a party is guilty of willful disobedience or obstinacy to an order of the court or judge, said court or judge is necessarily empowered to punish him as for contempt; when sentenced therefor to imprisonment until he pay a specified sum and the cost of the proceeding, such decision is in the nature of a sentence and final judgment. Sec. 281 of the criminal code reads: “An appeal to the supreme court may be taken, by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case, may be reviewed.” This section gives an appeal to the appellant, and this right of appeal confers on' thi^ court jurisdiction to examine the order and judgment of the district judge. (Whittem v. State, supra; Peyton’s Appeal, supra.)
It satisfactorily appears from the evidence produced by affidavits before the district .judge, that the plaintiff in the original action was possessed of notes of the value of $209, due in about a year,, and also of real estate in Marion county of the value of $1,000, incumbered with’ a mortgage of $300; that the only real estate belonging to appellant was-an undivided one-fourth interest in one hundred and sixty acres of land situated in Marion county, the legal title to which is in the Atchison, Topeka & Santa Eé railroad company, and upon which two payments are unpaid; that he has household furniture valued at $225, and also some property in the hands of an administrator of his father’s estate in Ohio, of the value of $500, which would come to him when the estate is settled; that appellant had been guilty of dissipation and riotous living, and was without ready means, excepting a small sum of money which he paid to his attorney soon after the commencement of the divorce action; that he had no money in his possession or under his control with which he could comply with the orders made by the district judge on January 22. However censurable may have been the conduct of appellant towards his wife, and however much he is to be condemned for his foolish and extravagant expenditure of money and property prior to' the orders directing him to pay the temporary alimony and suit-money, it does not seem to us after the judge enjoined him from making any sale or , . , . . disposition of his property that he was in a condition to pay money or give security, and therefore was not guilty of willful disobedience or willful obstinacy. When he was brought before the district judge on the attachment, it was sufficient to entitle him to be discharged, if it appeared that he had not paid the sums directed, solely on account- of his pecuniary inability, or some other misfortune over which he had no control. As all the property he had was tied up by the orders of the court, and as he was without money, he ought not to have been imprisoned so summarily.
Various other matters are discussed in the briefs of counsel, but the conclusion obtained we think renders it unnecessary to examine in detail every question presented.
The order and judgment of the district judge will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
The defendant, Peter Mugler, was prosecuted criminally, in two different cases, for violations of the prohibitory liquor law. In the first case, the indictment contained but one count, charging that the defendant “did unlawfully manufacture, and aid, assist and abet in the manufacture” of certain intoxicating liquors. In the second case, the indictment contained six counts, in the first five' of which it charged that the defendant, on five different days, sold intoxicating liquors in violation of law; and in the sixth count it charged that the defendant was guilty of keeping and maintaining a common nuisance, by keeping for sale and selling certain intoxicating liquors. In the first case, a motion was made by the defendant to quash the indictment; for the reason that it did not state facts sufficient to constitute any offense, and because it contained a double charge against the defendant. This motion was overruled by the court. A trial was then had in the case, before the court without a jury, upon an agreed statement of facts, which admitted that the defendant, since October 1, 1881, without a permit, manufactured beer, an intoxicating liquor, in a brewery erected by him in Salina, Kansas, in 1877, and used thereafter by him as a brewery up to May 1, 1881, the time when the present prohibitory liquor law went into effect; • “ that said brewery was at all times after its completion, and on May 1, 1881, worth the sum of $10,000, for use in the manufacture of said beer, and is not worth to exceed the sum of $2,500 for any other purpose.” It was also admitted that the defendant used his brewery for the manufacture of beer after October 1, 1881, the same as he had done prior to May 1, 1881. In the second case, motions to quasb the indictment and to compel the prosecution to elect upon which count it would proceed, were made by the defendant, and were overruled by the court. A trial was then had in the second case, before the court without a jury, upon an agreed statement of facts, which admitted that the sale charged in the first count of the indictment was made by the defendant, without a permit, and that it was a sale of beer manufactured by the defendant before the passage of the prohibitory act of 1881; but whether the beer thus sold was manufactured before the adoption of the constitutional amendment, in November, 1880, prohibiting the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, the record is silent; and for what purpose the beer was sold, the record is also silent. In each of these two cases the defendant was found guilty, and fined $100, and in each he now appeals to this court.
The principal question supposed to be involved in these two cases is as follows: Is or is not the present prohibitory liquor law constitutional, so far as it affects the defendant and his business in manufacturing beer at his brewery, and selling the same? The defendant claims that such law is unconstitutional, and his counsel make a very able and elaborate argument in this court, to show that it is unconstitutional. Among other things, they say:
“Years prior to the enactment of the law, and even before the prohibition amendment to the constitution was discussed, the defendant erected his brewery and furnished it with the means necessary for the manufacture of beer, the subject of the charge in the indictment. When the amendment was adopted, and when the act for its enforcement became a law, the defendant’s money was thus invested, and his brewery was his ‘property.’ The effect of the act is to close the doors of his business, and leave what had been valuable property, recognized and protected by the law, lifeless, unrenumerative, and almost worthless, as it idly rests under the condemnation of the new departure. By a simple legislative edict the defendant is stripped of $7,500 in value of property, as effectually as if consumed by fire.
“ In this he is deprived of property without due process of law, in violation of fundamental principles of government, and of the fourteenth article of the amendment to the constitution of the United States, which provides: ‘Nor shall any state deprive any person of life, liberty, or property, without due process of law.’”
“The defendant is deprived of his property by mere force of the legislative decree. No rule is established or course prescribed by which his rights are in any way to be considered. The legislature finds him in the enjoyment of property, which public policy in this state has never even subjected to any police regulation, nor placed in any way under the surveillance of the law. It simply says to him: ‘This business which you have built up under the protection of the law, and which to this time has not been held to infringe upon public rights in any way, is henceforth condemned as a nuisance, and the value of your property confiscated for the public good.’ There is no notice, no hearing, no opportunity for redress; nothing is heard but this inexorable decree of annihilation, and the defendant sits in'the midst of the ruins of that which years of toil had accumulated, under the vain hope that he had security under the law.”
Much that counsel say we think has force. The legislature has probably gone a long way in destroying the values of such kinds of property as the defendant owned, and has possibly gone to the utmost verge of constitutional authority. And yet we do not think that the result reached by counsel for the defendant necessarily follows from the facts and circumstances of this case. The defendant is certainly not deprived of his brewery, or of his liquor, or of any of his other tangible property. So far as the constitutional amendment and the prohibition act are concerned,‘he still retains his brewery and hjs liquors, and all his other tangible property, just the same as he did prior to the passage or adoption of any of the present restrictive or prohibitory liquor laws. But probably it is not his tangible property which he claims has thus been taken or destroyed or confiscated. It is his intangible pi’operty, his vested rights, founded upon or incidental to the rightful enjoyment, or use, of his visible and tangible property, of which he claims to have been deprived. This brings us to a comparison between the former restrictive and prohibitory liquor laws of this state, and the present restrictive and prohibitory liquor laws.. In 1877, when the de fendant erected his brewery, he had a right to manufacture all the beer or other intoxicating liquors which he chose; and he can do so still, provided he first obtains a permit therefor from the probate judge, and he can easily obtain the permit by complying with the terms and conditions upon which permits are issued. At that time he could manufacture intoxicating liquors for any purpose which he chose; but since the adoption of the constitutional amendment, in November, 1880, he can manufacture such liquors only for medical, scientific and mechanical purposes. His right tó sell intoxicating liquors, however, was always restricted. In 1877, under the then existing laws, he had no right to sell his beer or any other intoxicating liquor in any quantity, or in any place in Kansas, or to any person, unless he had first obtained a license therefor. (The State v. Volmer, 6 Kas. 371; Dolson v. Hope, 7 Kas. 161; Alexander v. O’Donnell, 12 Kas. 608;) and such is still the law. The license is now called a “permit.” But even with a license, the defendant had no right under the old laws, to sell his beer on Sundays, or on election days, or on the Fourths of July; or to any person who was in the habit of becoming intoxicated against the known wishes of his wife, child, parent, brother, or sister; or to any minor against the consent of his parent or guardian; or at any place except the place designated in his license, which in the . present case would have been the city of Salina. Besides, the defendant had no assurance under the old laws that he could procure a license. Licenses were not granted to anybody and everybody, but only to a select few, and then the license would continue in force for the period of one year only, and no person could have any assurance that his license would be renewed. Both the issuing and the renewal of licenses depended entirely upon the temper and disposition of the community in which the application was made. Under the old laws, each community was given the privilege of determining for itself whether licenses to sell intoxicating liquors should be issued or not, and if none were issued, then the old law was as much a prohibition law as the present liquor law. The old law might properly be called not only a license law, but also an option law, and a contingent prohibition law— for licenses were allowed to be issued at the option of each community; and if they were not issued the law would become a virtual prohibition law. Under the old law the entire state might have become a complete prohibition state, at the option of its several communities, or each community might have authorized the issue of licenses, as it chose. In this respect the old law and the present law differ. The old law left the question of prohibition or license with each community separately and exclusively, while the present law theoretically enforces prohibition upon all communities, whether they are willing or unwilling. We do not here wish to be understood as .saying that our present liquor law, dr any liquor law which we have ever had in Kansas, is or has been an absolute and unqualified prohibitory liquor law. They have none of them been more than limited and qualified prohibition laws. Under the old law, the defendant, with a license, could sell his beer to any person and to all persons, with the exceptions heretofore mentioned; but under the present law, we suppose he is subject to at least one other restriction in his sales as to persons. He cannot now sell his beer for medical purposes except to druggists. It would seem, however,'that with a permit he may now sell his beer for scientific and mechanical purposes, to any and every person who might wish to purchase the same. And therefore it would seem that in this respect no additional restrictions over the old law are imposed. We think it will now appear that the old law and the new are not so vastly different as has been by some persons supposed. Both are restrictive in their character; both are criminal laws, and both are prohibitory to some extent; and yet neither is absolutely and unqualifiedly a prohibition statute. ' Both restrict sales as to times, places and persons, and the present law as to purposes; and yet both laws allow sales to be made. Under the old law, the defendant never had any authority to sell his beer, except with a license. He never had any positive assurance that a license would be granted to him, or if granted, that it would be extended or renewed; and even with a license, he could not sell his beer at any other place than at the city of Salina. And his right to sell beer for any considerable period of time was always based upon many uncertainties and contingencies. Under the present law, the defendant with a permit, which he can easily obtain, can manufacture all the beer for medical, scientific and mechanical purposes which he chooses to manufacture, and can sell the same for such purposes, provided he can find purchasers therefor. The material restrictions imposed by the present law, in addition to those imposed by the old law, are simply as to the purposes for which he may sell, and as to the persons to whom he may sell for medical purposes. There are no other material or substantial restrictions.
Under such circumstances, we hardly think that the defendant had such a vested interest in the old law, or in anything else, as would prevent the passage of a law like our present prohibition act. It would hardly seem that the defendant, by erecting a brewery in 1877, and by operating it for some time afterward, could obtain such a vested interest in anything as to prevent further legislation with respect to intoxicating liquors, of a more restrictive and stringent character; or that he could go on, with or without legislation, and with or without a license, manufacturing and selling beer forever. We suppose that the defendant founds his right to continue to manufacture and sell beer solely and exclusively upon his supposed vested right to operate his brewery in undisturbed tranquility forever. He certainly will not claim that, independent of his brewery, he had a vested right at the time the constitutional amendment was adopted, or at the time the present prohibition law was enacted, to either manufacture or sell any kind of intoxicating .liquor which had not yet been brought into existence. His whole claim we suppose springs from the rights which his brewery is supposed to have conferred upon him. But these rights we think cannot have such far-reaching conse •quences as the defendant claims. The beer which the defendant is prosecuted for manufacturing was not in existence at the time when the constitutional amendment was adopted, nr at the time when the prohibition act went into operation, but it was manufactured since; and hence, independent of the defendant’s interest in his brewery,-, he could not have had any possible vested right, at the time of the adoption and passage of the present prohibition laws, in the manufacture of such beer. Nearly the same may be said with respect to the beer which the defendant is prosecuted for selling. .Presumably it was not in existence at the time when the constitutional amendment was adopted. Besides, the sale of such kinds of liquor, when made as this sale was made, would have been a violation of the laws of Kansas, and a criminal offense, at any time for the last twenty-three years. In this respect the present law is not new. The sale in the present case was made without a permit or a license. It may be that the defendant has suffered great loss on account of the passage of the prohibition act, but such loss is not the direct and immediate result of such act; it is simply the remote and consequential result of the act, and is wholly speculative and problematical. Such indirect and remote losses cannot render acts of the legislature unconstitutional. (The Beer Co. v. Massachusetts, 97 U. S. 25; Bartemeyer v. Iowa, 85 U. S. [18 Wall.] 129.
It is frequently the case that the passage of statutes indirectly affects the values of property as this act does, and still we do not think that such statutes are ever declared to be unconstitutional merely for such reasons. We think that the present- prohibition act of Kansas is constitutional, so far as it affects the defendant, and so far as it has any application to the two cases now under consideration.' We do not think that the court below committed any error in either of these two cases; but even if it did with respect to the motions of the defendant, whicl} it overruled, the errors were-wholly immaterial. In the first case, the defendant was tried upon an agreed statement of facts simply for manufacturing intoxicating liquors contrary to law. In the second case, he was tried upon an agreed statement of facts, upon the first count only of the indictment, and merely for selling intoxicating liquor contrary to law, and for one sale only; and in both cases we think the judgment of the court below was correct; and it will therefore.be affirmed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.
This case comes up from the district court of Leavenworth county, and the questions involved therein arose in a suit by the plaintiff in error to foreclose a note and a mortgage given by, George E. Hines and D. W. Eaves and their-wives, on several tracts of land embracing lot No. 2 of Diefendorf’s subdivision. ■ A great many persons supposed to have some lien on, or interest in, portions of the mortgaged premises were made defendants, including the defendant in error. , The latter answered, setting up a claim of title to the lot aforesaid. The rest of the defendants were duly served with summons,'either personally or by publication, and the action stood regularly for trial at the December term,' 1882, and came ojn for final hearing on the 11th.day of January, 1883. A jury was waived by all the parties who appeared, and the cause was submitted to the court for trial.
After the plaintiff had proved the transfer of the note and the mortgage to himself and introduced them in evidence, the defendant in error offered some tax proceedings in evidence to support his claim of title to said lot. These proceedings, so far as they were embraced in his offer, consisted of tax levies of 1873 up to 1878, inclusive, by the commissioners of said county; the record book of delinquent, tax sales of 1874, showing the sale of the lot aforesaid to .the county on May 12, 1874, for the taxes of 1873, for the sum of $3.92, and also showing the subsequent taxes up to and including 1878 amounting to $16.53, exclusive of interest, charged up to said sale; also the proceedings of the county board, dated March 5, 1880, which were claimed to show a compromise of the taxes aforesaid, and to authorize an assignment of the tax-sale certificate to Finneran for $18; also the tax-sale certificate and its assignment to. the defendant in error by the county clerk; and also two tax deeds for said lot,,both .based .on the aforesaid tax proceedings, the first dated October 2,.1880, and the other January 11, 1883; the latter actually issued during the progress of the trial. ...
The plaintiff in error duly objected to all this evidence as not. sufficient to transfer the title to the property mentioned, and as being incompetent and irrelevant. The court sustained the objection as to the first tax deed, but overruled the objection as to all the other evidence offered, and received the proceedings in evidence; holding that the first tax deed was void upon its face, and that the second one was . regular and valid, notwithstanding all the objections thereto; but required the defendant in error to amend his answer so as to make it conform to the evidence introduced in the case; and then the court rendered judgment, including, among other things, a judgment, against the plaintiff as to said lot, vesting the absolute title thereto in the defendant in .error, free fro.m all liens under the plaintiff’s mortgage. It is this particular judgment concerning lot-No. 2, in Diefendorf’s su,bdi vision, of which the plaintiff in error now complains. He does not seek to disturb anything else in the general judgment. The plaintiff in error presents several questions to this court, which we shall now proceed to consider in their order.
I. The plaintiff in error claims that the compromise law of 1879, (Laws of 1879, ch. 43; Comp. Laws of 1879, p.965, ¶5911,) under which the defendant’s tax-sale certificate and tax deeds were issued, is unconstitutional and void, being, as he claims, in contravention of that provision of §1, art. 11, of the constitution of Kansas, which declares that “ the legislature shall provide for a uniform and equal rate of assessment and taxation.” Counsel for plaintiff in error has made an able and ingenious argument to show that this compromise law of 1879 has the effect, if enforced, to render the rate of taxation in the various counties of the state unequal and not uniform; and he also claims that it tends to disturb quasi vested rights. We have carefully considered his argument, and with some doubts and hesitation have arrived at a different conclusion; and while we agree in holding that the compromise law of 1879 is not void, absolutely and entirely, if void in some particulars, we have not arrived at that conclusion by entirely the same course of reasoning, and hence we do not think that it is necessary to state our reasons. We simply state that we think that the compromise law of 1879 is constitutional and valid, so far as it has application to this case; and beyond this we express no opinion.
II. The plaintiff in error also claims that even if the compromise law of 1879 is constitutional and valid, still that tax deeds issued under it are not prima facie evidence of title, or of the regularity of the prior tax proceedings upon which such tax deeds are founded; and that §138 of the general tax law can have no application to such tax deeds. This claim is not tenable. The compromise statute provides, among other things, that when the compromise is consummated the county treasurer shall execute and the county clerk as sign a tax-sale certificate for the lands for the amount of the taxes agreed upon by the compromise, and that such “assignment shall have the same force and effect as if the full amount of all taxes, interest and penalties had been paid therefor” — meaning, of course, that the tax-sale certificate issued and assigned in this mode shall be just as good and have the same force and effect as a tax-sale certificate issued and assigned in any other mode;- the only difference between the two modes being that in one the full amount of the taxes, interest, penalties and costs is paid, while in the other it is not; and a tax deed issued upon a tax-sale certificate issued and assigned in the ordinary way under the general tax laws, is unquestionably prima fade evidence of title, and of the regularity and validity of all prior tax proceedings. We think that § 138 of the general tax law has application to the tax deed issued in this case, as well as to all other tax deeds.
III. The plaintiff in error further claims that even granting that the compromise law of 1879 is valid, and that tax deeds issued under it are prima fade evidence of the regularity of all prior proceedings, yet that the deed issued in the present case and held to be valid by the court below was void upon its face, for the following reasons: (1) Because the subsequent taxes for five years charged up to the sale of 1874 were all lumped in one gross sum; (2) because the tax deed showed that taxes which had not been delinquent for three years were included in the compromise; and therefore, (3) because the tax deed also showed that instead of the compromise being for less than the amount of taxes due it was for a greater sum. We do not think that any of these reasons for claiming that the tax deed is void upon its face is sufficient. The tax deed shows the amount of taxes for .which the land was originally sold, and then shows the aggregate amount of taxes for the next five years which were charged up to this sale. This we think was sufficient, or at least the failure to show the amount of taxes in further detail does not render the tax deed void. (See § 139 of the tax law.) We also think it was perfectly competent, undér the compromise law of 1879, for the county commissioners to compromise and sell the tax-lien interest of the public upon the land for all the delinquent taxes then due upon the land and charged up against the land tó one single sale; and we do not think that the tax deed shows that a greater amount was paid on the compromise than the taxes and interest which were then actually due upon the land; indeed, it actually shows that a much less amount was paid.
IV. The plaintiff in error also claims'that the tax deed is void under § 3, chapter 123, of the Laws of 1881, relating to floating liens. Now the fact is, that the defendant presented his tax-sale certificate and demanded a deed prior to the passage of the act of 1881, and therefore his right to a good and valid tax deed was fixed and vested under the law of 1879, and prior to the passage of the act of 1881. The failure of the county clerk in the first instance to issue a correct and formal tax deed cannot affect the rights of the defendant; his right to obtain a correct and formal tax deed continued from the time when he first demanded the same up to the time when he received it, although he did not receive it until January 11, 1883, and until after the act of 1881 had been passed, requiring that any person obtaining an assignment of a tax-sale certificate shall present the same to the county clerk and obtain a tax deed thereon within one year after the date of such assignment.
V. It is also claimed by the plaintiff in error that the tax deed in the present case is void for the reasons: (1) That some of the taxes which were charged against the land and afterward compromised were illegal; (2) that the proceedings of the county board, as shown in evidence, were not sufficient to authorize a compromise and an.assignment of the tax-sale certificate to the defendant; and for other supposed irregularities, which we do not think it necessary to mention.
It is certainly not shown that the original tax sale of the land in 1874 for the taxes of 1873 was invalid, or that such sale included any illegal taxes; and there is not the slightest room for claiming that the amount paid on the compromise for the taxes of the subsequent five years was greater than the amount of legal taxes and interest due on the land, aside from all the illegal taxes that may possibly have been assessed against the land for any one or all of those five years; and we do not think that the record of the proceedings of the county board shows, or tends to show, that the tax deed is void. Mere irregularities never render a tax deed or any tax proceedings void. (Comp. Laws of 1879, ch. 107, §139.)
We think the tax deed in the present case is prima facie valid, and there is nothing in the case showing that it is void ; the judgment of the court below will therefore be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question in this case is,, whether it is the duty of the administrator to pay the taxes accumulating on the lands of his intestate subsequent to the death of the intestate. We think not, except when he sells the land. If the administrator needs the lands of the estate with which to pay debts, it is as much his duty to pay all legal charges that may accrue thereon until he sells them, as it is to pay any charges on personal property for the care, preservation and protection of the same while it remains in his custody. (Brown v. Evans, 15 Kas. 88; Gen. Stat., p. 1062, §137; id., p. 1034, §40; Comp. Laws 1879, p. 969, §150; id,, p. 948, § 56.) ■ In all other cases, the heir, and not the administrator, is bound to pay the taxes. The lands of an intestate descend to the heirs, subject in certain contingencies to the payment of the debts of the intestate. The legal title is in the heirs, and the administrator takes' no interest in the real estate, but possesses a naked authority to sell it on license to pay the debts where the personal estate is insufficient. Upon the death of Died-rich Fuhrman, his real estate descended at once to his heirs-at-law, incumbered with the liability for his debts, but until subjected to the debts by the administrator or the creditors by some judicial proceeding it was the property of the heirs, who were the ones to pay the taxes. (Britton v. Hunt, 9 Kas. 228; Pratt v. St. Clair’s Heirs, 6 Ohio, 227; Williams on Executors, 6 Am. ed., p. 717.) It does not appear from the evidence produced upon the trial of this case in the court below that George Wier as administrator ever sold, or made application to sell, the lands described in the petition for the payment of debts, or that any steps were ever taken to subject the lands to the payment of debts due before the death of the intestate. Counsel cite §137, Gen. Stat. 1868, p. 1062, and §150, Comp. Laws 1879, p. 969. The provisions of the said sections are not applicable, because the administrator was not seized of the land described in the petition, and legally had no care thereof. The heirs of the intestate are the parties to look after the taxes upon the real estate inherited by them. The said sections might have operation, if applied to an executor acting under a will which gives him the real estate, or to an administrator with the will annexed.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion 6f the court was delivered by
Horton, C. J.:
In support of the demurrer -filed by the plaintiffs in this case, it is said, first, that if the defense set forth in the second count of the answer be based on a breach of warranty, it is defective in failing to allege as a fact that the lead paint contracted for was not pure. The allegations upon this point are, that the defendant, “ as soon as she was able, examined the paint and discovered that it was not pure white lead, but was white lead adulterated by other, cheaper and inferior ingredients, and that on the second day of April, 1882, as soon as she discovered the paint furnished was not what had. been contracted for, she notified plaintiffs that she would not accept it, and duly tendered the same back to them.” At the time of the contract concerning the paint' it was at Chicago, in the state of Illinois, and therefore not subject to inspection by Schwartz. Strictly speaking, there was in fact no warranty concerning it. But it is clearly apparent from the allegations that the article delivered was not the article contracted for, and therefore, while neither fraud nor warranty in the strict sense of the law is charged, a condition is set forth, the performance of which is precedent to any obligation upon the vendee under the contract. That is, the existence of the quality of purity, being a part of the description of the thing sold, became essential to its identity, and the defendant was not obliged to receive and pay for an article different from that for which she contracted. (Benjamin on Sales, §§ 600 and 895.) The allegations in the answer that the defendant examined the paint and discovered it was not pure, but white lead adulterated by other, cheaper and inferior ingredients, and that as soon as she discovered that the paint furnished was not what had been contracted for, she notified plaintiffs that she would not accept it, as against the challenge by demurrer are a sufficient charge that the white-lead paint was not pure, and was an article different from that contracted for.
II. As to the defense claiming a lien on the lead for freight and cartage paid, we see no good reason why defendant is not entitled to recover therefor. The plaintiffs sent a quantity of lead paint to the defendant, which was not according to the contract of the parties. When received, without knowledge as to the character of the paint, the defendant paid out $36.90 for freight and cartage. (Barnett v. Terry, 42 Ga. 83.) Where the seller ships goods or other articles to a purchas er ordered to be sent to him, who receives the same, paying freight and cartage thereon, and on examination finds that the goods or articles sent are not according to order, and he at once gives notice to the seller of this fact, and that he holds the same subject to his direction, the party shipping is bound for all the freight and cartage paid out. (Rucker v. Donovan, 13 Kas. 251.)
III. It is urged that the defendant is not entitled under the allegations of the answer to recoup damages, and that therefore the fourth count is fatally defective. It appears from the answer, that the plaintiffs promised and agreed to sell and deliver to the defendant, at Salina, within thirty days after March 13, 1882, 4,000 pounds of pure white-lead paint, and that the defendant agreed to pay therefor the sum of $220. It further appears that the plaintiffs wholly refused and neglected to comply with the contract, and that at the time when the paint should have been delivered it was worth at Salina 6J cents per pound. The attempt to impose upon the defendant adulterated white lead in place of the article contracted for was no compliance with the agreement, and defendant is entitled to recover the damage she has sustained by the breach of the contract. The case of Hunter v. Lee, 11 Kas. 292, is not applicable here. In that case there was a contract to deliver certain specific cattle. The plaintiff was ready to deliver those cattle, hence he was not in default. By reason of the falsity of his representations he could not compel the defendant to receive the cattle, nor recover damages for his refusal. Here, the contract was to deliver a certain number of pounds of paint, of a given quality. The particular kegs delivered were not those contracted for, and the vendor did not deliver paint of the quality called for by the contract.
The ruling and 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.:
Action upon a forfeited recognizance. Upon the trial, the state introduced in evidence the original complaint and warrant with the return thereon, in the case of The State of Kansas against John A. Terrell; the transcript of the magistrate’s docket showing an examination on the 15th day of September, 1879, at the close of which it was adjudged that said Terrell give a bond in the sum of $300 for his appearance at the next term of the district court, to answer the charge of grand larceny; the information filed against Terrell for the alleged offense, and the record of the forfeiture of the recognizance sued on. The transcript contained no note of the filing or approval of the bond, but the state proved by parol by the justice of the peace that he released Terrell upon the delivery to him of the bond. The justice also testified that the preliminary examination of Terrell ended late in the evening; that Terrell was about sixteen years old; that the parties present were his brothers, father and mother, James J. Jones and the officers; that after the examination, Terrell went away with his father; that he allowed Terrell to go away with his father without taking any bond or issuing any 'mittimus, merely upon the word of his father and by the desire and consent of the constable, promising that he would release him upon his giving a good bond; that the bond sued on was made out after the preliminary examination; that C. A. Terrell signed it that evening, and took the paper home with him; that the bond was indorsed approved by the justice on the 16th day of September, 1879, and was received by the justice from two to five days after the preliminary examination ; that the defendant was not then in the personal custody of the justice, nor in the custody of any officer, and that the justice had not seen the defendant since the preliminary examination; that when he received and approved the bond he had no personal knowledge of the whereabouts of Terrell. It was also disclosed in the evidence that on the evening of the preliminary examination C. A. Terrell executed and delivered to the justice another paper in the form of a bond, but this bond was not accepted or approved by the justice.
The defendants demurred to the evidence on the ground that no cause of action was proved. The court sustained the demurrer, discharged the jury, and rendered judgment in favor of the defendants for costs. The state brings the case here.
It is contended in support of the demurrer, that the evidence established that at the time of the execution of the bond, John A. Terrell was not legally in custody; that he had been discharged from two to five days previously thereto, and therefore was not discharged or released by reason of the giving of the recognizance; hence, that the justice had no jurisdiction or authority to accept or approve the recognizance, and that it was void and without consideration. We think otherwise. John A. Terrell, prior to the execution of the recognizance sued on, was not released or discharged by the justice or the officer. The first bond or paper left with the justice was never accepted or approved by him, and he lost no jurisdiction on account of it. The conduct of the justice in permitting Terrell to go away with his father after the examination was irregular, as it was his duty upon the conclusion of the examination when no bail was offered, to have issued a warrant of commitment and indorsed thereon the sum in which bail was required; but his failure to issue the warrant of commitment did not oust him of jurisdiction or authority to accept the bond. His permission for the defendant to go with his father did not release or discharge him, and' when the recognizance in controversy was accepted and approved, it was so accepted and approved as if John A.- Terrell was in fact in manual custody, By the understanding of the parties, he was, until giving the recognizance, under the control and order of the justice, and therefore while not in the manual custody of an officer, was technically in the custody of the law. The father had the charge and control of him, with the consent of the justice and constable. After the recognizance had been approved and filed, if the sureties thereon continued responsible, John A. Terrell could not have been rearrested upon any warrant of commitment issued by the justice,.because the latter had adopted the recognizance taken,.and let the.accused to bail.on the faith of it,, Therefore, by reason of the giving of the recognizance, the defendant was. discharged from arrest and custody, and we are bound to regard the recognizance good. (Cr. Code, § 154.)
The judgment of the district court 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.:
This was an action brought by defendant in error, plaintiff below, to restrain the collection of certain taxes, levied for the payment of court-house bonds. A temporary injunction»was issued. Defendants moved to set aside the injunction, and also demurred to plaintiff’s petition. Both motion and demurrer were overruled, and without waiting for final adjudication, plaintiffs in error bring the case here for review. The facts-, so far as disclosed by the record, are these: In 1873, the township of Council Grove issued $15,000 in bonds for the purpose of building a court house, which when built was donated to the county. The purpose of this was to secure the continuance of the county seat at Council Grove, and to prevent its removal to some other place in the county. In 1874, Valley township was organized, and all of plaintiff's lands lie in such township; and the question presented is, whether his lands are liable to taxation for the payment of said bonds. Plaintiff claims they are not, and for these reasons: First, because said issue (of bonds was ultra vires, and created no obligation against Council Grove township; second, because, even if the township had power to issue bonds for that purpose, the proceedings were defective, and so defective as to create no valid obligation against the township; third, because, as to part of his lands at least, they never were within the limits of Council Grove township. Upon the showing made in the record, the last reason given is well founded in fact and is sufficient. The facts are these: By the laws of 1857, page 42, the boundaries of.the county of Morris, then called Wise, were defined. By the act of the commissioners of Morris county, March 7, 1860, Council Grove township was organized. ’ Its .eastern boundary was the county line so named in the order organizing the township. In 1864, by chapter 22 of the laws of that year, the eastern boundary of Morris county was extended two miles. In 1874, by act of the county commissioners of Morris county, "Valley township was organized, and embraced within its limits a portion of the land of the old township of Council Grove, and also the two-mile strip added to the county in 1864. A portion of plaintiff's land was within this two-mile strip added in 1864, and another portion was within that part of "Valley township which had theretofore been a part of Council- Grove township. The claim of the defendants is, that by the act of 1864 the two-mile strip became not only a part of Morris county, but also a part of Council Grove township in that county. Nothing appears in the record to justify this claim, further than the legislative act itself. Counsel for plaintiff challenge the validity of this legislative act. We shall assume it to be valid; but assuming it to be valid, iff the absence of any further action by the commissioners of Morris county, and in the absence of any action or acquiescence on the part of the inhabitants of this two-mile strip, it cannot be adjudged that it ever became a part of Council Grove township. By the proceedings of the county board of 1860, the boundaries of Council Grove township were fixed and determined, and just as fully and completely as though measurement and distance had been prescribed. Subsequent legislative change in the boundaries of the county in no manner disturbed the township. Addition thereby made to the county territory simply placed so much territory in the county for organization into new townships by the commissioners, or for addition by them to the territory of already-existing townships. Enlarging the county boundary did not ipso facto enlarge the township boundary. No action of the county commissioners is shown; nothing on the part of the inhabitants of the two-mile strip tending to show that they recognized themselves as-a part of Council Grove township; nothing to show an estoppel against their insisting they never were a part of such township. Upon such a showing, the court might properly adjudge that this two-mile strip was never a jiart of Council Grove township, and therefore never liable for any of its indebtedness. This, upon preliminary inquiry, was sufficient to justify the overruling of the demurrer, and also the denial of the motion to dissolve the injunction. ' In this view of the case, its action was right; and here we stop. Other questions we decline to decide, and for these reasons: On the final trial, further facts may be shown, which will compel an adjudication that this two-mile strip was in fact part of Council Grove township, or that the inhabitants of such township so acted as now to estop them from denying they were a part of such township. Again, it appears that an action was commenced in the United States court against such township upon coupons of said bonds, and judgment recovered. The full proceedings of such actions are not disclosed. There is an intimation in the record that the validity of the bonds was Challenged, and their validity adjudged by a divided court, but in the absence of a full record, we cannot say how far such judgment concludes Council Grove township. Ordinarily, absolute rights will not be adjudicated upon preliminary proceedings. The courts will wait until a final hearing and full disclosure of all the facts, before absolutely determining the rights of respective parties. Obviously, on the final hearing, these questions may arise, one or more of which must be determined before any final adjudication of the rights of the parties is made: First, did this two-mile strip ever become by the action of the county commissioners or the conduct and acquiescence of the inhabitants thereof, de jure or de facto part of Council Grove township? Second, had Council Grove township power to issue bonds of this description ? Third, if it had power to issue such bonds, were the proceedings so irregular and defective as to invalidate the bonds which were then issued? Fourth, was the adjudication in theUnited States court such as to conclude Council Grove township as to the validity of those bonds? Fifth, if that judgment concludes Council Grove township as to the validity of those bonds, can the owner of any real estate within the limits of such township at the date of issue of such bonds question their validity? All of these questions may be important, and some of them are serious and difficult. We prefer not to determine them until there has been a final adjudication in the district court, and until all the facts are fully presented and determined. For the reasons heretofore indicated, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action originally brought by attachment, before a justice of the peace, by defendant in error, against plaintiff in error, for the collection of rent due on farming land, and for labor and goods sold and delivered, amounting in all to $150. The plaintiff in error filed an offset of $181. The justice of the peace before whom the action was brought, being sick, and unable to attend to business at the time set for the trial, at his request and by consent of parties the action was tried before another justice, who, after hearing the testimony of witnesses and arguments of counsel, sustained the attachment, and awarded the defendant in error a judgment of $62.60 and costs of suit. The trial was commenced October 3, 1882, and continued by consent from time to time to the 16th of October, 1882; and by consent of parties the justice then took the case under advisement till the 19th of October, 1882, when he rendered his judgment. The decision was rendered and announced on the said 19th of October, but the clerical work of entering it on the docket was not done until the 24th of October following, on account of the continued sickness and incapacity of one of the justices, and the press of other official business of the other. Subsequently, a petition in error was-filed in the district court of Shawnee county by plaintiff in error, to reverse, the judgment of the justice of the peace; and at the January term of that court for 1883, the judgment of the justice was affirmed, with costs.
’ It is assigned as error, that while a landlord has a lien on the crops for rent, the statute does not embrace the costs. Therefore that it was erroneous to order the attached property to be sold for costs.
Sec. 24, ch. 55, Comp. Laws of 1879, reads:
. “Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may bo enforced •by action, and attachment therein, as hereinafter provided.”
Sec. 28 of the said ch. 55 is as follows:
“ In an action to enforce a lien on crops for rent of farming lands, the affidavit for an attachment shall state that there is due from the defendant to the plaintiff a certain sum, naming it, for- rent of farming lands, describing the same, and that plaintiff claims a lien on the crop made on such land. Upon making and filing such affidavit and executing an undertaking as is prescribed in the preceding section, an order of attachment shall issue as in other cases, and shall be levied upon such crop, or so much thereof as may be necessary; and all other proceedings in such attachment shall be the same as in other actions.”
Sec. 222 of the code, relating to proceedings upon attachments, prescribes:
.“If judgment be rendered for the plaintiff, it shall be satisfied as follows: so much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment,- shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on .by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee,' shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property or its proceeds shall be returned to the defendant.”
As the proceedings to enforce the lien for rent by action and attachment are the same as in other actions of attachment, the costs followed the judgment, and no error was committed in ordering the proceeds of the attached property to be applied to satisfy the costs as well as the judgment. It is claimed by plaintiff in error that as the judgment was not actually entered of record until the 24th day of October, 1882, more than four days after the close of the trial, the judgment is erroneous, and reversible for irregularity and non-compliance with the statute. Stewart v. Waite, 19 Kas. 218, is cited as decisive of this point. That case is not applicable, because there the judgment was both rendered and entered one day later than the fourth day after the day on which the cause had been tried by the justice. While “ render” and “entered” are both used in §115 of the justices act, the only construction that obviates all difficulties is to interpret the word “entered” as used therein in the sense of “rendered.” When the judgment is formed in the mind of the justice and then publicly announced by him, it is “rendered.” In a literal sense, the writing-up of the judgment of the docket is “entering” it, but the object of the statute is to deny to the justice discretion to postpone judgment beyond the time prescribed therein; and in our opinion the forming of the judgment in the mind of the justice, and the public announcement thereof within the time prescribed, comply with the legislative intent of the law, and satisfy the object thereof. This construction is supported by the connection in which the words “render’? and “entered” are used in the various clauses of § 115; by the general rules controlling the rendition of judgments in all the courts; by the universal practice in justices courts, of first rendering the judgment and then entering or writing it in full on the docket on some day subsequent thereto, as soon as the engagements of the officer will permit.
In the case at bar, the trial was ended October 16, 1882, and taken under advisement by consent of parties, until October 19,1882, at 1 o’clock p. m., and on October 19, 1882, at the hour specified, the judgment was rendered. The fact that the clerical work of entering it on the docket was not done until the 24th of October, 1882, does not make the judgment erroneous or void. Sec. 115, ch. 81, of Comp. Laws of 1879, was substantially complied with, as the judgment was rendered by the fourth day after the close of the trial, both days inclusive.
Other questions are presented in the briefs, but we have already taken more time with this case than it is entitled to, as it appears from the record that the bill of exceptions was not signed within ten days from the day on which judgment was rendered. (Comp. Laws of 1879, ch. 81, §112ct.) Therefore there is no sufficient transcript before us to demand a consideration of the merits of the matters preserved in the bill of exceptions.
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 was an action brought by N. J. Swayze against School District No. 17, Chase county, Kansas, to recover on the following instrument in writing, to wit:
“No. 74. Elk, Kansas, May 31, 1879.
Treasurer of School District No. 17, County of Chase, Kansas: Pay to N. J. Swayze the sum of forty-seven dollars, for school apparatus, out of any funds in your possession, raised or appropriated for such purpose.
(Signed) W. G. Hunnewell, District Clerk.
(Countersigned) J. G. Johnson, Director.”
And the following is a copy of the indorsement upon the foregoing order:
“N. J. Swayze. ¡Sept. 26th, 1879, presented for payment by J. S. Doolittle, [to] treasurer of Chase county. I hereby refuse to pay within order.— D. May, Treasurer Dis. No. 17.”
A'judgment was rendered in the court below in favor of the plaintiff and against the defendant for the amount claimed, and the defendant, as plaintiff in error, now complains of such judgment. The alleged errors are principally with reference to instructions given by the court to the jury, and instructions refused. The court below instructed the jury, among other things, that the instrument sued on was prima facie valid and binding upon the school district, and that it alone made out a prima facie case in favor of the plaintiff and against the school district. The court also gave .the following instructions, among others, to wit:
“7. Where an order given by and signed by the director and clerk of a school district shows upon its face that it was given for school apparatus, the law presumes that it was given for a good consideration and was lawfully issued, and the burden would be on the district in such a case to show any facts overcoming such presumption, and it would not be sufficient in such a ease to merely show that the district did not get and not receive such apparatus, as they may have contracted to pay in advance, or the property may have been tendered and left for them.”
“9. If, after the order sued on was issued and delivered to the plaintiff, the school district at a meeting learned that the old order had been surrendered and a new one given, and such meeting with such knowledge took no steps in the way of disapproving such action and in the way of tendering back the old warrant to the plaintiff, then and in such case the jury may find, if the evidence warrants it, that there was a ratification by the meeting of the action of the board which would place the order in the same situation as though previously authorized.”
The court refused to give the following instructions, to wit:
“1. If you find that a warrant had been given in the first' place to some person other than the plaintiff, for a mathematical chart for said school district, and that that other person assigned it to the plaintiff, that warrant was void and without consideration, for the district had no legal authority to buy and pay for such chart out of the district money.
“ 2. And in such case, if the order sued on was given in lieu' of the first-named one, it was equally void and without consideration.”
It appears from the evidence that about the fore part of the year 1878, the school board of the present school district issued an order on their treasurer to some person, for the sum of forty-seven dollars. This “some person” assigned the order to the present plaintiff, N. J. Swayze. The school district failed to pay this order, and afterward the director and clerk in lieu thereof issued the order now sued on, each signing the same at a separate time and place. One witness, S. N. Wood, testified on the trial that “ at a regular meeting of the voters of the school district, held after this new order was given, the action of the clerk and director in giving such order was ratified and approved.” The original order was probably given for a mathematical chart, though whether such was the consideration for the original order is not quite clear. There was some evidence introduced tending to show that the chart was never delivered to the district, and the only evidence introduced tending to show that it was delivered was the action of the officers of the district in issuing said orders and the action of the voters of the district in ratifying and approving the same. There was no evidence introduced tending to show that the chart was not tendered to the district, and there was no evidence introduced tending to show when the chart was to be delivered. Upon the evidence in the case and the instructions of the court below, the plaintiff in error, defendant below, raises the following questions: First, was the order sued on prima facie valid and binding upon the district? Second, included in the foregoing question is this other question: Had the school district power in 1878 to purchase in any manner school apparatus of any kind for the district? Third, and included in the first question is this further question : If the school district had power, under any circumstances and in any mode, to purchase school apparatus of any kind, then does the order signed by the school-district director and the school-district clerk prove prima facie that the apparatus purchased was of that kind of apparatus which the school district had power to purchase, and that it was purchased in the mode authorized by statute? Fourth, had the school district power in 1878 to purchase a mathematical chart for the district? Fifth, and was such chart purchased in the manner authorized by statute ? vSixth, •was the order sued on issued in the manner provided by statute ? Seventh, and if there were any irregularities intervening from the time of purchasing said chart down to the time of issuing the second order, did the school district ratify and approve what had been irregularly done, so as to make the order sued on valid and binding upon the school district?
The school order sued on seems to have been drawn up in proper form; and §7, article 4, of the school law of 1876, {.ch. 122, Laws of 1876; ch. 92, Laws of 1879,) provides as follows: 1
“Sec. 7. The clerk of the district shall draw orders on the treasurer of the district for moneys in the hands of such treasurer, which have been apportioned to or raised by the district to be applied to the payment of teachers’ wages, and apply such money to the payment of the wages of such teachers as shall have been employed by the district board; and said clerk shall draw orders on the said treasurer for moneys in the hands of such treasurer, to be disbursed for any other purpose ordered by a district meeting or by the district board, agreeably to the provisions of this act.”
And §4 of the same article provides as follows:
“Sec. 4. The director of each district shall preside at all district meetings, and shall sign all orders drawn by the clerk, authorized by a district meeting or by the district board, upon the treasurer of the district, for moneys collected or received by him to be disbursed therein.”
From 1868 down to 1876, a school district impliedly had the power to purchase and “ to furnish a school house with blackboards, outline maps, and apparatus necessary for illustrating the principles of science.” (Gen. Stat. 1868, ch. 92, art. 3, §19, subdiv. 8.) But in 1876, when all the school laws of the state were revised, this provision was left out, and whether it was repealed or not* may be questioned. Counsel for both parties in this case seem to admit that it was repealed; and counsel for plaintiff in error, defendant below, make a strong and able argument to show that it was repealed. It was not, however, repealed expressly; but it is argued by counsel that it was repealed impliedly, although it .is admitted by them that repeals by implication are generally not favored. It is claimed to be repealed, principally upon the ground that the act of 1876, with §11, article 3, thereof, is a complete substitute not only for said provision, but for all previous laws upon the general subject of schools. Now supposing that said provision was repealed by the act of 1876,' then was there any power given by such last-mentioned act to school districts, to purchase in any manner school apparatus of any kind? Section 22, article 4, of the act of 1876, provides among other things that the district board shall “appoint some suitable person to act as librarian, and to take charge of the school apparatus belonging to the district.” Section 27 of the same article provides that the district board shall visit the schools, and among other things inquire into matters touching the school “ apparatus,” etc.; and § 28 of the same article also seems to contemplate that each school district shall have “school apparatus.” These sections all use the word “apparatus,” along with some other qualifying words. There is no power, however, given by the school laws of 1876 to school districts, to purchase in any manner apparatus of any kind, unless such power is given by virtue of the provisions of §11, article 3, and § 25, article 4, of such school laws, which provide, among other things, for the voting of taxes for and the purchasing of “ appendages.” Said §11 provides, among other things, that a tax shall be annually voted to build, hire or purchase a school house, a,nd “to keep in repair and furnish the same with the necessary fuel and appendages and said §25 provides, among other things, that “the district hoard shall provide the necessary appendages for the school house during the time a school is taught therein.”
Now it is certain that all kinds of school apparatus are not’included among the articles properly denominated “appendages;” but we think it is equally certain that some kinds of school apparatus may be denominated “ appendages; ” for instance, we would think that backboards, outline maps and mathematical charts, to be hung upon the walls of the school house and to remain there permanently for the purpose of illustrating such lessons in science, history or geography as might be taught in the schools, might properly be denominated both “school apparatus” and “appendages.” A mathematical chart might.be hung upon the walls of the school house and become an appendage; and it might also be used for the purpose of illustrating the science of mathematics, and thereby become a part of the apparatus used by the school. If this is correct, then the school .district would have power, under §11, art. 3 of the school laws of 1876, to vote a tax to purchase a mathematical chart; and the school board, under § 25, art. 4 of such school laws, would have power to purchase the same, and the school-district director and clerk would have power under said §§ 4 and 7, article 4 of said laws, to issue an order on the treasurer to pay for such chart; and all this would be done upon the theory that such chart would be a part of the appendages and apparatus of the school district; and such an order so drawn we think would be prima facie valid and binding upon the district. It is generally presumed, in the absence of proof to the contrary, that all officers, and indeed all persons, do their duty. In the absence of proof to the contrary, it must be presumed that the director and the 'clerk of School District No. 17 simply did their duty in drawing and issuing the order sued on in the present case. In the absence of proof to the contrary, it must be presumed that the electors of the district at every annual meeting voted all the- taxes required by law to be voted at such meetings, and that the school board purchased some kind of apparatus which was necessary and proper for the school district to have, and some kind of apparatus which it was legal for the board to purchase, and that the order sued on was given in payment for such apparatus. The evidence in controversy, outside of the order itself, tends -to show that the apparatus for which it was given was a mathematical chart. Now it is possible, and even probable, that this mathematical chart was in fact worthless; but as there was no evidence showing that it was worthless, it must be presumed that it had some value, and that it 'was worth the amount which the school board agreed to pay for it. If there were any irregularities in the drawing of the order sued on, we would still think that the order would not be invalid, for it would seem that the order was ratified and approved by the school district, at a regular school-district meeting.
Under the circumstances of this case, we cannot say that any material error was committed by the court below, and therefore its judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally brought by J. B. Lafeyth against Solomon Evans, before A. J. Smith, a justice of the peace of Johnson county, on a promissory note for $56.98. The defendant answered as follows:
“J. B. Lafeyth, Plaintiff, v. Sol. Evans, Defendant.— Before A. J. Smith, Justice of the Peace, city of Olathe, Johnson county, Kansas. — And now comes the defendant in the above-entitled cause, and for his amended answer to plaintiff’s bill of particulars herein, denies that he executed the note sued on in this cause, or that he is indebted to said plaintiff in any amount thereon.
“ 2. Defendant, further answering, says that he did, on the day of the date of the note in suit, execute and deliver to plaintiff a note for the sum of forty-six dollars and ninety-eight cents, and that said note and all interest thereon have long since been paid in full.
“ 3. That said note in suit, as well also as the one for said $46.98, heretofore paid to plaintiff by defendant, is and was for usurious interest, and void for want of consideration.
G. & P., Attys. for Defendant.
“Sol. Evans, defendant in the foregoing cause, being sworn, on his oath states that the matters and facts,as set forth in this answer are true. Sol. Evans.
“Subscribed in my presence and sworn to before me, this Feb. 21, 1882. A. J. Smith, J. P.”
Afterward, the case was taken to the district court, where it was tried before the court and a jury, which trial resulted in a verdict and judgment in favor of the plaintiff and against the defendant for $35, besides costs. And the defendant, as plaintiff in error, brings the case to this court and asks for a reversal of such judgment. He first makes the point that the verdict is not sustained by sufficient evidence; but in this we think he is mistaken, or at least the evidence is not so utterly insufficient as to authorize this court to reverse the judgment of the court below, and to set aside the verdict of the jury because of any insufficiency of the evidence. This court never retries a case upon contradictory and conflicting evidence; but in all such cases, if there is no other reason for reversing the decision of the trial court, the supreme court will permit the decision of the trial court to stand.
The plaintiff in error, defendant below, also complains of the following instruction, given by the court to the jury:
“3. The defendant sets up in his answer that on May 7, 1880, he executed a note to the plaintiff for $46.98, and further charges and alleges that the said note in suit, as well as the one for said $46.98 heretofore paid to plaintiff by defendant, is and was for usurious interest, and void for want of consideration. The defendant further denies that he exe cuted or signed the note on which this suit is brought. These allegations in the answer, apparently inconsistent in some respects, the jury may take into consideration with the evidence submitted on the trial, in determining whether or'not the defendant executed the note in suit for the sum of $56.98. The burden of proof is on the defendant to satisfy you by a preponderance of the evidence as to all the affirmative allegations set up in his answer.”
The plaintiff in error complains especially of the words “apparently inconsistent,” used in the foregoing instruction. We do not under the circumstances think that the instruction is erroneous or misleading. The language of the instruction seems to be well guarded. Besides, if counsel do not desire that the jury should take into consideration apparently inconsistent allegations in their pleadings, they should not make such allegations.
The plaintiff in error, defendant below, asked the court to give the following instruction to the jury, to wit:
“1. If you find from the evidence that the note sued on was given wholly for usurious interest, then I charge you that there can be no recovery thereon.”
The court refused to give this instruction, and gave the following instruction in its place:
“4. If the jury find from the evidence that defendant did execute the note on which suit is brought, and further find from the evidence that the consideration in said note was made up in whole or in part of usurious or unlawful interest, then the amount of unlawful interest shall be deemed and taken to be payments made on account of the principal and 12 per cent, interest per annum.
“ The legal rate of interest in this state on contract shall not exceed 12 per cent, per annum, and all sums in excess of that rate are held usurious and unlawful, and whatever may be in excess of the rate named shall be deemed and taken to be payments made on account of the principal and 12 per cent, interest per ánnum.”
We think the instruction given by the trial court fairly covered all that was asked for by the defendant below; and the instruction given by the court was much more appropriate, under the facts of the case, than was the one asked for by the defendant below. It can hardly be said that any of the evidence tended to prove “that the note sued on was given wholly for usurious interest;” and therefore the instruction asked for by the defendant was not proper, or at least was not embodied in appropriate language.
After considering all the questions in the case, as presented' by counsel for plaintiff in error, we are constrained to say that we do not think that the court below committed any material error; and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Challiss brought suit before a justice of the peace of Atchison county, to recover from Wagstaff $300 on account of rent. The defendant filed no answer or bill of particulars, and none was demanded by plaintiff. Upon the trial, judgment was rendered for the defendant. The case was then taken by the plaintiff to the district court on appeal, and was there tried at the February term, 1882. There was no new or amended bill of particulars filed by the plaintiff in the district court, and no pleading of any kind filed by the defendant. After the plaintiff had introduced evidence tending to establish his claim as set forth in the bill of particulars, the defendant offered to introduce evidence tend-' ing to establish a set-off and a counterclaim, and thereupon the plaintiff objected on the ground that the defendant could not prove a set-off or counterclaim, because he had not filed any bill of particulars, which objection was by the court sustained. This ruling is now complained of, and very properly so.
See. 71, ch. 81, Comp. Laws Í879, reads:
“In all cases before a justice, the plaintiff, his agent or attorney, shall file with such justice a bill of particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of particulars he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in. said bills.”
It is insisted that the fair construction given to this section must be, that when a defendant gives notice to the plaintiff that he has a set-off, the plaintiff may require the defendant to file the same, and thus have all their accounts settled in that action; and that where a defendant is silent until the plaintiff has rested his case, the defendant cannot offer evidence as to any set-off or counterclaim he may have. The decisions of this court are to the contrary. If a plaintiff, in an action before a justice of the peace, desires to know in advance whether a defendant claims a set-off and the items thereof, the defendant, if required by him, shall file a bill of particulars, not otherwise. None is required by said § 71, before the justice, unless demanded by the plaintiff. (German v. Ritchie, 9 Kas. 106.) If a plaintiff does not require the defendant to file any bill of particulars or other pleading before the justice, such'defendant may prove on the hearing before the justice any defense which he may have, without any pleadings whatever. On appeal to the district court, the parties losé no rights and gain none. Each party, without filing new pleadings, may prove any cause of action or defense which he might have proved before the justice, and each may introduce any evidence which he might have introduced before the justice. Therefore the defendant in the court below ought to have been permitted to introduce on the trial his' evidence to prove any set-off or. counterclaim which he had, just as well without an answer or other pleading as with it. (German v. Ritchie, supra; Sanford v. Shepard, 14 Kas. 228-231; Stanley v. Bank, 17 Kas. 592; Clarkson v. Spencer, 14 Kas. 399.)
The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
"Valentine, J.:
This' was an action brought in the name of the state of. Kansas, by the county attorney of Franklin county, against C. H. Estabrook, A. R. Hamilton and Mary S. Estabrook, upon a penal bond executed by the defendants under §2 of the prohibition act of 1881. The bond reads as follows:
“Know all men by these presents, that we, C. H. Estabrook as principal, A. R. Hamilton and Mary S. Estabrook as sureties, are held and firmly bound unto the state of Kansas in the sum of one thousand dollars, to the'payment of which sum, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators and assigns, firmly by these presents. Sealed with our seals, and dated this 21st day of June, 1881.
“The condition of this obligation is such, that whereas the said C. H. Estabrook has presented a petition to the probate judge of Franklin county, Kansas, praying that a permit be granted him to sell intoxicating liquors for medical, scientific, and mechanical purposes only, in the city of Ottawa, county of Franklin, state of Kansas: now if the said C. H. Estabrook shall neither use, sell, barter nor give away any of the liquors mentioned in section one of an act of the legislature of the state of Kansas entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,’ approved February 19, 1881, in violation of any of the provisions of said act, then this obligation to be null and void, else in full force and effect.
C. H. Estabrook. [Seal.]
A. R. Hamilton. [Seal.]
Mary S. Estabrook. [Seal.]”
That portion of the plaintiff’s petition which alleges the breach of the bond, and which prays for relief, reads as follows:
“4. That on the 8th day of February, 1882, the said C. H. Estabrook was arrested and brought before William H. Clark, a justice of the peace of the city of Ottawa, in said Franklin county, in a certain criminal action therein,'entitled The State of Kansas v. C. H. Estabrook, upon the complaint in writing of W. Littlefield, county attorney of said Franklin county, charging that the said C. H. Estabrook, on the — day January, 1882, at the county of Franklin, state of Kansas, in a certain two-story building, known as ‘ Estabrook’s drug store,’ situated upon lot No. 34, in block No. 58, in the city of Ottawa, being then and there a druggist, and having a permit to sell intoxicating liquors for medical, scientific and mechanical purposes only, did directly and indirectly sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors, in manner other than that provided by law, and for purposes other than medical, or scientific, or mechanical, and-without any authority of law.
“5. That the said C. H. Estabrook, on the 13th day of February, 1882, at one o’clock p. M., (the day and hour to which said criminal action had been postponed,) did then and there in said justice court personally appear, and having been duly arraigned and said criminal charge having been distinctly read to him, did then and there plead guilty thereto, which said plea was by said justice duly entered in his docket; whereupon he, said C. H. Estabrook, was then and there by said court adjudged to pay a fine to the state of Kansas, of $100 and the costs of the prosecution, taxed at $18.50, which said fine and costs were then and there paid by said C. H. Estabrook; and it was then and there by said justice’s court further ordered and adjudged that the said druggists’ permit, granted as aforesaid to the said C. H. Estabrook, be and stand forfeited to the state of Kansas, and the same was by the judgment of said court then and there declared null and void from that date.
“And it was then there further ordered and adjudged by said justice’s court that the bond above mentioned be forfeited to the state of Kansas, and the moneys in said bond mentioned were thereby declared and held to accrue to and belong to the state of Kansas.
“Wherefore, the said plaintiff prays judgment against said defendants for the said sum of $1,000, and the costs of this action.”
The defendants demurred to the plaintiff’s petition, upon the ground that it did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer; to which ruling the plaintiff, by its attorney, excepted. The state, by the county attorney, now brings the case to this court, and alleges that the court below erred in sustaining said demurrer.
The statutes necessary to be considered in deciding this case are as follows: Section 2 of the prohibition act of 1881 provides, among other things, that—
“He [the applicant for a druggists’ permit to sell intoxicating liquors] shall also file with such petition a good and sufficient bond to the state of Kansas, in the sum of twenty-five hundred dollars, conditioned that such applicant will neither use, sell, barter, nor give away any of the liquors mentioned in section 1 of this act, in violation of any of the provisions of this act; and on such violation, said bond shall thereby become forfeited. Such bond must be signed by the applicant, and by at least two of the persons signing such petition as sureties, and such sureties must jointly or severally justify, in writing, under oath, in the sum of five thousand dollars' over and above all their debts, legal exemptions and liabilities: Provided, That in cities, towns, and places of less than five thousand, population, said bond may be in the sum of one thousand dollars, and the sureties shall justify, as provided above, in the sum of two thousand dollars.”
Section 9 of said act provides that every person having a permit to sell intoxicating liquors, or to manufacture the same, who shall violate the act, shall be punished by fine or, imprisonment in the county jail, and shall forfeit his permit; and further provides as follows:
“In all cases where forfeitures are provided in this act, the court, in rendering judgment in the action, shall declare such forfeiture in fixing the punishment.”
And § 12 of said act provides, among other things, as follows:
“The county attorney shall bring suit upon all bonds forfeited under the provisions of this act, immediately upon the happening of such forfeiture, to recover the penalty thereof; and all moneys collected thereon shall be paid into the school fund of the proper county. The county attorney shall be allowed a fee of ten per cent, upon all moneys so collected by him, to be paid out of the same.”
Counsel for.defendants also refer us to § 12 of the bill of rights of the constitution of Kansas, which reads as follows:
“No person shall be transported from the state for any offense committed within the same, and no conviction in the state shall work a corruption of blood or forfeiture of estate.”
Counsel for defendants claim that if the penalty of the bond was strictly and literally enforced, it would work a “forfeiture of estate,” contrary to the above provsion of the constitution. With the view, however, that we have taken of this case, it will not be necessary for us at this time to construe this provision of the constitution. We have already had occasion, in the case of The State v. Pierce, 26 Kas. 777, to consider the nature and character of a druggists’ bond, given under § 2 of the prohibition act of 1881, and in that ease we held that the bond is “a civil contract, like other official bonds or quasi official bonds of those holding public offices or discharging public duties;” and that it is to be construed like other bonds of that character, and governed by the same principles of law. It is certainly not in form or in substance like a criminal recognizance; for a criminal recognizance is not only a contract like a druggists’ bond, but it is more than a contract — it is an obligation of record in a criminal action, and the acknowledgment of a preexisting debt, which cannot be claimed for a druggists’ bond, or for any mere penal bond. With reference to the form and character of recognizances, see The State v. Weatherwax, 12 Kas. 463, and Gay v. The State, 7 Kas. 394. Neither can the penalty of a druggists’ bond be considered as liquidated damages. Indeed, the bond must be considered just as other penal bonds are, and the penalty of the bond must be considered just the same as the penalty of all other penal bonds. It cannot be considered as a preexisting debt, as the amount stated in a recognizance is, nor as liquidated damages, as the amount stated in some contracts' is. In the case of The State v. Pierce, supra, it was held that as soou as the druggist violates any of the provisions of the prohibition act of 1881, he forfeits his bond, and an action immediately accrues thereon against him and his sureties; but what the damages would be, or what the proper amount of recovery would be, or what evidence would be necessary to sustain the action, was not decided. That it would not necessarily be the full amount of the penalty, we think is certain; for such would be contrary to all the decisions in England and America on penal bonds at the present day. It is true, that at common law, in an action of debt on a penal bond the judgment would be rendered for the full amount of the penalty; but the judgment would at the same time be rendered with an order that execution should issue only for the amount of the damages actually proved to have been sustained by reason of the breach of the bond. Such a rule is still followed in some of the states; so that while the judgment in such a case is technically rendered for the full amount of the penalty, it is practically rendered for only the loss by the obligee sustained by reason of the breach of the bond. In the most of the states the judgment is rendered in form as well as in fact, for only the loss sustained by the obligee by reason of the breach of the bond; and this, we think, is the proper rule and the proper practice in this state and for this case. When a" druggist violates his bond, the proper damage, we suppose, would be just the loss sustained by the state by reason of such breach; and as the law makes the acts which constitute a breach of the bond a criminal offense, and subjects the druggist to fine or imprisonment, we suppose the loss to the state would be just the amount of the costs and expenses necessarily incurred in the prosecution of the druggist for his violation of the law, together with the costs and expenses necessarily incurred in enforcing the judgment, whether the judgment be for a fine or for imprisonment, and also the fine itself, if that should be imposed upon the druggist. Possibly there might be other losses to the state, but we cannot now think of any others. The druggist in the present ease was prosecuted and a fine and costs were imposed upon him, but no judgment was rendered subjecting him to any imprisonment; and these costs and this fine the druggist immediately paid. Therefore we suppose that the loss to the state in the present case, by reason of the breach of the druggists’ bond, was just the amount of said fine and costs; but these the druggist has paid as aforesaid ; hence it would seem that the state could not after such payment maintain any action upon the druggists’ bond — no action for even nominal damages — for the damages arising upon the breach of the bond have been ascertained by a legal adjudication by a proper judicial determination, and have been paid. In some eases where a breach of an obligation is shown, but no actual damages are either pleaded or proved, nominal damages will be presumed and allowed; but, as before stated, there is no room in this case for allowing nominal damages, for actual damages have already been ascertained, paid and satisfied. The court in the case of the State v. Pieree, supra, seems to class this kind of bonds with official bonds or quasi official bonds: now suppose that the state treasurer should carelessly cause a loss to the state in, the sum of fifty dollars, could the state recover from him and his sureties on his official bond the sum of a million dollars? Or suppose that the county attorney should carelessly cause a loss to the state or to the public in the sum of ten cents, could the state recover from him or his sureties on his official bond a sum not less than one thousand dollars ? Official bonds, however, are governed in this respect by the same rules of law which govern other penal bonds. And in all classes of penal bonds, the obligee thereof may recover from the obligor for a breach thereof, just the amount of his loss, and no more. Not perceiving any good reason why a druggists’ bond in cases of this kind should be governed by rules of law different from those governing other penal bonds, we think the judgment of the court below should be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions presented upon this appeal are concerning the sufficiency of the information, and the rulings of the court in admitting and rejecting testimony. It is alleged that the information is fatally defective because it does not charge that the act was done “ of malice aforethought,” and because it does not conclude with the words, “that the defendant, him, the said George Miller, in manner and form aforesaid, feloniously did kill and murder.” The information alleges an unlawful, felonious, willful, deliberate and premeditated assault with a pistol, commonly called a revolver, charged with gunpowder and leaden bullets; a felonious, willful, deliberate and premeditated shooting and wounding; a felonious, willful, deliberate and premeditated intention to kill and murder; that the wounding was mortal, and that the wounded man instantly died of said mortal wounds. The crime is charged in the exact language of the statute, and it is not necessary to use the words, “ of malice aforethought,” for malice aforethought is nothing more than an unlawful or wicked intention, and the language used expresses this in as forcible terms as could have been employed. As the intent to kill is charged in the body of the information; it is unnecessary under the provisions of our statute to repeat it in the closing •clause thereof. Therefore as all the elements of the crime as defined in the statute are embraced in the information, it is sufficient. (The State v. White, 14 Kas. 538; Smith v. The State, 1 Kas. 365; Crim. Code, §§ 101 to 111, Comp. Laws 1879.)
Upon the trial, after the wife of defendant had testified, two witnesses, W. D. Deans and G. G. Cornell, gave evidence on the part of the state in a narrative form, of statements made by the wife on October 6, 1881, concerning the actions of the defendant and the deceased on the day deceased was killed. The defendant thereupon asked the court to withdraw from the jury all the evidence testified to by the witnesses regarding the statements of the wife, for the reason that no sufficient foundation had been laid for the introduction of this evidence, and that it was irrelevant and incompetent. The court overruled the motion, and the defendant excepted-to the ruling. As soon, however, as the witness Cornell had concluded his evidence, the court reconsidered its action, and of its own motion ruled out and took from the jury the evidence of the witness given in a narrative form. Under these circumstances the defendant has no material ground for complaint. He asked the evidence to be rejected, and although the court at first refused so to do, soon afterward it complied with the request, and the matters complained of were not submitted to the jury for their consideration. If any part of this evidence was competent, the defendant has no right to complain of the action of the court in withdrawing it from the jury, because such action was based upon his request.
Certain evidence of the witness Cornell, which was not excluded, tended to impeach the wife of defendant. Several of the questions propounded to the witness were leading, and it is insisted that thereby error was committed. The usual and proper rule as to impeachment is this: If it be intended to bring the credit of a witness into question, by proof that he has made statements out of court contrary to what hé has testified at the trial, his attention upon cross-examination is challenged tó a particular circumstance or action, and then asked whether or not he has said that which is intended to be proved; if a witness denies having made the contradictory statements inquired of, and a witness is called to prove that he did, the particular words must not be put to the impeaching witness, but the witness must be required to relate what has passed. (1 Greenl. on Ev., p. 514, note 1; Hallett v. Cousens, 2 M. & Rob. 238.) Technically, counsel for defendant was correct in his objection, but under the circumstances of the case the error was not sufficiently material to cause any reversal of the judgment. “This court will not reverse the judgment of a district court in a criminal action for merely allowing leading questions to be asked of witnesses, when there has not been such a manifest, abuse of discretion on the part of the trial' court as to make it apparent that the defendant has been prejudiced thereby.” (The State v. McAnulty, 26 Kas. 533.)
The other questions, concerning the admission and rejection of evidence, discussed in the briefs, are unimportant, and need no further mention.
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
Hokton, C. J.:
It is affirmed by the counsel of plaintiff in error, that the statute under which the bounty was claimed by the plaintiff below is unconstitutional, because it authorizes taxation in aid of a private object; because it is a delegation of legislative power; and because its title does not ■clearly express its subject. Counsel further affirms that the bounty proposition was never legally adopted by a vote of •the people of Marion county. In Comm’rs v. Hoch, 24 Kas. 778, it was decided that the growing of a. hedge is not a purely private purpose. Upon a re-argument of that cause, the question whether the statute was a delegation of legislative power was decided jn the negative. (Noffzigger v. McAllister, 12 Kas. 315; Keyes v. Snyder, 15 Kas. 143; Cooley’s Const. Lim. 116, 124; 17 Ohio St. 271.) Therefore, of the questions now presented, we need pass only upon the third and fourth.
The statute of 1867 is entitled “An act to encourage the growing of hedges and the building of stone fences.” The statute of 1871 is entitled “An act to amend section 2 of an ac^ endtled ‘An act encourage the growing of hedges/ &c.” Upon examination of the enrolled bill, it is apparent that the addition in the printed laws of 1871 of “&c.,” and also the parenthetical explanation “ published as part of chapter 40 of the general statutes of 1868,” are unauthorized insertions. Notwithstanding all of this, the objection to the title is technical — not substantial. The subject of the act is sufficiently expressed therein.
As there were five hundred and seventy-eight ballots cast at the township election in April, 1873, and as only one hundred and thirty-eight votes were cast at said election upon the bounty proposition, it is contended on the part of plaintiff in error that the bounty proposition failed, because it did not receive a majority of all the votes cast at the election. The statute provides:
“ That such bounty shall not be allowed in any county until the question has been decided, by a vote of the people,, whether they desire such bounty, or not: And provided further, That upon a petition being presented to the county commissioners of any county, signed by one-third of the legal voters of said county, as shown by the number of votes cast at the last general election, they shall, by proclamation, call an election, to be held at a general election for township or county officers, and shall submit to the electors the question to adopt or reject the bounty; and upon the ballots shall be written ‘ For the bounty/ or ‘Against the bounty.’ If a majority of the votes [cast] are for the bounty, they shall declare said law to be in full force and effect, and shall-state the day on which the same shall take effect.” (Laws of 1871, ch. 91, §1.)
Within the terms of the statute, we think the bounty proposition is to be declared adopted or rejected, according as it receives, or fails to receive, a majority of the votes cast for or against it. The votes cast for the t-own-ship officers at the election of April, 1873, are-not to be considered upon the bounty proposition. The electors of Marion county were invited by the- proclamation of the county commissioners to vote for or against the bounty. A majority of the votes cast upon that particular proposition were for the bounty. This result having been obtained, it was the duty of the county commissioners of the county to declare the act to encourage the growing of hedges to be in full force and effect in that county. The electors who were present at the polls, at the called election, and, while voting for township officers, did not vote upon the bounty proposition, are presumed to assent to the expressed will of tlié majority of those voting thereon. (County Seat of Linn County, 15 Kas. 500; Rex v. Foxcraft, 2 Burr, 1017; Gillespie v. Palmer, 20 Wis. 544; Cass v. Johnson County, 95 U. S. 369; Rld. Co. v. Davidson, 1 Snead, 638.)
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 was an action brought by L. C. Janes against Garrison Wilson, a road overseer in Haven township, Reno county, Kansas, to perpetually enjoin the defendant from opening a certain supposed public road across the plaintiff’s lands. The case was tried by the court, without a jury, and the court granted the perpetual injunction prayed for; and the defendant, as plaintiff in error, brings the case to this court for review.
Two principal questions were presented to the court below, to wit: First, Was said public road1 ever legally established by the board of county commissioners ? Second, And if it was so established, then was it so opened for public use as to prevent §1 of chapter 150 of the Laws of 1879, (Comp. Laws of 1879, p. 817, ¶ 5075,) from so operating as to vacate and annul that portion of the road which is located across the plaintiff’s premises? The first of these questions, the trial court decided in the affirmative, and the second in the negative : in other words, the trial court held that the road was legally established in July, 1873; but further held that it was never legally opened across the plaintiff’s premises, and therefore, that said >§ 1 of chapter 150 of the Laws of 1879 so operated as to vacate and annul that portion of the road which was located over the plaintiff’s land. It is the last portion of this decision of which the plaintiff in error (defendant below) now complains.
This is an equitable action; and as it is the plaintiff below, defendant in error, who invokes the aid of equity, we would naturally suppose, in the absence of proof to the contrary, that the plaintiff himself would not wish to see justice or equity defeated by the interposition of any unimportant technicalities or trivial irregularities, or of any other matters or things which would not reach to the ultimate rights of the parties, or which would preveat a decision of the case upon its real merits. We would naturally suppose that the plaintiff himself, who is the party who seeks equity, would desire to have a full, fair and complete trial of the case upon all the facts and circumstances of the case. Indeed, whoever might interpose unimportant technicalities or trivial irregularities to prevent either the district court or the supreme court from giving to both parties a full, fair and complete hearing of the entire case, or from rendering a decision doing full and complete justice and equity in the case, we would certainly not think that it would be the plaintiff. Whoever invokes equity should be willing that full and complete equity should be done; and this after a full, thorough and careful consideration of all the facts and circumstances of the entire case; but whether willing or unwilling, equity will not allow itself to be hedged in or hampered by unimportant technicalities or defeated by trivial irregularities, nor will it allow parties to win cases by quirks and quibbles. On the contrary, equity will take into consideration everything necessary for the purpose of duly administering equity and justice, and in its investigations it will not be controlled • by unimportant or immaterial matters, but will found its decisions upon the real essence and substance of things, and will finally render its judgment upon the real merits of the action. In the present case, before we proceed to the consideration of the merits of the ease we must dispose of some preliminary mattei’s.
The facts of the case, stated briefly, are substantially as follows: The plaintiff below filed his petition in the district court, praying for a perpetual injunction as above stated. The defendant answered, setting-up various matters in defense. In the fourth and fifth paragraphs of the defendant’s answer he stated, among other things, that the plaintiff’s land was owned by the Atchison; Topeka & Santa Fé railroad company at the time when the public road in controversy was established across the same; and that the railroad company consented to the establishment of such road; and that the plaintiff, when he purchased the premises from the railroad company, obtained the same at a reduced price on account of the establishment of such road; and ,that the road has been used as a public road by the traveling public for a period of over seven years without any objection from the owner of the premises. These paragraphs setting up these matters of defense the plaintiff objected to, and by motion and demurrer succeeded in having them stricken from the defendant’s answer. The case was then tried by the court, without a jury, and upon the pleadings and evidence the court announced what its decision would be; and the defendant then asked the court to make special findings of fact and of law, for the purpose that the same might be used in connection with the evidence in making a case for the supreme court. The court announced that it would comply with the defendant’s request; but that, as the term of the court was then about to close, and the court not having time to prepare such findings before the final adjournment, the judge would prepare the findings as soon as he could do so after- the adjournment, and that both parties could present to him such findings as they desired and he would consider the same at his home at Newton, and would return such of them as he deemed proper, duly signed. Counsel for both parties were present at the time and made no. objection, and it was believed by the court, and by the counsel for the defendant, that this was agreed to. The judge of the court, in an affidavit made by him, states, among other things, that “this was not objected to by the counsel for .the plaintiff, and was considered by the court as agreed to.” Special findings of fact and law were afterward prepared by the judge of the trial court, in accordance with this understanding, and were duly signed by him and handed to counsel for defendant. This of course was all done by the judge at chambers, and after the adjournment sine die of the court. Since that time the plaintiff and his counsel have persistently objected to the consideration of such findings, claiming that as they were not reduced to writing and signed by the judge before the final adjournment of the court, but were in fact reduced to writing and signed by him afterward, they are mere nullities, and cannot be considered in any court as having any validity. The defendant’s counsel, after receiving these findings and making a copy thereof, handed the original findings to the counsel for plaintiff, and the plaintiff’s counsel have never returned them to the defendant’s counsel or filed them in the office of the clerk of the district court, but retained them in their own possession, and they now object, and indeed have always objected, to any court taking any consideration of them; and this they do on the additional ground that they have never been filed in the office of the clerk of the district court. The defendant’s counsel made a case in due time for the supreme court, and in such case incorporated copies of these findings. At the time that this case was presented to the judge of the district court for settlement, counsel for the plaintiff, as well as counsel for the defendant, appeared, and counsel for the plaintiff suggested as an amendment to the case-made that these findings be stricken therefrom, and objected to the incorporation of the findings in the case-made, and this upon the ground, among others, that the findings had not been reduced to writing during the term of the court; and the suggestion and objection were argued before the judge by counsel for both parties, and the judge refused to strike out these findings, and took further time for the settlement and.signing of the case. Afterward, the judge settled and signed the case, and handed it to' counsel for the defendant. The judge had, inadvertently, omitted one important fact from the findings, and also from the case-made. The counsel for the defendant presented the case to one of the counsel for the plaintiff, and asked him to consent to the insertion of such fact; but counsel for plaintiff stated that he would not consent to anything. Counsel for the defendant then stated that he would return the case to the judge of the district court, and have the case amended by the insertion of such fact. Afterward, the counsel for the defendant -did return the case to the judge of the district court, and such fact was inserted in the case by such judge. Counsel for plaintiff now move to dismiss the case from this court, on the ground that the case has been “ materially altered” since it was first settled and signed by the judge of the district court. There were no other alterations or changes in the case-made than those above mentioned; and the counsel for defendant has filed in this court an affidavit of the judge of the district court stating among other things, that “the case-made and filed in the supreme court is the case-made as finally settled by the judge, and all changes made after its first signing were made by him.” After the case was settled and signed, and amended by the judge of the district court as aforesaid, counsel for defendant filed their petition in error and case-made in the supreme court; and this they did before the case-made had been filed in the office of the clerk of the district court, and before any attestation had been made thereto or placed thereon by such clerk. Afterward counsel for the defendant withdrew the case temporarily from the supreme court, with leave of one of the justices thereof, and filed it in the district court, where it was properly attested and_ authenticated by the clerk of the district court; and then counsel returned the case with such attestation and authentication to the supreme court. Counsel for the plaintiff below, defendant in error, now move to dismiss the case because it was not filed with the clerk of the district court before it was filed in the supreme court, and because it was not duly attested and authenticated by the clerk of the district court before it was filed in the supreme court. Upon this point see the case of Pierce v. Myers, 28 Kas. 364. Counsel for plaintiff below, defendant in error, also move to dismiss the case from this court, on the ground that the case-made does not show that plaintiff’s counsel were present at the time the case was settled and signed by the judge of the district court, or that they made any suggestion of amendments, or had any notice of the time fixed for the settling and signing of such case. The case was in fact presented to the judge of the district court at Newton, for the purpose of having it settled and signed; and as shown by proper evidence outside of the case-made, counsel for both parties were present, and plaintiff’s counsel suggested amendments and made objections as before stated, and argued the same before such judge. Upon this point see the case of Russell v. Anthony, 21 Kas. 450.
We shall now proceed to the consideration of the case upon its merits; but before doing so, we think it would be proper to state that the motions of the plaintiff below, defendant in error, to dismiss the petition in error and case-made from this court, will bé overruled.
In overruling these motions, however, we do not wish to be understood as deciding anything further than is really necessary to be decided under the circumstances. We do not wish to be understood as deciding that a judge of.the district court at chambers can make special- findings after the court has adjourned, unless, as in this case, a demand for such special findings was made at or before the time when the court regularly and properly made its findings; and unless there was an apparent, understanding at such time between the parties and the court that the judge might make such findings at chambers and in vacation. And we do not wish to be understood as deciding that a judge of the district court at chambers may change or alter a “case-made” for the supreme court after such “case-made” has passed away from his jurisdiction or control, or even after it has been filed in the office of the clerk of the district court for the clerk’s attestation and authentication. We would suggest, however, that it is not necessary that a “case-made” should contain only J J such matters and things as are otherwise made a part of the record of the case. Such is not the practice. Usually a case-made contains many things which are never in any other manner made a part of the record of the case. We do not wish to state all the reasons that might be given for overruling the said motions, for many of them we think are so manifestly obvious that a statement of them is wholly unnecessary.
As before stated, there are two principal, questions involved in this case: First, was the road in controversy legally established ? Second, was it legally opened ? The first of these questions the court below answered in the affirmative,. and the second in the negative, and all presumptions are in favor of the correctness of its decision upon both these questions. Counsel for defendant in error (plaintiff below) seem, however’, to argue the first question upon a different theory. We are not to treat the decision of the court below upon either of these questions as erroneous, unless the contrary is affirmatively shown; but must in fact consider both of these decisions as correct, unless the facts of the case clearly and affirmatively show the reverse to be true. For instance, if the court below has failed to state in detail and specifically all the facts necessary to affirmatively show the validity of the establishment of the road in question, we must not, as against the correctness of its decision, jump to the conclusion that the road was not legally established ; but, on the contrary, we should presume that the facts not specifically found, would, if they were stated in detail and specifically, show that the road was duly and legally established. There is certainly nothing in the present case that shows affirmatively that the road was not legally established ; and, indeed, we are inclined to think that the facts found by the court below show affirmatively and conclusively that the road was legally established; but, as before stated, all presumptions are in favor of the correctness of the decision of the court below, upon this as upon other questions. The road was established by the board of county commissioners of Reno county, in July, 1873, and from that time forward, for at least seven years, the road has been in legal contemplation “ a public highway.” (Gen. Stat. of 1868, ch. 89, § 6; Comp. Laws of 1879, ch. 89, § 6.)
The second question above mentioned is the most important question in the case; and upon this question, and this alone, the court below rendered its final judgment in the case, in favor of the plaintiff below and against the defendant below. The court found that although the road in question had been legally established, yet that it had never been legally opened, and therefore that it was vacated and annulled by virtue of the provisions of §1, chapter 150, Laws 1879, (Comp. Laws 1879, p. 817.) Of course all presumptions are in favor of the correctness of this decision, as .well as of the other decisions of the court below; but if it should be found from the detailed statement of the facts of the case, as found by the court below, that this decision was merely a conclusion of , law from the facts found by the “court below, and that such conclusion is erroneous, then the decision of the court below should be reversed. Otherwise, the decision should be affirmed. The facts as found by the court below, with reference to this question, are as follows :
"Tenth. That from the fall of 1872 there has been general travel across the premises described in plaintiff’s petition, in the general direction of the surveyed route of said road; that said line was the main line of travel from the southeast to the city of Hutchinson, and has been a well-defined and extensively-traveled road; that the route of said travel is generally the same as the surveyed line, and follows the same general course, and touches the said surveyed lines at several points, but deviates therefrom most of the distance across said plaintiff’s premises from six to fifteen rods; that there is a pond upon the said premises, impassable in wet weather, and here the said line of travel deviates furthest from said surveyed line; that the road overseers of the several districts through which said road runs have worked the same, and bridges have been erected, and. that one-half mile southeast from plaintiff’s premises there is a bridge on the said road that cost $200, and other, bridges, thereon between said premises and the city of Hutchinson; that the road overseer in the district in which said premises are situated has caused work to be done on said road, and in 1879 he did work on the surveyed line through the premises of plaintiff hereinbefore mentioned,,and the team of said plaintiff and the man in his employ worked thereon, without the knowledge of plaintiff, at the time the work was done, and worked out the taxes of the said plaintiff; that prior to the fall of 1877 the said premises were the property of the Atchison, Topeka & Santa Eé railroad company, and were up to said time unimproved and unbroken prairie land, and all plowing and improvements thereon have been done since the date of said purchase; that the said road is 17 miles in length, and, except on the premises 'of plaintiff, the route of travel was in general the same as the surveyed line; that A. H. Beagle was road overseer in 1879, and plowed across said premises except about 40 rods, to designate the line of said road, and failed to go further at the request of plaintiff not to plow through his cultivated land where oats were growing; that more than seven years had elapsed from the time of the making of the order of the board of county commissioners establishing said road to the time that plaintiff received notice that said road would be opened through his premises; that none of the papers in the case bore any dates of filing in the county clerk’s office, but that all of the papers, except the notices and proofs of publication and bond for costs, were found among the papers and records of the county clerk’s office; that there are regularly established highwáys on two sides of the premises owned by plaintiff; that the traveled road through the premises of plain-' tiff was a part of an old government road used in going from Wichita to Fort Zarah, and was so used prior to and at the time of the settlement of the county through which it now passes; that no attempt to open the surveyed road through the premises of plaintiff was ever made until in August, 1880, at which time notice was given by the overseer that the road would be opened on the 1st day of January, 1881, unless opened sooner by plaintiff.”
Perhaps it would here be proper to refer to the fact that the defendant set up in his answer that the railroad company had knowledge of the establishment of the road in question, and consented thereto, and afterward sold the land to the plaintiff at a reduced price because thereof, and that the plaintiff procured by motion and demurrer these matters to be stricken from the defendant’s answer. Said § 1, ch. 150, Laws of 1879, provides; among other things, as'follows:
“Section 1. That any county road, or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made, or the authority granted for opening the same, shall be, and the same is hereby vacated, and the authority granted for erecting the same is barred by lapse of time.”
Was said road ever legally opened? and what must be done in order that a public highway shall be considered as legally opened? Th'e statutes in effect provide that the road overseers, in their respective districts, shall vive 7 r 7 ° notice to such owners of lands, or their agents or guardians, as reside in the county and have cultivated and inclosed lands through which the highway is established, to open the highway through their .lands; and also provide that such road overseers, within their respective districts, shall remove all obstructions, and put the highway in such condition as to make it fit for public .travel. And this is all that the statutes require in order to open a public highway. No notice is required to be given to persons who do not reside within the county, or to persons who do not possess or own cultivated or inclosed lands through which the highway is established; and it is not necessary that the highway should be actually traveled; all that is in fact necessary, is that it should be put in a condition for public travel. If it were naturally in such a condition, that would be sufficient, without any work from the road overseer. Prom June 20, 1872, up to April 25, 1874, the notice above mentioned was required to be in writing. (Laws of 1872, ch. 175, § 5.) But since April 25, 1874, up to the present time, it has not been necessary that the notice should be in writing. (Laws of 1874, ch. 108, §§12, 34; Comp. Laws of 1879, ch. 89, §§12, 34.) Hence, from the time the road in controversy was established in 1873, up to some time after the time when the plaintiff purchased his land from the railroad company, which was in 1877, no notice of any kind, written or oral, was required to be given either to thp railroad company or to the plaintiff; for up to that time the land was vacant, unoccupied, uninclosed and uncultivated; and since that time, a verbal notice, and such notice as wás in fact given to the plaintiff by the road overseer, Beagle, in 1879, was sufficient; and 'this last-mentioned notice was given within less than seven, and probably within less than six years after the road was established. As before stated, the road was established in July, 1873, and this notice was given by the road over seer, Beagle, while oats were growing on the land, in 1879. A public highway might also be opened, without anything being done by the road overseers for that purpose. The people themselves along the line of the road might open it: or the public travel might at once take possession of the road and use it. And whenever a public road is traveled, it is in fact opened, although nothing may have ever been done by the road overseers for the purpose of opening it. No formal opening is ever required. It is true, it may be formally opened by the several road overseers along the line of the road, but it may also be informally opened by themselves or by others; or it may be opened in fact by the public travel taking possession of it and using ■ it. As before stated, no notice is ever required to be given where the land over which the road is .established is vacant and unoccupied; and no work is ever required to be performed where no work is needed. A road may be opened without either notice or work: travel alone upon such a road would be a sufficient opening of the same. And certainly, whenever a road is in fact used as a public highway by-the public, it cannot be considered as an “unopened” road within the meaning of §1, eh. 150, of the Laws of 1879. In the present case, the road was seventeen miles in length; it passed through several road districts; was worked and repaired by the several road overseers along the line of the road; and work was done even on the plaintiff's own premises. Bridges were built upon it, and a great amount of travel passed over the same; and there is nothing to show that the public at any time had the slightest intention of abandoning the road as a public highway. The court below in its findings states, among other things, “that the said road is seventeen miles in length, and, except on the premises of the plaintiff, the route of travel was in general the same as the surveyed line;” and the traveled road through the plaintiff's premises touches the surveyed line at several points, but deviates therefrom the most of the distance through the plaintiff’s premises from six to fifteen rods. There was a certain pond on the plaintiff's premises where the traveled road deviated the farthest from the surveyed line, but the road overseer in that district in less than seven years, and probably within less than six years from the time when the road was established, worked on the surveyed line where it passes through this pond. This it would seem was the only natural obstruction to travel on the plaintiff’s premises, and this was an insuperable obstruction only in wet weather, and this was repaired by the road overseer in 1879. The road overseer, Beagle, also, in 1879, and probably within six years after the road was originally established, attempted to open the road on the surveyed line all the way through the plaintiff’s premises; and he did so, except as to a distance of about forty rods, and refrained from opening the road this distance- at the request of the plaintiff, who then, in 1879, had oats growing on the premises along the surveyed line for that distance.^ The road overseer evidently refrained from opening the road for this short distance of forty rods solely for the purpose of giving the plaintiff an opportunity to save his crops, and to open the road himself on or prior to the first day of the next January, (road law of 1874, § 12;) and it was the legal duty of the'plaintiff to so open the road within that time, and he certainly cannot now claim that he has destroyed the road simply by procuring such leniency on the part of the road overseer, and then by failing to perform his legal duty in the premises.
Among other authorities we would cite the following cases as having some application to the present case: Stickel v. Stoddard, 28 Kas. 715; Peck v. Clark, 19 Ohio, 367; Lessee &c. v. Mehrenfeld, 8 Ohio St. 440; McClelland v. Miller, 28 Ohio St. 488; The State v. McGee, 40 Iowa, 595; The State v. K. C. St. J. & C. B. Rld. Co., 45 Iowa, 139.
We, think the road in the present case was legally opened. The judgment of the court below 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
Valentine, J.:
On May 11, 1877, in an action then pending in the district court of Clay county, ‘wherein Luther Hall, who was doing business in the name of L. Hall & Co., was plaintiff, and R. T. Carr, John S. Harris, J. M. Frank and G. Kuhnle were defendants, the plaintiff recovered a judgment against the defendants Carr and Harris as principals and Frank and Kuhnle as sureties, for the sum of $662.80. On June 22, 1877, Frank and Kuhnle paid the judgment, but did.not file any formal notice of payment or of a claim to contribution or repayment, as they might have done under §480 of the civil code; nor was any entry made by the clerk, on the margin of Nany book called the “docket,” as provided by said § 480. But at the time of such payment the following instrument, constituting a receipt and an assignment, was written upon the margin of the journal of said court, at the page whereon were recorded the proceedings in said case, to wit:
“Received, June 22,1877, of J. M. Frank and G. Kuhnle, of these defendants, the amount of said judgment. And in consideration thereof we do hereby assign, sell, transfer and set over the said judgment, to wit, the judgment in this cause in favor of L. Hall & Company, plaintiffs, against the said R. T. Carr, J. S. Harris, J. M. Frank and G. Kuhnle, defendants, to the said Frank and Kuhnle, who paid the same as such sureties.
“ Witness our hands, on the day first written. Costs paid.
L. Hall & Co.”
Luther Hall died in March, 1880. The said judgment was never revived. On November 15, 1881, an execution was issued upon said judgment, at the instance of Messrs. Anthony & Kellogg, who were the attorneys of record fqr Frank and Kuhnle. This execution was not fully executed. On February 8,1882, Messrs. Anthony & Kellogg, subscribing their names as “attorneys for plaintiff,” filed a precipe for an alias execution, which was issued and levied upon certain real estate in Clay county, Kansas; which real estate, prior to November 22, 1881, had been owned by John S. Harris, and subsequent thereto by the Kansas Central railroad, to which Harris conveyed it by warranty deed. The said real estate was sold under the alias execution.
At the May term, 1882, of the district court of Clay county, before the confirmation of such sale, J. S. Harris made his motion to set aside and vacate such execution and sale, upon the grounds therein set forth. The motion was overruled, and Harris excepted. The court allowed the sheriff to amend his return, correcting certain irregularities therein, and, upon the motion of Frank and Kuhnle, confirmed the sale, to which' Harris excepted. Harris then, as plaintiff in error, brought the case to this court, and he now asks for a reversal of the orders of the district court refusing to set aside the execution and sheriff’s sale, and confirming the sheriff’s sale, claiming that such orders were erroneous. The plaintiff in error, Harris, now claims that the said execution and sale were void, for two reasons:
“First, The judgment upon which the execution wás issued was dead, by reason of the death of the plaintiff therein, (subject, however, to resurrection in the manner prescribed by the code,) and while in that state no process could issue thereon.
“Second, Frank and Kuhnle were not entitled to the benefit of the judgment to enforce contribution aud payment. They could acquire control of it for such purpose only by following the provisions of § 480 of the code, which they did not.”
We shall consider these questions in their order.
I. We do not think that the judgment was dead, as the plaintiff in error claims. It was valid and in full force and effect when it was transferred by L. Hall & Co. to the present defendants in error, Frank and Kuhnle; and the subsequent, death of Hall, who had no possible interest in the judgment at the time of his death, could not destroy its force, or effect, or operation. It was still valid and operative in the hands of Hall’s assignees, Frank and Kuhnle, and they still had the right to enforce it, just the same as though Hall had continued to live. Besides, what good reason could there be for reviving the judgment in the name of,Hall’s administrator when the administrator could take no possible interest in the judgment? But suppose that Hall died with out leaving any assets to be administered upon: then for what purpose would an administrator be appointed? Would he be appointed for the mere purpose'of having the judg-' ment, then owned by Frank and Kuhnle, revived in his name, so that Frank and Kuhnle could enforce the same? Such a transaction would seem to be ridiculous and absurd. We do not think that the death of Hall after he assigned the judgment to Frank and Kuhnle could make any possible difference with respect to the rights of Frank and Kuhnle. They would still have the right to enforce the judgment; just the same as though Hall had lived.
II. Section 480, of'the civil code, reads as follows;
“When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and .when a judgment is against several, and is upon an obligation of one of them as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case the person so paying or contributing is entitled to the benefit of the judgment, to enforce contribution of repayment, if within ten days after his payment he file with the clerk of the court where the judgment was rendered notice of his payment and claim to contribution or repayment. Upon a filing of such notice the clerk shall make an entry thereof in the margin of the docket.” (Comp. Laws 1879, p. 666.)
Now while Frank and Kuhnle did not comply technically with § 480 of the civil code, we think they complied substantially with it. The transfer and assignment of the judgment were entered upon the journal of ° , ‘ . the court, where the judgment and other proceedings had in the case were recorded; and this assignment, although not a notice in form, was a notice in substance, and was a notice beyond all question that Frank and Kuhnle intended to enforce their judgment. The judgment, as above stated, was rendered against Carr and Harris as principals, and against Frank and Kuhnle as sureties only. And this assignment showed beyond all question that Prank and Kuhnle, the sureties, intended to enforce the judgment against Carr and Kuhnle, their principals. We think that this assignment is in effect as good a notice as though a formal notice had been filed with the clerk, and the clerk had entered the same upon the margin of the “docket.” The failure, however, to “make an entry thereof in the margin of the docket” was the failure of the clerk, and not the failure of Prank and Kuhnle; and therefore they should not be held responsible for such failure. Besides, said § 480 of the civil code was not enacted for the purpose of giving assignees of judgments a remedy as assignees. They have a remedy independent of such section, and could enforce their judgment if such section had never been enacted. Said section was really enacted for the benefit of sureties, and for the benefit of joint judgment debtors, without reference "to whether any assignment had been made or not; and was enacted for their benefit in cases where the judgment, or more than a proper share thereof, has been collected from some one or more of the sureties or joint judgment debtors; and this whether the collection was by a sale of the property of some one or more of such parties on execution, or was by a voluntary payment on the part of some one or more of such parties. Upon any view that we may take of this case, we think that Prank and Kuhnle have an unquestionable right to enforce the judgment as against Carr and Harris. Harris, however, is the only party complaining in this court.
We have now considered all the questions presented by counsel for plaintiff in error to- this court, and upon each of these questions we think the decision of the court below was correct; that is, we think that there was no necessity for any revivor of the judgment in the name of the legal representatives of Luther Hall, deceased, or otherwise. And we think that the sureties, Frank and Kuhnle, after obtaining an assignment of the judgment from the owner thereof, had a right to enforce the same, although they may not have literally, technically and formally complied with all the provisions of § 480 of the civil codé. Their rights are founded upon an aggregation of suretyship, payment, subrogation, assignment, and a substantial compliance with the statute.
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
Hoeton, C. J.:
If we can say upon the pleadings filed by the parties that the defendant was entitled to judgment, it cannot be said that the court below committed any material error. (Douglas v. Rinehart, 5 Kas. 392.) Prior to the execution of the written contract set forth in the pleadings, it is alleged that a verbal contract was entered into between plaintiff and defendant, whereby, if the former shipped live stock over the latter’s line of road from Neodesha and Fredonia, Kansas, to St. Louis, Missouri, plaintiff was to have the usual rebates allowed like shippers of live stock over the road. This verbal contract is contrary to and in conflict with the subsequent written contract. It is the general rule that oral 'evidence is not competent (in the absence of fraud or mistake) to show that the parties stipulated at or before the execution of the written contract for something contrary to what is there expressed, or what is legally implied. While it is true that a written contract does not exclude the possibility of a valid cotemporaneous parol contract, yet in such cases the parol contract must be separate and independent from the written one, and must in no respects be contradictory or conflicting therewith.
Again, parol evidence is sometimes competent to explain the understanding of the parties where a contract is partly written and partly verbal, but in the case at bar none of these exceptions applies. Plaintiff could not recover upon the pleadings unless it vfrere competent for him to establish by oral evidence that the written contracts entered into by him at the time the cars of stock were shipped were subject to and controlled by the previous parol agreement. This could not be done. ( Weeks v. Medler, 20 Kas. 57; Railway Co. v. Maddox, 18 id. 546; Cornell v. Railway Co. 25 id. 613.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
But a single and not very difficult question is presented in this case. On July 1,1873, D. W. Eaves and wife executed a note and a mortgage to the Alliance Mutual Life assurance society. On February 7, 1882, said assurance society indorsed and transferred süch note and mortgage to the plaintiff. Thereafter, the plaintiff brought suit to foreclose said note and mortgage, making, as defendants, the mortgagor, mortgagee, and all judgment creditors of the mortgagor. Among the latter was the present plaintiff in error, who héld a judgment against Eaves rendered subsequent to the execution of the note and mortgage. His answer contained, among other things, this verified defense:
“And for a fourth and further ground of defense in this behalf, said defendant avers that the said defendant, the Alliance Mutual Life assurance society of the United States, never assigned or transferred the notes and mortgages mentioned in plaintiff’s petition to said plaintiff, except for the purpose of raising a certain five per cent, upon the stock pretended to be held by or for said defendant, David W. Eaves, in said Alliance Mutual Life assurance society of the United States, and that said defendant, the Alliance Mutual Life assurance society of the United States, had not any authority or right, nor had the George H. Hyde who signed as president of said company, any authority to make such transfer, or any transfer whatever of said notes and mortgages.”
The payee and the mortgagee of the note and mortgage filed-no answer, but defaulted, thereby admitting as to it, the transfer of the note and mortgage. Upon the trial, plaintiff offered in evidence the note and mortgage apparently duly indorsed and transferred. The present plaintiff in error objected. The objection was overruled, papers admitted, and thereafter judgment entered in favor of the plaintiff declaring his note and mortgage a lien upon the property, and a lien prior to that of the plaintiff in error. Obviously this presents this single matter: The validity of the note and mortgage being conceded, as well as their priority over the claim of the present plaintiff in error, the only question is as to the right of the present defendant in error, plaintiff below, to maintain this action. But the mortgagee, being sued upon a petition claiming title to the mortgage in the plaintiff, defaulted, and thereby admitted that it had no further claim to the note and mortgage, but that as between it and the plaintiff, the latter had full title to both. On the trial, the plaintiff produced the note and mortgage, the same- apparently indorsed and transferred. Who then can raise any question ? Possession of negotiable paper and of its security implies ownership. That possession is shown in the plaintiff. The payee and the mortgagee of the nóte and mortgage, by their default, admit such ownership. Can a judgment creditor of the mortgagor, making no question of the validity of the note and mortgage, impugn the title of the plaintiff? We think not. All that he is interested in is to see that no unauthorized person collects the note and mortgage. And if the plaintiff produces the papers, and the payee and the mortgagee concede title in the plaintiff, and no adverse title or interest is shown, that is enough.
That being the single question presented in this case, and the ruling of the district court being unquestionably correct, its judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment, brought by Mary Back against J. C. Carpenter, for the recovery of certain lots in the city of Council-Grove, Morris county. The plaintiff’s claim to the property is founded upon a regular chain of title from the original patentee down to herself, while the defendant’s title is founded upon certain tax deeds issued by the county clerk of Morris county, for taxes levied during thé years 1874, 1875, 1876, and 1877. The only question involved in the case is whether these fax deeds are valid or not. These tax deeds are admitted to be valid, unless certain taxes included therein are invalid; and the only ground upon .which it is claimed that these taxes are invalid is, that at the time when they were levied the city was wrongfully assuming to be and to act as a city of the second class, when in law' it,- was only a city of the third class. The court below held that the taxes were valid, and decided the case in favor of the defendant and against the plaintiff; and the plaintiff now brings the case to this court.
It appears that in 1869, and since, the city of Council Grove has been in legal contemplation a city of the third class; and that during all that time, except an interval of something over six years, from the spring of 1872 up to the fall of 1878, it was in fact a city of the third class. During that interval, however, it assumed to be and -acted as a city of the second class, and the alleged illegal taxes included in said tax deeds were levied during said interval. It assumed t¡o be and acted as a city of the second class, for the following reasons: In February, 1872, the legislature of Kansas passed an act authorizing the city of Council, Grove and other cities to organize as cities of-the second class. (Laws of 1872, ch. 101.) This act was approved by the governor of the state of Kansas, on February 29, 1872, and, by one of its own provisions, it was to take éffect arid be in force from and after its publication in the Kansas Weekly Commonwealth; and it was so published in the Kansas Weekly Commonwealth on March 14, 1872. Immediately afterward the mayor and council of such city, in pursuance of the provisions of such act, proceeded to organize the city as a city of the second class, so that it should afterward be governed by the laws of Kansas relating to cities .of the second class, and not by the laws of Kansas relating to cities of the third 'class; and it was so organized, officers were duly elected and qualified, and the city government was turned over by the then third-ela'ss-eity officers to the newly-elected officers, who then claimed to be the officers of the city as officers of a city of the second class; and the city then became in fact a city of the second class. All this was freely acquiesced in by all persons, and the city was afterward everywhere recognized as a city of the second class, and universally reputed to be such. This continued to be the case for more than six years, and until September, 1878, when the supreme court of the state of Kansas declared that the said act of 1872 was unconstitutional and void, and that the city of Council Grove was in law only a city of the third class. (City of Council Grove, 20 Kas. 619.) During all that interval of time from the spring of 1872 up to the fall of 1878, the. city was governed as a city of the second class under the laws relating to cities of the second class, and in accordance with the provisions of such. laws. There was no conflict of authority anywhere; there was no objection or remonstrance made by any citizen or tax-payer, or by any other person; there were no officers, nor any other persons claiming the offices of the city as a city of the third class; but in every respect, and in every particular, the government and the business of the city were conducted and carried on as though the city was legally as well as in fact a city of the second class. Elections were had; officers were elected and reelected; city courts were maintained; order preserved; ordinances passed; public property kept in good condition; taxes levied, collected and properly applied; schools maintained; streets kept in good condition, and everything else in fact was done that should have been done if the city had been legally as well as in fact a city of the second class.
Now, notwithstanding all these things, were all the acts of all the city officers, from the spring of 1872 up to the fall of 1878, illegal and void? Were the taxes levied by such dfficers illegal and void? Were all the judgments rendered in the municipal courts, and by the police judges and justices of the peace for such city, illegal and void? Has every offender who has been convicted of a misdemeanor, or convicted of a violation of any city ordinance, an action against the officers of such city for false imprisonment? Were the moneys which belonged to the city as a city of the third class, and which were turned over to and paid out by the officers of the city while acting as officers 'of a city of the second class, illegally paid out? and may they now be recovered? Were all contracts made by the city officers with school teachers for wages, and with all others, whether for wages, or not, and whether for the purchase or repair of- public property, or not, illegal and void? Were all debts created by the city officers during that time, and are they now, illegal and void? Were all obligations incurred by the city or the city officers during that time, and are they now, nullities? And to whom does the public property purchased and acquired by the city officers during that time belong? Is everything which happened during that time with reference to the city illegal and void?
We think that all these questions must be answered in the same way that they should be answered if the city had been during all that time, in law as well as in fact, a city of the second class. The city assumed to be a city of the second class, and it acted as such under the laws of Kansas relating to cities of the second class, which were valid laws. It was recognized by everybody to be a city of the second class, as it claimed to be; it was universally reputed to be such; and it became such under color of authority. It become such by virtue of an act of the legislature, which was in fact passed by the legislature,- and was in fact approved •by the governor, although the act, for constitutional reasons, never became a law; and it also became a city of the second •class by virtue of the acts of the regularly constituted authorities of the city of Council Grove while the city was unquestionably a city of the third class, in fact as well as in law. In other words, it was a city of the second class, in fact, under color of authority, although it was not such a city in law; and this was sufficient to make it a de facto city of the second class. (School District No. 25 v. The State, ante, p. 57, and authorities there cited.) The acts of the legislature and governor, though invalid, and the acts of the regular as well as the irregular city officers, and the acts of all •others with reference to the city, gave it color of authority to act as a city of the second class, and it so acted in fact and under valid laws. The city of Council Grove has been at all times since 1869 a valid municipal corporation. A portion of the time, it rightfully and legally acted as a city of the third class; and it should have so acted during the whole of the time; but about six years and a half of the time, it acted as a city of the second class; and while it wrongfully did so, still it so acted under color of authority and under valid laws, as above stated; and hence we think- it must be held that all its acts are valid which would have been valid if it had been rightfully and legally acting as a city of the second class.
With these views, it follows that the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error moves to dismiss this case from this court, upon the ground that it was not brought to this court within one year after the rendition of the judgment and the making of the final order complained of by the plaintiffs in error. It appears that the final judgment in the case was rendered on November 21, 1881. A motion was made for a new trial on November 23, 1881. The motion was heard and decided on December 1, 1881; and the case was filed in this court on November 28, 1882. A summons was issued on the same day, and made returnable on December 8,1882. The summons was served by a deputy sheriff of Cowley county, (the county from which this case was brought,) upon one D. F. Best, the agent of the defendant in error, in that county. This service, it is admitted by the parties, was not a good service. This summons was returned to the clerk of the supreme court, and as soon thereafter as the plaintiffs in error ascertained the manner in which the service was made, they ordered an alias summons to be issued. ^This alias summons was issued on December 28, 1882, and made returnable on January 8, 1883. It was served, however, on December 30, 1882, upon S. D. Pryor, the attorney óf record for the defendant in error. This last service of summons, it is admitted, was a good service, provided, the summons could be legally served at that time. Section 542 of the civil code provides that “The supreme court may also reverse, vacate or modify any of the following orders of the district court or a judge thereof: . . . An order . . that grants or refuses a new trial.”
Section 556 of the civil code, as amended by § 2, ch. 126, of the Laws of 1881, provides, among other things, that “no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of.”
We suppose that an order refusing a new trial is a final order within the meaning of said § 556 of the civil code, and therefore that a proceeding in error in the supreme court to reverse such an order must be commenced within one year after the making of the order. But if it is not a final order within the meaning of said' section, then there is no limitation whatever with respect to the time within which a proceeding in error may be instituted in the supreme court to reverse such an order; and the proceeding to reverse such an order might be commenced within two years, or five years, just as well as within one year, after the making of the order. Assuming, however, that it is a final order within the meaning of said § 556, then was the proceeding in error in this case commenced within one year after the making of such order? Section 544 of the civil code provides that—
“The proceedings to obtain such a reversal, vacation or modification shall be by petition, to be entitled ‘petition in error/ filed in a court having power to make such reversal, vacation or modification, setting forth the errors complained of; and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action.”
It would seem from this that the filing of a petition in error in the supreme court, and having a summons issued thereon, would in one sense be the commencement of a proceeding in error; but is it the commencement of a proceeding in error within the meaning of said §556 of the civil code? Section 20 of the civil code provides that —
“An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article, [the article with reference to the limitation of actions,] when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days.”
And in Ohio, where they have a code of civil procedure almost identical with ours, it has been decided that § 20 of their civil code, which answers to a portion of § 20 of ours, is applicable by analogy to petitions in error. (Buckingham v. Commercial Bank, 21 Ohio St. 131.) It should probably, however, not be held that § 20 of the civil code actually governs with reference to the commencement of proceedings in error; for it only purports to apply to the commencement of ordinary actions in the district court, and only with reference to the ordinary statute of limitations. It is only by analogy that § 20 is applicable to proceedings in error. We are referred by the defendant in error to the case of Bowen v. Bowen, 36 Ohio St. 312, as overruling the case of Buckingham v. Commercial Bank, ante. We hardly think it does, however, for it does not purport to overrule that case, but claims to be in harmony therewith. In the case of Bowen v. Bowen the petition in error was filed within the proper time, but no summons was issued, nor any appearance made by the defendant in error, within the time prescribed by law. A summons was afterward issued and served upon the defendant in error; but whether it was served within the sixty days after the prescribed time had elapsed, or not, is not shown. The court held that the proceedings in error had not been commenced in proper time in that case, and dis- ■ missed the proceedings in error. It may possibly have been (though probably was not) upon the ground that a petition in error must not only be filed within the prescribed time, but that the summons must also, and in all cases, be issued and served within the prescribed time, and that no portion of the additional sixty days can in any case be counted; or it may have been upon the ground that the summons in that case was not even issued within the sixty days; or, as the summons in that case was not even issued within the prescribed period of time, not counting the sixty days, the court may have held, and probably did hold, that there was not even any attempt made to commence the action within the prescribed time. Certainly it could not in that case be said that the plaintiff in error “faithfully, properly and diligently endeavored to procure service” within the time pre scribed by the statute; and if he did not, then of course he did not bring his case within that provision of § 20 which allows sixty days additional time within which to procure service of summons after the prescribed time has elapsed.
After a careful consideration of this question, we have come to the conclusion that where a bona fide attempt to commence a Proceec^ng in error is made by filing a petition iQ error and case-made, as was done in the present case, and having summons issued thereon, such act should be deemed and held to be equivalent to the commencement of such proceeding in error; provided, of course, that the plaintiff in error should faithfully, properly and diligently follow up his attempt by obtaining service upon the defendant in error within sixty days after the filing of the petition. We would therefore think that the date of the commencement of the present proceeding in error should be held to be November 28, 1882, when the petition in error was filed, and when the original summons was issued; and as the petition in error was filed and the original summons issued within less than one year after the motion for the new trial was overruled, although more than one year after the judgment was rendered, we think the supreme court may consider and determine every question involved in the ruling and determination of the trial court in overruling the motion for the new trial, (Osborne v. Young, 28 Kas. 769;) and therefore we think the motion of the defendant in error to dismiss the case from this court must be overruled.
We now come to the merits of this case. This action was commenced by the Wheeler & Wilson manufacturing company, before a justice of the peace of Cowley county, against Peter Thompson and M. A. Thompson, on two instruments in writing, the first of which reads as follows:
“$25. Dexter, Kansas, May 8, 1878.
“Six months after date, I promise to pay to Wheeler & Wilson manufacturing company or order twenty-five dollars; payable at J. C. Fuller’s bank, Winfield. Value received, with interest at ten per cent, per annum from date. After due, interest to be twelve per cent. Hereby waiving the ben efit of the exemption and appraisement laws of the State of Kansas. The drawers, sureties and indorsers of this note respectively waive presentment, protest, and notice of non-payment. The Wheeler & Wilson sewing machine, No. 63,174, for the use of which to the maturity hereof this note is given, is and shall remain the property and under the control of said company or assigns; and for default of payment, or if the company deem the machine in unsafety, by removal or otherwise, it shall, on demand, be returned to said company, its agents or assigns, in good order, and with pro rata pay for its use. No agent is authorized to make any written or verbal agreement differing from this note, nor authorized to collect or transfer the same, unless indorsed by the Wheeler & Wilson manufacturing company without recourse for that purpose. And for the payment of said amount, I, M. A. Thompson, do hereby bind and charge my separate estate.
(Husband’s name.) Petek Thompson.
(Wife’s name.) M. A. Thompson.
[Indorsed:] Town, Dexter; section, 23; postoffice, Dexter, Cowley county, Kansas. Due Nov. 8-11,’78.
“If paid before due, we will deduct from amount of principal and interest from maturity twelve per cent, per annum for unexpired term.”
The other instrument is precisely the same in substance and in form as the one quoted, except that it.was given for $20, instead of $25, and was payable in twelve months after date, instead of six months after date. The defendants filed a bill of particulars, which reads as follows:
“ Now come the defendants, Peter Thompson and M. A. Thompson, and in answer to the bill of particulars of the plaintiff say:
“That they are not indebted to the'plaintiff in the sum of forty-five dollars, or in any other sum.
“The defendants say that on the 8th day of May, 1878, they purchased of the plaintiff, through its agents, a No. 8 Wheeler & Wilson sewing machine, for the sum of seventy-five dollars ($75), in payment for which said defendants paid plaintiff the sum of thirty dollars ($30) cash, and executed the two notes sued on in this action. The plaintiff, through its agents, at the time of said purchase by the said defendants, warranted said machine to be in good order, and to do good work as a sewing machine, and to continue in good order and to do good work for five years from and after said purchase. The said defendants now say that said sewing machine, so purchased by them and warranted by the plaintiff, was not in good order and did not do good work; in fact it was entirely useless to these defendants for the period of two and one-half years, and the plaintiff entirely failed and refused to put said machine in .good order, although requested so to do, to the great damage of these defendants in the sum of sixty-five dollars.
“Defendants say that plaintiff, through its said agents, subsequently attempted to repair said sewing machine, but only partially succeeded; that since said effort to repair said machine it has failed to do good work and was entirely useless for many purposes for which defendants needed a sewing machine, and has continued to be so useless until this day, to the damage of defendants in the sum of fifteen dollars ($15).
“ Wherefore, defendants demand judgment against plaintiff for the sum of eighty dollars ($80) and costs.”
' After judgment was rendered in the justice’s court, the case was taken on appeal to the district court, where the trial was had before a court and a jury. On the trial, Peter Thompson was introduced as a witness on the part of the defendants, and his testimony and the proceedings connected, therewith-were as follows:
“I am one of the defendants. I know the machine for which the notes su.ed on in this action were given. It was a Wheeler & Wilson No. 8 sewing machine. I bought it from N. Shomber. It was bought at my house in this county, about eighteen miles east of here. I bought the machine for $75; paid $30 by delivering a cow, and gave these notes for the balance.
“ Here counsel for the defendants offered to prove by the witness that Shomber, when he sold the machine, verbally warranted it to do good work, and that defendants refused' to purchase said machine unless such Warranty was made; to which evidence the plaintiff objected, on the grounds that it was incompetent and not admissible to'contradict the written contract; which motion the court sustained; to which the defendants duly excepted.
“Counsel for defendants then offered to prove by the witness that the written contracts or notes, the Qnes sued on in this action, did not contain the whole of the contract entered into between witness and Shomber at the time the machine was purchased. Objected to by plaintiff as incompetent, and matter not pleaded, and not admissible to contradict the written contract; which objection was sustained by the court, and the defendants duly excepted.
“Counsel for defendants then offered to prove by the witness that the machine for which the notes were given did not do good work, and was useless as a sewing machine. Objected to by plaintiff as incompetent, irrelevant, and immaterial; objection sustained by the court, and the defendants excepted.”
The defendants then offered in evidence the deposition of N. Shomber. Mr. Shomber testified, among other things, that in the spring of 1878, D. F. Best was the agent for the Wheeler & Wilson manufacturing company at Winfield, Cowley county, Kansas, and that he, Shomber, was engaged in selling the sewing machines of such company for Best. He further testified, that on May 8th, 1878, he sold the machine for which the notes in controversy were given to the defendants for $75 — $30 of which was to be paid by the delivery of a cow. He further testified as follows:
“I took Mr. Thompson’s note for the cow at thirty dollars, payable to Mr. Best, and for the other two payments I took two notes signed by Mr. Thompson and his wife, and payable to the Wheeler & Wilson manufacturing company. I afterward delivered all three of these notes to Mr. D. F. Best, at Winfield, Kansas. When I sold the machine to Mr. Thompson I warranted it to do good work for five years from that time, and if it failed, that the company or Mr. Best would make it do so, and would give any instruction necessary to operate .the same. Mr. Thompson said he did not want to have to take the machine to Winfield when it needed fixing, and I agreed that Best or some one for the company would come to his residence whenever the machine needed any fixing or attention, and that he, Thompson, should not be required to take the machine to Winfield or anywhere else. I was authorized by Mr. Best to make such agreement upon the sales of the machines, and afterward reported to Mr. Best that I had made such an agreement with Mr. Thompson, and he approved it.”
The plaintiff objected to the introduction of this deposition, on the ground that it was incompetent, irrelevant and imma terial, and tended to contradict the written instruments. The objection was sustained by the court, and the defendants excepted. The record further shows as follows:
“The defendants offered no other or further evidence, and thereupon the plaintiff moved the court to discharge the jury from the further consideration of the case, and to render judgment for the plaintiff for the amount claimed, which motion was sustained by the court, and the defendants duly excepted. Whereupon the jury was discharged by the court, and the court finds:
“That there is due and owing the plaintiff from the defendants on the notes sued on in this case, the sum of sixty-four dollars and forty-five cents, principal and interest.
“It is therefore considered, ordered and adjudged by the court here, that the plaintiff, Wheeler & Wilson manufacturing company, have and recover judgment against the defendants, Peter Thompson and M. A. Thompson, the said sum of sixty-four dollars and so as aforesaid found due, with interest from this date at the rate of twelve per cent, per annum, together with the costs of this action taxed at $73.20; and hereof let execution issue.
“To which judgment the defendants excepted and except, and gave notice of a motion for a new trial.”
The defendants then moved for a new trial, upon the ground of error of law occurring at the trial, and duly excepted to by the defendants, which motion the court- overruled, and the deféndants excepted. They now bring the case to this court for review.
In this court, the plaintiffs in error, defendants below, assign as grounds for reversal the foregoing supposed errors, which were duly excepted to by them. We think the judgment of the court below must be reversed for these errors, or at least for some of them; for some of them are in fact errors, and material errors, and they are all involved in the ruling of the court below upon the motion for the new trial; and the ruling of the court below upon the motion for the new trial is now properly before us for consideration, as we have already decided on the motion for dismissal. We think that the court below committed' error, even upon that view of the case most favorable to the defendant in error, plaintiff below. Supposing that the instruments in writing sued on, the so-called notes, in fact express the true consideration for the notes, and that this consideration was the use for one year of a Wheeler & Wilson sewing maohine, and that the stipulations with regard to this expressed use cannot be contradicted or varied by parol evidence, still we think the court below committed error; for even in that case the defendants, under their bill of particulars, had the right to show that the party from whom they purchased the machine — or rather, from whom they purchased the use of it — warranted . . _ , . , the machine to be in good working order, and that it would do good work; but that in truth and in fact it was not in good order, would not do good work, and was wholly useless and worthless. If the defendants contracted for the use of the machine for one year; and if it was the understanding of the parties that the machine was fit for use, when in fact it was not; and if the defendants gave the so-called notes for nothing else except such use, then the consideration for the notes wholly failed, and the plaintiff ought not to be allowed to recover the full face of the notes. It should not be allowed to recover something for nothing.
We suppose that in fact the defendants purchased the sewing machine. The evidence introduced and offered shows'this to be the case; but in the light of the notes sued on, together with the evidence, we suppose that it should be held that the defendants purchased the use of the machine for one year, and agreed to pay $45 therefor; and also purchased the machine itself, paying in addition to the $45, $30 therefor — the title to the machine, however, not to pass from the plaintiff to the defendants until the notes in controversy should be paid; and if this was the contract, we would think that the defendants should be allowed to prove it, and to show that the machine was in fact worthless as a sewing machine. This would not vary or contradict in the slightest degree the terms of the notes sued on. It would simply be showing the whole of the transaction had between the parties, of which the giv ing of the notes was a part. In connection with this subject, we would refer to the following cases: Chapin v. Dobson, 78 N. Y. 74; Weeks v. Medler, 20 Kas. 57.
We think the defendants were entitled to prove the whole of the transaction had in connection with the sewing machine and the notes, and that the court below erred in refusing to permit them to do so. Of course, so far as the contract is embodied in the notes, the notes must be held to be conclusive; but that portion of the contract not embodied in the notes, and not in conflict with the terms of the notes, may be proved by parol.
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
Hokton, C. J.:
The appellant was convicted of murder in the second degree, at the May term, 1882, of the district court of Chase county. He was sentenced to the penitentiary of the state for the term of ten years; from that conviction he has appealed to this court.
I. It is claimed that the information upon which the appellant was tried did not charge murder either in the first or second degree. The information alleged, among other things:
“That on or about the 4th day of April, 1882, one Ed. Bridges, Ben. Ray, and Alexander Blakemore, within the county of Chase and state of Kansas, and within the jurisdiction of this court, armed with certain deadly weapons known as revolvers, the exact description of which cannot be given, loaded with gunpowder, leaden balls and percussion, then and there held in the hands of Ed. Bridges, Ben. Ray, and Alexander Blakemore, at the time and place aforesaid, to wit, on or about the 4th day of April, 1882, at the county of Chase and state of Kansas, there and then being, did then and there feloniously, willfully, intentionally, deliberately, premeditatedly, with felonious intent and with malice aforethought, shoot, kill and murder one George Babb with the aforesaid deadly weapons, then and there held in their hands, by inflicting two mortal wounds, either of which was fatal, did, with the aforesaid deadly weapons, held in the hands of the aforesaid Ed. Bridges, Ben. Bay, and Alexander Blake-more, discharge two leaden balls into the body of George Babb, one taking effect in the right breast just below the nipple, ranging diagonally through the body and lodging in the heart;» the other taking effect to the right of the spinal column, passing through the right kidney and through the liver, lodging in the muscular tissues of the breast, either wound being fatal. And the aforesaid George Babb, from the effects of the aforesaid mortal wounds received at the hands of the aforesaid Ed. Bridges, Ben. Bay, and Alexander Blakemore, by the means as aforesaid, and at the time and place aforesaid, to wit, on or about the 4th day of April, 1882, at the county of Chase and state of Kansas, the aforesaid George Babb did languish, and languishing did live until on or about the 8th day of April, 1882, when the aforesaid George Babb did die from the effects of the aforesaid mortal wounds received at the hands of the aforesaid Ed. Bridges, Ben. Bay, and Alexander Blakemore, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”
Counsel, criticising the information, contend that it is not clear therefrom that the appellant intended to kill. We think otherwise; nor do we think that the word “ shoot ” ought to be treated as surplusage. As it is alleged “ that the appellant did feloniously, willfully, intentionally, deliberately, premeditatedly, with felonious intent and with malice aforethought, shoot, kill and murder George Babb with the aforesaid deadly weapons,” the information charged a willful, deliberate and premeditated killing, and was sufficient as an information for murder in the first degree. Being sufficient as an information for murder in the first degree, it was necessarily sufficient to embrace the conviction of murder in the second degree, as a conviction can lawfully be had for any degree of killing lower than that charged in the information. ( The State v. Huber, 8 Kas. 447.)
II. In its general charge, the court said this:
“The words ‘reasonable doubt’ mean what they imply; that is, that the doubt must be a reasonable one, such a doubt as might exist in the mind of a man of ordinary prudence, when he was called upon to determine which of two courses he would pursue in a matter of grave importance to himself, when two courses are open to him, and the taking of one would lead to a different result from the taking of the other, and it ■would be impossible for him to determine as to which of the two results would be most advantageous to him.”
This direction, or rather explanation, is difficult to understand, and certainly could not have informed or benefited the jury in any respect. It would have been better to have given no explanation of the phrase “reasonable doubt,” than to have used the language quoted. Indeed, “it has often been said by courts of the highest standing, that perhaps no definition or .explanation can make any clearer what is meant by the phrase ‘reasonable doubt’ than that which is imparted by the words themselves.” ( The State v. Kearley, 26 Kas. 87.)
III. If an explanation is given, we think the following, approved by the supreme court of California, as clear as any;
“A reasonable doubt is that state of the. case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.” (People v. Cadd, 14 Reporter, 200.)
Counsel for the state, in answer to the criticism concerning the explanation of the words “reasonable doubt,” cites The State v. Kearley, supra, and claims the direction given in the case at bar is almost the identical language used in that case. Counsel in this is mistaken, because there the language is, “ to exclude such doubt, the evidence must be such as to produce in the minds of prudent men such certainty that they would act on the conviction without hesitation in their own most important affairs.” Upon that explanation, all that we said was, “the definition given by the court did not prejudice the defendant by narrowing the scope and import of that familiar phrase.”
IV. The motion to set aside the verdict, and for a new trial, embraced among other grounds, “that the verdict was not sustained by sufficient evidence.” The district judge did not approve of the verdict of the jury as is usually done by trial courts in similar cases when such a motion is overruled, but expressly announced that he overruled the motion pro forma, and declined to look into the evidence or pass upon its sufficiency. . This was serious and grievous error. It was a refusal on the part of the trial court to perform its bounden duty, alike unjust to this court and the appellant. When a verdict is challenged upon the ground alleged in this case, the judge, who has the same opportunity to hear and see the witnesses.as thp jury, should declare his approval or disapproval of the verdict, and if he refuses to do this by overruling the motion pro forma, and thereby attempting to transfer the whole question to the supreme court, he trifles with the sacredness of his duty. ■ A party is deprived by such action of a review and consideration of the evidence by the court hearing and seeing the witnesses. This court does not have the same opportunity as the trial judge for forming a just opinion of the credence to be placed in the various witnesses, as testimony on paper is not like testimony from living lips. Even in a civil case, when the judgment of a trial judge tells him that the verdict is wrong, that whether from mistake, or prejudice, or other cause, the jury have erred and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict and remanding the question to another jury. (Rld. Co. v. Kunkel, 17 Kas. 145.) In a criminal case this duty is still more important, and a trial judge ought never to sentence a prisoner upon a verdict which is properly challenged, unless he is willing to declare that the verdict of the jury should be accepted as just. The appellant was charged with a capital offense; the verdict of the jury was that he was guilty of murder in the second degree; it appears from the record that the evidence was greatly conflicting; six witnesses testified that the appellant had a pistol, and shot; six testified that he was unarmed, and did not shoot. All, we believe, agree that other parties present at the time did shoot. When the shoot ing was over, it was found that the appellant was shot through the left arm and across the front of his body; that one Walker was shot in one of his fingers, and that the deceased had received two shots, either of which was fatal. Under these circumstances, the action of the trial court in refusing to perform its duty upon the hearing of the motion for a new trial, and in consigning to us the questions therein involved, without its approval or disapproval of the verdict, was in our opinion a fatal error, and so unfair and prejudicial to the rights of the appellant that the judgment should be reversed, and a new trial granted; and it is so ordered.
All the Justices concurring. | [
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Per Ouriam:
This was an action to recover damages for hogs killed and injured by a dog. Judgment was rendered by the justice of the peace upon the verdict of the jury for $30, in favor of the plaintiff. This judgment was affirmed by the district court upon proceedings in error. To reverse this judgment of affirmance, this petition in error has been filed in this court.
It is alleged on the part of counsel prosecuting this proceeding that the judgment of i^he justice of the peace should have been reversed by the district court, and a new trial granted, for errors in the instructions given by the justice to-the jury, and for refusing to give certain instructions prayed for.
In Theilen v. Hann, 27 Kas. 778, it was declared that this-court will not examine the evidence or the instructions in a case tried before a justice, for the sole purpose of reversing the judgment, provided that no other error exists than that evidence was erroneously admitted or excluded, or that instructions were erroneously given or refused. Therefore, within that authority, even if some of the instructions were erroneous, or if proper instructions were refused, it was nevertheless the duty of the district court to affirm the judgment of the justice of the peace; and it is likewise our duty, upon the record, to affirm the judgment of the district court. | [
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Per Curiam:
This case was presented for our consideration, on the argument of plaintiffs in error, at the January term, 1882, of the court. It was then reversed, and remanded. (28 Kas. 71.) Afterward) for sufficient reasons, with consent of the parties, the judgment of reversal was set aside, and the case is before us again for examination and consideration.,
Stripped of all extraneous matters, the only question is, whether in a case where injunction is the sole relief sought by the action, ánd it is finally decided that the injunction should not have been granted, attorney’s fees are recoverable upon the undertaking to pay all damages sustained by reason of the injunction granted provisionally. Underhill v. Spencer, 25 Kas. 71, is decisive of this question, and after a careful examination of the argument of counsel for defendants in error and the cases cited by him, we do not feel warranted in reversing the ruling heretofore adopted, believing as we do, that the great weight of authorities supports the law as declared.
The judgment of the district court will be reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
Ella Burns brought an action in the district court of Bourbon county against Robert H. Johnson and Harriet E. Johnson, in which she alleged that the Johnsons were husband and wife; that Robert H. was appointed her guardian in the state of Kentucky, in the year 1870; that, as such guardian, he received of her money, on July 1, 1876, the sum of $1,364; that of that sum he had paid her only the sum of $200, the remainder being due to her. She alleged, among many other things not necessary now to fully set out, that when Robert H. removed to Kansas from Kentucky, he brought with him of her money the sum of $1,100, and that with that money he bought the eighty acres of land now iñ controversy, taking the title thereto in his own name, although, she says, it was the .understanding between her and Robert H., that he was to buy the land for her, take the title in his own name, and then, on demand, deed it to her. She alleged that she had demanded the deed to the land, and that he had refused to make it. She prayed for a judgment for the amount of money due her, and for a decree declaring that Robert H. holds the title to the land in trust for her, and that a deed of conveyance for the land should be executed to her, and for the immediate possession of the property.
The defendants filed an answer, denying generally all the allegations of the plaintiff’s petition, and setting forth, among other things, that the land in controversy is the defendant’s homestead.
The case was tried by the court and a jury.. At the trial certain questions were, by order of the court, submitted to a jury; among others, the following: “Did defendant purchase the property mentioned in the petition, with money belonging to the plaintiff, and if so, how much money did he pay therefor, and when did he pay it?” The jury' found -in favor of the plaintiff and against the defendants, and 'answered the foregoing question as follows: “We, the jury, find that the defendant did purchase the property mentioned in the petition with money belonging to plaintiff; and we further find, he paid $500 for the same, on or about August 12, 1880.”
The defendants moved the court to set aside the verdict and each and all the findings of the jury, and for a new trial, for the reason that the same were not sustained by sufficient evidence, and were contrary to law. The court overruled tfie motion, to which' the defendants excepted. Afterward, the court rendered a judgment in favor of the plaintiff and against the defendant, Robert H. Johnson, for the amount of the plaintiff’s claim, and also rendered a decree against both the defendants, declaring the said sum of $500 and interest a lien on the land in controversy, and directing a sale thereof to pay that amount. It was also found that the land was a homestead, and occupied by the defendants as such. But the claim of the plaintiff for the $500 was, however, held superior to the homestead interest of the defendants. The defendants excepted to all that portion of the decree which declare^! the sum of $500 with interest, a lien on the land, and which directed the sale of the land.
It was shown on the trial that all the parties were colored people, formerly slaves, and that they had removed from Kentucky to Kansas in 1878. It was admitted that the defendant Robert H. Johnson, was the guardian of the plaintiff in Kentucky, and as such had received about the sum of money set forth in the plaintiff’s petition. On behalf of the plaintiff, the deposition of one Lindsay was read, which proved the guardianship and the receipt of the .money. A deposition of the defendant, Robert H. Johnson, which the plaintiff had caused to be taken, was read on her behalf. She was also a witness for herself. The defendant Robert H. was also a witness on behalf of the defendants. No other testimony was introduced, and it is all fully set out in the record brought to this court. The defendants below, as plaintiffs in error, bring the case to this court. The plaintiff below, defendant in error, files a cross-petition in error in this court, claiming that the judgment of the court below with respect to the land should have been rendered as she prayed in her petition.
The plaintiffs in error, defendants below, now claim that it was error in the court below not to set aside the verdict and finding of the jury to the effect that the land had been bought with the money of the plaintiff below; and they also object to that portion of the decree directing the sale of the land to pay the said sum of $500 and interest. The plaintiffs in error, defendants below, further claim that it was not pretended at the trial, nor was there any evidence showing that there was any agreement between the parties, by the terms of which the land was bought by the defendant Robert H. for the plaintiff, or that it was to have been conveyed to her; and that there was and is a total failure of proof on that proposition.
The jury found that $500 of plaintiff’s money had been used in the purchase of the land in controversy, and the court below refused to disturb the finding; and the plaintiffs in error, defendants below, now claim that there was a total failure of proof on the part of the plaintiff on that point, and that the uncontradicted evidence of the defendants shows that the money with which the defendant Robert H. bought the land was his own money, and not the plaintiff’s.
The defendant in error, plaintiff below, does not admit all that the plaintiffs in error claim; but still the defendant in error scarcely claims that any evidence was introduced in the court below to show that the land in controversy was purchased with money in which the defendant in error had any interest; and there do not appear to be any facts in the case which tend to' show that any portion of the money paid for the land was any portion of the fund which Johnson held in trust for the plaintiff below. The facts, stated briefly and in chronological order, are as follows: In 1861 or 1862, Johnson removed to Frankfort, Kentucky, where he became acquainted with the plaintiff below. Her name then and until she was married was Ella Carter. In 1867 he purchased of one Morrison Butcher, a piece of land in Kentucky. On October 8, 1870, he was appointed guardian for the plaintiff. On March 24,1874, he received the deed for the land which he had purchased of Butcher. On July 1,1876, he received the plaintiff’s money, $1,364, from the government of the United States, as pension-money belonging to the plaintiff and paid by the government of the United States in consideration of services of her father, Benjamin Carter, who lost his life while in the service of the United States. About March 25,1878, the parties removed from Kentucky to Kansas. In February, 1879, the plaintiff became eighteen years of age. In June, 1880, Johnson sold his land in Kentucky for $500, and shortly afterward purchased the land now in controversy, paying there'for the $500 which he received on the sale of his Kentucky land, and agreeing to pay $300 more, for which he gave his mortgage on the land in controversy. He received the deed for the land in controversy on August 12, 1880, and shortly afterward made the land his homestead. In November, 1881, he gave a second mortgage on the land in controversy, for the sum- of $350, and with this money paid off the first mortgage. This suit was commenced on November 8,1881, and the trial therein was had in May, 1882. The most of these facts were proved beyond question, and all of them would seem to be sufficiently proved. The facts with reference to the purchase-money of the land in controversy were proved by Johnson’s own evidence, and by corroborating circumstances. The defendant in error, plaintiff below, says, however, that Johnson’s evidence should not be believed. There does not appear, however, to be anything in the case which would authorize a court or jury to disbelieve it. But suppose that Johnson’s evidence, so far as it is favorable to his own side of the case, should all be disbelieved and should all be stricken out, still there would even then be no evidence showing that any portion of the purchase-money of the land in controversy was any portion of the trust fund be longing to the plaintiff, and held by Johnson. And this is so, even with the most liberal view of the law and the evidence which the plaintiff could ask. For the purposes of this case, we shall assume that the law, as it is enunciated by the plaintiff's counsel in his*brief, is just as such counsel claims it to be. We shall assume that the district court and this court, as courts of equity, can follow the trust fund through all its mutations, its transformations and substitutions, and into whatever shape or form it may take, and give it to the plaintiff, at least so long as it does not go into the hands of innocent parties for value.. But assuming all this to be the case, still we find no warrant in saying that the $500 paid by Johnson for the land in controversy, or any portion thereof, was in any manner or form, directly or remotely, any portion of the trust fund held by Johnson and belonging to the plaintiff. This being the case, the judgment of the court below must be reversed, and the cause remanded for a new trial; or, at the option of the plaintiff below, the judgment may remain, except that portion thereof which declares the $500, with interest, to be a lien upon the land in controversy, and which orders the land to be sold to satisfy that amount. This is in accordance with the rulings of this court from the organization of the court to the present time. Wherever a verdict or finding is not sustained by any evidence or by any sufficient evidence, this court will order the verdict or finding to be set aside, and will generally grant a new trial; and this will be done although the verdict or finding may have been approved by the district court. Wherever a material fact which is necessarily included in the verdict or finding is not sustained by sufficient evidence, the verdict or finding cannot be allowed to stand, but will be set aside by the supreme court, if it has not already been set aside by the district court. Judgment reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action upon a promissory note, due two years after date, dated April 1, 1879, executed by one A. Saffell to the order of Silas Baker, for the sum of $1,000, with interest at eight per cent., payable semi-annually. The payee, plaintiff in error (defendant below), transferred the note to defendant in error (plaintiff below),' with the following indorsement: “Protest and notice waived. — Silas Baker.” Saffell afterward died and his estate was insolvent, and this action was brought to recover of the indorser. Judgment was rendered against him, and of this he complains. He contends that before he could become liable for the payment of the note, the holder thereof must have demanded payment of the maker at maturity, and that as the petition failed to allege a demand, and as the evidence fails to show a demand, no recovery can be had against him. This leads to the interpretation of the words “Protest and notice waived.”' All the authorities agree that the words “ I waive protest,” or “ waiving protest,” or any similar forms importing that the protest is waived, are, when applied to a foreign bill, universally regarded as expressly waiving presentment and notice. In waiving “protest” the party is considered not only as dispensing with a formality, but as dispensing with the necessity of the steps which must precede it, and of which it is merely the formal, though necessary proof which the law requires. (Union Bank v. Hyde, 6 Wheat. 572; Edwards on Bills, 634; 2Daniel on Negotiable Instruments, §1095.) When, however, the waiver of protest is applied to an inland bill or promissory note, the authorities are not so clear as to what is intended by such an indorsement, as a protest of such instrument is not necessary in order to charge the drawer or indorser. The statute however provides:
“A notarial protest shall be evidence of a demand and refusal to pay a bond, promissory note, or bill of exchange, at the time and in the manner stated in such protest, until the contrary is shown.” (Comp. Laws 1879, ch. 14, §18.)
Sec. 6, ch. 71, Comp. Laws 1879, reads:
“Notaries public shall have authority . . . to demand acceptance or payment of foreign and inland bills of exchange and of promissory notes, and protest the same for non-acceptance or non-payment, as the case may require, and to exercise such other powers and duties as by the law of nations and commercial usage may be performed by notaries public.”
Therefore, as under the statute, protest even of inland bills is recognized, such protest when made is accorded the same effect as to them as to foreign bills, although it is not necessary to make it. Therefore we are of the opinion that where protest is waived upon any bill or note, it imports that all the steps to be ordinarily taken are dispensed with; and so, in waiving protest, the party dispenses with the necessity of the steps which precede it and accordingly dispenses with any demand being made. (Coddington v. Davis, 1 Comst. 186; 3 Denio, 16; Porter v. Kemball, 53 Barb. 646; Fisher v. Price, 37 Ala. 407; Jackard v. Anderson, 37 Mo. 91; Carpenter v. Reynolds, 42 Miss. 807.)
The judgment of the district court 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 Hood, Bonbright & Co. against M. J. Ludes and T. M. Ludes, for the purpose of subjecting certain personal property to the payment of a judgment, which had previously been rendered -in favor of' the plaintiffs against M. J. Ludes. The petition of the plaintiffs set forth and alleged, among other things, 'the above-mentioned judgment, the issuing of an execution thereon, and the return of such execution -unsatisfied; also, that at the time when the debt for which the judgment was rendered was contracted, M. J. Ludes was the owner and possessed of & certain stock of goods and merchandise and other personal property; and that “on-day of-, 18 — , the exact date being unknown to plaintiffs,” he transferred all his personal property subject to execution to T. M. Ludes, the other defendant, who was then, and is now, the wife of said M. J. Ludes, without consideration, and for the purpose and with the intention of hindering, delaying and defrauding his (M. J. Ludes’s) creditors; and that he has personal property, held in the name of T. M. Ludes, which is liable to be taken to pay said judgment, the particular nature ánd description of which said property is unknown to the plaintiffs; and that M. J. Ludes has no other property subject to execution. The relief asked for was, that the transfer of this property should be set aside, and- declared fraudulent and void as to the creditors of M. J. Ludes, and that the property so transferred, not exempt from execution, should be held to be subject to the lien of said judgment, and that the same may be taken and sold under execution for the satisfaction of said judgment.. The defendants made a motion to have this petition made more definite and certain, by setting forth therein a description of the personál property alleged to have been fraudulently transferred, the date when the same was transferred, and the place or state. where it was transferred. The court overruled the motion, and the defendants excepted. The defendants then demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, and that there was a defect of parties defendant. The demurrer was overruled by the court, and the defendants again excepted. The defendants then filed separate answers. The answer of M. J. Ludes contained four separate defenses: First, a general denial; second, allegations that the plaintiffs had no lien upon r any property belonging to M. J. Ludes, and that he did not own any property subject to execution; third, allegations that proceedings in aid' of execution had previously been had on the judgment, which proceedings had been dismissed and abandoned, and that no order of the court had been obtained thereon; fourth, allegations that proceedings in aid of execution had previously been had on the judgment with reference to this property, and also allegations supposed to set forth a former adjudication of the matters and things set forth in the plaintiffs’ petition. The answer of T. M. Ludes was a general denial. The plaintiffs demurred to the second, third and fourth defenses set up in the answer of M. J. Ludes, on the ground that such defenses did not set forth facts sufficient to constitute any defense to the plaintiffs’ action. The court sustained the demurrer, and the defendants excepted. Before any further proceedings were bad'in the case, the defendants brought the case to this court; and they now ask for a reversal of the foregoing rulings and orders of the court below.
The defendants below, who are now plaintiffs in error, complain of all the foregoing rulings and orders of the district court, to wit: First, the overruling of the defendants’ motion to require the plaintiffs below to make their petition more definite and certain; second, the overruling of the defendants’ demurrer to the plaintiffs’ petition; third, the sustaining of the plaintiffs' demurrer to the second, third and fourth defenses of the answer of M. J. Ludes.
As to the first claim of error, we would say that no reversal can be had because of any supposed error committed by the court below in overruling the defendants’ motion to require the plaintiffs’ petition to be made more definite and certain, for it does not appear that the ruling on such motion affected prejudicially any substantial right of the defendants below. It must be remembered that an erroneous ruling or an erroneous order made by the district court upon a motion to require the adverse party to make his pleading more definite and certain is not, under.the statutes, a sufficient ground of itself upon which to found a petition in error in the supreme court. There is no statute authorizing any such thing. It is true, that the statutes authorize a petition in error for the reversal of an erroneous order which sustains or overrules a demurrer; and while the statutes do not in terms give any authority to the supreme court, while reviewing such an order, to review any other ruling or order, yet it is probably also true that the supreme court may, while reviewing an order sustaining or overruling a demurrer, also consider any other order so far as the same affects or is involved in the ruling of the court u pon the demu rrer. (National Bank v. Comm’rs of Lyon County, 25 Kas. 85.) But this we think is the utmost extent to which the supreme court would be justified in going. It must also be remembered that this case has not yet been tried, and that no final judgment or final order has yet been rendered therein; - and therefore we cannot say that the supposed defects in the plaintiffs’ petition have embarrassed or inconvenienced the defendants in any respect in introducing their evidence, or that they have affected or can affect in any respect the final decision or final judgment to be rendered in the ease. Section 542 of the civil code provides that “ the supreme court may reverse, vacate or modify a judgment of the district court for errors appearing on the record; and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof.” But this provision of the statute has no application to this present case, for-no judgment or final order has yet been rendered in this case, but the case still remains undetermined and undisposed of in the district court. We might say with reference to the defendants’ motion and the plaintiffs’ petition, that the defendants probably know much better than the plaintiffs do, everthing connected with the alleged transfer of the property from M. J. Ludes to T. M. Ludes, and that the defendants probably have a much better knowledge of the description of the property, the date of the transfer, and the place where it was transferred, than the plaintiffs have; and hence the defendants will probably not be embarrassed or inconvenienced in any respect in the introduction of their evidence on the final trial. We think, however, that the petition ought t,o be made more definite and certain, if it is possible for the plaintiffs to do so.
The next question to be considered is, whether the plaintiffs’ petition sets forth facts sufficient to constitute a cause of action. Unquestionably we think it does. Although the plaintiffs had recovered a judgment against the defendant M. J. Ludes, yet they could not easily, if at all, enforce the same against his property, for the reason that he had fraudulently transferred the same to his co-defendant, T. M. Ludes, who was not a party to the judgment, and who then claimed and now claims to own the same, and thereby making it extremely difficult to sell the property on execution while the title to the same was in dispute and doubtful. We do not think that proceedings in aid of execution are a sufficient remedy in such afease, and certainly not as against Mrs. Ludes, a third party, having no connection with the judgment, and who claims to own the property in her own right. (Freeman on Executions, §§ 394, 424 to 430; 2 Wait’s Actions and Defenses, ch. 49, art. 1, pp. 411 to 418.)
Mrs. Ludes is entitled to have her day in court, but she cannot have her day in court in proceedings in aid of execution, in a case in which she is not a party, except by a circuitous action, which is never encouraged, and is generally abhorred both in law and equity. The plaintiffs in error, defendants below, suggest that a receiver might be appointed in proceedings in aid of execution, and that the receiver might commence an action against Mrs. Ludes, to have her title to the property set aside and declared void; but such a proceeding is an indirect and circuitous way of obtaining justice, and the plaintiff in such an action (the receiver) has no personal interest in the controversy or in the result of the suit. Equity will certainly not declare such a remedy a plain, direct, specific and adequate remedy. The soul and spirit of our civil code is that every person, so. far as is practicable, shall commence and piosecute his own actions in his own name. (Crowell v. Ward, 16 Kas. 61, et seq.) But the proceeding suggested by the plaintiffs'in error, defendants below, would be a proceeding where a party prosecutes an action through some other person and in some other person’s name. Now while this may probably be done in some cases in proceedings in aid of execution, yet it should not be done in any ease where the party interested can just as conveniently prosecute the action in his own name. The kind of action which we are now considering is a kind of action of long standing, and is well recognized by all courts of equity, and there is nothing anywhere in the statutes that attempts in terms to abolish it; and while the "statutes providing for proceedings in aid of execution do not attempt to annul or destroy any other kind of action or proceeding, they would really seem to recognize some other kind •of action or proceeding to accomplish the same purpose. ■ Section 481 of the civil code, which is the first section providing for proceedings in aid of execution, provides that the property therein mentioned “shall be subject to the payment of such judgment by action, or as hereinafter prescribed.” We would think it would be a great surprise to the legal profession if we should hold that an action like the present could not be maintained.
We shall now proceed to consider the order of the district court sustaining the plaintiffs’ demurrer to the second, third and fourth defenses of the defendant M. J. Ludes’s answer. The second defense was simply that the plaintiffs had no lien upon any property belonging to M. J. Ludes, and that M. J. Ludes did not own any property subject to execution. It is now urged by the plaintiffs in error, defendants below, that if the plaintiffs below had no lien upon any property belonging to M. J. Ludes, then that they cannot maintain this action. This is certainly a mistake. Even if the plaintiffs had no lien upon any property belonging to M. J. Ludes, or even upon the property transferred by M. J. Ludes to T. M. Ludes, and which M. J. Lades now claims ■belongs to T. M.,Ludes, it would make no difference; and we really suppose the plaintiffs below did not have any such lien. But what right had M. J. Ludes to complain of the order of the court below in sustaining the plaintiffs’ demurrer to this second defense of his answer? The plaintiffs are not attempting to take any property to which he makes any claim. They are simply attempting to take property which Mrs. T. M. Ludes claims. And, in legal contemplation, it cannot hurt a judgment-debtor very much to- take property belonging to some other person to pay his debts.
The third and fourth defenses of M. J. Ludes’s answer may be considered together. In substance, they are simply that the plaintiffs instituted proceedings in aid of execution upon their judgment; that a referee was appointed; that M. J. Ludes was examined before the referee with reference to his property, and with reference to the same property which is now in controversy; that the referee made’ a report; that the district court refused to make any order upon such report, but finally dismissed the proceedings in aid of execution. This is the dismissal pleaded in the third defense of M. J. 'Ludes’s answer, and the supposed former adjudication pleaded in the fourth defense of his answer. We do not think that the matters pleaded in these last-mentioned defenses can operate as a bar to the plaintiffs’ action. The proceedings were probably dismissed simply because it was found that Mrs. Ludes was the real party in interest, and that she was not a party to such proceedings. They were probably dismissed' for the purpose that some action or proceeding might be instituted in which Mrs. Ludes could be made a party, and that she might then have an opportunity to defend and protect her alleged rights and interests in the property. The decisions of courts in states where proceedings in aid of execution are held by such courts, under their statutes, to be substitutes for creditors’ bills, can have no application in this state; for we do not think that under our statutes proceedings in aid of execution can be held to be full and complete substitutes for actions in the nature of creditors’ bills; but such actions, under our statutes, may still be maintained where the facts are such as to warrant such actions. And again, we might say: What right has M. J. Ludes to complain of this ruling of the court? He admits that he has no interest in the property in controversy, and that all his former interest therein has passed from himself to his wife; and in legal contemplation, it does not hurt him to any considerable extent to take his wife’s property to pay his debts. The present action is really and substantially between the plaintiffs and Mrs. Ludes, who claims to own the property, and not between the plaintiffs and M. J. Ludes, who makes no claim whatever to the property in controversy. M. J. Ludes, however, was properly made a party defendant.
The judgment of the court below will be affirmed.
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The opinion of the court wa,s delivered by
Horton, C. J.:
On or about the 20th day of February, . 1880, Philip Payne drove his team of horses in the afternoon to McGahey’s mill, situated outside of a city or village, on Fall river, in Wilson county, on a public highway which crossed the St. Louis & San Francisco railroad at the distance of one hundred to one hundred and twenty yards north of the mill. He fastened the team to the usual hitching-post at the mill, which was in plain view of'the railroad; also fastened the lines and locked the wagon, and then went into the mill. It.was a cold, stormy day, and he was cold; the team was tied about ten feet from the.door of the mill, so that Payne could see it from the window on the east side of the mill, and he could have seen the train eighty to. one hundred and fifty yards before it approached the crossing. He sat down by the window to watch; the miller told him it would soon be train-time; he sat there awhile and listened; then he went to the door and listened for the train, went back, and sat down by the stove near the window. The first thing he knew, the team got frightened at the approaching freight train, broke loose, and started in the direction of his home, across the railroad track. The train and team met at the crossing; the team turned west up the track toward the cattle-guard; the train caught it, killed one of the team, crippled one badly, broke up the wagon, and tore up the harness. Several witnesses testified that the steam whistle attached to the locomotive was not sounded eighty rods from the place where the railroad crossed the highway, and one witness testified that the whistle did not sound until within sixty yards of the crossing. Payne, among other things, testified that he was in the mill at the time the team started; that the whistle was sounded some sixty or seventy yards from the crossing, but he did not hear the whistle eighty rods before the train reached the crossing, and he thought the whistle did not sound except when the employés saw the team running; that the engineer whistled down brakes, and they were put on, and the employés of the railway company attempted to stop the team.
In the action brought to recover damages for the injuries mentioned, upon the trial the jury found 'specially that the . railway company neglected to sound the whistle at the distance of eighty rods from the crossing of the highway where the team’ was injured, and the team, wagon and harness were injured by reason of such neglect. The material question therefore in this case is, whether Payne is entitled to recover on account of the omission of the railway company to sound the whistle on its engine eighty rods from the place where its road crossed the highway. We are cited to § 60, ch. 23, Comp. Laws 1879, p. 226, which reads:
“A steam whistle shall be attached to each locomotive engine, and be sounded three times at least eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages, under a penalty of not more than twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railway, on the suit of the county attorney, one half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect: Provided, however, That such penalty shall be sued for within one month from the time the cause of action accrues, and not thereafter: And provided further, That but one penalty shall be recovered in any one action.”
Payne was in the mill and his team was hitched when the whistle ought in the first instance to have been sounded; he was not then traveling on the highway at or near the crossing, nor was his team at large near the crossing. His only purpose in wanting the whistle sounded was to give him notice of the approaching train so that he might leave the mill and hold or look after his team. As thus situated, the railroad company owed him no duty under the statute to sound the whistle. (1 Thompson on Neg., p. 452; Harty v. Rld. Co., 42 N. Y. 468; Elwood v. Rld. Co., 4 Hun, 808; Rld. Co. v. Spearen, 43 Pa. St. 300; O’Donnell v. Rld. Co., 6 R. I. 211 ; Holmes v. Rld. Co., 37 Ga. 593; Rld. Co. v. Houston, 95 U. S. 697.)
Of course it cannot be contended that the omission of the railway company to sound the whistle eighty rods from the crossing frightened or caused the team to run away. As the facts in this case are undisputed, the effect of them is for the judgment of the court; and notwithstanding the findings of the jury and the verdict returned, it becomes our duty, as a matter of law to say that there was no .evidence submitted sufficient to make out a prima facie case, and Payne was not entitled to recover. We have not thought it necessary to refer to the evidence or findings cóneerning the crossing at the railroad, because it is apparent that unless Payne was within the protection of the statute quoted, he is not entitled to recover. As the statute is not applicable to Payne under the circumstances, proof of omission of the railway company to give the signal required by law, does not make it liable -for the damages sustained by him.
The judgment of the district court must 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
Brewer, J.:
Defendant in error, plaintiff below, commenced an action before a justice of the peace, and thereafter on appeal to the district court, obtained a judgment against the defendant for the sum of $1. The single question presented is, whether under §117 of the justices act, the defendant made a sufficient offer to confess judgment. The facts are these: On the day of the service of summons, the defendant and his attorney called upon the plaintiff’s attorney, and asked him to go with them before a justice, to hear an offer to confess judgment. The three went before the justice, and there the defendant’s counsel orally offered to confess judgment, and asked the justice to put the offer in writing. This offer was refused. The justice, in pursuance of the request, took a piece of paper and wrote on it the following: “April .29, at 4 p. M., Lloyd offers to confess judgment for $5 and costs of suit, in Homberg v. Masterson, which offer is rejected forthwith. Filed April 29, 1882. — L. H. Sea ver, J. P.” He filed this with the papers of the case. He also made this entry on his docket: “April 29, 1882, at 4 p. M., Greo. W. Masterson, being present in person and by his attorney Ira E. Lloyd, offers to confess judgment for $5 and all costs made up to this time. Charles Homberg being present by his attorney E. W. Carter, said offer is rejected forthwith, and the cause is to come on for trial on May 3, at 10 a. m.” There was also conflicting testimony as to whether, when the two attorneys met, the plaintiff’s attorney did not waive a written offer; but from the findings of the court, we must assume that no such waiver was in fact made. The section above referred to reads: “If the defendant, any time before trial, offers in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued,” &e. Was this a sufficient compliance with the statute? We think it was. It may be that the plaintiff’s attorney had left the justice’s office before this offer was reduced to writing, but this is immaterial. He was fully informed of the offer, and was present when the justice was asked to reduce it to writing, so that he was in- no manner misled by anything that took place. The fact that the offer was reduced to writing by the justice instead of by the defendant personally, or his attorney, is also immaterial. It was written by the direction of the defendant, and when so written became in law his writing. Nor is the fact that the writing was not signed by defendant under the circumstances a fatal omission.. Ordinarily, it is true, a legal instrument should be authenticated by the signature of the person whose act it is; but the omission ,of the signature is not always fatal. Proceedings before a justice, as we have often had occasion to remark, are not always conducted with technical accuracy, and as long as each party is fully aware of what is being done, and fully protected in all his Substantial rights, many an error will be disregarded as immaterial. Here the plaintiff was in no manner misled. He knew what offer was made, and deliberately rejected it. He knew that the justice was asked to reduce the offer to writing, and it was in fact so reduced to writing and placed among the papers of the case. Under these circumstances, to disregard this offer would give to the. plaintiff a technical advantage at the expense of substantial right and justice. Suppose the plaintiff had accepted the offer, and the justice had entered .judgment thereon in his behalf: could the defendant have challenged such judgment? Is the equity of the plaintiff any greater? The offer must be adjudged sufficient.
. The judgment of the district court will be reversed, and the case remanded with instructions to render judgment against the plaintiff for all the costs accruing after the time of said offer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The fact that the bridge was built by the county and is the property of the county, would seem to carry with it as an incident, the right of the county to take care of, preserve and control it, unless the legislature by enactment has directed otherwise. (State v. Supervisors, 41 Wis. 28.) An examination of the statute demonstrates that this power is not interfered with by the statute, but on the other hand, express authority is given counties to repair bridges and make appropriations therefor.
Sec. 17, ch. 16, Comp. Laws 1879, reads as follows:
“It shall be the duty of the board of county commissioners, in counties having twenty thousand inhabitants or more, . «. . to determine what bridges shall be built and repaired at the expense of the county, and what bridges at the expense of the township.”
Sec. 24, said ch. 16, further provides:
“When a bridge built by the county is out of repair, the board shall estimate the cost of repairing it, and make an appropriation therefor; and may require the township trustee of the township, or the overseer of the road district in which the bridge is located, or some other suitable person, to proceed immediately to repair the same as the board may direct: Provided, That if the costs of repairing the same exceed one hundred dollars, then like preliminary steps shall be taken as in building a bridge.”
By the census of 1881, the county of Wyandotte has over twenty thousand inhabitants, and within the above provisions it is the duty of that county to maintain and repair the bridge in controversy, notwithstanding it is partly in Wyandotte city and partly in Kansas City, Kansas. The legislature may enact all needful regulations for the control and repair of property held by the county in trust for public use, and there is nothing in the acts incorporating cities of the second class in conflict with the sections-of the statute cited. Counsel for plaintiff in error cites Commissioners v. Riggs, 24 Kas. 255, and urges that the decision therein is to the effect that the county is not under duty to repair bridges. That decision does not sustain the proposition contended for. It was decided in that case only “in -the absence of a liability expressly declared by statute, a county is not liable for damages accruing from defective highways or public bridges.” This, because a distinction has been recognized by the adjudications in this state, betwéen the implied liability of cities and of quasi corporations like counties.
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.:
In August, 1880, the defendant in error brought a suit before a justice of the peace in Wyandotte county, against the plaintiff in error, to recover $45, the value of a cow owned by him, and which was alleged to have been fatally injured by the engine and cars of the plaintiff in error. The bill of particulars filed by the plaintiff below, defendant in error, with the justice, stated a cause of action at common law for the negligent killing of the cow, and also attempted to state a cause of action under the statute. (Laws of 1874, ch. 94; Comp. Laws 1879, pp. 784, 785.) But it failed to state a cause of action under the statute, for the reason, and for such reason only, that it did not state that the railroad company’s road was not inclosed with a lawful fence. A judgment wás rendered in favor of the plaintiff in the justice’s court for $45, and $10 attorney’s fee. The case was then appealed to the district court, where the plaintiff below filed an amended bill of particulars, alleging a cause of action under the statute, which amended bill was twice afterward amended by interlineation. The trial in the district court resulted in a verdict and judgment for the plaintiff for $45 and $30 attorney’s fee, from which judgment the defendant now appeals, by bringing petition in error to this court.
I, The plaintiff in error, defendant below, claims that the district court erred in overruling its motion to strike out the amended bill of particulars. We think the amendment was allowable, and therefore that the district court did not err.
II. There was no evidence offered at the trial to sustain the allegation of negligence, other than that arising from the want of a fence; and therefore the question to be determined is, whether upon the pleadings and proof, the plaintiff established a cause of action under the stock law or fence law. The plaintiff in error (defendant below) claims that the only competent testimony offered upon the subject, clearly showed that the place where the animal was struck and injured was within the corporate limits of the city of Rosedale. We do not think that this claim is correct. It is true that the recorded . plat of the city was produced in court by W. H. Bridgens, the register of deeds, who testified that the point where the cow was killed was within the corporate limits of the city. But the register may have been mistaken, first, as to where the cow was killed, and second, as to where the town line was actually located upon the ground. There was plenty of Mother competent evidence that tended to show that the cow was killed'outside of the city limits; but suppose that she was killed within the city limits, still there is nothing that conclusively shows that she was killed at a point where the railroad company was not bound to fence its track. ( U. P. Rly. Co. v. Dyche, 28 Kas. 200.)
The plaintiff in error (defendant below) also claims that the railroad company is not liable' in this action, for the further reason that the animal was killed within the depot grounds and switching yards of the railroad company at Rose-dale: this was not so shown by the evidence, but rather the reverse. There was no depot anywhere near where the cow was killed, but the evidence tends to show that the cow was killed where the railroad track passes over a tract of land belonging to a private individual. There were four or five tracks at the rolling mills, and two, and perhaps more, where the cow was killed. One of these tracks was the main track used by the railroad company, and the other tracks were used for the accommodation of the rolling-mill company. Occasionally, however, the railroad company would unload freight for others besides the rolling-mill company, upon one of these switch tracks; but this seldom happened. It is probable, also, that the railroad company occasionally used these additional tracks for switching; but the fact that they sometimes'used them for switching, would not prevent or exempt the company from fencing them in. Indeed, it would seem that they should be fenced in, if they were some distance from any public place, and were used only for. the purpose of switching. Therefore this claim1, like the others, is not tenable, for, as before stated, the place where the cow was killed was not a portion of the depot grounds, and even if it was used for switching, that did not prevent the company from fencing the same.
We do not think that the court below compiitted any material error, and therefore its judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is as follows: As between a creditor of an insolvent partnership firm, (the individual members, as well as the firm, being insolvent,) and a creditor of a member thereof, who has the prior right to a fund belonging to such member and in the hands of his debtor — the creditor of the firm, who has first garnished the debtor, or the creditor of the member, who has subsequently garnished the debtor, where neither creditor has yet obtained tbe possession of the fund? This question must be answered in favor of the partnership creditor. But before we proceed further, we think it will be proper to state some preliminary matters. In this state, “all contracts which by the common law are joint only, shall be construed to be joint and several;” and “in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are liable.” (Comp. Laws 1879, p. 209, §§ 1, 4.) And ■“judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Code, § 396; see also Alvey v. Wilson, 9 Kas. 405; Williams v. Muthersbaugh, post, p. 730.) And the gar- ' nishment lien attaches when the garnishee is served with notice of garnishment. (Civil Code, § 206.) As between creditors of a partnership firm and creditors of the individual members thereof, we suppose that the rule is well settled, where other things are equal, that the property of the partnership must first be applied to the payment of partnership debts, and that the property of the individual members must first be applied to the payment of the debts of such individual members. (Switzer v. Smith, 35 Iowa, 269; Rodgers v. Meranda, 7 Ohio St. 179; Glass Co. v. Ludlum, 8 Kas. 41, 50; Northern Bank of Kentucky v. Keizer, 5 Am. Law Reg. 75; Davis v. Howell, 33 N. J. Eq. 72; Toombs v. Hill, 28 Ga. 371; Kuhne v. Law and Sniffer v. Sass, 14 Rich. [S. C. L.] 20; M’Culloh v. Dashiell, 1 Har. & G. [Md.] 96; McCormick’s Appeal, 55 Pa. St. 252; 5 Wait’s Actions and Defenses, 148, 149.) But this rule is often held not to apply as against the partnership creditors, where the partnership, or both the partnership and all the members thereof, are insolvent; and the rule never applies .as against the partnership creditors where they have obtained a prior lien upon the property of one of the individual members. (Allen v. Wells, 39 Mass. 450; Stevens v. Perry, 113 Mass. 380; Gillaspy v. Peck, 46 Iowa, 461; Cumming’s Appeal, 25 Pa. St. 268; Meech v. Allen, 17 N. Y. 300; Cleghorn v. Ins. Bank, 9 Ga. 319; Baker v. Wimpee, 19 Ga. 87; Dun- ham v. Hannah, 18 ind. 270;. Wisham v. Lippincott, 9 N. J. Eq. 353; Howell v. Teel, 29 N. J. Eq. 490; Emanuel v. Bird, 19 Ala. 596; Barnwell v. Perry, 19 Vt. 292; 5 Wait’s Actions and Defenses, 148, and cases there cited.)
Some of the foregoing authorities refer to attachment liens, some of them to judgment liens, and others to execution liens. In the present case, and under the laws of this state, the parC nership creditor had a right to sue the partnership or any one or more of its members, and had.a right to obtain an attachment in the case against any one or more of its members: (Williams v. Muthersbaugh, post, p. 730.) And he had a right to levy such attachment not only upon the partnership property, but also upon the individual property of any member of the partnership against whom the .attachment was issued, exhausting of course the partnership property first, before levying upon the individual property. (See authorities above cited, and Hershfeld v. Claflin, 25 Kas. 166.) And when the attachment was issued and served by giving proper notice, including the notice to the garnishee, the firm creditor obr tained a lien-upon the fund of the member .then in the hands of the garnishee; and this lien cannot be destroyed by any subsequent action, or subsequent attachment, or subsequent garnishment proceedings, by any creditor of such individual member of the partnership. ■
While there may- possibly seem to be some slight infirmity in the reasoning that brings about this result, yet we think .the .reasoning is sound, and that it is sustained by an almost unbroken current of authority. If it be said that the .case of Switzer v. Smith, supra, is against this view, then we refer to the case of Gillaspy v. Peck, 46 Iowa, and the other cases above cited, as sustaining it. -The fact is, that while the rule first above mentioned is the general rule in equity, yet the rule is never carried to the extent of overturning the law or of .destroying equities; and it is never carried to the extent of abrogating -liens legally obtained. • As to the rule where the firm and all its members are insolvent, see Brock v. Bateman, 25 Ohio St. 609. In that case .the'firm-creditors were al lowed to share equally with the creditors of each partner in the distribution of the individual assets of each partner, and this notwithstanding the fact thát the firm creditors were allowed to receive all the firm property. It was there held that there was a strong equity in favor of the firm creditors; that they not only trusted the firm, but that they trusted each and all the partners thereof to the full amount of their claims, and trusted each partner to the same extent that the individual creditor did who became a creditor of only one partner.
In the light of this case, it would seem where the firm and all the partners thereof are insolvent, that no individual creditor of a partner has any higher equities to the separate property of such partner than any firm creditor has; although such a rule might result in the firm creditor receiving the full amount of his claim, and the individual creditor only a very small part of his. Whether this court would go to the extent of the Ohio supreme court, it is not necessary now to determine. Upon authority, and upon reason, too, we think, the firm creditor in the present case has, by reason of his garnishment lien, obtained a right to the fund in the hands of the garnishee prior to that of the private creditor. The judgment of the court below will therefore be reversed, and the cause remanded for further ’proceedings in accordance with this opinion.
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The opinion of the court was delivered by
Valentine, J.:
This is a proceeding in error to reverse a judgment rendered by the district court of Wabaunsee county for $1 and costs. The plaintiff in error, who was defendant below, does not found his proceeding in error .upon the ground that the judgment of the court below is excessive, but really founds the same upon the theory that under the facts of the case and the statutes of Kansas the defendant in error, plaintiff below, has no cause of action of any kind against him, and is not entitled to a judgment for any amount.
The facts of the case, stated briefly, are substantially as follows: On July 15, 1881, and prior thereto, the defendant in error, plaintiff below, owned eighty acres of land, which was inclosed with a fence, was in cultivation, and was occupied by himself and family as their residence. The plaintiff raised wheat, corn, cabbages, and other articles of field and garden produce, upon this land, and also had about 220 fruit ' trees thereon. The wheat which was raised that year upon - the land had just been harvested, and was then in the stack upon the premises. A public road was located upon the east •side of the land. This road needed repairing; and the defendant below, under the direction of the road overseer, and ' for the purpose of repairing the road, opened the fences on the plaintiff’s land, and passed across the land with teams and wagons to get stone situated just west of the land, on ■the premises of one Charles Ohems; and this stone he hauled across the plaintiff’s land to the place where the road needed repairing. This was all done without the consent and against the will of the plaintiff. It was necessary to use stone in repairing the road, and the stone which the defendant obtained was more convenient to the place where it was needed than any other stone that could be had; and the nearest route from the place where stone was needed to the place where it was situated was across the plaintiff’s land. The defendant passed over the wheat stubble on the plaintiff’s land where the wheat had just been cut, and did not pass over any standing or growing crops, and he did just as little damage to the plaintiff’s property as was possible under the circumstances. The defendant claims that under the circumstances, and under the statutes of Kansas, he had a right to pass over the plaintiff’s land' for the purpose of procuring stone, as he did, and cites as authority therefor §12 of the road law of 1874. So much of said section as applies to this case reads as follows:
“The overseer shall keep the same in repair, and remove, or cause to be removed, all obstructions that may from time to time be found thereon; for which purpose the overseer is hereby authorized to enter upon any uncultivated land unincumbered by a crop, near or adjoining a public road, to dig and carry away any gravel, sand or stone, and to purchase any timber which may be necessary to improve or repair said road, and to enter upon any land adjoining or lying near to said road to make such drains or ditches through the same as he may deem necessary for the benefit of the roads, doing as little damage to said land as the nature of the case and the public good will permit.” (Comp. Laws of 1879, ch. 89, §12.)
We do not think that this section gave to the defendant, or to the road overseer of his district, any authority to enter upon the plaintiff’s land, or to cross the same for the purpose of getting stone. It gave to the road overseer, and to the defendants acting by his direction, authority to enter upon only uncultivated land; while the plaintiff’s land upon which the defendants entered was unquestionably cultivated. It was wheat stubble in a field, upon land which had long been cultivated, and from which the wheat had just been removed. The ground had been frequently plowed. It will be noticed that the statute uses the words “uncultivated land, unincumbered by a crop,” showing that the land should not only be unincumbered by a crop, but should also be uncultivated. The statute would not have used the words “ uncultivated land” if it had simply intended that the land should be “unincumbered by a crop.” It omits the use of the words with reference to making drains and ditches, showing that the words were used advisedly, and that in one case the statute means only “uncultivated land,” while in the other case it means all land.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
On March 26, 1880, defendant in error filed his petition in the district court of Greenwood county, to recover-of the defendant, now plaintiff in error, for certain trespasses committed upon his real estate. The defendant answered by first, a general denial, and second, by an allegation that the trespasses were committed after a condemnation of the right-of-way. On June 18,1881, by leave of the court, an amended petition was filed, counting on the same trespasses, but making the St. Louis & San Francisco railroad company also a party defendant, and alleging that the two defendants were joint trespassers. On July 16, 1881, the St. Louis & San Francisco -railroad company filed its separate answer, the same attorney appearing for both defendants. On August 10, 1881, the St. Louis & San Francisco railroad company filed its petition and bond for the removal of the case to the United States circuit court, which petition was granted, and removal ordered. This petition expressly stated that it is made on behalf of the St. Louis & San Francisco railroad company, alleges that between it and the plaintiff there is a separable controversy which may be determined without the presence, of the other defendant, the St. Louis, Wichita & Western railroad company. This petition was granted, and a removal ordered, so far as the St. Louis & San Francisco railroad company was concerned. This order was made on August 15, 1881. On August 16, 1881, the case was called for trial between plaintiff and the defendant, the St. Louis, Wichita & Western railroad company. No objection was made to the jurisdiction of the court, and an application for continuance having been overruled, a jury was waived and the case was by consent submitted to the court for trial. On such trial the court found for the plaintiff, and rendered judgment in his favor for $498. A motion for a new trial was duly made and overruled, and now the defendant; as plaintiff in error, brings the record to this court for review. Three errors are alleged. The first and principal one is, that after the filing by the St. Louis & San Francisco railroad company of the petition and bond for removal, the entire case was removed to the United States circuit court, and the jurisdiction of the state court instantly and absolutely ceased, and that therefore all subsequent proceedings in the state court were null and void. In support of this proposition, the cases of Barney v. Latham, 103 U. S. 205, and Kern v. Huidekoper, 103 U. 'S. 485, are cited. It is conceded, and we shall assume on the authority of those cases, that by the petition and bond of the St. Louis & San Francisco railroad company the entire case, both as to it and the present plaintiff in •error, was removed to the United States circuit court, and that while the present plaintiff in error could not of itself remove the'case, yet it might avail itself of the action of its co-defendant and insist upon going with it to the United States court. All this is conceded. Perhaps a distinction might be drawn between this case and the cases cited from 103 U. S., but we do not care to pursue the inquiry. We shall assume that those cases are controlling, and still we think that the ruling of the. district court must be sustained. Those cases decide substantially that one of two defendants may remove the entire case to the federal court, and this notwithstanding the existence of a separable controversy between the plaintiff and the other defendant, of which the federal courts have no jurisdiction. Concede all this, and yet this does not decide that one defendant having the right to a removal can prevent the other defendant, having no right to a removal, from submitting its controversy with the plaintiff to the determination of the state court in which it was sued. Though the present plaintiff in error could have availed itself of the benefits given by the petition of its co-defendant, and gone with it to the federal court, yet it was not bound to avail itself of that privilege. It could elect to submit its controversy with the plaintiff to the determination of the courts of the state in which it was acting, and by the authority of whose laws it was created and received power to act, (and we may add that common decency required it to abide by the decision of the courts of such state,) and such election could not be defeated by any act of its co-defendant. . This is not like the case of The National Steamship Co. v. Tugman, recently decided by the supreme court of the United States, and reported in 15 Cent. Law Jour., p. 448, in which, after a refusal by the state court to grant an application for a removal, the defendant proceeded in the state court, and elected between several modes of procedure authorized by the state practice, and in which the supreme court of the United States held that such election did not waive any rights granted by its petition for a removal; for here the present defendant had of itself no right of removal; never sought to avail itself of any privileges given by the action of its co-defendant; but voluntarily elected to submit its controversy with the plaintiff to the decision of the state court. It may be remarked here, that the first time any question was made as to the jurisdiction of the state court, was by the petition in error filed in this court. Prior to the trial in the district court, it made no question as to its jurisdiction; it suggested no want of jurisdiction on • a motion for a new trial; apparently it elected to litigate its controversy with the plaintiff in the state court, in the court in which it was sued. And only after having been finally defeated in the trial court, did it first suggest, and by petition in error in this court, that the trial court had lost jurisdiction by the application of its co-defendant for removal. We think in this, its action is too late. While its co-defendant had the right to remove the entire case, and while it had the right to insist upon going with such defendant to the federal court, yet such right was one which it could waive, one whose waiver was not prejudicial to the rights of its co-defendant; and having waived such right until after trial and judgment, it cannot now insist upon it. 'Without any process served upon it, and independent of any action against its co-defendant, it could come into the state court and submit to it the determination of any controversy between it and the plaintiff. This in effect it did; and having done so, it cannot now say that it might have gone with its cp-defendant to another tribunal for the determination of such controversy. As a rule, this court reviews only errors committed by the trial court, and that court only errs when it grants or refuses direct application made by one or other of the parties. If no application for any ruling is made to that court, and no ruling is in fact made, this court cannot affirm error in the proceedings of the trial court. This, as a general proposition, is unquestioned, and there is nothing to take the present case out of the general rule. This is the principal question in the case, and in it we see nothing to justify any interference with the judgment of the district court.
The second question is, whether the court erred in refusing an application for a continuance. Upon this the facts are these: The petition was filed March 26,1880, and the answer May 25, 1880. • One continuance at least was granted to the defendant. On August 8, 1881, a deposition was taken in behalf of the defendant. On August 16,1881, the case was called for trial,- the deposition was suppressed, and thereupon the defendant asked for a further continuance. Without reading the deposition, without stating its contents or even asserting that it was material or important, the defendant demanded a continuance as a matter of right, upon the sole ground that such deposition had been suppressed. The court overruled the motion; and this is the second ground of error. "We think the ruling of the district court must be sustained, and for several reasons. Matters of continuance are largely within the discretion of the trial court, and, unless it appears «that such discretion has been abused, its ruling will be sustained. Again, nearly a year and a half elapsed between the commencement of this suit and the attempt to take the deposition of this witness. One continuance had been granted to the defendant, and the court might properly say that some excuse should be shown for the delay in attempting to procure such testimony before granting, a further continuance. But third, and principally, before any continuance is granted on the ground of absent testimony, it should always appear that such absent testimony is material. The mere fact that a deposition is suppressed, or that a witness is absent, does not prove that the missing testimony is competent or material; and before any court is justified in granting a continuance on the ground of absent testimony, it must affirmatively appear that such absent testimony is both competent and material. (Swenson v. Aultman, 14 Kas. 273.)
A final error alleged is, that the findings and judgment are against the evidence. In this, too, we think the ruling of the district court must be sustained. It is very clear' from the testimony, that the trespasses complained of were committed by the defendant. After cutting all the timber upon a strip through the plaintiff’s land, it condemned such strip for its right of way. Obviously there was enough testimony to justify the court in finding that what was done in the way of cutting timber, and in' other trespasses uppn the plaintiff’s • land, was done by the defendant. And when, after cutting seventy-one trees large enough for saw-logs, it condemned a right of way and obtained an award from the commissioners of only six dollars as damages, we do not wonder that the plaintiff commenced this' action to recover for trespasses which in fact and in law were committed before the defendant had any right of entry upon his lands. There being no other questions in the case, 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
Burch, J.:
The state condemned a tract of land forming the site of the historic Shawnee Mission, in what is now Johnson county, Kansas, and certain of the landowners appeal from the judgment of condemnation.
In 1921 the legislature passed an act which reads as follows:
“That the power of eminent domain shall extend to any tract or parcel of land in the state of Kansas which possesses unusual historical interest. Such land may be taken for the use and benefit of the state by condemnation as herein provided.
“Whenever the legislature shall pass a joint resolution, declaring that a specifically described tract or parcel of land is invested with unusual historical interest, the nature of which shall be described, the attorney-general shall forthwith file condemnation proceedings in the district court of the county where the land is situated, in the name of the state: Provided, That this state may accept and hold such property by gift or devise without any resolution.” (R. S. 26-301, 26-302.)
Succeeding sections provided for assessment of damages by appraisers appointed by the district court, report of the appraisers, notice to interested persons and opportunity to be heard in the district court on the appraisers’ report, authority of the district court to approve, disapprove or modify the report, order of condemnation, and payment of claims. In 1927 the legislature passed a joint resolution declaring the Shawnee Mission lands and buildings to be of unusual historical interest, and providing for acquiring the land and buildings by condemnation. The land was described, the nature of the historical interest was described, and sections 3 and 4 read as follows:
“That said land be taken for the use and benefit of the state of Kansas by condemnation as provided by law.
“That upon the taking over of said property by the state, the governor shall designate the state historical society the custodian thereof, and he shall direct the secretary of the state historical society, the state architect, and one other person designated by the governor, to make a survey of said property and recommend such measures as they may deem necessary and advisable for the proper preservation and restoration of said property.” (Laws 1927, ch. 205.)
At the same session the legislature passed an act making an appropriation to pay the cost of condemnation, and making a further appropriation for the restoration, improvement, and maintenance of the land and buildings. Section 7 reads as follows:
“The said board created by section 4 of said house joint resolution No. 1 shall have the management and control of said real estate after the same is reduced to the possession of the state of Kansas, and is authorized to do all things necessary to and consistent with the use of the same by the state, as a place of unusual historical interest.” (Laws 1927, eh. 71.)
Pursuant to this legislation, appraisers were appointed, who made an appraisement and filed a report. Notice was given of the time and place of hearing on the report. The landowners appeared, and were heard. The court made findings of fact and stated conclusions of law, and entered an order of condemnation.
The appeal of Katherine C. Roe best discloses that which is relied on as a fundamental defect in the proceeding. The condemned land lies about one mile south of the city limits of Kansas City, Kan., and about one and one-half miles west of the city limits of Kansas City, Mo.- The portion belonging to Miss Roe was taken from a tract of 165 acres bounded on the north and east by residential additions and subdivisions, some of which are highly developed and restricted districts. Her land is adapted, or is likely soon to become adapted, to similar use. She contends she is greatly interested in knowing to what precise use the condemned land is to be put; one kind of use may enhance and another kind may detract from the value of the land not taken; she, the appraisers, and the court, should be informed by the statute itself what that use is tó be, in order that she may be compensated for the taking; and the statute is fatally defective, in that it merely declares land of unusual historical interest may be taken for the use and benefit of the state.
The statute provides that the state may accept and hold places of unusual historical interest by gift and by devise. It may also take by condemnation, and it seems to the court the notion the state might acquire places invested with ususual historical interest for use as prison farms and insane asylums, is far-fetched. The meaning of the statute is clear enough, that places invested vpth unusual historical interest may be acquired by the state by gift, devise, or condemnation, for the-use and benefit of the state, as places of that character. If there were any doubt about this, the joint resolution and the appropriation act relating to acquisition of the Shawnee Mission interpret the eminent domain statute, and sh.ow wha.t the legislative intention was. The state historical society is to be custodian of the place. On taking it over, a qualified person is to make a survey and recommend measures for proper preservation and restoration of the mission, and all things are to be done necessary to and consistent with use of the place by the state as a place of unusual historical interest.
There is further indication that withdrawal from private ownership and acquisition by the state means the place thereby becomes a memorial of that which gave it unusual historical interest. The legislature which enacted the condemnation statute passed an act providing that counties may issue bonds for the erection of buildings, memorial arches, and other structures, construct memorial boulevards, and establish memorial parks, commemorative of the valorous achievements of men and women in various branches of service in the world war. (R. S'. 73-401.) When some house or other building, or some place, becomes hallowed on account of its historical association, it is itself a memorial, if -set free from the material uses incident to private ownership, and the two statutes are companion statutes, designed to perpetuate remembrance of that which ought not to be forgotten.
The court concludes the statute designates the specific use the state is to make of the places it may acquire.
• Those who appeal contend a landowner may not be deprived of his property except for public use and in case of public necessity; that the legislature is not the final judge of public use or necessity; and that the use proposed to be made of the Shawnee Mission is not a public use justified by necessity. Authorities are cited, on the basis of which counsel say a decision is possible marking the line between what the state may take and what it may not take by exercise of the right of eminent domain. Counsel would earn the right to a monument commemorative of their achievement if they could enable the court to render such a decision. But the affairs of men are not static. They change, even while the judicial hand is attempting to draw the line, and if a fairly serviceable universal rule were promulgated to-day, some new social need would arise to-morrow which would require a new formulation. In the opinion in the zoning ordinance case decided last year, the supreme court of the United States, speaking by Mr. Justice Sutherland, said:
• “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result' from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out-of-hand attempts to establish general rules to which future cases must be fitted.” (Euclid v. Ambler Co., 272 U. S. 365, 397.)
Pursuing that method leaves the way open for progress in the law.
The state is not obliged to debate its needs with any property owner. The state determines for itself whether, in a given casé, an exercise of the power of eminent domain is needful. The question is political, and the state is not obliged té provide any tribunal in which interested persons may be heard on that question. (Cooley’s Constitutional Limitations, 7th ed., p. 777.) When, in the exercise of political sovereignty, the legislature resorts to eminent domain, it determines that the use to which the condemned property is to be put is a public use. When its action is challenged by the landowner, the question, “What is a public use?” is one of law. In deciding the question the court will give respectful consideration to the judgment of the legislature, and will sustain it unless it be manifestly ill founded, but the legislature’s judgment is not conclusive. This brings us to the question whether use by the state of places -invested with unusual historical interest is a public one.
That the Shawnee Mission is a place invested with unusual historical interest is not disputed or open to dispute, and the entrancing tale need not be told here. It is sufficient to say the mission was founded by the Methodist Church as an Indian mission in 1829. Its buildings, made of brick burned on the spot, and timber cut on the banks of a near-by stream, were the first substantial habitations in a vast region now divided into populous and prosperous states. For many years the mission remained the farthest permanent outpost of western civilization, and life at the mission forms a chapter of absorbing interest, not only in the history of Kansas, but in the history of missionary methods of promoting civilization. Three of the buildings are still standing, and when legislation to acquire them was initiated, one was used as the residence of a truck gardener, another as a dairy, and another as a roadhouse. On the repeal of the Missouri Compromise and the reopening of the “irrepressible conflict” between freedom and slavery, by passage of the Kansas-Nebraska act in 1854, the first territorial governor established executive offices in one of the buildings, and other territorial officials were quartered there.' After a brief session at Pawnee, the first territorial legislature adjourned to meet at the mission, and there, among other notable doings, enacted the famous “bogus statutes” for the government of the territory. In the momentous struggle to make Kansas a free state, the mission was a place about which raged the warfare which gave the territory the name “bleeding Kansas.” The mission was occasionally used as a military post. The Santa Fe trail passed through the mission grounds, and its junction with the Oregon trail was but a short distance from the mission. Altogether, the Shawnee Mission was so intimately connected with “the conquest of civilization” and “the ordeal of civilization” in Kansas and in the western part of the United States, that if it be fitting to maintain historical shrines, the place is worthy to be preserved as one.
When life was simple, the power of eminent domain was expended in providing for simple necessities — public buildings, public ways, and other physically indispensable things. With the advancement of civilization new needs multiply. First comes that which is natural, and afterward that which is spiritual, and cultural needs become just as cogent as the material needs of pioneer days were. The framers of the constitution of the state of Kansas understood this. The constitution makes it mandatory upon the legislature to encourage the promotion of intellectual and moral improvement tart. 6, §2). A specific method of encouragement is prescribed— establishment of a uniform system of common schools and schools of higher grade, embracing college and university departments. The method is not exclusive. The legislature must do that much, but it may resort to other methods perfected in the course of social progress. The end to be subserved by state promotion of intellectual and moral improvement is better citizenship; and good citizenship is inculcated by giving attention to history as history is now conceived. History is no longer a record of past events. It is an illuminating account of the expanding life of man in all its manifestations, revealing how each stage of civilization grows out of preceding stages, revealing how the past still lives in us and still dominates us, and enabling us to profit by what has gone before. So considered, history is inspirational. The Santa Fe and Oregon trails' are not merely old-time routes of trade and emigration, whose furrows in the earth’s crust interfered with tillage when agriculture developed along their courses; they are highways of the indomitable spirit of man in earnest and arduous quest and fired with passion of purposeful endeavor. Considered in this way, the career of man and the careers of men stir the emotions, arouse enthusiasm and awaken zeal which fuse into patriotism; and patriotism is regarded as a worthy quality of citizenship. If therefore, the Shawnee Mission, rescued from private ownership, and restored,- protected, and preserved by the state, will bear tidings to this and future generations of the vicissitudes, the perplexities and the frustrations, the consecrated devotion, the dauntless bravery, and the splendid achievements denoted by the inscription on the state’s great seal, “Ad astra per aspera,” and will do this with a power upon the hearts and lives of men and women which will make for better citizenship, the use is a public one.
As evidence of the efficiency of historical memorials as influences affecting citizenship, the legislature had before it the work of a multitude of patriotic societies having many thousands of members. The chief aim of these organizations is to perpetuate the memory of service to country in order to develop an increasing love of country. To this end they have secured the preservation of many historic houses and other buildings and of historic places, have erected monuments commemorative of historic events, have erected statutes, and have raised commemorative tablets and other memorials. The society of the Daughters of the American Revolution undertook the marking of great roadways, including the Santa Pe trail. Besides this evidence, the legislature had before it the example of the appropriation of private property for use by the United States in restoring, preserving and marking the Gettysburg battlefield. Two distinct questions were involved: first, was the proposed use a public use, and second, if the use were a public one, under what if any of its limited powers could congress make the appropriation? In the opinion of the supreme court of the United States sustaining the appropriation, it was said that valuable lessons in the art of war might be learned from an examination of the battlefield in connection with events which took place there; but the decision was based on broader ground:
“Can it be that the government is without power to preserve the land, and properly mark out the various sites upon which this struggle took place? Can it not erect the monuments provided for by these acts of congress, or even take possession of the field of battle in the name and for the benefit of all the citizens of the country for the present and for the future? Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted congress by the constitution for the purpose of protecting and preserving the whole country. It would be a great object lesson to all who looked upon the land thus cared for, and it would show a proper recognition of the great things that were done there on those momentous days. By this use the government manifests for the benefit of all its citizens the value put upon the services and exertions of the citizen soldiers of that period. Their successful effort to preserve the integrity, and solidarity of the great republic of modern times is forcibly impressed upon every one who looks over the field. The value of the sacrifices then freely made is rendered plainer and more durable by the fact that the government of the United States, through its representatives in congress assembled, appreciates and endeavors to perpetuate it by this most suitable recognition. Such action on the part of congress touches the heart, and comes home to the imagination of every citizen, and greatly tends to enhance his love and respect for those institutions for which these heroic sacrifices were made. The greater the love of the citizen for the institutions of his country the greater is the dependence properly to be placed upon him for their defense in time of necessity, and it is to such men that the country must look for its safety. The institutions of our country which were saved at this enormous expenditure of life and property ought to and will be regarded with proportionate affection.” (United States v. Gettysburg Electric Ry., 160 U. S. 668, 682.)
The court concludes the legislature’s determination that use by the state of places invested with unusual historical interest is a public use, was well founded in law.
There is nothing else of importance in the case. Condemnation by the state of the land deeded by Miss Roe to Lincoln and Lee University discharged performance of the condition subsequent inserted in the deed, and the university is entitled to the award of damages for that land. If this were not true, by the same deed Miss Roe disposed of the reversion,, and she has no interest in the land or the condemnation money. The condemnation proceedings were regular. Contentions that rights protected by the constitution of the United States were violated have been considered, and are held to be without merit.
The judgment of the district court is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment denying a writ of mandamus to restore a crossing on a public highway over defendant’s railway in Miami county.
The highway is a long-established township road running east and west across the county about two miles south of Spring Hill. Defendant’s railway thereabout comes up from the south toward Spring Hill, almost at right angles to the public road. From the time the railway was first constructed, in 1869, a grade crossing was maintained at the railroad and highway intersection until 1922, at which time traffic demands required the defendant to double its tracks between Paola and Kansas City, the new track being laid on the east about 36 feet from the old track. The new track is used for defendant’s northbound trains and the old track for those southbound. For economy of operation and other engineering reasons the grade of the new track was raised nine feet above that of the original track at the grade crossing. This effectually obstructed the public highway, but in lieu thereof and in accordance with plans approved by the state highway commission, defendant constructed an underpass at its own expense at the next section-line road, a mile south of the old crossing, and a new grade crossing on the next section line to the north. It also constructed about a mile and a quarter of public road on the east side of its railway, and about a quarter of a mile of road on the west side paralleling its railway,' so as to furnish the public with convenient facilities for cross-country travel in that locality.
The destruction of. the grade crossing now sought to be restored was one of several changes in railway crossings made in that locality, in conformity with an order of the state highway commission; but the validity of that order is questioned by the state. The order was made by the state highway commission after the railway’s ap plication for such an order had been made to the board of county commissioners and denied. Following that refusal an application was made to the highway commission, and after notice and a hearing the commission ordered this public road crossing and three others to be eliminated and two other grade crossings and an underpass to be constructed, all in a space of about two miles of defendant’s railway lines in that neighborhood.
These changes and improvements were made in 1922. This action to restore the crossing was commenced three years later. On issues joined, and on the pleadings, stipulated facts, and evidence adduced by the parties, the trial court declined to order the crossing restored, and gave judgment for defendant.
The state appeals, but there is no material controversy over the facts, the matters especially urged upon our attention being the state highway commission’s want of power to deal with township roads and the duty of the railway company to refrain from obstructing public highways.
The order of the state highway commission eliminating the crossing in question (and other crossings) and directing the establishment of certain other grade crossings and the construction of a concrete subway and approaches in lieu thereof, according to the recitals of the order, was made on authority of section 5 of chapter 245 of the Laws of 1919 (R. S. 68-509). Appellant insists, however, that this statute confers no authority on the state highway commission to eliminate grade crossings over railroads. And this contention is measurably correct, for the section begins with the imposition of that duty on the county engineer and board of county commissioners. The elimination of grade crossings has to be one of their major considerations when they are designating the county road system. But pertinent duties and powers are likewise conferred on the state highway commission, as the text of the same section proceeds:
“ . . . When the elimination, protection or improvement of a railway grade crossing, as finally determined ... by the state highway commission, shall require the relocation, laying out, altering, widening or vacating of a highway, the board of county commissioners ... by order . . . shall cause the highway to be relocated . . . altered . . . vacated,” etc.
The excerpt just quoted implies that there must be practical cooperation of the county and state boards in this matter of eliminating railway grade crossings, the county board having the initiative on proposed changes and eliminations, but to be effective these proposals require the assent of the state commission as to their necessity. That the matter is still within the general control of the county board, however, is manifest from later provisions of the same section of the statute:
“The board of county commissioners by its order placed of record upon its journal shall determine the nature of the changes required in such road.”
Appellant insists that whatever powers or duties the state highway commission may have concerning county (and federal-aid) roads, it has no power over township roads, and R. S. 68-404 is cited in support of that point. That section declares that the supervision of the commission shall not extend to township roads. However, continuing our perusal of the section we have been quoting from, we find the following:
“If lands are appropriated for the relocation of any county or tovmship road, which relocation is deemed necessary to avoid one or more railroad crossings or other dangerous places, the railroad company shall pay such part of the cost thereof, not less than one-half nor more than three-fourths, as is determined by the state highway commission: Provided, that said part of the cost shall be paid by the railroad company to the county and shall be used to reimburse the funds from "which the cost of land and damages were paid. The state highway commission, upon the request of any county or tovmship board, may require suitable safety devices or warning signals at dangerous or obscure railroad crossings to indicate the approach of trains, which shall be installed and maintained by the railroad company; and the state highway commission may require the removal of spoil banks and other obstructions to view, and the grading of approaches to the tracks; the cost of which shall be borne by the railroad company and county or tovmship jointly or severally in the proportions determined by the state highway commission. The state highway commission may require the construction of suitable warning signs at a dis-. tance of 200 to 300 feet on both sides of all railroad grade crossings, provided the same, in the judgment of the commission, are necessary for the safety of travel, all such warning signs on tovmship roads to be erected by the townships and those on the county roads by the county.”
It would seem, therefore, that while ordinary matters of supervision over township roads are not the official concern of the state highway commission, yet on the important matter of eliminating grade crossings over railways and the construction of undergrade and overhead crossings and similar undertakings, when the safety of the public traveling by rail and by road is the paramount concern, the state highway commission has to be consulted; and where eliminations or alterations of railway grade crossings are contemplated by the board of county commissioners, a determination of the state highway commission that such eliminations or alterations are a necessity is also required. So reads the statute.
This power of initiative to eliminate grade crossings, which is vested in the county board, and the power to determine the necessity for such elimination similarly vested in the state board, apply 'to all grade crossings in the county, not merely to such crossings on county roads. And certainly the need for such supervisory power over grade crossings on township roads in some respects is more urgent than on county roads, because there are so many more of them.
We do not fail to note that it is in designating the county road system that the duty is imposed on the county engineer and county commissioners to eliminate grade crossings as far as practicable, but such eliminations are not restricted to those on county roads. Nor, as we have seen, does the statute confine its mandates to matters pertaining exclusively to county roads.
We hold, therefore, that the initiative in eliminating railway grade crossings, and the authority to cause or permit such eliminations to be made, is vested in the board of county commissioners, not in the state highway commission; but that the latter tribunal is vested with the power and duty to' determine the necessity for such elimination, so that the sanction of both these official bodies is a prerequisite to such undertaking. It follows that the order of the state highway commission to which the county commissioners had previously refused their concurrence was issued without authority and gave the railway company no legal sanction for the elimination of the crossing and the consequent obstruction of the township road.
Does this conclusion constrain us to declare that the trial court should have issued a peremptory writ of mandamus directing the company to restore this township road crossing? The crossing was eliminated in 1922. The demand for its restoration came in 1925. Meantime the defendant, at considerable expense, has provided a concrete underpass and a new grade crossing for such limited cross-country traffic as exists in that locality. At its own expense, also, it has acquired land and built public roads thereabout, on both sides of its right of way, to furnish convenient access to the new crossings. The general trend of public-road traffic thereabout is north and south, not east and west. The east- and west-bound travel is negligible. There was urgent need for the double track to serve the increasing railway traffic demands of defendant and another railway, its lessee, which also uses those tracks from Paola to Kansas City; and there were good engineering reasons why the new track should be elevated above the level of the old grade crossing. The contour of that location and the proximity of a stream rendered impracticable the construction of an undergrade crossing at that point, and an overhead crossing would have required the construction of unusually long approaches at such a large expense as to be quite out of reason in view of the very limited cross-country traffic. It is also rather clear that the board of county commissioners should have granted the petition of the railway company for an order eliminating the crossing. And it was merely a tactical error for the railway company to go over the head of the county board to the state highway commission. What the railway company should have done was to have invoked mandamus to compel the county board to grant the order for the elimination of the crossing. (State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544.)
On the other hand, while laches and estoppel do not apply against the state, if a considerable public interest was threatened by. the raising of the railway grade, with its obvious consequence of obstructing the grade crossing on that township road, injunction would readily have halted the project unless or until the proper official sanction had been obtained by the railway company for the elimination of the crossing. Now, however, the question before us reduces to this: Can we say that the trial court erred in refusing to compel the restoration of the crossing merely because the correct legal steps to have it eliminated were not followed? Mandamus is a discretionary writ. It does not issue as a matter of strict right. The court is bound to look beyond the narrow limits to which the party demanding the writ would confine the inquiry, and consider the larger public interest which so frequently intrudes in this class of cases. The railway company irregularly has done what ought to have been regularly accomplished. But it will hardly do to say that the crossing must be restored ad interim, when it is rather obvious that the railway company could compel the county board to give its sanction to its reelimination. (State, ex rel., v. Postal Telegraph Co., supra.) The court cannot disregard the fact that the expeditious movement of railway traffic is a matter of vital public interest, and there is no practical way to reconstruct this particular grade crossing without demolition of the railway embankment which, of course, would completely disrupt the double-track railway service furnished to the public by two railroad companies, this defendant and its lessee.
We have some analogous precedents for dealing with such a situation. In State, ex rel., v. Telephone Co., 102 Kan. 318, 170 Pac. 26, a telephone company dismantled some 14 miles of telephone wires between Garnett and Lone Elm without first having obtained leave of the public utilities commission to do so. Mandamus was sought to compel the restoration of the telephone line, not because the public was inadequately served by other wires of the company, but merely because it had violated the law in discontinuing its former practices without obtaining the consent of the commission. The writ was denied. The court said:
“In mandamus to require a public utility to reestablish a service or practice which it has discontinued without the consent of the utilities commission, no inquiry will ordinarily be made into the question whether such service or practice is one which the utility should be or could be compelled to maintain permanently, that being a question to be passed upon in the first instance by the commission; but where the utility has already, in a proceeding before the commission to which it was made a party, shown to that tribunal the existence of facts that would have compelled the granting of such consent if it had been asked, obedience to an order of the commission directing the restoration of the service will not be compelled by mandamus, merely because of the failure of the utility to procure such consent in advance.” (Syl. (f 2.)
A principle which runs through all our cases where mandamus has been invoked to require a public service corporation to perform some corporate duty is well stated in City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309:
“The granting of a writ of mandamus rests largely in the sound discretion of the court, and where it is asked to enforce the performance of a duty to the public, the interests of all the people concerned will be regarded, and the writ will be so framed as will best preserve and enforce the rights of all parties.” (Syl. 113.)
In Great Western Railway Co. v. The Queen, 1 El. & Bl. (Q. B.) 874, 878, it was said: “There is a very great difference between an indictment for not fulfilling a public duty, and a mandamus commanding the party liable to fulfill it.”
See, also, State, ex rel., v. D. C. M. & T. Rly. Co., 53 Kan. 329, 36 Pac. 755; Kolster v. Gas Co., 106 Kan. 84, 186 Pac. 738; Northern Pacific Railroad v. Derstin, 142 U. S. 492, 35 L. Ed. 1092.
In State, ex rel., v. Telegraph Co., 117 Kan. 651, 232 Pac. 1028, a railway company and a telegraph company discontinued an unprofitable telegraph service without first obtaining the assent of the public utilities commission thereto. Mandamus was invoked to compel its restoration. In denying the writ prayed for by the state, this court, speaking by its chief justice, said:
“Although the writ asked will not be issued, we have concluded that the costs of this proceeding should be paid by the defendants. Their disregard of a specific provision of the law in the discontinuance of the service without obtaining the permission of the commission warrants the court in imposing the costs upon the defendants. The judgment will be that the peremptory 'writ will not be issued, but the costs of the proceeding will be taxed to defendants.” (p. 656.)
The same rule should be applied here. The elimination of the grade crossing should not have been undertaken without an order of the board of county commissioners to that effect; but as a consideration of the larger public interest would not warrant a restoration of the grade crossing the judgment of the district court denying the writ will be affirmed; but the costs of this appeal will be taxed to the defendant.
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.;
Appellant was found guilty of the possession of intoxicating liquor, in violation of the statute (R. S. 21-2101). The evidence was sufficient to sustain the verdict. The legal questions sought to be raised are trivial in the extreme. They have no merit. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal by the defendants, the McCleery Lumber Company, and Hazel F. Dudley, executrix, taken from rulings denying motions to strike allegations from the answer of plaintiffs, T. F. McCleery and others, to the cross petition of the defendants, and also in overruling demurrers of defendants to the same pleading.
In 1918 the action was begun by stockholders of the McCleery Lumber Company, alleging that the corporation had become defunct by the nonobservance of statutory requirements; that the lumber and building material which it was handling and owned had been transferred to the McCleery-Dudley Lumber Company; that the corporation was no longer a going concern, was largely indebted to parties, that its assets consisted of accounts and claims which were not being collected, and would soon become barred by the statute of limitations, and that the business of the corporation was being mismanaged and was in a demoralized condition. The plaintiffs therefore asked that the corporation be dissolved, that a receiver be appointed to take charge of the assets of the corporation, collect outstanding claims and accounts, liquidate its liabilities and pay any surplus left to the stockholders. Amendments to the petition were filed setting forth in greater detail certain credits and liabilities, and also certain dealings with the Topeka State Bank, and the deposit of assets ■ as collateral security for loans procured from the bank. Plaintiffs asked that the bank, the McCleery-Dudley Lumber Company and Guilford Dudley be made parties and required to set out any claims they had in the subject matter of the action.
The court found that a receiver should be appointed, and accordingly one was appointed to .list the assets and liabilities of the corporation and take such action as was necessary ■ to protect and conserve the assets and at an early date to make a report to the court of his action. A number of reports were made by the receiver to the eourt concerning the assets and liabilities and as to the collection of some claims and the conversion of some assets into money. The matter of accounting came before the court on July 28, 1922, and it found and adjudged the amount due from the corporation to the Topeka State Bank and the assets which it held as collateral security, the amount the defunct corporation owed to Guilford Dudley, and also to its successor the McCleery-Dudley Lumber Company, and to the plaintiff, T. F. McCleery.
Allowances were made for attorneys’ fees and other expenses. It was found, too, that C. G. McCleery was indebted to the corporation in a considerable sum, and the judgment was given against him for the amount. There was a further finding that C. G. McCleery owned 40 shares of the stock of the McCleery-Dudley Lumber Company, which were held by the Topeka State Bank as collateral security for the payment of a certain promissory note executed by him.
Another finding was that 159 shares of the McCleery-Dudley Lumber Company, owned by the defunct corporation, had been assigned to and were then held by Guilford Dudley, as trustee for the creditors and stockholders of the McCleery Lumber Company, subject, however, to the debts of that company. There were findings, too, that the McCleery Lumber Company was indebted to Guilford Dudley in a considerable sum, and also to the McCleery-Dudley Lumber Company in amounts that were stated. There was a finding, too, that the McCleery Lumber Company was indebted to T. F. McCleery in a considerable sum, and several small amounts were allowed for attorneys’ fees and expenses.
The court ordered that the action remain open and undisposed of for a final accounting and disposition of the receivership and of all matters pertaining to a final accounting and winding up of the affairs of the McCleery Lumber Company.
During the pendency of the action Guilford Dudley died, and Hazel F. Dudley, his wife, was appointed executrix of his estate. She came into court and filed an answer and cross petition, reciting previous proceedings, loans secured by stock placed as collateral for the loans, judgments entered and assignments made, the appointment of Guilford Dudley in his lifetime as trustee for the McCleeryDudley Lumber Company, agreements made in the course of his trusteeship, including the assignment of shares of stock to him for himself and other creditors and payments made by him on obligations of the company and advancements made to him on account of such payments. It is further alleged that for the protection of the liens and claims against the capital stock, as well as for the protection of the estate of Guilford Dudley, and that it was for the best interests of all concerned that she be appointed a trustee for the creditors and stockholders. Later, and in October, 1923, without the permission of the district court or of the parties, she procured an order from the probate court authorizing her to sell 199 shares of the stock, and a sale was made for $23,880, and later she filed an amended and supplemental answer and cross petition reciting the facts previously pleaded and also setting forth the sale of the shares of stock and the distribution she had made of the proceeds of the sale, and thereupon asked the court to confirm the sale and the dis tribution made. The plaintiff and defendant stockholders filed an answer consisting of a general denial, and specially controverting many of the allegations made in the answer of the executrix, alleging that the sale of the stock by the executrix was illegal and the proceeds derived from it wrongfully distributed, stating that large sums derived from the proceeds and profits of the business were diverted and used for personal purpose and was otherwise dissipated.
The plaintiffs and the stockholders asked that the sale of stock be declared void, and further, that an accounting be made between the executrix and themselves of the receipts and disbursements.
Motions to strike certain causes and parts of the answers of the plaintiffs were filed by the executrix and demurrers also were presented to the defenses made. The court disposed of the case in a written opinion which we find no difficulty in approving. Regarding the motions to strike it may well be doubted whether they are open to review until the final judgment is rendered, but so far as they may challenge the right of the plaintiffs to maintain certain defenses against the cross petition of the executrix, they may be treated as demurrers. It may be observed that the action is one to wind up the affairs of the McCleery Lumber Company, the defunct corporation, and the answers of the plaintiffs have to do with the averments of the cross petition of the executrix and of the McCleery Lumber Company, which is a party to the action. The plaintiffs had the right to plead any matter essential to a proper winding up of the affairs of the defunct corporation. The court, in previous rulings in disposing of preliminary questions, had ordered that the action remain open for a final accounting of the receivership, and the closing up of the affairs of the corporation for which a receiver had been appointed. A final accounting could not be made until the issues raised by the answer and cross petition of the executrix and the answer thereto of the adverse parties had been tried out and determined. The trial court, after stating that the' claims made concerning the mismanagement of the affairs of the McCleeryDudley Lumber Company were not proper matters for consideration in the present case, remarked that the stockholders of the company had a right to an examination into the management and affairs of the company, but that the stockholders of the defunct corporation had no right in this action to question the internal management of the affairs of its successor, and that such an action if commenced should be brought by the receiver, since the defunct corporation held a large part of the stock of- its successor. The court suggested that before further action be taken in that respect the receiver should, with the aid of a competent accountant, examine the records and dealings of the McCleery-Dudley Lumber Company. As to the right of the plaintiffs to challenge the sale of the capital stock made by the executrix, the court remarked that she had formerly applied to the court for .permission to make a sale of the stock, but had proceeded to sell the stock under an order of the probate court, and that her action in that respect did not deprive the stockholders of the defunct corporation from having an inquiry made into the affairs of that company, alleged to have been mismanaged; and further, that it was only fair to all parties that charges of mismanagement against a deceased party should be cleaned up so far at least as such charges involved the assets or claims of the defunct corporation. The court did not pass on the validity of the sale by the executrix of the 199 shares of stock made under the order of the probate court, but left it for determination until the final décision of this action. It was said that “while the sale made by the executrix may have been entirely legal so far as the estate of Guilford Dudley was concerned, it is still subject to proceedings which may be taken in this action. The purchasers of the stock pending this suit bought subject to a final adjudication in this action.”
The motions to strike were sustained in part and overruled in part. As to the parts overruled the court said:
“In connection with the motion to strike out it may be said further that the pleadings of the stockholders herein do not relate simply to the cross-petition of the executrix. On their face the two answers filed by them are addressed to both the cross petition of the executrix and that of the McCleery-Dudley Lumber Company. In addition, they have a right, in my judgment, to answer as to any matter relating to the winding up of the affairs of the McCleery Lumber Company, including the assertion, of any claims of assets or moneys due, belonging to the estate of the dissolved corporation or its receiver herein. They are real parties in interest and have a right to file pleadings and be heard in the case, and they also have the right to be represented in any examination into the books or affairs of the McCleery-Dudley Lumber Company. The issues in a lawsuit are not made up by the receiver or in his name, but by the parties. For the reasons stated the portions of the answers of the stockholders which relate to alleged rights of the stockholders of the McCleery-Dudley Lumber Company cannot be stricken out on the ground that they may not be proper so far as the executrix is concerned.”
The accounting in the action involved a vast number of claims and accounts, judgments, settlements and transfers for one purpose and another, including those that have been mentioned, and all can be and should be determined and disposed of in the final accounting to be had. As the trial court remarked, great liberality should be allowed in matters of pleading in cases of this character.
We think the trial court rightly ruled that Hazel F. Dudley, in her individual capacity, and T. F. Martin and Dean S. Smith, who purchased assets of the defunct corporation during the pendency of this action, should be made parties. It cannot be held that there was a misjoinder of parties nor any lack of jurisdiction in the court to determine the issues held by it, including the sale and disposition of the shares of stock mentioned. The court stated in respect to its jurisdiction that—
“It should not be inferred that it is intended that the sale made by the executrix should necessarily be set aside or not confirmed, provided that a fair price was obtained. In my opinion the power exists to confirm or set aside the sale.”
We think that there was no lack of facts alleged to warrant an accounting and winding up of the affairs of the defunct corporation, and no error was committed in overruling the motions to strike and the demurrers filed by the appellant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of statutory rape. He was charged in four counts with having had intercourse with a girl under the age of eighteen years, three on the-day of December, 1925, and one on the-day of January, 1926. The complaining witness, Esther Englis, was a girl fifteen years old who had known the defendant about three years. Both lived in Arkansas City. It would serve no useful purpose to detail the evidence. It was substantially to the effect that the complaining wit ness visited at defendant’s house; that he took her home in his automobile, and that on various occasions from about the middle of December until sometime in January he frequently met her and took her southeast of Arkansas City to the 140 Foot Hill, where intercourse was had between them.' There was substantial testimony for the defendant that he was seen at home and other places and otherwise engaged at the various times mentioned. However, the complaining witness testified in specific detail to the instances when she was with him and had intercourse, and her testimony was believed by the jury. On behalf of the defendant it is contended that the complaining witness admitted that she had no act of intercourse with him on the first night that he took her out, and that, therefore, there was no evidence to substantiate the verdict of guilty on count one. The difficulty with this contention is that the information alleged “on the-day of December, 1925,” and that the state was not requested nor required to rely on any specific time for conviction. It had a right to rely on any and all the instances in December and any time within two years prior thereto. There was evidence upon which the jury might have found defendant guilty on more than one count for the month of December. In our opinion it was ample to sustain the verdict and judgment.
Defendant contends that the court erred in its instructions on reasonable doubt and failed to instruct concerning defendant’s presumption of innocence or the burden of proof. The state contends and the record discloses no complaint of instructions given, or request made for other or further instructions at the time they were submitted. The question was not called to the trial court’s attention on the trial nor at the hearing of the motion for new trial, but is raised for the first time on appeal. Under the circumstances defendant is hardly in position to press the alleged errors. On the trial of criminal cases attorneys for defendants are in court for the purpose of protecting their clients in every legitimate way. They should not lie in wait to catch the court in error for the purpose of obtaining reversals, but should claim every right of their clients at the proper time as the trial progresses. After the verdict and before judgment, all rulings made during the trial supposed to be prejudicial to the defendant should be called to the attention of the trial court on the hearing of the motion for new trial. (See State v. Clough, 70 Kan. 510, 79 Pac. 117; State v. O’Brien, 114 Kan. 703, 220 Pac. 208, and cases cited.)
“The rule has been, frequently announced by this court, and should be applied here, that whenever a litigant has a meritorious proposition of law which h'e is seriously pressing upon the attention of the trial court he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.” (State v. Bell, 121 Kan. 866, 869, 250 Pac. 281.)
While the court might properly have elucidated some of the questions covered by the instructions, considered as a whole they fairly stated the law of the case.
■ After deliberation the jury returned their verdict, finding the defendant guilty on the “one” count. The judge inquired of the jury-in open court what it meant in saying “one” count and was informed by the members thereof that they meant “the first count.” Upon such information the court had the foreman of the jury in open court and in the presence of the jury write in the space where it said “one,” “the first count.” Then the verdict as signed by the foreman was passed to the clerk and read, after which the court inquired of each and all the jurors if the verdict as read was the verdict of the jury, and received from all of them affirmative answers. It is contended that the verdict finally filed arid recorded was not the verdict of the jury, but the verdict of the trial judge; that the jury did not deliberate on the verdict as finally filed and did not agree thereon. The objection, highly technical, cannot be sustained. It was perfectly apparent that the jury in finding the defendant guilty on “one” count, irieant “count one” or the “first count.”
Various objections have all been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by directors of a failed bank against the bank and its receiver, to recover judgment for a sum of money which plaintiffs had paid to discharge a note they had given for the bank’s benefit, and to establish the claim as a common claim, to be paid ratably from the bank’s assets. Plaintiffs prevailed, and defendants appeal.
G. H. Beeler was the holder of a time certificate of deposit for $8,000 issued by the bank, and wished the bank to pay him a higher rate of interest than the certificate bore. The bank was under obligation to repurchase some Farmers Union notes which had been sold to the Traders National Bank of Kansas City, Mo., and the Traders Bank had indicated it might require repurchase of the paper at any time. With affairs in this situation, and on April 23, 1920, the directors of the bank as individuals gave Beeler their promissory note for $8,000, bearing interest at a rate satisfactory to Beeler, and Beeler surrendered his certificate of deposit to the bank. An ae count in the bank known as the directors’ fund was credited with $8,000. This fund had been established after consultation with officials connected with the banking department, for the purpose of taking up excess loans and bad paper with money borrowed by the directors. The Traders Bank did not return the Farmers Union paper until March 22, 1922. On that date, the directors’ fund account was charged with a check for $8,000, and the Farmers Union paper was taken out of the assets of the bank. The bank paid interest on the Beeler note until October, 1925. The bank closed in May, 1926, and on August 6, 1926, the directors paid the note and accrued interest, amounting to $8,400.
One defense to the note was that the bank was insolvent when the Beeler note was given, and creation of the bank’s obligation to pay the note, or to reimburse the directors, was forbidden by R. S. 9-163. That defense failed because the court found, on sufficient evidence,that the bank was solvent. Another defense.was that the directors deceived the banking department by failing to show the liability of the bank with respect to the Beeler note in the verified quarterly reports to the bank commissioner. That defense failed because the evidence disclosed the banking department knew all the facts at least as early as March 8, 1924, and probably from the beginning. Another defense is more serious. The banking act contains the following provision:
“Every bank shall make at least four reports each year, and oftener if called upon, to the bank commissioner, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors. Each such report shall exhibit in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified, and shall be transmitted to the bank commissioner within ten days after' the receipt of a request or requisition therefor from him, or within ten days after publication of the call for such statement in the official state paper, and shall be published in such form as the commissioner may prescribe, within ten days after the same is made out, in a newspaper published in the place where such bank is established, or, if there is no newspaper in the place, then in one published nearest thereto in the same county, at the expense of the bank; and such proof of publication shall be furnished within five days after date of publication, as may be required by the bank commissioner. The bank commissioner shall also have power to call for special reports from any bank whenever in his judgment the same are necessary in order to obtain a full and complete knowledge of its condition. The verification of such statement shall be made in the following form:
“State of Kansas, County of-, ss.
“I,---, president [or cashier] of said bank, do solemnly swear that the above statement is true; that said bank has no liabilities, and is not indorser on any note or obligation, other than shown in the above statement, to the best of my knowledge and belief. So help me God.
(R. S. 9-121.) --, President — Cashier.”
The statements of the Emmett bank were duly published in the St. Marys Star, and the liability of the bank to pay the Beeler note, or to reimburse the directors if they paid it, did not appear in the statements. The purpose of the regulation was to give periodically, to those residing in the territory tributary to the bank, accurate information respecting its condition. Depositors and other creditors are invited to deal and to continue to deal with banks, relying on their published statements, and the statute was enacted for their special benefit. Directors are controlling and managing agents of the affairs of a bank, and it is their duty to see that published statements of its financial condition are correct. In this instance, a liability to directors as individuals equal to two-fifths of the bank’s capital was omitted from its reports, and the directors are asking that they be paid on equal terms with depositors and other creditors.
On behalf of the directors it is urged that the liability of the bank to pay the Beeler note did appear in the published statements, because an equivalent of Beeler’s certificate of deposit áppeared in the directors’ fund until the Farmers Union notes were taken up. Conceding this to be true, the liability did not appear after March 22, 1922. The concession, however, cannot be made. This note which the directors gave to Beeler was in effect a substitute for his certificate of deposit, and for all purposes of the case the note was the note of the bank. The testimony was that the directors’ fund account was subject to check, the same as any other account in the bank. When the amount of the note was placed in the directors’ fund the relation of debtor and creditor was established between the bank and the directors, and the bank then rested under two liabilities where but one had existed before. It was obliged to pay checks on the directors’ fund account, the Beeler note constituted a liability, and the situation was the same as if the bank owed Beeler on his original certificate of deposit and on the note, too. Meanwhile, the bank rested under a third liability, the liability to the Traders Bank. The amount to the credit of the directors’ fund was checked out to take up the Farmers Union paper, which was worthless and was charged off. The liability to the directors as. depositors was thus discharged, but the liability on the Beeler note remained.
The directors contend that, in perfectly good faith, they supplied a fund of $8,000, which was used for the benefit of the bank, and that they should be reimbursed out of the bank’s assets. The contention is well founded as between the directors and the bank, and judgment was properly rendered in favor of the directors and against the bank and its receiver. The receiver contends, however, that the directors are estopped to claim payment out of the assets on an equality with depositors and other creditors, because of publication of the false statements. The directors reply that essential elements of estoppel are wanting. They did not intend to misrepresent, and there was no evidence that any depositor or other creditor did business with the bank relying on the published statements or any of them.
The statute required true statements of the bank’s liabilities. As indicated, it was the duty of the directors to see that the statements were correct. They are to be judged by what they manifested objectively, and their mental attitude with respect to the publication of false reports is immaterial.
The cases dealing with apparent assets are numerous. This case involves apparent liabilities. The same principles apply in determining the two kinds of cases. Some of the earlier cases, which established the principles, are interesting.
In the case of Skordal v. Stanton, 89 Minn. 511, the syllabus reads:
“Where directors of a bank execute and deliver a promissory note, payable to its order, to make good an impairment of its assets, and that it may continue to do business, they cannot, upon the appointment of a receiver in insolvency proceedings, be allowed to assert as a defense that there was no consideration for the note, and that they were merely accommodation makers.”
In the opinion the court disposed of a question of res judicata, and said:
“Even if this were not true, it is very evident, from the facts appearing, that Skordal has no claim upon funds in the hands of the receiver as against general creditors. The assets of the bank had become impaired, and, with other directors, he executed and delivered the note to make good the deficiency. He did this in order that the bank might keep its doors open and go on with its business. The bank continued to deal with depositors and others, all parties relying, undoubtedly, upon this, among other securities; and, when the assets are being collected for the purpose of meeting its pbligations, Skordal cannot be heard to deny the validity of his note. As to creditors, he is estopped from asserting this defense.” (p. 512.)
In the case of Best v. Thiel et al, 79 N. Y. 15, a mortgage was given by a trustee of a savings bank to a mortgagee, who assigned to the bank. In an action by the receiver of the bank to foreclose the mortgage, the defense was want of consideration. In the opinion the court said:
“Second. The defendant is estopped from denying the legal validity of the mortgage. It was given expressly to make up the deficit in the assets of the bank and to enable it to go on with its business. It was reported to the banking department as a portion of the assets and was in effect represented to the depositors of the bank as a portion of the assets, and all this was done by the defendant and with his knowledge and assent. ... It was in reliance upon this and the other securities gwen, that depositors were induced to make and leave deposits in the bank; and hence, upon the clearest principles of justice and morality, the defendant should be estopped from denying the validity of this mortgage.” (p. 18.)
In the case of Hurd v. Kelly, 78 N. Y. 588, a bond was given at the request of bank officials to enable the bank to continue to do business. In the opinion the court said:
“He knew that if the bond was treated as an asset and the bank thereby allowed to continue its business, new obligations to depositors would be entered into on the faith of the solvency of the institution. Under such circumstances it would be gross injustice to permit the defendant, after having aided the bank to procure credit with the community, to avoid, as against depositors and creditors, the payment of his bond on the allegation that the exact condition of the bank was not disclosed to him, or that it was much worse than was represented. The dealings between him and the officials of the bank, at whose request he signed the bond, ought not, in justice, to be allowed to affect the security given by him for the protection of those dealing with the bank and who must be presumed to have relied thereon in their dealings.” (p. 597.)
It is not likely that depositors and other creditors knew anything about the note in the Slcordal case, the mortgage in the Best case, or the bond in the Hurd case, and the cases are squeezed into the equitable-estoppel compartment of the legal cabinet by assuming and presuming that in each instance depositors and creditors did rely on the specific paper involved as actually swelling the bank’s assets, and as a result were induced to become or continue to be depositors and creditors. If in this instance the new wine is to be put into the old bottle of estoppel, we may presume the depositors and other creditors of the Emmett State Bank did business with it relying on the published reports as truthfully exhibiting the full extent of its liabilities.
The presumption that depositors and other creditors did in fact rely on apparent assets or apparent liabilities takes the cases out of the orthodox category of equitable estoppel, but the terminology only is faulty; the result reached is sound. As indicated, keeping the doors of a bank open for business is a continuing invitation to the public to do business with it. The statute is based on the legislature’s' determination of the fact, presumably from experience, that periodical publication of sworn statements, exhibiting in detail and under appropriate heads the resources and liabilities of a bank, will be a guide to those who consider acceptance of the invitation, will be a protection to those who do accept the invitation, and misinformation will necessarily mislead. When a bank fails it would not be practicable to summon all depositors and other creditors, inquire who did read and rely on the statements, regularly, occasionally, or not at all, and adjust priorities in the distribution of assets according to the result of the inquiry. To do that would tend to render the statute nugatory. The statute implies public injury from its violation, as it implies public benefit from its observance. To count as a liability, in the distribution of assets among creditors, liability to a director-creditor, which he suppressed from the published statements, would defeat the policy of the statute, and payment to him must be postponed until those for whose benefit the statute was enacted are paid.
The judgment of the district court is modified to conform to the view just expressed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the plaintiff from the judgment in favor of the defendant life insurance company in an action on a policy issued on the life of the husband of the plaintiff, she being the beneficiary named in the policy. The defense was on the ground that the insured was not in good health at the time the policy was delivered, that the first annual premium thereon was not paid when he was in good health, and that it was delivered contrary to the rules and instructions given the agent. Trial was had to a jury and a general verdict was rendered for the plaintiff, and answers were given by the jury to twenty-three special questions submitted. The court, on motion, struck out the answers to seven of them and modified the answer to another by striking out a qualifying clause for the support of which there was said to have been no evidence. The court further, on motion of the defendant, set aside the general verdict and rendered judgment on the remaining special answers for the defendant for its costs.
Many questions are raised and argued as to the instructions given and refused, but most, if not all, of. them become immaterial because of the final action of the court in rendering judgment on the answers to the special questions of the defendant, especially when those answers are all, or substantially all, supported by undisputed facts. As we see it there remain only three questions for serious consideration: First, concerning the payment of the first premium; second, concerning the health of the insured at the time of payment and delivery of policy; and, third, the right of the court to render judgment for defendant as it did, instead of granting a new trial.
On the first question we can safely eliminate all reference to rules about filling blanks, advancing money to pay premium, extending time to pay it, and prescribed rules and regulations governing agents in such matters. The jury found in answer to question 7 that payment of $66.30 was made October 3,1925, by plaintiff, Ollie Mus-grave, to C. H. Benson. There was only one other possible date that could be said to concern the payment and that was October 28, when Benson, the agent, sent his own check to the company for the premium. There is, of course, some.question as to what constitutes payment to the company of the premium and whether a note given by the wife, as was the fact here, was sufficient, but such matters become secondary in this" case when considered in connection with the health of the insured at the time the policy was delivered. In the first place, on this point we mention the language of the application signed by the' insured as follows:
“I hereby agree that the policy issued hereon shall not take effect until the first premium has been paid during my good health.”
The opening statement of counsel for plaintiff is important in the way of showing some undisputed facts. It is in part as follows:
“The testimony on the part of either the defendant or the plaintiff will show that about the twenty-eighth' of September, nine days after the policy came into the hands of Mr. Benson, that George Musgrave was taken sick and his sickness was such as made it advisable that he be taken to the hospital at Hays, Kan-., a,nd I belieye the testimony on the part of one of the other parties will show that he went into’ the hospital at Hays, Kan., on the twenty-eighth day of September, 1925. He remained there at the hospital until the twenty-seventh day of October, 1925. The testimony will show that upon Mr. Benson’s néxt trip out' to Mr. Musgrave’s for the purpose of delivering this insurance policy, he was informed by Mrs. Musgrave — that was on the third of October, 1925 — he was informed by Mrs. Musgrave that her husband was sick and at the hospital .at Hays. Mr. Benson left the policy of life insurance with Mrs. Musgrave,. delivered it to her.
“The testimony will show that on the twenty-ninth day of October, along in the evening after supper, George Musgrave was taken sick again. He became- violently ill, so ill that it was deemed advisable that he should be again sent to the hospital on the thirtieth day of October, 1925. He remained in the hospital from the thirtieth day of October, 1925, until the fourth or sixth— well, he died about the fourth day of November at the hospital at Hays.”
Instruction No. 9 was given as to facts conceded by both parties, and the record shows such concession was made at the time it was given by the court. A portion of it is as follows:
“It is conceded by both parties . . . that Benson on October 3, 1925, delivered the policy to the plaintiff, Ollie Musgrave; that at the time of the delivery her husband, George Musgrave, the insured, was ill in a hospital at Hays.”
The answers to the several questions submitted to the jury, other than those set aside, are as follows:
“1. Was George Musgrave in good health on September 9, 1925? A. Yes.
“6. To whom and when was the policy of insurance delivered by Benson? A. To plaintiff, Ollie Musgrave, October 3, 1925.
“7. What payment; if any," of the first year’s'.premium was made for/the policy on the life of George Musgrave, and when and by whom and to whom? A. Payment $66.30 made October 3, 1925, by plaintiff, Ollie Musgrave, to . . . C. H. Benson.
“9. What oral agreement, if any, was made between George Musgrave and Benson on or about September 9, 1925, as to paying the first year’s premium? A. Benson orally agreed to make loan to Musgrave to meet payment of first year’s premium.
“10. When did George Musgrave go to the hospital, and during what time' did he remain there? A. Entered hospital September 27 or 28, 1925. Discharged October 27, 1925. Re-entered October 30, 1925. Remained until November 4, 1925.
“11. When did George Musgrave first become ill? A. During night pre-' ceding first' entry to hospital September 27 or 28, 1925.
“12. When did Benson receive the policy from the defendant society? A. September 19, 1925.
“13. When did Benson seek to deliver the policy to George Musgrave? A. Pour or five days after receiving policy from insurance society.
“16. What was the illness that caused the death of George Musgrave? A. Encephalitis. -
“17. Did the agent, C. H. Benson, agree with George Musgrave to grant to Musgrave an extension of time until July, 1926, to pay the first premium to Benson, and Benson agree to pay the first premium to the defendant? A. No.
“18. Was George Musgrave in good health when he signed the application for insurance? A. Yes.
“19. Was George Musgrave in good health at the time, the defendant accepted his application and issued the insurance policy? A. Yes.
. “20. Was George Musgrave in good health at the time the insurance policy was received by Benson for delivery to George Musgrave? A. Yes.
“21. Was George Musgrave in good health at the time’when Benson first attempted to make delivery of the policy? A. Yes.”
■ .By the express terms of the application signed by the insured the policy “shall not take effect until the first premium has been paid during my good health.” The jury has said the premium was paid October 3, 1925. Was that during the good health of the insured? In the answers-set aside by the court the jury said he was in good health on October 3,- 1925. In the face of the opening statement of counsel and the - admission in instruction No. 9, to say nothing of the hospital record, the doctor’s certificate, and the testimony of the plaintiff and others on the question of health, it is easily understood why the trial court set those answers aside. Let üs get the dates in a bird’s-eye view: Application for insurance made September 9, 1925; policy dated September 15, 1925; received by agent September 19, 1925; agent attempted, to deliver it four or five days later; insured taken sick September 27 or 28, 1925; went to hospital at Hays, September 28, 1925; policy handed by agent to plaintiff October 3, 1925; insured remained at hospital until October 27, 1925; at home from October 27 to October 30, 1925; arrived at hospital October 30, 1925; died November 4, 1925. There is no contention of fraud in applying for this policy. The company .claims protection against misconduct in delivering it against specific instructions that it must not be delivered unless the insured is in good health at the time of delivery.
“The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at .the time of its delivery is to protect the company against a new element of risk through a change in the applicant’s condition arising after the company’s investigation had been made.” (Priest v. Life Insurance Co., 116 Kan. 421, syl. ¶ 5, 227 Pac. 538.)
Benson, the agent, testified he knew when he delivered the policy to the wife that the insured was sick and in the hospital. His duty under his instructions and the provision of the application, known to him and the insured, was to refuse to deliver the policy. This is the point in the transaction where the irregularity begins. Unless the insured was in good health at the time the policy was delivered all parties could not help but know it was improper and illegal to deliver or receive it.
“Where false answers concerning his health were knowingly made by an ■applicant for life insurance, the fact that the agent through whom the application was made, but who was not authorized to decide whether the policy should be issued, knew of their falsity does not prevent the company from successfully resisting payment on the ground of such fraud.” (Priest v. Life Insurance Co., supra, syl. ¶ 4.)
Appellant insists that after the delivery the company has waived its rights and is estopped to raise the question of ill health, but the soundness of that contention was not recognized in the case above quoted. If the plaintiff expects to bind the defendant by estoppel or waiver she must clearly and unequivocally show an intent on the part- of the defendant to relinquish a right.
“To constitute a waiver of a contract right, there must be a clear, unequivocal and decisive act of the party showing an intention to relinquish the right, or acts amounting to an estoppel on his part.” (Cure v. Insurance Co., 109 Kan. 259, syl. ¶ 2,198 Pac. 940.)
The case of Green v. Insurance Co., 106 Kan. 90, 186 Pac. 970, is almost identical with the present one, except the agent did not ac tually hand over the policy to the wife, but told her it was all right in every way and she could depend upon it. It was held that the conditions precedent to the taking effect of the policy were not waived. The very next clause in the application in this case to the one requiring good health and payment of premium as conditions precedent to the taking effect of the policy provides that agents are not authorized to waive anything. There could not in this case have been a clear-and unequivocal intention of the company in the attempted delivery of the policy by the agent to relinquish any rights of the company in violation of the very terms of the application.
Appellant complains of the court rendering judgment for defendant on the answers to the special questions notwithstanding the general verdict, and says that if the verdict could not stand a new trial should be granted, for possibly the plaintiff might be able to add something to her testimony. The practice of rendering judg-' ment on the special answers notwithstanding the general verdict is not at all unusual.
“Rule followed that special findings of the jury, when inconsistent with the general verdict, control the latter, and judgment should be entered accordingly.” (Tacha v. Railway Co., 97 Kan. 571, syl. ¶ 1, 155 Pac. 922.)
“Special findings of a jury control their verdict and, although one of the findings is set aside for lack of support in the evidence, the court may render judgment on the remaining special findings notwithstanding the verdict, where the discarded finding does not conflict with or impair the force of the other findings which of themselves settle the substantial issues in the case.” (Hurt v. Stout, 105 Kan. 54, syl. ¶ 1, 181 Pac. 623.)
The court was fully within its powers and did not deprive the appellant of any legal rights in rendering judgment for defendant on the answers to the special questions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, the administrator of the estate of Nettie Jasper, deceased, appointed by the probate court of Doniphan county, on April 12,1926, sued to recover on a lost promissory note given to Nettie Jasper during her lifetime. The defendant answered and alleged:
“That the said Nettie Jasper died testate a resident of the state of Missouri, and that in the probate court of Buchanan, county, Missouri, said will of said Nettie Jasper was duly probated and said estate administered and the estate closed. That this defendant was indebted in her lifetime to Nettie Jasper on a certain promissory note for $760, and on which note in the lifetime of Nettie Jasper there had been paid on the 13th of June, 1922, the sum of $23.00. That said note passed into the hands of the executrix of the estate of Nettie Jasper, under the appointment of the probate court of Buchanan county, Missouri, for administration, and by negotiations with said executrix and by order of the said probate court of Buchanan county, Missouri, then having full jurisdiction of the administration of said estate, the said note was by compromise ordered by said court fully paid and discharged and surrendered to this defendant as fully paid. That by said compromise order this defendant paid to said executrix in said probate court of Buchanan county, Missouri, the sum of $400, and surrendered as settled and paid a certain counterclaim or cause of action that this defendant had against said Nettie Jasper. A copy of the order compromising said note and claim as made by the said probate court of Buchanan, county, Missouri, is hereto attached, made a part of this answer and marked Exhibit A. A copy of the agreement of settlement in said probate court of Buchanan county, Missouri, is also hereto attached, made a part of this answer and marked Exhibit B. That by reason of the said action of said probate court of Buchanan county, Missouri, the said note is fully settled and said matter is a thing fully adjudicated.”
The pleadings disclosed that this was done in 1925. The answer set up a counterclaim against the note which, if the allegations concerning the counterclaim were true would have defeated recovery by the plaintiff.
In reply the administrator denied the allegations of the answer and alleged in substance that the debt represented by the note was an asset of the estate in the state of Kansas subject to payment in the probate court of Doniphan county; that the administratrix of the estate in Buchanan county, Missouri, was not the administratrix of the estate of Nettie Jasper in the state of Kansas; that as administratrix of the estate in Missouri she had no jurisdiction over the estate in Kansas; that the probate court of Buchanan county, Missouri, had no right or authority to settle or compromise the indebtedness evidenced by the note and had no jurisdiction over the assets of the estate in Doniphan county; that the order of the probate court of Buchanan county in Missouri was void, and that the settlement of the note in the probate court of that county was without due consideration, inequitable, unfair, unjust, and void. The reply was not verified.
In this action the defendants filed a motion for judgment on the pleadings. Judgment was rendered thereon in favor of the defendants, and the plaintiff appeals.
It was admitted by the parties that the law of Missouri concerning compromising debts due a deceased person’s estate is the same as the law of Kansas. The Kansas statute on that subject is in part as follows:
“Upon proper proof being made by an executor or administrator to the probate court that any claim, debt or demand whatsoever belonging to the estate in his hands to be administered and accruing in the lifetime of the deceased, represented by such executor or administrator, cannot be collected — first, on account of the doubtful solvency or actual insolvency of the person owning the same . . third, by reason of some legal or equitable defense which such debtor or debtors shall allege and make appear against the saíne, . . , said court may order such claim, debt or demand to be compromised.” (R. S. 22-526.)
In Denny v. Faulkner, 22 Kan. 89, 96, this court said:
“But no question arises here between two administrations, or between a foreign administrator and a home creditor. The administratrix appointed in the domicile of the decedent had acquired possession of the property, and it is immaterial whether she had first taken possession in Nebraska and afterward moved the property into Kansas, or had in the first instance taken the possession in Kansas. In the absence of any opposing administration, the courts of this state, ex comitate, will recognize the title and possession of persona] property in this state in the administrator appointed in the domicile of the decedent. Payment to such an administrator of a debt due to the decedent will be good.”
In Moore, Adm’x, v. Jordan, 36 Kan. 271, 276, 13 Pac. 337, the court quoted from Goodlett v. Anderson, 7 Lea. 289, as follows:
“ ‘Notes are bona notabilia at the domicile of the intestate when left there at the time of his death, and that administration taken out in another state where the debtor resides does not draw thereto the title or the right to the notes unless they actually came to the hands of such administrator.’ ”
This coürt, in Moore, Adm’x, v. Jordan, supra, further said:
“It has been decided that payment to an administrator appointed in the state in which the intestate had his domicile at the time of his death is good against any administrator appointed elsewhere. (Wilkins v. Ellett, 9 Wall. 740; Wyman v. Halstead, 109 U. S. 656.) And it has been held in this staté that in the absence of any opposing administration, the courts in this state, ex comitate, will recognize the title and possession of personal property in this state in an administrator appointed in the domicile of the decedent, and that payment to such an administrator of a debt due to the decedent will be good. (Denny v. Faulkner, 22 Kan. 96.) If there are no creditors outside of the domicile of the intestate, debtors of the estate elsewhere might make settlement with the principal administrator and secure a full discharge of the debt.” (p. 277.)
This principle was further discussed in Ames v. Bank, 105 Kan. 83, 181 Pac. 564, where this court used the following language:
“A resident of New Mexico died there, intestate, the owner of certificates of deposit issued by a bank in Kansas. An administrator was duly appointed by the probate court of New Mexico, who brought suit in this state against the bank to recover the indebtedness represented by the certificates. An administrator who had been appointed by the probate court in this state intervened, and claimed the right to recover the debt. Held, that the administration here was ancillary to the principal administration at the domicile of the deceased, and that it was error to render judgment in favor of the ancillary administrator.” (Syl.)
The claim against the defendants had been compromised and paid before the plaintiff was appointed administrator by the probate court of Doniphan county.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover for gravel taken from the Neosho river to be used on public roads in Neosho county. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The cause was tried without a jury, and findings of fact and conclusions of law were made as follows:
“The issues submitted to the court in this case pertain to the navigability of the Neosho river. If the court finds under the facts submitted and the law that the Neosho river is a. navigable stream then and in that event the judgment and verdict must be in favor of the defendant, otherwise it would be in favor of the plaintiff.
“1. The Neosho river where it passes through or by the lands in litigation in Neosho county, Kansas, is a meandered stream, and the lands were described in the patents, at least part of them, as lots along said river.
“2. In early days there were used on said river at one or more places ferry boats. This was before the county had been supplied with bridges.
“3. The evidence shows that in early days some logs were floated or rafted in parts of the river to a mill or mills located on said stream.
“4. Light boats, some run by motor power, have been used on the river for the transfer of passengers for pleasure and to a very limited extent for hire.
“5. There was evidence introduced showing that at one time while the river was at ordinary height a boat traversed the river from Oswego, Kansas, to Humboldt, Kansas.
“6. In ordinary times, or ordinary stages of the water in the Neosho river, at the points in question light boats could be transferred but could not be transported any great distance up or down the river at such ordinary times without being pushed or helped over the riffles.
“7. The riffles are very shallow, and many of them, in said river as it runs through Neosho county.
“8. The Neosho river has never been used for the transportation of the products of the country along said river in Neosho county, Kansas, such as corn, wheat, oats, hay, cattle, hogs, or other stock.
“9. The Neosho river as a watercourse through Neosho county, has never been susceptible of use for the purpose of commerce and has not possessed a capacity for valuable floatage in the transportation to market of the products of the country through which it runs, and has never been of practical usefulness to the public as a highway in its natural state.
“10. It is admitted by the defendant that quantities of gravel were taken from the lands of the plaintiff, but not in the quantity nor value as alleged by him.
“11. The court finds the amount of gravel taken as follows, and of the value of 8568.60 at ten cents per yard.
“Conclusions of Law.
“1. Although the Neosho river is a meandered stream through Neosho county, Kansas, at the points where the gravel was taken from the lands in litigation, yet in its capacity for transportation of passengers, goods, and merchandise not being practicable, the Neosho river is not a navigable stream in fact, and the riparian owners along said stream own the land to the thread or' center of the stream.
“2. Judgment will be rendered for the plaintiff in the amount of 8568.60', and that the plaintiff recover his costs.”
1. The principal question to be determined in this action concerns the navigability of the Neosho riyer in Neosho county.
In 29 Cyc. 289 it is said:
“Water is navigable in law, although not tidal, where navigable in-fact, and is navigable in fact where it is of sufficient capacity to be capable of being used for useful purposes of navigation, that is, for trade and travel in the usual and ordinary modes.”
In Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845, this court declared that “the fact that a government surveyor meandered the banks of a-river is evidence that the river was navigable, but is not conclusive of that fact,” but that “there is no legal fiction that a stream not navigable in fact is still to be held navigable as a matter of law” (p. 547).
In Oklahoma v. Texas, 258 U. S. 574, 586, the supreme court of the United States used the following language:
“Navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway for commerce; over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”
2. Did the plaintiff own the land to the thread of the Neosho river? In Kregar v. Fogarty, 78 Kan. 541, 549, 96 Pac. 845, this court said:
“Under the common law of this state the title of a riparian owner upon unnavigable waters extends to the thread of the stream.”
In Piazzek v. Drainage District, 119 Kan. 119, 237 Pac. 1059, this court said:
“The terms ‘public waters’ and ‘navigable waters’ are ordinarily synonymous. The term ‘private waters’ is ordinarily used to designate nonnavigable waters. The title to the beds of nonnavigable rivers is in the riparian owners and not in the state.” (Syl. J 1.)
In Railroad Company v. Schurmeir, 74 U. S. 272,287, the supreme court of the United States said that “proprietors, bordering on streams not navigable, unless restricted by the terms of their grant, hold to the centre of the stream.” That rule was followed in Kirby v. Potter, 138 Cal. 686, 687, and that language was there quoted.
Neither Kregar v. Fogarty nor Piazzek v. Drainage District conflicts with Wood v. Fowler, 26 Kan. 682; Dana v. Hurst, 86 Kan. 947,122 Pac. 1040; State, ex rel., v. Akers, 92 Kan, 169, 140 Pac. 637; or Winters v. Myers, 92 Kan. 414, 140 Pac. 1033. What was said in the four last-mentioned cases concerned either the Kansas or Arkansas rivers, both of which were then or had been declared navigable streams. The meandering of those streams by government survey was considered as evidence to assist in determining whether or not they were navigable. That fact marks the distinction between Kregar v. Fogarty and Piazzek v. Drainage District and the present action on the one side and Wood v. Fowler, Dana v. Hurst, State, ex rel., v. Akers, and Winter v. Myers, on the other side. The contest in Kregar v. Fogarty involved the title to the bed of the Smoky Hill river near Fort Riley at a place where the river had been meandered in the government sürvey. The court held that the river was not navigable, and stated that the right of the riparian owner extended to the thread of the stream. The determination of the present controversy is controlled by Kregar v. Fogarty.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover for the conversion of certain bonds issued by the Arctic Ice and Refrigerating Company. Plaintiffs prevailed and defendants appeal.
Very briefly and in substance the facts are these: The Arctic
Ice and Refrigerating Company was in financial difficulties. Its stock was owned by the Trousdale family, including Lillian Trousdale Phillips, and Charles Phillips, one of the defendants. The com pany had outstanding the bonds in controversy, which were owned by the Trousdales. Phillips filed a schedule in bankruptcy for the company showing its liabilities to be $113,500. Sale of the company’s property was arranged to be made to certain men who termed themselves “the bunch” and who organized The Kansas Ice and Refrigerating Company, capitalized at $200,000.' Walter Trousdale, plaintiff herein, was one of “the bunch.” The sales contract provided that the new company would pay $113,500 of the debts of the old company and issue to Lillian Trousdale Phillips, $86j500 of the new company’s preferred stock. After the new organization was completed, it appéared that the old company owed $18,500 in addition to the $113,500 listed by Phillips. The question of disposing of this additional indebtedness was discussed at various meetings of “the bunch.” There was a question as to whether or not the bonds now in controversy should be given as collateral to protect the new company against the excess debts. Eventually the stock of the second company was sold to the defendant, Amerman, and his associates. Amerman paid certain obligations assumed by him. The bonds in question remained in the American State Bank, where they had been deposited by plaintiffs for safe-keeping. In 1922, the defendant, Phillips, replevied the bonds from the bank, Amerman signing the replevin bond. The bonds were,delivered up .to the defendants and canceled. The plaintiffs later learned of the replevin action' and filed an .interplea therein, claiming to own the bonds in controversy. The actiOn was dismissed by the plaintiff (defendant Phillips), following which the plaintiffs brought this action to recover the value of the bonds, they having been canceled. Trial was had and plaintiffs recovered.
The defendant, Amerman, contends that a motion for judgment on the opening statement filed by him should have been sustained because the petition stated a cause of action in tort which was barred by the statute of limitations. He argues ably and energetically that plaintiffs, having adopted the theory that the action was one in tort, were bound thereby; that if the action be treated as one on the case, the tort being waived, that the proof was insufficient to make out a case.
The petition alleged substantially that defendant Phillips, plaintiff in the replevin action, on May 17, 1921, was a joint owner and in possession of the bonds, and deposited them in the American State Bank for safe-keeping; that the bonds remained in the bank until about August 2, 1922, when the defendants, without the knowledge and consent of the plaintiffs, through a replevin action seized and' took possession of the bonds; that they are of the value of $11,100; that on May 6, 1925, the defendant Phillips, plaintiff in the replevin action, dismissed the replevin action with prejudice; that the defendants took possession of the property of the plaintiffs, and are indebted to the plaintiffs in the sum of $11,100 with interest, etc.; that defendants have been absent from the state of Kansas for some eighteen months since August 2, 1922, wherefore they prayed recovery. Motions were made to make the petition more definite and certain, pending the hearing of which the petition was amended by interlineation in respects which need not be discussed. Answers and replies were filed and the case tried out. The evidence was sufficient to sustain the verdict. The trial court, in passing upon a motion for new trial, filed a written opinion, stating among other things:
.“The motion for-judgment on the pleadings and the motion for a new trial are overruled. The motion for judgment for the defendants is based on the theory that the petition does not state a cause of action on an implied contract. The petition is not as complete and clear by anjr means as it should be, and although this is a very close question I believe that the petition states a cause of action on an implied contract. The two saving features about the petition are: First, that it used the word ‘indebted,’ and states that the defendants are indebted to the plaintiff in a certain sum; second, that the petition does not ask for damages as would be the case in an action founded on tort, but does ask for the amount of the bonds.”
We are of opinion the trial court committed no error in overruling defendant’s motion leveled at the petition.
“Ordinarily it is enough fairly to inform the defendant what the suit is about, and even if inconsistencies appear they are not fatal if, on any theory, the plaintiff states a cause of action. Whether or not the petition is technically good becomes less material after a full trial on the merits in which the subject of controversy has been thoroughly investigated.” (Brooks v. Weik, 114 Kan. 402, 408, 219 Pac. 528. See, also, Arcadia Valley Ass’n v. Grovier-Starr Produce Co., 120 Kan. 19, 242 Pac. 119; Schroyer v. Ruffhead, 122 Kan. 767, 253 Pac. 414; Grenola State Bank v. Lynam, 123 Kan. 275, 255 Pac. 44.)
It is argued with much earnestness that a new trial should have been granted because of newly discovered evidence. What was stated on this point in the trial court’s written opinion sufficiently disposes of the contention. The court said:
“The motion for a new trial is based principally on the claim of newly discovered evidence. Mr. Johns testified on the hearing of the motion for a new trial as to a certain contract that was made between Phillips, Trousdale and himself, by which, when certain claims were settled, Trousdale would cancel the bonds and take preferred stock for what cash he had in them and release all his interest in preferred stock to Mrs. Lillian Phillips. There was no evidence produced on the trial to show that Johns and Phillips ever complied with their part of this contract and offered to deliver the preferred stock to Trousdale. If Johns and Phillips did not comply with their contract they cannot complain that Trousdale did not comply with his part of it. . . .
“This action was set for trial several times, and the defendant, Charles Phillips, knew, or ought to have known, that it was set for trial, and .did not try to keep informed as to when the case would be tried.
“I want the journal entry overruling the motion for new trial to show, as stated above, that the evidence does not show that Johns fulfilled his part of the contract with Trousdale by offering to give him the preferred stock, and that Phillips was indifferent about the assignment of the case for trial.”
Various other contentions are made which, however, go to the question as to whether the petition stated an action in tort and that defendants were misled by the attitude and theory of the plaintiffs as to their right of recovery. No prejudice is shown, and what has been said with reference to the petition stating a cause of action sufficiently disposes of these contentions. A contention that the court misdirected the jury cannot be sustained. We find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The plaintiff is the wife of William Ogg; the defendants, Frank R. and Mary D. Ogg, are William’s parents. The action was one by the wife to recover damages from'her husband’s parents for alienation of the husband’s affections. Trial to a jury resulted in a verdict for plaintiff. The court set aside the verdict .against the mother, but rendered judgment against the father. The father appeals, and the plaintiff has filed a cross appeal from the order setting aside the verdict as to the mother.
The Ogg family has resided in Olathe, Johnson county, for many years. The plaintiff originally lived in Iowa, where she had previously been married and divorced. She attended the state teachers college at Pittsburg, Kan., and was later engaged in teaching school four and one-half miles northwest of Olathe. While teaching she met William Ogg. They became engaged about the middle of April, 1923, and were married at Joplin, Mo., July 31, the same year. They returned to Olathe a few days following, lived with defendants four or five weeks, then moved into an adjacent house, where they continued to live until they where separated, October 6, 1924.
The defendant, F. R. Ogg, contends that the court erred in .its refusal to enter judgment for him on the special findings returned by the jury, notwithstanding the general verdict, and that there was not sufficient evidence upon which to base the general verdict of the jury and the judgment rendered against him. The plaintiff argues that the fair inferences, from all the facts and circumstances, were sufficient to support the verdict and judgment even though there was no direct evidence of the alienation of the husband’s affections by his parents.
The plaintiff’s evidence tended to show that early in their relations, the plaintiff apprised William Ogg that she had previously been married and divorced. He cautioned her to say nothing of it to his parents, as they were much opposed to divorces. Previous to the marriage, upon inquiry, the father was told by plaintiff she had had no serious love affair. In the early winter of 1923 and 1924 Father Ogg became ill and went to the hospital in December, 1923. Plaintiff and her husband went to live with the mother during the time Father Ogg- was in the hospital, and when he returned home the plaintiff attended and nursed him. When plaintiff and her husband returned home, they found the water pipes frozen and their house generally in bad condition. They talked of building and began to negotiate for another and better house. Without relating the details, it is sufficient to say Father Ogg was not favorably impressed with their negotiations, and friction resulted. However, the first matter which indicates friction between the families is related by the plaintiff, to the effect that some time during the summer of 1924 the defendants came to the house where plaintiff and her husband were living, and Father Ogg said, in substance that William had written a check on him of $19.60 for groceries, and that he was paying them $100 a month and thought that should be sufficient for them to live on, that William was present, but that Mr. Ogg directed his remarks to her. He said that William had a mania for spending money; that he did not drink, did not gamble, and did not think he spent it for any immoral purpose, but for her to watch him.
Eventually, about August 1, 1924, plaintiff and her husband agreed to purchase a home for a stipulated price of $2,700. Plaintiff’s husband issued a check on Father Ogg’s account for $500. The father paid the check, but trouble arose over the transaction. The father claimed the property could have been purchased for $2,200. In the meantime, the father discovered that his son’s wife had previously been married and divorced. This caused an estrangement between plaintiff and her husband’s parents. The father became active in learning the details of the divorce. He wrote to the clerk of the court in Iowa and obtained a copy of the decree of divorce, which he sent to his son. The father wrote other letters in quest of information concerning the plaintiff’s life, standing and conduct previous to her marriage with his son. On October 6, 1924, William had some words with plaintiff, packed up some of his belongings, and went to his father’s home. In a short time he returned, laid two five-dollar bills on the table and told plaintiff she could go home or “do anything you want to,” and he again left, returning to his father’s house. The plaintiff followed him there, and on several other occasions went to the house of Father and Mother Ogg in efforts to have interviews with her husband to persuade him to return home.
The question remains, What did the parents say or do to cause the plaintiff’s husband to leave her or to alienate his affections? Certainly they were not to blame because on moral and religious grounds they were opposed to divorces, and were shocked to learn that their son had married a divorcee. Nor can they be penalized in damages because their attitude towards plaintiff may have changed when they learned that fact, nor because their changed attitude may have had some effect on their son’s disposition towards his wife. In rather extensive abstracts filed by both sides, we are unable to discover any culpable thing either of them said or did which caused the separation. The plaintiff testified that she met Father Ogg on the street a few days before the separation, and in a heated conversation he said “he would see that William did not live with me (plaintiff) another day.” This conversation occurred on Thursday. William left plaintiff the following Monday. However, plaintiff admitted this word was not brought home to her husband. She also testified that:
“He (Father Ogg) told me that I had better go home to my mother, that William was not coming back. He said, T understand, I hear you are going to sue me for alienation of affections, and that you are going to sue mother and Josephine,’ and I said I hadn’t thought anything of the kind. I hadn’t even talked to anybody. He said, ‘You can sue us if you want to, but it won’t get you anywhere'.’ ...
“Mother had told me that William would not come back to me if she could prevent it. She had no respect for a divorcee and no use for divorces. There had never been any divorces in her family of nine children. At a later conversation, she said that she asked Mother Ogg how William was, and she said better, and I asked her when he was coming back and she said he wasn’t coming home, and William came in about that time and said for me not to bother mother, for me to go back to the house; and he started out the door, and I started out the door following him, and mother followed me to the door and said: ‘Sophia, don’t start anything, don’t sue us.’ In the last conversation I had over at the house, mother said William was not coming back.
“Q. Tell the jury what was said in that conversation? A. Well she said William wasn’t coming back, and he would not come back if she could help it; anything she could do to prevent it he would not come back. I went over to the house one evening after that. William and Father and Mother Ogg were there. I talked to mother and father then. I asked Mr. Ogg when William was coming home and he said he wasn’t coming home. . . .”
Plaintiff testified that she thought they, or Father Ogg, was trying to get William away from her, but the record other than above and similar quotations, discloses nothing more than surmise. And surmise, conjecture, speculation, plausibility, do not supply the want of proof. Guilt may not be inferred from opportunity. (Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741.) Pertinent special findings of the jury follows:
“1. What did William F. Ogg do and say when plaintiff showed him the letter and decree of divorce sent to her by F. R. Ogg? A. (a) Tore up and threw in wastebasket. (6) ‘That’s the way of the damned old fool when he gets mad.’ Per Sophia Ogg’s testimony.
“2. Did F. R. Ogg say to his son on October 6, 1924, when he first learned that his son had separated from his wife, that he ought to go back and live with her and try it again. A. Yes. As per F. R. Ogg’s testimony.
“3. Did the plaintiff join her husband, W. F. Ogg, before the marriage in deceiving the defendants, or in concealing from them the fact that plaintiff had been previously married and divorced? A. Yes; on instructions from her intended husband, W. F. Ogg.
“4. After learning from William F. Ogg at the interview testified to by the plaintiff, that he, the said William F. Ogg, knew that plaintiff had been previously married and divorced, did F. R. Ogg say that if it was all right with him, meaning his son, he guessed it would have to be all right with them, meaning F. R. Ogg and Mary D. Ogg, the defendants? A. Yes.
“5. Did the plaintiff communicate to her husband, W. F. Ogg, what she claims his father said to her in front of the Moneta theater a short time before the separation? A. No.
“6. Did F. R. Ogg or Mary D. Ogg, or either of them, ever threaten to disinherit W. F. Ogg if he continued to live with the plaintiff? A. No.
“8. After the interview testified to by the plaintiff in front of the Moneta theater and referred to in question No. 5, did the defendant, F. R. Ogg, so far as the evidence in this case shows, have any talk with his son W. F. Ogg about his marital relations with Sophia Ogg or his separation from her? A. No.
“9. What, if anything, on or prior to the 6th day of October, 1924, the day of the separation, had the defendant Mary D. Ogg said or done to induce W. F. Ogg to leave his wife? A. Nothing.
“12. If you find for the plaintiff, state separately the amount of actual damages you award her? A. $10,000.
“13. If you find in favor of the plaintiff, what amount, if any, do you allow for exemplary or punitive damages. A. None.”
We are of opinion the court should have sustained the motion of the defendant, E. R. Ogg, for judgment on the special findings. The jury found, and there was evidence to support the finding, that when Father Ogg first learned that his son had separated from his wife he said to his son that he ought to go back and live with her and try it again. Perhaps the most important evidence offered by the plantiff was her statement of the conversation which occurred in front of the Moneta theater a few days before the separation to the' effect that he, the father, would see that William would not live with her another day. The jury found that after this interview the defendant had no talk with his son about his marital relations or his separation from her.
The record discloses no substantial evidence showing that the defendants conspired, confederated together or cooperated with each other to alienate the affections of their son from his wife, or to cause their separation. It discloses no evidence that after William Ogg returned to his parental home on the morning of October 6, did he manifest any desire to return to his wife or to be reconciled to her, nor does the record disclose any evidence that the defendant, F. R. Ogg, at any time after William left the plaintiff and returned to the father’s home, induced his son by threat or persuasion to remain away from his wife or to do anything save to permit the son to remain in the parental home and afforded him shelter therein. In Cooper v. Cooper, 102 Kan. 378, 171 Pac. 5, it was said in the opinion:
“The law does not require anything whatever from the hands of parents-in-law, except that they do not meddle with the domestic felicity and affections of their son and his wife. The parents may hold aloof, decline to recognize the wife, show no interest in her or her children, or cut off their son without a penny for marrying without their approval. Wise parents-in-law, of course,'do none of these things. They usually consider the daughter-in-law an accession to their family, take her into their hearts and affections, and relive the joys of their own youth in the marital happiness of their children; and when grandchildren come there is commonly a continuous and delightful contest between the youthful parents and the grandparents for first place in the affections of the grandchildren. That is the way it ought to be. Happy the grandparents who view the matter in that light. But if they fail to do so, they are not to be penalized in damages, unless they are guilty of some intentional acts which tend to alienate their son’s affection for his wife. To support an action against parents-in-law, for alienating their son’s affections for his wife, a much stronger and clearer- case is required to be established than against a stranger.” (p. 380.)
In Meek v. Meek, 118 Kan. 106, 108, 233 Pac. 1032, it was said in the opinion:
“In an action for alienation of affections brought against a parent of the plaintiff’s spouse, proof of a higher degree, if not of a different kind, is required than in the case of a stranger. (30 C. J. 1129, 1130, 1145; Cooper v. Cooper, 102 Kan. 378, 171 Pac. 5; Erickson v. Erickson, 98 Kan. 244, 158 Pac. 48; Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942.)”
What has been said necessarily disposes of plaintiff’s cross appeal. There was substantial testimony supporting the findings of the jury that Mary Ogg did nothing to induce William to leave the plaintiff.
Complaint that the court erred in refusal to admit evidence offered by the plaintiff cannot be sustained. The proffered testi mony could not, in our opinion, have changed the result. Moreover, it was not offered on a motion for new trial, and error cannot be predicated upon its rejection. (Rooney v. McDermott, 121 Kan. 93, 246 Pac. 183.)
The judgment, in so far as it pertains to the plaintiff’s cross appeal, is affirmed. In so far as it relates to the defendant, F. R. Ogg, it is reversed and the cause is remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment convicting the defendant of having possession of intoxicating liquor. There are eight assignments of error, but the only matters argued may be summarized into the statement that the defendant contends that there was not evidence sufficient to sustain the verdict of the jury.
There was evidence which tended to prove the following facts: That the defendant was working on an oil well near Sun City in Barber county; that he desired to go to Medicine Lodge in that county; that he went in an automobile accompanied by his niece; that he owned a house in Medicine Lodge where his parents lived; that his father had made some intoxicating liquor; that the defendant and his niece went in the automobile to where his parents were living; that he got out of the automobile and went into the house, but left his niece in the automobile; that he was in the house ten or fifteen minutes; that in the automobile there were two jugs, one of which was empty and the other of which contained a small quantity of intoxicating liquor; that they^arrived at Medicine Lodge about 8:30 in the evening; that when the defendant came out of the house some mules made a noise and he asked-his niece if she was afraid to make the trip; that she replied that she was not afraid to take the stuff over there; and that the defendant went to the automobile and was handling the jugs when the sheriff and his deputies appeared and took the jugs and liquor.
Extended argument concerning the sufficiency of the evidence to show that the defendant had possession of the jugs and that he knew what was in them cannot serve any good purpose. It was enough to warrant the jury in finding the defendant guilty of the possession of the intoxicating liquor. Any reasonable doubt concerning that matter was for the jury, not for this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.;
An opinion in this case was filed June 12, 1926 (Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524). Another opinion, one on rehearing, was filed January 28, 1927 (122 Kan. 222, 256 Pac. 475). Another opinion, one on another rehearing, was filed March 12,1927 (123 Kan. 10). In that opinion a rehearing of the entire case and of all matters involved in it was directed. New briefs have been filed, and the cause has been re-argued. No question has been raised concerning the accuracy of the statements of facts contained in the former opinions. The facts are not restated except so far as is necessary to show the conclusion now reached by the court.
The Lake State Bank had been made a county depository for Barber county. To secure the payment of deposits, the bond sued on was given by the Lake State Bank to the county. In Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524, the court held that the bond was one for two years and expired on February 4, 1921. On that day, at the close of business, there was on deposit in the bank to the credit of the county treasurer, $146,375.50. On April 4, 1921, a new arrangement was made between the board of county commissioners and the Lake State Bank by which deposits were continued to be made in the Lake State Bank after that time. The bank continued to do business until November 18,1921, when it was closed. After April 5,1921, the county treasurer continued to deposit money with the Lake State Bank and continued to draw checks on that bank. On April 5, 1921, the county had on deposit in the Lake State-Bank the sum of $135,-312.29.
It is urged that “the leaving of the funds in the Lake State Bank after the new contract was entered into amounted to a redeposit of the county funds under the new contract, thus terminating all liability.”
In Pittsburg, Appellant, v. Rhodes et al., 230 Pa. St. 397, the following language is found:
“Where a bank is selected as a city depository for a term of years, and executes a bond to secure the safe custody of all moneys deposited with it, and at the expiration of the term it executes a new bond with different sureties for a new term, and on the same day enters the exact balance to the city’s credit in the individual transfer ledger as a deposit by the city, and the city thereafter adds to and checks against this balance in amounts largely exceeding such balance, the sureties on the first bond are discharged of liability for a default occurring during the second term.” (Syl.)
The supreme court of Mississippi in Fidelity & Deposit Co. v. Wilkinson, 109 Miss. 879, 890, said:
“Permitting the bank to retain the money deposited with it when the new arrangement for the year of 1913 was made, instead of requiring it to then pay the money into the county treasury, was the equivalent in all respects of the county then depositing it with the bank. When a new arrangement is made with the county depository, ordinarily it would be a vain and useless thing to require it to pay the money then due by it to the county into the county treasury, and for the treasurer to then immediately pay it over again to the bank. When appellants executed the bonds here in question, they did so with the full knowledge that a large part of the banking business is a mere matter of bookkeeping. One of the purposes for the execution by the bank of the bonds of 1913 was that it might not then be called upon to pay to the county the money due it.”
What was said in Tire & Rubber Co. v. Bank, 109 Kan. 772, 773. 204 Pac. 992, is pertinent. There the court said:
“The court is of the opinion that the rule applies that where a payment to a bank is made by a check drawn thereon the result is the same as though the depositor had presented his check, received the money over the counter, and then used it in making the payment.”
It does not appear that the bank failed to pay any check drawn on it before April 5, 1921, nor at any other time before the bank closed. On February 4, 1921, the bondsmen were liable for what was on deposit in the bank at that time. No new arrangement was made until April 4, 1921, when a new .contract was entered into between the county commissioners and the Lake State Bank. The money then on deposit in the bank was allowed to remain therein. Allowing that money to remain in the bank amounted to a payment of it to the county and a redeposit of it under the new arrangement, for which new arrangement the sureties were not liable. It not appearing that the bank had failed to pay any check drawn on it, the new arrangement between the county and the bank amounted to a satisfaction of the bond and a discharge of the sureties thereon. For that reason, the plaintiff cannot recover from the sureties.
So much of the former opinions as deals with the period of time covered by the bond is adhered to. S,o much of those opinions as discuss the default in the bond given by the Lake State Bank is disapproved. The other matters discussed in those opinions are now immaterial.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover the amount of a claimed deposit in a bank. The jury returned a verdict for plaintiff, on which judgment was rendered. Defendant has appealed.
In the petition filed January 2, 1923, it was alleged in substance that, beginning many years ago, plaintiff and defendant, through Sam Smith, its then president, made an oral agreement that plaintiff would from time to time deposit in and loan to defendant various sums of money, to bear interest from the date of such deposit at the rate of eight per cent per annum; that defendant might take and apply the money as deposited as it deemed advisable, representing the amounts so taken by the transfer to plaintiff of good bankable commercial paper as security to plaintiff for the money so loaned to defendant; that as such paper came due, to collect the same and apply the proceeds as the money of plaintiff for defendant’s use, or substitute other good bankable commercial paper in lieu thereof. That after the death of S'am Smith one Frank C. Gish became president of defendant bank, and that plaintiff and Gish, by oral agreement, continued the same arrangement. That later Gish “withdrew from the securities held by the said bank for this plaintiff and representing the amount loaned to it, certain bankable paper . . . and in its stead and without the consent of this plaintiff, substituted paper that was poor, difficult to collect upon and in some cases uncollectible.” That thereafter and about June 8, 1922, plaintiff approached the officers of defendant (Gish having retired as an officer of the bank) in regard to closing his account and his previous agreement; that defendant was unable to make settlement in money, and delivered to plaintiff the notes it held as security; that at the time it was orally agreed the sum due plaintiff from defendant was $9,096.90; that since receiving the notes plaintiff had collected some of them in full, and others in part, but had been unable to make further collections on the notes, and had tendered them to defendant and demanded payment from defendant of the balance due thereon, which demand had been refused; that there was a balance due him of $5,509.90, for which sum plaintiff prayed judgment with interest at eight per cent per annum since June 8,1922.
On December 1,1923, plaintiff filed an amended petition in which was omitted the allegations above quoted in paragraph 4 of the original petition, and in lieu thereof alleged in substance that later defendant agreed with plaintiff “that said defendant bank would pay plaintiff upon the balance to his credit in said bank the sum of eight per cent per annum, with the privilege of withdrawing any or all of said sums at any time that said plaintiff might desire.” It was further alleged that when the notes were taken from the bank on June 8,1922, they were not delivered to plaintiff nor received by him in satisfaction of his claims against the bank. Other allegations were in substance as in the original petition.
On October 18, 1924, defendant answered the amended petition and denied the oral contract as therein alleged, and alleged that plaintiff was a customer of the bank for many years, and at his request defendant undertook to, and did at various times, loan money for plaintiff, investing the same in various notes which were kept in a package of notes owned by plaintiff in the vault at the bank; that defendant at no time agreed to be responsible for or liable to plaintiff for any investment, or to pay plaintiff any interest thereon; that such investments were made for plaintiff in good faith and according to the best judgment of defendant’s officers; that on June 8, 1922, plaintiff removed his package of notes from the bank and accepted all the loans mentioned and described in plaintiff’s petition, and closed his account with the bank; that such notes were accepted by the plaintiff as his individual property, and the defendant had collected a large amount thereon. Defendant denied any liability to plaintiff, and further pleaded the three-year statute of limitations. Plaintiff filed a general denial in reply.
On these pleadings the case went to trial, resulting in a judgment for defendant. A new trial was granted — for what reason the record does not disclose — but that is no longer material.
A new trial was had in January, 1926. At this trial, ignoring the business transactions between plaintiff and defendant in previous years, plaintiff offered evidence tending to show that in April, 1921, plaintiff and defendant, through its president, Frank C. Gish, had a parol agreement by which the defendant from that time on was to pay plaintiff eight per cent per annum on his deposit at the bank, and to permit plaintiff to withdraw any part or the whole of such deposit at any time. It appears that what was meant by the deposit, as the parties used the term, included the amount to plaintiff’s credit as a checking account on the books of the bank (then less than $25) and the value of the notes which the bank had kept in the vault in a separate envelope for him, but even the exact amount of these notes at that time is not shown by the evidence. There was evidence also that when plaintiff took the notes from the bank about June 8,1922, he did so under protest, contending that he should have money for his deposit. There was further evidence that plaintiff had collected some of the notes, but some time after taking them away he went back to the bank and asked the bank to pay him the amount of the notes, which the bank declined to do, and that there was a balance due upon the notes.
At the close of plaintiff’s evidence his counsel asked permission of the court to file an amended petition to conform to the evidence, for the reason, as he stated, that the evidence was somewhat at variance with his previous petition. Defendant objected, and among other things charged plaintiff’s counsel with an attempt to cut out proof that the business was carried on just as it originally had been under Sam Smith’s presidency. Plaintiff’s counsel stated “that is exactly what it is for,” and specifically denied that the old agreement had anything to do with the agreement claimed here. The trial court held it would not have that effect; that notwithstanding plaintiff’s claim of a new contract, on different terms, made in April, 1921, defendant could show what it claimed to be the true relation between the parties in respect to all their dealings. Plaintiff then, on January 14, 1926, filed an amended petition conforming to his evidence as offered, in which it was alleged in substance that in August, 1920, J. F. Burger, a brother of plaintiff, and the defendant, through its president, Frank C. Gish, entered into an oral agreement whereby it was agreed that J. F. Burger would place upon deposit in the bank a sum of money, about $5 000, and that the bank would allow him upon his open account interest thereon at the rate of eight per cent per annum, the bank to use the money as it pleased and repay it to him at any time; that in pursuance of the agreement such a deposit was made, and that thereafter and in April, 1921, plaintiff, in company with his brother, went into defendant’s bank and called upon its president, Frank C. Gish, and advised him that he wanted, and intended to withdraw his deposit from the bank; that Gish stated that he disliked for him to withdraw his account from the bank, and proposed that if he would not withdraw his deposit the bank would handle it in the same manner the bank was handling the deposit of his brother, and would pay him the same rate of interest the bank was then paying his brother, to wit, eight per cent per annum, and that any time plaintiff wished to withdraw his account, or any part thereof, from the bank he could do so; that in pursuance of such agreement he left his deposit in the bank, and that later, about June 8, 1922, he desired to withdraw his account from the bank and was advised by its then president and cashier that defendant had loaned his money and taken notes for the same, which notes they offered to plaintiff and advised him that he could have the notes or nothing; that he took the notes, but at that time advised the bank that he was doing so under protest; that thereafter he returned the notes and demanded that the bank take them; that the bank refused to do so, and he again left the bank with the notes and took the same under protest; that thereafter he collected certain of the notes in full and made certain collections on others; that he had been unable to collect the balance due on the notes, and that there was then due on the notes $6,062, for which sum plaintiff prayed judgment.
Defendant demurred to plaintiff’s evidence, which demurrer was overruled. Defendant then offered evidence in support of its answer, and at the close of all the evidence asked for an instructed verdict in its favor, which was denied. Other instructions were requested. Some of them were given in part, others refused.
In this court appellant argues many questions. It will not be necessary to consider each of them in detail. It is contended, among other things, that the court erred in permitting the amended petition to be filed January 14, 1926, for the reason that it set up a new cause of action not relied upon in the previous petition, and for the further reason that any cause of action set out in this amended petition was barred by the statute of limitations. This contention must be sustained.
Under the pleadings as originally framed the issue between the parties was clear. Plaintiff claimed that by an agreement made in 1913 with Sam Smith, acting for defendant, and continued by de fendant’s officers who succeeded Smith, he loaned to the bank sums which he deposited from time' to time and was to receive interest at eight per cent per annum on such sums; that the bank was privileged to charge some of its notes to his account, place such notes in an envelope and safely keep them for him as security for his deposits, while defendant claimed that it made loans for plaintiff at his request, collected the interest or principal thereon and reinvested the money for plaintiff, all under his express authority and direction, that it at no time agreed to pay him interest, and in fact paid him none, and that the notes were owned by plaintiff and were his property. Upon the trial of this issúe there was a judgment for defendant. Reading the record before us it does not appear how it could well have been otherwise. The correspondence between the parties and the records of the bank’s books show clearly that the arrangement was as contended by defendant. Plaintiff, in his letters to the bank, spoke of the notes as being his, frequently gave specific instructions as to renewal or extension of certain notes, authorized the bank to keep the money invested for him, and neither received nor claimed any interest from the bank other than that paid by the makers of the various notes. The evidence on plaintiff’s behalf on this trial, and the amended petition conforming thereto, was a decided departure from the petition previously filed. It is predicated upon a new and later contract, one made in April, 1921, and is based on the claim that by reason of this agreement plaintiff then had a deposit in the bank, being the amount of the value of his notes and checking account, upon which defendant agreed to pay him eight per cent interest and to permit its withdrawal at any time; that he had no interest in the notes as security or otherwise, and that he was enitled to receive at any time on demand the full amount of his deposit with accrued interest thereon in cash, or its equivalent; and that this agreement was-unrelated in any way to the previous agreement made by plaintiff and Sam Smith for defendant.
This amended petition, filed at the close of plaintiff’s evidence over defendant’s objection, stated an entirely different cause of action than that stated in the previous petition, both as to the time when the contract was made and as to the material substance of the contract. The rule applying to amendments to petitions, and the effect of them, is well stated in Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657, as follows:
“Amendments which only amplify or make more specific the averments of the original petition, or which state the wrong suffered or right relied on, are ordinarily permissible and will relate back to the-beginning of the action; but where the amendment sets forth a new and different cause of action the statute of limitations continues to run until the amendment is filed.” (Syl. HU
And the application of'the rule, as there stated, is as follows:
“In an action to recover damages for the negligent setting out of a fire which destroyed the plaintiff’s trees the original petition alleged that the fire was negligently set out at a certain time and place, and after the period of limitation had expired the plaintiff obtained leave to amend his petition so as to aver that the damage resulted from another and different fire, which was started five miles distant from the one relied on in the original petition. Held, that the amendment set out a distinct and different tort and a new cause of action, upon which a recovery was barred by the statute of limitations.” (Syl. H2.)
In that case previous decisions are discussed. Some of the later cases are Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Becker v. Porter, 119 Kan. 626, 240 Pac. 584. It was error to permit the amended petition to be filed, and if filed it must be treated the same as though a new action had been then filed on the cause of action therein stated.
Under the cause of action as alleged in the amended petition when plaintiff went to the bank about June 8, 1922, to draw his deposit he was entitled to payment in cash, or its equivalent. If he had the cause of action he now relies on he had it on that date. According to his testimony defendant denied his right to payment in cash and tendered him notes, and told plaintiff he could take them or nothing. He asked defendant’s cashier to collect some of the notes for him, and defendant did collect more than $5,000 on the notes within a week or ten days. Plaintiff then took the remaining notes and the cashier’s checks, one for $4,569 and the other for $1,049.78, and closed his business with the bank. He testified that he took the notes under protest, but if he was entitled to money for their value he did not have to take them at all. Defendant contended the notes belonged to plaintiff. He did take them and did exercise all the rights of ownership of them. He sold one of them to Mr. Hal-bower personally and got full value for it — $1,000. He collected two or more of the notes in full and retained the proceeds. He made collections on the other notes. When he finally took them back to the bank he asked that the balance due on the notes be paid — he did not ask for the balance of his deposit. Appellant argues that, even though plaintiff protested to defendant the taking of the notes, the fact that he did take them and exercised all the rights of ownership in them precludes him from now contending that the notes were not his. This point is well taken. Appellee argues that he had to take the notes. Of course he did not have to take them; if his contract was as his petition now alleges and his evidence tended to show, he was entitled to money for the amount of his deposit; when he demanded payment of his deposit in money and such payment was refused he did not have to take something else; he could have sued at once for the amount of his deposit. It was in legal substance a settlement. (1 C. J. 528.) On being offered the notes by defendant as all that was due, plaintiff could either accept or reject the offer. If he accepted, the fact that he did so complainingly avails him nothing. (Nassoiy v. Tomlinson, 148 N. Y. 326.) The effective way for him to protest was to decline the offer. (12 C. J. 319.)
Appellant contends that the cause of action set out in plaintiff’s amended petition is barred by the statute of limitations. The contention is well taken. The cause of action arose June 8,1922. The amended petition was filed January 14, 1926. The three-year statute applies. (Talcott v. National Bank, 53 Kan. 480, 36 Pac. 1066; Bock v. First Nat’l Bank, 123 Kan. 304, 255 Pac. 68.) The question was raised by answer, by demurrer to the evidence (Arnold & Co. v. Barner, 100 Kan. 36, 163 Pac. 805; Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048), and by the motion for a directed verdict.
From what has been said it necessarily follows that the judgment of the court below must be reversed with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover for lumber and materials furnished in the construction of an addition to the Argentine high school. Plaintiff prevailed and defendants appeal.
The facts are substantially these:
The defendants, Brown and Grube, entered into a contract with the board of education of Kansas City, Kan., November 13, 1922, to erect an addition to the Argentine high school. On February 9, following, Brown and Grube entered into a verbal contract with the plaintiff whereby the latter was to furnish certain lumber and building material for the project. The material was delivered under the contract over a period of time from February 9, 1923, to January 8 following. Shortly after the contract had been awarded by the board of education to Brown and Grube, the latter procured the defendant, the National Surety Company, to execute certain bonds, one in the sum of $104,664.59, conditioned upon the performance of all stipulations and agreements on the part of Brown and Grube in their contract with the board of education; another in the same amount guaranteeing full performance of the work done and payment of all indebtedness incurred for labor and building material; and the third in the sum of $5,000, guaranteeing prompt payment of all indebtedness incurred for material or labor furnished in the prosecution of the work. On completion of the building, there remained a balance due plaintiff of about $5,000, for the recovery of which this action was later filed. The case was tried to the court, who made findings of fact, reciting among other things “that the defendants Brown and Grube gave the plaintiff on March 10, 1924, a note for $5,108.70, payable one day after date on demand, such note being accepted by the plaintiff and given by the defendants ■Brown and Grube as further security for the balance of the said account and not as payment, satisfaction, or discharge thereof; that such note was never paid except $1,000 paid thereon June 23, 1924 ■ that there was no agreement between the plaintiff and the defendants Brown and Grube, or either of them, that such note should be in discharge or satisfaction of the said account; and that the plaintiff had never disposed of the said note; that the time of payment of such note was never extended by the plaintiff, and that none of the defendants have paid the plaintiff’s said account or said note or performed the conditions of the bonds mentioned in the second amended petition. Demand was made on the defendants Brown and Grube for the payment of the said note of March 10, 1924, before this action was brought and after such note was executed and demand was made on the defendant, the National Surety Company, after said note was given and before this suit was brought for the payment of the plaintiff’s claim sued on in its second amended petition; that on July 21, 1924, the defendant Grube and his wife executed a deed to the plaintiff purporting to convey to the plaintiff land in Tulsa county, Oklahoma, as further security for the said note, with the agreement that such deed should not release the bonds sued on herein and that suit should at once be brought by the plaintiff on such bonds; and that the plaintiff has never disposed of said land; that there is not sufficient evidence from which the court can find the value of the real estate mentioned in the said deed of July 21, 1924, or from which the court can find the condition of the title thereof; that the Argentine high school addition and remodeling was completed within six months before this suit was filed, to wit, about March 7,1924.”
Various errors are alleged as grounds for reversal of the judgment. All together, three petitions were filed. At the time of the trial, defendants moved to strike the first and second amended petitions from the files on the ground that they were departures. It is argued that the action was first brought solely on open account; that the defendants, Brown and Grube, filed an answer pleading payment and discharge; that plaintiff then filed its first amended petition, amplifying the original as to the contract for building the schoolhouse, but still maintaining an indebtedness upon open account. To this amended petition Brown and Grube again filed an answer pleading payment and discharge. Thereupon the plaintiff filed a second amended petition which marked its first complete departure from its original cause of action in three counts, first, upon the faithful performance bond executed at the time of the original contract; a second count upon the original bond against mechanic’s liens, and a third count upon a subsequent bond against liens for $5,000; that in the second amended petition, the demand for payment upon account was abandoned and the liability predicated wholly upon the three bonds. It is not necessary to make a detailed analysis of the three petitions. It appears clearly that the transaction which plaintiff called on the court to investigate was the same in all three petitions; one relating to bonds for the payment of materials, and a failure on the part of the defendants to pay for those materials. All the petitions set forth bonds signed by all the defendants, so all were affected by the cause of action on the bonds. The first amended petition contained practically the same allegations as the original petition except that it added allegations with respect to the $5,000 bond last given. There were amendments made in each of the subsequent petitions filed, but they did not substantially change the cause of action. The amendments were rather amplifications of the facts first alleged. (See Smith v. Kimball, 36 Kan. 474, 13 Pac. 801; Walker v. Fleming, 37 Kan. 171, 14 Pac. 470, Hardy v. La Dow, 72 Kan. 174, 83 Pac. 401; Snider v. Windsor, 77 Kan. 67, 93 Pac. 600; Wilbur v. Ronnau, 82 Kan. 171, 107 Pac. 772.) No error was committed by the court in overruling the motion to strike.
It is contended that execution of the note by the defendants was a discharge of the account. The plaintiff contends that there was no agreement that the note was in discharge or satisfaction of the account, and the court specifically found from the evidence that the note was not given as satisfaction and discharge but merely as further security. The rule is well established that the giving of a note for an existing indebtedness is not a payment or discharge of. the indebtedness unless it is made so by the agreement of the parties. (See Bradley v. Harwi, 43 Kan. 314, 23 Pac. 566; Capital Co. v. Merriam, 60 Kan. 397, 56 Pac. 757; Webb v. Bank, 67 Kan. 62, 72 Pac. 520; Bank v. Cooper, 99 Kan. 731, 162 Pac. 1169.)
Various other objections to the judgment are urged, all of which we have given careful consideration. We discover no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The question presented by the appeal is the proper interpretation of the wages-preference law of this state, which reads as follows:
“That whenever a receiver shall be appointed of the estate of any corporation, copartnership, or individual, under the laws of this state, or whenever any corporation, copartnership or individual shall make a general assignment for the benefit of the creditors of such corporation, copartnership, or individual, the wages due to all laborers or employees other than officers of such corporation, accruing within the six months immediately preceding such appointment of a receiver or such assignment, shall be preferred to every other debt or claim against such corporation, copartnership, or individual, and shall be paid by the receiver or assignee of such corporation, copartnership or individual from the moneys thereof which shall first come into the hands of such receiver or assignee.” (R. S. 44-312.)
The action was one to foreclose a mechanic’s lien on an oil and gas leasehold. Various lien claimants were made parties, and the leaseholder was served by publication. A receiver was appointed for all the property of the leaseholder in the state of Kansas, and the order of appointment conferred on the receiver all the authority usually granted to receivers. Subsequently the .order was modified, and the receiver’s authority was limited to talcing charge of the leasehold on which liens were claimed, consisting of eighty acres of land, and the buildings, wells, pumps, boilers, drilling rigs, pipe line, and other equipment, machinery, supplies and property on the land; to recovery of property belonging to the leasehold but removed from it; to holding the property intact and protecting it; and to execution of such orders respecting the property as the court might make. After the authority of the receiver had thus been restricted, a number of laborers intervened. Each one claimed a sum as wages due him, and claimed a preference under the statute. There were eleven such claimants, and the amounts of their claims ranged from $10.50 to $422.72. The property in the hands of the receiver was sold, and the proceeds were wholly insufficient to pay all claims. The wage claims were allowed, and were preferred for payment before the lienholders were permitted to participate in the meager fund. The lienholders appealed.
It will be observed the statute is a preference statute only, and not a lien statute.. The statute was enacted pursuant to the sound public policy of securing to wage earners prompt payment of earned wages, and is to be liberally construed.
The preference claimants contend the word “estate” means simply property, and the statute should apply whenever any portion of a debtor’s property is placed in the hands of a receiver for any purpose. The lien claimants contend the word “estate” ordinarily refers to the collective whole of an owner’s property, and when employed without modification or restriction in connection with the subject of satisfaction of debts, means the corpus of the debtor’s property subject to appropriation for payment of debts. The distinction between the two interpretations is sharply drawn by the proceedings in the district court. The original order extended to all of the debtor’s property within the state, and conferred general authority on the receiver to wind up his affairs. The modified order dealt with a described eighty-acre leasehold and its equipment and appurtenances, and limited the authority of the receiver to functions incident to appropriation of the specific property to satisfaction of claims upon it. It might be said the original order created a receivership for that part of the debter’s estate which was within the jurisdiction; but to say the modified order created a receivership of the debtor’s estate would be to give to words a signification which does not accord with approved usage. (R. S. 77-201, Second.)
Turning to the context, it will be observed the preference arises under two conditions: first, when a receiver is appointed of the estate of a corporation, partnership, or individual; and second, when a corporation, partnership or individual makes a general assignment for the benefit of creditors. What did the legislature have in mind, a debtor’s status, or the occurrence of a procedural event? It seems reasonable to conclude the legislature contemplated a situation calling for suspension of a debtor’s dominion, and the vesting of possession, control and disposition of his assets in another for the benefit of his creditors. The methods of dealing with the situation are, first, the involuntary one of appointing a receiver, and second, the voluntary one of assignment to a trustee. The state of affairs is the substantial thing. The methods are incidental only, and are unimportant except as limitations excluding other methods of sequestration and distribution.
Correctness of the interpretation just proposed is fortified by a consideration of the history of legislation giving special protection to wages. In the book, “Principles of Labor Legislation,” by Commons and Andrews (1916), appears the following:
“Mechanics’ lien laws represent a stage in the progress toward wage preference, but they should not be confused with it. . . .
“Mechanics’ lien legislation seeks to give the laborer a claim for the payment of what is due to him, backed by the security of the structure or land •on which he has been employed.....
“The next step was the provision that wages should be considered as preferred claims. Nearly all the states and the federal government have laws providing that in cases of assignments, administrations, and receiverships due to death or bankruptcy, the wages of servants and employees, up to a definite sum and for work done within a limited time, shall be paid next after fees, costs, and taxes.” (pp. 60, 61.)
The movement for legislation of this character was given great impetus by the decision of the supreme court of the United States in the case of Fosdick v. Schall, 99 U. S. 235 (1878), and subsequent decisions, approving the practice of courts of equity in railroad receivership cases of imposing reasonable requirements relating to preferential payment of labor claims. Judicial opinion differed regarding utilization of the practice in other classes of cases, and the result was, numerous statutes were enacted to secure generally to labor the benefits of the equity doctrine. These statutes are dissimilar in form and content (2 Labatt’s Master and Servant, 2d ed., p. 1999; 39 C. J. 215), and it is not practicable to review them here. The Kansas statute was enacted in 1901. The legislature had before it a variety of models, and what it adopted and what it rejected give fair indication of its intention.
If in this instance the debtor had remained with his leasehold, protecting and preserving his property, the liens had been foreclosed, and the property had been sold, all without appointment of a receiver, the statute would have afforded no protection to the preference claimants. It would have been necessary for them to file liens under the statute providing for labor liens on oil and gas leaseholds (R. S. 55-207 to 55-210), or to resort to the ordinary remedy of action, judgment, and execution. Suppose the action had been one to foreclose mortgage and mechanics’ liens on a house and lot. Why should laborers, whether they filed or failed to file liens under the mechanics’ lien law, be preferred merely because the circumstances .and condition of the property happened to call for appointment of a receiver, and should not be preferred if no receiver was needed? The theory is that if a debtor allow the law to take hold of some of his property by any kind of process, it is a sign of financial distress, and laborers may immediately come in and secure their wages. When the Kansas statute was enacted, this theory was fully exemplified in the statutes of several states.' It was provided in these statutes that, whenever property of a corporation, partnership or individual should be seized by attachment or on execution, or on any mesne or final court process, the preference should attach for wages accruing within a limited time, and not exceeding a specified amount. The Indiana statute of March 17,1885, is illustrative:
“Hereafter, when the property of any company, corporation, firm or person, engaged in any manufacturing, mechanical, agricultural or other business or employment, or in the construction of any work or building, shall be seized upon any mesne or final process of any court of this state, or where their business shall be suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, then in all such cases the debts owing to laborers or employees, which have accrued by reason of their labor or employment to an amount not exceeding fifty dollars .to each employee, for work and' labor performed within six months next preceding the seizure of. such property, shall be considered and treated as preferred debts, and such laborers, or emplees shall be preferred creditors and shall be first paid in full, and if there be not sufficient to pay them in .full, then the same shall be paid to thenr pro rata, after paying costs.” (Acts 1883, ch. III.)
In framing the statute of 1901 the Kansas legislature definitely rejected the danger-flag theory. The constitution provides that no bill shall contain more than one subject, which shall be clearly expressed in its title -(Art. 2, §16). In this instance the original bill was senate bill No. 26, which bore the following title: “An act to prefer the-wages, of employees of corporations, partnerships and individuals in case of insolvency.” (Senate Journal 1901, p. 66.) When the bill passed the senate the title was agreed to. In the house the bill was amended as follows:
, “In. section 1, strike out the words ‘employees or laborers thereof,’ and insert-in lieu thereof the words: ‘laborers or employees other than officers of such corporation, accruing within the six months immediately preceding such appointment of a receiver or such assignment.’ ” (House Journal 1901, p. 1300.)
The bill was passed by the house as amended, and the title was-agreed to. The senate concurred in the house amendment, and the’ act became effective on publication in the statute book as chapter 229 of the Laws of 1901, the title of which is the title of the original bilí.
In the case of Mitchell v. The State, 61 Kan. 779, 60 Pac. 1055, the court said:
“We cannot ignore the language of the title, which in this case furnishes the light by which we may read the purpose of the legislature.” (p. 784.)
Reading the legislative purpose in the light furnished by the title, it is clear the act applies to general receiverships in cases of insolvency, and not to supervenient receiverships for limited or special purposes only.
In the case of Geppelt v. Stone Co., 90 Kan. 539, 135 Pac. 573, the statute was applied. In that case the receivership was general, and all creditors were given leave to interplead.
The sum allowed one lienholder who appealed was less than $100. If this appellant’s claim had been disallowed, he could not have invoked the appellate jurisdiction of this court, and manifestly he may not do so because his lien was subordinated to preferred claims. The preferences awarded several intervening laborers were for less than $100. Each one of the interveners was fighting for his own individual protection. Their claims are several. ÍSTo one of them is large enough to give this court jurisdiction, and they cannot be added together to make a jurisdictional amount (Kastner v. Security Savings and Loan Ass’n, 123 Kan. 632, 256 Pac. 989).
The appeal is dismissed so far as it relates to preference of wage claims less than $100 in amount. The judgment of the district court is reversed so far as it relates to preference of wage claims of more than $100, and the cause is remanded with direction to deny such preferences. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case was disposed of upon a demurrer to plaintiff's petition which the court overruled. The action was brought by the state on the relation of the attorney-general in behalf of the state and of all the creditors and stockholders of the Peabody Petroleum Company, a defunct corporation. The following is a summary of the allegations of the petition. The Peabody Petroleum Company, prior to the forfeiture of its charter, was a Kansas corporation which was the owner of an oil lease in Marion county, on which there were several producing wells. On November 19, 1921, a controversy arose between the company and some of its directors and an action was brought in the United States district court in which that court appointed Dan F. Callahan as a receiver of the company. He qualified and took possession of the lease and all of the property of the company and proceeded with the management and conduct of the business and carried it on until May 24, 1925, when the receiver Callahan was discharged, and an order made directing the turning over of the property to the corporation or its trustees. In April, 1922, the charter board of the state of Kansas forfeited and canceled the charter of the company for failure to make the reports prescribed by law and to pay the fees required, and the board of directors became by operation of law trustees for the creditors and stockholders of the company. It is alleged that Callahan as receiver had executed a bond conditioned for the faithful administration of the assets of the corporation and that the report made by him at the time of his discharge was incorrect and untrue; that a large part of the property was not accounted for or delivered to the corporation or its trustees; that much of it’had been removed from the lease, sold or otherwise disposed of by that receiver and was not returned to the corporation, or its trustees; that property purported to have been inventoried and turned over has since been sold by the trustees without accounting therefor to the creditors and stockholders; that the trustees, contrary to and in violation of their duties, designated the defendant Edgar Forrester as agent or manager of the property and permitted him to sell and dispose of parts of the property and assets, and that no account thereof has been made or rendered to the stockholders or to its creditors. That he has permitted the property to stand and remain-uncared for with the result that a large part thereof will be dissipated without benefit to said stockholders unless the remnants of the property be conserved and administered for their benefit, that it is necessary in order that the property be conserved and disposed of for the benefit of stockholders and creditors that a receiver be appointed by this court who may take possession and control of what is left and administer the same under the orders of the court for the benefit of creditors and stockholders, and that the receiver to be appointed proceed by suit or otherwise to collect the property and assets of the corporation and institute such actions as may be necessary to re cover property and assets against Callahan, the discharged receiver, to recover for property and assets not accounted for, and to take all steps and proceedings necessary for the winding up of the corporation and the proper distribution of its property. There is an allegation that the board of trustees of the corporation has failed and neglected to proceed against Callahan for the return of the property not accounted for or for a faithful accounting of moneys and properties coming into his hands, and that it is necessary that a receiver to be appointed be given power and authority to institute and prosecute actions to recover from the trustees on account of the breach of their duties. There is an allegation, too, that there is due to the state of Kansas corporate and other taxes upon the property and franchise of the corporation, which have not been paid and which will be lost to the state unless the property, assets and rights of the corporation are administered according to law; finally, that an order of dissolution of the corporation be made by a court of competent jurisdiction and accompanied with an order appointing a receiver to administer and wind up the affairs of the corporation.
At the time the petition was filed the court upon application of plaintiff appointed a receiver of the property and assets of the defunct corporation who gave the required bond and has ever since been acting as receiver. The defendant, King, filed a demurrer to the petition, which the court at a hearing overruled. The plaintiff subsequently dismissed the action as to the defendant, Forrester. Later the receiver presented an application that Forrester, acting as the agent of the trustees, be required to appear before the court on a day fixed and show cause why he should not be declared in contempt of court for failing to turn over to the receiver property and assets sold and disposed of by him not accounted for and believed to be of the value of about $10,000. That Forrester had in his hands a small amount of money of the funds of the corporation, but he objected, contending that the court was without jurisdiction to make such an order and also that the plaintiff had no capacity to bring the action. The court granted the order and required Forrester to account to the court for all moneys and property in his hands belonging to the Peabody Petroleum Company within ten days from that date. King and Forrester both appeal from these rulings. It is contended that the charter of the corporation having been forfeited about four years before the action was brought and after the property and assets had been taken over by the directors as trustees, the attorney-general was without authority to bring the action.
It is insisted that unless a receiver is appointed at the time of the forfeiture of the charter, the assets of the corporation at once pass into the hands of the trustees and thereafter there is no authority in the state to bring an action requiring an accounting and to have a receiver appointed. For this contention defendants rely on the statute which provides that:
“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 the 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.” (R. S. 17-808.)
It is argued that the word “upon” as used in the statute carries the inference that action must be taken when the dissolution occurs by reason of a forfeiture of the charter unless a receiver is appointed, and if this is not done at the time of the forfeiture neither the state nor the stockholders and creditors of the corporation may take any action to compel the proper administration of the trust and to wind up the affairs of the company.
We think this was not the legislative purpose in the enactment of the statute. The right to take action for the appointment of a receiver accrues when a corporation is dissolved, but it is not lost by the failure of the attorney-general to act immediately upon a declaration of forfeiture or a dissolution. The single word “upon” cannot be interpreted as a limitation upon the bringing of an action but simply means that after dissolution the trustees of the corporation shall, if a receiver is not appointed, proceed to take charge of the property and assets of the corporation and administer them for the benefit of creditors and stockholders. It did not mean that if prompt action was not taken, the ordinary remedies of the law for the protection of creditors and stockholders were forever lost. The trustees are required to settle the affairs of the corporation, and after paying the debts to turn over to stockholders the moneys derived from the property and assets of the corporation so far as they will go. It cannot be the theory of the law that if trustees violate their trust and fail to properly wind up the affairs of the corporation and are wasting and dissipating the property and assets of the corporation that they are immune from judicial process, and that creditors and stockholders cannot apply to the courts to compel an accounting by the trastees and a faithful administration of the trust. The allegations of the petition, which must be taken as true, show waste and dissipation of the property and unfaithful administration. It was competent, we think, for the state to interpose for its own protection as well as in behalf of the creditors and stockholders of the defunct corporation. The delay in bringing the action did not exempt the trustees from judicial action as against a violation of the trust and as looking towards the proper settlement of the affairs of the corporation, including the bringing of necessary actions and the proper distribution of the moneys derived from the trust. It is said that there was a receiver in charge when the forfeiture was declared by the charter board, but he was appointed for another purpose by the federal court before the forfeiture occurred, and besides it is alleged that the case in which that receiver was appointed had been finally determined and that that court is no longer exercising jurisdiction or control over the trust. Under the averments of the petition we think the state had the right to bring the action that was brought to obtain a decree formally dissolving the corporation and providing for the proper settlement of the affairs of the corporation. The court had the jurisdiction and power-to require an accounting by the trustees and their agent, Forrester, and to take all necessary steps towards the conservation of what was left of the property and assets of the corporation, and to that end could appoint a receiver. It cannot be held that error was committed in overruling the demur-' rer to plaintiff’s petition or in the appointment of a receiver or in requiring an accounting of the trust property.
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The opinion of the court was delivered by
Burch, J.:
The defendant, W. A. Green, has filed a motion praying that the judgment of this court, directing the district court to quiet title of plaintiffs, be modified to allow Green a lien for taxes on the land in controversy. Green’s answer disclosed that taxes were delinquent when the land was sold to him under attachment, and that out of the proceeds of the sale the sheriff paid the taxes in the sum of $283.33. Manifestly, title ought not to be quieted in the Tellums free of taxes paid by Green’s money long after the Tellums purchased the land. Therefore, Green’s motion is allowed, and the judgment of this court is modified to include direction to -the district court to award Green a lien for taxes, enforceable by proper remedy. | [
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The opinion of the court was delivered by
Hutchison, J.:
J. A. Eyth, a resident of Topeka, was convicted in the district court of Jackson county, Kansas, of the crime of grand larceny, being charged in the second count of the information with stealing tires, inner tubes, and other personal property belong ing to one L. C. Leeth. It was not contended by the state that the defendant was personally present in Jackson county when the property was actually taken, but that he was an accessory before the fact and that the actual crime was in fact committed by three young men, Henderson, Carson and Karpis. These three young men, on the afternoon of February 1, 1926, discussed among themselves the plan of stealing tires if they could find a buyer for them. Two of them then went to see the defendant, a dealer in junk on Kansas avenue near the river. After a short conversation with him about buying tires they left, and, with Karpis, that night drove over to the town of Netawaka, in Jackson county, and stole twelve tires, a few inner tubes, and other property, brought them to the outer edge of Topeka and hid them in a vacant building. At 8:30 the next morning they called again on defendant at his place of business. As to the nature and substance of the conversation the afternoon before there is serious difference and dispute as to their telling him that the tires would be “hot” or stolen tires. The boys say they so told him. He and others present say they did not. They say he promised to buy. He and others present say he did not. When they returned the next morning they told him they had the tires. He declined to buy, but suggested a party in North Topeka might purchase them. Defendant went in his car to North Topeka, brought Hamilton back, and gave him a check for $50. Hamilton purchased the tires and inner tubes for $30. The two boys later plead guilty and were sentenced to the reformatory, and came from there ,to testify in this case on behalf of the state. They were shown to have been guilty of similar offenses prior to this transaction, and there was evidence introduced to the effect that their reputations were bad.
The defendant contends that the trial court erred in giving the instructions it did and failing to give or refusing to give the instructions requested by the defendant, calling particular attention to the instructions with reference to the uncorroborated evidence of these two accomplices, said to have been discredited, and the use and meaning of the words and terms “accomplice,” “aid and abet” and “aid or abet.”
In the first place, the defendant criticizes, we think justly, a rule of the trial court which requires the submission of requested instructions not later than the closing of the case of the plaintiff, under which the court in this case marked the instruction requested by the defendant, “Submitted in violation of rule No. 11 of the court.” This court, in the case of State v. Bloom, 91 Kan. 156, 136 Pac. 951, held that requested instructions were not submitted too late for consideration in a criminal case if furnished before the charge is given to the jury.
“If, in such case, a request for a proper instruction is made before the charge of the court is given to the jury, it should not be refused on the sole ground of being out of time, notwithstanding any rule of court, but should be considered, and given or refused on its merits.” (Syl. (f 2.)
The trial court should have considered the requested instructions and either given them or refused to give them. There are certain instructions which are not required to be given unless requested, but in this case none of those requested are pointed out as being such, but are along the general lines upon which the court must on its own motion charge the jury.
“The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. . . .” (R. S. 62-1447.)
Notwithstanding the requested instructions should have been either given or refused, we can with reason and propriety consider them for the purposes of this case as having been considered by the trial court and refused, as that is the practical effect of what was in fact done. This will give the defendant the full benefit of them, as we think he should have had, and we will now consider whether or not there was error in the failure or refusal of the trial court to give them or any one of them.
It is strongly urged by the defendant that the court erred in not giving the jury a definition of the words, “accomplice,” “aid,” and “abet,” and in construing the disjunctive “or” as having more nearly the meaning of the conjunctive “and” in the connection used, all of which matters were suggested in the instructions requested by the defendant. In the first place, the court charged the jury in the exact words of the statute in instruction 10 that “any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (R. S. 62-1016.) Then, in instruction 13, the court told the jury that the defendant can only be convicted by aiding and abetting in the commission of the crime charged, as explained in instruction 10. It is true the word “or” has sometimes been held to mean “and,” but never because of any hidden or technical reason, but because the general sense of the phrase suggests it. The court in his instruction here used both words. It is contended that the word “aid” is purely an innocent term and never implies or suggests guilt or wrongdoing; that one might aid another not knowing that a crime was intended or even contemplated at the time. The statute and the court both carefully connected the word with the question of the commission of a crime. It is not concerning the aiding of one generally, but aiding him in the commission of an offense. If a definition of any of these words were necessary it could be readily gathered from the context of the instructions,' but they are not unusual words. They occur frequently in everyday reading and are not here used in any technical sense or different from the ordinary use in common parlance.
“It is urged that the word ‘aid’ is open to more than one interpretation, and therefore, it should have been defined by the court. It is doubtful if the meaning of the term could have been made clearer or aided in any way by a definition. There was no likelihood that the jury would infer that he aided in the commission of arson by doing some innocent act towards its accomplishment.” (State v. McDonald, 107 Kan. 568, 571, 193 Pac. 179.)
We think the same rule applies as well to the words “accomplice” and “abet.”
“But generally speaking, where the matters charged against the accused are stated in ordinary language and in such manner as to enable a person of ordinary understanding to know with what offense he is charged, it is not necessary for the court to enter upon a definition or explanation to the jury.” (14 R. C. L. 763.)
Under the following three distinct headings the defendant maintains the court erred in its instructions and in not giving those requested: (1) Where a witness admits having committed the crime he is an accomplice as a matter of law; (2) testimony of a discredited accomplice not sufficient to sustain a verdict of guilty; and (3) corroborating evidence must connect accused with the crime. Reference is made to numerous decisions from other states in support of these positions, which would have greater weight if the questions were new in Kansas. In instruction 12 the court charged the jury as follows:
“The uncorroborated testimony of an accomplice is legally sufficient to sustain a verdict of guilty, but I instruct you that you should receive and weigh the testimony of such an accomplice carefully and scrutinizingly in connection with all the other facts and circumstances in the case.”
In number 13 he charged them as follows:
“Even though you should find from the evidence that the defendant knew on February 1, 1926, that the crime charged in the information was to be committed that night, and did not object thereto, this of itself would not be sufficient to find him guilty of the said charge; for the defendant can only be convicted by aiding and abetting in the commission of the crime charged, as explained in instruction number 10.”
In number 5 the usual instruction as to determining the weight to be given the testimony of any witness was given, and in number 4 the jury was charged as follows:
“You are the exclusive judges of all questions of fact and of the weight of the evidence, and of the credibility of the witnesses; and if you find from the evidence that any witness has willfully testified falsely and corruptly to any material fact in the case, then it will be your duty to determine how much or whether the whole of such witness’ testimony should be disregarded; but you are not authorized, without cause or reason, to arbitrarily reject the testimony of any witness, but it is your duty to carefully consider, examine, and harmonize, all the testimony in the case upon a basis of truth if you can do so.”
These instructions cover, we think, all the essential points necessary to be charged concerning the testimony of an accomplice.
“In The State v. Patterson, 52 Kan. 335, 34 Pac. 784, it was decided that the uncorroborated testimony of an accomplice is legally sufficient to sustain a verdict of guilty, but of course the credit to be given to the testimony of an accomplice is a matter for the determination of the jury. And the same rale was applied in The State v. Bratcher, 105 Kan. 593, 185 Pac. 734.” (State v. McDonald, supra, p. 570.)
“The fact that a-witness was an accomplice in the commission of the crime charged, goes to the credibility of his evidence and not to its competency, and if the jury are fully convinced of the truth of his testimony and are fully satisfied that it is sufficient to establish the guilt of the defendant, they may convict upon the uncorroborated evidence of the accomplice.” (State v. Bolton, 111 Kan. 577, syl. ¶ 1, 207 Pac. 653.)
“Another requested was that a person could not be convicted on the uncorroborated testimony of an accomplice. This was properly refused, as it has .been held that the testimony of a witness, although an accomplice, is competent, and if otherwise sufficient will sustain a verdict of guilty. (State v. McDonald, 107 Kan. 568, 193 Pac. 179.)” (State v. McKimson, 119 Kan. 658, 660, 240 Pac. 567.)
The same doctrine is maintained in State v. Vandeveer, 119 Kan. 674, 675, 240 Pac. 407, and State v. Welch, 121 Kan. 369, 375, 247 Pac. 1053. In the recent case of State v. Logan, 123 Kan. 743, 256 Pac. 1017, it was held:
“A conviction of one of three persons who participated in the commission of an offense may be based on the uncorroborated testimony of an accomplice, if it is otherwise sufficient.” (Syl. II1.)
The testimony of Henderson and Carson was not in our judgment wholly without corroboration in this case. The return of the two boys the next morning after the larceny indicates that they may have been encouraged'to come back after taking the tires. The interest manifested by the defendant in finding a buyer for the tires, the furnishing of the money used by Hamilton in making the purchase of the tires, the getting of a receipt for such money more than a week later, the procuring of the several inner tubes for his own use at once, the voluntary furnishing of a bond and attorney for Hamilton when he was arrested, the testimony of Hamilton and others as to the time and place of furnishing the $50 agreeing with that of the boys and not that of the defendant, are all corroborative of the testimony of Henderson and Carson as to material facts and circumstances in connection with the case. We conclude that the testimony of Henderson and Carson was not without corroboration, that the instructions given were sufficient, that the evidence was sufficient to sustain a conviction, and that no error was committed in failing to give any of the instructions requested.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
Frank Saparito pleaded guilty to violation of the prohibitory liquor law and was incarcerated for such offense. He seeks his liberty in a proceeding in habeas corpus, contending that he has served the penalty prescribed and is entitled to release. While the record is not entirely clear, the facts appear substantially as follows:
A case was filed against the petitioner October 23. 1925, containing two counts, one for possession of intoxicating liquors, a second for maintaining a nuisance. A second case was filed against him before the same justice of the peace November 24, 1925, charging him with the sale of intoxicating liquors. He admits that on the same day he pleaded guilty to the possession and nuisance counts, while the state contends he pleaded guilty on all three counts. A commitment issued by the justice of the peace reads:
“Whereas, on the 24th day of November, a. d. 1925, in a case then pending before me the undersigned, a justice of the peace, of said city, wherein the state of Kansas was plaintiff, and Frank Saparito, charged with the offense of violation prohibitory liquor law, was defendant, judgment that Frank Saparito be confined to the jail of Cherokee county for thirty (30) days and pay a fine of $100 and costs of this action, being for first count possession. Cost paid.”
Second count:
“On sales of whisky, that Frank Saparito be confined in jail of Cherokee county for a period of one hundred twenty (120) days, commencing at thé expiration of the first count, December 24, 1925, and ending April 24, 1926, and pay a fine of $400 and costs of this action. Cost paid.”
Third count:
“On third count, that of maintaining a nuisance, that Frank Saparito be confined in jail of Cherokee county for a period of thirty (30) days, commencing at the expiration of the second count, being April 24, 1926, and pay a fine of $100 and costs of this action, taxed at $85. Paid.
“And whereas, said Frank Saparito has failed to comply with the conditions of said judgment.
“You are therefore commanded forthwith to take and commit said Frank Saparito to the jail of Cherokee county, there to remain until such judgment be complied with; and of this writ make due return.”
The petitioner was committed to jail, took no appeal from the judgment of the justice of the peace, served sixty days, and paid the costs on all three alleged counts. At the expiration of the sixty days he filed an application for a writ of habeas corpus before the probate judge. His petition was denied, whereupon he appealed to the district court, where his petition was again denied.
We are of opinion that the irregularity .in the commitment of which the petitioner complains did not render the commitment void. Irregularities, defects or informalities in a judgment or sentence may be corrected on appeal. Petitioner, however, took no appeal from the judgment of the justice of the peace, accepted the judgment and acquiesced therein by serving two months of the jail sentence and by paying the costs on all three counts. Under the circumstances he cannot be heard to complain because of the irregularity in the commitment. (See In re Terry, 71 Kan. 362, 80 Pac. 506, 12 R. C. L. 1207.) The habeas corpus proceeding is a collateral attack on the judgment of the justice of the peace, which, even if irregular, is not void. (In re Hornung, 81 Kan. 180, 105 Pac. 23; State, ex rel., v. Piper, 103 Kan. 794,176 Pac. 626; 29 C. J. 25.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:.
In this original action in quo warranto the state challenges the right of defendant L. R. Penner to hold the office of trustee of Lexington township, in Johnson county, on the ground that he was not regularly nominated at the August primaries in 1926.
Defendant answers that whatever the circumstances of his nomination, no timely objection as permitted by statute was made thereto; that he received the highest number of votes for township trustee at the general election in November and was inducted into office on January 10, 1927; that he is now in possession of that office and exercising its functions, and that his title to the office is now unassailable.
The facts which provoked this controversy are these:
Penner was a member of the democratic party and filed his declaration of intention to become a candidate of that party for nomination to the office of township trastee. One J. S. Adams was also a candidate for the democratic nomination. No candidate sought the republican nomination. At the August primary election Adams defeated Penner for the democratic nomination; but a few republicans wrote the name of Penner on their party ballots in the blank space provided for written nominations where no printed names of candidates appear; and the canvassing board declared Penner to be the republican candidate for township trustee. There was some correspondence between the county attorney, the county clerk and the attorney-general touching the validity of Penner’s nomination, and the latter advised that the votes for Penner should not be counted, and that the county clerk should not print Penner’s name as the republican candidate on the general-election ballots. But that advice was not followed, and Penner’s name was printed on the township ballots as the republican nominee and he was elected over Adams, the democratic candidate.
This action proceeds on the theory that disregard of the regulations touching political party nominations vitiates Penner’s right to the office notwithstanding he was the choice of the electors for that office at the general election in November, 1926. No such consequence for breach of the regulations concerning nominations by political parties at the August primary is imposed by the statute, and it is out of reason that the judiciary should be called on to declare so drastic a consequence without any statute. If anybody had any fault to find with Penner’s nomination as the republican candidate for township trustee, there was a statutory tribunal provided by the primary' election law whose powers might have been invoked to settle that point. The pertinent provision of the statute reads:
“The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. . . . Such objections or questions arising in the case of nominations for officers to be elected by the voters of a county or township shall be considered by the county clerk, clerk of the district court, and county attorney; and the decision of a majority of said officers shall be final.” (R. S. 25-308.)
The jurisdiction of that statutory tribunal to determine the validity of nominations is not only final but it is exclusive (except for fraud, oppression or similar vice), and since its jurisdiction was not timely invoked to determine the regularity of Penner’s nomination, it was “deemed to be valid” as found by the canvassing board— whether correctly or not is no longer of any consequence; Penner’s title to his office is not now assailable, and judgment must be entered in his behalf.
It is so ordered. | [
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